1

EN BANC
G.R. No. L-409

January 30, 1947

ANASTACIO LAUREL, petitioner,

vs.
ERIBERTO MISA, respondent.
Claro M. Recto and Querube C. Makalintal for petitioner.
First Assistant Solicitor General Reyes and Solicitor Hernandez,
Jr., for respondent.
RESOLUTION
In G.R. No. L-409, Anastacio Laurel vs. Eriberto Misa,
etc., the Court, acting on the petition for habeas
corpusfiled by Anastacio Laurel and based on a theory
that a Filipino citizen who adhered to the enemy giving
the latter aid and comfort during the Japanese occupation
cannot be prosecuted for the crime of treason defined and
penalized by article 114 of the Revised Penal Code, for
the reason (1) that the sovereignty of the legitimate
government in the Philippines and, consequently, the
correlative allegiance of Filipino citizens thereto was then
suspended; and (2) that there was a change of
sovereignty over these Islands upon the proclamation of
the Philippine Republic:
(1) Considering that a citizen or subject owes, not a
qualified and temporary, but an absolute and permanent
allegiance, which consists in the obligation of fidelity and
obedience to his government or sovereign; and that this
absolute and permanent allegiance should not be
confused with the qualified and temporary allegiance
which a foreigner owes to the government or sovereign of
the territory wherein he resides, so long as he remains

there, in return for the protection he receives, and which

consists in the obedience to the laws of the government
or sovereign. (Carlisle vs. Unite States, 21 Law. ed., 429;
Secretary of State Webster Report to the President of the
United States in the case of Thraser, 6 Web. Works, 526);
Considering that the absolute and permanent allegiance
of the inhabitants of a territory occupied by the enemy of
their legitimate government or sovereign is not abrogated
or severed by the enemy occupation, because the
sovereignty of the government or sovereign de jure is not
transferred thereby to the occupier, as we have held in
the cases of Co Kim Cham vs. Valdez Tan Keh and
Dizon (75 Phil., 113) and of Peralta vs. Director of
Prisons (75 Phil., 285), and if it is not transferred to the
occupant it must necessarily remain vested in the
legitimate government; that the sovereignty vested in the
titular government (which is the supreme power which
governs a body politic or society which constitute the
state) must be distinguished from the exercise of the
rights inherent thereto, and may be destroyed, or severed
and transferred to another, but it cannot be suspended
because the existence of sovereignty cannot be
suspended without putting it out of existence or divesting
the possessor thereof at least during the so-called period
of suspension; that what may be suspended is the
exercise of the rights of sovereignty with the control and
government of the territory occupied by the enemy
passes temporarily to the occupant; that the subsistence
of the sovereignty of the legitimate government in a
territory occupied by the military forces of the enemy
during the war, "although the former is in fact prevented
from exercising the supremacy over them" is one of the
"rules of international law of our times"; (II Oppenheim,
6th Lauterpacht ed., 1944, p. 482), recognized, by
necessary implication, in articles 23, 44, 45, and 52 of
Hague Regulation; and that, as a corollary of the

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conclusion that the sovereignty itself is not suspended
and subsists during the enemy occupation, the allegiance
of the inhabitants to their legitimate government or
sovereign subsists, and therefore there is no such thing
as suspended allegiance, the basic theory on which the
whole fabric of the petitioner's contention rests;
Considering that the conclusion that the sovereignty of
the United State was suspended in Castine, set forth in
the decision in the case of United States vs. Rice, 4
Wheaton, 246, 253, decided in 1819, and quoted in our
decision in the cases of Co Kim Cham vs. Valdez Tan
Keh and Dizon and Peralta vs. Director of Prisons,
supra, in connection with the question, not of sovereignty,
but of the existence of a government de factotherein and
its power to promulgate rules and laws in the occupied
territory, must have been based, either on the theory
adopted subsequently in the Hague Convention of 1907,
that the military occupation of an enemy territory does not
transfer the sovereignty to the occupant; that, in the first
case, the word "sovereignty" used therein should be
construed to mean the exercise of the rights of
sovereignty, because as this remains vested in the
legitimate government and is not transferred to the
occupier, it cannot be suspended without putting it out of
existence or divesting said government thereof; and that
in the second case, that is, if the said conclusion or
doctrine refers to the suspension of the sovereignty itself,
it has become obsolete after the adoption of the Hague
Regulations in 1907, and therefore it can not be applied to
the present case;
Considering that even adopting the words "temporarily
allegiance," repudiated by Oppenheim and other
publicists, as descriptive of the relations borne by the
inhabitants of the territory occupied by the enemy toward
the military government established over them, such
allegiance may, at most, be considered similar to the

temporary allegiance which a foreigner owes to the

government or sovereign of the territory wherein he
resides in return for the protection he receives as above
described, and does not do away with the absolute and
permanent allegiance which the citizen residing in a
foreign country owes to his own government or sovereign;
that just as a citizen or subject of a government or
sovereign may be prosecuted for and convicted of
treason committed in a foreign country, in the same way
an inhabitant of a territory occupied by the military forces
of the enemy may commit treason against his own
legitimate government or sovereign if he adheres to the
enemies of the latter by giving them aid and comfort; and
that if the allegiance of a citizen or subject to his
government or sovereign is nothing more than obedience
to its laws in return for the protection he receives, it would
necessarily follow that a citizen who resides in a foreign
country or state would, on one hand, ipso factoacquire the
citizenship thereof since he has enforce public order and
regulate the social and commercial life, in return for the
protection he receives, and would, on the other hand, lose
his original citizenship, because he would not be bound to
obey most of the laws of his own government or
sovereign, and would not receive, while in a foreign
country, the protection he is entitled to in his own;
Considering that, as a corollary of the suspension of the
exercise of the rights of sovereignty by the legitimate
government in the territory occupied by the enemy military
forces, because the authority of the legitimate power to
govern has passed into the hands of the occupant (Article
43, Hague Regulations), the political laws which prescribe
the reciprocal rights, duties and obligation of government
and citizens, are suspended or in abeyance during
military occupation (Co Kim cham vs. Valdez Tan Keh and
dizon, supra), for the only reason that as they exclusively
bear relation to the ousted legitimate government, they
are inoperative or not applicable to the government

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established by the occupant; that the crimes against
national security, such as treason and espionage; inciting
to war, correspondence with hostile country, flight to
enemy's country, as well as those against public order,
such as rebellion, sedition, and disloyalty, illegal
possession of firearms, which are of political complexion
because they bear relation to, and are penalized by our
Revised Penal Code as crimes against the legitimate
government, are also suspended or become inapplicable
as against the occupant, because they can not be
committed against the latter (Peralta vs. Director of
Prisons, supra); and that, while the offenses against
public order to be preserved by the legitimate government
were inapplicable as offenses against the invader for the
reason above stated, unless adopted by him, were also
inoperative as against the ousted government for the
latter was not responsible for the preservation of the
public order in the occupied territory, yet article 114 of the
said Revised Penal Code, was applicable to treason
committed against the national security of the legitimate
government, because the inhabitants of the occupied
territory were still bound by their allegiance to the latter
during the enemy occupation;
Considering that, although the military occupant is
enjoined to respect or continue in force, unless absolutely
prevented by the circumstances, those laws that enforce
public order and regulate the social and commercial life of
the country, he has, nevertheless, all the powers of de
facto government and may, at his pleasure, either change
the existing laws or make new ones when the exigencies
of the military service demand such action, that is, when it
is necessary for the occupier to do so for the control of the
country and the protection of his army, subject to the
restrictions or limitations imposed by the Hague
Regulations, the usages established by civilized nations,
the laws of humanity and the requirements of public
conscience (Peralta vs.Director of Prisons, supra; 1940

United States Rules of Land Warfare 76, 77); and that,

consequently, all acts of the military occupant dictated
within these limitations are obligatory upon the inhabitants
of the territory, who are bound to obey them, and the laws
of the legitimate government which have not been
adopted, as well and those which, though continued in
force, are in conflict with such laws and orders of the
occupier, shall be considered as suspended or not in
force and binding upon said inhabitants;
Considering that, since the preservation of the allegiance
or the obligation of fidelity and obedience of a citizen or
subject to his government or sovereign does not demand
from him a positive action, but only passive attitude or
forbearance from adhering to the enemy by giving the
latter aid and comfort, the occupant has no power, as a
corollary of the preceding consideration, to repeal or
suspend the operation of the law of treason, essential for
the preservation of the allegiance owed by the inhabitants
to their legitimate government, or compel them to adhere
and give aid and comfort to him; because it is evident that
such action is not demanded by the exigencies of the
military service or not necessary for the control of the
inhabitants and the safety and protection of his army, and
because it is tantamount to practically transfer temporarily
to the occupant their allegiance to the titular government
or sovereign; and that, therefore, if an inhabitant of the
occupied territory were compelled illegally by the military
occupant, through force, threat or intimidation, to give him
aid and comfort, the former may lawfully resist and die if
necessary as a hero, or submit thereto without becoming
a traitor;
Considering that adoption of the petitioner's theory of
suspended allegiance would lead to disastrous
consequences for small and weak nations or states, and
would be repugnant to the laws of humanity and
requirements of public conscience, for it would allow

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invaders to legally recruit or enlist the Quisling inhabitants
of the occupied territory to fight against their own
government without the latter incurring the risk of being
prosecuted for treason, and even compel those who are
not aid them in their military operation against the
resisting enemy forces in order to completely subdue and
conquer the whole nation, and thus deprive them all of
their own independence or sovereignty such theory
would sanction the action of invaders in forcing the people
of a free and sovereign country to be a party in the
nefarious task of depriving themselves of their own
freedom and independence and repressing the exercise
by them of their own sovereignty; in other words, to
commit a political suicide;
(2) Considering that the crime of treason against the
government of the Philippines defined and penalized in
article 114 of the Penal Code, though originally intended
to be a crime against said government as then organized
by authority of the sovereign people of the United States,
exercised through their authorized representative, the
Congress and the President of the United States, was
made, upon the establishment of the Commonwealth
Government in 1935, a crime against the Government of
the Philippines established by authority of the people of
the Philippines, in whom the sovereignty resides
according to section 1, Article II, of the Constitution of the
Philippines, by virtue of the provision of section 2, Article
XVI thereof, which provides that "All laws of the Philippine
Islands . . . shall remain operative, unless inconsistent
with this Constitution . . . and all references in such laws
to the Government or officials of the Philippine Islands,
shall be construed, in so far as applicable, to refer to the
Government and corresponding officials under this
constitution;
Considering that the Commonwealth of the Philippines
was a sovereign government, though not absolute but

subject to certain limitations imposed in the Independence

Act and incorporated as Ordinance appended to our
Constitution, was recognized not only by the Legislative
Department or Congress of the United States in
approving the Independence Law above quoted and the
Constitution of the Philippines, which contains the
declaration that "Sovereignty resides in the people and all
government authority emanates from them" (section 1,
Article II), but also by the Executive Department of the
United States; that the late President Roosevelt in one of
his messages to Congress said, among others, "As I
stated on August 12, 1943, the United States in practice
regards the Philippines as having now the status as a
government of other independent nations in fact all the
attributes of complete and respected nationhood"
(Congressional Record, Vol. 29, part 6, page 8173); and
that it is a principle upheld by the Supreme Court of the
United States in many cases, among them in the case of
Jones vs. United States (137 U.S., 202; 34 Law. ed., 691,
696) that the question of sovereignty is "a purely political
question, the determination of which by the legislative and
executive departments of any government conclusively
binds the judges, as well as all other officers, citizens and
subjects of the country.
Considering that section I (1) of the Ordinance appended
to the Constitution which provides that pending the final
and complete withdrawal of the sovereignty of the United
States "All citizens of the Philippines shall owe allegiance
to the United States", was one of the few limitations of the
sovereignty of the Filipino people retained by the United
States, but these limitations do not away or are not
inconsistent with said sovereignty, in the same way that
the people of each State of the Union preserves its own
sovereignty although limited by that of the United States
conferred upon the latter by the States; that just as to
reason may be committed against the Federal as well as
against the State Government, in the same way treason

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may have been committed during the Japanese
occupation against the sovereignty of the United States
as well as against the sovereignty of the Philippine
Commonwealth; and that the change of our form of
government from Commonwealth to Republic does not
affect the prosecution of those charged with the crime of
treason committed during the Commonwealth, because it
is an offense against the same government and the same
sovereign people, for Article XVIII of our Constitution
provides that "The government established by this
constitution shall be known as the Commonwealth of the
Philippines. Upon the final and complete withdrawal of the
sovereignty of the United States and the proclamation of
Philippine independence, the Commonwealth of the
Philippines shall thenceforth be known as the Republic of
the Philippines";
This Court resolves, without prejudice to write later on a
more extended opinion, to deny the petitioner's petition,
as it is hereby denied, for the reasons above set forth and
for others to be stated in the said opinion, without
prejudice to concurring opinion therein, if any. Messrs.
Justices Paras and Hontiveros dissent in a separate
opinion. Mr. justice Perfecto concurs in a separate
opinion.

Separate Opinions

Treasonable acts may actually be perpetrated during peace, but

there are no traitors until war has started.
As treason is basically a war crime, it is punished by the state as
a measure of self-defense and self-preservation. The law of
treason is an emergency measure. It remains dormant until the
emergency arises. But as soon as war starts, it is relentlessly put
into effect. Any lukewarm attitude in its enforcement will only be
consistent with national harakiri. All war efforts would be of no
avail if they should be allowed to be sabotaged by fifth
columnists, by citizens who have sold their country out to the
enemy, or any other kind of traitors, and this would certainly be
the case if he law cannot be enforced under the theory of
suspension.
Petitioner's thesis that allegiance to our government was
suspended during enemy occupation is advanced in support of
the proposition that, since allegiance is identical with obedience
to law, during the enemy occupation, the laws of the
Commonwealth were suspended. Article 114 of the Revised
Penal Code, the law punishing treason, under the theory, was
one of the laws obedience to which was also suspended.
Allegiance has been defined as the obligation for fidelity and
obedience which the individual owes to his government or his
sovereign in return for the protection which he receives.
"Allegiance", as the return is generally used, means fealty
or fidelity to the government of which the person is either
a citizen or subject. Murray vs. The Charming Betsy, 6
U.S. (2 Cranch), 64, 120; 2 Law. ed., 208.

PERFECTO, J., concurring:

Treason is a war crime. It is not an all-time offense. It cannot be
committed in peace time. While there is peace, there are no
traitors. Treason may be incubated when peace reigns.

"Allegiance" was said by Mr. Justice Story to be "nothing

more than the tie or duty of obedience of a subject to the
sovereign, under whose protection he is." United
States vs. Wong Kim Ark, 18 S. Ct., 461; 169 U.S., 649;
42 Law. ed., 890.

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Allegiance is that duty which is due from every citizen to
the state, a political duty binding on him who enjoys the
protection of the Commonwealth, to render service and
fealty to the federal government. It is that duty which is
reciprocal to the right of protection, arising from the
political relations between the government and the citizen.
Wallace vs. Harmstad, 44 Pa. (8 Wright), 492, 501.
By "allegiance" is meant the obligation to fidelity and
obedience which the individual owes to the government
under which he lives, or to his sovereign, in return for the
protection which he receives. It may be an absolute and
permanent obligation, or it may be a qualified and
temporary one. A citizen or subject owes an absolute and
permanent allegiance to his government or sovereign, or
at least until, by some open and distinct act, he
renounces it and becomes a citizen or subject of another
government or sovereign, and an alien while domiciled in
a country owes it a temporary allegiance, which is
continuous during his residence. Carlisle vs.United
States, 83 U.S. (16 Wall.), 147, 154; 21 Law ed., 426.
"Allegiance," as defined by Blackstone, "is the tie or
ligament which binds the subject to the King, in return for
that protection which the King affords the subject.
Allegiance, both expressed and implied, is of two sorts,
the one natural, the other local, the former being
perpetual, the latter temporary. Natural allegiance is such
as is due from all men born within the King's dominions
immediately upon their birth, for immediately upon their
birth they are under the King's protection. Natural
allegiance is perpetual, and for this reason, evidently
founded on the nature of government. Allegiance is a debt
due from the subject upon an implied contract with the
prince that so long as the one affords protection the other
will demean himself faithfully. Natural-born subjects have
a great variety of rights which they acquire by being born
within the King's liegance, which can never be forfeited

but by their own misbehaviour; but the rights of aliens are

much more circumscribed, being acquired only by
residence, and lost whenever they remove. If an alien
could acquire a permanent property in lands, he must
owe an allegiance equally permanent to the King, which
would probably be inconsistent with that which he owes
his natural liege lord; besides, that thereby the nation
might, in time, be subject to foreign influence and feel
many other inconveniences." Indians within the state are
not aliens, but citizens owing allegiance to the
government of a state, for they receive protection from the
government and are subject to its laws. They are born in
allegiance to the government of the state.
Jackson vs. Goodell, 20 Johns., 188, 911. (3 Words and
Phrases, Permanent ed., 226-227.)
Allegiance. Fealty or fidelity to the government of which
the person is either a citizen or subject; the duty which is
due from every citizen to the state; a political duty, binding
on him who enjoys the protection of the commonwealth,
to render service and fealty to the federal government; the
obligation of fidelity and obedience which the individual
owes to the government or to the sovereign under which
he lives in return for the protection he receives; that duty
is reciprocal to the right of protection he receives; that
duty which is reciprocal to the right of protection, arising
from the political relations between the government and
the citizen.
Classification. Allegiance is of four kinds, namely: (1)
Natural allegiance that which arises by nature and
birth; (2) acquired allegiance that arising through some
circumstance or act other than birth, namely, by
denization or naturalization; (3) local allegiance-- that
arising from residence simply within the country, for
however short a time; and (4) legal allegiance that
arising from oath, taken usually at the town or leet, for, by
the common law, the oath of allegiance might be tendered

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to every one upon attaining the age of twelve years. (3
C.J.S., p.885.)

government affords him. The duty which the subject owes

to the sovereign, correlative with the protection received.

Allegiance. the obligation of fidelity and obedience

which the individual owes to the government under which
he lives, or to his sovereign in return for the protection he
receives. 15 R.C.L., 140. (Ballentine Law Dictionary, p.
68.).

It is a comparatively modern corruption of ligeance

(ligeantia), which is derived from liege (ligius), meaning
absolute or unqualified. It signified originally liege fealty, i.
e., absolute and qualified fealty. 18 L. Q. Rev., 47.
xxx

"Allegiance," as its etymology indicates, is the name for

the tie which binds the citizen to his state the obligation
of obedience and support which he owes to it. The state is
the political person to whom this liege fealty is due. Its
substance is the aggregate of persons owing this
allegiance. The machinery through which it operates is its
government. The persons who operate this machinery
constitute its magistracy. The rules of conduct which the
state utters or enforces are its law, and manifest its will.
This will, viewed as legally supreme, is its sovereignty.
(W.W. Willoughby, Citizenship and Allegiance in
Constitutional and International Law, 1 American Journal
of International Law, p. 915.).
The obligations flowing from the relation of a state and its
nationals are reciprocal in character. This principle had
been aptly stated by the Supreme Court of the United
States in its opinion in the case of Luria vs. United States:
Citizenship is membership in a political society and
implies a duty of allegiance on the part of the member
and a duty protection on the part of the society. These are
reciprocal obligations, one being a compensation for the
other. (3 Hackworth, Digest of International Law, 1942 ed.,
p.6.)
Allegiance. The tie which binds the citizen to the
government, in return for the protection which the

xxx

xxx

Allegiance may be an absolute and permanent obligation,

or it may be a qualified and temporary one; the citizen or
subject owes the former to his government or sovereign,
until by some act he distinctly renounces it, whilst the
alien domiciled in the country owes a temporary and local
allegiance continuing during such residence.
(Carlisle vs. United States, 16 Wall. [U.S.], 154; 21 Law.
ed., 426. (1 Bouvier's Law Dictionary, p. 179.).
The above quotations express ideas that do not fit exactly into the
Philippine pattern in view of the revolutionary insertion in our
Constitution of the fundamental principle that "sovereignty resides
in the people and all government authority emanates from them."
(Section 1, Article II.) The authorities above quoted, judges and
juridical publicists define allegiance with the idea that sovereignty
resides somewhere else, on symbols or subjects other than the
people themselves. Although it is possible that they had already
discovered that the people and only the people are the true
sovereign, their minds were not yet free from the shackles of the
tradition that the powers of sovereignty have been exercised by
princes and monarchs, by sultans and emperors, by absolute and
tyrannical rules whose ideology was best expressed in the
famous words of one of the kings of France: "L'etat c'est moi," or
such other persons or group of persons posing as the
government, as an entity different and in opposition to the people
themselves. Although democracy has been known ever since old
Greece, and modern democracies in the people, nowhere is such

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principle more imperative than in the pronouncement embodied in
the fundamental law of our people.
To those who think that sovereignty is an attribute of government,
and not of the people, there may be some plausibility in the
proposition that sovereignty was suspended during the enemy
occupation, with the consequence that allegiance must also have
been suspended, because our government stopped to function in
the country. But the idea cannot have any place under our
Constitution. If sovereignty is an essential attribute of our people,
according to the basic philosophy of Philippine democracy, it
could not have been suspended during the enemy occupation.
Sovereignty is the very life of our people, and there is no such
thing as "suspended life." There is no possible middle situation
between life and death. Sovereignty is the very essence of the
personality and existence of our people. Can anyone imagine the
possibility of "suspended personality" or "suspended existence" of
a people? In no time during enemy occupation have the Filipino
people ceased to be what they are.
The idea of suspended sovereignty or suspended allegiance is
incompatible with our Constitution.
There is similarity in characteristics between allegiance to the
sovereign and a wife's loyalty to her husband. Because some
external and insurmountable force precludes the husband from
exercising his marital powers, functions, and duties and the wife
is thereby deprived of the benefits of his protection, may the wife
invoke the theory of suspended loyalty and may she freely share
her bed with the assailant of their home? After giving aid and
comfort to the assailant and allowing him to enjoy her charms
during the former's stay in the invaded home, may the wife allege
as defense for her adultery the principle of suspended conjugal
fidelity?
Petitioner's thesis on change of sovereignty at the advent of
independence on July 4, 1946, is unacceptable. We have already
decided in Brodett vs. De la Rosa and Vda. de Escaler (p.

752, ante) that the Constitution of the Republic is the same as

that of the Commonwealth. The advent of independence had the
effect of changing the name of our Government and the
withdrawal by the United States of her power to exercise
functions of sovereignty in the Philippines. Such facts did not
change the sovereignty of the Filipino people. That sovereignty,
following our constitutional philosophy, has existed ever since our
people began to exist. It has been recognized by the United
States of America, at least since 1935, when President Roosevelt
approved our Constitution. By such act, President Roosevelt, as
spokesman of the American people, accepted and recognized the
principle that sovereignty resides in the people that is, that
Philippine sovereignty resides in the Filipino people.
The same sovereignty had been internationally recognized long
before the proclamation of independence on July 4, 1946. Since
the early part of the Pacific war, President Quezon had been
sitting as representative of a sovereign people in the Allied War
Council, and in June, 1945, the same Filipino people took part
outstanding and brilliant, it may be added in the drafting and
adoption of the charter of the United Nations, the unmistakable
forerunner of the future democratic federal constitution of the
world government envisioned by all those who adhere to the
principle of unity of all mankind, the early realization of which is
anxiously desired by all who want to be spared the sufferings,
misery and disaster of another war.
Under our Constitution, the power to suspend laws is of
legislative nature and is lodged in Congress. Sometimes it is
delegated to the Chief Executive, such as the power granted by
the Election Code to the President to suspend the election in
certain districts and areas for strong reasons, such as when there
is rebellion, or a public calamity, but it has never been exercised
by tribunals. The Supreme Court has the power to declare null
and void all laws violative of the Constitution, but it has no power,
authority, or jurisdiction to suspend or declare suspended any
valid law, such as the one on treason which petitioner wants to be
included among the laws of the Commonwealth which, by his

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theory of suspended allegiance and suspended sovereignty, he
claims have been suspended during the Japanese occupation.
Suppose President Quezon and his government, instead of going
from Corregidor to Australia, and later to Washington, had fled to
the mountains of Luzon, and a group of Filipino renegades should
have killed them to serve the interests of the Japanese imperial
forces. By petitioner's theory, those renegades cannot be
prosecuted for treason or for rebellion or sedition, as the laws
punishing them were suspended. Such absurd result betrays the
untenability of the theory.
"The defense of the State is a prime duty of Government, and in
the fulfillment of that duty all citizens may be required by law to
render personal, military or civil service." Thus, section 2 of Article
II of the Constitution provides: That duty of defense becomes
more imperative in time of war and when the country is invaded
by an aggressor nation. How can it be fulfilled if the allegiance of
the citizens to the sovereign people is suspended during enemy
occupation? The framers of the Constitution surely did not
entertain even for the moment the absurdity that when the
allegiance of the citizens to the sovereign people is more needed
in the defense of the survival of the state, the same should be
suspended, and that upon such suspension those who may be
required to render personal, military or civil service may claim
exemption from the indispensable duty of serving their country in
distress.
Petitioner advances the theory that protection in the consideration
of allegiance. He argues that the Commonwealth Government
having been incapacitated during enemy occupation to protect
the citizens, the latter were relieved of their allegiance to said
government. The proposition is untenable. Allegiance to the
sovereign is an indispensable bond for the existence of society. If
that bond is dissolved, society has to disintegrate. Whether or not
the existence of the latter is the result of the social compact
mentioned by Roseau, there can be no question that organized
society would be dissolved if it is not united by the cohesive

power of the citizen's allegiance. Of course, the citizens are

entitled to the protection of their government, but whether or not
that government fulfills that duty, is immaterial to the need of
maintaning the loyalty and fidelity of allegiance, in the same way
that the physical forces of attraction should be kept unhampered
if the life of an individual should continue, irrespective of the
ability or inability of his mind to choose the most effective
measures of personal protection.
After declaring that all legislative, executive, and judicial
processes had during and under the Japanese regime, whether
executed by the Japanese themselves or by Filipino officers of
the puppet government they had set up, are null and void, as we
have done in our opinions in Co Kim Cham vs. Valdez Tan Keh
and Dizon (75 Phil., 113), in Peralta vs. Director of Prison (75,
Phil., 285), and in several other cases where the same question
has been mentioned, we cannot consistently accept petitioner's
theory.
If all laws or legislative acts of the enemy during the occupation
were null and void, and as we cannot imagine the existence of
organized society, such as the one constituted by the Filipino
people, without laws of the Commonwealth were the ones in
effect during the occupation and the only ones that could claim
obedience from our citizens.
Petitioner would want us to accept the thesis that during the
occupation we owed allegiance to the enemy. To give way to that
paradoxical and disconcerting allegiance, it is suggested that we
accept that our allegiance to our legitimate government was
suspended. Petitioner's proposition has to fall by its own weight,
because of its glaring absurdities. Allegiance, like its synonyms,
loyalty and fidelity, is based on feelings of attraction, love,
sympathy, admiration, respect, veneration, gratitude, amity,
understanding, friendliness. These are the feelings or some of the
feelings that bind us to our own people, and are the natural roots
of the duty of allegiance we owe them. The enemy only provokes
repelling and repulsive feelings hate, anger, vexation, chagrin,

10
mortification, resentment, contempt, spitefulness. The natural
incompatibility of political, social and ethical ideologies between
our people and the Japanese, making impossible the existence of
any feeling of attraction between them, aside from the initial fact
that the Japanese invaded our country as our enemy, was
aggravated by the morbid complexities of haughtiness,
braggadocio and beastly brutality of the Nippon soldiers and
officers in their dealings with even the most inoffensive of our
citizens.
Giving bread to our enemy, and, after slapping one side of our
face, offer him the other to be further slapped, may appear to be
divinely charitable, but to make them a reality, it is necessary to
change human nature. Political actions, legal rules and judicial
decisions deal with human relations, taking man as he is, not as
he should be. To love the enemy is not natural. As long as human
pyschology remains as it is, the enemy shall always be hated. Is it
possible to conceive an allegiance based on hatred?
The Japanese, having waged against us an illegal war
condemned by prevailing principles of international law, could not
have established in our country any government that can be
legally recognized as de facto. They came as bandits and
ruffians, and it is inconceivable that banditry and ruffianism can
claim any duty of allegiance even a temporary one from a
decent people.
One of the implications of petitioner's theory, as intimated
somewhere, is that the citizens, in case of invasion, are free to do
anything not forbidden by the Hague Conventions. Anybody will
notice immediately that the result will be the doom of small
nations and peoples, by whetting the covetousness of strong
powers prone on imperialistic practices. In the imminence of
invasion, weak-hearted soldiers of the smaller nations will readily
throw away their arms to rally behind the paladium of the
invaders.

Two of the three great departments of our Government have

already rejected petitioner's theory since September 25, 1945, the
day when Commonwealth Act No. 682 took effect. By said act,
creating the People's Court to try and decide all cases of crime
against national security "committed between December 8, 1941
and September 2, 1945," (section 2), the legislative and executive
departments have jointly declared that during the period above
mentioned, including the time of Japanese occupation, all laws
punishing crimes against national security, including article 114 of
the Revised Penal Code, punishing treason, had remained in full
effect and should be enforced.
That no one raised a voice in protest against the enactment of
said act and that no one, at the time the act was being considered
by the Senate and the House of Representatives, ever dared to
expose the uselessness of creating a People's Court to try crime
which, as claimed by petitioner, could not have been committed
as the laws punishing them have been suspended, is a historical
fact of which the Supreme Court may take judicial notice. This
fact shows universal and unanimous agreement of our people
that the laws of the Commonwealth were not suspended and that
the theory of suspended allegiance is just an afterthought
provoked by a desperate effort to help quash the pending treason
cases at any cost.
Among the arguments adduced in favor of petitioner's theory is
that it is based on generally accepted principles of international
law, although this argument becomes futile by petitioner's
admission that the theory is advantageous to strong powers but
harmful to small and weak nations, thus hinting that the latter
cannot accept it by heart. Suppose we accept at face value the
premise that the theories, urged by petitioner, of suspended
allegiance and suspended sovereignty are based on generally
accepted principles of international law. As the latter forms part of
our laws by virtue of the provisions of section 3 of Article II of the
Constitution, it seems that there is no alternative but to accept the
theory. But the theory has the effect of suspending the laws,
especially those political in nature. There is no law more political

11
in nature than the Constitution of the Philippines. The result is an
inverted reproduction of the Greek myth of Saturn devouring his
own children. Here, under petitioner's theory, the offspring
devours its parent.
Can we conceive of an instance in which the Constitution was
suspended even for a moment?
There is conclusive evidence that the legislature, as policydetermining agency of government, even since the Pacific war
started on December 7, 1941, intimated that it would not accept
the idea that our laws should be suspended during enemy
occupation. It must be remembered that in the middle of
December, 1941, when Manila and other parts of the archipelago
were under constant bombing by Japanese aircraft and enemy
forces had already set foot somewhere in the Philippines, the
Second National Assembly passed Commonwealth Act No. 671,
which came into effect on December 16, 1941. When we
approved said act, we started from the premise that all our laws
shall continue in effect during the emergency, and in said act we
even went to the extent of authorizing the President "to continue
in force laws and appropriations which would lapse or otherwise
become inoperative," (section 2, [d]), and also to "promulgate
such rules and regulations as he may deem necessary to carry
out the national policy," (section 2), that "the existence of war
between the United States and other countries of Europe and
Asia, which involves the Philippines, makes it necessary to invest
the President with extraordinary powers in order to meet the
resulting emergency." (Section 1.) To give emphasis to the
intimation, we provided that the rules and regulations provided
"shall be in force and effect until the Congress of the Philippines
shall otherwise provide," foreseeing the possibility that Congress
may not meet as scheduled as a result of the emergency,
including invasion and occupation by the enemy. Everybody was
then convinced that we did not have available the necessary
means of repelling effectivity the enemy invasion.

Maybe it is not out of place to consider that the acceptance of

petitioner's theory of suspended allegiance will cause a great
injustice to those who, although innocent, are now under
indictment for treason and other crimes involving disloyalty to
their country, because their cases will be dismissed without the
opportunity for them to revindicate themselves. Having been
acquitted upon a mere legal technicality which appears to us to
be wrong, history will indiscriminality classify them with the other
accused who were really traitors to their country. Our conscience
revolts against the idea of allowing the innocent ones to go down
in the memory of future generations with the infamous stigma of
having betrayed their own people. They should not be deprived of
the opportunity to show through the due process of law that they
are free from all blame and that, if they were really patriots, they
acted as such during the critical period of test.

HILADO, J., concurring:

I concur in the result reached in the majority opinion to the effect
that during the so-called Japanese occupation of the Philippines
(which was nothing more than the occupation of Manila and
certain other specific regions of the Islands which constituted the
minor area of the Archipelago) the allegiance of the citizens of
this country to their legitimate government and to the United
States was not suspended, as well as the ruling that during the
same period there was no change of sovereignty here; but my
reasons are different and I proceed to set them forth:
I. SUSPENDED ALLEGIANCE.
(a) Before the horror and atrocities of World War I, which were
multiplied more than a hundred-fold in World War II, the nations
had evolved certain rules and principles which came to be known
as International Law, governing their conduct with each other and

12
toward their respective citizens and inhabitants, in the armed
forces or civilian life, in time of peace or in time of war. During the
ages which preceded that first world conflict the civilized
governments had no realization of the potential excesses of
which "men's inhumanity to man" could be capable. Up to that
time war was, at least under certain conditions, considered as
sufficiently justified, and the nations had not on that account,
proscribed nor renounced it as an instrument of national policy, or
as a means of settling international disputes. It is not for us now
to dwell upon the reasons accounting for this historical fact.
Suffice it to recognize its existence in history.
But when in World War I civilized humanity saw that war could be,
as it actually was, employed for entirely different reasons and
from entirely different motives, compared to previous wars, and
the instruments and methods of warfare had been so materially
changed as not only to involve the contending armed forces on
well defined battlefields or areas, on land, in the sea, and in the
air, but to spread death and destruction to the innocent civilian
populations and to their properties, not only in the countries
engaged in the conflict but also in neutral ones, no less than 61
civilized nations and governments, among them Japan, had to
formulate and solemnly subscribe to the now famous BriandKellogg Pact in the year 1928. As said by Justice Jackson of the
United States Supreme Court, as chief counsel for the United
States in the prosecution of "Axis war criminals," in his report to
President Truman of June 7, 1945:
International law is not capable of development by
legislation, for there is no continuously sitting international
legislature. Innovations and revisions in international law
are brought about by the action of governments designed
to meet a change circumstances. It grows, as did the
common law, through decisions reached from time to time
in adopting settled principles to new situations.
xxx

xxx

xxx

After the shock to civilization of the war of 1914-1918,

however, a marked reversion to the earlier and sounder
doctrines of international law took place. By the time the
Nazis came to power it was thoroughly established that
launching an aggressive war or the institution of war by
treachery was illegal and that the defense of legitimate
warfare was no longer available to those who engaged in
such an enterprise. It is high time that we act on the
juridical principle that aggressive war-making is illegal and
criminal.
The re-establishment of the principle of justifiable war is
traceable in many steps. One of the most significant is the
Briand-Kellogg Pact of 1928 by which Germany, Italy,
and Japan, in common with the United States and
practically all the nations of the world, renounced war as
an instrument of national policy, bound themselves to
seek the settlement of disputes only by pacific means,
and condemned recourse to war for the solution of
international controversies.
Unless this Pact altered the legal status of wars of
aggression, it has no meaning at all and comes close to
being an act of deception. In 1932 Mr. Henry L. Stimson,
as United States Secretary of State, gave voice to the
American concept of its effect. He said, "war between
nations was renounced by the signatories of the BriandKellogg Treaty. This means that it has
become illegal throughout practically the entire world. It is
no longer to be the source and subject of rights. It is no
longer to be the principle around which the duties, the
conduct, and the rights of nations revolve. It is an illegal
thing. . . . By that very act we have made obsolete many
legal precedents and have given the legal profession the
task of re-examining many of its Codes and treaties.
This Pact constitutes only one reversal of the viewpoint
that all war is legal and has brought international law into

13
harmony with the common sense of mankind
that unjustifiable war is a crime.
Without attempting an exhaustive catalogue, we may
mention the Geneva Protocol of 1924 for the Pacific
Settlement of International Disputes, signed by the
representatives of forty-eight governments, which
declared that "a war of aggression constitutes .. an
International crime. . . .
The Eight Assembly of the League of Nations in 1927, on
unanimous resolution of the representatives of forty-eight
member-nations, including Germany, declared that a war
of aggression constitutes an international crime. At the
Sixth Pan-American Conference of 1928, the twenty-one
American Republics unanimously adopted a resolution
stating that "war of aggression constitutes an international
crime against the human species."
xxx

xxx

xxx

We therefore propose to change that a war of aggression

is a crime, and that modern international law has
abolished the defense that those who incite or wage it are
engaged in legitimate business. Thus may the forces of
the law be mobilized on the side of peace. ("U.S.A. An
American Review," published by the United States Office
of War Information, Vol. 2, No. 10; emphasis supplied.).
When Justice Jackson speaks of "a marked reversion to the
earlier and sounder doctrines of international law" and "the reestablishment of the principle of justifiable war," he has in mind no
other than "the doctrine taught by Grotius, the father of
international law, that there is a distinction between the just and
the unjust war the war of defense and the war of aggression"
to which he alludes in an earlier paragraph of the same report.

