RULE 114

Bail

Section 1. Bail defined. Bail is the security given for the release of a person in custody of the law,
furnished by him or a bondsman, to guarantee his appearance before any court as required under the
conditions hereinafter specified. Bail may be given in the form of corporate surety, property bond,
cash deposit, or recognizance. (1a)

Section 2. Conditions of the bail; requirements. All kinds of bail are subject to the following
conditions:

(a) The undertaking shall be effective upon approval, and unless cancelled, shall remain in force at all
stages of the case until promulgation of the judgment of the Regional Trial Court, irrespective of
whether the case was originally filed in or appealed to it;

(b) The accused shall appear before the proper court whenever required by the court of these Rules;

(c) The failure of the accused to appear at the trial without justification and despite due notice shall be
deemed a waiver of his right to be present thereat. In such case, the trial may proceed in absentia; and

(d) The bondsman shall surrender the accused to the court for execution of the final judgment.

The original papers shall state the full name and address of the accused, the amount of the undertaking
and the conditions herein required. Photographs (passport size) taken within the last six (6) months
showing the face, left and right profiles of the accused must be attached to the bail. (2a)

Section 3. No release or transfer except on court order or bail. No person under detention by
legal process shall be released or transferred except upon order of the court or when he is admitted to
bail. (3a)

Section 4. Bail, a matter of right; exception. All persons in custody shall be admitted to bail as a
matter of right, with sufficient sureties, or released on recognize as prescribed by law or this Rule (a)
before or after conviction by the Metropolitan Trial Court, Municipal Trial Court, Municipal Trial
Court in Cities, or Municipal Circuit Trial Court, and (b) before conviction by the Regional Trial
Court of an offense not punishable by death, reclusion perpetua, or life imprisonment. (4a)

Section 5. Bail, when discretionary. Upon conviction by the Regional Trial Court of an offense
not punishable by death, reclusion perpetua, or life imprisonment, admission to bail is discretionary.
The application for bail may be filed and acted upon by the trial court despite the filing of a notice of
appeal, provided it has not transmitted the original record to the appellate court. However, if the
decision of the trial court convicting the accused changed the nature of the offense from non-bailable
to bailable, the application for bail can only be filed with and resolved by the appellate court.

Should the court grant the application, the accused may be allowed to continue on provisional liberty
during the pendency of the appeal under the same bail subject to the consent of the bondsman.

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If the penalty imposed by the trial court is imprisonment exceeding six (6) years, the accused shall be
denied bail, or his bail shall be cancelled upon a showing by the prosecution, with notice to the
accused, of the following or other similar circumstances:

(a) That he is a recidivist, quasi-recidivist, or habitual delinquent, or has committed the crime
aggravated by the circumstance of reiteration;

(b) That he has previously escaped from legal confinement, evaded sentence, or violated the
conditions of his bail without valid justification;

(c) That he committed the offense while under probation, parole, or conditional pardon;

(d) That the circumstances of his case indicate the probability of flight if released on bail; or

(e) That there is undue risk that he may commit another crime during the pendency of the appeal.

The appellate court may, motu proprio or on motion of any party, review the resolution of the
Regional Trial Court after notice to the adverse party in either case. (5a)

Section 6. Capital offense defined. A capital offense is an offense which, under the law existing at
the time of its commission and of the application for admission to bail, may be punished with death.
(6a)

Section 7. Capital offense of an offense punishable by reclusion perpetua or life imprisonment, not
bailable. No person charged with a capital offense, or an offense punishable by reclusion
perpetua or life imprisonment, shall be admitted to bail when evidence of guilt is strong, regardless of
the stage of the criminal prosecution. (7a)

Section 8. Burden of proof in bail application. At the hearing of an application for bail filed by a
person who is in custody for the commission of an offense punishable by death, reclusion perpetua, or
life imprisonment, the prosecution has the burden of showing that evidence of guilt is strong. The
evidence presented during the bail hearing shall be considered automatically reproduced at the trial,
but upon motion of either party, the court may recall any witness for additional examination unless the
latter is dead, outside the Philippines, or otherwise unable to testify. (8a)

Section 9. Amount of bail; guidelines. The judge who issued the warrant or granted the
application shall fix a reasonable amount of bail considering primarily, but not limited to, the
following factors:

(a) Financial ability of the accused to give bail;

(b) Nature and circumstances of the offense;

(c) Penalty for the offense charged;

(d) Character and reputation of the accused;

(e) Age and health of the accused;

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(f) Weight of the evidence against the accused;

(g) Probability of the accused appearing at the trial;

(h) Forfeiture of other bail;

(i) The fact that accused was a fugitive from justice when arrested; and

(j) Pendency of other cases where the accused is on bail.

Excessive bail shall not be required. (9a)

Section 10. Corporate surety. Any domestic or foreign corporation, licensed as a surety in
accordance with law and currently authorized to act as such, may provide bail by a bond subscribed
jointly by the accused and an officer of the corporation duly authorized by its board of directors. (10a)

Section 11. Property bond, how posted. A property bond is an undertaking constituted as lien on
the real property given as security for the amount of the bail. Within ten (10) days after the approval
of the bond, the accused shall cause the annotation of the lien on the certificate of title on file with the
Register of Deeds if the land is registered, or if unregistered, in the Registration Book on the space
provided therefor, in the Registry of Deeds for the province or city where the land lies, and on the
corresponding tax declaration in the office of the provincial, city and municipal assessor concerned.

Within the same period, the accused shall submit to the court his compliance and his failure to do so
shall be sufficient cause for the cancellation of the property bond and his re-arrest and detention. (11a)

Section 12. Qualifications of sureties in property bond. The qualification of sureties in a property
bond shall be as follows:

(a) Each must be a resident owner of real estate within the Philippines;

(b) Where there is only one surety, his real estate must be worth at least the amount of the
undertaking;

(c) If there are two or more sureties, each may justify in an amount less than that expressed in the
undertaking but the aggregate of the justified sums must be equivalent to the whole amount of bail
demanded.

In all cases, every surety must be worth the amount specified in his own undertaking over and above
all just debts, obligations and properties exempt from execution. (12a)

Section 13. Justification of sureties. Every surety shall justify by affidavit taken before the judge
that he possesses the qualifications prescribed in the preceding section. He shall describe the property
given as security, stating the nature of his title, its encumbrances, the number and amount of other
bails entered into by him and still undischarged, and his other liabilities. The court may examine the
sureties upon oath concerning their sufficiency in such manner as it may deem proper. No bail shall be
approved unless the surety is qualified. (13a)

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Section 14. Deposit of cash as bail. The accused or any person acting in his behalf may deposit in
cash with the nearest collector or internal revenue or provincial, city, or municipal treasurer the
amount of bail fixed by the court, or recommended by the prosecutor who investigated or filed the
case. Upon submission of a proper certificate of deposit and a written undertaking showing
compliance with the requirements of section 2 of this Rule, the accused shall be discharged from
custody. The money deposited shall be considered as bail and applied to the payment of fine and costs
while the excess, if any, shall be returned to the accused or to whoever made the deposit. (14a)

Section 15. Recognizance. Whenever allowed by law or these Rules, the court may release a
person in custody to his own recognizance or that of a responsible person. (15a)

Section 16. Bail, when not required; reduced bail or recognizance. No bail shall be required
when the law or these Rules so provide.

When a person has been in custody for a period equal to or more than the possible maximum
imprisonment prescribe for the offense charged, he shall be released immediately, without prejudice to
the continuation of the trial or the proceedings on appeal. If the maximum penalty to which the
accused may be sentenced is destierro, he shall be released after thirty (30) days of preventive
imprisonment.

A person in custody for a period equal to or more than the minimum of the principal penalty
prescribed for the offense charged, without application of the Indeterminate Sentence Law or any
modifying circumstance, shall be released on a reduced bail or on his own recognizance, at the
discretion of the court. (16a)

Section 17. Bail, where filed. (a) Bail in the amount fixed may be filed with the court where the
case is pending, or in the absence or unavailability of the judge thereof, with any regional trial judge,
metropolitan trial judge, municipal trial judge, or municipal circuit trial judge in the province, city, or
municipality. If the accused is arrested in a province, city, or municipality other than where the case is
pending, bail may also be filed with any regional trial court of said place, or if no judge thereof is
available, with any metropolitan trial judge, municipal trial judge, or municipal circuit trial judge
therein.

(b) Where the grant of bail is a matter of discretion, or the accused seeks to be released on
recognizance, the application may only be filed in the court where the case is pending, whether on
preliminary investigation, trial, or on appeal.

(c) Any person in custody who is not yet charged in court may apply for bail with any court in the
province, city, or municipality where he is held. (17a)

Section 18. Notice of application to prosecutor. In the application for bail under section 8 of this
Rule, the court must give reasonable notice of the hearing to the prosecutor or require him to submit
his recommendation. (18a)

Section 19. Release on bail. The accused must be discharged upon approval of the bail by the
judge with whom it was filed in accordance with section 17 of this Rule.

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Whenever bail is filed with a court other than where the case is pending, the judge who accepted the
bail shall forward it, together with the order of release and other supporting papers, to the court where
the case is pending, which may, for good reason, require a different one to be filed. (19a)

Section 20. Increase or reduction of bail. After the accused is admitted to bail, the court may,
upon good cause, either increase or reduce its amount. When increased, the accused may be
committed to custody if he does not give bail in the increased amount within a reasonable period. An
accused held to answer a criminal charge, who is released without bail upon filing of the complaint or
information, may, at any subsequent stage of the proceedings and whenever a strong showing of guilt
appears to the court, be required to give bail in the amount fixed, or in lieu thereof, committed to
custody. (20a)

Section 21. Forfeiture of bond. When the presence of the accused is required by the court or these
Rules, his bondsmen shall be notified to produce him before the court on a given date and time. If the
accused fails to appear in person as required, his bail shall be declared forfeited and the bondsmen
given thirty (30) days within which to produce their principal and to show cause why no judgment
should be rendered against them for the amount of their bail. Within the said period, the bondsmen
must:

(a) produce the body of their principal or give the reason for his non-production; and

(b) explain why the accused did not appear before the court when first required to do so.

Failing in these two requisites, a judgment shall be rendered against the bondsmen, jointly and
severally, for the amount of the bail. The court shall not reduce or otherwise mitigate the liability of
the bondsmen, unless the accused has been surrendered or is acquitted. (21a)

Section 22. Cancellation of bail. Upon application of the bondsmen, with due notice to the
prosecutor, the bail may be cancelled upon surrender of the accused or proof of his death.

The bail shall be deemed automatically cancelled upon acquittal of the accused, dismissal of the case,
or execution of the judgment of conviction.

In all instances, the cancellation shall be without prejudice to any liability on the bond. (22a)

Section 23. Arrest of accused out on bail. For the purpose of surrendering the accused, the
bondsmen may arrest him or, upon written authority endorsed on a certified copy of the undertaking,
cause him to be arrested by a police officer or any other person of suitable age and discretion.

An accused released on bail may be re-arrested without the necessity of a warrant if he attempts to
depart from the Philippines without permission of the court where the case is pending. (23a)

Section 24. No bail after final judgment; exception. No bail shall be allowed after the judgment
of conviction has become final. If before such finality, the accused has applies for probation, he may
be allowed temporary liberty under his bail. When no bail was filed or the accused is incapable of
filing one, the court may allow his release on recognizance to the custody of a responsible member of
the community. In no case shall bail be allowed after the accused has commenced to serve sentence.
(24a)

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Section 25. Court supervision of detainees. The court shall exercise supervision over all persons
in custody for the purpose of eliminating unnecessary detention. The executive judges of the Regional
Trial Courts shall conduct monthly personal inspections of provincial, city, and municipal jails and
their prisoners within their respective jurisdictions. They shall ascertain the number of detainees,
inquire on their proper accommodation and health and examine the condition of the jail facilities.
They shall order the segregation of sexes and of minors from adults, ensure the observance of the
right of detainees to confer privately with counsel, and strive to eliminate conditions inimical to the
detainees.

In cities and municipalities to be specified by the Supreme Court, the municipal trial judges or
municipal circuit trial judges shall conduct monthly personal inspections of the municipal jails in their
respective municipalities and submit a report to the executive judge of the Regional Trial Court
having jurisdiction therein.

A monthly report of such visitation shall be submitted by the executive judges to the Court
Administrator which shall state the total number of detainees, the names of those held for more than
thirty (30) days, the duration of detention, the crime charged, the status of the case, the cause for
detention, and other pertinent information. (25a)

Section 26. Bail not a bar to objections on illegal arrest, lack of or irregular preliminary
investigation. An application for or admission to bail shall not bar the accused from challenging
the validity of his arrest or the legality of the warrant issued therefor, or from assailing the regularity
or questioning the absence of a preliminary investigation of the charge against him, provided that he
raises them before entering his plea. The court shall resolve the matter as early as practicable but not
later than the start of the trial of the case. (n)

FIRST DIVISION

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 [G.R. No. L-31665. August 6, 1975.]

LEONARDO ALMEDA, Petitioner, v. HON. ONOFRE A. VILLALUZ, in his capacity as presiding judge of the Circuit Criminal
Court, Seventh Judicial District, Pasig, Rizal, and HON. GREGORIO PINEDA, City Fiscal of Pasay City, Respondents.

Honorio Makalintal, Jr. for Petitioner.

Pasay City Fiscal Gregorio Pineda for Respondent.

SYNOPSIS

Petitioner was charged with qualified theft. Respondent judge approved a bail of P15,000.00 on condition that it be
posted entirely in cash. At the hearing, petitioner asked that he be allowed to post instead a surety bond, which request,
however, was denied. At the same hearing, the city fiscal orally moved to amend the information so as to include
recidivism and habitual delinquency. The motion was granted and immediately thereafter, the fiscal took hold of the
original information and, there and then, entered the amendment by annotating the same on the back of the document.
Petitioner moved for dismissal on the ground of double jeopardy. This and a motion for reconsideration were both
denied. Hence, this special civil action for certiorari.

The Supreme Court ruled that posting of a cash bond could work untold hardship on the part of the accused tantamount
to a denial of his constitutional right to bail. Thus, the trial court may not reject otherwise acceptable sureties and insist
that the accused obtain his provisional liberty only thru a such bond. With respect to the amendment of the information
charging accused of qualified theft of a motor vehicle to include the allegations of habitual delinquency and recidivism,
said amendment does not place the accused in double jeopardy although he had already pleaded guilty to the
information since he had not been convicted nor acquitted of the charge contained in the original information, neither
had the case against him been dismissed or terminated.

Order denying motion of petitioner that he allowed to post surety bond set aside.

SYLLABUS

1. CONSTITUTIONAL LAW; BILL OF RIGHTS; RIGHT TO BAIL. In this jurisdiction, the accused, as of right, is entitled to bail
prior to conviction except when he is charged with a capital offense of guilt is strong. This right is guaranteed by the
Constitution, and may not be denied even where the accused has previously escaped detention or by reason of his prior
absconding.

2. ID.; ID.; ID.; BAIL; defined; purpose. As defined by section 1 of Rule 114 of the Rules of Court, bail is "the security
required and given for the release of a person who is in custody of the law, that he will appear before any court in which
his appearance may be required as stipulated in the bail bond or recognizance." The purpose of requiring bail is to relieve
an accused from imprisonment until his conviction and yet secure his appearance imprisonment until his conviction and
yet secure his appearance at the trial.

3. ID.; ID.; ID.; FACTOR IN FIXING AMOUNT OF BAIL. In fixing the amount of the bail bond, the trial court should
consider the following factor, where applicable: (1) the ability of the accused to give bail; (2) the nature of the offense; (3)
the penalty for the offense charged; (4) the character and reputation of the accused; (5) the health of the accused; (6)
the character and strength of the evidence; (7) the probability of the accuseds appearance or non-appearance at the
trial; (8) forfeiture of previous bond; (9) whether the accused was a fugitive from justice when arrested; and (10) whether
the accused is under bond for appearance at trial in other cases.

4. ID.; ID.; ID.; SAFEGUARD THEREFOR. In order to safeguard the right of an accused to bail, Art. IV, Section 18 of the
Constitution further provides that "excessive bail shall not be required." This is logical because the imposition of an
unreasonable bail may negate the very right itself.

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5. ID.; ID.; ID.; REQUIREMENT OF CASH BOND MAY NEGATE RIGHT. The amount fixed for bail, while reasonable if
considered in terms of surety or property bonds, may be excessive if demanded in the form of cash. A surety of property
bond does not require an actual financial outlay on the part of the bondsman or the property owner, and in the case of
the bondsman the bond may be obtained by the accused upon the payment of a relatively small premium. Only the
reputation or credit standing of the bondsman or the expectancy of the price at which the property can be sold, is placed
in the hands of the court to guarantee the production of the body of the accused at the various proceedings leading to
his conviction or acquittal. Upon the other hand, the posting of cash bond would entail a transfer of assets into the
possession of the court, and its procurement could work untold hardship on the part of the accused as to have the effect
of altogether denying him his constitutional right to bail.

6. ID.; ID.; ID.; OPTION TO DEPOSIT CASH BOND BELONGS TO ACCUSED. The condition that the accused may have
provisional liberty only upon his posting of a cash bond is abhorrent to the nature of bail and transgresses our law on the
matter. The sole purpose of bail is to insure the attendance of the accused when required by the court, and there should
be no suggestion of penalty on the part of the accused nor revenue on the part of the government. The allowance of a
cash bond in lieu of sureties is authorized in this jurisdiction only because our rules expressly provide for it. Were this not
the case, the posting of bail by depositing cash with the court cannot be countenanced because, strictly speaking, the
very nature of bail presupposes the attendance of sureties to whom the body of the prisoner can be delivered. And even
where cash bail is allowed, the option to deposit cash in lieu of a surety bond primarily belongs to the accused. This is
clearly deducible from the language of Section 14 of Rule 114 of the Rules of Court.

7. ID.; ID.; ID.; TRIAL COURT MAY NOT REJECT ACCEPTABLE SURETIES The trial court may not reject otherwise
acceptable sureties and insist that the accused obtain his provisional liberty only thru a cash bond.

8. ID.; ID.; ID.; MEASURES TO MEET LIKELIHOOD OF JUMPING BAIL. The measures which a court may adopt to meet
the likelihood of jumping bail are:(1) it could increase the amount of the bail bond to an appropriate level; (2) as part of
the power of the court over the person of the accused and for the purpose of discouraging likely commission of other
crimes by a notorious defendant while on provisional liberty, the latter could be required while on provisional liberty, the
latter could be required as one of the conditions of his bail bond, to report in person periodically to the court and make
an accounting of his movement; and (3) the accused might be warned, though this warning is not essential to the
requirement of due process, that under the 1973 Constitution "Trial may proceed notwithstanding his absence provided
that he has been duly notified and his failure to appear is unjustified."