In the paragraph of said report immediately preceding the one

last above mentioned Justice Jackson says that "international law
as taught in the 19th and the early part of the 20th century
generally declared that war-making was not illegal and no crime
at law." But, as he says in one of the paragraphs hereinabove
quoted from that report, the Briand-Kellogg Pact constitutes a
reversal of the view-point that all war is legal and has brought
international law into harmony with the common sense of
mankind that unjustifiable war is a crime. Then he mentions as
other reversals of the same viewpoint, the Geneva Protocol of
1924 for the Pacific Settlement of International Disputes,
declaring that a war of aggression constitutes an international
crime; the 8th assembly of the League of Nations in 1927,
declaring that a war of aggression constitutes an international
crime; and the 6th Pan-American conference of 1928, which
unanimously adopted a resolution stating that war of aggression
constitutes an international crime against the human species:
which enumeration, he says, is not an attempt at an exhaustive
catalogue.
It is not disputed that the war started by Japan in the Pacific, first,
against the United States, and later, in rapid succession, against
other allied nations, was a war of aggression and utterly
unjustifiable. More aggressive still, and more unjustifiable, as
admitted on all sides, was its attack against the Philippines and
its consequent invasion and occupation of certain areas thereof.
Some of the rules and principles of international law which have
been cited for petitioner herein in support of his theory of
suspended allegiance, have been evolved and accepted during
those periods of the history of nations when all war was
considered legal, as stated by Justice Jackson, and the others
have reference to military occupation in the course of really
justifiable war.
Japan in subscribing the Briand-Kellogg Pact thirteen years
before she started the aggressive war which threw the entire
Pacific area into a seething cauldron from the last month of 1941

14
of the first week of September, 1945, expressly agreed to outlaw,
proscribe and renounce war as an instrument of national policy,
and bound herself to seek the settlement of her disputes with
other nations only by pacific means. Thus she expressly gave her
consent to that modification of the then existing rules and
principles of international law governing the matter. With the
modification, all the signatories to the pact necessarily accepted
and bound themselves to abide by all its implications, among
them the outlawing, prescription and renunciation of military
occupation of another nation's territory in the course of a war thus
outlawed, proscribed and renounced. This is only one way of
saving that the rules and principles of international law therefore
existing on the subject of military occupation were automatically
abrogated and rendered ineffective in all future cases of war
coming under the ban and condemnation of the pact.
If an unjustifiable war is a crime; if a war of aggression constitutes
an international crime; if such a war is an international crime
against the human species: a nation which occupies a foreign
territory in the course of such a war cannot possibly, under any
principle of natural or positive law, acquire or posses any
legitimate power or right growing out or incident to such
occupation. Concretely, Japan in criminally invading the
Philippines and occupying certain portions of its territory during
the Pacific war, could not have nor exercise, in the legal sense
and only this sense should we speak here with respect to this
country and its citizens, any more than could a burglar breaking
through a man's house pretends to have or to exercise any legal
power or right within that house with respect either to the person
of the owner or to his property. To recognize in the first instance
any legal power or right on the part of the invader, and in the
second any legal power or right on the part of the burglar, the
same as in case of a military occupant in the course of a
justifiable war, would be nothing short of legalizing the crime
itself. It would be the most monstrous and unpardonable
contradiction to prosecute, condemn and hang the appropriately
called war criminals of Germany, Italy, and Japan, and at the
same time recognize any lawfulness in their occupation invaded.

And let it not be forgotten that the Philippines is a member of the

United Nations who have instituted and conducted the so-called
war crimes trials. Neither should we lose sight of the further fact
that this government has a representative in the international
commission currently trying the Japanese war criminals in Tokyo.
These facts leave no room for doubt that this government is in
entire accord with the other United Nations in considering the
Pacific war started by Japan as a crime. Not only this, but this
country had six years before the outbreak of the Pacific war
already renounced war as an instrument of national policy
(Constitution, Article II, section 2), thus in consequence adopting
the doctrine of the Briand-Kellogg Pact.
Consequently, it is submitted that it would be absolutely wrong
and improper for this Court to apply to the occupation by Japan of
certain areas of the Philippines during that war the rules and
principles of international law which might be applicable to a
military occupation occurring in the course of a justifiable war.
How can this Court recognize any lawfulness or validity in that
occupation when our own government has sent a representative
to said international commission in Tokyo trying the Japanese
"war criminals" precisely for the "crimes against humanity and
peace" committed by them during World War II of which said
occupation was but part and parcel? In such circumstances how
could such occupation produce no less an effect than the
suspension of the allegiance of our people to their country and
government?
(b) But even in the hypothesis and not more than a mere
hypothesis that when Japan occupied the City of Manila and
certain other areas of the Philippines she was engaged in a
justifiable war, still the theory of suspended allegiance would not
hold good. The continuance of the allegiance owed to a notion by
its citizens is one of those high privileges of citizenship which the
law of nations denies to the occupant the power to interfere with.
. . . His (of occupant) rights are not, however,
commensurate with his power. He is thus forbidden to

15
take certain measures which he may be able to apply, and
that irrespective of their efficacy. The restrictions imposed
upon him are in theory designed to protect the individual
in the enjoyment of some highly important
privileges. These concern his allegiance to the de jure
sovereign, his family honor and domestic relations,
religious convictions, personal service, and connection
with or residence in the occupied territory.
The Hague Regulations declare that the occupant is
forbidden to compel the inhabitants to swear allegiance to
the hostile power. . . . (III Hyde, International Law, 2d
revised ed., pp. 1898-1899.)
. . . Nor may he (occupant) compel them (inhabitants) to
take an oath of allegiance. Since the authority of the
occupant is not sovereignty, the inhabitants owe no
temporary allegiance to him. . . . (II Oppenheim,
International Law, pp. 341-344.)
The occupant's lack of the authority to exact an oath of allegiance
from the inhabitants of the occupied territory is but a corollary of
the continuance of their allegiance to their own lawful sovereign.
This allegiance does not consist merely in obedience to the laws
of the lawful sovereign, but more essentially consists in loyalty or
fealty to him. In the same volume and pages of Oppenheim's
work above cited, after the passage to the effect that the
inhabitants of the occupied territory owe no temporary allegiance
to the occupant it is said that "On the other hand, he may compel
them to take an oath sometimes called an 'oath of neutrality'
. . . willingly to submit to his 'legitimate commands.' Since,
naturally, such "legitimate commands" include the occupant's
laws, it follows that said occupant, where the rule is applicable,
has the right to compel the inhabitants to take an oath of
obedience to his laws; and since according to the same rule, he
cannot exact from the inhabitants an oath of obedience to his
laws; and since, according to the same rule, he cannot exact from
the inhabitants an oath of allegiance, it follows that obedience to

his laws, which he can exact from them, does not constitute
allegiance.
(c) The theory of suspended allegiance is unpatriotic to the last
degree. To say that when the one's country is unable to afford him
in its protection, he ceases to be bound to it by the sacred ties of
allegiance, is to advocate the doctrine that precisely when his
country is in such distress, and therefore most needs his loyalty,
he is absolved from the loyalty. Love of country should be
something permanent and lasting, ending only in death; loyalty
should be its worth offspring. The outward manifestation of one or
the other may for a time be prevented or thwarted by the
irresistible action of the occupant; but this should not in the least
extinguish nor obliterate the invisible feelings, and promptings of
the spirit. And beyond the unavoidable consequences of the
enemy's irresistible pressure, those invisible feelings and
promptings of the spirit of the people should never allow them to
act, to speak, nor even to think a whit contrary to their love and
loyalty to the Fatherland. For them, indicted, to face their country
and say to it that, because when it was overrun and vanquished
by the barbarous invader and, in consequence was disabled from
affording them protection, they were released from their sacred
obligation of allegiance and loyalty, and could therefore freely
adhere to its enemy, giving him aid and comfort, incurring no
criminal responsibility therefor, would only tend to aggravate their
crime.
II. CHANGE OF SOVEREIGNTY
Article II, section 1, of the Constitution provides that "Sovereignty
resides in the people and all government authority emanates from
them." The Filipino people are the self-same people before and
after Philippine Independence, proclaimed on July 4, 1946.
During the life of the Commonwealth sovereignty resided in them
under the Constitution; after the proclamation of independence
that sovereignty remained with them under the very same
fundamental law. Article XVIII of the said Constitution stipulates
that the government established thereby shall be known as the

16
Commonwealth of the Philippines; and that upon the final and
complete withdrawal of the sovereignty of the United States and
the proclamation of Philippine independence, "The
Commonwealth of the Philippines shall thenceforth be known as
the Republic of the Philippines." Under this provision the
Government of the Philippines immediately prior to independence
was essentially to be the identical government thereafter only
the name of that government was to be changed.
Both before and after the adoption of the Philippine Constitution
the people of the Philippines were and are always the plaintiff in
all criminal prosecutions, the case being entitled: "The People of
the Philippines vs. (the defendant or defendants)." This was
already true in prosecutions under the Revised Penal Code
containing the law of treason. "The Government of the
Philippines" spoken of in article 114 of said Code merely
represents the people of the Philippines. Said code was
continued, along with the other laws, by Article XVI, section 2, of
the Constitution which constitutional provision further directs that
"all references in such laws to the Government or officials of the
Philippine Islands shall be construed, in so far as applicable, to
refer to the Government and corresponding officials under this
Constitution" of course, meaning the Commonwealth of the
Philippines before, and the Republic of the Philippines after,
independence (Article XVIII). Under both governments
sovereignty resided and resides in the people (Article II, section
1). Said sovereignty was never transferred from that people
they are the same people who preserve it to this day. There has
never been any change in its respect.
If one committed treason againsts the People of the Philippines
before July 4, 1946, he continues to be criminally liable for the
crime to the same people now. And if, following the literal wording
of the Revised Penal Code, as continued by the Constitution, that
accused owed allegiance upon the commission of the crime to
the "Government of the Philippines," in the textual words of the
Constitution (Article XVI, section 2, and XVIII) that was the same
government which after independence became known as the

"Republic of the Philippines." The most that can be said is that the
sovereignty of the people became complete and absolute after
independence that they became, politically, fully of age, to use
a metaphor. But if the responsibility for a crime against a minor is
not extinguished by the mere fact of his becoming of age, why
should the responsibility for the crime of treason committed
against the Filipino people when they were not fully politically
independent be extinguished after they acquire this status? The
offended party continues to be the same only his status has
changed.

PARAS, J., dissenting:

During the long period of Japanese occupation, all the political
laws of the Philippines were suspended. This is full harmony with
the generally accepted principles of the international law adopted
by our Constitution(Article II, section 3) as a part of the law of the
Nation. Accordingly, we have on more than one occasion already
stated that "laws of a political nature or affecting political relations,
. . . are considered as suspended or in abeyance during the
military occupation" (Co Kim Cham vs. Valdez Tan Keh and
Dizon, 75 Phil., 113, 124), and that the rule "that laws of political
nature or affecting political relations are considered suspended or
in abeyance during the military occupation, is intended for the
governing of the civil inhabitants of the occupied territory."
(Ruffy vs. Chief of Staff, Philippine Army, 75, Phil., 875, 881.)
The principle is recognized by the United States of America,
which admits that the occupant will naturally suspends all laws of
a political nature and all laws which affect the welfare and safety
of his command, such action to be made known to the
inhabitants.(United States Rules of Land Welfare, 1940, Article
287.) As allegiance to the United States is an essential element in
the crime of treason under article 114 of the Revised Penal Code,

17
and in view of its position in our political structure prior to the
independence of the Philippines, the rule as interpreted and
practiced in the United States necessarily has a binding force and
effect in the Philippines, to the exclusion of any other construction
followed elsewhere, such as may be inferred, rightly or wrongly,
from the isolated cases 1 brought to our attention, which,
moreover, have entirely different factual bases.
Corresponding notice was given by the Japanese occupying
army, first, in the proclamation of its Commander in chief of
January 2, 1942, to the effect that as a "result of the Japanese
Military operations, the sovereignty of the United States of
America over the Philippines has completely disappeared and the
Army hereby proclaims the Military Administration under martial
law over the district occupied by the Army;" secondly, in Order
No. 3 of the said Commander in Chief of February 20, 1942,
providing that "activities of the administrative organs and judicial
courts in the Philippines shall be based upon the existing
statutes, orders, ordinances and customs until further orders
provided that they are not inconsistent with the present
circumstances under the Japanese Military Administration;" and,
thirdly, in the explanation to Order No. 3 reminding that "all laws
and regulations of the Philippines has been suspended since
Japanese occupation," and excepting the application of "laws and
regulations which are not proper act under the present situation of
the Japanese Military Administration," especially those "provided
with some political purposes."
The suspension of the political law during enemy occupation is
logical, wise and humane. The latter phase outweighs all other
aspects of the principle aimed more or less at promoting the
necessarily selfish motives and purposes of a military occupant. It
thus consoling to note that the powers instrumental in the
crystallization of the Hague Conventions of 1907 did not forget to
declare that they were "animated by the desire to serve . . . the
interest of the humanity and the over progressive needs of
civilization," and that "in case not included in the Regulations
adopted by them, the inhabitants and the belligerents remain

under the protection and the rule of the principles of international

law, as they result from the usages established among civilized
peoples, from the laws of humanity, and the dictates of the public
conscience." These saving statements come to the aid of the
inhabitants in the occupied territory in a situation wherein, even
before the belligerent occupant "takes a further step and by
appropriate affirmative action undertakes to acquire the right of
sovereignty for himself, . . . the occupant is likely to regard to
himself as clothed with freedom to endeavor to impregnate the
people who inhabit the area concerned with his own political
ideology, and to make that endeavor successful by various forms
of pressure exerted upon enemy officials who are permitted to
retain the exercise of normal governmental functions." (Hyde,
International Law, Vol. III, Second Revised Edition, 1945, p.
1879.)
The inhabitants of the occupied territory should necessarily be
bound to the sole authority of the invading power, whose interest
and requirements are naturally in conflict with those of the
displaced government, if it is legitimate for the military occupant
to demand and enforce from the inhabitants such obedience as
may be necessary for the security of his forces, for the
maintenance of law and order, and for the proper administration
of the country (United States Rules of Land Warfare, 1940, article
297), and to demand all kinds of services "of such a nature as not
to involve the population in the obligation of taking part in military
operations against their own country" (Hague Regulations, article
52);and if, as we have in effect said, by the surrender the
inhabitants pass under a temporary allegiance to the government
of the occupant and are bound by such laws, and such only, as it
chooses to recognize and impose, and the belligerent occupant
`is totally independent of the constitution and the laws of the
territory, since occupation is an aim of warfare, and the
maintenance and safety of his forces, and the purpose of war,
stand in the foreground of his interest and must be promoted
under all circumstances or conditions." (Peralta vs. Director of
Prisons, 75 Phil., 285, 295), citing United States vs. Rice, 4

18
Wheaton, 246, and quoting Oppenheim, International Law, Vol. II.
Sixth Edition, Revised, 1944,p. 432.)
He would be a bigot who cannot or would refuse to see the cruel
result if the people in an occupied territory were required to obey
two antagonistic and opposite powers. To emphasize our point,
we would adopt the argument, in a reverse order, of Mr. Justice
Hilado in Peralta vs. Director of Prisons (75 Phil., 285, 358),
contained in the following passage:
To have bound those of our people who constituted the
great majority who never submitted to the Japanese
oppressors, by the laws, regulations, processes and other
acts of those two puppet governments, would not only
have been utterly unjust and downright illegal, but would
have placed them in the absurd and impossible condition
of being simultaneously submitted to two mutually hostile
governments, with their respective constitutional and
legislative enactments and institutions on the one hand
bound to continue owing allegiance to the United States
and the Commonwealth Government, and, on the other,
to owe allegiance, if only temporary, to Japan.
The only sensible purpose of the treason law which is of
political complexion and taken out of the territorial law and
penalized as a new offense committed against the belligerent
occupant, incident to a state of war and necessary for the control
of the occupant (Alcantara vs. Director of Prisons, 75 Phil., 494),
must be the preservation of the nation, certainly not its
destruction or extermination. And yet the latter is unwittingly
wished by those who are fond of the theory that what is
suspended is merely the exercise of sovereignty by the de
juregovernment or the latter's authority to impose penal sanctions
or that, otherwise stated, the suspension refers only to the military
occupant. If this were to be the only effect, the rule would be a
meaningless and superfluous optical illusion, since it is obvious
that the fleeing or displaced government cannot, even if it should
want, physically assert its authority in a territory actually beyond

its reach, and that the occupant, on the other hand, will not take
the absurd step of prosecuting and punishing the inhabitants for
adhering to and aiding it. If we were to believe the opponents of
the rule in question, we have to accept the absurd proposition
that the guerrillas can all be prosecuted with illegal possession of
firearms. It should be borne in the mind that "the possession by
the belligerent occupant of the right to control, maintain or modify
the laws that are to obtain within the occupied area is an
exclusive one. The territorial sovereign driven therefrom, can not
compete with it on an even plane. Thus, if the latter attempt
interference, its action is a mere manifestation of belligerent effort
to weaken the enemy. It has no bearing upon the legal quality of
what the occupant exacts, while it retains control. Thus, if the
absent territorial sovereign, through some quasi-legislative
decree, forbids its nationals to comply with what the occupant has
ordained obedience to such command within the occupied
territory would not safeguard the individual from the prosecution
by the occupant." (Hyde, International Law, Vol. III, Second
Revised Edition, 1945, p. 1886.)
As long as we have not outlawed the right of the belligerent
occupant to prosecute and punish the inhabitants for "war
treason" or "war crimes," as an incident of the state of war and
necessity for the control of the occupied territory and the
protection of the army of the occupant, against which prosecution
and punishment such inhabitants cannot obviously be protected
by their native sovereign, it is hard to understand how we can
justly rule that they may at the same time be prosecuted and
punished for an act penalized by the Revised Penal Code, but
already taken out of the territorial law and penalized as a new
offense committed against the belligerent occupant.
In Peralta vs. Director of Prisons, 75 Phil., 285, 296), we held that
"the Constitution of the Commonwealth Government was
suspended during the occupation of the Philippines by the
Japanese forces or the belligerent occupant at regular war with
the United States," and the meaning of the term "suspended" is
very plainly expressed in the following passage (page 298):

19
No objection can be set up to the legality of its provisions
in the light of the precepts of our Commonwealth
Constitution relating to the rights of the accused under
that Constitution, because the latter was not in force
during the period of the Japanese military occupation, as
we have already stated. Nor may said Constitution be
applied upon its revival at the time of the re-occupation of
the Philippines by the virtue of the priciple of postliminium,
because "a constitution should operate prospectively only,
unless the words employed show a clear intention that it
should have a retrospective effect," (Cooley's
Constitutional Limitations, seventh edition, page 97, and a
case quoted and cited in the foot-note), especially as
regards laws of procedure applied to cases already
terminated completely.
In much the same way, we should hold that no treason could
have been committed during the Japanese military occupation
against the United States or the Commonwealth Government,
because article 114 of the Revised Penal Code was not then in
force. Nor may this penal provision be applied upon its revival at
the time of the reoccupation of the Philippines by virtue of the
principle of postliminium, because of the constitutional inhibition
against any ex post facto law and because, under article 22 of the
Revised Penal Code, criminal laws shall have a retroactive effect
only in so far as they favor the accused. Why did we refuse to
enforce the Constitution, more essential to sovereignty than
article 114 of the Revised Penal Code in the aforesaid of Peralta
vs. Director of Prisons if, as alleged by the majority, the
suspension was good only as to the military occupant?
The decision in the United States vs. Rice (4 Wheaton, 246),
conclusively supports our position. As analyzed and described in
United States vs. Reiter (27 Fed. Cas., 773), that case "was
decided by the Supreme Court of the United States the court
of highest human authority on that subject and as the decision
was against the United States, and in favor of the authority of
Great Britain, its enemy in the war, and was made shortly after

the occurrence of the war out of which it grew; and while no

department of this Government was inclined to magnify the rights
of Great Britain or disparage those of its own government, there
can be no suspicion of bias in the mind of the court in favor of the
conclusion at which it arrived, and no doubt that the law seemed
to the court to warrant and demand such a decision. That case
grew out of the war of 1812, between the United States and Great
Britain. It appeared that in September, 1814, the British forces
had taken the port of Castine, in the State of Maine, and held it in
military occupation; and that while it was so held, foreign goods,
by the laws of the United States subject to duty, had been
introduced into that port without paying duties to the United
States. At the close of the war the place by treaty restored to the
United States, and after that was done Government of the United
States sought to recover from the persons so introducing the
goods there while in possession of the British, the duties to which
by the laws of the United States, they would have been liable.
The claim of the United States was that its laws were properly in
force there, although the place was at the time held by the British
forces in hostility to the United States, and the laws, therefore,
could not at the time be enforced there; and that a court of the
United States (the power of that government there having since
been restored) was bound so to decide. But this illusion of the
prosecuting officer there was dispelled by the court in the most
summary manner. Mr. Justice Story, that great luminary of the
American bench, being the organ of the court in delivering its
opinion, said: 'The single question is whether goods imported into
Castine during its occupation by the enemy are liable to the
duties imposed by the revenue laws upon goods imported into the
United States.. We are all of opinion that the claim for duties
cannot be sustained. . . . The sovereignty of the United States
over the territory was, of course, suspended, and the laws of the
United States could no longer be rightfully enforced there, or be
obligatory upon the inhabitants who remained and submitted to
the conquerors. By the surrender the inhabitants passed under a
temporary allegiance of the British Government, and were bound
by such laws, and such only, as it chose to recognize and impose.
From the nature of the case no other laws could be obligatory

20
upon them. . . . Castine was therefore, during this period, as far
as respected our revenue laws, to be deemed a foreign port, and
goods imported into it by the inhabitants were subjects to such
duties only as the British Government chose to require. Such
goods were in no correct sense imported into the Unites States.'
The court then proceeded to say, that the case is the same as if
the port of Castine had been foreign territory, ceded by treaty to
the United States, and the goods had been imported there
previous to its cession. In this case they say there would be no
pretense to say that American duties could be demanded; and
upon principles of public or municipal law, the cases are not
distinguishable. They add at the conclusion of the opinion: 'The
authorities cited at the bar would, if there were any doubt, be
decisive of the question. But we think it too clear to require any
aid from authority.' Does this case leave room for a doubt whether
a country held as this was in armed belligerents occupation, is to
be governed by him who holds it, and by him alone? Does it not
so decide in terms as plain as can be stated? It is asserted by the
Supreme Court of the United States with entire unanimity, the
great and venerated Marshall presiding, and the erudite and
accomplished Story delivering the opinion of the court, that such
is the law, and it is so adjudged in this case. Nay, more: it is even
adjudged that no other laws could be obligatory; that such
country, so held, is for the purpose of the application of the law off
its former government to be deemed foreign territory, and that
goods imported there (and by parity of reasoning other acts done
there) are in no correct sense done within the territory of its
former sovereign, the United States."
But it is alleged by the majority that the sovereignty spoken of in
the decision of the United States vs. Rice should be construed to
refer to the exercise of sovereignty, and that, if sovereignty itself
was meant, the doctrine has become obsolete after the adoption
of the Hague Regulations in 1907. In answer, we may state that
sovereignty can have any important significance only when it may
be exercised; and, to our way of thinking, it is immaterial whether
the thing held in abeyance is the sovereignty itself or its exercise,
because the point cannot nullify, vary, or otherwise vitiate the

plain meaning of the doctrinal words "the laws of the United

States could no longer be rightfully enforced there, or be
obligatory upon the inhabitants who remained and submitted to
the conquerors." We cannot accept the theory of the majority,
without in effect violating the rule of international law, hereinabove
adverted to, that the possession by the belligerent occupant of
the right to control, maintain or modify the laws that are to obtain
within the occupied area is an exclusive one, and that the
territorial sovereign driven therefrom cannot compete with it on an
even plane. Neither may the doctrine in the United
States vs. Rice be said to have become obsolete, without
repudiating the actual rule prescribed and followed by the United
States, allowing the military occupant to suspend all laws of a
political nature and even require public officials and inhabitants to
take an oath of fidelity (United States Rules of Land Warfare,
1940, article 309). In fact, it is a recognized doctrine of American
Constitutional Law that mere conquest or military occupation of a
territory of another State does not operate to annex such territory
to occupying State, but that the inhabitants of the occupied
district, no longer receiving the protection of their native State, for
the time being owe no allegiance to it, and, being under the
control and protection of the victorious power, owe to that power
fealty and obedience. (Willoughby, The Fundamental Concepts of
Public Law [1931], p.364.)
The majority have resorted to distinctions, more apparent than
real, if not immaterial, in trying to argue that the law of treason
was obligatory on the Filipinos during the Japanese occupation.
Thus it is insisted that a citizen or subject owes not a qualified
and temporary, but an absolute and permanent allegiance, and
that "temporary allegiance" to the military occupant may be
likened to the temporary allegiance which a foreigner owes to the
government or sovereign to the territory wherein he resides in
return for the protection he receives therefrom. The comparison is
most unfortunate. Said foreigner is in the territory of a power not
hostile to or in actual war with his own government; he is in the
territory of a power which has not suspended, under the rules of
international law, the laws of political nature of his own

21
government; and the protections received by him from that
friendly or neutral power is real, not the kind of protection which
the inhabitants of an occupied territory can expect from a
belligerent army. "It is but reasonable that States, when they
concede to other States the right to exercise jurisdiction over
such of their own nationals as are within the territorial limits of
such other States, should insist that States should provide system
of law and of courts, and in actual practice, so administer them,
as to furnish substantial legal justice to alien residents. This does
not mean that a State must or should extend to aliens within its
borders all the civil, or much less, all the political rights or
privileges which it grants to its own citizens; but it does mean that
aliens must or should be given adequate opportunity to have such
legal rights as are granted to them by the local law impartially and
judicially determined, and, when thus determined, protected."
(Willoughby, The Fundamental Concepts of Public Law [1931], p.
360.)
When it is therefore said that a citizen of a sovereign may be
prosecuted for and convicted of treason committed in a foreign
country or, in the language of article 114 of the Revised Penal
Code, "elsewhere," a territory other than one under belligerent
occupation must have been contemplated. This would make
sense, because treason is a crime "the direct or indirect purpose
of which is the delivery, in whole or in part, of the country to a
foreign power, or to pave the way for the enemy to obtain
dominion over the national territory" (Albert, The Revised Penal
Code, citing 3 Groizard, 14); and, very evidently, a territory
already under occupation can no longer be "delivered."
The majority likewise argue that the theory of suspended
sovereignty or allegiance will enable the military occupant to
legally recruit the inhabitants to fight against their own
government, without said inhabitants being liable for treason. This
argument is not correct, because the suspension does not
exempt the occupant from complying with the Hague Regulations
(article 52) that allows it to demand all kinds of services provided
that they do not involve the population "in the obligation of taking

part military operations against their own country." Neither does

the suspension prevent the inhabitants from assuming a passive
attitude, much less from dying and becoming heroes if compelled
by the occupant to fight against their own country. Any
imperfection in the present state of international law should be
corrected by such world agency as the United Nations
organizations.
It is of common knowledge that even with the alleged cooperation
imputed to the collaborators, an alarming number of Filipinos
were killed or otherwise tortured by the ruthless, or we may say
savage, Japanese Army. Which leads to the conclusion that if the
Filipinos did not obey the Japanese commands and feign
cooperation, there would not be any Filipino nation that could
have been liberated. Assuming that the entire population could go
to and live in the mountains, or otherwise fight as guerrillas
after the formal surrender of our and the American regular fighting
forces, they would have faced certain annihilation by the
Japanese, considering that the latter's military strength at the time
and the long period during which they were left military
unmolested by America. In this connection, we hate to make
reference to the atomic bomb as a possible means of destruction.
If a substantial number of guerrillas were able to survive and
ultimately help in the liberation of the Philippines, it was because
the feigned cooperation of their countrymen enabled them to get
food and other aid necessary in the resistance movement. If they
were able to survive, it was because they could camouflage
themselves in the midst of the civilian population in cities and
towns. It is easy to argue now that the people could have merely
followed their ordinary pursuits of life or otherwise be indifferent to
the occupant. The fundamental defect of this line of thought is
that the Japanese assumed to be so stupid and dumb as not to
notice any such attitude. During belligerent occupation, "the
outstanding fact to be reckoned with is the sharp opposition
between the inhabitants of the occupied areas and the hostile
military force exercising control over them. At heart they remain at
war with each other. Fear for their own safety may not serve to

22
deter the inhabitants from taking advantage of opportunities to
interfere with the safety and success of the occupant, and in so
doing they may arouse its passions and cause to take vengeance
in cruel fashion. Again, even when it is untainted by such conduct,
the occupant as a means of attaining ultimate success in its major
conflict may, under plea of military necessity, and regardless of
conventional or customary prohibitions, proceed to utilize the
inhabitants within its grip as a convenient means of military
achievement." (Hyde, International Law, Vol. III, Second Revised
Edition [1945], p. 1912.) It should be stressed that the Japanese
occupation was not a matter of a few months; it extended over a
little more than three years. Said occupation was a fact, in spite of
the "presence of guerrilla bands in barrios and mountains, and
even in towns of the Philippines whenever these towns were left
by Japanese garrisons or by the detachments of troops sent on
patrol to those places." (Co Kim Cham vs. Valdez Tan Keh and
Dizon, 75 Phil., 371, 373.) The law of nations accepts belligerent
occupation as a fact to be reckoned with, regardless of the merits
of the occupant's cause. (Hyde, International Law, Second
Revised Edition [1945], Vol. III, p. 1879.)
Those who contend or fear that the doctrine herein adhere to will
lead to an over-production of traitors, have a wrong and low
conception of the psychology and patriotism of their countrymen.
Patriots are such after their birth in the first place, and no amount
of laws or judicial decisions can make or unmake them. On the
other hand, the Filipinos are not so base as to be insensitive to
the thought that the real traitor is cursed everywhere and in all
ages. Our patriots who fought and died during the last war, and
the brave guerrillas who have survived, were undoubtedly
motivated by their inborn love of country, and not by such a thing
as the treason law. The Filipino people as a whole, passively
opposed the Japanese regime, not out of fear of a treason statute
but because they preferred and will prefer the democratic and
civilized way of life and American altruism to Japanese barbaric
and totalitarian designs. Of course, there are those who might at
heart have been pro-Japanese; but they met and will unavoidably
meet the necessary consequences. The regular soldiers faced

the risks of warfare; the spies and informers subjected

themselves to the perils of military operations, likely received
summary liquidation or punishments from the guerrillas and the
parties injured by their acts, and may be prosecuted as war spies
by the military authorities of the returning sovereign; those who
committed other common crimes, directly or through the
Japanese army, may be prosecuted under the municipal law, and
under this group even the spies and informers, Makapili or
otherwise, are included, for they can be made answerable for any
act offensive to person or property; the buy-and-sell opportunists
have the war profits tax to reckon with. We cannot close our eyes
to the conspicuous fact that, in the majority of cases, those
responsible for the death of, or injury to, any Filipino or American
at the hands of the Japanese, were prompted more by personal
motives than by a desire to levy war against the United States or
to adhere to the occupant. The alleged spies and informers found
in the Japanese occupation the royal road to vengeance against
personal or political enemies. The recent amnesty granted to the
guerrillas for acts, otherwise criminal, committed in the
furtherance of their resistance movement has in a way legalized
the penal sanctions imposed by them upon the real traitors.
It is only from a realistic, practical and common-sense point of
view, and by remembering that the obedience and cooperation of
the Filipinos were effected while the Japanese were in complete
control and occupation of the Philippines, when their mere
physical presence implied force and pressure and not after the
American forces of liberation had restored the Philippine
Government that we will come to realize that, apart from any
rule of international law, it was necessary to release the Filipinos
temporarily from the old political tie in the sense indicated herein.
Otherwise, one is prone to dismiss the reason for such
cooperation and obedience. If there were those who did not in
any wise cooperate or obey, they can be counted by the fingers,
and let their names adorn the pages of Philippine history.
Essentially, however, everybody who took advantage, to any
extent and degree, of the peace and order prevailing during the

23
occupation, for the safety and survival of himself and his family,
gave aid and comfort to the enemy.
Our great liberator himself, General Douglas MacArthur, had
considered the laws of the Philippines ineffective during the
occupation, and restored to their full vigor and force only after the
liberation. Thus, in his proclamation of October 23, 1944, he
ordained that "the laws now existing on the statute books of the
Commonwealth of the Philippines . . . are in full force and effect
and legally binding upon the people in areas of the Philippines
free of enemy occupation and control," and that "all laws . . . of
any other government in the Philippines than that of the said
Commonwealth are null and void and without legal effect in areas
of the Philippines free of enemy occupation and control."
Repeating what we have said in Co Kim Cham vs. Valdez Tan
Keh and Dizon (75 Phil., 113, 133), "it is to be presumed that
General Douglas MacArthur, who was acting as an agent or a
representative of the Government and the President of the United
States, constitutional Commander-in-Chief of the United States
Army, did not intend to act against the principles of the law of
nations asserted by the Supreme Court of the United States from
the early period of its existence, applied by the President of the
United States, and later embodied in the Hague Conventions of
1907."
The prohibition in the Hague Conventions (Article 45) against
"any pressure on the population to take oath to the hostile power,"
was inserted for the moral protection and benefit of the
inhabitants, and does not necessarily carry the implication that
the latter continue to be bound to the political laws of the
displaced government. The United States, a signatory to the
Hague Conventions, has made the point clear, by admitting that
the military occupant can suspend all the laws of a political nature
and even require public officials and the inhabitants to take an
oath of fidelity (United States Rules of Land Warfare, 1940, article
309), and as already stated, it is a doctrine of American
Constitutional Law that the inhabitants, no longer receiving the
protection of their native state, for the time being owe no

allegiance to it, and, being under the control and protection of the
victorious power, owe to that power fealty and obedience. Indeed,
what is prohibited is the application of force by the occupant, from
which it is fair to deduce that the Conventions do not altogether
outlaw voluntary submission by the population. The only strong
reason for this is undoubtedly the desire of the authors of the
Conventions to give as much freedom and allowance to the
inhabitants as are necessary for their survival. This is wise and
humane, because the people should be in a better position to
know what will save them during the military occupation than any
exile government.
"Before he was appointed prosecutor, Justice Jackson made a
speech in which he warned against the use of judicial process for
non judicial ends, and attacked cynics who "see no reason why
courts, just like other agencies, should not be policy weapons. If
we want to shoot Germans as a matter of policy, let it be done as
such, said he, but don't hide the deed behind a court. If you are
determined to execute a man in any case there is no occasion for
a trial; the word yields no respect for courts that are merely
organized to convict." Mussoloni may have got his just desserts,
but nobody supposes he got a fair trial. . . . Let us bear that in
mind as we go about punishing criminals. There are enough laws
on the books to convict guilty Nazis without risking the prestige of
our legal system. It is far, far better that some guilty men escape
than that the idea of law be endangered. In the long run the idea
of law is our best defense against Nazism in all its forms." These
passages were taken from the editorial appearing in the Life, May
28, 1945, page 34, and convey ideas worthy of some reflection.
If the Filipinos in fact committed any errors in feigning cooperation
and obedience during the Japanese military occupation, they
were at most borrowing the famous and significant words of
President Roxas errors of the mind and not of the heart. We
advisedly said "feigning" not as an admission of the fallacy of the
theory of suspended allegiance or sovereignty, but as an
affirmation that the Filipinos, contrary to their outward attitude,

24
had always remained loyal by feeling and conscience to their
country.
Assuming that article 114 of the Revised Penal Code was in force
during the Japanese military occupation, the present Republic of
the Philippines has no right to prosecute treason committed
against the former sovereignty existing during the Commonwealth
Government which was none other than the sovereignty of the
United States. This court has already held that, upon a change of
sovereignty, the provisions of the Penal Code having to do with
such subjects as treason, rebellion and sedition are no longer in
force (People vs. Perfecto, 43 Phil., 887). It is true that, as
contended by the majority, section 1 of Article II of the
Constitution of the Philippines provides that "sovereignty resides
in the people," but this did not make the Commonwealth
Government or the Filipino people sovereign, because said
declaration of principle, prior to the independence of the
Philippines, was subervient to and controlled by the Ordinance
appended to the Constitution under which, in addition to its many
provisions essentially destructive of the concept of sovereignty, it
is expressly made clear that the sovereignty of the United States
over the Philippines had not then been withdrawn. The framers of
the Constitution had to make said declaration of principle
because the document was ultimately intended for the
independent Philippines. Otherwise, the Preamble should not
have announced that one of the purposes of the Constitution is to
secure to the Filipino people and their posterity the "blessings of
independence." No one, we suppose, will dare allege that the
Philippines was an independent country under the
Commonwealth Government.
The Commonwealth Government might have been more
autonomous than that existing under the Jones Law, but its nonsovereign status nevertheless remained unaltered; and what was
enjoyed was the exercise of sovereignty over the Philippines
continued to be complete.

The exercise of Sovereignty May be Delegated. It has

already been seen that the exercise of sovereignty is
conceived of as delegated by a State to the various
organs which, collectively, constitute the Government. For
practical political reasons which can be easily
appreciated, it is desirable that the public policies of a
State should be formulated and executed by
governmental agencies of its own creation and which are
not subject to the control of other States. There is,
however, nothing in a nature of sovereignty or of State life
which prevents one State from entrusting the exercise of
certain powers to the governmental agencies of another
State. Theoretically, indeed, a sovereign State may go to
any extent in the delegation of the exercise of its power to
the governmental agencies of other States, those
governmental agencies thus becoming quoad hoc parts of
the governmental machinery of the State whose
sovereignty is exercised. At the same time these agencies
do not cease to be Instrumentalities for the expression of
the will of the State by which they were originally created.
By this allegation the agent State is authorized to express
the will of the delegating State, and the legal hypothesis is
that this State possesses the legal competence again to
draw to itself the exercise, through organs of its own
creation, of the powers it has granted. Thus, States may
concede to colonies almost complete autonomy of
government and reserve to themselves a right of control
of so slight and so negative a character as to make its
exercise a rare and improbable occurence; yet, so long as
such right of control is recognized to exist, and the
autonomy of the colonies is conceded to be founded upon
a grant and the continuing consent of the mother
countries the sovereignty of those mother countries over
them is complete and they are to be considered as
possessing only administrative autonomy and not political
independence. Again, as will be more fully discussed in a
later chapter, in the so-called Confederate or Composite

25
State, the cooperating States may yield to the central
Government the exercise of almost all of their powers of
Government and yet retain their several sovereignties. Or,
on the other hand, a State may, without parting with its
sovereignty of lessening its territorial application, yield to
the governing organs of particular areas such an
amplitude of powers as to create of them bodies-politic
endowed with almost all of the characteristics of
independent States. In all States, indeed, when of any
considerable size, efficiency of administration demands
that certain autonomous powers of local self-government
be granted to particular districts. (Willoughby, The
Fundamental Concepts of Public Law [1931], pp. 74, 75.).
The majority have drawn an analogy between the Commonwealth
Government and the States of the American Union which, it is
alleged, preserve their own sovereignty although limited by the
United States. This is not true for it has been authoritatively stated
that the Constituent States have no sovereignty of their own, that
such autonomous powers as they now possess are had and
exercised by the express will or by the constitutional forbearance
of the national sovereignty, and that the sovereignty of the United
States and the non-sovereign status of the individual States is no
longer contested.
It is therefore plain that the constituent States have no
sovereignty of their own, and that such autonomous
powers as they now possess are had and exercised by
the express will or by the constitutional forbearance of the
national sovereignty. The Supreme Court of the United
States has held that, even when selecting members for
the national legislature, or electing the President, or
ratifying proposed amendments to the federal
constitution, the States act, ad hoc, as agents of the
National Government. (Willoughby, the Fundamental
Concepts of Public Law [1931], p.250.)

This is the situation at the present time. The sovereignty

of the United States and the non-sovereign status of the
individual States is no longer contested. (Willoughby, The
Fundamental Concepts of Public Law [1931], pp. 251,
252.)
Article XVIII of the Constitution provides that "The government
established by this Constitution shall be known as the
Commonwealth of the Philippines. Upon the final and complete
withdrawal of the sovereignty of the United States and the
proclamation of Philippine independence, the Commonwealth of
the Philippines shall thenceforth be known as the Republic of the
Philippines." From this, the deduction is made that the
Government under the Republic of the Philippines and under the
Commonwealth is the same. We cannot agree. While the
Commonwealth Government possessed administrative autonomy
and exercised the sovereignty delegated by the United States
and did not cease to be an instrumentality of the latter
(Willoughby, The Fundamental Concepts of Public Law [1931],
pp. 74, 75), the Republic of the Philippines is an independent
State not receiving its power or sovereignty from the United
States. Treason committed against the United States or against
its instrumentality, the Commonwealth Government, which
exercised, but did not possess, sovereignty (id., p. 49), is
therefore not treason against the sovereign and independent
Republic of the Philippines. Article XVIII was inserted in order,
merely, to make the Constitution applicable to the Republic.
Reliance is also placed on section 2 of the Constitution which
provides that all laws of the Philippines Islands shall remain
operative, unless inconsistent therewith, until amended, altered,
modified or repealed by the Congress of the Philippines, and on
section 3 which is to the effect that all cases pending in courts
shall be heard, tried, and determined under the laws then in force,
thereby insinuating that these constitutional provisions authorize
the Republic of the Philippines to enforce article 114 of the
Revised Penal Code. The error is obvious. The latter article can
remain operative under the present regime if it is not inconsistent

26
with the Constitution. The fact remains, however, that said penal
provision is fundamentally incompatible with the Constitution, in
that those liable for treason thereunder should owe allegiance to
the United States or the government of the Philippines, the latter
being, as we have already pointed out, a mere instrumentality of
the former, whereas under the Constitution of the present
Republic, the citizens of the Philippines do not and are not
required to owe allegiance to the United States. To contend that
article 114 must be deemed to have been modified in the sense
that allegiance to the United States is deleted, and, as thus
modified, should be applied to prior acts, would be to sanction the
enactment and application of an ex post facto law.
In reply to the contention of the respondent that the Supreme
Court of the United States has held in the case of
Bradford vs. Chase National Bank (24 Fed. Supp., 38), that the
Philippines had a sovereign status, though with restrictions, it is
sufficient to state that said case must be taken in the light of a
subsequent decision of the same court in Cincinnati Soap
Co. vs. United States (301 U.S., 308), rendered in May, 1937,
wherein it was affirmed that the sovereignty of the United States
over the Philippines had not been withdrawn, with the result that
the earlier case only be interpreted to refer to the exercise of
sovereignty by the Philippines as delegated by the mother
country, the United States.
No conclusiveness may be conceded to the statement of
President Roosevelt on August 12, 1943, that "the United States
in practice regards the Philippines as having now the status as a
government of other independent nations--in fact all the attributes
of complete and respected nationhood," since said statement was
not meant as having accelerated the date, much less as a formal
proclamation of, the Philippine Independence as contemplated in
the Tydings-McDuffie Law, it appearing that (1) no less also than
the President of the United States had to issue the proclamation
of July 4, 1946, withdrawing the sovereignty of the United States
and recognizing Philippine Independence; (2) it was General
MacArthur, and not President Osmea who was with him, that

proclaimed on October 23, 1944, the restoration of the

Commonwealth Government; (3) the Philippines was not given
official participation in the signing of the Japanese surrender; (4)
the United States Congress, and not the Commonwealth
Government, extended the tenure of office of the President and
Vice-President of the Philippines.
The suggestion that as treason may be committed against the
Federal as well as against the State Government, in the same
way treason may have been committed against the sovereignty of
the United States as well as against the sovereignty of the
Philippine Commonwealth, is immaterial because, as we have
already explained, treason against either is not and cannot be
treason against the new and different sovereignty of the Republic
of the Philippines.

Footnotes
PARAS, J., dissenting:
English case of De Jager vs. Attorney General of Naval;
Belgian case of Auditeur Militaires vs. Van Dieren; cases
of Petain, Laval and Quisling.
1

EN BANC
G.R. No. L-856

April 18, 1949

27
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
SUSANO PEREZ (alias KID PEREZ), defendant-appellant.
Crispin Oben and Isidro Santiago for appellant.
Assistance Solicitor General Manuel P. Barcelona and Solicitor
Esmeraldo Umali for appellee.
TUASON, J.:
Susano Perez alias Kid Perez alias Kid Perez was convicted of
treason by the 5th Division of the People's Court sitting in Cebu
City and sentenced to death by electrocution.
Seven counts were alleged in the information but the prosecution
offered evidence only on counts 1, 2, 4, 5 and 6, all of which,
according to the court, were substantiated. In a unanimous
decision, the trial court found as follows:
"As regards count No. 1
Count No. 1 alleges that the accused, together with the
other Filipinos, recruited, apprehended and
commandeered numerous girls and women against their
will for the purpose of using them, as in fact they were
used, to satisfy the immoral purpose and sexual desire of
Colonel Mini, and among such unfortunate victims, were
Felina Laput, Eriberta Ramo alias Miami Ramo, Eduarda
Daohog, Eutiquia Lamay, Feliciana Bonalos and Flaviana
Bonalos.
It would be unnecessary to recite here the testimonies of
all the victims of the accused; it sufficient to reproduce
here succinctly the testimony of Eriberta Ramo. She
testified that on June 15, 1942, the accused came to her
house to get her and told her that she was wanted in the
house of her aunt, but instead, she was brought to the

house of the Puppet Governor Agapito Hontanosas; that

she escaped and returned to Baclayon her hometown;
that the accused came again and told her that Colonel
Mini wanted her to be his Information Clerk; that she did
not accept the job; that a week later the accused came to
Baclayon to get her, and succeeded in taking some other
girls Puppet Governor Agapito Hontanosas; that Governor
Hontanosas told her that Colonel Mini wanted her to be
his wife; that when she was brought to Colonel Mini the
latter had nothing on but a "G" string; that he, Colonel
Mini threatened her with a sword tied her to a bed and
with force succeeded in having carnal knowledge with
her; that on the following night, again she was brought to
Colonel Mini and again she was raped; that finally she
was able to escape and stayed in hiding for three weeks
and only came out from the hiding when Colonel Mini left
Tagbilaran.
"As regards count No. 2
Count No. 2 of the information substantially alleges: That
accused in company with some Japanese and Filipinos
took Eriberta Ramo and her sister Cleopatra Ramo from
their home in Baclayon to attend a banquet and a dance
organized in honor of Colonel Mini by the Puppet
Governor, Agapito Hontanosas in order that said
Japanese Colonel might select those first who would later
be taken to satisfy his carnal appetite and that by means
of threat, force and intimidation, the above mentioned two
sister were brought to the headquarters of the Japanese
Commander at the Mission Hospital in Tagbilaran where
Eriberta Ramo was forced to lived a life of shame. All
these facts alleged in count No. 2 were testified to by said
witnesses Eriberta Ramo her mother Mercedes de Ramo.
It is not necessary here to recite once more their
testimony in support of the allegations in court No. 2; this
Court is fully convinced that the allegation in said count
No. 2 were fully substantiated by the evidence adduced.

28
"As regards count No. 4
Count No. 4 substantially alleges that on July 16, 1942,
the two girls named Eduardo S. Daohog and Eutiquia
Lamay, were taken from their homes in Corella, Bohol, by
the accused and his companion named Vicente Bullecer,
and delivered to the Japanese Officer, Dr. Takibayas to
satisfy his carnal appetite, but these two, the accused
Susano Perez and his companion Vicente Bullecer,
before delivering them to said Japanese Officer, satisfied
first their lust; the accused Susano Perez raping Eduarda
S. Daohog and his companion, Vicente Bullecer, the other
girl Eutiquia Lamay. Eduarda S. Daohog, testifying, said:
that while on the way to Tagbilaran, the accused though
force and intimidation, raped her in an uninhabited house;
that she resisted with all her force against the desire of
the accused, but of no avail; that upon arriving in
Tagbilaran, she was delivered to the Japanese Officer
named Takibayas who also raped her. Eutiquia Lamay
testified that on July 16, 1942, the accused and his
companion, Bullecer, went to her house to take her and
her sister; that her sister was then out of the house; that
the accused threatened her with a revolved if she refuses
to go; that she was placed in a car where Eduarda
Daohog was; that while they were in the car, the accused
carried Eduarda out of the car, and their companion
Bullecer took the other witness (Eutiquia Lamay); that
when the accused and Eduarda returned to the car, the
latter; Eduarda, covered her face, crying; that later, she
and Eduarda were taken to the Governor's house; that on
arriving and in the presence of the Puppet Governor
Hontanosas, the Governor exclaimed: "I did not call for
these girls": but the accused replied saying: "These girls
talked bad against the Japanese , and that is why we
arrested them"; that the said Governor Hontaosas then,
said: "Take them to the Japanese "; that the accused and
Bullecer brought the two girls to the Japanese
headquarters; that Eduarda was taken to one room by the

Japanese Captain called Dr. Takibayas, and she (Eutiquia

Lamay) was taken to another room by another Japanese
living in that house; that she was raped by that Jap while
in the room; that she resisted all she could, but of no
avail.
In the light of the testimonies of these two witnesses,
Eduarda S. Daohog and Eutiquia Lamay, all the
allegations in Court No. 4 were fully proven beyond
reasonable doubt.
"As regards count No. 5
Count No. 5 alleges: That on or about June 4, 1942, the
said accused commandeered Feliciana Bonalos and her
sister Flaviana Bonalos on the pretext that they were to
bee taken as witnesses before a Japanese Colonel in the
investigation of a case against a certain Chinese (Insik
Eping), and uponarriving at Tagbilaran, Bohol, the
accused brought the aforesaid two girls to the residence
of Colonel Mini, Commander of the Japanese Armed
Forces in Bohol and by means of violence threat and
intimidation, said Japanese Colonel abused and had
sexual intercourse with Flaviana Bonalos; that the
accused subsequently of Colonel Mini and through
violence, threat and intimidation, succeeded in having
carnal knowledge with her against her will; that two days,
later, upon the pretext of conducting the unfortunate girls
to their home, said accused brought the other girls
Feliciana Bonalos to a secluded place in Tagbilaran,
Bohol, and in the darkness, by mean of threat and
violence had carnal knowledge with her against her will.
Feliciana Bonalos testifying in this count, declared that the
accused came to get her on the pretext that she was to be
used as witness in a case affecting certain Chinaman
before Colonel Mini; that she and her younger sister
Flaviana were brought in a car driven by the accused;

29
they were brought to the house of Colonel Mini; that sister
Flaviana was conducted into a room and after remaining
in the same for about an hour, she came out with her hair
and her dress in disorder; that Flaviana told her
immediately that she was raped against her will by
Colonel Mini; that she (Feliciana), after leaving the
residence of said Jap officer, was taken by Perez to an
uninhabited house and there by threat and intimidation,
the accused succeeded in raping her; that when she
returned to her (the witness), Flaviana was crying; that the
following day while conducting the two girls back to their
hometown, she (Feliciana) was also raped by the
accused in an uninhabited house, against her will.
Victoriana Arayan (mother of Feliciana and Flaviana
Bonalos) testified as following: That on June 15, 1942, the
accused came and told her that the Japanese needed her
daughters to be witnesses; that accordingly, he
daughters, under that understanding, started for
Tagbilaran; that later, she went to Tagbilaran to look for
her daughters and she found them in the office of the
Puppet Governor; that on seeing her, both daughters
wept and told her that they were turned over to the
Japanese and raped them; that her daughter Flaviana
told her (the witness) that after the Japanese had raped
her the accused also raped her (Flaviana) in an
uninhabited house; that the accused did not permit her
two daughter to return home on the pretext that the
Puppet Governor was then absent and in the meanwhile
they stayed in the house of the accused Perez; that when
her daughter returned to her house ultimately, they related
to her (mother) what happened; that both daughters told
her they would have preferred death rather than to have
gone to Tagbilaran; that Feliciana told her (the mother)
that the accused had raped her.
The information give by Feliciana to her mother is
admitted in evidence as a part of the res

gestae regardless of the time that had elapsed between

the occurrence and the time of the information. In the
manner these two witnesses testified in court, there could
be no doubt that they were telling the absolute truth. It is
hard to conceived that these girls would assume and
admit the ignominy they have gone through if they were
not true. The Court is fully convinced that all the
allegations contained in Court No. 5 have been proven by
the testimonies of these two witnesses beyond
reasonable doubt.
"As regards count No. 6
Count No. 6, alleges: That the accused, together with his
Filipino companion apprehended Natividad Barcinas,
Nicanora Ralameda and Teotima Barcinas, nurses of the
provincial hospital, for not having attended a dance and
reception organized by the Puppet Governor in honor of
Colonel Mini and other Japanese high ranking officers,
which was held in Tagbilaran market on June 25, 1942;
that upon being brought the Puppet Governor, they were
severely reprimanded by the latter; that on July 8, 1942,
against said nurses were forced to attend another
banquet and dance in order that the Jap officers Mini and
Takibayas might make a selection which girls would suit
best their fancy; that the real purpose behind those
forcible invitations was to lure them to the residence of
said Japanese Officer Mini for immoral purposes.
Natividad Barcinas, a Lieutenant of the P.A., testified at
length. She declared: That on June 29, 1942, she and
companion nurses, saw the accused coming to the
hospital with a revolver and took them on a car to the
office of the Puppet Governor where they were severely
reprimanded by the latter for not attending the dance held
on June and receptions was to select from among them
the best girl that would suit the fancy of Colonel Mini for
immoral purposes that she and her companions were

30
always afraid of the accused Perez whenever he came to
said hospital; that on one occasion, one of the nurses on
perceiving the approach of the accused, ran up into her
room, laid down on bed and simulated to be sick; that
said accused, not satisfied, went up into the room of that
particular nurse and pulled out the blanket which covered
her and telling her that it was only her pretext that she
was sick.
The testimony of Lt. Natividad Barcinas is fully
corroborated by that of Nicanora Ralameda. Said
testimony need not be reproduced here.
In a carefully written brief for the appellant these findings are not
questioned, but it is contended that the deeds committed by the
accused do not constitute treason. The Solicitor General submits
the opposite view, and argues that "to maintain and preserve the
morale of the soldiers has always been, and will always be, a
fundamental concern of army authorities, for the efficiency of
rests not only on its physical attributes but also, mainly, on the
morale of its soldiers" (citing the annual report of the Chief of
Staff, United State Army, for the fiscal year ending June 30,
1933).
If furnishing women for immoral purposes to the enemies was
treason because women's company kept up their morale, so
fraternizing with them, entertaining them at parties, selling them
food and drinks, and kindred acts, would be treason. For any act
of hospitality without doubt produces the same general result. yet
by common agreement those and similar manifestation of
sympathy and attachment are not the kind of disloyalty that are
punished as treason.
In a broad sense, the law of treason does not prescribe all kinds
of social, business and political intercourse between the
belligerent occupants of the invaded country and its inhabitants.
In the nature of things, the occupation of a country by the enemy
is bound to create relations of all sorts between the invaders and

the natives. What aid and comfort constitute treason must depend
upon their nature degree and purpose. To draw a line between
treasonable and untreasonable assistance is not always easy.
The scope of adherence to the enemy is comprehensive, its
requirement indeterminate as was said Cramer vs. United States.
89 Law. ed., 1441.
As general rule, to be treasonous the extent of the aid and
comfort given to the enemies must be to render assistance to
them as enemies and not merely as individuals and in addition,
be directly in furtherance of the enemies' hostile designs. To
make a simple distinction: To lend or give money to an enemy as
a friend or out of charity to the beneficiary so that he may buy
personal necessities is to assist him as individual and is not
technically traitorous. On the other hand, to lend or give him
money to enable him to buy arms or ammunition to use in waging
war against the giver's country enhance his strength and by same
count injures the interest of the government of the giver. That is
treason. (See United States vs. Fricke, 259 F., 673; 63 C.J., 816,
817.)
Applying these principles to the case at bar, appellant's first
assignment of error is correct. His "commandeering" of women to
satisfy the lust of Japanese officers or men or to enliven the
entertainment held in their honor was not treason even though
the women and the entertainment helped to make life more
pleasant for the enemies and boost their spirit; he was not guilty
any more than the women themselves would have been if they
voluntarily and willingly had surrendered their bodies or organized
the entertainment. Sexual and social relations with the Japanese
did not directly and materially tend to improve their war efforts or
to weaken the power of the United State. The acts herein charged
were not, by fair implication, calculated to strengthen the
Japanese Empire or its army or to cripple the defense and
resistance of the other side. Whatever favorable effect the
defendant's collaboration with the Japanese might have in their
prosecution of the war was trivial, imperceptible, and
unintentional. Intent of disloyalty is a vital ingredient in the crime

31
of treason, which, in the absence of admission, may be gathered
from the nature and circumstances of each particular case.
But the accused may be punished for the rape of Eriberta Ramo,
Eduarda Daohog, Eutiquia Lamay and Flaviana Bonalos as
principal by direct participation. Without his cooperation in the
manner above stated, these rapes could not have been
committed.
Conviction of the accused of rapes instead of treason finds
express sanction in section 2 of Commonwealth Act No. 682,
which says:
Provided further, That where, in its opinion, the evidence
is not sufficient to support the offense (treason) charged,
the People's Court may, nevertheless, convict and
sentence the accused for any crime included in the acts
alleged in the information and established by the
evidence.
All the above mentioned rapes are alleged in the information and
substantiated by the evidence.
Counsel assails the constitutionality of this of his provision as
violative of section 1, paragraph 17, Article III of the Constitution,
which guarantees to an accused the right "to be informed of the
nature and cause of the accusation against him." The contention
is not well taken. The provision in requires that the private crimes
of which an accused of treason may be convicted must be
averred in the information and sustained by evidence. In the light
of this enactment, the defendant was warned of the hazard that
he might be founded guilty of rapes if he was innocent of treason
and thus afforded an opportunity to prepare and meet them.
There is no element of surprise or anomaly involved. In facts
under the general law of criminal procedure convicted for crime
different from that designated in the complaint or information is
allowed and practiced, provided only that such crime "is included

or described in the body of the information, and afterwards

justified by the proof presented during the trial."
(People vs. Perez, 45 Phil., 599.)
The defendant personally assaulted and abused two of the
offended girls but these assaults are not charged against him and
should be ruled out. The crime of coercion alleged and founded
on count No. 6. need not be noticed in view of the severity of the
penalty for the other crimes which he must suffer.
We find the defendant guilty of four separate crimes of rape and
sentence him for each of them to an indeterminate penalty of
from 10 year of prision mayor to 17 year and 4 months
of reclusion temporal, with the accessories of law, to indemnify
each of the offended women in the sum of P3,000, and to pay the
costs; it being understood that the total duration of these
penalties shall not exceed forty years.
Moran, C.J., Feria, Perfecto, Bengzon, Briones and Reyes,
JJ., concur.
Paras, J., reserves his vote.
Montemayor, J., concurs in the result.

EN BANC
G.R. No. L-399

January 29, 1948

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
EDUARDO PRIETO (alias EDDIE VALENCIA), defendantappellant.

32
Alfonso E. Mendoza for appellant.
First Assistant Solicitor General Roberto A. Gianzon and Solicitor
Isidro C. Borromeo for appellee.
TUASON, J.:
The appellant was prosecuted in the People's Court for treason
on 7 counts. After pleading not guilty he entered a plea of guilty to
counts 1, 2, 3 and 7, and maintained the original plea to counts 4,
5, and 6. The special prosecutor introduced evidence only on
count 4, stating with reference to counts 5 and 6 that he did not
have sufficient evidence to sustain them. The defendant was
found guilty on count 4 as well as counts 1, 2, 3, and 7 and was
sentenced to death and to pay the fine of P20,000.

overt act but on any part of it. (People vs. Adriano, 44 Off. Gaz.,
4300; Cramer vs. U. S., 65 S. Ct. 918.)
The lower court believes that the accused is "guilty beyond
reasonable doubt of the crime of treason complexed by murder
and physical injuries," with "the aggravating circumstances
mentioned above." Apparently, the court has regarded the
murders and physical injuries charged in the information, not only
as crimes distinct from treason but also as modifying
circumstances. The Solicitor General agrees with the decision
except as to technical designation of the crime. In his opinion, the
offense committed by the appellant is a "complex crime of treason
with homicide."
Counts 1, 2, 3 and 7 are as follows:

Two witnesses gave evidence on count 4 but their statements do

not coincide on any single detail. Juanito Albano, the first witness,
testified that in March, 1945, the accused with other Filipino
undercovers and Japanese soldiers caught an American aviator
and had the witness carry the American to town on a sled pulled
by a carabao; that on the way, the accused walked behind the
sled and asked the prisoner if the sled was faster than the
airplane; that the American was taken to the Kempetai
headquarters, after which he did not know what happened to the
flier. Valentin Cuison, the next witness, testified that one day in
March, 1945, he saw the accused following an American and the
accused were Japanese and other Filipinos.
These witnesses evidently referred to two different occasions.
The last witness stated that the American was walking as well as
his captors. And there was no sled, he said, nor did he see
Juanito Albano, except at night when he and Albano had a drink
of tuba together.
This evidence does not testify the two-witness principle. The two
witnesses failed to corroborate each other not only on the whole

1. On or about October 15, 1944, in the municipality of

Mandaue, Province of Cebu, Philippines, said accused
being a member of the Japanese Military Police and
acting as undercover man for the Japanese forces with
the purpose of giving and with the intent to give aid and
comfort to the enemy did, then and there wilfully,
unlawfully, feloniously and treasonably lead, guide and
accompany a patrol of Japanese soldiers and Filipino
undercovers to the barrio of Poknaon, for the purpose of
apprehending guerrillas and locating their hideouts; that
said accused and his companions did apprehended
Abraham Puno, tie his hands behind him and give him fist
blows; thereafter said Abraham Puno was taken by the
accused and his Japanese companions to Yati, Liloan,
Cebu, where he was severely tortured by placing red hot
iron on his shoulders, legs and back and from there he
was sent back to the Japanese detention camp in
Mandaue and detained for 7 days;
2. On or about October 28, 1944, in the municipality of
Mandaue, Province of Cebu, Philippines, said accused
acting as an informer and agent for the Japanese Military

33
Police, with the purpose of giving and with the intent to
give aid and comfort to the enemy, did, the, and there
willfully, unlawfully, feloniously and treasonably lead,
guide and accompany a group of Filipino undercovers for
the purpose of apprehending guerrillas and guerrilla
suspects; that the herein accused and his companions did
in fact apprehend Guillermo Ponce and Macario Ponce
from their house; that said accused and his companions
did tie the hands of said Guillermo Ponce and Macario
Ponce behind their backs, giving them first blows on the
face and in other parts of the body and thereafter
detained them at the Kempei Tai Headquarters; that
Guillermo Ponce was released the following day while his
brother was detained and thereafter nothing more was
heard of him nor his whereabouts known;
3. Sometime during the month of November, 1944, in the
Municipality of Mandaue, Province of Cebu, Philippines,
for the purpose of giving and with the intent to give aid
and comfort to the enemy and her military forces, said
accused acting as an enemy undercover did, then and
there wilfully, unlawfully, feloniously, and treasonably lead,
guide and accompany a patrol of some 6 Filipinos and 2
Japanese soldiers to barrio Pakna-an, municipality of
Mandaue for the purpose of apprehending guerrillas and
guerrilla suspects, and said patrol did in fact apprehend
as guerrilla suspects Damian Alilin and Santiago Alilin
who were forthwith tied with a rope, tortured and detained
for 6 days; that on the 7th day said Damian Alilin and
Santiago Alilin were taken about 1/2 kilometer from their
home and the accused did bayonet them to death;
7. In or about November 16, 1944, in Mandaue, in
conspiracy with the enemy and other Filipinos
undercovers, said accused did cause the torture of
Antonio Soco and the killing of Gil Soco for guerrilla
activities.

The execution of some of the guerrilla suspects mentioned in

these counts and the infliction of physical injuries on others are
not offenses separate from treason. Under the Philippine treason
law and under the United States constitution defining treason,
after which the former was patterned, there must concur both
adherence to the enemy and giving him aid and comfort. One
without the other does not make treason.
In the nature of things, the giving of aid and comfort can only be
accomplished by some kind of action. Its very nature partakes of
a deed or physical activity as opposed to a mental operation.
(Cramer vs. U.S., ante.) This deed or physical activity may be,
and often is, in itself a criminal offense under another penal
statute or provision. Even so, when the deed is charged as an
element of treason it becomes identified with the latter crime and
can not be the subject of a separate punishment, or used in
combination with treason to increase the penalty as article 48 of
the Revised Penal Code provides. Just as one can not be
punished for possessing opium in a prosecution for smoking the
identical drug, and a robber cannot be held guilty of coercion or
trespass to a dwelling in a prosecution for robbery, because
possession of opium and force and trespass are inherent in
smoking and in robbery respectively, so may not a defendant be
made liable for murder as a separate crime or in conjunction with
another offense where, as in this case, it is averred as a
constitutive ingredient of treason. This rule would not, of course,
preclude the punishment of murder or physical injuries as such if
the government should elect to prosecute the culprit specifically
for those crimes instead on relying on them as an element of
treason. it is where murder or physical injuries are charged as
overt acts of treason that they can not be regarded separately
under their general denomination.
However, the brutality with which the killing or physical injuries
were carried out may be taken as an aggravating circumstance.
Thus, the use of torture and other atrocities on the victims instead
of the usual and less painful method of execution will be taken
into account to increase the penalty under the provision of article

34
14, paragraph 21, of the Revised Penal Code, since they, as in
this case, augmented the sufferings of the offended parties
unnecessarily to the attainment of the criminal objective.
This aggravating circumstance is compensated by the mitigating
circumstance of plea of guilty. it is true that the accused pleaded
not guilty to counts 4, 5 and 6 but count 4 has not be
substantiated while counts 5 and 6 were abandoned.
In this first assignment of error, counsel seeks reversal of the
judgment because of the trial court's failure to appoint "another
attorney de oficio for the accused in spite of the manifestation of
the attorney de oficio (who defended the accused at the trial) that
he would like to be relieved for obvious reasons."
The appellate tribunal will indulge reasonable presumptions in
favor of the legality and regularity of all the proceedings of the
trial court, including the presumption that the accused was not
denied the right to have counsel. (U.S. vs. Labial, 27 Phil., 82.) It
is presumed that the procedure prescribed by law has been
observed unless it is made to appear expressly to the contrary.
(U.S. vs. Escalante, 36 Phil., 743.) The fact that the attorney
appointed by the trial court to aid the defendant in his defense
expressed reluctance to accept the designation because, as the
present counsel assumes, he did not sympathize with the
defendant's cause, is not sufficient to overcome this presumption.
The statement of the counsel in the court below did no
necessarily imply that he did not perform his duty to protect the
interest of the accused. As a matter of fact, the present counsel
"sincerely believes that the said Attorney Carin did his best,
although it was not the best of a willing worker." We do not
discern in the record any indication that the former counsel did
not conduct the defense to the best of his ability. if Attorney Carin
did his best as a sworn member of the bar, as the present
attorney admits, that was enough; his sentiments did not cut any
influence in the result of the case and did not imperil the rights of
the appellant.

In conclusion, we find the defendant not guilty of count 4 and

guilty of treason as charged in counts 1,2,3 and 7. There being an
aggravating circumstance, the penalty to be imposed is reclusion
perpetua. The judgment of the lower court will be modified in this
respect accordingly. In all other particulars, the same will be
affirmed. it is so ordered, with costs of this instance against the
appellant.
Moran, C.J., Feria, Pablo, Perfecto, Hilado, Bengzon, and
Padilla, JJ., concur.

PARAS, J.:
I concur in the result. Appellant is guilty of murder.

EN BANC
G.R. No. L-322

July 28, 1947

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
PEDRO MANAYAO, ET AL., defendants.
PEDRO MANAYAO, appellant.
J. Antonio Araneta for appellant.
First Assistant Solicitor General Jose B. L. Reyes and Solicitor
Ramon L. Avancea for appellee.

35
HILADO, J.:
Appellant Pedro Manayao and Filomeno Flores and Raymundo
Flores were charged with the high crime of treason with multiple
murder in the People's Court. The Floreses not having been
apprehended, only Manayao was tried. Convicted of the offense
charged against him with the aggravating circumstances of (1)
the aid of armed men and (2) the employment or presence of a
band in the commission of the crime, he was sentenced to death,
to pay a fine of P20,000, an indemnity of P2,000 to the heirs of
each of the persons named in the third paragraph of the decision,
and the costs. He has appealed from that decision to this Court.
On or about the 27th of January, 1945, the guerrillas raided the
Japanese in Sitio Pulong Tindahan, Municipality of Angat,
Province of Bulacan. In reprisal, Japanese soldiers and a number
of Filipinos affiliated with the Makapili, among them the instant
appellant, conceived the diabolical idea of killing the residents of
Barrio Banaban of the same municipality (Exhibits A, C, and C-1).
Pursuant to this plan, said Japanese soldiers and their Filipino
companions, armed with rifles and bayonets, gathered the
residents of Banaban behind the barrio chapel on January 29,
1945. Numbering about sixty or seventy, the residents thus
assembled included men, women and children mostly women
(Exhibits A, C, amd C-1; pp. 3-16, 29, 30, 65, 102, t.s.n.).
The children were placed in a separate group from the men and
women the prosecution star witnesses, Maria Paulino and
Clarita Perez, were among the children (pp. 3, 40, t.s.n. ).
Presently, the Japanese and their Filipino comrades set the
surrounding houses on fire (pp. 14, 48, 70, 71, 103, t.s.n.), and
proceeded to butcher all the persons assembled, excepting the
small children, thus killing, among others, those known by the
following names: Patricia, Dodi, Banda, Tana, Uyang, Mina,
Marta, Sana, Eufemia, Doroteo, Andres, Perly, Tisiang, Urado,
Pisan, Dorang, Felisa, and Eulalia (pp. 8, 10, 13, 14, 31, 32, 47,
48, 61, 63, t.s.n.).

Appellant alone killed about six women, two of whom were

Patricia and Dodi whom he bayoneted to death in the presence of
their daughters, Maria Paulino and Clarita Perez, respectively
(pp. 8, 10, 13, 31, 32, 35, 47, 48, t.s.n.). Patricia and Dodi
pleaded with appellant for mercy, he being their relative, but he
gave the callous answer that no mercy would be given them
because they were wives of guerrillas (pp. 10, 42, 43, 49, t.s.n.).
Appellant would also have killed the small children including
Clarita Perez and Maria Paulino if he had been allowed to have
his way. For when all but the small ones had been butchered, he
proposed to kill them too, but the Japanese soldiers interceded,
saying that the children knew nothing of the matter (pp. 15, 49,
51, 66, 67, t.s.n.). Appellant insisted in his proposal, arguing that
the children would be wives of guerrillas later when they grew up,
but the Japanese decided to spare them (p. 22, t.s.n.).
The foregoing facts have been clearly established by the
testimony of eye-witnesses Clarita Paulino, Maria Perez, and
Policarpio Tigas to the ruthless massacre of Banaban. There is
a complete absence of evidence tending to show motive on the
part of these witnesses for falsely testifying against appellant
such a motive is not even insinuated by the defendant. Indeed,
appellant's counsel frankly states (p. 3, brief) that he "does not
dispute the findings of fact of the People's Court." Speaking of the
testimony of Clarita and Maria, both aged ten years, the People's
Court, who heard, observed and saw them testify, had the
following to say:
The testimony of the last two in particular is entitled to
very great weight. They are simple barrio girls, only ten
years old, whose minds have not yet been tainted by
feelings of hatred or revenge or by any desire to be
spectacular or to exaggerate. They were straight-forward
and frank in their testimony and did not show any
intention to appeal to the sentiments of the court. They
could not have been mistaken as to the presence and
identity of the accused for they know him so well that they

36
referred to him by his pet name of "Indong Pintor" or
Pedro, the painter. They could not have erred in the
narration of the salient phases of the tragic events of
January 29, 1945, in Banaban, for they were forced eyewitnesses to and were involved in the whole tragedy, the
burning of the houses and the massacre committed by
the accused and his Japanese masters took place in
broad daylight and were not consummated in a fleeting
moment but during a time sufficient for even girls of
tender age to retain a trustworthy mental picture of the
unusual event they could not help but witness.
Not only this, but the testimony of Clarita Perez and Maria
Paulino is so clear, positive and convincing that it would be
sufficient for conviction without any further corroboration. Yet,
there is ample corroborative proof. Thus, Tomas M. Pablo
declared that he had seen the corpses of the massacred
residents of Banaban shortly after the happening of the heinous
crime (p. 136, t.s.n.). And appellant himself admitted his
participation in the massacre in two sworn statements one
made on August 28, 1945, before Lt. Jesus Cacahit, Detachment
Commander of the Angat 23d MP Command (Exhibit A; pp. 7577, t.s.n.) and another made on September 5, 1945 before
Feliciano F. Torres, Assistant Provincial Fiscal of Bulacan
(Exhibits C, C-1; pp. 150-159, t.s.n.).
In No. 1 of his assignment of errors, appellant's counsel contends
that appellant was a member of the Armed Forces of Japan, was
subject to military law, and not subject to the jurisdiction of the
People's Court; and in No. 2 he advances the theory that
appellant had lost his Philippine citizenship and was therefore not
amenable to the Philippine law of treason. We cannot uphold
either contention. We are of the considered opinion that
the Makapili, although organized to render military aid to the
Japanese Army in the Philippines during the late war, was not a
part of said army. It was an organization of Filipino traitors, pure
and simple. As to loss of Philippine citizenship by appellant,
counsel's theory is absolutely untenable. He invokes in its support

paragraphs 3, 4, and 6 of section 1 of Commonwealth Act No. 63,

providing:
. . . A Filipino citizen may lose his citizenship in any of the
following ways and/or events:
xxx

xxx

xxx

(3) By subscribing to an oath of allegiance to support the

constitution or laws of a foreign country upon attaining
twenty-one years of age or more;
(4) By accepting commission in the military, naval or air
service of a foreign country;
xxx

xxx

xxx

(6) By having been declared, by competent authority, a

deserter of the Philippine Army, Navy, or Air Corps in time
of war, unless subsequently a plenary pardon or amnesty
has been granted.
There is no evidence that appellant has subscribed to an oath of
allegiance to support the constitution or laws of Japan. His
counsel cites (Brief, 4) the fact that in Exhibit A "he subscribed an
oath before he was admitted into the Makapili association, "the
aim of which was to help Japan in its fight against the Americans
and her allies.'" And the counsel contends from this that the oath
was in fact one of allegiance to support the constitution and laws
of Japan. We cannot uphold such a far-fetched deduction. The
members of the Makapili could have sworn to help Japan in the
war without necessarily swearing to support her constitution and
laws. The famed "Flying Tiger" who so bravely and resolutely
aided China in her war with Japan certainly did not need to swear
to support the Chinese constitution and laws, even if they had to
help China fight Japan. During the first World War the "National
Volunteers" were organized in the Philippines, pledged to go to

37
Europe and fight on the side of the Allies, particularly of the
United States. In order to carry out that mission although the
war ended before this could be done they surely did not have
to take an oath to support the constitution or laws of the United
States or any of its allies. We do not multiply these examples, for
they illustrate a proposition which seems self-evident.
Neither is there any showing of the acceptance by appellant of a
commission "in the military, naval, or air service" of Japan.
Much less is there a scintilla of evidence that appellant had ever
been declared a deserter in the Philippine Army, Navy or Air
Corps nor even that he was a member of said Army, Navy, or
Air Corps.
Further, appellant's contention is repugnant to the most
fundamental and elementary principles governing the duties of a
citizen toward his country under our Constitution. Article II,
section 2, of said constitution ordains:
"SEC. 2. The defense of the State is a prime duty of
government, and in the fulfillment of this duty all citizens
may be required by law to render personal, military or civil
service." (Emphasis supplied.).
This constitutional provision covers both time of peace and time
of war, but it is brought more immediately and peremptorily into
play when the country is involved in war. During such a period of
stress, under a constitution enshrining such tenets, the citizen
cannot be considered free to cast off his loyalty and obligations
toward the Fatherland. And it cannot be supposed, without
reflecting on the patriotism and intelligence of the Legislature, that
in promulgating Commonwealth Act No. 63, under the aegis of
our Constitution, it intended (but did not declare) that the duties of
the citizen solemnly proclaimed in the above-quoted constitutional
precept could be effectively cast off by him even when his country
is at war, by the simple expedient of subscribing to an oath of

allegiance to support the constitution or laws of a foreign country,

and an enemy country at that, or by accepting a commission in
the military, naval or air service of such country, or by deserting
from the Philippine Army, Navy, or Air Corps.
It would shock the conscience of any enlightened citizenry to say
that this appellant, by the very fact of committing the treasonous
acts charged against him, the doing of which under the
circumstances of record he does not deny, divested himself of his
Philippine citizenship and thereby placed himself beyond the arm
of our treason law. For if this were so, his very crime would be the
shield that would protect him from punishment.
But the laws do no admit that the bare commission of a
crime amounts of itself to a divestment of the character of
citizen, and withdraws the criminal from their coercion.
They would never prescribe an illegal act among the legal
modes by which a citizen might disfranchise himself; nor
render treason, for instance, innocent, by giving it the
force of a dissolution of the obligation of the criminal to his
country. (Moore, International Law Digest, Vol. III, p. 731.)
696. No person, even when he has renounced or incurred
the loss of his nationality, shall take up arms against his
native country; he shall be held guilty of a felony and
treason, if he does not strictly observe this duty. (Fiore's
International Law Codified, translation from Fifth Italian
Edition by Borchard.)
As to the third assignment of error, the Solicitor General agrees
with counsel that it is improper to separately take into account
against appellant he aggravating circumstances of (1) the aid of
armed men and (2) the employment of a band in appraising the
gravity of the crime. We likewise are of the same opinion,
considering that under paragraph 6 of article 14 of the Revised
Penal Code providing that "whenever more than three armed
malefactors shall have acted together in the commission of an
offense it shall be deemed to have been committed by a band,"

38
the employment of more than three armed men is an essential
element of and inherent in a band. So that in appreciating the
existence of a band the employment of more than three armed
men is automatically included, there being only the aggravating
circumstance of band to be considered.
As to appellant's fourth assignment of error, the contention is
clearly unacceptable that appellant acted in obedience to an
order issued by a superior and is therefore exempt from criminal
liability, because he allegedly acted in the fulfillment of a duty
incidental to his service for Japan as a member of the Makapili. It
is obvious that paragraphs 5 and 6 of article 11 of our Revised
Penal Code compliance with duties to or orders from a foreign
sovereign, any more than obedience to an illegal order. The
construction contended for by appellant could entail in its
potentialities even the destruction of this Republic.

that of "armed band," thus discarding the first aggravating

circumstance considered by the trial court. A majority of the Court
voted to affirm the judgment appealed from, imposing the death
penalty, convicting defendant and appellant to pay a fine of
P20,000, an indemnity of P2,000 to the heirs of each of the
victims named in the third paragraph of the lower court's decision,
and the costs. But due to the dissent of Mr. Justice Perfecto from
the imposition of the death penalty, in accordance with the
applicable legal provisions we modify the judgment appealed
from as regards the punishment to be inflicted, and sentence
defendant and appellant Pedro Manayao to the penalty
of reclusion perpetua, with the accessories of article 41 of the
Revised Penal Code, to pay a fine of P20,000, an indemnity of
P2,000 to the heirs of each of the victims named in the third
paragraph of the lower court's decision, and the costs. So
ordered.