9. ID.; ID.; ID.; COURT MUST EXERCISE EXTREME CARE AND CAUTION IN SCREENING BONDSMEN AND SURETIES. Court
must exercise extreme care and caution in the screening of bondsmen and sureties in regard to their reputation, solvency
and promptitude. Courts should see to it that all surety bonds are accompanied by corresponding clearances from the
Office of the Insurance Commissioner. Bondsmen who cannot make good their undertaking render inutile all efforts at
making the bail system work in this jurisdiction.

10. ID.; ID.; RIGHT AGAINST DOUBLE JEOPARDY; REQUISITES. There is double jeopardy only when all the following
requisites obtain in the original prosecution: (a) a valid complaint or information; (b) a competent court; (c) the
defendant had pleaded to the charge; and (d) the defendant was acquitted, or convicted, or the case against him was
dismissed or otherwise terminated without his consent.

11. ID.; ID.; ID.; CASE AT BAR. Although accused had already pleaded not guilty to an information charging him of
qualified theft of a motor vehicle, a subsequent amendment of the information to include allegations of habitual
delinquency and recidivism does not place him in double jeopardy since he has not yet been convicted nor acquitted of
the charge contained in the original information, nor the case against him been dismissed or otherwise terminated. The
mere amendment of the information to include allegations of habitual delinquency and recidivism does not have the
effect of a dismissal of the criminal action for qualified theft alleged in the original information.

12. PLEADING AND PRACTICE; INFORMATION; AMENDMENT; DISCRETION OF COURT IN ALLOWING AMENDMENT.
Under Section 13 of Rule 110 of the Rules of Court, the trial court has discretion to allow amendments to the information
on all matters of form after the defendants has pleaded and during the trial when the same can be done without
prejudice to the rights of the defendant. What are prohibited at this stage of the proceedings are amendments in
substance. And the substantial matter in a complaint or information is the recital of facts constituting the offense charged

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and determinative of the jurisdiction of the court. All other matters are merely of form.

13. ID.; ID.; ID.; ALLEGATION OF HABITUAL DELINQUENCY AND RECIDIVISM DOES NOT ALTER PROSECUTION THEORY OF
THE CASE. The additional allegations of habitual delinquency and recidivism do not have effect of charging another
offense different or distinct from the charge of qualified theft (of a motor vehicles) contained in the information. Neither
do they tend to correct any defect in the jurisdiction of the trial court over the subject matter of the case. The said new
allegations relate only to the range of the penalty that the court might impose in the event of conviction. They do not
alter the prosecutions theory of the case nor possibly prejudice the form of defense the accused has or will assume.
Consequently, in authorizing the amendments, the respondent judge acted with the due consideration of the petitioners
right and did not abuse his discretion.

14. ID.; ID.; MOTION TO AMEND; SAME MUST BE IN WRITING. A motion to amend the information, after the accused
has pleaded thereto, is certainly one that should be placed in writing and properly set for hearing.

15. CRIMINAL LAW; HABITUAL DELINQUENCY; HABITUAL DELINQUENT, DEFINED. A person is considered a habitual
delinquent "if within a period of ten years from the date of his release or last conviction of the crimes of serious or less
serious physical injuries, robo, hurto, estafa, or falsification, he is found guilty of any of said crimes a third time or
oftener." (Article 62, par. 5, Revised Penal Code)

16. ID.; ID.; PENALTY THEREFOR. The law imposes the additional penalty based on the criminal propensity of the
accused, apart from the provided by law for the last crime of which he is found guilty. Habitual delinquency is not,
however, a crime in itself, it is only a factor in determining a total penalty. Article 62 of the Revised Penal Code which
treats of habitual delinquency does not establish a new crime, but only regulates the "effect of the attendance of
mitigating or aggravating circumstances and of habitual delinquency as its caption indicates. In fact, the provision on
habitual delinquency is found in a section of the Code prescribing rules for the application of penalties, not in a section
defining offenses.

17. ID.; RECIDIVISM, RECIDIVIST, DEFINED. A recidivist is one who, at the time of his trial for one crime, shall have been
previously convicted by final judgment of another crime embraced in the same title of the Revised Penal Code.
Recidivism is likewise not a criminal offense; it is but one of the aggravating circumstances enumerated by the said Code.
(Article 14, par. 9, (Revised Penal Code).

DECISION

CASTRO, J.:

The petitioner Leonardo Almeda (alias Nardong Paa) was charged, together with five others, with the
crime of qualified theft of a motor vehicle (criminal case 285-Pasay) in the Circuit Criminal Court of
Pasig, Rizal, presided by the respondent Judge Onofre Villauz. The amount of the bond recommended
for the provisional release of Almeda was P15,000, and this was approved by the respondent judge
with a direction that it be posted entirely in cash.

At the hearing of February 18, 1970, Almeda asked the trial court to allow him to post a surety bond
in lieu of the cash bond required of him. This request was denied, and so was an oral motion for
reconsideration, on the ground that the amended information imputed habitual delinquency and
recidivism on the part of Almeda.

At the same hearing, the respondent city fiscal, thru his assistant, reiterated his oral motion made at a
previous hearing for amendment of the information so as to include allegations of recidivism and
habitual delinquency in the particular case of Almeda. The latter vigorously objected, arguing that (a)
such an amendment was premature since no copies of prior conviction could yet be presented in court,

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(b) the motion to amend should have been made in writing in order to enable him to object formally,
and (c) the proposed amendment would place him in double jeopardy considering that he had already
pleaded not guilty to the information. The trial court nevertheless granted the respondent fiscal's
motion in open court. An oral motion for reconsideration was denied.

Immediately thereafter, the assistant fiscal took hold of the original information and, then and there,
entered his amendment by annotating the same on the back of the document. The petitioner forthwith
moved for the dismissal of the charge on the ground of double jeopardy, but this motion and a motion
for reconsideration were denied in open court.

Hence, the present special civil action for certiorari with preliminary injunction.

Two issues are posed to us for resolution: First, whether the respondent judge has the authority to
require a strictly cash bond and disallow the petitioner's attempt to post a surety bond for his
provisional liberty, and second, whether the amendment to the information, after a plea of not guilty
thereto, was properly allowed in both substance and procedure.

1. As defined by section 1 of Rule 114 of the Rules of Court, bail is "the security required and given
for the release of a person who is in the custody of the law, that he will appear before any court in
which his appearance may be required as stipulated in the bail bond or recognizance." The purpose of
requiring bail is to relieve an accused from imprisonment until his conviction and yet secure his
appearance at the trial.1

In this jurisdiction, the accused, as of right, is entitled to bail prior to conviction except when he is
charged with a capital offense and the evidence of guilt is strong. This right is guaranteed by the
Constitution,2 and may not be denied even where the accused has previously escaped detention, 3 or by
reason of his prior absconding.4 In order to safeguard the right of an accused to bail, the Constitution
further provides that "excessive bail shall not be required." This is logical cause the imposition of an
unreasonable bail may negate the very right itself. We have thus held that "where conditions imposed
upon a defendant seeking bail would amount to a refusal thereof and render nugatory the
constitutional right to bail, we would not hesitate to exercise our supervisory powers to provide the
required remedy."5

Coming to the issue at hand, the amount fixed for bail, while reasonable if considered in terms of
surety or property bonds, may be excessive if demanded in the form of cash. A surety or property
bond does not require an actual financial outlay on the part of the bondsman or the property owner,
and in the case of the bondsman the bond may be obtained by the accused upon the payment of a
relatively small premium. Only the reputation or credit standing of the bondsman or the expectancy of
the price at which the property can be sold, is placed in the hands of the court to guarantee the
production of the body of the accused at the various proceedings leading to his conviction or acquittal.
Upon the other hand, the posting of a cash bond would entail a transfer of assets into the possession of
the court, and its procurement could work untold hardship on the part of the accused as to have the
effect of altogether denying him his constitutional right to bail.

Aside from the foregoing, the condition that the accused may have provisional liberty only upon his
posting of a cash bond is abhorrent to the nature of bail and transgresses our law on the matter. The
sole purpose of bail is to insure the attendance of the accused when required by the court, and there
should be no suggestion of penalty on the part of the accused nor revenue on the part of the

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government. The allowance of a cash bond in lieu of sureties is authorized in this jurisdiction only
because our rules expressly provide for it. Were this not the case, the posting of bail by depositing
cash with the court cannot be countenanced because, strictly speaking, the very nature of bail
presupposes the attendance of sureties to whom the body of the prisoner can be delivered. 6 And even
where cash bail is allowed, the option to deposit cash in lieu of a surety bond primarily belongs to the
accused. This is clearly deducible from the language of section 14 of Rule 114 of the Rules of Court:

SEC. 14. Deposit of money as bail. At any time after the amount of bail is fixed by order, the
defendant, instead of giving bail, may deposit with the nearest collector of internal revenue, or
provincial, city, or municipal treasurer the sum mentioned in the order, and upon delivering to the
court a proper certificate of the deposit, must be discharged from custody. Money thus deposited, shall
be applied to the payment of the fine and costs for which judgment may be given; and the surplus, if
any, shall be returned to the defendant.

Thus, the trial court may not reject otherwise acceptable sureties and insist that the accused obtain his
provisional liberty only thru a cash bond.

But while we repudiate the particular measure adopted by the respondent judge, we cannot fault the
motive that caused him to demur to the petitioner's offer of a surety bond. Based on the petitioner's
past record,7 the range of his career in crime weighs heavily against letting him off easily on a
middling amount of bail. The likelihood of his jumping bail or committing other harm to the citizenry
while on provisional liberty is a consideration that simply cannot be ignored.

Fortunately, the court is not without devices with which to meet the situation. First, it could increase
the amount of the bail bond to an appropriate level. Second, as part of the power of the court over the
person of the accused and for the purpose of discouraging likely commission of other crimes by a
notorious defendant while on provisional liberty, the latter could be required, as one of the conditions
of his bail bond, to report in person periodically to the court and make an accounting of his
movements. And third, the accused might be warned, though this warning is not essential to the
requirements of due process, that under the 1973 Constitution 8 "Trial may proceed notwithstanding
his absence provided that he has been duly notified and his failure to appear is unjustified."

With respect to the amount of the bail bond, the trial court is well advised to consider, inter alia, the
following factors, where applicable: (1) the ability of the accused to give bail: (2) the nature of the
offense; (3) the penalty for the offense charged; (4) the character and reputation of the accused (5) the
health of the accused; (6) the character and strength of the evidence; (7) the probability of the
accused's appearance or non-appearance at the trial; (8) forfeiture of previous bonds; (9) whether the
accused was a fugitive from justice when arrested; and (10) whether the accused is under bond for
appearance at trial in other cases. 9

It is not amiss, at this point, to remind all courts to exercise extreme care and caution in the screening
of bondsmen and sureties in regard to their reputation, solvency and promptitude. Aside from the
other precautions hitherto considered useful courts should see to it that all surety bonds are
accompanied by corresponding clearances from the Office of the Insurance Commissioner. Bondsmen
who cannot make good their undertaking render inutile all efforts at making the bail system work in
this jurisdiction.

Rule 114 11
2. Anent the second issue posed by the petitioner, the amendment of the information to include
allegations of habitual delinquency and recidivism, after a previous plea thereto by the accused, is
valid and in no way violates his right to be fully apprised before trial of the charges against him.

Under section 13 of Rule 110 of the Rules of Court, the trial court has discretion to allow amendments
to the information on all matters of form after the defendant has pleaded and during the trial when the
same can be done without prejudice to the rights of the defendant. What are prohibited at this stage of
the proceedings are amendments in substance. And the substantial matter in a complaint or
information is the recital of facts constituting the offense charged and determinative of the jurisdiction
of the court. All other matters are merely of form. 10

Under our law, a person is considered a habitual delinquent "if within a period of ten years from the
date of his release or last conviction of the crimes of serious or less serious physical injuries, robo,
hurto, estafa or falsification, he is found guilty of any of said crimes a third time or oftener." 11 The
law imposes an additional penalty based on the criminal propensity of the accused apart from that
provided by law for the last crime of which he is found guilty. Habitual delinquency is not however, a
crime in itself, it is only a factor in determining a total penalty. 12 Article 62 of the Revised Penal Code
which treats of habitual delinquency does not establish a new crime, but only regulates the "effect of
the attendance of mitigating or aggravating circumstances and of habitual delinquency." as its caption
indicates. In fact, the provision on habitual delinquency is found in a section of the Code prescribing
rules for the application of penalties, not in a section defining offense. 13 A recidivist, upon the other
hand, is one who, at the time of his trial for one crime, shall have been previously convicted by final
judgment of another crime embraced in the same title of the Revised Penal Code. Recidivism is
likewise not a criminal offense; it is but one of the aggravating circumstances enumerated by the said
Code. 14

The additional allegations of habitual delinquency and recidivism do not have the effect of charging
another offense different or distinct from the charge of qualified theft (of a motor vehicle) contained
in the information. Neither do they tend to correct any defect in the jurisdiction of the trial court over
the subject-matter of the case. The said new allegations relate only to the range of the penalty that the
court might impose in the event of conviction. They do not alter the prosecution's theory of the case
nor possibly prejudice the form of defense the accused has or will assume. Consequently, in
authorizing the amendments, the respondent judge acted with due consideration of the petitioner's
rights and did not abuse his discretion.

Anent the petitioner's claim that the amendment of the information by the State places him in double
jeopardy, it should be remembered that there is double jeopardy only when all the following requisites
obtain in the original prosecution; (a) a valid complaint or information; (b) a competent court; (c) the
defendant had pleaded to the charge; and (d) the defendant was acquitted, or convicted, or the case
against him was dismissed or otherwise terminated without his consent. 15

It is clear that the petitioner Almeda has not yet been convicted nor acquitted of the charge of
qualified theft of a motor vehicle contained in the original information. Neither has the case against
him been dismissed or otherwise terminated. The mere amendment of the information to include
allegations of habitual delinquency and recidivism does not have the effect of a dismissal of the
criminal action for qualified theft alleged in the original information. 16

Rule 114 12
It cannot likewise be said that the accused is being placed in jeopardy a second time for the past
crimes of which he had been convicted. The constitutional objection, on the ground of double
jeopardy, to the statute providing an additional penalty to be meted out to habitual delinquents, has
long been rejected. 17

The procedure taken by the respondent fiscal and allowed by the respondent judge in the amendment
of the information does not, however, merit our approbation. Under section 2 of Rule 15 of the Rules
of Court, "all motions shall be made in writing except motions for continuance made in the presence
of the adverse party, or those made in the course of a hearing or trial." A motion to amend the
information, after the accused has pleaded thereto, is certainly one that should be placed in writing
and properly set for hearing. We are loath to give our imprimatur to the kind of shortcut devised by
the respondents, especially as it relates to an alteration in the information. Considering, however, that
the petitioner was not deprived of his day in court and was in fact given advance warning of the
proposed amendment, although orally, we refrain from disturbing the said amendment.

ACCORDINGLY, the order of the respondent judge of February 18, 1970 denying the motion of the
petitioner Almeda that he be allowed to post a surety bond instead of a cash bond is hereby set aside,
without prejudice, however, to increasing the amount of the bail bond and/or the imposition of such
conditions as the respondent judge might consider desirable and proper for the purpose of insuring the
attendance of the petitioner at the trial, provided they are consistent with the views herein expressed.
No costs.

Almeda v. Villaluz
G.R. No. L-31665; August 6, 1975;

Doctrine
Definition of bail (Sec. 1, Rule 114, ROC): The security required and given for the release of a person
who is in the custody of the law, that he will appear before any court in which his appearance may be
required as stipulated in the bail bond or recognizance.
Purpose of bail: To relieve an accused from imprisonment until his conviction and yet secure his
appearance at the trial.
Bail as constitutional right: The accused is entitled to bail prior to conviction except when he is charged
with a capital offense and the evidence of guilt is strong. In order to safeguard the right of an accused to
bail, the Constitution further provides that "excessive bail shall not be required; the imposition of an
unreasonable bail may negate the very right itself.

Rule 114 13
 Form of bail: The court may not reject otherwise acceptable sureties and insist that the accused obtain his
provisional liberty only thru a cash bond. The amount fixed for bail, while reasonable if considered in terms
of surety or property bonds, may be excessive if demanded in the form of cash.
Provisional liberty: The condition that the accused may have provisional liberty only upon his posting of a
cash bond is abhorrent to the nature of bail and transgresses our law on the matter.

I. Facts
Petitioner Leonardo Almeda + 5 others were charged w/ qualified theft of a motor vehicle in presided by the
respondent Judge Onofre Villaluz.
o The amount of the bond recommended for the provisional release of Almeda was P15,000; this
was approved by the judge directing it to be posted entirely in cash.
At the hearing, Almeda asked the trial court to allow him to post a surety bond in lieu of the cash bond
required.
o This request + an oral motion for reconsideration were denied on the ground that the amended
information imputed habitual delinquency and recidivism on the part of Almeda.
At the same hearing, the respondent city fiscal reiterated his oral motion for amendment of the information
to include allegations of recidivism and habitual delinquency:
o Almeda vigorously objected, arguing that:
a) such an amendment was premature since no copies of prior conviction could yet be
presented in court,
b) the motion to amend should have been made in writing in order to enable him to object
formally, and
c) the proposed amendment would place him in double jeopardy considering that he had
already pleaded not guilty to the information.
o The TC nevertheless granted the respondent fiscal's motion in open court. An oral motion for
reconsideration was denied.
Immediately thereafter, the assistant fiscal took hold of the original information and entered his amendment
by annotating the same on the back of the document.
o The petitioner moved for the dismissal of the charge on the ground of double jeopardy, but this
motion and a motion for reconsideration were denied in open court.
Hence, the present special civil action for certiorari with preliminary injunction.

II. Issues
1. WON the respondent judge has the authority to require a strictly cash bond and disallow the petitioner's
attempt to post a surety bond for his provisional liberty NO.
2. WON the amendment to the information, after a plea of not guilty thereto, was properly allowed in both
substance and procedure YES.