The contention that as a member of the Makapili appellant had to

obey his Japanese masters under pain of severe penalty, and
that therefore his acts should be considered as committed under
the impulse of an irresistible force or uncontrollable fear of an
equal or greater injury, is no less repulsive.
Appellant voluntarily joined the Makapili with full knowledge of its
avowed purpose of rendering military aid to Japan. He knew the
consequences to be expected if the alleged irresistible force or
uncontrollable fear subsequently arose, he brought them about
himself freely and voluntarily. But this is not all; the truth of the
matter is, as the Solicitor General well remarks, that "the
appellant actually acted with gusto during the butchery of
Banaban." He was on that occasion even bent on more cruelty
than the very ruthless Japanese masters so fate willed it
were the very ones who saved the little girls, Clarita Perez and
Maria Paulino, who were destined to become the star witnesses
against him on the day of reckoning.

Moran, C.J., Feria, Pablo, Bengzon, Briones, Hontiveros, Padilla,

and Tuason, JJ., concur.

Conformably to the recommendation of the Solicitor General, we

find appellant guilty of the crime of treason with multiple murder
committed with the attendance of one aggravating circumstance,

PERFECTO, J., concurring and dissenting:

PARAS, J.:
I concur in the result because I am convinced that the appellant is
guilty of multiple murder and he even deserves the maximum
penalty.

Separate Opinions

39
The main facts in this case upon which the prosecution relies are
based on the testimonies of three witnesses, two ten-year-old
girls, Clarita Perez and Maria Paulino, and Policarpio Tigas.
From the testimony of Maria Paulino we quote:
Q. You said that you are ten years old, do you know what
is the meaning of telling a lie? A. I do not know.
Q. Do you know the difference between falsity and truth?
A. I do not know.
xxx

xxx

xxx

Q. Do you know how to read? What, Sir?

Q. How to read. A. No, Sir.
Q. Do you know how to pray? A. I forgot how to
pray."(Pages 44 and 45, t.s.n.)
From the testimony of Clarita Perez, we quote:
Q. Please state your name and your personal
circumstances. A. Clarita Perez, 10 years of age, and
resident of the Sitio of Banaban.
Q. What town? A. I do not know.
JUDGE NEPOMUCENO:
Q. Is Banaban a sitio in the town of Malolos, or Quigua,
or Bigaa? A. I do not know, sir.
Q. You do not know? A. I do not know, sir.

JUDGE ABAD SANTOS:

Q. What province? A. I do not know, sir. (Page 4, t.s.n.)
Witness Policarpio Tigas, municipal policeman, testified that
about sixty persons, including his sister Eufemia, were killed in
Banaban, but he was not killed "because I was with my guerrilla
outfit then." He saw the killing "because on the 29th day of
January, I came down from the mountains and went to the barrio
to see my family to take them away from the place, but upon
arriving there I saw that the people were being gathered and
placed behind the chapel. After placing the people behind the
chapel I saw the massacre of the group begun. In my interest to
ascertain the fate of my sister and so that I would not be seen, I
crept to a creek and stayed there to find out what would be the
end of it all. While I was thus hiding in that creek I saw my sister
killed by Pedro Manayao, the painter. After that, convinced of the
fate of my sister and knowing the one who killed her was Pedro
Manayao, and because I was afraid that if I stayed there longer I
might be caught by the people and knowing that if I would be
caught I would also be killed, I left the place." (Page 102, t.s.n.)
He was fifty meters away from the place of the massacre. "The
dead bodies were burned. I left to go to the mountains. I first put
my mother in a safe place, and after that I joined my companions
and together we returned to the town." Eufemia "was buried by
my father" on the "second day after the killing". (P. 103, t.s.n.)
The above are the facts testified in the direct testimony of the
witness. That he should come from the mountains and arrive at
the place at the very instant when the massacre was about to be
executed; that he should have remained hidden in a creek, fifty
meters away, to find out the final fate of his sister; that, instead of
remaining to witness the gory scene, he did not depart to call his
co-guerrilleros who, according to him, were well armed, in order
to attack the mass killers and try to save those who were
gathered to be killed; that he left precisely after he saw his sister
decapitated, notwithstanding which he testified that the corpses
were burned but that the body of his sister was buried by his

40
father the day after the killing, these, besides other details, are
things that lead us to doubt the veracity of the testimony of this
witness, thus leaving to be considered only the testimonies of the
two girls.
Although we are inclined to believe that the appellant must have
been seen by the two girls at the place of the massacre in the
company of the Japanese, we cannot reconcile ourselves in
believing all the details as narrated by them, so as to justify the
inflicting of the supreme penalty upon appellant. Although we are
constrained to believe in the substantial truthfulness of the two
grills, considering their tender age which makes them highly
susceptible to suggestions, and the additional significant fact that
Maria Paulino does not know "the meaning of telling a lie" nor
"the difference between falsity and truth," and history and
experience have time and again shown that human fallibility is
more pronounced in children of tender age, we vote for the
modification of the appealed decision in the sense that appellant
be sentenced to reclusion perpetua.

EN BANC
G.R. No. L-477

June 30, 1947

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
APOLINARIO ADRIANO, defendant-appellant.
Remedios P. Nufable for appellant.
Assistant Solicitor General Kapunan, Jr., and Solicitor Lacson for
appellee.

TUASON, J.:
This is an appeal from a judgment of conviction for treason by the
People's Court sentencing the accused to life imprisonment,
P10,000 fine, and the costs.
The information charged:
That between January and April, 1945 or thereabout,
during the occupation of the Philippines by the Japanese
Imperial Forces, in the Province of Nueva Ecija and in the
mountains in the Island of Luzon, Philippines, and within
the jurisdiction of this Court, the above-named accused,
Apolinario Adriano, who is not a foreigner, but a Filipino
citizen owing allegiance to the United States and the
Commonwealth of the Philippines, in violation of said
allegiance, did then and there willfully, criminally and
treasonably adhere to the Military Forces of Japan in the
Philippines, against which the Philippines and the United
States were then at war, giving the said enemy aid and
comfort in the manner as follows:
That as a member of the Makapili, a military organization
established and designed to assist and aid militarily the
Japanese Imperial forces in the Philippines in the said
enemy's war efforts and operations against the United
States and the Philippines, the herein accused bore arm
and joined and assisted the Japanese Military Forces and
the Makapili Army in armed conflicts and engagements
against the United States armed forces and the Guerrillas
of the Philippine Commonwealth in the Municipalities of
San Leonardo and Gapan, Province of Nueva Ecija, and
in the mountains of Luzon, Philippines, sometime
between January and April, 1945. Contrary to Law.
The prosecution did not introduce any evidence to substantiate
any of the facts alleged except that of defendant's having joined

41
the Makapili organization. What the People's Court found is that
the accused participated with Japanese soldiers in certain raids
and in confiscation of personal property. The court below,
however, said these acts had not been established by the
testimony of two witnesses, and so regarded them merely as
evidence of adherence to the enemy. But the court did find
established under the two-witness rule, so we infer, "that the
accused and other Makapilis had their headquarters in the enemy
garrison at Gapan, Nueva Ecija; that the accused was in Makapili
military uniform; that he was armed with rifle; and that he drilled
with other Makapilis under a Japanese instructor; . . . that during
the same period, the accused in Makapili military uniform and
with a rifle, performed duties as sentry at the Japanese garrison
and Makapili headquarters in Gapan, Nueva Ecija;" "that upon the
liberation of Gapan, Nueva Ecija, by the American forces, the
accused and other Makapilis retreated to the mountains with the
enemy;" and that "the accused, rifle in hand, later surrendered to
the Americans."
Even the findings of the court recited above in quotations are not
borne out by the proof of two witnesses. No two of the
prosecution witnesses testified to a single one of the various acts
of treason imputed by them to the appellant. Those who gave
evidence that the accused took part in raids and seizure of
personal property, and performed sentry duties and military drills,
referred to acts allegedly committed on different dates without
any two witnesses coinciding in any one specified deed. There is
only one item on which the witnesses agree: it is that the
defendant was a Makapili and was seen by them in Makapili
uniform carrying arms. Yet, again, on this point it cannot be said
that one witness is corroborated by another if corroboration
means that two witnesses have seen the accused doing at least
one particular thing, it a routine military chore, or just walking or
eating.
We take it that the mere fact of having joined a Makapili
organization is evidence of both adherence to the enemy and
giving him aid and comfort. Unless forced upon one against his

will, membership in the Makapili organization imports treasonable

intent, considering the purposes for which the organization was
created, which, according to the evidence, were "to accomplish
the fulfillment of the obligations assumed by the Philippines in the
Pact of Alliance with the Empire of Japan;" "to shed blood and
sacrifice the lives of our people in order to eradicate Anglo-Saxon
influence in East Asia;" "to collaborate unreservedly and
unstintedly with the Imperial Japanese Army and Navy in the
Philippines;" and "to fight the common enemies." Adherence,
unlike overt acts, need not be proved by the oaths of two
witnesses. Criminal intent and knowledge may be gather from the
testimony of one witness, or from the nature of the act itself, or
from the circumstances surrounding the act. (Cramer vs. U.S., 65
Sup. Ct., 918.)
At the same time, being a Makapili is in itself constitutive of an
overt act. It is not necessary, except for the purpose of increasing
the punishment, that the defendant actually went to battle or
committed nefarious acts against his country or countrymen. The
crime of treason was committed if he placed himself at the
enemy's call to fight side by side with him when the opportune
time came even though an opportunity never presented itself.
Such membership by its very nature gave the enemy aid and
comfort. The enemy derived psychological comfort in the
knowledge that he had on his side nationals of the country with
which his was at war. It furnished the enemy aid in that his cause
was advanced, his forces augmented, and his courage was
enhanced by the knowledge that he could count on men such as
the accused and his kind who were ready to strike at their own
people. The principal effect of it was no difference from that of
enlisting in the invader's army.
But membership as a Makapili, as an overt act, must be
established by the deposition of two witnesses. Does the
evidence in the present case meet this statutory test? Is twowitness requirement fulfilled by the testimony of one witness who
saw the appellant in Makapili uniform bearing a gun one day,
another witness another day, and so forth?

42
The Philippine law on treason is of Anglo-American origin and so
we have to look for guidance from American sources on its
meaning and scope. Judicial interpretation has been placed on
the two-witness principle by American courts, and authoritative
text writers have commented on it. We cull from American
materials the following excerpts which appear to carry the stamp
of authority.
Wharton's Criminal Evidence, Vol. 3, section 1396, p. 2282, says:
In England the original Statute of Edward, although
requiring both witnesses to be to the same overt act, was
held to mean that there might be one witness to an overt
act and another witness to another overt act of the same
species of treason; and, in one case it has been intimated
that the same construction might apply in this country.
But, as Mr. Wigmore so succinctly observes: "The
opportunity of detecting the falsity of the testimony, by
sequestering the two witnesses and exposing their
variance in details, is wholly destroyed by permitting them
to speak to different acts." The rule as adopted in this
country by all the constitutional provisions, both state and
Federal, properly requires that two witnesses shall testify
to the same overt act. This also is now the rule in
England.
More to the point is this statement from VII Wigmore on Evidence,
3d ed., section 2038, p. 271:
Each of the witnesses must testify to the whole of the
overt act; or, if it is separable, there must be two
witnesses to each part of the overt act.
Learned Hand, J., in United States vs. Robinson (D.C.S.D., N.Y.,
259 Fed., 685), expressed the same idea: "It is necessary to
produce two direct witnesses to the whole overt act. It may be
possible to piece bits together of the overt act; but, if so, each

bit must have the support of two oaths; . . .." (Copied as footnote
in Wigmore on Evidence,ante.) And in the recent case of
Cramer vs. United States (65 Sup. Ct., 918), decide during the
recent World War, the Federal Supreme Court lays down this
doctrine: "The very minimum function that an overt act must
perform in a treason prosecution is that it shows sufficient action
by the accused, in its setting, to sustain a finding that the accused
actually gave aid and comfort to the enemy. Every act,
movement, deed, and word of the defendant charged to
constitute treason must be supported by the testimony of two
witnesses."
In the light of these decisions and opinions we have to set aside
the judgment of the trial court. To the possible objection that the
reasoning by which we have reached this conclusion savors of
sophism, we have only to say that the authors of the
constitutional provision of which our treason law is a copy
purposely made conviction for treason difficult, the rule "severely
restrictive." This provision is so exacting and so uncompromising
in regard to the amount of evidence that where two or more
witnesses give oaths to an overt act and only one of them is
believed by the court or jury, the defendant, it has been said and
held, is entitled to discharge, regardless of any moral conviction
of the culprit's guilt as gauged and tested by the ordinary and
natural methods, with which we are familiar, of finding the truth.
Natural inferences, however strong or conclusive, flowing from
other testimony of a most trustworthy witness or from other
sources are unavailing as a substitute for the needed
corroboration in the form of direct testimony of another
eyewitness to the same overt act.
The United States Supreme Court saw the obstacles placed in
the path of the prosecution by a literal interpretation of the rule of
two witnesses but said that the founders of the American
government fully realized the difficulties and went ahead not
merely in spite but because of the objections. (Cramer vs. United
States, ante.) More, the rule, it is said, attracted the members of
the Constitutional Convention "as one of the few doctrines of

43
Evidence entitled to be guaranteed against legislative change."
(Wigmore on Evidence, ante, section 2039, p. 272, citing
Madison's Journal of the Federal Convention, Scott's ed., II, 564,
566.) Mr. Justice Jackson, who delivered the majority opinion in
the celebrated Cramer case, said: "It is not difficult to find grounds
upon which to quarrel with this Constitutional provision. Perhaps
the farmers placed rather more reliance on direct testimony than
modern researchers in psychology warrant. Or it may be
considered that such a quantitative measure of proof, such a
mechanical calibration of evidence is a crude device at best or
that its protection of innocence is too fortuitous to warrant so
unselective an obstacle to conviction. Certainly the treason rule,
whether wisely or not, is severely restrictive." It must be
remembered, however, that the Constitutional Convention was
warned by James Wilson that "'Treason may sometimes be
practiced in such a manner, as to render proof extremely difficult
as in a traitorous correspondence with an enemy.' The
provision was adopted not merely in spite of the difficulties it put
in the way of prosecution but because of them. And it was not by
whim or by accident, but because one of the most venerated of
that venerated group considered that "prosecutions for treason
were generally virulent.'"
Such is the clear meaning of the two-witness provision of the
American Constitution. By extension, the lawmakers who
introduced that provision into the Philippine statute books must be
understood to have intended that the law should operate with the
same inflexibility and rigidity as the American forefathers meant.
The judgment is reversed and the appellant acquitted with costs
charged de oficio.
Moran, C.J., Feria, Pablo, Perfecto, Bengzon, Briones,
Hontiveros, and Padilla, JJ., concur.
Paras, J., concurs in the result.

Separate Opinions
HILADO, J., dissenting:
Being unable to bring myself agree with the majority upon the
application of the two-witness rule herein, I am constrained to
dissent.
As I see it, being a member of the Makapili during the Japanese
occupation of those areas of the Philippines referred to in the
information, was one single, continuous, and indivisible overt act
of the present accused whereby he gave aid and comfort to the
Japanese invaders. That membership was one and the
same from the moment he entered the organization till he was
captured. The fact that he was seen on a certain day by one of
the state witnesses being a member of the Makapili, and was
seen by another state witness but on a different day being a
member of the same organization, does not mean that his
membership on the first day was different or independent from his
membership on the other day it was the selfsame membership
all the way through. A contrary construction would entail the
consequence that the instant defendant, if we are to believe the
allegations and proofs of the prosecution, became or was a
member of the Makapili as many times as there were days from
the first to the last.
T.E. Holland defined "acts" in jurisprudence as follows:
Jurisprudence is concerned only with outward acts. An
"act" may therefore be defined . . . as "a determination of
will, producing an effect in the sensible world". The effect
may be negative, in which case the act is properly
described as a "forbearance". The essential elements of
such an act are there, viz., an exercise of the will, an

44
accompanying state of consciousness, a manifestation of
the will. (Webster's New International Dictionary, 2d ed.,
unabridged, p. 25.)
There can, therefore, be no question that being a member of
the Makapili was an overt act of the accused. And the fact that no
two witnesses saw him being such a member on any single day
or on the selfsame occasion does not, in my humble opinion,
work against the singleness of the act, nor does the fact that no
two witnesses have testified to that same overt act being done on
the same day or occasion argue against holding the two-witness
rule having been complied with.
My view is that, the act being single, continuous and indivisible, at
least two witnesses have testified thereto notwithstanding the fact
that one saw it on one day and the other on another day.

EN BANC
G.R. No. 17958

February 27, 1922

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,

vs.
LOL-LO and SARAW, defendants-appellants.
Thos. D. Aitken for appellants.
Acting Attorney-General Tuason for appellee.

MALCOLM, J.:
The days when pirates roamed the seas, when picturesque
buccaneers like Captain Avery and Captain Kidd and
Bartholomew Roberts gripped the imagination, when grostesque
brutes like Blackbeard flourished, seem far away in the pages of
history and romance. Nevertheless, the record before us tells a
tale of twentieth century piracy in the south seas, but stripped of
all touches of chivalry or of generosity, so as to present a horrible
case of rapine and near murder.
On or about June 30, 1920, two boats left matuta, a Dutch
possession, for Peta, another Dutch possession. In one of the
boats was one individual, a Dutch subject, and in the other boat
eleven men, women, and children, likewise subjects of Holland.
After a number of days of navigation, at about 7 o'clock in the
evening, the second boat arrived between the Islands of Buang
and Bukid in the Dutch East Indies. There the boat was
surrounded by six vintasmanned by twenty-four Moros all armed.
The Moros first asked for food, but once on the Dutch boat, too
for themselves all of the cargo, attacked some of the men, and
brutally violated two of the women by methods too horrible to the
described. All of the persons on the Dutch boat, with the
exception of the two young women, were again placed on it and
holes were made in it, the idea that it would submerge, although
as a matter of fact, these people, after eleven days of hardship
and privation, were succored violating them, the Moros finally
arrived at Maruro, a Dutch possession. Two of the Moro marauder
were Lol-lo, who also raped one of the women, and Saraw. At
Maruro the two women were able to escape.
Lol-lo and Saraw later returned to their home in South Ubian,
Tawi-Tawi, Sulu, Philippine Islands. There they were arrested and
were charged in the Court of First Instance of Sulu with the crime
of piracy. A demurrer was interposed by counsel de officio for the
Moros, based on the grounds that the offense charged was not
within the jurisdiction of the Court of First Instance, nor of any
court of the Philippine Islands, and that the facts did not constitute

45
a public offense, under the laws in force in the Philippine Islands.
After the demurrer was overruled by the trial judge, trial was had,
and a judgment was rendered finding the two defendants guilty
and sentencing each of them to life imprisonment (cadena
perpetua), to return together with Kinawalang and Maulanis,
defendants in another case, to the offended parties, the thirtynine sacks of copras which had been robbed, or to indemnify
them in the amount of 924 rupees, and to pay a one-half part of
the costs.
A very learned and exhaustive brief has been filed in this court by
the attorney de officio. By a process of elimination, however,
certain questions can be quickly disposed of.
The proven facts are not disputed. All of the elements of the crime
of piracy are present. Piracy is robbery or forcible depredation on
the high seas, without lawful authority and done animo furandi,
and in the spirit and intention of universal hostility.
It cannot be contended with any degree of force as was done in
the lover court and as is again done in this court, that the Court of
First Instance was without jurisdiction of the case. Pirates are in
law hostes humani generis. Piracy is a crime not against any
particular state but against all mankind. It may be punished in the
competent tribunal of any country where the offender may be
found or into which he may be carried. The jurisdiction of piracy
unlike all other crimes has no territorial limits. As it is against all
so may it be punished by all. Nor does it matter that the crime
was committed within the jurisdictional 3-mile limit of a foreign
state, "for those limits, though neutral to war, are not neutral to
crimes." (U.S. vs. Furlong [1820], 5 Wheat., 184.)
The most serious question which is squarely presented to this
court for decision for the first time is whether or not the provisions
of the Penal Code dealing with the crime of piracy are still in
force. Article 153 to 156 of the Penal Code reads as follows:

ART. 153. The crime of piracy committed against

Spaniards, or the subjects of another nation not at war
with Spain, shall be punished with a penalty ranging
from cadena temporal to cadena perpetua.
If the crime be committed against nonbelligerent subjects
of another nation at war with Spain, it shall be punished
with the penalty of presidio mayor.
ART. 154. Those who commit the crimes referred to in the
first paragraph of the next preceding article shall suffer
the penalty of cadena perpetua or death, and those who
commit the crimes referred to in the second paragraph of
the same article, from cadena temporal to cadena
perpetua:
1. Whenever they have seized some vessel by
boarding or firing upon the same.
2. Whenever the crime is accompanied by murder,
homicide, or by any of the physical injuries
specified in articles four hundred and fourteen and
four hundred and fifteen and in paragraphs one
and two of article four hundred and sixteen.
3. Whenever it is accompanied by any of the
offenses against chastity specified in Chapter II,
Title IX, of this book.
4. Whenever the pirates have abandoned any
persons without means of saving themselves.
5. In every case, the captain or skipper of the
pirates.
ART. 155. With respect to the provisions of this title, as
well as all others of this code, when Spain is mentioned it

46
shall be understood as including any part of the national
territory.
ART. 156. For the purpose of applying the provisions of
this code, every person, who, according to the
Constitution of the Monarchy, has the status of a Spaniard
shall be considered as such.
The general rules of public law recognized and acted on by the
United States relating to the effect of a transfer of territory from
another State to the United States are well-known. The political
law of the former sovereignty is necessarily changed. The
municipal law in so far as it is consistent with the Constitution, the
laws of the United States, or the characteristics and institutions of
the government, remains in force. As a corollary to the main rules,
laws subsisting at the time of transfer, designed to secure good
order and peace in the community, which are strictly of a
municipal character, continue until by direct action of the new
government they are altered or repealed. (Chicago, Rock Islands,
etc., R. Co. vs. McGlinn [1885], 114 U.S., 542.)
These principles of the public law were given specific application
to the Philippines by the Instructions of President McKinley of
May 19, 1898, to General Wesley Meritt, the Commanding
General of the Army of Occupation in the Philippines, when he
said:
Though the powers of the military occupant are absolute
and supreme, and immediately operate upon the political
condition of the inhabitants, the municipal laws of the
conquered territory, such as affect private rights of person
and property, and provide for the punishment of crime, are
considered as continuing in force, so far as they are
compatible with the new order of things, until they are
suspended or superseded by the occupying belligerent;
and practice they are not usually abrogated, but are
allowed to remain in force, and to be administered by the
ordinary tribunals, substantially as they were before the

occupations. This enlightened practice is so far as

possible, to be adhered to on the present occasion.
(Official Gazette, Preliminary Number, Jan. 1, 1903, p. 1.
See also General Merritt Proclamation of August 14,
1898.)
It cannot admit of doubt that the articles of the Spanish Penal
Code dealing with piracy were meant to include the Philippine
Islands. Article 156 of the Penal Code in relation to article 1 of the
Constitution of the Spanish Monarchy, would also make the
provisions of the Code applicable not only to Spaniards but to
Filipinos.
The opinion of Grotius was that piracy by the law of nations is the
same thing as piracy by the civil law, and he has never been
disputed. The specific provisions of the Penal Code are similar in
tenor to statutory provisions elsewhere and to the concepts of the
public law. This must necessarily be so, considering that the
Penal Code finds its inspiration in this respect in the Novelas,
the Partidas, and the Novisima Recopilacion.
The Constitution of the United States declares that the Congress
shall have the power to define and punish piracies and felonies
committed on the high seas, and offenses against the law of
nations. (U.S. Const. Art. I, sec. 8, cl. 10.) The Congress, in
putting on the statute books the necessary ancillary legislation,
provided that whoever, on the high seas, commits the crime of
piracy as defined by the law of nations, and is afterwards brought
into or found in the United States, shall be imprisoned for life.
(U.S. Crim. Code, sec. 290; penalty formerly death: U.S. Rev.
Stat., sec. 5368.) The framers of the Constitution and the
members of Congress were content to let a definition of piracy
rest on its universal conception under the law of nations.
It is evident that the provisions of the Penal Code now in force in
the Philippines relating to piracy are not inconsistent with the
corresponding provisions in force in the United States.

47
By the Treaty of Paris, Spain ceded the Philippine Islands to the
United States. A logical construction of articles of the Penal Code,
like the articles dealing with the crime of piracy, would be that
wherever "Spain" is mentioned, it should be substituted by the
words "United States" and wherever "Spaniards" are mentioned,
the word should be substituted by the expression "citizens of the
United States and citizens of the Philippine Islands." somewhat
similar reasoning led this court in the case of United States vs.
Smith ([1919], 39 Phil., 533) to give to the word "authority" as
found in the Penal Code a limited meaning, which would no
longer comprehend all religious, military, and civil officers, but
only public officers in the Government of the Philippine Islands.
Under the construction above indicated, article 153 of the Penal
Code would read as follows:
The crime of piracy committed against citizens of the
United States and citizens of the Philippine Islands, or the
subjects of another nation not at war with the United
States, shall be punished with a penalty ranging from
cadena temporal to cadena perpetua.
If the crime be committed against nonbelligerent subjects
of another nation at war with the United States, it shall be
punished with the penalty of presidio mayor.
We hold those provisions of the Penal code dealing with the crime
of piracy, notably articles 153 and 154, to be still in force in the
Philippines.
The crime falls under the first paragraph of article 153 of the
Penal Code in relation to article 154. There are present at least
two of the circumstances named in the last cited article as
authorizing either cadena perpetua or death. The crime of piracy
was accompanied by (1) an offense against chastity and (2) the
abandonment of persons without apparent means of saving
themselves. It is, therefore, only necessary for us to determine as

to whether the penalty of cadena perpetua or death should be

imposed. In this connection, the trial court, finding present the
one aggravating circumstance of nocturnity, and compensating
the same by the one mitigating circumstance of lack of instruction
provided by article 11, as amended, of the Penal Code,
sentenced the accused to life imprisonment. At least three
aggravating circumstances, that the wrong done in the
commission of the crime was deliberately augmented by causing
other wrongs not necessary for its commission, that advantage
was taken of superior strength, and that means were employed
which added ignominy to the natural effects of the act, must also
be taken into consideration in fixing the penalty. Considering,
therefore, the number and importance of the qualifying and
aggravating circumstances here present, which cannot be offset
by the sole mitigating circumstance of lack of instruction, and the
horrible nature of the crime committed, it becomes our duty to
impose capital punishment.
The vote upon the sentence is unanimous with regard to the
propriety of the imposition of the death penalty upon the
defendant and appellant Lo-lo (the accused who raped on of the
women), but is not unanimous with regard to the court, Mr.
Justice Romualdez, registers his nonconformity. In accordance
with provisions of Act No. 2726, it results, therefore, that the
judgment of the trial court as to the defendant and appellant
Saraw is affirmed, and is reversed as to the defendant and
appellant Lol-lo, who is found guilty of the crime of piracy and is
sentenced therefor to be hung until dead, at such time and place
as shall be fixed by the judge of first instance of the Twenty-sixth
Judicial District. The two appellants together with Kinawalang and
Maulanis, defendants in another case, shall indemnify jointly and
severally the offended parties in the equivalent of 924 rupees,
and shall pay a one-half part of the costs of both instances. So
ordered.
Araullo, C.J., Johnson, Avancea, Villamor, Ostrand, Johns and
Romualdez, JJ., concur.

48
charged of the crime of piracy in an information filed before the
then Court of First Instance of Sulu and Tawi-Tawi, which reads:

EN BANC
G.R. No. L-60100 March 20, 1985
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
JAIME RODRIGUEZ alias JIMMY alias WILFRED DE LARA y
MEDRANO and RICO LOPEZ, accused-appellants.
G.R. No. L-60768 March 20, 1985
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
DARIO DE REYES alias DARIO DECE RAYMUNDO y
ELAUSA, accused- appellant.
G.R. No. L-61069 March 20, l985
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
PETER PONCE y BULAYBULAY alias PETER POWE, accusedappellant.

PER CURIAM:
Appellants Jaime Rodriguez alias Jimmy alias Wilfred de Lara y
Medrano, Rico Lopez, Davao Reyes alias Dario Dece Raymundo
y Elausa and Peter Ponce y Bulaybulay alias Peter Power were

That on or about 3:15 in the morning of August 31,

1981, at the vicinity of Muligin Island and within
the territorial waters of the Municipality of
Cagayan de Tawi-Tawi, Province of Tawi-Tawi,
and within the jurisdiction of this honorable Court,
the above-named accused Wilfred de Lara y
Medrano, alias Jaime Rodriguez (Jimmy) Dario
Dece Raymundo y Elausa; Rico Lopez y
Fernandez and Peter Ponce y Bulaybulay alias
Peter Power being crew members of the M/V
Noria 767, a barter trade vessel of Philippine
registry, conspiring and confederating together
and mutually helping one another and armed with
bladed weapons and high caliber firearms, to wit:
three (3) daggers, two (2) M-14, one (1) garand
and one (1) Browning Automatic Rifle, with intent
of gain and by means of violence and intimidation
upon persons, did then and there willfully and
unlawfuflly, and feloniously take, steal and carry
away against the consent of the owners thereof,
the equipments and other persona) properties
belonging to the crew members and passengers
of the said M/V Noria 767, consisting of cash
money amounting to Three Million Five Hundred
Seventeen Thousand Three Hundred Pesos
(P3,517,300.00), personal belongings of
passengers and crew amounting to One Hundred
Thirty Thousand Pesos (P130,000.00), the
vessel's compass, navigational charts and
instruments amounting to Forty Thousand Pesos
(P40,000.00) to the damage and prejudice of the
aforementioned owners in the total amount of
THREE MILLION SIX HUNDRED EIGHTY
SEVEN THOUSAND THREE HUNDRED PESOS
(P3,687,300.00) Philippine Currency; that by

49
reason of and on the occasion of the said piracy
and for the purpose of enabling the abovenamed
accused to take, steal and carry away the
properties abovementioned, the herein accused in
pursuance to their conspiracy, did then and there
willfully, unlawfully and feloniously with intent to
kill and with evident premeditation, treacherously
attack, assault, stab, shot and, taking advantage
of superior strength, use personal violence upon
the persons of Abdusador Sumihag, Vicente
America, Perhan Tan, Marcos Que, Ismael
Turabin, Mabar Abdurahman, Wadi Aduk Rasdi
Alfad, Kasmir Tan, Peter Paul Chiong, Juaini
Husini Ismael Ombra, Sabturani Ulag, Mutalib
Sarahadil, Bajubar Adam, Quillermo Wee, Reuben
Segovia Ho, Michael Lao, Yusop Abubakar, Hahji
Hussin Kulavan, Amjad Quezon, Rebuan Majid
Edgar Tan, Abdurasul Alialam Federico Canizares,
Omar Tahil Gilbert Que, Arajul Salialam, Masihul
Bandahala, Asola Mohammaddin, Batoto Sulpicio,
Sakirani Bassal, Ibrahim Jamil, Saupi Malang and
Gulam Sahiddan, thereby inflicting upon them
multiple gunshot wounds which caused their
instantaneous death and likewise causing
physical injuries upon the persons of Inggal Issao
Abduhasan Indasan Hadji Yusop H. Alfad and
Hadji Mahalail Alfad, thus performing all acts of
execution which could have produced the death of
said persons, but nevertheless did not produce it
by reason or cause independent of the will of said
accused, that is, by the timely and able medical
assistance rendered to said victims which
prevented death.
CONTRARY TO LAW, with the aggravating
circumstances of treachery, evident premeditation,
night time and the use of superior strength. (pp.
97-98, Rollo of L-61069)

Upon arraignment on February 25, 1982, Jaime Rodriguez and

Rico Lopez, assisted by their counsel, pleaded guilty to the
charge, were convicted on March 5, 1982 and sentenced each "to
suffer the extreme penalty of death."
Dario Dece Raymundo, upon arraignment, interposed a plea of
not guilty. However, he withdrew his plea and substituted it with
that of guilty. On March 10, 1982 he was convicted of the crime
charged and sentenced "to suffer the extreme penalty of death."
Peter Ponce y Bulaybulay entered the plea of not guilty.
After trial, he was found guilty and was also sentenced "to suffer
the extreme penalty of death."
No pronouncement was made with respect to the civil liabilities of
the four defendants because "there was a separate civil action for
breach of contract and damages filed with the same trial court in
Civil Case No. N-85 against the several defendants, including the
four accused aforementioned." (p. 26, L-61069)
The case of the four convicted defendants is now before Us on
automatic review.
Evidence shows that on August 29, 1981, at about 7:30 in the
evening, the vessel M/V Noria 767, owned and registered in the
name of Hadji Noria Indasan left Jolo wharf for Cagayan de TawiTawi. It arrived at the port of Cagayan de Tawi-Tawi the following
day, August 30, 1981, at around 2:00 in the afternoon. In the
evening of the same date, the vessel left for Labuan. On board
the vessel were several traders and crew members. Two or three
hours after its departure, while sailing about 25 miles from
Cagayan de Tawi-Tawi, a commotion occurred in one of the
cabins of the vessel.
Three witnesses testified on what they saw and heard.

50
Mr. Clyde Que, a passenger, heard noises inside a cabin and,
after awhile, he heard shots being fired. He rushed to the motor
launch to hide and on his way through the engine room, he saw
appellant Peter Ponce. Then appellants Jaime Rodriguez, Dario
Dece and Rico Lopez, all armed with rifles, started firing towards
Que's companions after which they brought Que to the pilot's
house to handle the steering wheel. He was substituted by
Usman, another passenger, while Que and the other crew
members were ordered to throw overboard sacks of copra and
the dead bodies of Peter Chiong, Michael Lao, Casmin Tan and
Vicente America. At the time, appellant Peter Ponce, armed with a
M-14 rifle, stood guard.
Hadji Mahalail Alfad, another passenger, heard commotions from
the motor launch, followed by gunfire. He hid by laying down
among the sacks of copra. He saw appellants Peter Ponce,
Jaime Rodriguez, Rico Lopez and Dario Dece coming down the
stairs as they were firing shots until Fred Canizares and Guilbert
Que were hit, their bodies falling upon him. When he tried to
move, he realized that he was also hit on the right side of his
stomach. Thereafter, he pretended to be dead till daytime.
Emil Macasaet, Jr., the skipper of the vessel heard the
commotion from one of the cabins. He ordered his men to open
the door but it could not be opened. After awhile, the door opened
and he saw a gun pointed at them. Whereupon, he hid behind the
bags of copra until appellant Jaime Rodriguez came and fired at
him. Luckily, he was not hit. He and some of his men crawled and
they took cover in the bodega of copra. While in hiding there were
gunfires coming from Dario Dece and Peter Ponce. About four (4)
hours later, his Chief Mate Usman persuaded him to come out
otherwise something worse would happen. He saw Jaime
Rodriguez who ordered him to direct his men to throw the copras
as well as the dead bodies overboard.
About ten o'clock in the morning of the same day, the vessel
reached an island where the four appellants were able to secure
pumpboats. Macasaet was ordered to load in one of the

pumpboats nine (9) attache cases which were full of money. Rico
Lopez and Jaime Rodriguez boarded one pumpboat, while Peter
Ponce and Dario Dece boarded another, bringing with them:
dressed chicken, softdrinks, durian, boxes of ammunitions,
gallons of water and some meat, as well as rifles.
Municipal Health Officer Leopoldo Lao went aboard the vessel
M/V Noria when it arrived at Cagayan de Tawi-Tawi on September
2, 1981 and saw at the wharf ten dead bodies, all victims of the
sea-jacking, namely: Gulam Sahiddan, Arajul Naran Salialam,
Mallang Saupi, Guilbert Que, Frederico Canizares, Masihul
Bandahala, Ribowan Majid Edgar Tan, Omar Sabdani Tahir and
Abdurasul Salialam.
In their brief, appellants Jaime Rodriguez, Rico Lopez and Dario
Dece claim that the trial court erred (1) in imposing the death
penalty to the accused-appellants Jaime Rodriguez alias Wilfred
de Lara, Rico Lopez y Fernandez and Davao de Reyes, alias
Dario Dece Raymundo y Elausa despite their plea of guilty; (2) in
giving weight to the alleged sworn statements of Peter Ponce y
Bulaybulay, Identified as Exhibits "C" to "C-10" and Exhibits "I to I5", as evidence against Peter Ponce y Bulaybulay; (3) in holding
that accused-appellant Peter Ponce y Bulaybulay is guilty of the
crime of piracy; (4) in holding that the defense of Peter Ponce y
Bulaybulay was merely a denial; and, (5) in holding that Peter
Ponce y Bulaybulay entrusted the P1,700.00 which was his
personal money to Atty. Efren Capulong of the National Bureau of
Investigation.
There is no merit in this appeal of the three named defendants,
namely: Jaime Rodriguez and Rico Lopez in G.R. No. L-60100,
and Dario Dece in G.R. No. L-60768.
Anent the first assigned error, suffice it to say that Presidential
Decree No. 532, otherwise known as the Anti-Piracy Law,
amending Article 134 of the Revised Penal Code and which took
effect on August 8, 1974, provides:

51
SEC. 3. Penalties.Any person who commits
piracy or highway robbery/brigandage as herein
defined, shall, upon conviction by competent court
be punished by:
a) Piracy.The penalty of reclusion temporal in
its medium and maximum periods shall be
imposed. If physical injuries or other crimes are
committed as a result or on the occasion thereof,
the penalty of reclusion perpetua shall be
imposed. If rape, murder or no homocide is
committed as a result or on the occasion of piracy,
or when the offenders abandoned the victims
without means of saving themselves, or when the
seizure is accomplished by firing upon or boarding
a vessel, the mandatory penalty of death shall be
imposed. (Emphasis supplied)
Clearly, the penalty imposable upon persons found guilty of the
crime of piracy where rape, murder or homicide is committed is
mandatory death penalty. Thus, the lower court committed no
error in not considering the plea of the three (3) defendants as a
mitigating circumstance. Article 63 of the Revised Penal Code
states that:
b) ART. 63. Rules for the application of indivisible
penalties.In all cases in which the law
prescribes a single indivisible penalty, it shag be
applied by the courts regardless of any mitigating
or aggravating circumstances that may have
attended the commission of the deed.
With respect to the other assigned errors, We also find them to be
devoid of merit. Appellants Peter Ponce gave a statement
(Exhibits "C" to "C-11") to the Malaysian authorities and another
statement (Exhibits "I" to "I-15") before the National Bureau of
Investigation of Manila. When said statement (Exhibits "C" to "C11") was offered in evidence by the prosecution, the same was

not objected to by the defense, aside from the fact that Peter
Ponce, on cross examination, admitted the truthfulness of said
declarations, thus:
Q And the investigation was
reduced into writing is that
correct?
A Yes. sir.
Q And you were investigated by
the police authority of Kudat and
Kota Kinabalo, is that right?
A Yes, sir. Only in Kudat.
Q And that statement you gave to
the authority at Kudat, you have
signed that statement, is that
correct?
A Yes, sir.
Q And what you stated is all the
truth before the authority in Kudat?
A Yes, sir. (pp. 33-34, tsn, May 28,
1982)
Relative to the appeal of appellant Peter Ponce (G.R. No. L61069), which We likewise declare to be without merit, evidence
shows that his participation in the commission of the offense was
positively testified to by the master of the vessel, Emil Macasaet,
Jr., and a passenger, Hadji Mahalail Alfad. Another witness,
passenger Clyde Que also pointed to have seen him (Peter
Ponce) armed with an M-14 rifle.

52
Considering the testimonies of Clyde Que and Emil Macasaet, Jr.
who actually saw appellant Peter Ponce firing his weapon
indiscriminately at the passengers and crew members in wanton
disregard of human lives and the fact that after the looting and
killing, appellant Peter Ponce, still armed, joined Dario Dece in
one pumpboat, there can be no question that he was in
conspiracy with the three other defendants. After his arrest,
Ponce gave a statement to the authorities stating therein his
participation as well as those of his companions (Exhibits "I" to "I1").

Should you decide to give a sworn

statement, the same shall be
voluntary and free from force or
intimidation or promise of reward
or leniency and anything that you
saw here maybe used for or
against you in any court in the
Philippines. Now do you
understand an these rights of
yours?

The four (4) appellants were arrested and detained by the

Malaysian authorities. On January 8, 1982, the National Bureau
of Investigation authorities fetched and brought them to Manila
where they executed their respective statements after Rico Lopez
and Peter Ponce delivered to the NBI, P3,700.00 and P1,700.00,
respectively, aside from the P527,595.00 and one Rolex watch
which the Malaysian authorities also turned over to the Acting InCharge of the NBI in Jolo.

ANSWER: Yes, sir.

The statement of Ponce (Exhibit " I ") contains the questions and
answers pertinent to Section 20 of the 1973 Constitution, to wit:
l. QUESTION: Mr. Peter Ponce,
we are informing you that you are
under investigation here in
connection with the robbery
committed on the M/V Noria last
August 31, 1981, where you are
an Assistant Engineer. You have a
right to remain silent and to refuse
to answer any of our questions
here. You have the right to be
represented by counsel of your
choice in this investigation. Should
you decide to be represented by a
lawyer but cannot afford one we
will provide a lawyer for you free.

2. Q: Do you need the services of

a lawyer?
A: No, sir.
3. Q: Are you willing to affix your
signature hereinbelow to signify
that you so understand all your
rights as above stated and that
you do not need the services of a
lawyer?
A: Yes, sir. (p. 11 6, Rollo)
Thus, it is clear that Peter Ponce was fully advised of his
constitutional right to remain silent and his right to counsel.
Considering the written statements of all the appellants, (Exhibits
"E", "F", "G", "H", "J" and "K"), interlocking as they are with each
other as each admits his participation and those of the other coaccused, there is no room for doubt that conspiracy existed
among them. The conduct of appellant

53
Peter Ponce before, during and after the commission of the crime
is a circumstance showing the presence of conspiracy in the
commission of the crime. As a consequence, every one is
responsible for the crime committed.
WHEREFORE, the decision appealed from is hereby AFFIRMED.

No. 60118, prom. February 28, 1985). As therein stated, I

subscribe to the Court's requirement in Morales, Jr. vs. Ponce
Enrile (121 SCRA 538) that "the right to counsel may be waived
but the waiver shall not be valid unless made with the assistance
of counsel" in order to assure that it is knowingly, voluntarily and
intelligently given.

SO ORDERED.
Makasiar, Aquino, Concepcion, Jr., Abad Santos, MelencioHerrera, Plana, Escolin Relova, Gutierrez, Jr., De la Fuente,
Cuevas and Alampay JJ., concur.

Separate Opinions

Fernando, C.J., took no part,

I concur with the judgment of conviction, there being sufficient

direct evidence and positive Identification by eyewitnesses.

Separate Opinions

TEEHANKEE, J., concurring:

I concur with the judgment of conviction, there being sufficient
direct evidence and positive Identification by eyewitnesses.
I take exception, however, to the statement therein that accused
Peter Ponce "was fully advised of his constitutional right to remain
silent and his right to counsel." The monosyllabic answers of
"Yes" and "No" have been stricken down by the Court as utterly
unacceptable as a voluntary and intelligent waiver of the
constitutional right to silence and to counsel in People vs.
Caguioa (95 SCRA 2). in line with my separate concurring and
dissenting opinion in the recent case of People vs. Itlanas (G.R.

TEEHANKEE, J., concurring:

I take exception, however, to the statement therein that accused

Peter Ponce "was fully advised of his constitutional right to remain
silent and his right to counsel." The monosyllabic answers of
"Yes" and "No" have been stricken down by the Court as utterly
unacceptable as a voluntary and intelligent waiver of the
constitutional right to silence and to counsel in People vs.
Caguioa (95 SCRA 2). in line with my separate concurring and
dissenting opinion in the recent case of People vs. Itlanas (G.R.
No. 60118, prom. February 28, 1985). As therein stated, I
subscribe to the Court's requirement in Morales, Jr. vs. Ponce
Enrile (121 SCRA 538) that "the right to counsel may be waived
but the waiver shall not be valid unless made with the assistance
of counsel" in order to assure that it is knowingly, voluntarily and
intelligently given.

54
EN BANC
G.R. No. L-57292 February 18, 1986
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
JULAIDE SIYOH, OMAR-KAYAM KIRAM, NAMLI INDANAN
and ANDAW JAMAHALI, accused-appellants.

ABAD SANTOS, J.:

This is an automatic review of the decision of the defunct Court of
First Instance of Basilan, Judge Jainal D. Rasul as ponente,
imposing the death penalty.
In Criminal Case No. 318 of the aforesaid court, JULAIDE
SIYOH, OMARKAYAM KIRAM, NAMLI INDANAN and ANDAW
JAMAHALI were accused of qualified piracy with triple murder
and frustrated murder said to have been committed according to
the information as follows:
That on or about the 14th day of July, 1979, and
within the jurisdiction of this Honorable Court, viz.,
at Mataja Is., Municipality of Lantawan, Province
of Basilan, Philippines, the above named
accused, being strangers and without lawful
authority, armed with firearms and taking
advantage of their superior strength, conspiring
and confederating together, aiding and assisting
one with the other, with intent to gain and by the
use of violence or intimidation against persons
and force upon things, did then and there willfully,
unlawfully and feloniously, fire their guns into the
air and stop the pumpboat wherein Rodolfo de
Castro, Danilo Hiolen, Anastacio de Guzman and

Antonio de Guzman were riding, traveling at that

time from the island of Baluk-Baluk towards Pilas,
boarded the said pumpboat and take, steal and
carry away all their cash money, wrist watches,
stereo sets, merchandise and other personal
belongings amounting to the total amount of P
18,342.00, Philippine Currency; that the said
accused, on the occasion of the crime herein
above-described, taking advantage that the said
victims were at their mercy, did then and there
willfully, unlawfully and feloniously, with intent to
kill, ordered them to jump into the water,
whereupon, the said accused, fired their guns at
them which caused the death of Rodolfo de
Castro, Danilo Hiolen, Anastacio de Guzman and
wounding one Antonio de Guzman; thus the
accused have performed all the acts of execution
which would have produced the crime of Qualified
Piracy with Quadruple Murder, but which,
nevertheless, did not produce it by reasons of
causes in dependent of their will, that is, said
Antonio de Guzman was able to swim to the shore
and hid himself, and due to the timely medical
assistance rendered to said victim, Antonio de
Guzman which prevented his death. (Expediente,
pp. 1-2.)
An order of arrest was issued against all of the accused but only
Julaide Siyoh and Omar-kayam Kiram were apprehended. (Id, p.
8.)
After trial, the court a quo rendered a decision with the following
dispositive portion.
WHEREFORE, in view of the fore going
considerations, this Court finds the accused
Omar-kayam Kiram and Julaide Siyoh guilty
beyond reasonable doubt of the crime of Qualified

55
Piracy with Triple Murder and Frustrated Murder
as defined and penalized under the provision of
Presidential Decree No. 532, and hereby
sentences each one of them to suffer the supreme
penalty of DEATH. However, considering the
provision of Section 106 of the Code of Mindanao
and Sulu, the illiteracy or ignorance or extreme
poverty of the accused who are members of the
cultural minorities, under a regime of so called
compassionate society, a commutation to life
imprisonment is recommended. (Id, p. 130.)
In their appeal, Siyoh and Kiram make only one assignment of
error:
THE LOWER COURT ERRED IN FINDING THAT
THE GUILT OF THE ACCUSED-APPELLANTS
OMAR-KAYAM KIRAM AND JULAIDE SIYOH
HAS BEEN PROVED BEYOND REASONABLE
DOUBT. (Brief, p. 8.)
The People's version of the facts is as follows:
Alberto Aurea was a businessman engaged in
selling dry goods at the Larmitan Public Market, in
the province of Basilan (pp. 2-3, tsn). On July 7,
1979 and on July 10, 1979, Antonio de Guzman,
Danilo Hiolen, Rodolfo de Castro and Anastacio
de Guzman received goods from his store
consisting of mosquito nets, blankets, wrist watch
sets and stereophono with total value of P15,000
more or less (pp. 4-6, tsn). The goods were
received under an agreement that they would be
sold by the above-named persons and thereafter
they would pay the value of said goods to Aurea
and keep part of the profits for themselves.
However these people neither paid the value of
the goods to Aurea nor returned the goods to him

(pp. 6-7, tsn). On July 15, 1979, Aurea was

informed by Antonio de Guzman that his group
was held up near Baluk- Baluk Island and that his
companions were hacked (p. 8, tsn). On July 16,
1979, the bodies of Rodolfo de Castro, Danilo
Hiolen and Anastacio de Guzman were brought by
the PC seaborne patrol to Isabela, Basilan (pp.
17-18, 29, tsn). Only Antonio de Guzman survived
the incident that caused the death of his
companions.
It appears that on July 10, 1979, Antonio de
Guzman together with his friends who were also
travelling merchants like him, were on their way to
Pilas Island, Province of Basilan, to sell the goods
they received from Alberto Aurea. The goods they
brought with them had a total value of P18,000.00
(pp- 36-37, tsn). They left for Pilas Island at 2:00
p.m. of July 10, 1979 on a pumpboat. They took
their dinner and slept that night in the house of
Omar-kayam Kiram at Pilas Island (pp. 37-38,
tsn).
The following day, July 11, 1979, de Guzman's
group, together with Kiram and Julaide Siyoh,
started selling their goods, They were able to sell
goods worth P 3,500.00. On July 12, 1979, the
group, again accompanied by Kiram and Siyoh,
went to sell their goods at another place,
Sangbay, where they sold goods worth P
12,000.00 (pp. 40-42, tsn). They returned to Pilas
Island at 5:00 o'clock in the afternoon and again
slept at Kiram's house. However that night Kiram
did not sleep in his house, and upon inquiry the
following day when Antonio de Guzman saw him,
Kiram told the former that he slept at the house of
Siyoh.

56
On that day, July 13, 1979, the group of Antonio
de Guzman went to Baluk-Baluk, a place
suggested by Kiram. They were able to sell goods
worth P3,000.00 (pp. 43-46, tsn). They returned to
Pilas Island for the night but Kiram did not sleep
with them (p. 47, tsn).
The following day, July 14, 1979, the group again
went to Baluk-Baluk accompanied by Kiram and
Siyoh (pp. 48, 50 t.s.n), They used the pumpboat
of Kiram. Kiram and Siyoh were at that time
armed with 'barongs'. They arrived at Baluk-Baluk
at about 10:00 o'clock in the morning and upon
arrival at the place Kiram and Siyoh going ahead
of the group went to a house about 15 meters
away from the place where the group was selling
its goods (pp. 50-53, tsn). Kiram and Siyoh were
seen by the group talking with two persons whose
faces the group saw but could not recognize (pp.
53-54, tsn). After selling their goods, the members
of the group, together with Kiram and Siyoh,
prepared to return to Pilas Island. They rode on a
pumpboat where Siyoh positioned himself at the
front while Kiram operated the engine. On the way
to Pilas Island, Antonio de Guzman saw another
pumpboat painted red and green about 200
meters away from their pumpboat (pp. 55, tsn).
Shortly after" Kiram turned off the engine of their
pumpboat. Thereafter two shots were fired from
the other pumpboat as it moved towards them
(pp. 57-58, tsn). There were two persons on the
other pumpboat who were armed with armantes.
De Guzman recognized them to be the same
persons he saw Kiram conversing with in a house
at Baluk-Baluk Island. When the boat came close
to them, Kiram threw a rope to the other
pumpboat which towed de Guzman's pumpboat
towards Mataja Island. On the way to Mataja

Island, Antonio de Guzman and his companions

were divested of their money and their goods by
Kiram (pp. 59-61, tsn). Thereafter Kiram and his
companions ordered the group of de Guzman to
undress. Taking fancy on the pants of Antonio de
Guzman, Kiram put it on. With everybody
undressed, Kiram said 'It was good to kill all of
you'. After that remark, Siyoh hacked Danilo
Hiolen while Kiram hacked Rodolfo de Castro.
Antonio de Guzman jumped into the water. As he
was swimming away from the pumpboat, the two
companions of Kiram fired at him, injuring his
back (pp. 62-65, tsn). But he was able to reach a
mangrove where he stayed till nightfall. When he
left the mangrove, he saw the dead bodies of
Anastacio de Guzman, Danilo Hiolen and Rodolfo
de Castro. He was picked up by a fishing boat and
brought to the Philippine Army station at Maluso
where he received first aid treatment. Later he
was brought to the J.S. Alano Memorial Hospital
at Isabela, Basilan province (pp. 66-68, tsn).
On July 15, 1979, while waiting for the dead
bodies of his companions at the wharf, de
Guzman saw Siyoh and Kiram. He pointed them
out to the PC and the two were arrested before
they could run. When arrested, Kiram was
wearing the pants he took from de Guzman and
de Guzman had to ask Pat. Bayabas at the
Provincial Jail to get back his pants from Kiram
(pp. 69-72, tsn).
Antonio de Guzman was physically examined at
the J.S. Alano Memorial Hospital at Isabela,
Basilan and findings showed: 'gunshot wound,
scapular area, bilateral, tangenital' (Exh. C,
prosecution). (pp. 134-136, tsn). Dr. Jaime M.
Junio, Provincial Health Officer of Basilan,

57
examined the dead bodies of Rodolfo de Castro
and Danilo Hiolen and issued the corresponding
death certificates (Exhs. D and E, prosecution).
(pp. 137-138; 140-141, tsn). (Brief, pp. 5-11.)
As can be seen from the lone assignment of error, the issue is the
credibility of witnesses. Who should be believed Antonio de
Guzman who was the lone prosecution eye-witness or Siyoh and
Kiram the accused-appellants who claims that they were also the
victims of the crime? The trial court which had the opportunity of
observing the demeanor of the witnesses and how they testified
assigned credibility to the former and an examination of the
record does not reveal any fact or circumstance of weight and
influence which was overlooked or the significance of which was
misinterpreted as would justify a reversal of the trial court's
determination. Additionally, the following claims of the appellants
are not convincing:
1. That if they were the culprits they could have easily robbed
their victims at the Kiram house or on any of the occasions when
they were travelling together. Suffice it to say that robbing the
victims at Kiram's house would make Kiram and his family
immediately suspect and robbing the victims before they had sold
all their goods would be premature. However, robbing and killing
the victims while at sea and after they had sold all their goods
was both timely and provided safety from prying eyes.
2. That the accused immediately reported the incident to the PC.
The record does not support this assertion. For as the
prosecution stated: "It is of important consequence to mention
that the witness presented by the defense are all from Pilas
Island and friends of the accused. They claimed to be members
of retrieving team for the dead bodies but no PC soldiers were
ever presented to attest this fact. The defense may counter why
the prosecution also failed to present the Maluso Police Daily
Event book? This matter has been brought by Antonio not to the
attention of the PC or Police but to an army detachment. The
Army is known to have no docket book, so why take the pain in

locating the army soldiers with whom the report was made?
(Memorandum, p. 7.) And Judge Rasul also makes this
observation: "..., this Court is puzzled, assuming the version of
the defense to be true, why the lone survivor Antonio de Guzman
as having been allegedly helped by the accused testified against
them. Indeed, no evidence was presented and nothing can be
inferred from the evidence of the defense so far presented
showing reason why the lone survivor should pervert the truth or
fabricate or manufacture such heinous crime as qualified piracy
with triple murders and frustrated murder? The point which makes
us doubt the version of the defense is the role taken by the PC to
whom the report was allegedly made by the accused immediately
after the commission of the offense. Instead of helping the
accused, the PC law enforcement agency in Isabela, perhaps not
crediting the report of the accused or believing in the version of
the report made by the lone survivor Antonio de Guzman, acted
consistently with the latter's report and placed the accused under
detention for investigation." (Expediente, pp. 127-128.)
3. That the affidavits of Dolores de Guzman, wife of the deceased
Anastacio de Guzman, and Primitiva de Castro, wife of the
deceased Rodolfo de Castro, state that Antonio de Guzman
informed them shortly after the incident that their husbands were
killed by the companions of Siyoh and Kiram. The thrust of the
appellants' claim, therefore, is that Namli Indanan and Andaw
Jamahali were the killers and not the former. But this claim is
baseless in the face of the proven conspiracy among the accused
for as Judge Rasul has stated:
It is believed that conspiracy as alleged in the
information is sufficiently proved in this case. In
fact the following facts appear to have been
established to show clearly conspiracy: A) On July
14, 1979, while peddling, the survivor-witness
Tony de Guzman noticed that near the window of
a dilapidated house, both accused were talking to
two (2) armed strange-looking men at Baluk-Baluk
Island; B) When the pumpboat was chased and

58
overtaken, the survivor-witness Tony de Guzman
recognized their captors to be the same two (2)
armed strangers to whom the two accused talked
in Baluk- Baluk Island near the dilapidated house;
C) The two accused, without order from the two
armed strangers transferred the unsold goods to
the captors' banca; D) That Tony de Guzman and
companion peddlers were divested of their
jewelries and cash and undressed while the two
accused remained unharmed or not molested.
These concerted actions on their part prove
conspiracy and make them equally liable for the
same crime (People vs. Pedro, 16 SCRA 57;
People vs. lndic 10 SCRA 130). The convergence
of the will of the conspirators in the scheming and
execution of the crime amply justifies the
imputation of all of them the act of any of them
(People vs. Peralta, 25 SCRA, 759). (Id., pp. 128129.)
4. That there is no evidence Anastacio de Guzman was killed
together with Rodolfo de Castro and Danilo Hiolen because his
remains were never recovered. There is no reason to suppose
that Anastacio de Guzman is still alive or that he died in a manner
different from his companions. The incident took place on July 14,
1979 and when the trial court decided the case on June 8, 1981
Anastacio de Guzman was still missing. But the number of
persons killed on the occasion of piracy is not material. P.D. No.
532 considers qualified piracy, i.e. rape, murder or homicide is
committed as a result or on the occasion of piracy, as a special
complex crime punishable by death regardless of the number of
victims.
5. That the death certificates are vague as to the nature of the
injuries sustained by the victims; were they hacked wounds or
gunshot wounds? The cause of death stated for Rodolfo de
Castro and Danilo Hiolen is: "Hemorrhage due to hacked wounds,
possible gunshot wounds." (Exhs. D and E.) The cause is

consistent with the testimony of Antonio de Guzman that the

victims were hacked; that the appellants were armed with
"barongs" while Indanan and Jamahali were armed with
armalites.
WHEREFORE, finding the decision under review to be in accord
with both the facts and the law, it is affirmed with the following
modifications: (a) for lack of necessary votes the penalty imposed
shall be reclusion perpetua; and (b) each of the appellants shall
pay in solidum to the heirs of each of the deceased indemnity in
the amount of P30,000.00. No special pronouncement as to
costs.
SO ORDERED.
Concepcion, Melencio-Herrera, Plana, Escolin Gutierrez, Jr.,
Dela Fuente, Alampay and Patajo, JJ., concur.
Aquino, C.J., took no part.
Teehankee, J., for affirmance of death sentence.

Separate Opinions

CUEVAS, J., dissenting:

59
considering the gravamen of the offense charged the manner by
which it was committed, I vote to affirm the death penalty imposed
by the trial court.

CASIPLE: DOMINGO T. ANONUEVO and RAMON

CASIPLE, petitioners,
vs.
HON. FIDEL V. RAMOS, GEN. RENATO S. DE VILLA, COL.
EVARISTO CARIO, LT. COL. REX D. PIAD, T/SGT. CONRADO
DE TORRES, S/SGT. ARNOLD DURIAN, and Commanding
Officer, PC-INP Detention Center, Camp Crame, Quezon
City, respondents.
G.R. No. 83162 October 3, 1991

EN BANC

G.R. No. 81567 October 3, 1991

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

IN THE MATTER OF THE APPLICATION FOR HABEAS

CORPUS OF VICKY A. OCAYA AND DANNY RIVERA:
VIRGILIO A. OCAYA, petitioners,
vs.
BRIG. GEN. ALEXANDER AGUIRRE, COL. HERCULES
CATALUNA, COL. NESTOR MARIANO, respondents.
G.R. No. 85727 October 3, 1991
IN THE MATTER OF APPLICATION FOR HABEAS
CORPUS OF DEOGRACIAS ESPIRITU, petitioner,
vs.
BRIG. GEN.ALFREDO S. LIM, COL. RICARDO
REYES, respondents.

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

G.R. No. 86332 October 3, 1991

AMELIA ROQUE and WILFREDO BUENAOBRA, petitioners,

vs.
GEN. RENATO DE VILLA and GEN, RAMON
MONTANO, respondents.

IN THE MATTER OF THE PETITION FOR HABEAS CORPUS

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

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

IN THE MATTER OF THE PETITION FOR HABEAS
CORPUS OF ATTY. DOMINGO T. ANONUEVO and RAMON

60
Efren H. Mercado for petitioners in G.R. No. 81567 and G. R. No.
83162.
Ricardo C. Valmonte for petitioners in G.R. Nos. 84581-82
Josefina G. Campbell-Castillo for petitioners in G.R. Nos. 8458384.
Potenciano A. Flores, Jr. for petitioner in G.R. No. 85727.
The Solicitor General for the respondents.
RESOLUTION

PER CURIAM:p
Before the Court are separate motions filed by the petitioners in
the above-entitled petitions, seeking reconsideration of the
Court's decision promulgated on 9 July 1990 (the decision, for
brevity) which dismissed the petitions, with the following
dispositive part:
WHEREFORE, the petitions are hereby
DISMISSED, except that in G.R. No.
85727 (Espiritu vs. Lim), the bail bond for
petitioner's provisional liberty is hereby ordered
reduced from P60,000.00 to P10,000.00. No
costs.
The Court avails of this opportunity to clarify its ruling a begins
with the statement that the decision did not rule as many
misunderstood it to do that mere suspicion that one is
Communist Party or New People's Army member is a valid
ground for his arrest without warrant. Moreover, the decision
merely applied long existing laws to the factual situations

obtaining in the several petitions. Among these laws are th

outlawing the Communist Party of the Philippines (CPP) similar
organizations and penalizing membership therein be dealt with
shortly). It is elementary, in this connection, if these laws no
longer reflect the thinking or sentiment of the people, it is
Congress as the elected representative of the people not the
Court that should repeal, change or modify them.
In their separate motions for reconsideration, petitioners, in sum,
maintain:
1. That the assailed decision, in upholding the
validity of the questioned arrests made without
warrant, and in relying on the provisions of the
Rules of Court, particularly Section 5 of Rule 113
(Arrest), disregards the fact that such arrests
violated the constitutional rights of the persons
arrested;
2. That the doctrine laid down in Garcia
vs. Enrile 1 and Ilagan vs. Enrile 2 should be abandoned;
3. That the decision erred in considering the
admissions made by the persons arrested as to
their membership in the Communist Party of the
Philippines/New People's Army, and their
ownership of the unlicensed firearms,
ammunitions and subversive documents found in
their possession at the time of arrest, inasmuch as
those confessions do not comply with the
requirements on admissibility of extrajudicial
admissions;
4. That the assailed decision is based on a
misappreciation of facts;

61
5. That G.R. No. 81567 (the Umil case) should not
be deemed moot and academic.
We find no merit in the motions for reconsideration.
It can not be overlooked that these are petitions for the issuance
of the writ of habeas corpus, filed by petitioners under the Rules
of Court. 3 The writ of habeas corpus exists as a speedy and effective remedy to relieve
persons from unlawful restraint. 4 Therefore, the function of the special proceedings
of habeas corpus is to inquire into the legality of one's detention, 5 so that if detention is
illegal, the detainee may be ordered forthwit released.

In the petitions at bar, to ascertain whether the detention

petitioners was illegal or not, the Court before rendering decision
dated 9 July 1990, looked into whether their questioned arrests
without warrant were made in accordance with law. For, if the
arrests were made in accordance with law, would follow that the
detention resulting from such arrests also in accordance with law.
There can be no dispute that, as a general rule, no peace officer
or person has the power or authority to arrest anyo without a
warrant of arrest, except in those cases express authorized by
law. 6 The law expressly allowing arrests witho warrant is found in Section 5, Rule 113 of
the Rules of Court which states the grounds upon which a valid arrest, without warrant, can
be conducted.

In the present cases, the focus is understandably on Section 5,

paragraphs (a) and (b) of the said Rule 113, which read:
Sec. 5. Arrest without warrant; when lawful. A
peace officer or a private person may, without a
warrant, arrest a person:
(a) When, in his presence, the person to he
arrested has committed, is actually committing, or
is attempting to commit an offense;

(b) When an offense has in fact just been

committed, and he has personal knowledge of
facts indicating that the person to be arrest has
committed it; and
. . . (Emphasis supplied).
The Court's decision of 9 July 1990 rules that the arrest Rolando
Dural (G.R. No. 81567) without warrant is justified it can be said
that, within the contemplation of Section 5 Rule 113, he (Dural)
was committing an offense, when arrested because Dural was
arrested for being a member of the New People's Army, an
outlawed organization, where membership penalized, 7 and for
subversion which, like rebellion is, under the doctrine of Garcia vs. Enrile, 8 a continuing
offense, thus:

The crimes of insurrection or rebellion,

subversion, conspiracy or proposal to commit
such crimes, and other crimes and offenses
committed in the furtherance (sic) on the occasion
thereof, or incident thereto, or in connection
therewith under Presidential Proclamation No.
2045, are all in the nature of continuing offenses
which set them apart from the common offenses,
aside from their essentially involving a massive
conspiracy of nationwide magnitude. . . .
Given the ideological content of membership in the CPP/NPA
which includes armed struggle for the overthrow of organized
government, Dural did not cease to be, or became less of a
subversive, FOR PURPOSES OF ARREST, simply because he
was, at the time of arrest, confined in the St. Agnes Hospital.
Dural was identified as one of several persons who the day
before his arrest, without warrant, at the St. Agnes Hospital, had
shot two (2) CAPCOM policemen in their patrol car. That Dural
had shot the two (2) policemen in Caloocan City as part of his
mission as a "sparrow" (NPA member) did not end there and then.
Dural, given another opportunity, would have shot or would shoot

62
other policemen anywhere as agents or representatives of
organized government. It is in this sense that subversion like
rebellion (or insurrection) is perceived here as a continuing
offense. Unlike other so-called "common" offenses, i.e. adultery,
murder, arson, etc., which generally end upon their commission,
subversion and rebellion are anchored on an ideological
base which compels the repetition of the same acts of
lawlessness and violence until the overriding objective of
overthrowing organized government is attained.
Nor can it be said that Dural's arrest was grounded on mere
suspicion by the arresting officers of his membership in the
CPP/NPA. His arrest was based on "probable cause," as
supported by actual facts that will be shown hereafter.
Viewed from another but related perspective, it may also be said,
under the facts of the Umil case, that the arrest of Dural falls
under Section 5, paragraph (b), Rule 113 of the Rules of Court,
which requires two (2) conditions for a valid arrestt without
warrant: first, that the person to be arrested has just committed
an offense, and second, that the arresting peace officer or private
person has personal knowledge of facts indicating that the person
to be arrested is the one who committed the offense. Section
5(b), Rule 113, it will be noted, refers to arrests without warrant,
based on "personal knowledge of facts" acquired by the arresting
officer or private person.
It has been ruled that "personal knowledge of facts," in arrests
without warrant must be based upon probable cause, which
means an actual belief or reasonable grounds of suspicion 9

The grounds of suspicion are reasonable when, in the absence of

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

These requisites were complied with in the Umil case and in the
other cases at bar.
In G.R. No. 81567 (Umil case), military agents, on 1 February
1988, were dispatched to the St. Agnes Hospital, Roosevelt
Avenue, Quezon City, to verify a confidential information which
was received by their office, about a "sparrow man" (NPA
member) who had been admitted to the said hospital with a
gunshot wound; that the information further disclosed that the
wounded man in the said hospital was among the five (5) male
"sparrows" who murdered two (2) Capcom mobile patrols the day
before, or on 31 January 1988 at about 12:00 o'clock noon,
before a road hump along Macanining St., Bagong Barrio,
Caloocan City; that based on the same information, the wounded
man's name was listed by the hospital management as "Ronnie
Javellon," twenty-two (22) years old of Block 10, Lot 4, South City
Homes, Bian, Laguna. 12
Said confidential information received by the arresting officers, to
the effect that an NPA member ("sparrow unit") was being treated
for a gunshot wound in the named hospital, is deemed
reasonable and with cause as it was based on actual facts and
supported by circumstances sufficient to engender a belief that an
NPA member was truly in the said hospital. The actual facts
supported by circumstances are: first the day before, or on 31
January 1988, two (2) CAPCOM soldiers were actually killed in
Bagong Bario, Caloocan City by five (5) "sparrows" including
Dural; second a wounded person listed in the hospital records
as "Ronnie Javellon" was actually then being treated in St. Agnes

63
Hospital for a gunshot wound; third as the records of this case
disclosed later, "Ronnie Javellon" and his address entered in the
hospital records were fictitious and the wounded man was in
reality Rolando Dural.
In fine, the confidential information received by the arresting
officers merited their immediate attention and action and, in fact, it
was found to be true. Even the petitioners in their motion for
reconsideration, 13 believe that the confidential information of the arresting officers to
the effect that Dural was then being treated in St. Agnes Hospital was actually received from
the attending doctor and hospital management in compliance with the directives of the
law, 14 and, therefore, came from reliable sources.

As to the condition that "probable cause" must also be coupled

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

Parenthetically, it should be mentioned here that a few day after

Dural's arrest, without warrant, an information charging double
murder with assault against agents of persons in authority was
filed against Dural in the Regional Trial Court of Caloocan City
(Criminal Case No. C-30112). He was thus promptly placed under
judicial custody (as distinguished fro custody of the arresting
officers). On 31 August 1988, he wa convicted of the crime
charged and sentenced to reclusion perpetua. The judgment of
conviction is now on appeal before this Court in G.R. No. 84921.
As to Amelia Roque and Wilfredo Buenaobra (G.R. Nos. 8458182), Domingo Anonuevo and Ramon Casiple (G.R. Nos. 8458384) and Vicky Ocaya (G.R. No. 83162), their arrests, without
warrant, are also justified. They were searched pursuant to
search warrants issued by a court of law and were found wit
unlicensed firearms, explosives and/or ammunition in their

persons. They were, therefore, caught in flagrante delicto which

justified their outright arrests without warrant, under Sec 5(a),
Rule 113, Rules of Court. Parenthetically, it should be mentioned
here that a few davs after their arrests without warrant,
informations were filed in court against said petitioners, thereby
placing them within judicial custody and disposition. Furthermore,
Buenaobra mooted his own petition fo habeas corpus by
announcing to this Court during the hearing of these petitions that
he had chosen to remain in detention in the custody of the
authorities.
More specifically, the antecedent facts in the "in flagrante" cases
are:
1. On 27 June 1988, the military agents received
information imparted by a former NPA about the
operations of the CPP and NPA in Metro Manila
and that a certain house occupied by one Renato
Constantine, located in the Villaluz Compound,
Molave St., Marikina Heights, Marikina, Metro
Manila was being used as their safehouse; that in
view of this information, the said house was
placed under military surveillance and on 12
August 1988, pursuant to a search warrant duly
issued by court, a search of the house was
conducted; that when Renato Constantine was
then confronted he could not produce any permit
to possess the firearms, ammunitions, radio and
other communications equipment, and he
admitted that he was a ranking member of the
CPP. 16
2. In the case of Wilfredo Buenaobra, he arrived at the house of
Renato Constantino in the evening of 12 August 1988, and admitted
that he was an NPA courier and he had with him letters to Renato
Constantine and other members of the rebel group.

3. On the other hand, the arrest of Amelia

Roque was a consequence of the arrest of

64
Buenaobra who had in his possession papers
leading to the whereabouts of Roque; 17 that, at the
time of her arrest, the military agents found subversive documents and
live ammunitions, and she admitted then that the documents belonged
to her. 18
4. As regards Domingo Anonuevo and Ramon Casiple they were
arrested without warrant on 13 August 1988, when they arrived at the
said house of Renato Constantine in the evening of said date; that
when the agents frisked them, subversive documents, and loaded
guns were found in the latter's possession but failing to show a permit
to possess them. 19
5. With regard to Vicky Ocaya, she was arrested, without warrant
when she arrived (on 12 May 1988) at the premises ofthe house of
one Benito Tiamzon who was believed to be the head of the
CPP/NPA, and whose house was subject of a search warrant duly
issued by the court. At the time of her arrest without warrant the
agents of the PC-Intelligence and Investigation found ammunitions
and subversive documents in the car of Ocaya. 20

It is to be noted in the above cases (Roque, Buenaobra,

Anonuevo, Casiple and Ocaya) that the reason which compelled
the military agents to make the arrests without warrant was the
information given to the military authorities that two (2)
safehouses (one occupied by Renato Constantine and the other
by Benito Tiamzon) were being used by the CPP/NPA for their
operations, with information as to their exact location and the
names of Renato Constantine and Benito Tiamzon as residents
or occupants thereof.
And at the time of the actual arrests, the following circumstances
surrounded said arrests (of Roque, Buenaobra, Anonuevo and
Casiple), which confirmed the belief of the military agents that the
information they had received was true and the persons to be
arrested were probably guilty of the commission of certain
crimes: first: search warrant was duly issued to effect the search
of the Constantine safehouse; second: found in the safehouse
was a person named Renato Constantine, who admitted that he
was a ranking member of the CPP, and found in his possession
were unlicensed firearms and communications equipment; third:
at the time of their arrests, in their possession were unlicensed

firearms, ammunitions and/or subversive documents, and they

admitted ownership thereof as well as their membership in the
CPP/NPA. And then, shortly after their arrests, they were
positively identified by their former comrades in the organization
as CPP/NPA members. In view of these circumstances, the
corresponding informations were filed in court against said
arrested persons. The records also show that, as in the case of
Dural, the arrests without warrant made by the military agents in
the Constantino safehouse and later in the Amelia Roque house,
do not appear to have been ill-motivated or irregularly performed.
With all these facts and circumstances existing before, during and
after the arrest of the afore-named persons (Dural, Buenaobra,
Roque, Anonuevo, Casiple and Ocaya), no prudent an can say
that it would have been better for the military agents not to have
acted at all and made any arrest. That would have been an
unpardonable neglect of official duty and a cause for disciplinary
action against the peace officers involved.
For, one of the duties of law enforcers is to arrest lawbreakers in
order to place them in the hands of executive and judicial
authorities upon whom devolves the duty to investigate the acts
constituting the alleged violation of law and to prosecute and
secure the punishment therefor. 21 An arrest is therefore in the nature of an
administrative measure. The power to arrest without warrant is without limitation as long
as the requirements of Section 5, Rule 113 are met. This rule is founded on an
overwhelming public interest in peace and order in our communities.

In ascertaining whether the arrest without warrant is conducted in

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

The courts should not expect of law-enforcers more than what the
law requires of them. Under the conditions set forth in Section 5,
Rule 113, particularly paragraph (b) thereof, even if the arrested

65
persons are later found to be innocent and acquitted, the
arresting officers are not liable. 24 But if they do not strictly comply with the said
conditions, the arresting officers can be held liable for the crime of arbitrary detention, 25 for
damages under Article 32 of the Civil Code 26 and/or for other administrative sanctions.

In G.R. No. 85727, Espiritu, on 23 November 1988, was arrested

without warrant, on the basis of the attestation of certain
witnesses: that about 5:00 o'clock in the afternoon of 22
November 1988, at the corner of Magsaysay Boulevard and
Velencia St., Sta. Mesa, Manila, Espiritu spoke at a gathering of
drivers and sympathizers, where he said, among other things:
Bukas tuloy ang welga natin . . . hanggang sa
magkagulona. 27 (Emphasis supplied)
and that the police authorities were present during the press
conference held at the National Press Club (NPC) on 22
November 1988 where Espiritu called for a nationwide strike (of
jeepney and bus drivers) on 23 November 1988.28 Espiritu was arrested
without warrant, not for subversion or any "continuing offense," but for uttering the abovequoted language which, in the perception of the arresting officers, was inciting to sedition.