III. Held
The order of the respondent judge denying the motion of the petitioner Almeda that he be allowed to post a
surety bond instead of a cash bond is hereby set aside, without prejudice, however, to increasing the amount of
the bail bond and/or the imposition of such conditions as the respondent judge might consider desirable and
proper for the purpose of insuring the attendance of the petitioner at the trial, provided they are consistent with
the views herein expressed.
IV. Ratio
1. NO. The trial court may not reject otherwise acceptable sureties and insist that the accused obtain his
provisional liberty only thru a cash bond.
In this case, the amount fixed for bail, while reasonable if considered in terms of surety or
property bonds, may be excessive if demanded in the form of cash.
o A surety or property bond does not require an actual financial outlay on the part of the
bondsman or the property owner, and in the case of the bondsman the bond may be obtained
by the accused upon the payment of a relatively small premium.
o Only the reputation or credit standing of the bondsman or the expectancy of the price at which
the property can be sold, is placed in the hands of the court to guarantee the production of the
body of the accused at the various proceedings leading to his conviction or acquittal.

Rule 114 14
 o The posting of a cash bond would entail a transfer of assets into the possession of the court,
and its procurement may be difficult on the part of the accused as to have the effect of
altogether denying him his constitutional right to bail.
The condition that the accused may have provisional liberty only upon his posting of a cash
bond is abhorrent to the nature of bail and transgresses our law on the matter.
o The sole purpose of bail is to insure the attendance of the accused when required by the court,
and there should be no suggestion of penalty on the part of the accused nor revenue on the
part of the government.
o The allowance of a cash bond in lieu of sureties is authorized in this jurisdiction only because
our rules expressly provide for it since the very nature of bail presupposes the attendance of
sureties to whom the body of the prisoner can be delivered. And even where cash bail is
allowed, the option to deposit cash in lieu of a surety bond primarily belongs to the accused.
(See Sec. 14, Rule 114 ROC)
But SC says it cannot fault the judge since based on the petitioner's past record, he may be likely to
jump bail or commit other harm to the citizenry. Fortunately, the court has the ff remedies:
1. It could increase the amount of the bail bond to an appropriate level.
2. The defendant could be required, as one of the conditions of his bail bond, to report in person
periodically to the court and make an accounting of his movements.
3. The accused might be warned that under the 1973 Constitution "Trial may proceed
notwithstanding his absence provided that he has been duly notified and his failure to appear is
unjustified."
With respect to the amount of the bail bond, the TC is advised to consider the following factors:
(1) the ability of the accused to give bail:
(2) the nature of the offense;
(3) the penalty for the offense charged;
(4) the character and reputation of the accused
(5) the health of the accused;
(6) the character and strength of the evidence;
(7) the probability of the accused's appearance or non-appearance at the trial;
(8) forfeiture of previous bonds;
(9) whether the accused was a fugitive from justice when arrested; and
(10) whether the accused is under bond for appearance at trial in other cases.

2. YES. The amendment of the information to include allegations of habitual delinquency and
recidivism, after a previous plea thereto by the accused, is valid and in no way violates his right to
be fully apprised before trial of the charges against him.
Under Sec. 13 Rule 110 ROC, the TC has discretion to allow amendments to the information on all
matters of form after the defendant has pleaded and during the trial; what are prohibited at this stage of
the proceedings are amendments in substance.
o The additional allegations of habitual delinquency and recidivism do not have the effect of
charging another offense different or distinct from the charge of qualified theft contained in the
information.
o Neither do they tend to correct any defect in the jurisdiction of the trial court over the subject-
matter of the case.
o The said new allegations relate only to the range of the penalty that the court might impose in
the event of conviction.
o They do not alter the prosecution's theory of the case nor possibly prejudice the form of
defense the accused has or will assume.

Regarding Pet's claim that the amendment of the information places him in double jeopardy
It should be remembered that there is double jeopardy only with the ff requisites:
o (a) a valid complaint or information;
o (b) a competent court;
o (c) the defendant had pleaded to the charge; and
o (d) the defendant was acquitted, or convicted, or the case against him was dismissed or
otherwise terminated without his consent.

Rule 114 15
 It is clear that the petitioner Almeda has not yet been convicted nor acquitted of the charge of qualified
theft of a motor vehicle contained in the original information.
o Neither has the case against him been dismissed or otherwise terminated.
o The mere amendment of the information to include allegations of habitual delinquency and
recidivism does not have the effect of a dismissal of the criminal action for qualified theft
alleged in the original information.
o It cannot likewise be said that the accused is being placed in jeopardy a second time for the
past crimes of which he had been convicted.
However, the procedure taken by the respondent fiscal and allowed by the respondent judge in the
amendment of the information should have been in writing, based on Sec. 2 of Rule 15 of the ROC, "all
motions shall be made in writing except motions for continuance made in the presence of the adverse
party, or those made in the course of a hearing or trial."
o Considering, however, that the petitioner was not deprived of his day in court and was in fact
given advance warning of the proposed amendment, although orally, the SC refrains from
disturbing the said amendment.

FIRST DIVISION
[G.R. No. L-8455. February 27, 1956.]
GAUDENCIO MANIGBAS, ET AL., Petitioners-Appellees, vs. JUDGE CALIXTO P. LUNA, ETC., ET AL., Respondents. JUDGE
CALIXTO P. LUNA, Respondent-Appellant.

DECISION

Rule 114 16
BAUTISTA ANGELO, J.:

On July 13, 1954, Gaudencio Manigbas and eleven others were charged with murder before the Justice of the Peace
Court of Rosario, Batangas by Captain Epigenio Navarro, commanding officer of a constabulary detachment stationed in
Alangilang, Batangas, Batangas. The complaint was later amended by including one Miguel Almario.

Three days after the filing of the original complaint, counsel for the accused moved that they be granted bail for their
provisional liberty and, on July 19, 1954, the court issued an order wherein, after reconsidering its previous order denying
bail to all, allowed to some the right to bail and denied to others. Both defense and prosecution filed a motion for
reconsideration, the former asking that all the accused be granted bail while the latter pleading that all of them be
denied because the justice of the peace court has no jurisdiction to grant bail in cases involving capital offenses. On July
21, 1954, the court entered an order setting aside its order of July 19, 1954 and restoring its original order denying bail to
all the accused for the reason that in a long series of decisions promulgated by our Supreme Court in connection with
the granting of bail to a person charged with a capital offense which were carefully examined by this court, there is not a
single case wherein the Justice of the Peace Court entertained a petition for bail for a person charged with a capital
offense and thereafter hear the evidence to determine whether the same is strong or not so as to warrant the giving of
bail.

Upon receipt of a copy of the aforesaid order, counsel for the defense filed with the Court of First Instance of Batangas,
sitting in Lipa City, a petition for mandamus seeking in effect to compel the justice of the peace court of Rosario to
receive evidence to determine if the same warrants the granting of bail to the accused. After the provincial commander
and the justice of the peace put in their answers, the court on August 24, 1954 granted the petition holding
that Respondent justice of the peace court has authority to grant bail even if the charge involves a capital offense and
ordering said court to act on the application for bail. Hence this appeal.

Before proceeding to discuss the merits of the presents controversy, there is need to dwell on a point of procedure which
came up during the deliberation of this case. This has reference to the fact that, according to the record, the accused who
have interposed this petition for mandamus are still at large for so far no order has been issued for their arrest. The
record discloses that immediately upon the filing of the charge against them they applied for bail and their motion was
immediately acted upon by the justice of the peace. And the denial of the bail eventually led to the filing of the present
petition for mandamus.

We hold that this petition is premature for its purpose is to compel the performance of a duty which does not exist there
being no correlative right the use or enjoyment of it has been denied which may be the subject of mandamus (section 67,
Rule 3); and this is so because the right to bail only accrues when a person is arrested or deprived of his liberty. The
purpose of bail is to secure ones release and it would be incongruous to grant bail to one who is free. Thus, bail is the
security required and given for the release of a person who is in the custody of the law (Rule 110, section 1), and
evidently the accused do not come within its purview. We could therefore dismiss this petition on this score alone were it
not for the importance of the issue now before us which requires proper elucidation for the guidance of all justices of the
peace who may be found in similar predicament.

The issue to be determined is whether a justice of the peace can, in a case involving a capital offense, act on an
application for bail and receive evidence to determine if the evidence of guilt is strong or otherwise grant bail if the
evidence so warrants.

Under our Constitution, all accused persons before conviction are entitled to bail except those charged with capital
offenses when evidence of guilt is strong (Article III, section 1, paragraph 16). Under our rules, in non-capital offenses,
after judgment by a justice of the peace and before conviction by the court of first instance, an accused is entitled to bail
as a matter of right (Rule 110, section 3); but, after conviction by the Court of First Instance, Defendant may, upon
application, be bailed at the discretion of the court. (Rule 110, section 4.) And implementing the provision of our
Constitution, the rule also provides that No person in custody for the commission of a capital offense shall be admitted

Rule 114 17
to bail if the evidence of his guilt is strong (Rule 110, section 6). The burden of showing that the evidence of guilt is
strong is on the prosecution (Rule 110, section 7).

While as a general rule it may be stated that an application for bail may be acted upon by the court which has cognizance
of the case regardless of whether it involves a capital offense or not, (Peralta vs. Ramos, 71 Phil., 271) and as a general
proposition we may concede that justices of the peace before whom a case is initiated by the filing of the corresponding
complaint or information have also authority to entertain petitions for bail in cases involving non- capital offenses as to
which the accused are entitled to bail as a matter of right, however, doubt is entertained as to whether said justices of
the peace can likewise entertain bail while the cases are under their control if they involve capital offenses like the one
under consideration. This doubt has arisen because the law and the rules on the matter are not explicit enough and our
jurisprudence has not so far laid down a clear-cut ruling clarifying this point in this jurisdiction.

In the United States it may be stated as a general rule that all judicial officers having the power to hear and determine
cases have the power to take bail. It is regarded as a necessary incident to the right to hear and determine the cause
(6 Am Jur., p. 67). And with particular reference to justices of the peace, the general rule is that where, under the
statutes, justices of the peace have power as examining magistrates, with power of commitment, they may in their
discretion admit to bail; except, where their power to take bail is limited by the Constitution, or by statute, in which
case they must act within the express or implied limitations thereby laid down (6 C.J., 973-974). But the prevailing rule
is that inferior officers vested only with the power to commit cannot, without express legislative enactment, take bail in
capital offenses, for the determination of the sufficiency of the evidence in such cases, in order to entitle the accused to
bail, is a matter of the greatest importance both to the accused and to the state and is the appropriate province of the
court entrusted with the trial of such cases (6 Am. Jur. p. 67).

Considering the general rule that justices of the peace have the power as examining magistrates to commit and in their
discretion admit to bail an accused person unless such power is limited by the Constitution or by statute, can we say that
in this jurisdiction our justices of the peace have also the power to admit to bail a person accused of a capital offense?

Our answer must of necessity be in the affirmative not only because there is no such limitation in our Constitution but
because the Judiciary Reorganization Act of 1948 seems to expressly confer this power upon them. We refer to sections
87 and 91 of said Act relative to the power of justices of the peace to conduct preliminary investigations and the
incidental powers they may exercise in relation thereto. The first section provides that the justices of the peace may
conduct preliminary investigations for any offense alleged to have been committed within their respective
municipalities without regard to the limits of punishment, and may release, or commit and bind over any person charged
with such offense to secure his appearance before the proper court. And section 91 provides that the same justices of
the peace may require of any person arrested a bond for good behavior or to keep the peace, or for the further
appearance of such person before a court of competent jurisdiction. The only limitation to this power is that the bond
must be approved by that court. These provisions are broad enough to confer upon justices of the peace the authority to
grant bail to persons accused even of capital offenses for such is the only meaning that we can give to the phrase bind
over any person charged with such offense to secure his appearance before the proper court. This is the meaning of bail
as defined in section 1 of Rule 110.

Some apprehension has been expressed by some members of the Court over the fact that if such power is given to
justices of the peace in capital cases the power may be abused or improperly exercised considering the fact that some of
them are not lawyers or are politicians like the mayors who may act under the law when the incumbent justices are
temporarily absent (section 3, Rule 108). While the possibility of abuse cannot be denied such cannot argue against the
existence of the power and if there is need for a remedy such devolves upon Congress. But before such curative measure
is adopted, our duty is to apply the law as we see it regardless of its implications. And in the event that an abuse is
committed, the situation is not without a remedy. The government can immediately take steps to obtain appropriate
relief and, we are sure, the proper court will not deny prompt action when necessary to promote the interests of justice.
We are therefore of the opinion that Respondent justice of the peace can act on the application for bail taking into
account the evidence that may be presented by the prosecution. In this respect the order appealed from is correct.

Rule 114 18
Considering that the petition for mandamus is premature, the same should be dismissed with costs against Petitioners.

Separate Opinions

MONTEMAYOR, J., concurring and dissenting:

In so far as the majority opinion dismisses the petition for mandamus for being premature, I concur in it. But where it
holds and lays down the doctrine that a Justice of the Peace Court may entertain and act upon petitions for bail in capital
offense cases, I dissent. The reason is that a Justice of the Peace Court has a limited criminal jurisdiction and is allowed to
try and decide only minor or petty offenses; it is not a court of record; and until the present, in some towns or districts
the judicial officer presiding over it, is not even a member of the bar, and although he may have studied law, he has
limited legal training, experience and knowledge of the law, especially that of evidence, and is not qualified and in a
position to receive, pass upon and weigh evidence submitted to determine whether the evidence for the prosecution is
strong, as provided by law. The very majority opinion in part says:

But the prevailing rule is that inferior officers vested only with the power to commit cannot, without express legislative
enactment, take bail in capital offenses, for the determination of the sufficiency of the evidence in such cases, in order to
entitle the accused to bail, is a matter of the greatest importance both to the accused and to the state and is the
appropriate province of the court entrusted with the trial of such cases (6 Am. Jur., 67). (Italics supplied.)

That is partly correct. The complete rule seems to be that stated in Ex-parte Kittrel, 20 Ark. 400 where the Court said:

To hear the showing and determine upon the sufficiency in cases of so much magnitude is a matter of the greatest
importance, both to the accused and to the state, and would seem to be the appropriate province of the court or judge
intrusted, by the Constitution, with the trial of such causes; and in the absence of any clear and explicit act attempting to
confer upon inferior officers authority to hear and determine a matter of so much consequence in the progress of capital
cases, we are disposed to doubt that such was the intention of the legislature. (39 L.R.A. NS 758.) (Italics supplied.)

Now, is there any law, clear and explicit conferring upon a justice of the Peace Court the jurisdiction and authority to hear
and determine applications for bail in cases involving capital offense? The majority opinion claims that there is such a law
sections 87 and 91 of the Judiciary Act of 1948; and says:

The first section provides that the justices of the peace may conduct preliminary investigations for any offense alleged to
have been committed within their respective municipalities without regard to the limits of punishments, and may
release, or commit and bind over any person charged with such offense to secure his appearance before the proper
court. And section 91 provides that the same justices of the peace may require of any person arrested a bond for good
behavior or to keep the peace, or for the further appearance of such person before a court of competent jurisdiction.
The only limitation to this power is that the bond must be approved by that court. These provisions are broad enough to
confer upon justices of the peace the authority to grant bail to persons accused even of capital offenses for such is the
only meaning that we can give to the phrase bind over any person charged with such offense to secure his appearance
before the proper court. (Italics supplied.)

It will be noticed that the majoritys whole claim or argument by reason of the above provisions rests mainly, if not
entirely on the phrase bind over which according to Vol. I, Bouviers Law Dictionary, p. 365, is the act by which a
magistrate or court hold to bail a party accused of a crime or misdemeanor. But the phrase bind over does not stand
alone in section 87 of the Judiciary Act of 1948. It is connected with the word commit;, the whole phrase being
commit and bind over. According to Vol. I, Bouviers Law Dictionary, p. 550, commitment is defined as the warrant or
order by which a court or magistrate directs a ministerial officer to take a person to prison, or the act of sending a
person to prison by means of such a warrant or order. In other words, the law says that the Justice of the Peace may

Rule 114 19
admit a party accused of a crime or misdemeanor to bail and send that same party to jail. If the coordinating word or
were used between the word commit and the phrase bind over, then there would be offered an alternative or choice
of either, that is to say, a magistrate may commit one to jail or admit him to bail. But the law used the conjunction and
which would seem to mean that the magistrate must do both and not only one of them. What the Legislature meant by
the phrase commit and bind over is not only not clear but doubtful and we cannot say that the law is clear and explicit
in authorizing a Justice of the Peace to grant bail in capital offenses. The majority opinion itself admits that the law and
the rules are not explicit enough. Even assuming that the phrase could be interpreted to mean that the Justice of the
Peace may put in jail or admit to bail, it may well be that such authority extends only to non-capital offenses where the
accused is entitled to bail as a matter of right, and not to cases where admission to bail is a matter of discretion (Rule 110
section 8). The majority claims that the legal provisions are broad enough. Indeed they are broad, too broad and vague,
and to me far from clear and explicit. Nowhere in sections 87 and 91 of the Judiciary Act can we find a single word,
phrase or clause mentioning or referring even remotely to capital offenses. So, under the rule I have cited and
reproduced, in the absence of a clear and explicit Act attempting to confer upon inferior officers authority to hear and
determine a matter of so much consequence in the progress of capital cases (petition for bail) the conclusion must be
that said inferior officers have not such authority.

Let us start with the fact that a Justice of the Peace Court is not a court of record. There is no stenographer to take down
the evidence submitted before it. So, if said court acting upon a petition for bail in a capital offense case grants bail on
the ground that the evidence for the prosecution is not strong or, on the other hand, denies bail on the ground that said
evidence for the prosecution is strong, it would be difficult, if not impossible, to appeal from said order or to correct it
thru certiorari proceedings on the ground of abuse of discretion, for the simple reason that the appellate court where the
appeal is taken nor where the extraordinary legal remedy is sought, cannot review the evidence received by the Justice of
the Peace Court to determine whether or not it abused its discretion, because there is no record of such evidence.

It is true that a Justice of the Peace may conduct preliminary investigation of any criminal case regardless of the
seriousness thereof and the penalty attached to it. For that matter even the town mayor may also be called upon to
conduct said preliminary investigation. Section 3, Rule 108 of the Rules of Court provides:

SEC. 3. Preliminary investigation by the municipal mayor. In case of temporary absence of both the justice of the
peace and the auxiliary justice from the municipality, town, or place wherein they exercise their jurisdiction, the
municipal mayor shall make the preliminary investigation in criminal cases when such investigation cannot be delayed
without prejudice to the interest of justice. He shall make a report of any preliminary investigation so made to the justice
of the peace or to the auxiliary justice immediately upon the return of one or the other. He shall have authority in such
cases to order the arrest of the Defendant and to grant him bail in the manner and cases provided for in Rule 110.

Under the above provision, a mayor may conduct a preliminary investigation and may grant bail under Rule 110. Put we
should bear in mind that in a preliminary investigation said court determines only the existence or absence of probable
cause and then decides whether to dismiss the case or to elevate the same to the Court of First Instance. However, to
determine whether a person accused of a capital offense is entitled to bail, the court determines not only probable cause
but also whether the evidence for the prosecution is strong. To make this determination involves a careful appraisal and
weighing of the evidence not only of the prosecution but also that of the defense, for the reason that the evidence of the
prosecution alone may be strong but when considered and weighed against that of the defense, it may be weak. In this
appraisal and weighing of the evidence the court must pass upon and decide many legal points requiring legal training,
experience, and knowledge if not mastery of the law of evidence. It must determine the admissibility of written
statements and confessions claimed by the defense to have been extorted thru force, intimidation, torture or promise of
reward. It must determine whether statements, verbal or written, made by the murder victim may be considered as a
dying declaration, whether or not spontaneous statements or exclamations uttered by him are part of the res gestae, to
determine their competence and admissibility. It must be able to tell if the crime committed is murder or simple
homicide for if the latter, then it is not a capital offense and so the accused is entitled to bail; but the determination of
this important point involves a finding of the existence or absence of qualifying or merely aggravating (generic)
circumstances and requires knowledge of the distinction between them. It must pass upon the propriety relevancy and
materiality of questions asked and the objections thereto. I am not sure that a Justice of the Peace with some exceptions
of course, is in a position to do all this. And I greatly doubt that the Legislature by the general, if not vague, terms used in

Rule 114 20
section 87 of the Judiciary Act intended to entrust all this task to a Justice of the Peace who may not even be a lawyer or
to the town mayor who may be a complete stranger to a law book.

We should also remember that in a position for bail in capital offenses the Provincial Fiscal must be notified and most
likely he will appear at the hearing and fight the application every inch of the way, especially when in his opinion the
evidence in his hands is strong and the accused is a dangerous criminal who would likely jump his bail. Now, in such a
prolonged and bitter legal fight between the Fiscal and usually a battery of defense lawyers, considerable evidence,
parole and documentary, is submitted. One side would be asking questions leading, impertinent or otherwise and the
other vigorously objecting to them and vice-versa, and arguing all the way, and the court must decide all said questions
and points on the spot. The hearing may last several days. When the trial is finally ended and the justice of the Peace
retires to his room to study the evidence, he has to rely entirely upon his memory unless he has taken down notes. He
has no record of the evidence such as the transcript of stenographic notes of the testimony of witnesses to refresh his
memory, to contrast the evidence for the prosecution with that of the defense and weigh both in the Judicial balance,
because as we have already said, this court is not a court of record and there is no stenographer to take down the
evidence. Considering all this, can we in conscience say that the Justice of the Peace is in a position to entertain and
decide a petition for bail in a case involving a capital offense?

There is another important question that bears consideration. Let us suppose that the complaint for a capital offense is
filed in a remote municipality far from the capital. A petition for bail is filed. The law says that the Provincial Fiscal must
be notified. For him to leave his office and a trial being conducted by him in the Court of First Instance, may not be easy.
He may have to ask for postponement of the hearing on the petition for bail. When he finally goes to the remote town
for the hearing, he arrives there with no knowledge whatsoever of the case, much less, of the evidence of the
prosecution. He would have to call and confer with the Government witnesses, take down their testimonies and
otherwise prepare for the hearing. This may require several days and in the meantime the accused is in confinement. The
hearing sometimes is a full-dress rehearsal of the regular trial and may take several days, all because the defense
attorneys knowing that the Fiscal or his assistant had come to attend the hearing, have lined up many defense witnesses
and prepared them. After the hearing, the Justice of the Peace or the Mayor acting in his place may also take time to
study the evidence submitted and decide the petition for bail. All this lapse of time is prejudicial to the accused because
in the meantime he is languishing in jail. Finally, the Court finds that the evidence for the prosecution is not strong and
grants bail. The case is then set for preliminary investigation. This may have to be done because although the Justice of
the Peace found after the hearing on the petition for bail that the evidence for the prosecution was not strong,
nevertheless, to send the case up to the Court of First Instance, requires only probable cause if proven at the preliminary
investigation. After the preliminary investigation and after the oral arguments by both parties, the Justice of the Peace
decides that there is no probable cause and he dismisses the complaint. It is evident that all the proceedings at the
hearing on the petition for bail was a waste of time and effort not only on the part of the court but also of the
prosecution and the defense and their witnesses, all because the hearing on the petition for bail was held before the
preliminary investigation. It would have been better and more proper and advisable to have awaited the result of the
preliminary investigation before filing a petition for bail, and file said petition in the Court of First Instance if the case is
finally elevated to it because if after the preliminary investigation the case is dismissed and the accused released, then
there would be no reason or occasion for the petition for bail. In the case or example I have given, preliminary
investigation would not have lasted more than one or two hours because the Court found not even probable cause, and
so the accused would have been released immediately; but because he filed a petition for bail, he spent many days in jail
because the Fiscal had to be notified, the hearing had to be postponed, extensive preparation were made by both sides,
a full-dress hearing was had where voluminous evidence was submitted, all to be studied and weighed by the Justice of
the Peace.

Not infrequently, the accused in a capital offense are plain bandits charged with multiple murder, homicide, robbery,
even rape. Because of the difficulty of capturing them, a reward of say P20,000 is set upon the head of the leader. After a
campaign of months by the Army and the Constabulary with the aid of informers interested in the reward but after the
loss of lives of soldiers and guides, and expense to the Government of hundreds of thousands of pesos, including the
payment of rewards, the bandits are finally captured. The corresponding complaint is filed against them in the Justice of
the Peace Court for multiple murder, homicide, kidnapping, robbery, rape, etc. They file a petition for bail. If the Justice of
the Peace because of the reasons already given, namely, his limited legal preparation, experience and training, or for

Rule 114 21
complete lack of the same in case the Mayor acts in the absence of the Justice of the Peace and his auxiliary, makes a
mistake and grants the petition for bail, then all these Defendants captured after so much sacrifice and expenses are set
free and most likely would go back to the mountains and forests to renew their acts of pillage and banditry.

On this particular point the majority frankly admits the possibility of abuse of such authority to grant bail in capital
offense cases when it says:

Some apprehension has been expressed by some members of the Court over the fact that If such power is given to
justices of the peace in capital cases the power may be abused or improperly exercised considering the fact that some of
them are not lawyers or are politicians like the mayors who may act under the law when the incumbent justices are
temporarily absent (section 3, Rule 108). While the possibility of abuse cannot be denied such cannot argue against the
existence of the power and if there is need for a remedy such devolves upon Congress. But before such curative
measures is adopted, our duty is to apply the law as we see it regardless of its implication.

But in case of miscarriage of justice due to abuse, the majority with admirable ingenuousness, and with hope and trust
manifestly misplaced offers a remedy, saying:

And in the event that an abuse is committed, the situation is not without a remedy. The government can immediately
take steps to obtain appropriate relief and we are sure, the proper court will not deny prompt action when necessary to
promote the interests of justice.

True, the Fiscal may petition the Court of First Instance for the cancellation even for the confiscation of the bail bond.
But that would be locking the door of the stable after the horse is gone. What shall it profit the Government to confiscate
said bonds, even get their amounts, assuming that the sureties are all solvent, if after all, the Government will have to
renew, even re- double its campaign to recapture the bandits, offer new rewards and lose more soldiers and innocent
lives. Why not entrust that delicate and important task of determining in capital offense cases, whether or not the
evidence for the prosecution is strong, for purposes of granting or denying bail, which according to prevailing rule cited
by the majority opinion itself is a matter of the greatest importance both to the accused and to the state, to the Court
of First Instance, where it belongs and where, in the absence of clear and explicit legal provisions to the contrary, the
Legislature in my opinion intended it to be?

Rule 114 22
 SECOND DIVISION

G.R. No. 129670 February 1, 2000

MANOLET O. LAVIDES, petitioner,

vs.
HONORABLE COURT OF APPEALS; HON. ROSALINA L. LUNA PISON, Judge Presiding
over Branch 107, RTC, Quezon City; and PEOPLE OF THE PHILIPPINES, respondents.

MENDOZA, J.:

Petitioner Manolet Lavides was arrested on April 3, 1997 for child abuse under R.A. No. 7610 (AN
ACT PROVIDING FOR STRONGER DETERRENCE AND SPECIAL PROTECTION AGAINST
CHILD ABUSE, EXPLOITATION AND DISCRIMINATION, PROVIDING PENALTIES FOR ITS
VIOLATION, AND OTHER PURPOSES). His arrest was made without a warrant as a result of an
entrapment conducted by the police. It appears that on April 3, 1997, the parents of complainant
Lorelie San Miguel reported to the police that their daughter, then 16 years old, had been contacted by
petitioner for an assignation that night at petitioner's room at the Metropolitan Hotel in Diliman,
Quezon City. Apparently, this was not the first time the police received reports of petitioner's
activities. An entrapment operation was therefore set in motion. At around 8:20 in the evening of April
3, 1997, the police knocked at the door of Room 308 of the Metropolitan Hotel where petitioner was
staying. When petitioner opened the door, the police saw him with Lorelie, who was wearing only a t-
shirt and an underwear, whereupon they arrested him. Based on the sworn statement of complainant
and the affidavits of the arresting officers, which were submitted at the inquest, an information for
violation of Art. III, 5(b) of R.A. No. 7610 was filed on April 7, 1997 against petitioner in the
Regional Trial Court, Quezon City, where it was docketed as Criminal Case No. Q-97-
70550.1wphi1.nt

On April 10, 1997, petitioner filed an "Omnibus Motion (1) For Judicial Determination of Probable
Cause; (2) For the Immediate Release of the Accused Unlawfully Detained on an Unlawful
Warrantless Arrest; and (3) In the Event of Adverse Resolution of the Above Incident, Herein Accused
be Allowed to Bail as a Matter of Right under the Law on Which He is Charged.1

On April 29, 1997, nine more informations for child abuse were filed against petitioner by the same
complainant, Lorelie San Miguel, and by three other minor children, Mary Ann Tardesilla, Jennifer
Catarman, and Annalyn Talingting. The cases were docketed as Criminal Case Nos. Q-97-70866 to Q-
97-70874. In all the cases, it was alleged that, on various dates mentioned in the informations,
petitioner had sexual intercourse with complainants who had been "exploited in prostitution and . . .
given money [by petitioner] as payment for the said [acts of] sexual intercourse."

Rule 114 23
No bail was recommended. Nonetheless, petitioner filed separate applications for bail in the nine
cases.

On May 16, 1997, the trial court issued an order resolving petitioner's Omnibus Motion, as follows:

WHEREFORE, IN VIEW OF THE FOREGOING, this Court finds that:

1. In Crim. Case No. Q-97-70550, there is probable cause to hold the accused under detention, his
arrest having been made in accordance with the Rules. He must therefore remain under detention until
further order of this Court;

2. The accused is entitled to bail in all the above-entitled case. He is hereby granted the right to post
bail in the amount of P80,000.00 for each case or a total of P800,000.00 for all the cases under the
following conditions:

a) The accused shall not be entitled to a waiver of appearance during the trial of these cases. He shall
and must always be present at the hearings of these cases;

b) In the event that he shall not be able to do so, his bail bonds shall be automatically cancelled and
forfeited, warrants for his arrest shall be immediately issued and the cases shall proceed to trial in
absentia;

c) The hold-departure Order of this Court dated April 10, 1997 stands; and

d) Approval of the bail bonds shall be made only after the arraignment to enable this Court to
immediately acquire jurisdiction over the accused;

3. Let these cases be set for arraignment on May 23, 1997 at 8:30 o'clock in the morning.2

On May 20, 1997, petitioner filed a motion to quash the informations against him, except those filed
in Criminal Case No. Q-97-70550 or Q-97-70866. Pending resolution of his motion, he asked the trial
court to suspend the arraignment scheduled on May 23, 1997. 3 Then on May 22, 1997, he filed a
motion in which he prayed that the amounts of bail bonds be reduced to P40,000.00 for each case and
that the same be done prior to his arraignment.4

On May 23, 1997, the trial court, in separate orders, denied petitioner's motions to reduce bail bonds,
to quash the informations, and to suspend arraignment. Accordingly, petitioner was arraigned during
which he pleaded not guilty to the charges against him and then ordered him released upon posting
bail bonds in the total amount of P800,000.00, subject to the conditions in the May 16, 1997 order and
the "hold-departure" order of April 10, 1997. The pre-trial conference was set on June 7, 1997.

On June 2, 1997, petitioner filed a petition for certiorari (CA-G.R. SP No. 44316) in the Court of
Appeals, assailing the trial court's order, dated May 16, 1997, and its two orders, dated May 23, 1997,
denying his motion to quash and maintaining the conditions set forth in its order of May 16, 1997,
respectively.

While the case was pending in the Court of Appeals, two more informations were filed against
petitioner, bringing the total number of cases against him to 12, which were all consolidated.

Rule 114 24
On June 30, 1997, the Court of Appeals rendered its decision, the dispositive portion of which reads:

WHEREFORE, considering that the conditions imposed under Nos. 2-a) and 2-b), 5 of the May 23
[should be May 16], 1997 Order, are separable, and would not affect the cash bond which petitioner
posted for his provisional liberty, with the sole modification that those aforesaid conditions are hereby
ANNULLED and SET ASIDE, the May 16, May 23 and May 23, 1997 Orders are MAINTAINED in
all other respects.6

The appellate court invalidated the first two conditions imposed in the May 16, 1997 order for the
grant of bail to petitioner but ruled that the issue concerning the validity of the condition making
arraignment a prerequisite for the approval of petitioner's bail bonds to be moot and academic. It
noted "that petitioner has posted the cash bonds; that when arraigned, represented by lawyers, he
pleaded not guilty to each offense; and that he has already been released from detention." The Court
of Appeals thought that the aforesaid conditions in the May 16, 1997 order were contrary to Art. III,
14(2) of the Constitution which provides that "[a]fter arraignment, trial may proceed notwithstanding
the absence of the accused provided that he has been duly notified and his failure to appear is
unjustifiable."

With respect to the denial of petitioner's motion to quash the informations against him, the appellate
court held that petitioner could not question the same in a petition for certiorari before it, but what he
must do was to go to trial and to reiterate the grounds of his motion to quash on appeal should the
decision be adverse to him.

Hence this petition. Petitioner contends that the Court of Appeals erred7

1. In ruling that the condition imposed by respondent Judge that the approval of petitioner's bail bonds
"shall be made only after his arraignment" is of no moment and has been rendered moot and academic
by the fact that he had already posted the bail bonds and had pleaded not guilty to all the offenses;

2. In not resolving the submission that the arraignment was void not only because it was made under
compelling circumstance which left petitioner no option to question the respondent Judge's arbitrary
action but also because it emanated from a void Order;

3. In ruling that the denial of petitioner's motion to quash may not be impugned in a petition
for certiorari; and

4. In not resolving the legal issue of whether or not petitioner may be validly charged for violation of
Section 5(b) of RA No. 7610 under several informations corresponding to the number of alleged acts
of child abuse allegedly committed against each private complainant by the petitioner.

We will deal with each of these contentions although not in the order in which they are stated by
petitioner.

First. As already stated, the trial court's order, dated May 16, 1997, imposed four conditions for the
grant of bail to petitioner:

a) The accused shall not be entitled to a waiver of appearance during the trial of these cases. He shall
and must always be present at the hearings of these cases;

Rule 114 25
b) In the event that he shall not be able to do so, his bail bonds shall be automatically cancelled and
forfeited, warrants for his arrest shall be immediately issued and the cases shall proceed to trial in
absentia;

c) The hold-departure Order of this Court dated April 10, 1997 stands; and

d) Approval of the bail bonds shall be made only after the arraignment to enable this Court to
immediately acquire jurisdiction over the accused;

The Court of Appeals declared conditions (a) and (b) invalid but declined to pass upon the validity of
condition (d) on the ground that the issue had become moot and academic. Petitioner takes issue with
the Court of Appeals with respect to its treatment of condition (d) of the May 16, 1997 order of the
trial court which makes petitioner's arraignment a prerequisite to the approval of his bail bonds. His
contention is that this condition is void and that his arraignment was also invalid because it was held
pursuant to such invalid condition.

We agree with petitioner that the appellate court should have determined the validity of the conditions
imposed in the trial court's order of May 16, 1997 for the grant of bail because petitioner's contention
is that his arraignment was held in pursuance of these conditions for bail.

In requiring that petitioner be first arraigned before he could be granted bail, the trial court
apprehended that if petitioner were released on bail he could, by being absent, prevent his early
arraignment and thereby delay his trial until the complainants got tired and lost interest in their cases.
Hence, to ensure his presence at the arraignment, approval of petitioner's bail bonds should be
deferred until he could be arraigned. After that, even if petitioner does not appear, trial can proceed as
long as he is notified of the date of hearing and his failure to appear is unjustified, since under Art. III,
14(2) of the Constitution, trial in absentia is authorized. This seems to be the theory of the trial court
in its May 16, 1997 order conditioning the grant of bail to petitioner on his arraignment.

This theory is mistaken. In the first place, as the trial court itself acknowledged, in cases where it is
authorized, bail should be granted before arraignment, otherwise the accused may be precluded from
filing a motion to quash. For if the information is quashed and the case is dismissed, there would then
be no need for the arraignment of the accused. In the second place, the trial court could ensure the
presence of petitioner at the arraignment precisely by granting bail and ordering his presence at any
stage of the proceedings, such as arraignment. Under Rule 114, 2(b) of the Rules on Criminal
Procedure, one of the conditions of bail is that "the accused shall appear before the proper court
whenever so required by the court or these Rules," while under Rule 116, 1(b) the presence of the
accused at the arraignment is required.