Many persons may differ as to the validity of such perception and

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

officers did not appear. Because of this development, the defense

asked the court a quo at the resumption of the hearings to
dismiss the case. Case against Espiritu (Criminal Case No. 8868385) has been provisionally dismissed and his bail bond
cancelled.
In G.R. No. 86332 (Nazareno), the records show that in the
morning of 14 December 1988, Romulo Bunye II was killed by a
group of men in Alabang, Muntinlupa, Metro Manila; that at about
5:00 o'clock in the morning of 28 December 1988, Ramil Regala,
one of the suspects in the said killing, was arrested and he
pointed to Narciso Nazareno as one of his companions during the
killing of Bunye II; that at 7:20 of the same morning (28 December
1988), the police agents arrested Nazareno, without warrant, for
investigation. 29
Although the killing of Bunye II occurred on 14 December 1988,
while Nazareno's arrest without warrant was made only on 28
December 1988, or 14 days later, the arrest fans under Section
5(b) of Rule 113, since it was only on 28 December 1988 that the
police authorities came to know that Nazareno was probably one
of those guilty in the killing of Bunye II and the arrest had to be
made promptly, even without warrant, (after the police were
alerted) and despite the lapse of fourteen (14) days to prevent
possible flight.
As shown in the decision under consideration, this Court, in
upholding the arrest without warrant of Nazareno noted several
facts and events surrounding his arrest and detention, as follows:
. . . on 3 January 1989 (or six (6) days after his
arrest without warrant), an information charging
Narciso Nazareno, Ramil Regala and two (2)
others, with the killing of Romulo Bunye II was
filed wit the Regional Trial Court of Makati, Metro
Manila. The case is dock eted therein as Criminal
Case No. 731.

66
On 7 January 1989, Narciso Nazareno filed a
motion to post bail but the motion was denied by
the trial court in an order dated 10 January 1989,
even as the motion to post bail, earlier filed by his
co-accused, Manuel Laureaga, was granted by
the same trial court.
On 13 January 1989, a petition for habeas
corpus was filed with this Court on behalf of
Narciso Nazareno and on 13 January 1989, the
Court issued the writ of habeas corpus, retumable
to the Presiding Judge of the Regional Trial Court
of Bifian, Laguna, Branch 24, ordering said court
to hear the case on 30 January 1989 and
thereafter resolve the petition.
At the conclusion of the hearing, or on 1 February
1989, the Presiding Judge of the Regional Trial
Court of Bian, Laguna issued a resolution
denying the petition for habeas corpus, it
appearing that the said Narciso Nazareno is in the
custody of the respondents by reason of an
information filed against him with the Regional
Trial Court of Makati, Metro Manila which liad
taken cognizance of said case and had, in fact,
denied the motion for bail filed by said Narciso
Nazareno (presumably because of the strength of
the evidence against him).
This Court reiterates that shortly after the arrests
of Espiritu and Nazareno, the corresponding informations against
them were filed in court. The arrests of Espiritu and Nazareno
were based on probable cause and supported by factual
circumstances. They complied with conditions set forth in Section
5(b) of Rule 113. They were not arbitrary or whimsical arrests.
Parenthetically, it should be here stated that Nazareno has since
been convicted by the court a quo for murder and sentenced

to reclusion perpetua. He has appealed the judgment of

conviction to the Court of Appeals where it is pending as of this
date ( CA-G.R. No. still undocketed).
Petitioners contend that the decision of 9 July 1990 ignored the
contitution requisiteds for admissibility of an extrajudicial
admission.
In the case of Buenaobra (G.R. Nos. 84581-82), he
admitted 30 that he was an NPA courier. On the other hand, in the case of Amelia
Roque, she admitted 31 that the unlicensed firearms, ammunition and subversive
documents found in her possession during her arrest, belonged to her.

The Court, it is true, took into account the admissions of the

arrested persons of their membership in the CPP/NPA, as well as
their ownership of the unlicensed firearms, ammunitions and
documents in their possession. But again, these admissions, as
revealed by the records, strengthen the Court's perception that
truly the grounds upon which the arresting officers based their
arrests without warrant, are supported by probable cause, i.e. that
the persons arrested were probably guilty of the commission of
certain offenses, in compliance with Section 5, Rule 113 of the
Rules of Court. To note these admissions, on the other hand, is
not to rule that the persons arrested are already guilty of the
offenses upon which their warrantless arrests were predicated.
The task of determining the guilt or innocence of persons arrested
without warrant is not proper in a petition for habeas corpus. It
pertains to the trial of the case on the merits.
As to the argument that the doctrines in Garcia vs. Enrile,
and Ilagan vs. Enrile should be abandoned, this Court finds no
compelling reason at this time to disturb the same, particularly ln
the light of prevailing conditions where national security and
liability are still directly challenged perhaps with greater vigor from
the communist rebels. What is important is that everv arrest
without warrant be tested as to its legality via habeas
corpus proceeding. This Court. will promptly look into and all
other appropriate courts are enjoined to do the same the

67
legality of the arrest without warrant so that if the conditions under
Sec. 5 of Rule 113, Rules of Court, as elucidated in this
Resolution, are not met, then the detainee shall forthwith be
ordered released; but if such conditions are met, then the
detainee shall not be made to languish in his detention but must
be promptly tried to the end that he may be either acquitted or
convicted, with the least delay, as warranted by the evidence.
A Final Word
This Resolution ends as it began, reiterating that mere suspicion
of being a Communist Party member or a subversive
is absolutely not a ground for the arrest without warrant of the
suspect. The Court predicated the validity of the questioned
arrests without warrant in these petitions, not on mere
unsubstantiated suspicion, but on compliance with the conditions
set forth in Section 5, Rule 113, Rules of Court, a long existing
law, and which, for stress, are probable cause and good faith of
the arresting peace officers, and, further, on the basis of, as the
records show, the actual facts and circumstances supporting the
arrests. More than the allure of popularity or palatability to some
groups, what is important is that the Court be right.
ACCORDINGLY, the motions for reconsideration of the decision
dated 9 July 1990, are DENIED. This denial is FINAL.
SO ORDERED.
Narvasa, Melencio-Herrera, Paras, Padilla, Bidin, Grio-Aquino,
Medialdea and Davide, Jr., JJ., concur.

Separate Opinions

FERNAN, C.J., concurring and dissenting:

After a deep and thorough reexamination of the decision of Julv
9, 1990 and an exhaustive evaluation of the motions for
reconsideration of the said decision, I am inclined to agree with
the, majority's resolution on said motions for reconsideration
except for the legality of the warrantless arrests of petitioner
Deogracias Espiritu for the crime of inciting to sedition and
petitioner Alfredo Nazareno for the crime of murder.
In the words of the resolution, Espiritu "was arrested without
warrant, not for subversion or any 'continuing offense,' but for
uttering" the following: "Bukas tuloy ang welga natin . . .
hanggang sa magkagulo na." Apparently, such statement was, in
the perception of the arresting officers, inciting to sedition. While
not conceding the validity of such perception, realizing that it is
indeed possible that Espiritu was merely exercising his right to
free speech, the resolution nonetheless supports the authority of
peace officers "only for purposes of the arrest."
I find this position to be adverse to the very essence of the
resolution which sanctions warrantless arrests provided they are
made in accordance with law. In the first place, Espiritu mav not
be considered as having "just committed" the crime charged. He
allegedly first uttered seditious remarks at the National Press
Club in the afternoon of November 12, 1988. The second
allegedly seditious remark aforequoted was made at around 5:00
o'clock in the same afternoon (Decision, pp. 23-24). Under these
circumstances, the law enforcement agents had time, short
though it might seem, to secure a warrant for his arrest. Espiritu's
apprehension may not therefore be considered as covered by
Section 5(b) of Rule 113 which allows warrantless arrests "when
an offense has in fact just been committed."

68
The same observation applies with greater force in the case of
Nazareno who was arrested 14 days after the commission of the
crime imputed to him.
Secondly, warrantless arrests may not be allowed if the arresting
officer are not sure what particular provision of law had beeri
violated by the person arrested. True it is that law en.orcement
agents and even prosecutors are not all adept at the However,
errneous perception, not to mention ineptitude among their ranks,
especially if it would result in the violation of any right of a person,
may not be tolerated. That the arrested person has the "right to
insist during the pre-trial or trial on the merits" (Resolution., p. 18)
that he was exercising a right which the arresting officer
considered as contrary to law, is beside the point. No person
should be subjected to the ordeal of a trial just because the law
enforcers wrongly perceived his action.
Thirdly, inciting to sedition is not a continuous crime for which the
offender may be arrested without a warrant duly issued by the
proper authority. By its nature, a single act of urging others to
commit any of the acts enumerated in Article 142 of the Revised
Penal Code may suffice to hold anyone liable for inciting to
sedition. While the crime is aimed at anarchy and radicalism and
presents largely a question of policy (Espuelas vs. People, 90
Phil, 524 [1951]), it should be remembered that any of the
prohibited acts in Article 142 may infringe upon the fundamental
freedoms of speech and expression. There arises, therefore, the
necessity of balancing interests; those of the State as against
those of its individual citizen. Here lies the urgency of judicial
intervention before an arrest is made. Added to this is the
subjectivity of the determination of what may incite other people
to sedition. Hence, while the police should act swiftly when a
seditious statement has been uttered in view of the jeopardy it
may cause the government, speedy action should consist not in
warrantless arrests but in securing warrants for such arrests.
On the legality of warrantless arrests of violators of the AntiSubversion Law, it should be underscored that anyone who

undertakes such arrest must see to it that the alleged violator

is knowing member of a subversive organization as distinguished
from a nominal one (People vs. Ferrer, L-32613-14, December
27, 1972, 48 SCRA 382). Thus, a subversive may be arrested
even if has not committed overt act of overthrowing the
government such as bombing of government offices trie
assassination of government officials provided there is probable
cause to believe that he is in the roll of members of a subversive
organization. It devolves upon the accused to prove membership
by force or ciorcion. Certainly, one may not be in such a roll
without undergoing the concious act of enlistment.
It bears repeating theat warrantless arrests are governed by law
and subject to stringent application. Section 5, Rule 113 of the
Rules on Criminal Procedure now requires that an offense "has in
fact just been committed. "connotes immediacy in point of time
and excludes cases under the old rule where an offense 'has in
fact been committed' no how long ago. Similarly, the arrestor
must have 'personal knowledge of the facts indicating that the
[arrestee] has committed it' (instead of just 'reasonable ground
believe that the [arrestee] has committed it' under the old rule)."
(Dissenting opinion in Ilagan vs. Enrile, G.R. No. 70748, October
21, 1985, 139 SCRA 349, 408).
I deem it aptherein to recall other Court rulings provide guidelines
in effecting arrests without warrants. In People vs.Burgos (G.R.
No. 68955, September 4, 1986,144 SCRA 1), the Court
considered as illegal the warrantless arrest of a
subversive not based on the arresting officer's personal
knowledge such subversion and held that any rule on arrests
witho warrants must be strictly construed. We categorically state
therein that warrantless arrests should "clearly fall within the
situations when securing a warrant be absurd or is manifestly
unnecessary was provided by the Rules" (144 SCRA at 14).
Moreover. "it is not enough that there is reasonable ground to
believe that the person to be arrested has committed a crime. A
crime must in fact or actually (has just) been committed first. That
crime has actually been committed is an essential precondition. It

69
is not enough to suspect that a crime may have been committed.
The fact of the commission of the offense must be undisputed.
The test of reasonable ground applies only to the identity of the
perpetrator. (Supra, at p. 15).
Earlier, in Morales, Jr. vs. Enrile (G.R. No. 61016, April 26, 1983,
121 SCRA 538), the Court laid out the procedure to be observed
the moment a person is arrested:
At the time a person is arrested, it shall be the
duty of the arresting officer to imform him of the
reason for the arrest and he must be shown the
warrant of arrest, if any. He shall be informed of
his constitutional rights to remain silent and to
counsel, and that any statement he might make
could be used against him. The person shall have
the right to communicate with his lawyer, a
relative, or anyone he chooses by the most
expedient means by telephone if possible or
by letter or messenger. It shall be the
responsibility of the arresting officer to see to it
that this is accomplished. No custodial
investigation shall be conducted unless it be in the
presence of counsel engaged by the person
arressted, by any person on his behalf, or
appointed by the court upon petition on his behalf,
or appointed the court upon the petition either of
the detainee himself or by anyone on his behalf.
The right to counsel may be waived but the waiver
shall not be valid unless made with the assistance
of counsel. Any statement obtained in violation of
the procedure herein laid down, whether
exculpatory or inculpatory, in whole or in part shall
be inadmissible evidence. (121 SCRA at 554).
These judicial pronouncements must be observed by everyone
concerned: the military and civilian components of the
government tasked with law enforcement as well as the ordinary

citizen who faces a situation wherein civic duty demands his

intervention to preserve peace in the community.
I am not unmindful of the fact that abuses occur in arrests
especially of offenders of crimes with a political or ideological
element. Such abuses are more often than not, triggered by the
difficulty in finding evidence that could stand judicial scrutiny to
pinpoint a subversive, police officers usually have to make long
persistent surveillance. However, for the orderly administration of
government and the maintenance of peace and order in the
country, good faith should be reposed on the officials
implementing the law. After all, we are not wanting in laws to hold
any offending peace officer liable both administratively and
criminally for abuses in the performance of their duties. Victims of
abuses should resort to legal remedies to redress their
grievances.
If existing laws are inadequate, the policy-determining branches
of the government may be exhorted peacefully by the citizenry to
effect positive changes. This Court, mandated b the Constitution
to uphold the law, can only go as far as inter pruting existing laws
and the spirit behind them. Otherwise, we hail be entering the
dangerous ground of judicial legislation.
GUTIERREZ, JR., J., concurring and dissenting:
The philosophy adopted in our Constitution is that liberty is an
essential condition for order, It is disturbing whenever the Court
leans in the direction of order instead of liberty in har cases
coming before us.
People all over the world are fast accepting the theory that only
as a society encourages freedom and permits dissent can it have
lasting security and real progress, the theory that enhancing order
through constraints on freedom is deceptive because restrictions
on liberty corrode the very values Govenment pretends to

70
promote. I believe we should move with the people of the world
who are fast liberating themselves.
I, therefore, vote for the strict application of Section 5 (a) and (b)
of Rule 113 on arrests without warrant, to wit:
Sec. 5. Arrest without warrant; when lawful. A
peace officer or a private person may, without a
warrant, arrest a person:
(a) When, in his presence, the person to be
arrested has committed, is actually committing, or
is attempting to commit an offense;
(b) When an offense has in fact just been
committed, and he has personal knowledge of
facts indicating that the person to be arrested has
committed it.
xxx xxx xxx
Only in the cases found in the Rule should we allow arrests
without warrants. In case of doubt, the tendency should be to
declare the warrantless arrest illegal.
Insofar as G.R. Nos, 84581-82, G.R. Nos. 84583-84 and G.R. No.
83162 involving Amelia Roque, Wilfredo Buenaobra, Domingo
Anonuevo, Ramon Casiple, and Vicky Ocaya are concerned, the
petitioners were arrested after having been apprehended while
in possession of illegal firearms and ammunitions. They were
actually committing a crime when arrested. I concur in the denial
of their motions for reconsideration.
I vote to grant the motion for reconsideration in G.R. No. 85727
where Deogracias Espiritu was arrested while urging jeepnev and
bus drivers to join a strike of transport workers on the ground that
that was inciting to sedition.

This impresses me as Court validation of a clear infringement of

an individual's freedom of speech. "Inciting to sedition" is a term
over which the most learned writers and jurists will differ when
applied to actual cases. I doubt if there are more than a handful of
policemen in the whole country who would know the full
dimensions of the fine distinctions which separate the nation's
interest in the liberty to fully anfd freely discuss matters of
national importance on one hand and the application of the clear
and present danger rule as the test when claims of national
security and public safety are asserted, on the other. In fact, the
percentage of knowledgeability would go down further if we
consider that "inciting to sedition" requires the ability to define,
among other (1) what kinds of speeches or writings fall lander the
term "inciting" (2) the meaning of rising publicly and tumultously;
(3,) when does a certain effort amount to force, intimidation.
or illegal method; (4) what constitute the five objects or ends of
sedition; and (5) what is a scurrilous libel against the Philippines.
If we allow public speakers to be picked up simply because what
they say is irritating or obnoxious to the ears of a peace officer or
critical of government policy and action, we will undermine all
pronouncements of this Court on the need to protect that matrix
of all freedoms, which is freedom of expression. At the very least,
a warrant of arrest after a preliminary examination by a Judge is
essential in this type of offense.
Insofar as G.R. No. 81567 is concemed, I join the other
dissenting Justices in their observations regarding "continuing
oftenses." To base warrantless arrests on the doctrine of
continuing offense is to give a license for the illegal detention of
persons on pure suspicion. Rebellion, insurrection, or sedition are
political offenses where the line between overt acts and simple
advocacy or adherence to a belief is extremely thin. If a court has
convicted an accused of rebellion and he is found roaming
around, he may be arrested. But until a person is proved guilty, I
fail to see how anybody can jump to a personal conclusion that
the suspect is indeed a rebel and must be picked up on sight
whenever seen. The grant of authority in the majority opinion is
too broad. If warrantless searches are to be validated, it should

71
be Congress and not this Court which should draw strict and
narrow standards. Otherwise, the non-rebels who are critical,
noisy, or obnoxious will be indiscriminately lumped up with those
actually taking up arms against the Government.
The belief of law enforcement authorities, no matter how well
grounded on past events, that the petitioner would probably shoot
other policemen whom he may meet does not validate
warrantless arrests. I cannot understand why the authorities
preferred to bide their time, await the petitioner's surfacing from
underground, and pounce on him with no legal authority instead
of securing warrants of arrest for his apprehension. The
subsequent conviction of a person arrested illegally does not the
warrantless arrest.
In G.R. No. 86332, Romulo Bunye was killed on December 14,
1988. The information that Narciso Nazareno was one of the
killers came to the attention of peace officers only on December
28, 1988 or fourteen (14) days later. To say that the offense "has
in fact just been committed" even if 14 days have lapsed is to
stretch Rule 11 3 on warrantless arrests into ridiculous limits. A
warrant of arrest is essential in this case. I vote to grant the
motion for reconsideration.
The subsequent conviction of a person arrested illegally does not
reach back into the past and render legal what was illegal. The
violation of the constitutional right against illegal seizures is not
cured by the fact that the arrested person is indeed guilty of the
offense for which he was seized. A government of laws must
abide by its own Constitution.
CONSIDERING THE FOREGOING, I VOTE TO:
(1) DENY the motions for reconsideration in G.R. Nos. 84581-82;
G.R. No. 84583-84; and G.R. No. 83162;
(2) GRANT the motion for reconsideration in G.R. No. 85727;

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

(4) GRANT the motion for reconsideration in G.R. No. 81567.
CRUZ, J., Separate Opinion:
I reiterate my concurrence with the ponencia insofar as it
dismissed the petitions of those who were arrested inflagrante, or
subsequently posted bail or chose to remain in the custody of the
military, or voluntarily permitted the search of the house without
warrant. I do not think that under the applicable circumstances
the petitioners can validly complain that they are being unlawfully
detained.
But I must again express may dissent to the continued
observance of Garcia-Padilla vs. Enrile, 121 SCRA 472, to justify
the warrantless arrest and detention of the other petitioners on
the ground that they were apprehended for the continuing
offenses of rebellion and other allied crimes.
We find in the said decision this partltularly disturbing
observation, which was quoted with approval in the
originalponencia:
The arrest of persons involved in the rebellion,
whether as its fighting armed elements, or for
committing non-violent acts but in furtherance of
the rebellion, is more an act of capturing them in
the course of an armed conflict, to quell the
rebellion, than for the purpose of immediately
prosecuting them in court for a statutory offense.
The arrest, therefore, need not follow the usual
procedure in the prosecution of offenses which
requires the determination by a judge of the
existence of probable cause before the issuance
of arrest and the granting of bail of the offense is
bailable. Obviously, the absence of a judicial

72
warrant is no legal impediment to arresting or
capturing persons committing overt acts of
violence against govenment forces, or any other
milder acts but equally in pursuance of the
rebellious movement. (Emphasis supplied.)
The treatment suggested envisions an actual state of war and is
justified only when a recognition of beuigerency is accorded by
the legitimate government to the rebels, resulting in the
application of the laws of war in the regulation of their relations.
The rebels are then considered alien enemies-to be treated as
prisoners of war when captured-and cannot invoke the municipal
law of the legitimate government they have disowned. It is in such
a situation that the processes of the local courts are not observed
and the rebels cannot demand the protection of the Bill of Rights
that they are deemed to have renounced by their defiance of the
government.
But as long as that recognition has not yet been extended, the
legitimate govenment must treat the rebels as its citizens, subject
to its municipal law and entitled to all the rights provided
thereunder, including and especially those guaranteed by the
Constitution. Principal among these in our country are
whose embodied in the Bill of Rights, particularly those
guaranteeing due process, prohibiting unreasonable searches
and seizures, allowing bail, and presuming the innocence of the
accused. The legitimate government cannot excuse the
suppression of these rights by the "exigencies" of an armed
conflict that at this time remains an intemal matter governed
exclusively by the laws of the Republic of the Philippines.
Treatment of the rebels as if they were foreign invaders or
combatants is not justified in the present situation as our
government continues to prosecute them as violators of our own
laws. Under the doctrine announced in Garcia-Padilla, however,
all persons suspected as rebels are by such suspicion alone
made subject to summary arrest no different from the
unceremonious capture of an enemy soldier in the course of a

battle. The decision itself says that the arrest "need not follow the
usual procedure in the prosecution of offenses" and "the absence
of a judicial warrant is no impediment" as long as the person
arrested is suspected by the authorities of the "continuing
offense" of subversion or rebellion or other related crimes.
International law is thus substituted for municipal law in regulating
the relations of the Republic with its own citizens in a purely
domestic matter.
As for the duration of the offenses, the decision contained the
following pronouncement which this Court has also adopted as its
own:
. . . The crimes of insurrection or rebellion,
subversion, conspiracy or proposal to commit
such crimes, and other crimes and offenses
committed in the furtherance on the occasion
thereof, or incident thereto, or in connection
therewith under Presidential Proclamation No.
2045, are all in the nature of continuing
offenses which set them apart from the common
offenses, aside front their essentially involving a
massive conspiracy of nationwide manitude.
(Emphasis supplied.)
The beginning of the "continuing offense" may be arbitrarily fixed
by the authorities, usually by simply placing the suspect "under
surveillance," to lay the basis for his eventual apprehension.
Once so placed, he may at any time be arrested without warrant
on the specious pretext that he is in the process of committing the
"continuing offense," no matter that what he may be actuallly
doing at the time is a perfectly innocent act.
In the case of Dural. the arrest was made while he was engaged
in the passive and innocuous act of undergoing medical
treatment. The fiction was indulged that he was even then, as he
lay supine in his sickbed, engaged in the continuing offense of
rebellion against the State. In further justification, the Court says

73
that the arresting officers acted on "confidential information" that
he was in the hospital, which information "was found to be true."
This is supposed to have validated the determination of the
officers that there was "probable cause" that excused the
absence of a warrant.
My own impression is that probable cause must be established
precisely to justify the issuance of a warrant, not to dispense with
it; moreover, probable cause must be determined by the judge
issuing the warrant, not the arresting officer who says it is not
necessary.
In the case of Espiritu, the arrest was made while he was
actually sleeping, and for allegedly seditious remarks made by
him the day before. The Court says his case is not covered by the
Garcia-Padilla doctrine but approves the arrest just the same
because the remarks were supposed to continue their effects
even to the following day. The offense was considered as having
been just committed (to make it come under Rule 113, Section 5,
of the Rules of Court) despite the considerable time lapse.
It was worse in the case of Nazareno, who was also arrested
without warrant, and no less than fourteen days after the killing. In
sustaining this act, the Court says that it was only on the day of
his arrest that he was identified as one of the probable killers,
thus suggesting that the validity of a warrantless arrest is
reckoned not from the time of the commission of an offense but
from the time of the Identification of the suspect.
Section 5 of Rule 113 says that a peace officer may arrest a
person without a warrant if the latter "has committed, is actually
committing, or is attempting to commit an offense" or when an
offense "has in fact just been committed." The requirement of
immediacy is obvious from the word "just," which, according to
Webster, means "a very short time ago." The arrest must be
made almost immediately or soon after these acts, not at any
time after the suspicion of the arresting officer begins, no matter
how long ago the offense was committed.

I am also uneasy over the following observations in the present

resolution which I hope will not be the start of another dangerous
doctrine:
The Court, it is true, took into account the
admissions of the arrested persons of their
membership in the CPP/NPA, as well as their
ownership of the unlicensed firearms,
ammunitions and documents in their possession.
But again, these admissions, as revealed by the
records, strengthen the Court's perception that
truly the grounds upon wmch the arresting officers
based their arrests without warrant, are supported
by probable cause, i.e., that the persons arrested
were probably guilty of the commission of certain
offenses, in compliance with Section 5, Rule 113
of the Rules of Court.
I can only repeat my own misgivings when I dissented in the
recent case of People vs. Malmstedt, G.R. No. 91107, June 19,
1991, where I noted: "The conclusion that there was probable
cause may have been influenced by the subsequent discovery
that the accused was carrying a prohibited drug. This is supposed
to justify the soldier's suspicion. In other words, it was the fact of
illegal possession that retroactively established the probable
cause that validated the illegal search and seizure. It was the fruit
of the poisonous tree that washed clean the tree itself."
I submit that the affirmation by this Court of the Garcia-Padilla
decision to justify the illegal arrests made in the cases before us
is a step back to that shameful past when individual rights were
wantonly and systematically violated by the Marcos dictatorship.
It seems some of us have short memories of that repressive
regime, but I for one am not one to forget so soon. As the ultimate
defender of the Constitution, this Court should not gloss over the
abuses of those who, out of mistaken zeal, would violate
individual liberty in the dubious name of national security.
Whatever their ideology and even if it be hostile to ours, the

74
petitioners are entitled to the protection of the Bill of Rights, no
more and no less than any other person in this country. That is
what democracy is all about.
FELICIANO, J., concurring and dissenting:
I concur in the result reached by the majority in the Resolution
disposing of the Motion for Reconsideration.
At the same time, however, I feel compelled to dissent from
certain statements made by the majority principally concerning
the applicability of the "continuing crimes" doctrine to the problem
of arrests without warrants. It seems clear that these statements
are really obiter dicta, since they are quite unnecessary for
sustaining the actual results reached in the majority Resolution.
This was summarily pointed out in my very brief statement
concurring in the result reached in the original Decision of the
Court dated 9 July 1990. The subsequent developments in
several of the cases here consolidated, which are carefully
detailed in the majority Resolution, make this even clearer.
Nonetheless, the majority Resolution has taken the time and
trouble expressly to reiterate the "continuing crimes" doctrine as
applicable in respect of warrantless arrests. Although the above
statements are obiter, they have been made and, I believe, need
to be addressed to some extent and the inter-relation of the
"continuing crimes" doctrine with constitutional rights explored.
1. We start at the beginning, that is, the constitutional guarantee
against unreasonable seizures of persons. Article III Section 2 of
the Constitution reads:
Sec. 2. The right of the people to be secure in
their persons, houses, papers, and effects against
unreasonable searches and seizures of whatever
nature and for any purpose shall be inviolable,
and no search warrant or warrant of arrest shall
issue except upon probable cause to be

determined personally by the judge after

examination under oath or affirmation of the
complainant and the witnesses he may produce,
and particularly describing the place to be
searched and the persons or things to be seized.
(Emphais supplied)
Under the above provision, arrests, i.e., the constraint and
seizure of the persons of individual members of society, must, as
a general rule, be preceded by the securing of a warrant of arrest,
the rendition of which complies with the constitutional procedure
specified in Article III Section 2. Arrests made without a warrant
issued by a judge after complying with the constitutional
procedure, are prima facie unreasonable seizures of persons
within the meaning of Article III Section 2.
2. There are, however, certain well-recognized exceptions to the
norm that warrantless arrests are unreasonable seizures of
persons. Those exceptions are, in our day, essentially found in
Section 5(a) and (b) of Rule 113 of the Rules of Court. Section
5(a) and (b) mark out the situations where an officer of the law, or
a private person for that matter, may lawfully arrest a person
without previously securing a warrant of arrest. The full text of
Section 5, Rule 113 follows:
Sec. 5. Arrest without warrant, when lawful. A
peace officer or a private person may, without a
warrant, arrest a person:
(a) When, in his presence, the person to be
arrested has committed, is actually committing, or
is attempting to commit an offense;
(b) When an offense has in fact just been
committed, and he has personal knowledge of
facts indicating that the person to be arrested has
committed it; and

75
(c) When the person to be arrested is a prisoner
who has escaped from a penal establishment or
place where he is serving final judgment or
temporarily confined while his case is pending, or
has escaped while being transferred from one
confinement to another.
In cases falling under paragraphs (a) and (b)
hereof, the person arrested without a warrant shall
be forthwith delivered to the nearest police station
or jail, and he shall be proceeded against in
accordance with Rule 112, Section 7.
3. Before examining the scope and implications of Section 5(a)
and (b), it is important to recall that judicial interpretation and
application of Section 5(a) and (b) must take those provision for
what they are: they are exceptions to a vital constitutional norm
enshrined in the Bill of Rights. Exceptions to such a norm must be
strictly construed so as not to render futile and meaningless the
constitutional rule requiring warrants of arrests before the persons
of individuals may be lawfully constrained and seized. The
ordinary rule generally applicable to statutory provisions is that
exceptions to such provisions must not be stretched beyond what
the language in which they are cast fairly warrants, and all doubts
should be resolved in favor of the general provision, rather than
the exception. 1This rule must apply with special exigency and cogency where we
deal, not with an ordinary statutory provision, but with a constitutional
guarantee. 2 Exceptions to such a guarantee must be read with especial care and sensitivity
and kept within the limits of their language so to keep vital and significant the general
constitutional norms warrantless arrests. In Alvarez vs. Court of First Instance, 3 this Court,
stressing that:

II. As the protection of the citizen and the

maintenance of his constitutional rights is one of
the highest duties and privileges of the court.
these constitutional guaranties should be given a
liberal construction or a strict construction in favor
of the individual, to prevent stealthy
encroachment upon, or gradual depreciation of,

the rights secured by them (State vs. Custer

County, 198 Pac., 362; State vs. McDaniel, 231
Pac., 965; 237 Pac., 373). Since the proceeding is
a drastic one, it is the general rule that statutes
authorizing searches and seizures or search
warrants must be strictly construed (Rose vs. St.
Clair, 28 Fed. [2d], 189; Leonard vs. U.S., 6 Fed.
[2d], 353; Perry vs. U.S., 14 Fed. [2d], 88; Cofer
vs. State, 118 So., 613. (emphasis supplied)
held that:
. . . All illegal searches and seizures are
unreasonable whith lawful ones are reasonable.

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

There is no such personal knowledge in this case.

Whatever knowledge was possessed by the
arresting officers, it came in its entirety from the
information furnished by Cesar Masamlok. The
location of the firearm was given by the
appellant's wife.
At the time of the appellant's arrest, he was not in
actual possession of any firearm or subversive
document. Neither was he commit ting any act
which could be described as subversive. He was,
in fact plowing his field at the time of the arrest.
The right of a person to be secure against any
unreasonable seizure of his body and any
deprivation of his liberty is a most basic and
fundamental one. The statute or rule which allows
exceptions the requirement of warrants of arrest is
strictly construed. Any exception must clearly fall
within the situations when securing a warrant

76
would be absurd or is manifestly unnecessary as
provided by the Rule. We cannot liberally
construe the rule on arrests without warrant or
extend its application beyond the cases
specifically provided by law. To do so would
infringe upon personal liberty and set back a
basic right so often vilated and so deserving of full
protection. 6 (emphasis supplied)
4. Section 5(a) relates to situations where a crime is committed or
attempted to be committed in the presence of the arresting officer.
The fact of the occurrence of the offense, or of the attempt to
commit an offense, in the presence of the arresting officer, may
be seen to be the substitute, under the circumstances, for the
securing of a warrant of arrest. In such situation, there is an
obvious need for immediate, even instantaneous, action on the
part of the arresting officer to suppress the breach of public order
and to prevent further breaches then and there. Section 5(a) may,
moreover, be seen to refer to overt acts constitutive of a crime
taking place in the presence of the arresting officer. The term
"presence" in this connection is properly and restrictively
construed to relate to acts taking place within the optical or
perhaps auditory perception of the arresting officer. 7 If no overt,
recognizably criminal, acts occur which are perceptible through the senses of the arresting
officer, such officer could not, of course, become aware at all that a crime is being
committed or attempted to be committed in his presence. 8 It is elementary that purely
mental or psychological phenomena, not externalized in overt physical acts of a human
person, cannot constitute a crime in our legal system. For a crime to exist in our legal law, it
is not enough that mens rea be shown; there must also be an actus reus. If no such overt
acts are actually taking place in the presence or within the sensor perception of the arresting
officer, there would, in principle, be ample time to go to a magistrate and ask for a warrant of
arrest. There would, in other words, not be that imperious necessity for instant action to
prevent an attempted crime, to repress the crime being committed, or to capture the doer of
the perceive criminal act, the necessity which serves as the justification in law of warrantless
arrests under Section 5(a).

5. Turning to Section 5 (b), two (2) elements must be coincide

before a warrantless arrest may be sustained under this
subsection: 1) the offense must have "just been committed" when
the arresting officer arrived in the scene; and 2) the officer must
have "personal knowledge" of facts indicating tha the person to

be arrested has committed the offense. In somewhat different

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

6. The use of the words "has in fact just been committed"

underscores the requirement that the time interval between the
actual commission of the crime and the arrival of the arresting
officer must be brief indeed. In the first place, the word "just" was
fairly recently inserted in Section 5(b) by the 1985 Rules on
Criminal Procedures, no doubt in order to underscore the point
here being made. In the second place, a latitudinarian view of the
phrase "has in fact just been committed" would obviously render
pointless the requirement in Section 5(a) that the crime must
have been committed "[in] the presence" of the arresting officer.
In G.R. No. 86332, the warrantless arrest of Alfredo Nazareno 14days after the occurrence of the killing with which he was charged
along with other persons, cannot by any standard be justified
under Section 5(b). In G.R. No. 81567, Dural was arrested
without warrant while being treated in a hospital the day after the
shooting of the policemen in which he was suspected to have
been a participant. While 1-day may be substantially different
from 14-days, still it must be pointed out that at the time Dural
was arrested in the hospital, the killing of the two (2) policemen in

77
Caloocan City far away from the St. Agnes Hospital in Quezon
City could not reasonably be said to have been just committed.
There was no showing, nor did the Court require it, that the
arresting officers had been in "hot pursuit" of Dural beginning at
the scene of the killing and ending the next day in the hospital.
7. It is worth noting that the requisite of "personal knowledge" on
the part of the arresting officer who is determining "probable
cause" right at the scene of the crime, is in a sense more exacting
than the standard imposed by the Constitution upon the judge
who, in the seclusion of his chambers, ascertains "probable
cause" by examining the evidence submitted before him. The
arresting officer must himself have "personal knowledge"; the
magistrate may rely upon the personal knowledge of the
witnesses examined by or for him in issuing a warrant of arrest. In
the present Resolution, the majority begins with noting the
requirement of "personal knowledge" in Section 5(b), but winds
up in the next page with a very diluted standard of "reasonable
belief and "good faith" on the part of the arresting officers. The
stricter standard is properly applicable to the officers seizing a
person without a warrant of arrest, for they are acting in
derogation of a constitutional right. That the person unlawfully
arrested without a warrant may later turn out to be guilty of the
offense he was suspected of in the first place is, course, quite
beside the point. Even a person secretly guilty some earlier crime
is constitutionally entitled to be secure from warrantless arrest,
unless he has in fact committed physically observable criminal
acts in the presence of the arresting officer or hadjust committed
such acts when the arresting officer burst upon the scene.
8. Examination of the utilization in the majotity Resolution of the
doctrine of "continuing crimes," shows that doctrine is here being
used as a substitute for the requirement under Section 5(a) that
the offense "has in fact just been presence of the arresting officer
arrived, but rather because the person to be arrested is
suspected of having committed a crime in the future. The
pertinent portion of the majority Resolution reads:

. . . Dural did not cease to be, or because less of

a subversive, FOR PURPOSE OF ARREST,
simply because he was, at the time of arrest,
confined in the St. Agnes Hospital. . . . That Dural
had shot the two (2) policemen in Caloocan City
as part of his mission as a "sparrow" (NPA
member) did not end there and then. Dural, given
another opportunity, would have shot or would
shoot other policemen anywhere as agents or
representatives of organized government. It is in
this sense that subversion like rebelion (or
insurrection) is perceived here as a continuing
offense. Unlike other so-called "common"
offenses, i.e., adultery, murder, arson, etc., which
generally end upon their
commission, subversion andrebellion are anchore
d on an ideological base which compels the
repetition of the same acts oflawlessness and
violence until the overriding objectives of
overthrowing organized government is attained.
(Emphasis supplied)
9. I respectfully submit that an examination of the "continuing
crimes" doctrine as actually found in our case law offers no
reasonable basis for such use of the dotrine. More specifically,
that doctrine, in my submission, does notdispence with the
requirement that overt acts recognizably criminal in character
must take place in the presence of the arresting officer, or must
have just been committed when the arresting officer arrived, if the
warrantless arrest it to be lawful. The "continuing crimes" doctrine
in our case law (before rendition of Garcia-Padilla vs. Enrile 10 does
not sustain warrantless arrests of person to be arrested is, as it were, merely resting in
between specific lawless and commit the moment he gets an opportunity to do so.

Our case law shows that the "continuing crimes" doctrine has
been used basically in relation to two (2) problems: the first
problem is that of determination of whether or not a particular
offense was committed within the territorial jurisdiction of the trial

78
court; the second problem is that of determining whether a single
crime or multiple crimes were committed where the defense of
double jeopardy is raised.
10. In respect of the first problem, the gist of our case law is that
where some of the ingredients or elements of an offense taken
place within the territorial jurisdiction of one court and some other
ingredients or elements of the same offense occur in the territory
of another court, (e.g., estafa or malversation) either one of the
two courts has jurisdiction to try the offense. Where all of the
essential elements of a crime take place within the territory of one
court but "by reason of he very nature of the offense committed"
the violation of the law is deemed to be "continuing," then the
court within whose territorial jurisdiction the offense continues to
be committed, has jurisdiction to try a person charged with such
offense. In the latter case, the offense is deemed to be continuing
because some or all of the elements constituting the offense
occurred within jurisdiction of the second court (e.g., kidnapping
and illegal detention; libel; evasion of service of sentence). The
criminal acts are regarded as repeated or as continuing within the
province or city where the defendant was found and
arrested. 11 Clearly, overt acts of the accussed constituting elements of the crime
charged must be shown to have been committed within the territorial jurisdiction of the court
where he is charged.