On the other hand, to condition the grant of bail to an accused on his arraignment would be to place
him in a position where he has to choose between (1) filing a motion to quash and thus delay his
release on bail because until his motion to quash can be resolved, his arraignment cannot be held, and
(2) foregoing the filing of a motion to quash so that he can be arraigned at once and thereafter be
released on bail. These scenarios certainly undermine the accused's constitutional right not to be put
on trial except upon valid complaint or information sufficient to charge him with a crime and his right
to bail.8

Rule 114 26
It is the condition in the May 16, 1997 order of the trial court that "approval of the bail bonds shall be
made only after arraignment," which the Court of Appeals should instead have declared void. The
condition imposed in the trial court's order of May 16, 1997 that the accused cannot waive his
appearance at the trial but that he must be present at the hearings of the case is valid and is in
accordance with Rule 114. For another condition of bail under Rule 114, 2(c) is that "The failure of
the accused to appear at the trial without justification despite due notice to him or his bondsman shall
be deemed an express waiver of his right to be present on the date specified in the notice. In such
case, trial shall proceed in absentia."

Art. III, 14(2) of the Constitution authorizing trials in absentia allows the accused to be absent at the
trial but not at certain stages of the proceedings, to wit: (a) at arraignment and plea, whether of
innocence or of guilt,9 (b) during trial whenever necessary for identification purposes, 10 and (c) at the
promulgation of sentence, unless it is for a light offense, in which case the accused may appear by
counsel or representative.11 At such stages of the proceedings, his presence is required and cannot be
waived. As pointed out in Borja v. Mendoza,12 in an opinion by Justice, later Chief Justice, Enrique
Fernando, there can be no trial in absentia unless the accused has been arraigned.

Undoubtedly, the trial court knew this. Petitioner could delay the proceedings by absenting himself
from the arraignment. But once he is arraigned, trial could proceed even in his absence. So it thought
that to ensure petitioner's presence at the arraignment, petitioner should be denied bail in the
meantime. The fly in the ointment, however, is that such court strategy violates petitioner's
constitutional rights.

Second. Although this condition is invalid, it does not follow that the arraignment of petitioner on
May 23, 1997 was also invalid. Contrary to petitioner's contention, the arraignment did not emanate
from the invalid condition that "approval of the bail bonds shall be made only after the arraignment."
Even without such a condition, the arraignment of petitioner could not be omitted. In sum, although
the condition for the grant of bail to petitioner is invalid, his arraignment and the subsequent
proceedings against him are valid.

Third. Petitioner concedes that the rule is that the remedy of an accused whose motion to quash is
denied is not to file a petition for certiorari but to proceed to trial without prejudice to his right to
reiterate the grounds invoked in his motion to quash during trial on the merits or on appeal if an
adverse judgment is rendered against him. However, he argues that this case should be treated as an
exception. He contends that the Court of Appeals should not have evaded the issue of whether he
should be charged under several informations corresponding to the number of acts of child abuse
allegedly committed by him against each of the complainants.

In Tano v. Salvador,13 the Court, while holding that certiorari will not lie from a denial of a motion to
quash, nevertheless recognized that there may be cases where there are special circumstances clearly
demonstrating the inadequacy of an appeal. In such cases, the accused may resort to the appellate
court to raise the issue decided against him. This is such a case. Whether petitioner is liable for just
one crime regardless of the number of sexual acts allegedly committed by him and the number of
children with whom he had sexual intercourse, or whether each act of intercourse constitutes one
crime is a question that bears on the presentation of evidence by either party. It is important to
petitioner as well as to the prosecution how many crimes there are. For instance, if there is only one
offense of sexual abuse regardless of the number of children involved, it will not matter much to the
prosecution whether it is able to present only one of the complainants. On the other hand, if each act

Rule 114 27
of sexual intercourse with a child constitutes a separate offense, it will matter whether the other
children are presented during the trial.

The issue then should have been decided by the Court of Appeals. However, instead of remanding this
case to the appellate court for a determination of this issue, we will decide the issue now so that the
trial in the court below can proceed without further delay.

Petitioner's contention is that the 12 informations filed against him allege only one offense of child
abuse, regardless of the number of alleged victims (four) and the number of acts of sexual intercourse
committed with them (twelve). He argues that the act of sexual intercourse is only a means of
committing the offense so that the acts of sexual intercourse/lasciviousness with minors attributed to
him should not be subject of separate informations. He cites the affidavits of the alleged victims
which show that their involvement with him constitutes an "unbroken chain of events," i.e., the first
victim was the one who introduced the second to petitioner and so on. Petitioner says that child abuse
is similar to the crime of large-scale illegal recruitment where there is only a single offense regardless
of the number of workers illegally recruited on different occasions. In the alternative, he contends
that, at the most, only four informations, corresponding to the number of alleged child victims, can be
filed against him.

Art. III, 5 of R.A. No. 7160 under which petitioner is being prosecuted, provides:

Sec. 5 Child Prostitution and Other Sexual Abuse. Children, whether male or female, who for
money, profit, or any other consideration or due to the coercion or influence of any adult, syndicate or
group, indulge in sexual intercourse or lascivious conduct, are deemed to be children exploited in
prostitution and other sexual abuse.

The penalty of reclusion temporal in its medium period to reclusion perpetua shall be imposed upon
the following:

xxx xxx xxx

(b) Those who commit the act of sexual intercourse or lascivious conduct with a child exploited in
prostitution or subjected to other sexual abuse.

The elements of the offense are as follows: (1) the accused commits the act of sexual intercourse or
lascivious conduct; (2) that said act is performed with a child exploited in prostitution or subjected to
other sexual abuse; and (3) the child, 14 whether male or female, is or is deemed under 18 years of age.
Exploitation in prostitution or other sexual abuse occurs when the child indulges in sexual intercourse
or lascivious conduct (a) for money, profit, or any other consideration; or (b) under the coercion or
influence of any adult, syndicate, or group.

Each incident of sexual intercourse and lascivious act with a child under the circumstances mentioned
in Air. III, 5 of R.A. No. 7160 is thus a separate and distinct offense. The offense is similar to rape or
act of lasciviousness under the Revised Penal Code in which each act of rape or lascivious conduct
should be the subject of a separate information. This conclusion is confirmed by Art. III, 5(b) of R.A.
No. 7160, which provides:

Rule 114 28
[t]hat when the victim is under twelve (12) years of age, the perpetrators shall be prosecuted under
Article 335, paragraph 3, for rape and Article 336 of Act No. 3815, as amended, the Revised Penal
Code, for rape or lascivious conduct, as the case may be: Provided, That the penalty for lascivious
conduct when the victim is under twelve (12) years of age shall be reclusion temporal in its medium
period;

WHEREFORE, the decision of the Court of Appeals is SET ASIDE and another one is RENDERED
declaring the orders dated May 16, 1997 and May 23, 1997 of the Regional Trial Court, Branch 107,
Quezon City to be valid, with the exception of condition (d) in the second paragraph of the order of
May 16, 1997 (making arraignment a prerequisite to the grant of bail to petitioner), which is hereby
declared void.1wphi1.nt

SO ORDERED.

GR 129670, 1 February 2000

MANOLET O. LAVIDES vs. HONORABLE COURT OF APPEALS

FACTS:

On 3 April 1997, the parents of Lorelie San Miguel reported to the police that their daughter, then 16 years old,
had been contacted by Manolet Lavides for an assignation that night at Lavides' room at the Metropolitan Hotel
in Diliman, Quezon City. Apparently, this was not the first time the police received reports of Lavides' activities.
An entrapment operation was therefore set in motion. At around 8:20 p.m. of the same date, the police knocked
at the door of Room 308 of the Metropolitan Hotel where Lavides was staying. When Lavides opened the door,
the police saw him with Lorelie, who was wearing only a t-shirt and an underwear, whereupon they arrested
him. Based on the sworn statement of Lorelie and the affidavits of the arresting officers, which were submitted
at the inquest, an information for violation of Article III, 5(b) of RA 7610 (An Act Providing for Stronger
Deterrence and Special Protection against Child Abuse, Exploitation and Discrimination, Providing Penalties for
its Violation, and other Purposes) was filed on 7 April 1997 against Lavides in the Regional Trial Court, Quezon
City (Criminal Case Q-97-70550). On 10 April 1997, Lavides filed an "Omnibus Motion (1) For Judicial
Determination of Probable Cause; (2) For the Immediate Release of the Accused Unlawfully Detained on an
Unlawful Warrantless Arrest; and (3) In the Event of Adverse Resolution of the Above Incident, Herein Accused
be Allowed to Bail as a Matter of Right under the Law on Which He is Charged." On 29 April 1997, 9 more
informations for child abuse were filed against Lavides by Lorelie San Miguel, and by three other minor
children, Mary Ann Tardesilla, Jennifer Catarman, and Annalyn Talinting (Criminal Case Q-97-70866 to Q-97-
70874). In all the cases, it was alleged that, on various dates mentioned in the informations, Lavides had
sexual intercourse with complainants who had been "exploited in prostitution and given money as payment for
the said acts of sexual intercourse." No bail was recommended. Nonetheless, Lavides filed separate
applications for bail in the 9 cases. On 16 May 1997, the trial court issued an order resolving Lavides' Omnibus
Motion. finding that, in Criminal Case Q-97-70550, there is probable cause to hold the accused under
detention, his arrest having been made in accordance with the Rules, and thus he must therefore remain under
detention until further order of the Court; and that the accused is entitled to bail in all the case, and that he is
granted the right to post bail in the amount of P80,000.00 for each case or a total of P800,000.00 for all the
cases under certain conditions. On 20 May 1997, Lavides filed a motion to quash the informations against him,
except those filed in Criminal Case Q-97-70550 or Q-97-70866. Pending resolution of his motion, he asked the
trial court to suspend the arraignment scheduled on 23 May 1997. Then on 22 May 1997, he filed a motion in
which he prayed that the amounts of bail bonds be reduced to P40,000.00 for each case and that the same be
done prior to his arraignment. On 23 May 1997, the trial court, in separate orders, denied Lavides' motions to

Rule 114 29
reduce bail bonds, to quash the informations, and to suspend arraignment. Accordingly, Lavides was arraigned
during which he pleaded not guilty to the charges against him and then ordered him released upon posting bail
bonds in the total amount of P800,000.00, subject to the conditions in the 16 May 1997 order and the "hold-
departure" order of 10 April 1997. The pre-trial conference was set on 7 June 1997. On 2 June 1997, Lavides
filed a petition for certiorari in the Court of Appeals, assailing the trial court's order, dated 16 May 1997, and its
two orders, dated 23 May 1997, denying his motion to quash and maintaining the conditions set forth in its
order of 16 May 1997, respectively. While the Constitutional Law II, 2005 ( 3 ) Narratives (Berne Guerrero) case
was pending in the Court of Appeals, two more informations were filed against Lavides, bringing the total
number of cases against him to 12, which were all consolidated. On 30 June 1997, the Court of Appeals
rendered its decision, invalidating the first two conditions under 16 May 1997 order -- i.e. that (1) the accused
shall not be entitled to a waiver of appearance during the trial of these cases. He shall and must always be
present at the hearings of these cases; and (2) In the event that he shall not be able to do so, his bail bonds
shall be automatically cancelled and forfeited, warrants for his arrest shall be immediately issued and the cases
shall proceed to trial in absentia -- and maintained the orders in all other respects. Lavides filed the petition for
review with the Supreme Court.

ISSUE:

Whether the court should impose the condition that the accused shall ensure his presence during the trial of
these cases before the bail can be granted.

RULING:

In cases where it is authorized, bail should be granted before arraignment, otherwise the accused may be
precluded from filing a motion to quash. For if the information is quashed and the case is dismissed, there
would then be no need for the arraignment of the accused. Further, the trial court could ensure Lavides'
presence at the arraignment precisely by granting bail and ordering his presence at any stage of the
proceedings, such as arraignment. Under Rule 114, 2(b) of the Rules on Criminal Procedure, one of the
conditions of bail is that "the accused shall appear before the proper court whenever so required by the court or
these Rules," while under Rule 116, 1(b) the presence of the accused at the arraignment is required. To
condition the grant of bail to an accused on his arraignment would be to place him in a position where he has to
choose between (1) filing a motion to quash and thus delay his release on bail because until his motion to
quash can be resolved, his arraignment cannot be held, and (2) foregoing the filing of a motion to quash so that
he can be arraigned at once and thereafter be released on bail. These scenarios certainly undermine the
accused's constitutional right not to be put on trial except upon valid complaint or information sufficient to
charge him with a crime and his right to bail. The court's strategy to ensure the Lavides' presence at the
arraignment violates the latter's constitutional rights.

Rule 114 30
 EN BANC

G.R. No. 148468 January 28, 2003

ATTY. EDWARD SERAPIO, petitioner,

vs.
SANDIGANBAYAN (THIRD DIVISION), PEOPLE OF THE PHILIPPINES, and
PHILIPPINE NATIONAL POLICE DIRECTOR-GENERAL LEANDRO
MENDOZA, respondents.

x---------------------------------------------------------x

G.R. No. 148769 January 28, 2003

EDWARD SERAPIO, petitioner,

vs.
HONORABLE SANDIGANBAYAN and PEOPLE OF THE PHILIPPINES, respondents.

x---------------------------------------------------------x

G.R. No. 149116 January 28, 2003

EDWARD SERAPIO, petitioner,

vs.

Rule 114 31
HONORABLE SANDIGANBAYAN (THIRD DIVISION) and PEOPLE OF THE
PHILIPPINES, respondents.

CALLEJO, SR., J.:

Before the Court are two petitions for certiorari filed by petitioner Edward Serapio, assailing the
resolutions of the Third Division of the Sandiganbayan denying his petition for bail, motion for a
reinvestigation and motion to quash, and a petition for habeas corpus, all in relation to Criminal Case
No. 26558 for plunder wherein petitioner is one of the accused together with former President Joseph
E. Estrada, Jose "Jinggoy" P. Estrada and several others.

The records show that petitioner was a member of the Board of Trustees and the Legal Counsel of the
Erap Muslim Youth Foundation, a non-stock, non-profit foundation established in February 2000
ostensibly for the purpose of providing educational opportunities for the poor and underprivileged but
deserving Muslim youth and students, and support to research and advance studies of young Muslim
educators and scientists.

Sometime in April 2000, petitioner, as trustee of the Foundation, received on its behalf a donation in
the amount of Two Hundred Million Pesos (P200 Million) from Ilocos Sur Governor Luis "Chavit"
Singson through the latter's assistant Mrs. Yolanda Ricaforte. Petitioner received the donation and
turned over the said amount to the Foundation's treasurer who later deposited it in the Foundation's
account with the Equitable PCI Bank.

In the latter part of the year 2000, Gov. Singson publicly accused then President Joseph E. Estrada and
his cohorts of engaging in several illegal activities, including its operation on the illegal numbers
game known as jueteng. This triggered the filing with the Office of the Ombudsman of several
criminal complaints against Joseph Estrada, Jinggoy Estrada and petitioner, together with other
persons. Among such complaints were: Volunteers Against Crime and Corruption, versus Joseph
Ejercito Estrada, Edward Serapio, et al., docketed as OMB Crim. Case No. 0-00-1754; Graft Free
Philippines Foundation, Inc., versus Joseph Ejercito Estrada, Edward Serapio, et al., docketed as
OMB Crim. Case No. 0-00-1755; and Leonardo De Vera, Romeo T. Capulong and Dennis B. Funa,
versus Joseph Estrada, Yolanda Ricaforte, Edward Serapio, Raul De Guzman, Danilo Reyes and Mila
Reforma, docketed as OMB Crim. Case No. 0-00-1757.

Subsequently, petitioner filed his Counter-Affidavit dated February 21, 2001. The other respondents
likewise filed their respective counter-affidavits. The Office of the Ombudsman conducted a
preliminary investigation of the complaints and on April 4, 2001, issued a joint resolution
recommending, inter alia, that Joseph Estrada, petitioner and several others be charged with the
criminal offense of plunder.

On April 4, 2001, the Ombudsman filed with the Sandiganbayan several Informations against former
President Estrada, who earlier had resigned from his post as President of the Republic of the
Philippines. One of these Informations, docketed as Criminal Case No. 26558, charged Joseph Estrada
with plunder. On April 18, 2001, the Ombudsman filed an amended Information in said case charging
Estrada and several co-accused, including petitioner, with said crime. No bail was recommended for
the provisional release of all the accused, including petitioner. The case was raffled to a special
division which was subsequently created by the Supreme Court. The amended Information reads:

Rule 114 32
"That during the period from June, 1998 to January, 2001, in the Philippines, and within the
jurisdiction of this Honorable Court, accused Joseph Ejercito Estrada, THEN A PUBLIC OFFICER
BEING THEN THE PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES, by himself
AND/OR in CONNIVANCE/CONSPIRACY with his co-accused, WHO ARE MEMBERS OF HIS
FAMILY, RELATIVES BY AFFINITY OR CONSANGUINITY, BUSINESS ASSOCIATES,
SUBORDINATES AND/OR OTHER PERSONS, BY TAKING UNDUE ADVANTAGE OF HIS
OFFICIAL POSITION, AUTHORITY, RELATIONSHIP, CONNECTION OR INFLUENCE, did
then and there wilfully, unlawfully and criminally amass, accumulate and acquire BY HIMSELF,
DIRECTLY OR INDIRECTLY, ill-gotten wealth in the aggregate amount OR TOTAL VALUE of
FOUR BILLION NINETY SEVEN MILLION EIGHT HUNDRED FOUR THOUSAND ONE
HUNDRED SEVENTY THREE PESOS AND SEVENTEEN CENTAVOS [P4,097,804,173.17],
more or less, THEREBY UNJUSTLY ENRICHING HIMSELF OR THEMSELVES AT THE
EXPENSE AND TO THE DAMAGE OF THE FILIPINO PEOPLE AND THE REPUBLIC OF THE
PHILIPPINES through ANY OR A combination OR A series of overt OR criminal acts, OR
SIMILAR SCHEMES OR MEANS, described as follows:

(a) by receiving OR collecting, directly or indirectly, on SEVERAL INSTANCES MONEY IN THE

AGGREGATE AMOUNT OF FIVE HUNDRED FORTY-FIVE MILLION PESOS
(P545,000,000.00), MORE OR LESS, FROM ILLEGAL GAMBLING IN THE FORM OF GIFT,
SHARE, PERCENTAGE, KICKBACK OR ANY FORM OF PECUNIARY BENEFIT, BY
HIMSELF AND/OR in connivance with co-accused CHARLIE 'ATONG' ANG, Jose 'Jinggoy'
Estrada, Yolanda T. Ricaforte, Edward Serapio, AND JOHN DOES AND JANE DOES in
consideration OF TOLERATION OR PROTECTION OF ILLEGAL GAMBLING;

(b) by DIVERTING, RECEIVING, misappropriating, converting OR misusing DIRECTLY OR