11. Turning to the second type of problem, the question is

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

12. My final submission, is that, the doctrine of "continuing

crimes," which has its own legitimate function to serve in our
criminal law jurisprudence, cannot be invoked for weakening and
dissolving the constitutional guarantee against warrantless arrest.
Where no overt acts comprising all or some of the elements of the
offense charged are shown to have been committed by the
person arrested without warrant, the "continuing crime" doctrine
should not be used to dress up the pretense that a crime, begun
or committed elsewhere, continued to be committed by the
person arrested in the presence of the arresting officer. The
capacity for mischief of such a utilization of the "continuing
crimes" doctrine, is infinitely increased where the crime charged
does not consist of unambiguous criminal acts with a definite
beginning and end in time and space (such as the killing or
wounding of a person or kidnapping and illegal dentention or
arson) but rather of such problematic offenses as membership in
or affiliation with or becoming a member of, a subversive
association or organization. For in such cases, the overt
constitutive acts may be morally neutral in themselves, and the
unlawfulness of the acts a function of the aims or objectives of the
organization involved. Note, for instance, the following acts which
constitute prima facie evidence of "membership in any subversive
association:" 13
a) Allowing himself to be listed as a member in
any book or any of the lists, records,
correspondence, or any other document of the
organization;
b) Subjecting himself to the discipline of such
association or organization in any form
whatsoever;
c) Giving financial contribution to such association
or organization in dues, assessments, loans or in
any other forms;
xxx xxx xxx

79
f) Conferring with officers or other members of
such association or organization in furtherance of
any plan or enterprise thereof;
xxx xxx xxx
h) Preparing documents, pamphlets, leaflets,
books, or any other type of publication to promote
the objectives and purposes of such association
or organization;
xxx xxx xxx
k) Participating in any was in the activities,
planning action, objectives, or purposes of such
association or organization;
xxx xxx xxx
It may well be, as the majority implies, that the constitutional rule
against warrantless arrests and seizures makes the law
enforcement work of police agencies more difficult to carry out. It
is not our Court's function, however, and the Bill of Rights was not
designed, to make life easy for police forces but rather to protect
the liberties of private individuals. Our police forces must simply
learn to live with the requirements of the Bill of Rights, to enforce
the law by modalities which themselves comply with the
fundamental law. Otherwise they are very likely to destroy,
whether through sheer ineptness or excess of zeal, the very
freedoms which make our polity worth protecting and saving.
REGALADO, J.: Separate Opinion:
While I have heretofore concurred in the ponencia in the aboveentitled cases and I reiterate such concurrence, I wish to
unburden myself of some reservations on the rationale adopted in
G.R. No. 86332.

It is posited in this resolution that "(a)lthough the killing of Bunye II

occurred on 14 December 1988, while Nazareno's arrest without
warrant was made only on 28 December 1988, or 14 days later,
the arrest falls under Section 5(b) of Rule 113, since it was only
on 28 December 1988 that the police authorities came to know
that Nazareno was probably one of those guilty in the killing of
Bunye II."
I am afraid that there has been a misapplication of Section 5(b) of
Rule 113 which, while authorizing a peace officer or a private
person to effect a warrantless arrest, specifically conditions that
grant of authority upon the situation "(w)hen an offense has in fact
just been committed, and he has personal knowledge of facts
indicating that the person to be arrested has committed it."
It is significant that when the corresponding provisions of the
1964 Rules of Court were amended in the 1985 Rules of Criminal
Procedure, the particular revision of paragraph (b) of the
aforesaid section consisted in imposing the requirements that the
person making the arrest has personal knowledge of the facts
indicating that the arrestee is responsible for an offense
which has just been committed.
Now, according to the resolution, "the records show that in the
morning of 14 December 1988, Romulo Bunye II was killed by a
group of men in Alabang, Muntinlupa, Metro Manila; that at about
5 o'clock in the morning of 28 December 1988, Ramil Regala, one
of the suspects in the said killing, was arrested and he pointed to
Narciso Nazareno as one of his companions during the killing of
Bunye II; that at 7:20 of the same morning (28 December 1988),
the police agents arrested Nazareno, without warrant, for
investigation."
Since, clearly, the arresting police agents merely acted upon the
information imparted by one of the suspects, Ramil Regala, the
resolution has emasculated the requirement in Section 5(b) that
the person making the arrest must have had personal knowledge
of factual indications regarding the complicity or liability of the

80
arrestee for the crime. Yet, that amendment requiring such
personal knowledge must have been designed to obviate the
practice in the past of warrantless arrests being effected on the
basis of or supposed reliance upon information obtained from
third persons who merely professed such knowledge or, worse,
concocted such reports for variant reasons not necessarily
founded on truth.
Further, and obviously as an added deterrent to the possibility
that such arrest without a warrant may result from imputations
based on dubious motives, it is now required that the crime must
have just been committed. The recency contemplated here, in
relation to the making of the warrantless arrest, is the time when
the crime was in fact committed, and not the time when the crime
was in fact committed, and not the time when the person making
the arrest learned or was informed of such commission.
Otherwise, at the risk of resorting to reductio ad absurdum, such
warrantless arrests could be validly made even for a crime
committed, say, more than a year ago but of which the arresting
officer received information only today.
The brevity in the interval of time between the commission of the
crime and the arrest, as now required by Section 5(b), must have
been dictated by the consideration, among others, that by reason
of such recency of the criminal occurrence, the probability of the
arresting officer acquiring personal and/or reliable knowledge of
such fact and the identity of the offender is necessarily enhanced,
if not assured. The longer the interval, the more attenuated are
the chances of his obtaining such verifiable knowledge. In the
case under consideration, the obtention of information of a crime
committed fourteen (14) days earlier necessarily undermines the
capacity of the arresting officer to ascertain the reliability of the
information he is acting upon and to acquire personal knowledge
thereof after such verification.
It may be granted, as an ad hoc proposition, that the arrest of
Nazareno was based on probable cause and it was not
whimsical, at least, in this instance. It is correct to say that

prevailing conditions affecting national security and stability must

also be taken into account. However, for the reasons above
elucidated, I take exception to the conclusion that the conditions
in Section 5(b) of Rule 113 had been complied with in this case. It
is true that the corresponding information was filed against
Nazareno shortly after his arrest but that, precisely, is another
cause for controversy. Definitely, if the rules on arrest are
scrupulously observed, there would be no need for the usual
invocation of Ilagan as a curative balm for unwarranted incursions
into civil liberties.
SARMIENTO, J.: dissenting:
I reiterate my dissent. I submit that in spite of its "clarificatory"
resolution, 1 the majority has not shown why the arrests in question should after all be
sustained.

According to the majority, Rolando Dural (G.R. No. 815667) was

validly arrested without a warrant and that his arrest was sufficient
compliance with the provisions of Section 5, paragraph (b), Rule
113, of the Rules of Court. According to the majority, he, Dural,
was after all committing an offense (subversion being supposedly
a continuing offense) and that the military did have personal
knowledge that he had committed it. "Personal knowledge,"
according to the majority, is supposedly no more than "actual
belief or reasonable grounds . . . of suspicion," and suspicion is
supposedly reasonable:
. . . when, in the absence of actual belief of the
arresting officers, the suspicion that the person to
be arrested is probably guilty of committing the
offense, is based on actual facts, i.e., supported
by circumstances sufficiently strong in themselves
to create the probable cause of guilty of the
person to be arrested. A reasonable suspicion
therefore must be founded on probable cause,
coupled with good faith on the part of the peace
officers making the arrest. 2

81
As I said, I dissent.

based on actual facts . . . [and] founded on probable

cause, coupled with good faith . . . " 6 I submit that personal knowledge

First, and as I held, subversion, as an offense punished by

Executive Order No. 167, as amended by Executive Order No.
276, in relation to Republic Act No. 1700, 3 is made up of "overt

means exactly what it says that the peace officer is aware that the accused has
committed an offense, in this case, membership in a subversive organization with intent to
further the objectives thereof. It is to be noted that prior to their amendment, the Rules (then
Section 6) spoke of simple "reasonable ground" which would have arguably
encompassed "actual belief or suspicion . . . coupled with good faith" referred to by the
majority. Section 5(b) as amended, however, speaks of "personal knowledge"; I respectfully
submit that to give to "personal knowledge" the same meaning as "reasonable ground" is to
make the amendment as useless exercise.

acts." 4 In People vs. Ferrer 5 this Court defined "overt acts" as follows:

. . . Indeed, were the Anti-Subversion Act a bill of

attainder, it would be totally unnecessary to
charge Communists in court, as the law alone,
without more would suffice to secure their
punishment. But the undeniable fact is that their
guilt still has to be judicially established. The
Government has yet to prove at the trial that the
accused joined the Party knowingly, willfully and
by overt acts, and that they joined the Party,
knowing its subversive character and with specific
intent to further its basic objective, i.e., to
overthrow the existing government by force,
deceit, and other illegal means and place the
country under the control and domination of a
foreign power.
As Ferrer held, that above "overt acts" constitute the essence of
"subversion," and as Ferrer has taken pains to explain, the law
requires more than mere membership in a subversive
organization to make the accused liable. I respectfully submit that
for purposes of arrest without a warrant, that above "overt acts"
should be visible to the eyes of the police officers (if that is
possible), otherwise the accused can not be said to be
committing any offense within the contemplation of the Rules of
Court, to justify police action, and otherwise, we would have
made "subversion" to mean mere "membership" when, as Ferrer
tells us, subversion means more that mere membership.
I find strained that majority's interpretation of "personal
knowledge," as the majority would interpret it, as no more than
"actual belief or reasonable suspicion," that is, "suspicion . . .

What, furthermore, we have here was a mere "confidential

information" that a "sparrow man" had been wounded and was
recuperating in the hospital, and that that person was Rolando
Dural. Clearly, what we have is second-hand, indeed, hearsay,
information, and needless to say, not personal knowledge.
I would like to point out that in the case of People vs. Burgos 7 this
Court rejected a similar arrest because of lack of personal knowledge, and, as the Court
held, "[w]hatever knowledge was possessed by the arresting officers came in its entirety
from the information furnished by [another] . . ." 8 I do not see how We can act differently
here.

I do not find the majority's reliance on the case of United States

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

As far as the information leading to the arrest of Dural is

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

The majority is apparently unaware that under Executive Order

No. 212, amending Presidential Decree No. 169, hospital

82
establishments are required to report cases of acts of violence to
"government health authorities" not to the military.
I am concerned that if the military were truly armed with reliable
information and if it did have personal knowledge to believe that
Dural had committed an offense, there was no reason for the
military to ignore the courts, to which the Constitution after all,
gives the authority to issue warrants. As People vs. Burgos held:
More important, we find no compelling reason for
the haste with which the arresting officers sought
to arrest the accused. We fail to see why they
failed to first go through the process of obtaining a
warrant of arrest, if indeed they had reasonable
ground to believe that the accused had truly
committed a crime. There is no showing that there
was a real apprehension that the accused was on
the verge of flight or escape. Likewise, there is no
showing that the whereabouts of the accused
were unknown. 12
I do not likewise see how the petitioners Amelia Roque, Wilfredo
Buenaobra, Domingo Anonuevo, Ramon Caspile, and Vicky
Ocaya (G.R. Nos. 84581-82; 83162) could have been lawfully
picked up under similar circumstances. As the majority points out,
the military had (again) acted on a mere tip-the military had no
personal knowledge (as I elaborated what personal knowledge
means). Second, I do not think that the majority can say that
since Amelia Roque, et al. "were NPA's anyway" (As Roque, et al.
allegedly admitted), immediate arrests were "prudent" and
necessary. As I said, that Roque, et al. were admitted "NPA's" is
(was) the question before the trial court and precisely, the subject
of controversy. I think it is imprudent for this Court to pass
judgment on the guilt of the petitioners-since after all, and as the
majority points out, we are talking simply of the legality of the
petitioner's arrests.

More important, that Roque, et al. "were NPA's anyway" is

evidently, a mere say-so of the military, and evidently, the Court is
not bound by bare say-so's. Evidently, we can not approve an
arrest simply because the military says it is a valid arrest (the
accused being "NPA's anyway") that would be abdication of
judicial duty and when, moreover, the very basis of the claim rests
on dubious "confidential information."
According to the majority, we are speaking of simple arrests; we
are not talking of the guilt or innocence of the accused. I certainly
hope not, after the majority referred to Rolando Dural as a
"sparrow man" and having Amelia Roque, et al. admit to being
NPA's."
It is to gloss over at any rate, the nature of arrest as a restraining
on liberty. It is to me immaterial that the guilt of the accused still
has to be established, since meanwhile, the accused are in
fact being deprived of liberty. Arrest to me, is something to crow
about, even if in the opinion of the majority, it is nothing to crow
about (a mere "administrative measure").
I can not, again, accept the validity of the arrests of Deogracia
Espiritu or Narciso Nazareno (G.R. Nos. 85727; 86332). Espiritu
was supposedly picked up for inciting to sedition, in uttering
supposedly, on November 22, 1988, the following:
Bukas tuloy and welga natin . . . hanggang sa magkagulo na. 13
Espiritu however was arrested on November 23, 1988, a day
later-and in no way is "inciting to sedition" a continuing offense.
Obviously, the majority is not saying that it is either, but that:
. . . Many persons may differ as to the validity of
such perception and regard the language as
falling within free speech guaranteed by the
Constitution. But, then, Espiritu has not lost the
right to insist, during the trial on the merits, that he

83
was just exercising his right to free speech
regardless of the charged atmosphere in which it
was uttered. But, the authority of the peace
officers to make the arrest, without warrant, at the
time the words were uttered, or soon thereafter, is
still another thing. In the balancing of authority
and freedom, which obviously becomes difficult at
times, the Court has, in this case, titled the scale
in favor of authority but only for purposes of the
arrest (not conviction). Let it be noted that the
Court has ordered the bail for Espiritu's release to
be reduced from P60,000.00 to P10,000.00. 14
And obviously, the majority is concerned about whether or not
Espiritu's speech was after all, protected speech, but apparently,
that is also of no moment, since: (1) that is a matter of defense;
(2) we are talking of mere arrests, and as far as arrests are
concerned, "the Court has, in this case, titled in favor of
authority," 15 and (3) we have, anyway, given a reduced bail to the accused.
First, that the accused's statement is in the category of free
speech is not only plain to my mind, it is a question I do not think
the majority can rightly evade in these petitions without shirking
the Court's constitutional duty. It is to my mind plain, because it
does not contain enough "fighting words" recognized to be
seditious. 16 Secondly, it is the very question before the Courtwhether or not the
statement in question constitutes an offense for purposes of a warrantless arrest. It is a
perfectly legal question to my mind and I am wondering why we can not answer it.

What the majority has not answered, as I indicated, is that inciting

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

As in the case of Burgos in People vs. Burgos, 18 Espiritu was neither

"on the verge of flight or escape" 19 and there was no impediment for the military to go
through the judicial processes, as there was none in the case of Burgos.

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

"In the balancing of authority and freedom," states the majority,

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

I do not understand why this Court should "tilt" . . . the scale in

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

The majority goes on:

Although the killing of Bunye II occurred on 14
December 1988, while Nazareno's arrest without
warrant was made only on 28 December 1988, or
14 days later, the arrest falls under Section 5(b) of
Rule 113, since it was only on 28 December 1988
that the police authorities came to know that
Nazareno was probably one of those guilty in the
killing of Bunye II. 23
With all due respect, I do not think that the majority is aware of
the serious implications of its pronouncement on individual rights
(and statutory construction in general), and I feel I am
appropriately concerned because as a member of the Court, I am
co-responsible for the acts of my colleagues and I am afraid that I
may, rightly or wrongly, be in time made to defend such an
indefensible pronouncement.

84
Section 5(b) of Rule 113 is clear and categorical: the offense must
have been "just committed" and the authorities must have
"personal knowledge."
In no way can an offense be said to have been "just committed"
fourteen days after it was in fact (allegedly) committed. In no way
can the authorities be said to have "personal knowledge" two
weeks thereafter; whatever "personal knowledge" they have can
not possibly be "personal knowledge" of a crime that had "just
been committed;" whatever "personal knowledge" they have is
necessarily "personal knowledge" of a crime committed two
weeks before.
In no way can Nazareno's arrest be said to be an arrest
sanctioned by the exceptional provisions of the Rules.
I am not saying that the military can not act in all cases, and it is
sheer ignorance to suppose that I am saying it, (or worse, that I
am "coddling criminals"). I am not saying that a suspected
criminal, if he can not be arrested without a warrant, can not be
arrested at all but that the military should first procure a
warrant from a judge before effecting an arrest. It is not too much
to ask of so-called law enforcers.
As it is, the majority has enlarged the authority of peace officers
to act, when the Rules have purposely limited it by way of an
exception, precisely, to the general rule, mandated by the
Constitution no less, that arrests may be done only through a
judicial warrant. As it is, the majority has in fact given the military
the broadest discretion to act, a discretion the law denies even
judges 24 today it is fourteen days, tomorrow, one year, and sooner, a decade. I
submit that a year, a decade, would not be in fact unreasonable, following the theory of the
majority, since the military can claim anytime that it "found out only later," as the majority did
not find it unreasonable for the Capital Command to claim that it "came to know
that Nazareno was probably one of those guilty in the killing of Bunye II" 25and none of us
can possibly dispute it.

I would like to stress strongly that we are not talking of a simple

"administrative measure" alonewe are talking of arrests, of

depriving people of libertyeven if we are not yet talking of

whether or not people are guilty. That we are not concerned with
guilt or innocence is hardly the point, I respectfully submit, and it
will not minimize the significance of the petitioners' predicament.
With respect to Wilfredo Buenaobra, I submit that the majority
has, as in the cases of Amelia Roque, et al., ignored the fact that
Buenaobra's alleged "admission" (actually, an uncounselled
confession) was precisely, the basis for Buenaobra's arrest. It is
to beg the question, I respectfully submit, to approve the military's
action for the reason that Buenaobra confessed, because
Buenaobra confessed for the reason that the military, precisely,
pounced on him. I am not to be mistaken for prejudging
Buenaobra's innocence (although it is supposed to be presumed)
but I can not imagine that Buenaobra would have voluntarily
proclaimed to the military that he was an NPA courier so that the
military could pounce on him.
I respectfully submit that the cases Garcia vs. Padilla 26 and Ilagan
vs. Enrile 27 have been better days. I do not see how this court can continuously sustain
them "where national security and stability are still directly challenged perhaps with greater
vigor from the communist rebels." 28 First and foremost, and as the majority has conceded,
we do not know if we are in fact dealing with "Communists." The case of Deogracias
Espiritu, for one, hardly involves subversion. Second, "Communism" and "national security"
are old hat the dictator's own excuses to perpetuate tyranny, and I am genuinely
disappointed that we would still fall for old excuses. Third, Garcia and Ilagan rested on
supposed grounds that can not be possibly justified in a regime that respects the rule of law
that the Presidential Commitment Order (PCO) is a valid presidential document (Garcia)
and that the filing of an information cures a defective arrest (Ilagan). Fourth and finally, it is
evident that neither "Communist threat" nor "national security" are valid grounds for
warrantless arrests under Section 5(b) of Rule 113.

I most respectfully submit that Garcia and Ilagan have not only
been diluted by subsequent jurisprudence (e.g., People vs.
Burgos, supra), they are relics of authoritarian rule that can no
longer be defended, if they could have been defended, in Plaza
Miranda or before our own peers in the bar.
"What is important," says the majority, "is that every arrest without
warrant be tested as to its legality, via habeas
corpus proceedings." 29 I supposed that goes without saying. But it is also to

85
patronize the petitioners and simply, to offer a small consolation, when after all, this Court is
validating their continued detention. 30 With all due respect, I submit that it is nothing for
which the public should be elated.

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

I submit that the "actual facts and circumstances" the majority

refers to are, in the first place, doubtful, the "actual facts and
circumstances" being no more than "confidential information"
(manufactured or genuine, we have no way of telling) and in the
second place, any information with which the military (or police)
were armed could no more than be hearsay, not personal,
information. I submit that the "actual facts and circumstances" the
majority insists on can not justify the arrests in question under
Section 5(b) of Rule 113, the rule the majority insists is the
applicable rule.
Apparently, Section 5(b) is not the applicable rule, as far as
Deogracias Espiritu and Narciso Nazareno are concerned;
certainly, it is not the Section 5(b) I know. As I indicated, Espiritu
was arrested one day after the act, allegedly, inciting to sedition;
Nazareno was picked up fourteen days after it (allegedly,
murder). Yet, the majority would approve the police's actions
nonetheless because the police supposedly "found out only later."
I submit that the majority has read into Section 5(b) a provision
that has not been written there.

"More than the allure of popularity of palatability to some groups,"

concludes the majority, "what is important is that the Court be
right." 33
Nobody has suggested in the first place, that Umil was and is a
question of popularity or palatability. Umil is a question, on the
contrary, of whether or not the military (or police), in effecting the
arrests assailed, had complied with the requirements of law on
warrantless arrests. Umil is a question of whether or not this
Court, in approving the military's actions, is right.
In spite of "EDSA", a climate of fear persists in the country, as
incidences of disappearances, torture, hamletting, bombings,
saturation drives, and various human rights violations increase in
alarming rates. In its update for October, 1990, the Task Force
Detainees of the Philippines found:
An average of 209 arrested for political reasons monthly since
1988, 94% of them illegally;
Four thousand four hundred eight (4,408) political detentions from
January, 1989 to September, 1990, 4,419, illegally;
Of those arrested, 535 showed signs of torture; 280 were
eventually salvaged, 40, of frustrated salvage, and 109 remained
missing after their arrest;
Forty (40) cases of massacres, with 218 killed; 54 cases of
frustrated massacre, in which 157 were wounded;
The victims belonged to neighborhood and union organizations;
Since February, 1986, 532 of those illegally arrested were
women;
From January to June 1990, 361 children were detained for no
apparent reason;

86
One million ten thousand four hundred nine (1,010,409) have
been injured as a consequence of bombing, shellings, and food
blockades undertaken by the military since 1988. 34
It is a bleak picture, and I am disturbed that this Court should
express very little concern. I am also disappointed that it is the
portrait of the Court I am soon leaving. Nonetheless, I am hopeful
that despite my departure, it will not be too late.
Motions denied.
# Footnotes

therein and for other purposes." (1957); and the

subsequent related decrees such as Presidential
Decree No. 885, entitled "Outlawing subversive
organizations, penalizing membership therein,
and for other purposes." (1976); and Presidential
Decree No. 1835 entitled "Codifying the various
laws on anti-subversion and increasing the
penalties for membership in subversive
organizations."
8 G.R. No. 61388. April 20,1983,121 SCRA 472.
9 US vs. Santos, 36 Phil. 851 (1917).

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

2 G.R. No. 70748, October 21,1985,139 SCRA
349.
3 Section 1, Rule 102: "To what habeas
corpus extends. Except otherwise expressly
provided by law, the writ of habeas corpus shall
extend to all cases of illegal confinement or
detention by which any person is deprived of his
liberty, or by which the rightful custody of any
person is withheld from the person entitled
thereto.
4 Villavicencio vs. Lukban, 39 Phil. 778.
5 Ilagan vs. Enrile, G.R. No. 70748, October 21,
1985, 139 SCRA 349.

10 Ibid.
11 Ibid.
12 Records of G.R. No. 81567, affidavit dated 4
February 1988.
13 Rollo, pp. 311-312 (G.R. No. 81567).
14 Presidential Decree No. 169 requires attending
physicians and/or persons treating injuries from
any form of violence, to report such fact to the
Philippine Constabulary and prescribing penalties
for any violation thereof.
15 Decision dated 9 July 1990, pp. 19-20.
16 Decision, pp. 10-11.

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

17 Ibid., p. 12.
7 Republic Act No. 1700 known as the "AntiSubversion Act" titled "An Act to outlaw the CPP
and similar associations, penalize membership

18 Ibid., pp. 12-13.

87
19 Ibid., pp. 14-15.

period, if the detention has not exceeded three

days. . . .

20 Decision, p. 18.
21 United States vs. Sanchez, No. 9294, March
30,1914, 27 Phil, 442.
22 Ibid: "The legality of the detention does not
depend upon the fact of the crime, but . . . upon
the nature of the deed, wherefrom such
characterization may reasonably be inferred by
the officer or functionary to whom the law at that
moment leaves the decision for the urgent
purpose of suspending the liberty of the citizen.
"In People vs. Ancheta, it was held that "the
legality of detention made by a person in authority
or an agent thereof ... does not depend upon the
juridical and much less the judicial fact of crime
which, at the time of its commission, is not and
cannot definitively be determined for the lack of
necessary data and for jurisdiction but upon the
nature of the deed. . . . ."
23 United States vs. Santos, supra.
24 Ibid.
25 Article 124 of the Revised Penal Code
provides:
"ART. 124. Arbitrary detention. Any public
officer or employee who, without legal grounds.
detains a person, shall suffer:
1. The penalty of arresto mayor in its maximum
period to prision correccional in its maximum

26 Damages for the impairment of rights and

liberties of another person.
27 Affidavit of Avelino Faustino dated 23
November 1988; Return of the Writ dated 25
November 1988; Decision dated 9 July 1990, pp.
23-24.
28 Joint Affidavit of 5 police agents, dated 23
November 1988; Decision, supra.
29 Affidavit of police agents, dated 28 December
1988, marked Exhibit "A" at the RTC, Bian,
Branch 24.
30 Decision of 9 July 1990, pp. 9 and 12.
31 Decision of 9 July 1990. p. 13.
FELICIANO, J., concurring and dissenting:
1 Salaysay vs. Castro, 98 Phil. 364 (1956).
2 Realty Investments Inc. vs. Pastrana. 84 Phil.
842 (1949)-l Sayo vs. Chief of Police of Manila, 80
Phil. 859 (1948)
3 64 Phil. 33 (1937).
4 64 Phil. at 44.
5 144 SCRA 1 (1986).

88
6 144 SCRA at 14.

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

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

10 121 SCRA 472 (1983).

8 In People vs. Aminnudin, 163 SCRA 402 (1988),

the Court, in nullifying a warrantless arrest, said,
through Mr. Justice Cruz:

11 Parulan vs. Director of Prisons, 22 SCRA 638

(1968); U.S. vs. Cunanan, 26 Phil. 376 (1913);
U.S. vs. Santiago, 27 Phil. 408 (1914); U.S. vs.
Laureaga, 2 Phil. 71 (1903).

"In the many cases where tills Court has

sustained the warrantless arrest of violators on
the Dangerous Drugs Act, it has always been
shown that they were caught red-handed, as a
result of what are popularly called "buy-bust"
operations of the narcotics agents. Rule 113 was
clearly applicable because at the precise time of
arrest the accused was in the act of selling the
prohibited drug.
In the case at bar, the accused-appellant was not,
at the moment of his arrest, committing a crime
nor was it shown that he was about to do so or
that he had just done so. What he was doing was
descending the gangplank of the M/V Wilcon 9
and there was no outward indication that called
for his arrest. To all appearances, he was like any
of the other passengers innocently disembarking
from the vessel. It was only when the informer
pointed to him as the carrier of the marijuana that
he suddenly became suspect and so subject to
apprehension. It was the furtive finger that
triggered his arrest. The Identification by the
informer was the probable cause as determined
by the officers (and not a judge) that authorized
them to pounce upon Aminnudin and immediately
arrest him." (163 SCRA at 409-410) (emphasis
supplied)

12 E.g. People vs. Zapanta and Bondoc, 88 Phil.

688 (1951) where the Court held that each
instance of sexual intercourse constitute a
separate crime of adultery, though the same
persons and the same offended spouse are
involved, and that a second information may be
filed against the same accused for later acts of
sexual intercourse.
13 Section 6, P.D. 1835, 16 January 1981.
Sarmiento, J.: dissenting:
1 Resolution, 1.
2 Supra; emphasis in the original.
3 The majority cites Presidential Decrees Nos.
885 and 1835 and "related decrees;" both
Presidential Decrees Nos. 885 and 1835 have
been repealed by Executive Order No. 167, as
amended by Executive Order No. 267.
4 Please note that under Section 6 of Presidential
Decree No. 1835, "[t]the following acts shall
constitute prima facie evidence of membership in
any subversive organization: (a) Allowing himself
to be listed as a member in any book or any of the

89
lists, records, correspondence, or any other
document of the organization; (b) Subjecting
himself to the discipline of such association or
organization in any form whatsoever; (c) Giving
financial contribution to such association or
organization in dues, assessments, loans or in
any other forms; (d) Executing orders, plans, or
directives of any kind of such association or
organization; (e) Acting as an agent, courier,
messenger, correspondent, organizer, or in any
other capacity, on behalf of such association or
organization; (f) Conferring with officers or other
members of such association or organization in
furtherance of any plan or enterprise thereof; (g)
Transmitting orders, directives, or plans of such
association or organization orally or in writing or
any other means of communication such as by
signal, semaphore, sign or code; (h) Preparing
documents, pamphlets, leaflets, books, or any
other type of publication to promote the objectives
and purposes of such association or organization;
(i) Mailing, shipping, circulating, distributing, or
delivering to other persons any material or
propaganda of any kind on behalf of such
association or organization; (j) Advising,
counselling, or in other way giving instruction,
information, suggestions, or recommendations to
officers, or members or to any other person to
further the objectives of such association or
organization; and (k) Participating in any way in
the activities, planning action, objectives, or
purposes of such association or organization."
Please note that none of these are alleged by the
military in this case, assuming that the Decree still
exists.

(No. L-34856, Nov. 29, 1989, 168 SCRA 63, 6667), I held that People vs. Ferrer is no longer a
good basis for sustaining the Anti-Subversion Act.
I am not here invoking Ferrer to sustain it, but to
discuss its elaboration of the provisions of
Republic Act No. 1700.
6 Resolution, supra.
7 G.R. No. 68955, September 4, 1986, 144 SCRA
1.
8 Supra, 14.
9 36 Phil. 853 (1917).
10 Resolution, supra, 10.
11 People vs. Burgos, supra, 15.
12 Supra.
13 Resolution, supra, 15.
14 Supra, 16.
15 Supra.
16 See United States vs. Apurado, 7 Phil. 422
(1907).
17 Resolution, supra; emphasis supplied.
18 Supra.

5 Nos. L-32613-14, December 27, 1972, 48

SCRA 382; emphasis supplied. In Taruc vs. Ericta

19 At 15.

90
20 G.R. No. 74869, July 6, 1988, 163 SCRA 402.
21 Resolution, supra.
22 Supra, 17.
23 Supra.
24 See RULES OF COURT, supra, Rule 112, sec.
5, on the number of days a judge may act.
25 Resolution, supra.
26 G.R. No. 61388, April 20, 1983, 121 SCRA
472.
27 G.R. No. 70748, October 21, 1985, 139 SCRA
349.
28 Resolution, supra, 18-19.
29 Resolution, supra, 19.
30 Except for Rolando Dural, the rest of the
petitioners have been acquitted by the lower
courts trying their cases.
31 CONST., art. III, sec. 2.
32 Supra, art. II, sec. 11.
33 Resolution, supra, 19.
34 Manila Chronicle, October, 1990.

SECOND DIVISION
G.R. No. L-68955 September 4, 1986
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
RUBEN BURGOS y TITO, defendant-appellant.

GUTIERREZ, JR., J.:

This is an appeal from the decision of the Regional Trial Court of
Davao del Sur, 11 th Judicial Region, Digos, Davao del Sur
convicting defendant- appellant Ruben Burgos y Tito of The crime
of Illegal Possession of Firearms in Furtherance of Subversion.
The dispositive portion of the decision reads:
WHEREFORE, finding the guilt of accused Ruben
Burgos sufficiently established beyond reasonable
doubt, of the offense charges , pursuant to
Presidential Decree No. 9, in relation to General
Order No. 6, dated September 22, 1972, and
General Order No. 7, dated September 23, 1972,
in relation further to Presidential Decree No. 885,
and considering that the firearm subject of this
case was not used in the circumstances as
embraced in paragraph I thereof, applying the
provision of indeterminate sentence law, accused
Ruben Burgos is hereby sentenced to suffer an

91
imprisonment of twenty (20) years of reclusion
temporal maximum, as minimum penalty, to
reclusion perpetua, as maximum penalty,
pursuant to sub-paragraph B, of Presidential
Decree No. 9, as aforementioned, with accessory
penalties, as provided for by law.

knowledge, and which firearm was used by the

accused in the performance of his subversive
tasks such as the recruitment of New Members to
the NPA and collection of contributions from the
members.
CONTRARY TO LAW.

As a result of this judgment, the subject firearm

involved in this case (Homemade revolver,
caliber .38, Smith and Wesson, with Serial No.
8.69221) is hereby ordered confiscated in favor of
the government, to be disposed of in accordance
with law. Likewise, the subversive documents,
leaflets and/or propaganda seized are ordered
disposed of in accordance with law.
The information charged the defendant-appellant with the crime
of illegal possession of firearm in furtherance of subversion in an
information which reads as follows:
That in the afternoon of May 13, 1982 and
thereabout at Tiguman, Digos, Davao del Sur,
Philippines, within the jurisdiction of this Court, the
above- named accused with intent to possess and
without the necessary license, permit or authority
issued by the proper government agencies, did
then and there wilfully, unlawfully and feloniously
keep, possess, carry and have in his possession,
control and custody one (1) homemade revolver,
caliber .38, make Smith and Wesson, with Serial
No. 8.69221, which firearm was issued to and
used by the accused at Tiguman, Digos, Davao
del Sur, his area of operations by one Alias
Commander Pol for the New People's Army
(NPA), a subversive organization organized for
the purpose of overthrowing the Government of
the Republic of the Philippines through lawless
and violent means, of which the accused had

The evidence for the prosecution is summarized in the decision of

the lower court as follows:
xxx xxx xxx
. . . Through the testimony of Pat. Pepito Bioco,
and Sgt. Romeo Taroy, it appears that by virtue of
an intelligent information obtained by the
Constabulary and INP units, stationed at Digos,
Davao del Sur, on May 12, 1982, one Cesar
Masamlok personally and voluntarily
surre0ndered to the authorities at about 9:00
o'clock A.M. at Digos, Davao del Sur
Constabulary Headquarters, stating that he was
forcibly recruited by accused Ruben Burgos as
member of the NPA, threatening him with the use
of firearm against his life, if he refused.
Along with his recruitment, accused was asked to
contribute one (1) chopa of rice and one peso
(P1.00) per month, as his contribution to the NPA
TSN, page 5, Hearing-October 14, 1982).
Immediately, upon receipt of said information, a
joint team of PC-INP units, composed of fifteen
(15) members, headed by Captain Melchesideck
Bargio, (PC), on the following day, May 13, 1982,
was dispatched at Tiguman; Davao del Sur, to
arrest accused Ruben Burgos. The team left the

92
headquarter at 1:30 P.M., and arrived at Tiguman,
at more or less 2:00 o'clock PM where through the
help of Pedro Burgos, brother of accused, the
team was able to locate accused, who was
plowing his field. (TSN, pages 6-7, HearingOctober 14, 1982).
Right in the house of accused, the latter was
caned by the team and Pat. Bioco asked accused
about his firearm, as reported by Cesar
Masamlok. At first accused denied possession of
said firearm but later, upon question profounded
by Sgt. Alejandro Buncalan with the wife of the
accused, the latter pointed to a place below their
house where a gun was buried in the ground.
(TSN, page 8, Hearing-October 14, 1982).
Pat. Bioco then verified the place pointed by
accused's wife and dug the grounds, after which
he recovered the firearm, Caliber .38 revolver,
marked as Exhibit "A" for the prosecution.
After the recovery of the firearm, accused likewise
pointed to the team, subversive documents which
he allegedly kept in a stock pile of qqqcogon at a
distance of three (3) meters apart from his house.
Then Sgt. Taroy accordingly verified beneath said
cogon grass and likewise recovered documents
consisting of notebook colored maroon with spiral
bound, Exhibit "B" for the prosecution; a pamphlet
consisting of eight (8) leaves, including the front
and back covers entitled Ang Bayan, Pahayagan
ng Partido Komunista ng Pilipinas,
Pinapatnubayan ng Marxismo, Leninismo
Kaisipang Mao qqqZedong dated December 31,
1980, marked as Exhibit "C", and another
pamphlet Asdang Pamantalaang Masa sa
Habagatang Mindanao, March and April 1981

issue, consisting of ten (10) pages, marked as

Exhibit "D" for the prosecution.
Accused, when confronted with the firearm Exhibit
"A", after its recovery, readily admitted the same
as issued to him by Nestor Jimenez, otherwise
known as a certain Alias Pedipol, allegedly team
leader of the sparrow unit of New People's Army,
responsible in the liquidation of target
personalities, opposed to NPA Ideological
movement, an example was the killing of the late
Mayor Llanos and Barangay Captain of Tienda
Aplaya Digos, Davao del Sur. (TSN, pages 1-16,
Hearing-October 14,1982).
To prove accused's subversive activities, Cesar
Masamlok, a former NPA convert was presented,
who declared that on March 7, 1972, in his former
residence at Tiguman Digos, Davao del Sur,
accused Ruben Burgos, accompanied by his
companions Landrino Burgos, Oscar Gomez and
Antonio Burgos, went to his house at about 5:00
o'clock P.M. and called him downstair. Thereupon,
accused told Masamlok, their purpose was to ask
rice and one (1) peso from him, as his contribution
to their companions, the NPA of which he is now a
member. (TSN, pages 70, 71, 72, HearingJanuary 4, 1983).
Accused and his companions told Masamlok, he
has to join their group otherwise, he and his family
will be killed. He was also warned not to reveal
anything with the government authorities.
Because of the threat to his life and family, Cesar
Masamlok joined the group. Accused then told
him, he should attend a seminar scheduled on
April 19, 1982. Along with this invitation, accused
pulled gut from his waistline a .38 caliber revolver

93
which Masamlok really saw, being only about two
(2) meters away from accused, which make him
easily Identified said firearm, as that marked as
Exhibit "A" for the prosecution. (TSN, pages 72,
73, and 74, Hearing-January 4, 1983).
On April 19, 1982, as previously invited,
Masamlok, accompanied by his father, Matuguil
Masamlok, Isabel Ilan and Ayok Ides went to the
house of accused and attended the seminar,
Those present in the seminar were: accused
Ruben Burgos, Antonio Burgos, Oscar Gomez,
Landrino Burgos, alias Pedipol and one alias
Jamper.
The first speaker was accused Ruben Burgos,
who said very distinctly that he is an NPA together
with his companions, to assure the unity of the
civilian. That he encouraged the group to
overthrow the government, emphasizing that
those who attended the seminar were already
members of the NPA, and if they reveal to the
authorities, they will be killed.
Accused, while talking, showed to the audience
pamphlets and documents, then finally shouted,
the NPA will be victorious. Masamlok likewise
Identified the pamphlets as those marked as Exh.
exhibits "B", "C", and "D" for the prosecution.
(TSN, pages 75, 76 and 77, Hearing-January 4,
1983)

Other speakers in said meeting were Pedipol,

Jamper and Oscar Gomez, who likewise
expounded their own opinions about the NPA. It
was also announced in said seminar that a certain
Tonio Burgos, will be responsible for the collection
of the contribution from the members. (TSN,
pages 78-79, Hearing- January 4, 1983)
On May 12, 1982, however, Cesar Masamlok
surrendered to Captain Bargio of the Provincial
Headquarters of the Philippine Constabulary,
Digos, Davao del Sur.
Assistant Provincial Fiscal Panfilo Lovitos was
presented t prove that on May 19, 1982, he
administered the subscription of th extra-judicial
confession of accused Ruben Burgos, marked as
Exhibit "E " for the prosecution, consisting of five
(5) pages.
Appearing voluntarily in said office, for the
subscription of his confession, Fiscal Lovitos,
realizing that accused was not represented by
counsel, requested the services of Atty. Anyog,
whose office is adjacent to the Fiscal's Office, to
assist accused in the subscription of his extrajudicial statement.
Atty. Anyog assisted accused in the reading of his
confession from English to Visayan language,
resulting to the deletion of question No. 19 of the
document, by an inserted certification of Atty.
Anyog and signature of accused, indicating his
having understood, the allegations of his extrajudicial statement.

94
Fiscal Lovitos, before accused signed his
statement, explained to him his constitutional
rights to remain silent, right to counsel and right to
answer any question propounded or not.
With the aid of Atty. Anyog, accused signed his
confession in the presence of Atty. Anyog and
Fiscal Lovitos, without the presence of military
authorities, who escorted the accused, but were
sent outside the cubicle of Fiscal Lovitos while
waiting for the accused. (TSN, pages 36-40,
nearing November 15, 1982)
Finally, in order to prove illegal possession by
accused of the subject firearm, Sgt. Epifanio
Comabig in-charge of firearms and explosives,
NCO Headquarter, Philippine Constabulary,
Digos, Davao del Sur, was presented and
testified, that among the lists of firearm holders in
Davao del Sur, nothing was listed in the name of
accused Ruben Burgos, neither was his name
included among the lists of persons who applied
for the licensing of the firearm under Presidential
Decree No. 1745.
After the above-testimony the prosecution formally
closed its case and offered its exhibits, which
were all admitted in evidence, despite objection
interposed by counsel for accused, which was
accordingly overruled.
On the other hand, the defendant-appellant's version of the case
against him is stated in the decision as follows:
From his farm, the military personnel, whom he
said he cannot recognize, brought him to the PC
Barracks at Digos, Davao del Sur, and arrived

there at about 3:00 o'clock, on the same date. At

about 8:00 o'clock P.M., in the evening, he was
investigated by soldiers, whom he cannot Identify
because they were wearing a civilian attire. (TSN,
page 14 1, Hearing-June 15, 1983)
The investigation was conducted in the PC
barracks, where he was detained with respect to
the subject firearm, which the investigator, wished
him to admit but accused denied its ownership.
Because of his refusal accused was mauled,
hitting him on the left and right side of his body
which rendered him unconscious. Accused in an
atmosphere of tersed solemnity, crying and with
emotional attachment, described in detail how he
was tortured and the ordeals he was subjected.
He said, after recovery of his consciousness, he
was again confronted with subject firearm, Exhibit
"A", for him to admit and when he repeatedly
refused to accept as his own firearm, he was
subjected to further prolong (sic) torture and
physical agony. Accused said, his eyes were
covered with wet black cloth with pungent effect
on his eyes. He was undressed, with only
blindfold, pungent water poured in his body and
over his private parts, making his entire body,
particularly his penis and testicle, terribly irritating
with pungent pain.
All along, he was investigated to obtain his
admission, The process of beating, mauling, pain
and/or ordeal was repeatedly done in similar
cycle, from May 13 and 14, 1982. intercepted only
whenever he fell unconscious and again repeated
after recovery of his senses,

95
Finally on May 15, 1982, after undergoing the
same torture and physical ordeal he was seriously
warned, if he will still adamantly refuse to accept
ownership of the subject firearm, he will be
salvaged, and no longer able to bear any further
the pain and agony, accused admitted ownership
of subject firearm.

accused, involving her to such NPA personalities,

as Jamper, Pol, Anthony, etc., were not true
because on the date referred on April 28, 1982,
none of the persons mentioned came to her
house for treatment, neither did she meet the
accused nor able to talk with him. (TSN, pages
118- 121, Hearing-May 18, 1983)

After his admission, the mauling and torture

stopped, but accused was made to sign his
affidavit marked as Exhibit "E" for the prosecution,
consisting of five (5) pages, including the
certification of the administering officer, (TSN,
pages 141-148, Hearing-June 15, 1983)

She, however, admitted being familiar with one

Oscar Gomez, and that she was personally
charged with subversion in the Office of the
Provincial Commander, Philippine Constabulary,
Digos, Davao del Sur, but said charge was
dismissed without reaching the Court. She
likewise stated that her son, Rogelio Arellano, was
likewise charged for subversion filed in the
Municipal Trial Court of Digos, Davao del Sur, but
was likewise dismissed for lack of sufficient
evidence to sustain his conviction. (TSN, pages
121-122, in relation to her cross-examination,
Hearing-May 18, 1983)

In addition to how he described the torture

inflicted on him, accused, by way of explanation
and commentary in details, and going one by one,
the allegations and/or contents of his alleged
extrajudicial statement, attributed his answers to
those questions involuntarily made only because
of fear, threat and intimidation of his person and
family, as a result of unbearable excruciating pain
he was subjected by an investigator, who,
unfortunately he cannot Identify and was able to
obtain his admission of the subject firearm, by
force and violence exerted over his person.
To support denial of accused of being involved in
any subversive activities, and also to support his
denial to the truth of his alleged extra-judicial
confession, particularly questions Nos. 35, 38, 41,
42, 43, 44, 45, 46 and 47, along with qqqs
answers to those questions, involving Honorata
Arellano ahas Inday Arellano, said Honorata
Arellano appeared and declared categorically, that
the above-questions embraced in the numbers
allegedly stated in the extrajudicial confession of

To support accused's denial of the charge against

him, Barangay Captain of Tiguman, Digos, Davao
del Sur, Salvador qqqGalaraga was presented,
who declared, he was not personally aware of any
subversive activities of accused, being his
neighbor and member of his barrio. On the
contrary, he can personally attest to his good
character and reputation, as a law abiding citizen
of his barrio, being a carpenter and farmer
thereat. (TSl pages 128-129, Hearing-May 18,
1983)
He however, admitted in cross-examination, that
there were a lot of arrests made by the authorities
in his barrio involving subversive activities but
they were released and were not formally charged

96
in Court because they publicly took their oath of
allegiance with the government. (TSN, pages 133134, in relation to page 136, Hearing-May 18,
1983)
Finally, to support accused's denial of the subject
firearm, his wife, Urbana Burgos, was presented
and who testified that the subject firearm was left
in their house by Cesar Masamlok and one
Pedipol on May 10, 1982. It was night time, when
the two left the gun, alleging that it was not in
order, and that they will leave it behind,
temporarily for them to claim it later. They were
the ones who buried it. She said, her husband, the
accused, was not in their house at that time and
that she did not inform him about said firearm
neither did she report the matter to the authorities,
for fear of the life of her husband. (TSN, page 24,
November 22, 1983)
On cross-examination, she said, even if
Masamlok during the recovery of the firearm, was
wearing a mask, she can still Identify him. (TSN,
page 6, Hearing-November 22, 1983)
After the above-testimony, accused through
counsel formally rested his case in support of
accused's through counsel manifestation for the
demurrer to evidence of the prosecution, or in the
alternative for violation merely of simple illegal
possession of firearm, 'under the Revised
Administrative Code, as amended by Republic Act
No. 4, reflected in the manifestation of counsel for
accused. (TSN, pages 113-114, Hearing-May 18,
1983)
Accused-appellant Ruben Burgos now raises the following
assignments of error, to wit:

I THE TRIAL COURT ERRED IN HOLDING THAT

(SIC) THE ARREST OF ACCUSED-APPELLANT
WITHOUT VALID WARRANT TO BE LAWFUL.
II THE TRIAL COURT ERRED IN HOLDING THE
SEARCH IN THE HOUSE OF ACCUSEDAPPELLANT FOR FIREARM WITHOUT VALID
WARRANT TO BE LAWFUL.
III THE TRIAL COURT ERRED IN HOLDING
ACCUSED-APPELLANT GUILTY BEYOND
REASONABLE DOUBT FOR VIOLATION OF P.D.
No. 9 IN RELATION TO GENERAL ORDERS
NOS. 6 AND 7
Was the arrest of Ruben Burgos lawful? Were the search of his
house and the subsequent confiscation of a firearm and
documents allegedly found therein conducted in a lawful and valid
manner? Does the evidence sustaining the crime charged meet
the test of proving guilt beyond reasonable doubt?
The records of the case disclose that when the police authorities
went to the house of Ruben Burgos for the purpose of arresting
him upon information given by Cesar Masamlok that the accused
allegedly recruited him to join the New People's Army (NPA), they
did not have any warrant of arrest or search warrant with them
(TSN, p. 25, October 14, 1982; and TSN, p. 61, November 15,
1982).
Article IV, Section 3 of the Constitution provides:
The right of the people to be secure in their
persons, houses, papers, and effects against
unreasonable searches and seizures of whatever
nature and for any purpose shall not be violated,
and no search warrant or warrant of arrest shall
issue except upon probable cause to be

97
determined by the judge, or such other
responsible officer as may be authorized by law,
after examination under oath or affirmation of the
complainant and the witnesses he may produce,
and particularly describing the place to be
searched, and the persons or things to be seized.

constitutional protection against the long reach of

government is no legs than to value human
dignity, and that his privacy must not be disturbed
except in case of overriding social need, and then
only under stringent procedural safeguards.' (Ibid,
p. 47).

The constitutional provision is a safeguard against wanton and

unreasonable invasion of the privacy and liberty of a citizen as to
his person, papers and effects. This Court explained in Villanueva
vs. Querubin (48 SCRA 345) why this right is so important:

The trial court justified the arrest of the accused-appelant without

any warrant as falling under one of the instances when arrests
may be validly made without a warrant. Rule 113, Section 6 * of
the Rules of Court, provides the exceptions as follows:

It is deference to one's personality that lies at the

core of this right, but it could be also looked upon
as a recognition of a constitutionally protected
area, primarily one's home, but not necessarily
thereto confined. (Cf. Hoffa v. United States, 385
US 293 [19661) What is sought to be guarded is a
man's prerogative to choose who is allowed entry
to his residence. In that haven of refuge, his
individuality can assert itself not only in the choice
of who shall be welcome but likewise in the kind of
objects he wants around him. There the state,
however powerful, does not as such have access
except under the circumstances above noted, for
in the traditional formulation, his house, however
humble, is his castle. Thus is outlawed any
unwarranted intrusion by government, which is
called upon to refrain from any invasion of his
dwelling and to respect the privacies of his life,
(Cf. Schmerber v. California, 384 US 757 [1966],
Brennan, J. and Boyd v. United States, 116 US
616, 630 [1886]). In the same vein, Landynski in
his authoritative work (Search and Seizure and
the Supreme Court [1966], could fitly characterize
this constitutional right as the embodiment of a
'spiritual concept: the belief that to value the
privacy of home and person and to afford its

a) When the person to be arrested has committed, is actually

committing, or is about to commit an offense in his presence;
b) When an offense has in fact been committed, and he has
reasonable ground to believe that the person to be arrested has
committed it;
c) When the person to be arrested is a prisoner who has escaped
from a penal establishment or place where he is serving final
judgment or temporarily confined while his case is pending or has
escaped while being transferred from one confinement to another.
The Court stated that even if there was no warrant for the arrest
of Burgos, the fact that "the authorities received an urgent report
of accused's involvement in subversive activities from a reliable
source (report of Cesar Masamlok) the circumstances of his
arrest, even without judicial warrant, is lawfully within the ambit of
Section 6-A of Rule 113 of the Rules of Court and applicable
jurisprudence on the matter."
If the arrest is valid, the consequent search and seizure of the
firearm and the alleged subversive documents would become an
incident to a lawful arrest as provided by Rule 126, Section 12,
which states:

98
A person charged with an offense may be
searched for dangerous weapons or anything
which may be used as proof of the commission of
the offense.
The conclusions reached by the trial court are erroneous.
Under Section 6(a) of Rule 113, the officer arresting a person who
has just committed, is committing, or is about to commit an
offense must have personal knowledge of that fact. The offense
must also be committed in his presence or within his view. (Sayo
v. Chief of Police, 80 Phil. 859).
There is no such personal knowledge in this case. Whatever
knowledge was possessed by the arresting officers, it came in its
entirety from the information furnished by Cesar Masamlok. The
location of the firearm was given by the appellant's wife.
At the time of the appellant's arrest, he was not in actual
possession of any firearm or subversive document. Neither was
he committing any act which could be described as subversive.
He was, in fact, plowing his field at the time of the arrest.
The right of a person to be secure against any unreasonable
seizure of his body and any deprivation of his liberty is a most
basic and fundamental one. The statute or rule which allows
exceptions to the requirement of warrants of arrest is strictly
construed. Any exception must clearly fall within the situations
when securing a warrant would be absurd or is manifestly
unnecessary as provided by the Rule. We cannot liberally
construe the rule on arrests without warrant or extend its
application beyond the cases specifically provided by law. To do
so would infringe upon personal liberty and set back a basic right
so often violated and so deserving of full protection.
The Solicitor General is of the persuasion that the arrest may still
be considered lawful under Section 6(b) using the test of

reasonableness. He submits that. the information given by Cesar

Masamlok was sufficient to induce a reasonable ground that a
crime has been committed and that the accused is probably guilty
thereof.
In arrests without a warrant under Section 6(b), however, it is not
enough that there is reasonable ground to believe that the person
to be arrested has committed a crime. A crime must in fact
or actually have been committed first. That a crime has actually
been committed is an essential precondition. It is not enough to
suspect that a crime may have been committed. The fact of the
commission of the offense must be undisputed. The test of
reasonable ground applies only to the identity of the perpetrator.
In this case, the accused was arrested on the sole basis of
Masamlok's verbal report. Masamlok led the authorities to
suspect that the accused had committed a crime. They were still
fishing for evidence of a crime not yet ascertained. The
subsequent recovery of the subject firearm on the basis of
information from the lips of a frightened wife cannot make the
arrest lawful, If an arrest without warrant is unlawful at the
moment it is made, generally nothing that happened or is
discovered afterwards can make it lawful. The fruit of a poisoned
tree is necessarily also tainted.
More important, we find no compelling reason for the haste with
which the arresting officers sought to arrest the accused. We fail
to see why they failed to first go through the process of obtaining
a warrant of arrest, if indeed they had reasonable ground to
believe that the accused had truly committed a crime. There is no
showing that there was a real apprehension that the accused was
on the verge of flight or escape. Likewise, there is no showing
that the whereabouts of the accused were unknown,
The basis for the action taken by the arresting officer was the
verbal report made by Masamlok who was not required to
subscribe his allegations under oath. There was no compulsion
for him to state truthfully his charges under pain of criminal

99
prosecution. (TSN, p. 24, October 14, 1982). Consequently, the
need to go through the process of securing a search warrant and
a warrant of arrest becomes even more clear. The arrest of the
accused while he was plowing his field is illegal. The arrest being
unlawful, the search and seizure which transpired afterwards
could not likewise be deemed legal as being mere incidents to a
valid arrest.
Neither can it be presumed that there was a waiver, or that
consent was given by the accused to be searched simply
because he failed to object. To constitute a waiver, it must appear
first that the right exists; secondly, that the person involved had
knowledge, actual or constructive, of the existence of such a
right; and lastly, that said person had an actual intention to
relinquish the right (Pasion Vda. de Garcia v. Locsin, 65 Phil.
689). The fact that the accused failed to object to the entry into
his house does not amount to a permission to make a search
therein (Magoncia v. Palacio, 80 Phil. 770). As pointed out by
Justice Laurel in the case of Pasion Vda. de Garcia V. Locsin
(supra)
xxx xxx xxx
. . . As the constitutional guaranty is not
dependent upon any affirmative act of the citizen,
the courts do not place the citizen in the position
of either contesting an officer's authority by force,
or waiving his constitutional rights; but instead
they hold that a peaceful submission to a search
or seizure is not a consent or an invitation thereto,
but is merely a demonstration of regard for the
supremacy of the law. (56 C.J., pp. 1180, 1181).
We apply the rule that: "courts indulge every reasonable
presumption against waiver of fundamental constitutional rights
and that we do not presume acquiescence in the loss of
fundamental rights." (Johnson v. Zerbst 304 U.S. 458).

That the accused-appellant was not apprised of any of his

constitutional rights at the time of his arrest is evident from the
records:
A CALAMBA:
Q When you went to the area to
arrest Ruben Burgos, you were
not armed with an arrest warrant?
A None Sir.
Q Neither were you armed with a
search warrant?
A No Sir.
Q As a matter of fact, Burgos was
not present in his house when you
went there?
A But he was twenty meters away
from his house.
Q Ruben Burgos was then plowing
his field?
A Yes Sir.
Q When you called for Ruben
Burgos you interviewed him?
A Yes Sir.
Q And that you told him that
Masamlok implicated him?

100
A No Sir.

(TSN, pp. 25-26, Hearing-October

14, 1982)

Q What did you tell him?

A That we received information
that you have a firearm, you
surrender that firearm, first he
denied but when Sgt. Buncalan
interviewed his wife, his wife told
him that it is buried, I dug the
firearm which was wrapped with a
cellophane.
Q In your interview of Burgos you
did not remind him of his rights
under the constitution considering
that he was purposely under
arrest?
A I did not.
Q As a matter of fact, he denied
that he has ever a gun?
A Yes Sir.
Q As a matter of fact, the gun was
not in his possession?
A It was buried down in his horse.
Q As a matter of fact, Burgos did
not point to where it was buried?
A Yes Sir.

Considering that the questioned firearm and the alleged

subversive documents were obtained in violation of the accused's
constitutional rights against unreasonable searches and seizures,
it follows that they are inadmissible as evidence.
There is another aspect of this case.
In proving ownership of the questioned firearm and alleged
subversive documents, the prosecution presented the two
arresting officers who testified that the accused readily admitted
ownership of the gun after qqqs wife pointed to the place where it
was buried. The officers stated that it was the accused himself
who voluntarily pointed to the place where the alleged subversive
documents were hidden.
Assuming this to be true, it should be recalled that the accused
was never informed of his constitutional rights at the time of his
arrest. So that when the accused allegedly admitted ownership of
the gun and pointed to the location of the subversive documents
after questioning, the admissions were obtained in violation of the
constitutional right against self-incrimination under Sec. 20 of Art.
IV of the Bill of Rights winch provides:
No person shall be compelled to be a witness
against himself. Any person under investigation
for the commission of an offense shall have the
right to remain silent and to counsel, and to be
informed of such right.. . .
The Constitution itself mandates that any evidence obtained in
violation of this right is inadmissible in evidence. Consequently,
the testimonies of the arresting officers as to the admissions
made by the appellant cannot be used against him.

101
The trial court validly rejected the extra-judicial confession of the
accused as inadmissible in evidence. The court stated that the
appellant's having been exhaustively subjected to physical terror,
violence, and third degree measures may not have been
supported by reliable evidence but the failure to present the
investigator who conducted the investigation gives rise to the
"provocative presumption" that indeed torture and physical
violence may have been committed as stated.
The accused-appellant was not accorded his constitutional right
to be assisted by counsel during the custodial interrogation. The
lower court correctly pointed out that the securing of counsel, Atty.
Anyog, to help the accused when he subscribed under oath to his
statement at the Fiscal's Office was too late. It could have no
palliative effect. It cannot cure the absence of counsel at the time
of the custodial investigation when the extrajudicial statement
was being taken.
With the extra-judicial confession, the firearm, and the alleged
subversive documents inadmissible in evidence against the
accused-appellant, the only remaining proof to sustain the charge
of Illegal Possession of Firearm in Furtherance of Subversion is
the testimony of Cesar Masamlok.
We find the testimony of Masamlok inadequate to convict Burgos
beyond reasonable doubt. It is true that the trial court found
Masamlok's testimony credible and convincing. However, we are
not necessarily bound by the credibility which the trial court
attaches to a particular witness. As stated in People vs..
Cabrera (100 SCRA 424):
xxx xxx xxx
. . .Time and again we have stated that when it
comes to question of credibility the findings of the
trial court are entitled to great respect upon
appeal for the obvious reason th+at it was able to

observe the demeanor, actuations and

deportment of the witnesses during the trial. But
we have also said that this rule is not absolute for
otherwise there would be no reversals of
convictions upon appeal. We must reject the
findings of the trial court where the record
discloses circumstances of weight and substance
which were not properly appreciated by the trial
court.
The situation under which Cesar Masamlok testified is analogous
to that found in People vs. Capadocia (17 SCRA 98 1):
. . . The case against appellant is built on
Ternura's testimony, and the issue hinges on how
much credence can be accorded to him. The first
consideration is that said testimony stands
uncorroborated. Ternura was the only witness who
testified on the mimeographing incident. . . .
xxx xxx xxx
. . .He was a confessed Huk under detention at
the time. He knew his fate depended upon how
much he cooperated with the authorities, who
were then engaged in a vigorous anti-dissident
campaign. As in the case of Rodrigo de Jesus,
whose testimony We discounted for the same
reason, that of Ternura cannot be considered as
proceeding from a totally unbiased source. . . .
In the instant case, Masamlok's testimony was totally
uncorroborated. Considering that Masamlok surrendered to the
military certainly his fate depended on how eagerly he cooperated
with the authorities. Otherwise, he would also be charged with
subversion. The trade-off appears to be his membership in the
Civil Home Defense Force. (TSN, p. 83, January 4, 1983).

102
Masamlok may be considered as an interested witness. It can not
be said that his testimony is free from the opportunity and
temptation to be exaggerated and even fabricated for it was
intended to secure his freedom.
Despite the fact that there were other persons present during the
alleged NPA seminar of April 19, 1982 i.e., Masamlok's father
,Matuguil Masamlok, Isabel Ilan and Ayok Ides (TSN, p. 74,
January 4, 1983) who could have corroborated Cesar Masamlok's
testimony that the accused used the gun in furtherance of
subversive activities or actually engaged in subversive acts, the
prosecution never presented any other witness.
This Court is, therefore, constrained to rule that the evidence
presented by the prosecution is insufficient to prove the guilt of
the accused beyond reasonable doubt.
As held in the case of People vs. Baia (34 SCRA 347):
It is evident that once again, reliance can be
placed on People v. Dramayo (42 SCRA 59),
where after stressing that accusation is not,
according to the fundamental law, synonymous
with guilt, it was made clear: 'Only if the judge
below and the appellate tribunal could arrive at a
conclusion that the crime had been committed
precisely by the person on trial under such an
exacting test should the sentence be one of
conviction. It is thus required that every
circumstance favoring his innocence be duly
taken into account. The proof against him must
survive the test of reason; the strongest suspicion
must not be permitted to sway judgment. The
conscience must be satisfied that on the
defendant could be laid the responsibility for the
offense charged; that not only did he perpetrate
the act but that it amounted to a crime. What is
required then is moral certainty.' (Ibid, 64. Cf.

People v. Alvarez, 55 SCRA 81; People v. Joven,

64 SCRA 126; People vs. Ramirez, 69 SCRA 144;
People vs. Godov 72 SCRA 69; People v. Lopez,
74 SCRA 205; People v. Poblador, 76 SCRA 634;
People v. Quiazon, 78 SCRA 513; People v.
Nazareno, 80 SCRA 484; People vs. Gabilan 115
SCRA 1; People v. Gabiana, 117 SCRA 260; and
People vs. Ibanga 124 SCRA 697).
We are aware of the serious problems faced by the military in
Davao del Sur where there appears to be a well-organized plan to
overthrow the Government through armed struggle and replace it
with an alien system based on a foreign ideology. The open
defiance against duly constituted authorities has resulted in
unfortunate levels of violence and human suffering publicized all
over the country and abroad. Even as we reiterate the need for all
freedom loving citizens to assist the military authorities in their
legitimate efforts to maintain peace and national security, we must
also remember the dictum in Morales vs. Enrile (1 21 SCRA 538,
569) when this Court stated:
While the government should continue to repel the
communists, the subversives, the rebels, and the
lawless with an the means at its command, it
should always be remembered that whatever
action is taken must always be within the
framework of our Constitution and our laws.
Violations of human rights do not help in overcoming a rebellion.
A cavalier attitude towards constitutional liberties and protections
will only fan the increase of subversive activities instead of
containing and suppressing them.
WHEREFORE, the judgment of conviction rendered by the trial
court is REVERSED and SET ASIDE. The accused-appellant is
hereby ACQUITTED, on grounds of reasonable doubt, of the
crime with which he has been charged.

103
The subject firearm involved in this case (homemade revolver,
caliber .38, Smith and Wesson, with Serial No. 8.69221) and the
alleged subversive documents are ordered disposed of in
accordance with law.
Cost de oficio.
SO ORDERED.

has escaped while being transferred from one

confinement to another.
In cases falling under paragraphs (a) and (b)
hereof, the person arrested without a warrant shall
be forthwith delivered to the nearest Police station
or i jail and he shall be proceeded against in
accordance with Rule 11 2, Section 7. 6a 17a).

Feria (Chairman), Fernan, Alampay and Paras, JJ., concur.

Footnotes

* The 1985 Rules on Criminal Procedure have

made clearer the exceptions when an arrest may
be made without warrant. Rule 113, Section 5
provides:
FIRST DIVISION
Arrest without warrant when lawful. A peace
officer or a private person may, without a warrant,
arrest a person:
(a) When, in his presence, the person to be
arrested has committed, is actually committing, or
is attempting to commit an offense,
(b) When an offense has in fact just been
committed, and he has personal knowledge of
facts indicating that the person to be arrested has
committed it; and
(c) When the person to be arrested is a prisoner
who has escaped from a penal establishment or
place where he is serving final judgment or
temporarily confined while his case is pending, or

G.R. No. L-37007

July 20, 1987

RAMON S. MILO, in his capacity as Assistant Provincial

Fiscal of Pangasinan, and ARMANDO VALDEZ,petitioners,
vs.
ANGELITO C. SALANGA, in his capacity as Judge of the
Court of First Instance of Pangasinan (Branch IV), and JUAN
TUVERA, SR., respondents.
GANCAYCO, J.:
This is a petition for review on certiorari of an order of the Court of
First Instance of Pangasinan, Third Judicial District, in Criminal
Case No. D-529 entitled "The People of the Philippines versus
Juan Tuvera, Sr., et al.," granting the motion to quash the
information filed by accused Juan Tuvera, Sr., herein respondent.

104
The issue is whether a barrio captain can be charged of arbitrary
detention.

CONTRARY TO ARTICLE 124 of the R.P.C.

Dagupan City, October 12, 1972.

The facts are as follows:

On October 12, 1972, an information for Arbitrary Detention was
filed against Juan Tuvera, Sr., Tomas Mendoza and Rodolfo
Mangsat, in the Court of First Instance of Pangasinan, which
reads as follows:

(SGD.) VICENTE C. CALDONA

Assistant Provincial Fiscal
All the accused, including respondent Juan Tuvera, Sr., were
arraigned and pleaded not guilty.

The undersigned Assistant Provincial Fiscal

accuses Juan Tuvera, Sr., Tomas Mendoza and
Rodolfo Mangsat alias Rudy, all of Manaoag,
Pangasinan, of the crime of ARBITRARY
DETENTION, committed as follows:

On April 4, 1973, Tuvera filed a motion to quash the information

on the ground that the facts charged do not constitute an offense
and that the proofs adduced at the investigation are not sufficient
to support the filing of the information. Petitioner Assistant
Provincial Fiscal Ramon S. Milo filed an opposition thereto.

That on or about the 21st day of April 1973, at

around 10:00 o'clock in the evening, in barrio
Baguinay, Manaoag, Pangasinan, Philippines and
within the jurisdiction of this Honorable Court,
accused Juan Tuvera, Sr., a barrio captain, with
the aid of some other private persons, namely
Juan Tuvera, Jr., Bertillo Bataoil and one Dianong,
maltreated one Armando Valdez by hitting with
butts of their guns and fists blows and
immediately thereafter, without legal grounds, with
deliberate intent to deprive said Armando Valdez
of his constitutional liberty, accused Barrio captain
Juan Tuvera, Sr., Cpl. Tomas Mendoza and Pat.
Rodolfo Mangsat, members of the police force of
Mangsat, Pangasinan conspiring, confederating
and helping one another, did, then and there,
willfully, unlawfully and feloniously, lodge and lock
said Armando Valdez inside the municipal jail of
Manaoag, Pangasinan for about eleven (11)
hours. (Emphasis supplied.)

Finding that respondent Juan Tuvera, Sr. was not a public officer
who can be charged with Arbitrary Detention, respondent Judge
Angelito C. Salanga granted the motion to quash in an order
dated April 25, 1973.
Hence, this petition.
Arbitrary Detention is committed by a public officer who, without
legal grounds, detains a person.1 The elements of this crime are
the following:
1. That the offender is a public officer or employee.
2. That he detains a person.
3. That the detention is without legal grounds.2
The ground relied upon by private respondent Tuvera for his
motion to quash the information which was sustained by
respondent Judge, is that the facts charged do not constitute an

105
offense,3 that is, that the facts alleged in the information do not
constitute the elements of Arbitrary Detention.
The Information charges Tuvera, a barrio captain, to have
conspired with Cpl. Mendoza and Pat. Mangsat, who are
members of the police force of Manaoag, Pangasinan in detaining
petitioner Valdez for about eleven (11) hours in the municipal jail
without legal ground. No doubt the last two elements of the crime
are present.
The only question is whether or not Tuvera, Sr., a barrio captain is
a public officer who can be liable for the crime of Arbitrary
Detention.
The public officers liable for Arbitrary Detention must be vested
with authority to detain or order the detention of persons accused
of a crime. Such public officers are the policemen and other
agents of the law, the judges or mayors.4
Respondent Judge Salanga did not consider private respondent
Tuvera as such public officer when the former made this finding in
the questioned order:
Apparently, if Armando Valdez was ever jailed and
detained more than six (6) hours, Juan Tuvera, Sr., has
nothing to do with the same because he is not in any way
connected with the Police Force of Manaoag,
Pangasinan. Granting that it was Tuvera, Sr., who ordered
Valdez arrested, it was not he who detained and jailed
him because he has no such authority vested in him as a
mere Barrio Captain of Barrio Baguinay, Manaoag,
Pangasinan. 5
In line with the above finding of respondent Judge Salanga,
private respondent Tuvera asserts that the motion to quash was
properly sustained for the following reasons: (1) That he did not
have the authority to make arrest, nor jail and detain petitioner

Valdez as a mere barrio captain;6 (2) That he is neither a peace

officer nor a policeman,7(3) That he was not a public official;8 (4)
That he had nothing to do with the detention of petitioner
Valdez;9 (5) That he is not connected directly or indirectly in the
administration of the Manaoag Police Force;10 (6) That barrio
captains on April 21, 1972 were not yet considered as persons in
authority and that it was only upon the promulgation of
Presidential Decree No. 299 that Barrio Captain and Heads of
Barangays were decreed among those who are persons in
authority;11 and that the proper charge was Illegal Detention and
Not Arbitrary Detention.12
We disagree.
Long before Presidential Decree 299 was signed into law, barrio
lieutenants (who were later named barrio captains and now
barangay captains) were recognized as persons in authority. In
various cases, this Court deemed them as persons in authority,
and convicted them of Arbitrary Detention.
In U.S. vs. Braganza,13 Martin Salibio, a barrio lieutenant, and
Hilario Braganza, a municipal councilor, arrested Father Feliciano
Gomez while he was in his church. They made him pass through
the door of the vestry and afterwards took him to the municipal
building. There, they told him that he was under arrest. The priest
had not committed any crime. The two public officials were
convicted of Arbitrary Detention.14
In U.S. vs. Gellada,15 Geronimo Gellada, a barrio lieutenant, with
the help of Filoteo Soliman, bound and tied his houseboy Sixto
Gentugas with a rope at around 6:00 p.m. and delivered him to
the justice of the peace. Sixto was detained during the whole
night and until 9:00 a.m. of the next day when he was ordered
released by the justice of the peace because he had not
committed any crime, Gellada was convicted of Arbitrary
Detention.16

106
Under Republic Act No. 3590, otherwise known as The Revised
Barrio Charter, the powers and duties of a barrio captain include
the following: to look after the maintenance of public order in the
barrio and to assist the municipal mayor and the municipal
councilor in charge of the district in the performance of their
duties in such barrio;17 to look after the general welfare of the
barrio;18 to enforce all laws and ordinances which are operative
within the barrio;19and to organize and lead an emergency group
whenever the same may be necessary for the maintenance of
peace and order within the barrio.20

jurisdiction is smaller. Having the same duty of maintaining peace

and order, both must be and are given the authority to detain or
order detention. Noteworthy is the fact that even private
respondent Tuvera himself admitted that with the aid of his rural
police, he as a barrio captain, could have led the arrest of
petitioner Valdez.24

In his treatise on Barrio Government Law and Administration,

Professor Jose M. Aruego has this to say about the abovementioned powers and duties of a Barrio Captain, to wit:

Next, private respondent Tuvera, Sr. contends that the motion to

quash was validly granted as the facts and evidence on record
show that there was no crime of Arbitrary Detention;25 that he only
sought the aid and assistance of the Manaoag Police Force; 26 and
that he only accompanied petitioner Valdez to town for the latter's
personal safety.27

"Upon the barrio captain depends in the main the maintenance of

public order in the barrio. For public disorder therein, inevitably
people blame him.
"In the event that there be a disturbing act to said public order or
a threat to disturb public order, what can the barrio captain do?
Understandably, he first resorts to peaceful measures. He may
take preventive measures like placing the offenders under
surveillance and persuading them, where possible, to behave
well, but when necessary, he may subject them to the full force of
law.
"He is a peace officer in the barrio considered under the law as a
person in authority. As such, he may make arrest and detain
persons within legal limits.21 (Emphasis supplied.)
One need not be a police officer to be chargeable with Arbitrary
Detention. It is accepted that other public officers like judges and
mayors, who act with abuse of their functions, may be guilty of
this crime.22 A perusal of the powers and function vested in
mayors would show that they are similar to those of a barrio
captain23 except that in the case of the latter, his territorial

From the foregoing, there is no doubt that a barrio captain, like

private respondent Tuvera, Sr., can be held liable for Arbitrary
Detention.

Suffice it to say that the above allegations can only be raised as a

defense at the trial as they traverse what is alleged in the
Information. We have repeatedly held that Courts, in resolving a
motion to quash, cannot consider facts contrary to those alleged
in the information or which do not appear on the face of the
information. This is because a motion to quash is a hypothetical
admission of the facts alleged in the information.28 Matters of
defense cannot be proved during the hearing of such a motion,
except where the Rules expressly permit, such as extinction of
criminal liability, prescription, and former jeopardy.29 In the case
of U.S. vs. Perez,30 this Court held that a motion to quash on the
ground that the facts charged do not constitute an offense cannot
allege new facts not only different but diametrically opposed to
those alleged in the complaint. This rule admits of only one
exception and that is when such facts are admitted by the
prosecution.31
lawphi1

Lastly, private respondent claims that by the lower court's

granting of the motion to quash jeopardy has already attached in

107
his favor32 on the ground that here, the case was dismissed or
otherwise terminated without his express consent.

(b) That the court trying the case has no

jurisdiction over the offense charged or the person
of the accused;

Respondent's contention holds no water. An order granting a

motion to quash, unlike one of denial, is a final order. It is not
merely interlocutory and is therefore immediately appealable. The
accused cannot claim double jeopardy as the dismissal was
secured not only with his consent but at his instance.33

(c) That the officer who filed the information had

no authority to do so;
(d) That it does not conform substantially in the
probed form;

WHEREFORE, in view of the foregoing, the Petition for certiorari

is GRANTED. The questioned Order of April 25, 1973 in Criminal
Case No. D-529 is hereby set aside. Let this case be remanded
to the appropriate trial court for further proceedings. No
pronouncement as to costs.

(e) That more than one offense is charged except

in those cases in which existing laws prescribe a
single punishment for various offenses;

SO ORDERED.

(f) That the criminal action or liability has been

extinguished;

Teehankee, C.J., Narvasa, Cruz and Paras, JJ., concur.

(g) That it contains averments which, if true, would

constitute a legal excuse or justification; and
(h) That the accused has been previously
convicted or in jeopardy of being convicted, or
acquitted of the offense charged.

Footnotes
1

Respondent Tuvera set forth another ground in his

motion to quash which is not included in the
above enumeration and will therefore not be
discussed in this decision

Art. 124, Revised Penal Code.

Supra U.S. vs. Braganza, et al., 10 Phil, 79; Reyes, The

Revised Penal Code, Book Two, 1981 Ed., p. 39.
2

Under Rule 117, Sec. 3 of the Rules of Court, the

following are the grounds on which an accused may move
to quash a complaint or information on any of the
following grounds.
3

(a) That the facts charged do not constitute an

offense;

Reyes, The Revised Penal Code, Book 11, 1981 ed., p.

39.
4

Page 23, Rollo.

Page 46, Rollo.

108
7

Page 46, Rollo.

23

Sections 88 and 171 of the Local Government Code.

Page 49, Rollo.

24

Page 46, Rollo.

Page 43, Rollo.

25

Page 51, Rollo.

10

Pages 43-44, Rollo.

26

Page 46, Rollo.

11

Page 43, Rollo.

27

Ibid.

12

Page 19, Rollo.

28

13

10 Phil. 79.

People vs. Lim Hoa 103 Phil. 1169; See also Regalado,
Remedial Law Compensation, 1085 ed., Vol. 2, p. 684.
Sections 2 and 3, Rule 117, Rules of Court; supra, 1985
Rules on Criminal Procedure; Moran, Comments on the
Rules of Court, 1980 ed., Vol. 4, p. 236.
29

See Aquino, The Revised Penal Code, 1976 Ed., Vol. 2,

p. 822.
14

15

15 Phil. 120.

See Aquino, The Revised Penal Code, 1976 Ed. Vol. 2,

pp. 822-823.
16

17

30

1 Phil. 203.

31

People vs. Navarro, 75 Phil, 516.

32

Page 52, Rollo.

Sec. 14c, R.A. 3590.

Section 8, Rule 117, Rules of Court; now Section 7,
Rule 117, 1985 Rules on Criminal Procedure; Andres vs.
Cacdac, Jr., 113 SCRA 216.
33

18

Sec. 14, R.A. 3590.

19

Sec.14a, R.A. 3590.

20

Sec. 14f, R.A. 3590.

21

1968 Ed., p. 71.

Reyes, The Revised Penal Code, Book Two, 1981 ed.,

p. 40; Aquino, The Revised Penal Code, 1976 ed., Vol. 2,
p. 821.
22