INDIRECTLY, for HIS OR THEIR PERSONAL gain and benefit public fund in the amount of ONE
HUNDRED THIRTY MILLION PESOS (P130,000,000.00), more or less, representing a portion of
the TWO HUNDRED MILLION PESOS [P200,000,000.00]) tobacco excise tax share allocated for
the Province of Ilocos Sur under R.A. No. 7171, BY HIMSELF AND/OR in CONNIVANCE with co-
accused Charlie 'Atong' Ang, Alma Alfaro, JOHN DOE a.k.a. Eleuterio Tan OR Eleuterio Ramos Tan
or Mr. Uy, and Jane Doe a.k.a. Delia Rajas, AND OTHER JOHN DOES AND JANE DOES;

(c) by directing, ordering and compelling FOR HIS PERSONAL GAIN AND BENEFIT, the
Government Service Insurance System (GSIS) TO PURCHASE, 351,878,000 SHARES OF
STOCKS, MORE OR LESS, and the Social Security System (SSS), 329,855,000 SHARES OF
STOCK, MORE OR LESS, OF THE BELLE CORPORATION IN THE AMOUNT OF MORE OR
LESS ONE BILLION ONE HUNDRED TWO MILLION NINE HUNDRED SIXTY FIVE
THOUSAND SIX HUNDRED SEVEN PESOS AND FIFTY CENTAVOS [P1,102,965,607.50] AND
MORE OR LESS SEVEN HUNDRED FORTY FOUR MILLION SIX HUNDRED TWELVE
THOUSAND AND FOUR HUNDRED FIFTY PESOS [P744,612,450.00], RESPECTIVELY, OR A
TOTAL OR MORE OR LESS ONE BILLION EIGHT HUNDRED FORTY SEVEN MILLION FIVE
HUNDRED SEVENTY EIGHT THOUSAND FIFTY SEVEN PESOS AND FIFTY CENTAVOS
[P1,847,578,057.50]; AND BY COLLECTING OR RECEIVING, DIRECTLY OR INDIRECTLY,
BY HIMSELF AND/OR IN CONNIVANCE WITH JOHN DOES AND JANE DOES,
COMMISSIONS OR PERCENTAGES OF SHARES OF STOCK IN THE AMOUNT OF ONE
HUNDRED EIGHTY NINE MILLION SEVEN HUNDRED THOUSAND PESOS [189,700,000.00]
MORE OR LESS, FROM THE BELLE CORPORATION WHICH BECAME PART OF THE
DEPOSIT IN THE EQUITABLE-PCI BANK UNDER THE ACCOUNT NAME "JOSE VELARDE";

Rule 114 33
(d) by unjustly enriching himself FROM COMMISSIONS, GIFTS, SHARES, PERCENTAGES,
KICKBACKS OR ANY FORM OF PECUNIARY BENEFITS, IN CONNIVANCE WITH JOHN
DOES AND JANE DOES, the amount of MORE OR LESS THREE BILLION TWO HUNDRED
THIRTY THREE MILLION ONE HUNDRED FOUR THOUSAND ONE HUNDRED SEVENTY
THREE PESOS AND SEVENTEEN CENTAVOS [P3,233,104,173.17] AND DEPOSITING THE
SAME UNDER HIS ACCOUNT NAME "JOSE VELARDE" AT THE EQUITABLE-PCI BANK.

CONTRARY TO LAW."1

On April 5, 2001, petitioner obtained a copy of the Ombudsman's Joint Resolution finding probable
cause against him for plunder. The next day, April 6, 2001, he filed with the Office of the Ombudsman
a Motion for Reconsideration and/or Reinvestigation. 2 Petitioner likewise filed on said date, this time
with the Sandiganbayan, an Urgent Omnibus Motion: (a) To Hold in Abeyance the Issuance of
Warrant of Arrest and Further Proceedings; (b) To Conduct a Determination of Probable Cause; (c)
For Leave to File Accused's Motion for Reconsideration and/or Reinvestigation; and (d) To Direct the
Ombudsman to Conduct a Reinvestigation of the Charges against accused Edward Serapio.3

On April 10, 2001, the Ombudsman issued an order denying petitioner's motion for reconsideration
and/or reinvestigation on the ground of lack of jurisdiction since the amended Information charging
petitioner with plunder had already been filed with the Sandiganbayan.4

In a parallel development, the Sandiganbayan issued a Resolution on April 25, 2001 in Criminal Case
No. 26558 finding probable cause to justify the issuance of warrants of arrest for the accused,
including petitioner. Accordingly, the Sandiganbayan issued an Order on the same date for the arrest
of petitioner.5 When apprised of said order, petitioner voluntarily surrendered at 9:45 p.m. on the same
day to Philippine National Police Chief Gen. Leandro Mendoza. Petitioner has since been detained at
Camp Crame for said charge.

The Sandiganbayan set the arraignment of the accused, including petitioner, in Criminal Case No.
26558 on June 27, 2001. In the meantime, on April 27, 2001, petitioner filed with the Sandiganbayan
an Urgent Petition for Bail which was set for hearing on May 4, 2001. 6 For his part, petitioner's co-
accused Jose "Jinggoy" Estrada filed on April 20, 2001 a Very Urgent Omnibus Motion alleging that
he was entitled to bail as a matter of right.

During the hearing on May 4, 2001 on petitioner's Urgent Petition for Bail, the prosecution moved for
the resetting of the arraignment of the accused earlier than the June 27, 2001 schedule. However, the
Sandiganbayan denied the motion of the prosecution and issued an order declaring that the petition for
bail can and should be heard beforepetitioner's arraignment on June 27, 2001 and even before the
other accused in Criminal Case No. 26558 filed their respective petitions for bail. Accordingly, the
Sandiganbayan set the hearing for the reception of evidence on petitioner's petition for bail on May 21
to 25, 2001.

On May 17, 2001, four days before the hearing on petitioner's petition for bail, the Ombudsman filed
an urgent motion for early arraignment of Joseph Estrada, Jinggoy Estrada and petitioner and a
motion for joint bail hearings of Joseph Estrada, Jinggoy Estrada and petitioner. The following day,
petitioner filed a manifestation questioning the propriety of including Joseph Estrada and Jinggoy
Estrada in the hearing on his (petitioner's) petition for bail.

Rule 114 34
The Sandiganbayan issued a Resolution on May 18, 2001 resetting the hearings on petitioner's
petition for bail to June 18 to 28, 2001 to enable the court to resolve the prosecution's pending
motions as well as petitioner's motion that his petition for bail be heard as early as possible, which
motion the prosecution opposed.

On May 31, 2001, the Sandiganbayan issued a Resolution denying petitioner's April 6, 2001 Urgent
Omnibus Motion. The court ruled that the issues posed by petitioner had already been resolved in its
April 25, 2001 Resolution finding probable cause to hold petitioner and his co-accused for
trial.7 Petitioner filed a motion for reconsideration of the said May 31, 2001 Resolution.

On June 1, 2001, the Sandiganbayan issued a resolution requiring the attendance of petitioner as well
as all the other accused in Criminal Case No. 26558 during the hearings on the petitions for bail under
pain of waiver of cross-examination. The Sandiganbayan, citing its inherent powers to proceed with
the trial of the case in the manner it determines best conducive to orderly proceedings and speedy
termination of the case, directed the other accused to participate in the said bail hearing considering
that under Section 8, Rule 114 of the Revised Rules of Court, whatever evidence is adduced during
the bail hearing shall be considered automatically reproduced at the trial.8

However, instead of proceeding with the bail hearing set by it on June 18, 2001, the Sandiganbayan
issued an Order on June 15, 2001 canceling the said bail hearing due to pending incidents yet to be
resolved and reset anew the hearing to June 26, 2001.9

On the eve of said hearing, the Sandiganbayan issued a resolution denying petitioner's motion for
reconsideration of its May 31, 2001 Resolution. The bail hearing on June 26, 2001 did not again
proceed because on said date petitioner filed with the Sandiganbayan a motion to quash the amended
Information on the grounds that as against him, the amended Information does not allege a
combination or series of overt or criminal acts constitutive of plunder; as against him, the amended
Information does not allege a pattern of criminal acts indicative of an overall unlawful scheme or
conspiracy; the money alleged in paragraph (a) of the amended Information to have been illegally
received or collected does not constitute "ill-gotten wealth" as defined in Section 1(d) of Republic Act
No. 7080; and the amended Information charges him of bribery and illegal gambling. 10 By way of
riposte, the prosecution objected to the holding of bail hearing until petitioner agreed to withdraw his
motion to quash. The prosecution contended that petitioner's motion to quash the amended
Information was antithetical to his petition for bail.

The Sandiganbayan reset the arraignment of accused and the hearing on the petition for bail of
petitioner in Criminal Case No. 26558 for July 10, 2001 to enable it to resolve the pending incidents
and the motion to quash of petitioner. However, even before the Sandiganbayan could resolve the
pending motions of petitioner and the prosecution, petitioner filed with this Court on June 29, 2001 a
Petition for Habeas Corpus and Certiorari, docketed as G.R. No. 148468, praying that the Court
declare void the questioned orders, resolutions and actions of the Sandiganbayan on his claim that he
was thereby effectively denied of his right to due process. Petitioner likewise prayed for the issuance
of a writ of habeas corpus; that the People be declared to have waived their right to present evidence
in opposition to his petition for bail; and, premised on the failure of the People to adduce strong
evidence of petitioner's guilt of plunder, that he be granted provisional liberty on bail after due
proceedings.11

Rule 114 35
Meanwhile, on June 28, 2001, Jose "Jinggoy" Estrada filed with the Sandiganbayan a motion praying
that said court resolve his motion to fix his bail.

On July 9, 2001, the Sandiganbayan issued a Resolution denying petitioner's motion to quash the
amended Information. Petitioner, through counsel, received on said date a copy of said
resolution.12 The motion to fix bail filed by Jose "Jinggoy" Estrada was also resolved by the
Sandiganbayan.

On July 10, 2001, just before his arraignment in Criminal Case No. 26558, petitioner manifested to
the Sandiganbayan that he was going to file a motion for reconsideration of the July 9, 2001
Resolution denying his motion to quash and for the deferment of his arraignment. The
Sandiganbayan, however, declared that there was no provision in the Rules of Court or in the
Sandiganbayan's rules granting the right to petitioner to file a motion for the reconsideration of an
interlocutory order issued by it and ordered petitioner to orally argue his motion for reconsideration.
When petitioner refused, the Sandiganbayan proceeded with his arraignment. Petitioner refused to
plead, impelling the court to enter a plea of not guilty for him.

On July 20, 2001, petitioner filed with the Court a Petition for Certiorari, docketed as G.R. No.
148769, alleging that the Sandiganbayan acted without or in excess of jurisdiction or with grave abuse
of discretion amounting to lack or excess of jurisdiction in issuing its July 9, 2001 Resolution denying
his motion to quash, notwithstanding the fact that material inculpatory allegations of the amended
Information against him do not constitute the crime of plunder; and that he is charged, under the said
amended Information, for more than one offense. Jose "Jinggoy" Estrada likewise filed petition for
certiorari with the Court docketed as G.R. No. 148965 for the nullification of a resolution of the
Sandiganbayan denying his motion to fix bail.

On August 9, 2001, petitioner filed with the Court another Petition for Certiorari, docketed as G.R.
No. 149116, assailing the Sandiganbayan's Resolution dated 31 May 2001 which denied his April 6,
2001 Urgent Omnibus Motion and its June 25, 2001 Resolution denying his motion for
reconsideration of its May 31, 2001 Resolution.

Re: G.R. No. 148769

Petitioner avers that:

THE SANDIGANBAYAN ACTED WITHOUT OR IN EXCESS OF JURISDICTION OR WITH

GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION,
IN DENYING PETITIONER SERAPIO'S MOTION TO QUASH NOTWITHSTANDING THAT

THE FACTS ALLEGED IN THE AMENDED INFORMATION AS AGAINST PETITIONER

SERAPIO DO NOT CONSTITUTE THE CRIME OF PLUNDER.

A The Amended Information, as against petitioner Serapio, does not allege a combination or series of
overt or criminal acts constitutive of plunder.

Rule 114 36
B The Amended Information, as against petitioner Serapio, does not allege a pattern of criminal acts
indicative of an overall unlawful scheme or conspiracy.

C The money described in paragraph (a) of the Amended Information and alleged to have been
illegally received or collected does not constitute 'ill-gotten wealth' as defined in Section 1(d),
Republic Act No. 7080, as amended.

II

THE AMENDED INFORMATION CHARGES MORE THAN ONE OFFENSE."13

Petitioner asserts that, on the face of the amended Information, he is charged with plunder only in
paragraph (a) which reads:

"(a) by receiving OR collecting, directly or indirectly, on SEVERAL INSTANCES, MONEY IN THE

AGGREGATE AMOUNT OF FIVE HUNDRED FORTY-FIVE MILLION PESOS
(P545,000,000.00), MORE OR LESS, FROM ILLEGAL GAMBLING IN THE FORM OF GIFT,
SHARE, PERCENTAGE, KICKBACK OR ANY FORM OF PECUNIARY BENEFIT, BY
HIMSELF AND/OR in connivance with co-accused CHARLIE 'ATONG' ANG, Jose 'Jinggoy'
Estrada, Yolanda T. Ricaforte, Edward Serapio, AND JOHN DOES AND JANE DOES, in
consideration OF TOLERATION OR PROTECTION OF ILLEGAL GAMBLING;" 14

Petitioner asserts that there is no allegation in paragraph (a) of the amended Information of a
"combination or series of overt or criminal acts" constituting plunder as described in Section 1(d) of
R.A. 7080 as amended. Neither does the amended Information allege "a pattern of criminal acts." He
avers that his single act of toleration or protection of illegal gambling impelled by a single criminal
resolution does not constitute the requisite "combination or series of acts" for plunder. He further
claims that the consideration consisting of gifts, percentages or kickbacks in furtherance of said
resolution turned over to and received by former President Joseph E. Estrada "on several occasions"
does not cure the defect in the amended information. Petitioner insists that on the face of the amended
Information he is charged only with bribery or illegal gambling and not of plunder.

Petitioner argues that the P540 million which forms part of the P4,097,804,173.17 amassed by former
President Joseph E. Estrada in confabulation with his co-accused is not ill-gotten wealth as defined in
Section 1(d) of R.A. 7080.

We do not agree with petitioner. Section 6, Rule 110 of the Revised Rules of Criminal Procedure
provides that:

"Sec. 6 Sufficiency of complaint or information. A complaint or information is sufficient if it states

the name of the accused, the designation of the offense given by the statute; the acts or omissions
complained of as constituting the offense; the name of the offended party; the approximate date of the
commission of the offense; and the place where the offense was committed.

When the offense was committed by more than one person, all of them shall be included in the
complaint or information."15

Rule 114 37
The acts or omissions complained or must be alleged in such form as is sufficient to enable a person
of common understanding to know what offense is intended to be charged and enable the court to
know the proper judgment. The Information must allege clearly and accurately the elements of the
crime charged. What facts and circumstances are necessary to be included therein must be determined
by reference to the definition and elements of the specific crimes. The purpose of the requirement of
alleging all the elements of the crime in the Information is to inform an accused of the nature of the
accusation against him so as to enable him to suitably prepare for his defense. 16 Another purpose is to
enable accused, if found guilty, to plead his conviction in a subsequent prosecution for the same
offense.17 The use of derivatives or synonyms or allegations of basic facts constituting the offense
charged is sufficient.18

In this case, the amended Information specifically alleges that all the accused, including petitioner,
connived and conspired with former President Joseph E. Estrada to commit plunder "through any or a
combination or a series of overt or criminal acts or similar schemes or means." And in paragraph (a)
of the amended Information, petitioner and his co-accused are charged with receiving or collecting,
directly or indirectly, on several instances money in the aggregate amount of P545,000,000.00.
In Jose "Jinggoy" Estrada vs. Sandiganbayan (Third Division), et al.,19 we held that the word "series"
is synonymous with the clause "on several instances"; it refers to a repetition of the same predicate act
in any of the items in Section 1(d) of the law. We further held that the word "combination"
contemplates the commission of at least any two different predicate acts in any of the said items. We
ruled that "plainly, subparagraph (a) of the amended information charges accused therein, including
petitioner, with plunder committed by a series of the same predicate act under Section 1(d)(2) of the
law" and that:

"x x x Sub-paragraph (a) alleged the predicate act of receiving, on several instances, money from
illegal gambling, in consideration of toleration or protection of illegal gambling, and expressly names
petitioner as one of those who conspired with former President Estrada in committing the offense.
This predicate act corresponds with the offense described in item [2] of the enumeration in Section
1(d) of R.A. No. 7080. x x x."20

It is not necessary to allege in the amended Information a pattern of overt or criminal acts indicative
of the overall unlawful scheme or conspiracy because as Section 3 of R.A. 7080 specifically provides,
the same is evidentiary and the general rule is that matters of evidence need not be alleged in the
Information.21

The Court also ruled in Jose "Jinggoy" Estrada vs. Sandiganbayan22 that the aggregate amount of
P4,097,804,173.17 inclusive of the P545 million alleged in paragraph (a) of the amended information
is ill-gotten wealth as contemplated in Section 1, paragraph 1(d) of Republic Act 7080, as amended,
and that all the accused in paragraph (a) to (d) of the amended information conspired and
confederated with former President Estrada to enable the latter to amass, accumulate or acquire ill-
gotten wealth in the aggregate amount of P4,097,804,173.17.

Under the amended Information, all the accused, including petitioner, are charged of having conspired
and confabulated together in committing plunder. When two or more persons conspire to commit a
crime, each is responsible for all the acts of others. In contemplation of law, the act of the conspirator
is the act of each of them.23Conspirators are one man, they breathe one breath, they speak one voice,
they wield one arm and the law says that the acts, words and declarations of each, while in the pursuit
of the common design, are the acts, words and declarations of all.24

Rule 114 38
Petitioner asserts that he is charged under the amended information of bribery and illegal gambling
and others. The Sandiganbayan, for its part, held that petitioner is not charged with the predicate acts
of bribery and illegal gambling but is charged only with one crime that of plunder:

"THE ISSUE OF WHETHER OR NOT THE INFORMATION CHARGES MORE THAN ONE
OFFENSE

According to the accused Estradas and Edward Serapio the information charges more than one
offense, namely, bribery (Article 210 of the Revised Penal Code), malversation of public funds or
property (Article 217, Revised Penal Code) and violations of Sec. 3(e) of Republic Act (RA No. 3019)
and Section 7(d) of RA 6713.

This contention is patently unmeritorious. The acts alleged in the information are not charged as
separate offenses but as predicate acts of the crime of plunder.

It should be stressed that the Anti-Plunder law specifically Section 1(d) thereof does not make any
express reference to any specific provision of laws, other than R.A. No. 7080, as amended, which
coincidentally may penalize as a separate crime any of the overt or criminal acts enumerated therein.
The said acts which form part of the combination or series of act are described in their generic sense.
Thus, aside from 'malversation' of public funds, the law also uses the generic terms 'misappropriation',
'conversion' or 'misuse' of said fund. The fact that the acts involved may likewise be penalized under
other laws is incidental. The said acts are mentioned only as predicate acts of the crime of plunder and
the allegations relative thereto are not to be taken or to be understood as allegations charging separate
criminal offenses punished under the Revised Penal Code, the Anti-Graft and Corrupt Practices Act
and Code of Conduct and Ethical Standards for Public Officials and Employees."25

This Court agrees with the Sandiganbayan. It is clear on the face of the amended Information that
petitioner and his co-accused are charged only with one crime of plunder and not with the predicate
acts or crimes of plunder. It bears stressing that the predicate acts merely constitute acts of plunder
and are not crimes separate and independent of the crime of plunder. Resultantly then, the petition is
dismissed.

Re: G.R. No. 149116

Petitioner assails the May 31, 2001 Joint Resolution of the Sandiganbayan denying his April 4, 2001
Urgent Omnibus Motion contending that:

"GROUNDS FOR THE PETITION

THE SANDIGANBAYAN ACTED WITHOUT OR IN EXCESS OF JURISDICTION OR WITH

GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN
SUMMARILY DENYING PETITIONER SERAPIO'S URGENT OMNIBUS MOTION AND
MOTION FOR RECONSIDERATION (RE: RESOLUTION DATED 31 MAY
2001), NOTWITHSTANDING THAT THE OMBUDSMAN HAD TOTALLY DISREGARDED
EXCULPATORY EVIDENCE AND COMMITTED GRAVE AND MANIFEST ERRORS OF LAW
SERIOUSLY PREJUDICIAL TO THE RIGHTS AND INTERESTS OF PETITIONER SERAPIO,
AND THERE IS NO PROBABLE CAUSE TO SUPPORT AN INDICTMENT FOR PLUNDER AS
AGAINST PETITIONER SERAPIO."26

Rule 114 39
Petitioner claims that the Sandiganbayan committed grave abuse of discretion in denying his omnibus
motion to hold in abeyance the issuance of a warrant for his arrest as well as the proceedings in
Criminal Case No. 26558; to conduct a determination of probable cause; and to direct the
Ombudsman to conduct a reinvestigation of the charges him. Petitioner asseverates that the
Ombudsman had totally disregarded exculpatory evidence and committed grave abuse of discretion in
charging him with plunder. He further argues that there exists no probable cause to support an
indictment for plunder as against him.27

Petitioner points out that the joint resolution of the Ombudsman does not even mention him in relation
to the collection and receipt of jueteng money which started in 199828 and that the Ombudsman
inexplicably arrived at the conclusion that the Erap Muslim Youth Foundation was a money
laundering front organization put up by Joseph Estrada, assisted by petitioner, even though the latter
presented evidence that said Foundation is a bona fide and legitimate private foundation.29 More
importantly, he claims, said joint resolution does not indicate that he knew that the P200 million he
received for the Foundation came from jueteng.30

Petitioner insists that he cannot be charged with plunder since: (1) the P200 million he received does
not constitute "ill-gotten wealth" as defined in Section 1(d) of R.A. No. 7080; 31 (2) there is no
evidence linking him to the collection and receipt of jueteng money;32 (3) there was no showing that
petitioner participated in a pattern of criminal acts indicative of an overall unlawful scheme or
conspiracy to amass, accumulate or acquire ill-gotten wealth, or that his act of receiving the P200
million constitutes an overt criminal act of plunder.33

Petitioner argues further that his motion for reinvestigation is premised on the absolute lack of
evidence to support a finding of probable cause for plunder as against him, 34 and hence he should be
spared from the inconvenience, burden and expense of a public trial.35

Petitioner also avers that the discretion of government prosecutors is not beyond judicial scrutiny. He
asserts that while this Court does not ordinarily look into the existence of probable cause to charge a
person for an offense in a given case, it may do so in exceptional circumstances, which are present in
this case: (1) to afford adequate protection to the constitutional rights of the accused; (2) for the
orderly administration of justice or to avoid oppression; (3) when the acts of the officer are without or
in excess of authority; and (4) where the charges are manifestly false and motivated by the lust for
vengeance.36 Petitioner claims that he raised proper grounds for a reinvestigation by asserting that in
issuing the questioned joint resolution, the Ombudsman disregarded evidence exculpating petitioner
from the charge of plunder and committed errors of law or irregularities which have been prejudicial
to his interest.37 He also states that during the joint preliminary investigations for the various charges
against Joseph Estrada and his associates, of which the plunder charge was only one of the eight
charges against Estrada et al., he was not furnished with copies of the other complaints nor given the
opportunity to refute the evidence presented in relation to the other seven cases, even though the
evidence presented therein were also used against him, although he was only charged in the plunder
case.38

The People maintain that the Sandiganbayan committed no grave abuse of discretion in denying
petitioner's omnibus motion. They assert that since the Ombudsman found probable cause to charge
petitioner with the crime of plunder, the Sandiganbayan is bound to assume jurisdiction over the case
and to proceed to try the same. They further argue that "a finding of probable cause is merely
preliminary and prefatory of the eventual determination of guilt or innocence of the accused," and that

Rule 114 40
petitioner still has the chance to interpose his defenses in a full blown trial where his guilt or
innocence may finally be determined.39

The People also point out that the Sandiganbayan did not commit grave abuse of discretion in denying
petitioner's omnibus motion asking for, among others, a reinvestigation by the Ombudsman, because
his motion for reconsideration of the Ombudsman's joint resolution did not raise the grounds of either
newly discovered evidence, or errors of law or irregularities, which under Republic Act No. 6770 are
the only grounds upon which a motion for reconsideration may be filed.40

The People likewise insist that there exists probable cause to charge petitioner with plunder as a co-
conspirator of Joseph Estrada.41

This Court does not agree with petitioner.

Case law has it that the Court does not interfere with the Ombudsman's discretion in the conduct of
preliminary investigations. Thus, in Raro vs. Sandiganbayan42 , the Court ruled:

"x x x. In the performance of his task to determine probable cause, the Ombudsman's discretion is
paramount. Thus, in Camanag vs. Guerrero, this Court said:

'x x x. (S)uffice it to state that this Court has adopted a policy of non-interference in the conduct of
preliminary investigations, and leaves to the investigating prosecutor sufficient latitude of discretion
in the exercise of determination of what constitutes sufficient evidence as will establish 'probable
cause' for filing of information against the supposed offender."

In Cruz, Jr. vs. People,43 the Court ruled thus:

"Furthermore, the Ombudsman's findings are essentially factual in nature. Accordingly, in assailing
said findings on the contention that the Ombudsman committed a grave abuse of discretion in holding
that petitioner is liable for estafa through falsification of public documents, petitioner is clearly raising
questions of fact here. His arguments are anchored on the propriety or error in the Ombudsman's
appreciation of facts. Petitioner cannot be unaware that the Supreme Court is not a trier of facts,
more so in the consideration of the extraordinary writ of certiorari where neither question of fact nor
even of law are entertained, but only questions of lack or excess of jurisdiction or grave abuse of
discretion. Insofar as the third issue is concerned, we find that no grave abuse of discretion has been
committed by respondents which would warrant the granting of the writ of certiorari."

Petitioner is burdened to allege and establish that the Sandiganbayan and the Ombudsman for that
matter committed grave abuse of discretion in issuing their resolution and joint resolution,
respectively. Petitioner failed to discharge his burden. Indeed, the Court finds no grave abuse of
discretion on the part of the Sandiganbayan and the Ombudsman in finding probable cause against
petitioner for plunder. Neither did the Sandiganbayan abuse its discretion in denying petitioner's
motion for reinvestigation of the charges against him in the amended Information. In its Resolution of
April 25, 2001, the Sandiganbayan affirmed the finding of the Ombudsman that probable cause exists
against petitioner and his co-accused for the crime of plunder, thus:

"In the light of the foregoing and considering the allegations of the Amended Information dated 18
April 2001 charging the accused with the offense of PLUNDER and examining carefully the evidence

Rule 114 41
submitted in support thereof consisting of the affidavits and sworn statements and testimonies of
prosecution witnesses and several other pieces of documentary evidence, as well as the respective
counter-affidavits of accused former President Joseph Estrada dated March 20, 2001, Jose "Jinggoy"
Pimentel Estrada dated February 20, 2001, Yolanda T. Ricaforte dated January 21, 2001 and Edward
S. Serapio dated February 21, 2001, the Court finds and so holds that probable cause for the offense of
PLUNDER exists to justify issuance of warrants of arrest of accused former President Joseph Ejercito
Estrada, Mayor Jose "Jinggoy" Estrada, Charlie "Atong" Ang, Edward Serapio, Yolanda T. Ricaforte,
Alma Alfaro, John Doe a.k.a. Eleuterio Tan or Eleuterio Ramos Tan or Mr. Uy, and Jane Doe a.k.a
Delia Rajas."44

Likewise, in its Resolution dated May 31, 2001 of petitioner's omnibus motion, the Sandiganbayan
noted that a preliminary investigation was fully conducted in accordance with Rule II, Administrative
Order No. 7 of the Office of the Ombudsman, pursuant to Sections 18, 23 and 27 of Republic Act No.
6770 (The Ombudsman Act of 1989); and that all the basic complaints and evidence in support
thereof were served upon all the accused. 45 It was in light of such findings that the Sandiganbayan
held that there was no basis for the allegation that accused therein (including petitioner) were
deprived of the right to seek a reconsideration of the Ombudsman's Resolution dated April 4, 2001
finding probable cause to charge them with plunder after the conduct of preliminary investigation in
connection therewith. In addition, the Sandiganbayan pointed out that petitioner filed a motion for
reconsideration of the Ombudsman's resolution, but failed to show in his motion that there were newly
discovered evidence, or that the preliminary investigation was tainted by errors of law or
irregularities, which are the only grounds for which a reconsideration of the Ombudsman's resolution
may be granted.46

It bears stressing that the right to a preliminary investigation is not a constitutional right, but is merely
a right conferred by statute.47 The absence of a preliminary investigation does not impair the validity
of the Information or otherwise render the same defective and neither does it affect the jurisdiction of
the court over the case or constitute a ground for quashing the Information.48 If the lack of a
preliminary investigation does not render the Information invalid nor affect the jurisdiction of the
court over the case, with more reason can it be said that the denial of a motion for reinvestigation
cannot invalidate the Information or oust the court of its jurisdiction over the case. Neither can it be
said that petitioner had been deprived of due process. He was afforded the opportunity to refute the
charges against him during the preliminary investigation.

The purpose of a preliminary investigation is merely to determine whether a crime has been
committed and whether there is probable cause to believe that the person accused of the crime is
probably guilty thereof and should be held for trial. 49 As the Court held in Webb vs. De Leon, "[a]
finding of probable cause needs only to rest on evidence showing that more likely than not a crime
has been committed and was committed by the suspect. Probable cause need not be based on clear and
convincing evidence of guilt, neither on evidence establishing guilt beyond reasonable doubt and
definitely, not on evidence establishing absolute certainty of guilt.''50

Absent any showing of arbitrariness on the part of the prosecutor or any other officer authorized to
conduct preliminary investigation, courts as a rule must defer to said officer's finding and
determination of probable cause, since the determination of the existence of probable cause is the
function of the prosecutor.51 The Court agrees with the Sandiganbayan that petitioner failed to
establish that the preliminary investigation conducted by the Ombudsman was tainted with

Rule 114 42
irregularity or that its findings stated in the joint resolution dated April 4, 2001 are not supported by
the facts, and that a reinvestigation was necessary.

Certiorari will not lie to invalidate the Sandiganbayan's resolution denying petitioner's motion for
reinvestigation since there is nothing to substantiate petitioner's claim that it gravely abused its
discretion in ruling that there was no need to conduct a reinvestigation of the case.52

The ruling in Rolito Go vs. Court of Appeals53 that an accused shall not be deemed to have waived his
right to ask for a preliminary investigation after he had been arraigned over his objection and despite
his insistence on the conduct of said investigation prior to trial on the merits does not apply in the
instant case because petitioner merely prayed for a reinvestigation on the ground of a newly-
discovered evidence. Irrefragably, a preliminary investigation had been conducted by the Ombudsman
prior to the filing of the amended Information, and that petitioner had participated therein by filing his
counter-affidavit. Furthermore, the Sandiganbayan had already denied his motion for reinvestigation
as well as his motion for reconsideration thereon prior to his arraignment.54 In sum then, the petition is
dismissed.

Re: G.R. No. 148468

As synthesized by the Court from the petition and the pleadings of the parties, the issues for resolution
are: (1) Whether or not petitioner should first be arraigned before hearings of his petition for bail may
be conducted; (2) Whether petitioner may file a motion to quash the amended Information during the
pendency of his petition for bail; (3) Whether a joint hearing of the petition for bail of petitioner and
those of the other accused in Criminal Case No. 26558 is mandatory; (4) Whether the People waived
their right to adduce evidence in opposition to the petition for bail of petitioner and failed to adduce
strong evidence of guilt of petitioner for the crime charged; and (5) Whether petitioner was deprived
of his right to due process in Criminal Case No. 26558 and should thus be released from
detention via a writ of habeas corpus.

On the first issue, petitioner contends that the Sandiganbayan committed a grave abuse of its
discretion amounting to excess or lack of jurisdiction when it deferred the hearing of his petition for
bail to July 10, 2001, arraigned him on said date and entered a plea of not guilty for him when he
refused to be arraigned. He insists that the Rules on Criminal Procedure, as amended, does not require
that he be arraigned first prior to the conduct of bail hearings since the latter can stand alone and must,
of necessity, be heard immediately.55 Petitioner maintains that his arraignment before the bail hearings
are set is not necessary since he would not plead guilty to the offense charged, as is evident in his
earlier statements insisting on his innocence during the Senate investigation of the juetengscandal and
the preliminary investigation before the Ombudsman. 56 Neither would the prosecution be prejudiced
even if it would present all its evidence before his arraignment because, under the Revised Penal
Code, a voluntary confession of guilt is mitigating only if made prior to the presentation of evidence
for the prosecution,57 and petitioner admitted that he cannot repudiate the evidence or proceedings
taken during the bail hearings because Rule 114, Section 8 of the Revised Rules of Court expressly
provides that evidence present during bail hearings are automatically reproduced during the
trial.58 Petitioner likewise assures the prosecution that he is willing to be arraigned prior to the posting
of a bail bond should he be granted bail.59

The People insist that arraignment is necessary before bail hearings may be commenced, because it is
only upon arraignment that the issues are joined. The People stress that it is only when an accused

Rule 114 43
pleads not guilty may he file a petition for bail and if he pleads guilty to the charge, there would be no
more need for him to file said petition. Moreover, since it is during arraignment that the accused is
first informed of the precise charge against him, he must be arraigned prior to the bail hearings to
prevent him from later assailing the validity of the bail hearings on the ground that he was not
properly informed of the charge against him, especially considering that, under Section 8, Rule 114 of
the Revised Rules of Court, evidence presented during such proceedings are considered automatically
reproduced at the trial.60 Likewise, the arraignment of accused prior to bail hearings diminishes the
possibility of an accused's flight from the jurisdiction of the Sandiganbayan because trial in
absentia may be had only if an accused escapes after he has been arraigned.61 The People also contend
that the conduct of bail hearings prior to arraignment would extend to an accused the undeserved
privilege of being appraised of the prosecution's evidence before he pleads guilty for purposes of
penalty reduction.62

Although petitioner had already been arraigned on July 10, 2001 and a plea of not guilty had been
entered by the Sandiganbayan on his behalf, thereby rendering the issue as to whether an arraignment
is necessary before the conduct of bail hearings in petitioner's case moot, the Court takes this
opportunity to discuss the controlling precepts thereon pursuant to its symbolic function of educating
the bench and bar.63

The contention of petitioner is well-taken. The arraignment of an accused is not a prerequisite to the
conduct of hearings on his petition for bail. A person is allowed to petition for bail as soon as he is
deprived of his liberty by virtue of his arrest or voluntary surrender.64 An accused need not wait for his
arraignment before filing a petition for bail.

In Lavides vs. Court of Appeals,65 this Court ruled on the issue of whether an accused must first be
arraigned before he may be granted bail. Lavides involved an accused charged with violation of
Section 5(b) Republic Act No. 7610 (The Special Protection of Children Against Abuse, Exploitation
and Discrimination Act), an offense punishable by reclusion temporal in its medium period
to reclusion perpetua. The accused therein assailed, inter alia, the trial court's imposition of the
condition that he should first be arraigned before he is allowed to post bail. We held therein that "in
cases where it is authorized, bail should be granted before arraignment, otherwise the accused may be
precluded from filing a motion to quash."66

However, the foregoing pronouncement should not be taken to mean that the hearing on a petition for
bail should at all times precede arraignment, because the rule is that a person deprived of his liberty
by virtue of his arrest or voluntary surrender may apply for bail as soon as he is deprived of his
liberty, even before a complaint or information is filed against him. 67 The Court's pronouncement
in Lavides should be understood in light of the fact that the accused in said case filed a petition for
bail as well as a motion to quash the informations filed against him. Hence, we explained therein that
to condition the grant of bail to an accused on his arraignment would be to place him in a position
where he has to choose between (1) filing a motion to quash and thus delay his release on bail because
until his motion to quash can be resolved, his arraignment cannot be held, and (2) foregoing the filing
of a motion to quash so that he can be arraigned at once and thereafter be released on bail. This would
undermine his constitutional right not to be put on trial except upon a valid complaint or Information
sufficient to charge him with a crime and his right to bail.68

It is therefore not necessary that an accused be first arraigned before the conduct of hearings on his
application for bail. For when bail is a matter of right, an accused may apply for and be granted bail

Rule 114 44
even prior to arraignment. The ruling in Lavides also implies that an application for bail in a case
involving an offense punishable by reclusion perpetua to death may also be heard even before an
accused is arraigned. Further, if the court finds in such case that the accused is entitled to bail because
the evidence against him is not strong, he may be granted provisional liberty even prior to
arraignment; for in such a situation, bail would be "authorized" under the circumstances. In fine, the
Sandiganbayan committed a grave abuse of its discretion amounting to excess of jurisdiction in
ordering the arraignment of petitioner before proceeding with the hearing of his petition for bail.

With respect to the second issue of whether petitioner may file a motion to quash during the pendency
of his petition for bail, petitioner maintains that a motion to quash and a petition for bail are not
inconsistent, and may proceed independently of each other. While he agrees with the prosecution that
a motion to quash may in some instances result in the termination of the criminal proceedings and in
the release of the accused therein, thus rendering the petition for bail moot and academic, he opines
that such is not always the case; hence, an accused in detention cannot be forced to speculate on the
outcome of a motion to quash and decide whether or not to file a petition for bail or to withdraw one
that has been filed.69 He also insists that the grant of a motion to quash does not automatically result in
the discharge of an accused from detention nor render moot an application for bail under Rule 117,
Section 5 of the Revised Rules of Court.70

The Court finds that no such inconsistency exists between an application of an accused for bail and
his filing of a motion to quash. Bail is the security given for the release of a person in the custody of
the law, furnished by him or a bondsman, to guarantee his appearance before any court as required
under the conditions set forth under the Rules of Court. 71 Its purpose is to obtain the provisional
liberty of a person charged with an offense until his conviction while at the same time securing his
appearance at the trial.72 As stated earlier, a person may apply for bail from the moment that he is
deprived of his liberty by virtue of his arrest or voluntary surrender.73

On the other hand, a motion to quash an Information is the mode by which an accused assails the
validity of a criminal complaint or Information filed against him for insufficiency on its face in point
of law, or for defects which are apparent in the face of the Information. 74 An accused may file a
motion to quash the Information, as a general rule, before arraignment.75

These two reliefs have objectives which are not necessarily antithetical to each other. Certainly, the
right of an accused right to seek provisional liberty when charged with an offense not punishable by
death, reclusion perpetuaor life imprisonment, or when charged with an offense punishable by such
penalties but after due hearing, evidence of his guilt is found not to be strong, does not preclude his
right to assail the validity of the Information charging him with such offense. It must be conceded,
however, that if a motion to quash a criminal complaint or Information on the ground that the same
does not charge any offense is granted and the case is dismissed and the accused is ordered released,
the petition for bail of an accused may become moot and academic.

We now resolve the issue of whether or not it is mandatory that the hearings on the petitions for bail
of petitioner and accused Jose "Jinggoy" Estrada in Criminal Case No. 26558 and the trial of the said
case as against former President Joseph E. Estrada be heard jointly.

Petitioner argues that the conduct of joint bail hearings would negate his right to have his petition for
bail resolved in a summary proceeding since said hearings might be converted into a full blown trial
on the merits by the prosecution.76

Rule 114 45
For their part, the People claim that joint bail hearings will save the court from having to hear the
same witnesses and the parties from presenting the same evidence where it would allow separate bail
hearings for the accused who are charged as co-conspirators in the crime of plunder.77

In issuing its June 1, 2001 Order directing all accused in Criminal Case No. 26558 to participate in the
bail hearings, the Sandiganbayan explained that the directive was made was in the interest of the
speedy disposition of the case. It stated:

" x x x The obvious fact is, if the rest of the accused other than the accused Serapio were to be
excused from participating in the hearing on the motion for bail of accused Serapio, under the pretext
that the same does not concern them and that they will participate in any hearing where evidence is
presented by the prosecution only if and when they will already have filed their petitions for bail, or
should they decide not to file any, that they will participate only during the trial proper itself, then
everybody will be faced with the daunting prospects of having to go through the process of
introducing the same witness and pieces of evidence two times, three times or four times, as many
times as there are petitions for bail filed. Obviously, such procedure is not conducive to the speedy
termination of a case. Neither can such procedure be characterized as an orderly proceeding."78

There is no provision in the Revised Rules of Criminal Procedure or the Rules of Procedure of the
Sandiganbayan governing the hearings of two or more petitions for bail filed by different accused or
that a petition for bail of an accused be heard simultaneously with the trial of the case against the
other accused. The matter of whether or not to conduct a joint hearing of two or more petitions for
bail filed by two different accused or to conduct a hearing of said petition jointly with the trial against
another accused is addressed to the sound discretion of the trial court. Unless grave abuse of
discretion amounting to excess or lack of jurisdiction is shown, the Court will not interfere with the
exercise by the Sandiganbayan of its discretion.

It may be underscored that in the exercise of its discretion, the Sandiganbayan must take into account
not only the convenience of the State, including the prosecution, but also that of the accused and the
witnesses of both the prosecution and the accused and the right of accused to a speedy trial. The
Sandiganbayan must also consider the complexities of the cases and of the factual and legal issues
involving petitioner and the other accused. After all, if this Court may echo the observation of the
United States Supreme Court, the State has a stake, with every citizen, in his being afforded our
historic individual protections, including those surrounding criminal prosecutions. About them, this
Court dares not become careless or complacent when that fashion has become rampant over the
earth.79

It must be borne in mind that in Ocampo vs. Bernabe,80 this Court held that in a petition for bail
hearing, the court is to conduct only a summary hearing, meaning such brief and speedy method of
receiving and considering the evidence of guilt as is practicable and consistent with the purpose of the
hearing which is merely to determine the weight of evidence for purposes of bail. The court does not
try the merits or enter into any inquiry as to the weight that ought to be given to the evidence against
the accused, nor will it speculate on the outcome of the trial or on what further evidence may be
offered therein. It may confine itself to receiving such evidence as has reference to substantial matters,
avoiding unnecessary thoroughness in the examination and cross-examination of witnesses, and
reducing to a reasonable minimum the amount of corroboration particularly on details that are not
essential to the purpose of the hearing.

Rule 114 46
A joint hearing of two separate petitions for bail by two accused will of course avoid duplication of
time and effort of both the prosecution and the courts and minimizes the prejudice to the accused,
especially so if both movants for bail are charged of having conspired in the commission of the same
crime and the prosecution adduces essentially the same evident against them. However, in the cases at
bar, the joinder of the hearings of the petition for bail of petitioner with the trial of the case against
former President Joseph E. Estrada is an entirely different matter. For, with the participation of the
former president in the hearing of petitioner's petition for bail, the proceeding assumes a completely
different dimension. The proceedings will no longer be summary. As against former President Joseph
E. Estrada, the proceedings will be a full-blown trial which is antithetical to the nature of a bail
hearing. Moreover, following our ruling in Jose Estrada vs. Sandiganbayan, supra where we stated
that Jose "Jinggoy" Estrada can only be charged with conspiracy to commit the acts alleged in sub-
paragraph (a) of the amended Information since it is not clear from the latter if the accused in sub-
paragraphs (a) to (d) thereof conspired with each other to assist Joseph Estrada to amass ill-gotten
wealth, we hold that petitioner can only be charged with having conspired with the other co-accused
named in sub-paragraph (a) by "receiving or collecting, directly or indirectly, on several instances,
money x x x from illegal gambling, x x x in consideration of toleration or protection of illegal
gambling.81Thus, with respect to petitioner, all that the prosecution needs to adduce to prove that the
evidence against him for the charge of plunder is strong are those related to the alleged receipt or
collection of money from illegal gambling as described in sub-paragraph (a) of the amended
Information. With the joinder of the hearing of petitioner's petition for bail and the trial of the former
President, the latter will have the right to cross-examine intensively and extensively the witnesses for
the prosecution in opposition to the petition for bail of petitioner. If petitioner will adduce evidence in
support of his petition after the prosecution shall have concluded its evidence, the former President
may insist on cross-examining petitioner and his witnesses. The joinder of the hearing of petitioner's
bail petition with the trial of former President Joseph E. Estrada will be prejudicial to petitioner as it
will unduly delay the determination of the issue of the right of petitioner to obtain provisional liberty
and seek relief from this Court if his petition is denied by the respondent court. The indispensability
of the speedy resolution of an application for bail was succinctly explained by Cooley in his
treatise Constitutional Limitations, thus:

"For, if there were any mode short of confinement which would with reasonable certainty insure the
attendance of the accused to answer the accusation, it would not be justifiable to inflict upon him that
indignity, when the effect is to subject him in a greater or lesser degree, to the punishment of a guilty
person, while as yet it is not determined that he has not committed any crime."82

While the Sandiganbayan, as the court trying Criminal Case No. 26558, is empowered "to proceed
with the trial of the case in the manner it determines best conducive to orderly proceedings and
speedy termination of the case,"83the Court finds that it gravely abused its discretion in ordering that
the petition for bail of petitioner and the trial of former President Joseph E. Estrada be held jointly. It
bears stressing that the Sandiganbayan itself acknowledged in its May 4, 2001 Order the "pre-eminent
position and superiority of the rights of [petitioner] to have the matter of his provisional liberty
resolved . . . without unnecessary delay,"84 only to make a volte face and declare that after all the
hearing of petition for bail of petitioner and Jose "Jinggoy" Estrada and the trial as against former
President Joseph E. Estrada should be held simultaneously. In ordering that petitioner's petition for
bail to be heard jointly with the trial of the case against his co-accused former President Joseph E.
Estrada, the Sandiganbayan in effect allowed further and unnecessary delay in the resolution thereof
to the prejudice of petitioner. In fine then, the Sandiganbayan committed a grave abuse of its

Rule 114 47
discretion in ordering a simultaneous hearing of petitioner's petition for bail with the trial of the case
against former President Joseph E. Estrada on its merits.

With respect to petitioner's allegations that the prosecution tried to delay the bail hearings by filing
dilatory motions, the People aver that it is petitioner and his co-accused who caused the delay in the
trial of Criminal Case No. 26558 by their filing of numerous manifestations and pleadings with the
Sandiganbayan.85 They assert that they filed the motion for joint bail hearing and motion for earlier
arraignment around the original schedule for the bail hearings which was on May 2125, 2001.86

They argue further that bail is not a matter of right in capital offenses. 87 In support thereof, they cite
Article III, Sec 13 of the Constitution, which states that

"All persons, except those charged with offenses punishable by reclusion perpetua when evidence of
guilt is strong, shall before conviction be bailable by sufficient sureties, or be released on
recognizance as may be provided by law. The right to bail shall not be impaired even when the
privilege of the writ of habeas corpus is suspended. Excessive bail shall not be required."88

The People also cited Rule 114, Secs. 7 and 4 of the Revised Rules of Court which provide:

"Sec. 7 Capital offense or an offense punishable by reclusion perpetua or life imprisonment, not
bailable. No person charged with a capital offense, or an offense punishable by reclusion
perpetua or life imprisonment, shall be admitted to bail when evidence of guilt is strong, regardless of
the stage of the criminal prosecution.

Sec. 4 Bail, a matter of right, exception. All persons in custody shall be admitted to bail as a matter
of right, with sufficient sureties, or released on recognizance as prescribed by law or this Rule x x x
(b) and before conviction by the Regional Trial Court of an offense not punishable by death, reclusion
perpetua or life imprisonment."89

Irrefragably, a person charged with a capital offense is not absolutely denied the opportunity to obtain
provisional liberty on bail pending the judgment of his case. However, as to such person, bail is not a
matter of right but is discretionary upon the court.90 Had the rule been otherwise, the Rules would not
have provided for an application for bail by a person charged with a capital offense under Rule 114,
Section 8 which states:

"Sec. 8 Burden of proof in bail application. At the hearing of an application for bail filed by a
person who is in custody for the commission of an offense punishable by death, reclusion perpetua, or
life imprisonment, the prosecution has the burden of showing that the evidence of guilt is strong. The
evidence presented during the bail hearing shall be considered automatically reproduced at the trial
but, upon motion of either party, the court may recall any witness for additional examination unless
the latter is dead, outside the Philippines, or otherwise unable to testify."91

Under the foregoing provision, there must be a showing that the evidence of guilt against a person
charged with a capital offense is not strong for the court to grant him bail. Thus, upon an application
for bail by the person charged with a capital offense, a hearing thereon must be conducted, where the
prosecution must be accorded an opportunity to discharge its burden of proving that the evidence of
guilt against an accused is strong.92 The prosecution shall be accorded the opportunity to present all
the evidence it may deem necessary for this purpose. 93When it is satisfactorily demonstrated that the

Rule 114 48
evidence of guilt is strong, it is the court's duty to deny the application for bail. However, when the
evidence of guilt is not strong, bail becomes a matter of right.94

In this case, petitioner is not entitled to bail as a matter of right at this stage of the proceedings.
Petitioner's claim that the prosecution had refused to present evidence to prove his guilt for purposes
of his bail application and that the Sandiganbayan has refused to grant a hearing thereon is not borne
by the records. The prosecution did not waive, expressly or even impliedly, its right to adduce
evidence in opposition to the petition for bail of petitioner. It must be noted that the Sandiganbayan
had already scheduled the hearing dates for petitioner's application for bail but the same were reset
due to pending incidents raised in several motions filed by the parties, which incidents had to be
resolved by the court prior to the bail hearings. The bail hearing was eventually scheduled by the
Sandiganbayan on July 10, 2001 but the hearing did not push through due to the filing of this petition
on June 29, 2001.

The delay in the conduct of hearings on petitioner's application for bail is therefore not imputable
solely to the Sandiganbayan or to the prosecution. Petitioner is also partly to blame therefor, as is
evident from the following list of motions filed by him and by the prosecution:

Motions filed by petitioner:

Urgent Omnibus Motion, dated April 6, 2001, for (1) leave to file motion for
reconsideration/reinvestigation and to direct ombudsman to conduct reinvestigation; (2) conduct a
determination of probable cause as would suggest the issuance of house arrest; (3) hold in abeyance
the issuance of warrant of arrest and other proceedings pending determination of probable cause;

Motion for Early Resolution, dated May 24, 2001;

Urgent Motion to Hold in Abeyance Implementation or Service of Warrant of Arrest for

Immediate Grant of bail or For Release on Recognizance, dated April 25, 2001;

Urgent Motion to allow Accused Serapio to Vote at Obando, Bulacan, dated May 11, 2001;

Urgent Motion for Reconsideration, dated May 22, 2001, praying for Resolution of May 18,
2001 be set aside and bail hearings be set at the earliest possible time;

Urgent Motion for Immediate Release on Bail or Recognizance, dated May 27, 2001;

Motion for Reconsideration of denial of Urgent Omnibus Motion, dated June 13, 2001, praying
that he be allowed to file a Motion for Reinvestigation; and

Motion to Quash, dated June 26, 2001.95

Motions filed by the prosecution:

Motion for Earlier Arraignment, dated May 8, 2001;96

Motion for Joint Bail Hearings of Accused Joseph Estrada, Jose "Jinggoy" Estrada and
Edward Serapio, dated May 8, 2001;97

Rule 114 49
 Opposition to the Urgent Motion for Reconsideration and Omnibus Motion to Adjust Earlier
Arraignment, dated May 25, 2001;98 and

Omnibus Motion for Examination, Testimony and Transcription in Filipino, dated June 19,
99
2001.

The other accused in Criminal Case No. 26558 also contributed to the aforesaid delay by their filing
of the following motions:

Motion to Quash or Suspend, dated April 24, 2001, filed by Jinggoy Estrada, assailing the
constitutionality of R.A. No. 7080 and praying that the Amended Information be quashed;

Very Urgent Omnibus Motion, dated April 30, 2001, filed by Jinggoy Estrada, praying that he
be (1)excluded from the Amended Information for lack of probable cause; (2) released from custody;
or in the alternative, (3) be allowed to post bail;

Urgent Ex-Parte Motion to Place on House Arrest, dated April 25, 2001, filed by Joseph and
Jinggoy Estrada, praying that they be placed on house arrest during the pendency of the case;

Position Paper [re: House Arrest], dated May 2, 2001, filed by Joseph and Jinggoy Estrada;

Supplemental Position Paper [re: House Arrest], dated May 2, 2001, filed by Joseph and
Jinggoy Estrada;

Omnibus Motion, dated May 7, 2001, filed by Joseph Estrada, praying by reinvestigation of the
case by the Ombudsman or the outright dismissal of the case;

Urgent Ex-Parte Motion for Extension, dated May 2, 2001, filed by Jinggoy Estrada, requesting
for five (5) days within which to respond to the Opposition to Motion to Quash in view of the
holidays and election-related distractions;

Opposition to Urgent Motion for Earlier Arraignment, dated May 10, 2001, filed by Joseph
Estrada;

Omnibus Manifestation on voting and custodial arrangement, dated May 11, 2001, filed by
Joseph and Jinggoy Estrada, praying that they be placed on house arrest;

Manifestation regarding house arrest, dated May 6, 2001, filed by Joseph and Jinggoy Estrada;

Summation regarding house arrest, dated May 23, 2001, filed by Joseph and Jinggoy Estrada;

Urgent Manifestation & Motion, dated May 6, 2001 filed by Jinggoy Estrada;

Manifestation, dated May 28, 2001, filed by Joseph and Jinggoy Estrada, praying that they be
allowed to be confined in Tanay;

Motion to charge as Accused Luis "Chavit" Singson, filed by Joseph Estrada;

Rule 114 50
 Omnibus Motion, dated June 11, 2001, filed by Joseph and Jinggoy Estrada, seeking
reconsideration of denial of requests for house arrest, for detention in Tanay or Camp Crame; motion
for inhibition of Justice Badoy;

Urgent Motion to Allow Accused to Clear His Desk as Mayor of San Juan, Metro Manila, dated
June 28, 2001, filed by Jinggoy Estrada;

Motion for Reconsideration, dated June 9, 2001, filed by Joseph and Jinggoy Estrada, praying
that the resolution compelling them to be present at petitioner Serapio's hearing for bail be
reconsidered;

Motion to Quash, dated June 7, 2001, filed by Joseph Estrada;

Still Another Manifestation, dated June 14, 2001, filed by Joseph and Jinggoy Estrada stating
that Bishop Teodoro Bacani favors their house arrest;

Manifestation, dated June 15, 2001, filed by Joseph and Jinggoy Estrada, waiving their right to
be present at the June 18 and 21, 2001 bail hearings and reserving their right to trial with assessors;

Omnibus Motion for Instructions: 30-Day House Arrest; Production, Inspection and Copying of
Documents; and Possible Trial with Assessors, dated June 19, 2001, filed by Joseph and Jinggoy
Estrada;

Urgent Motion for Additional Time to Wind Up Affairs, dated June 20, 2001, filed by Jinggoy
Estrada;

Manifestation, dated June 22, 2001, filed by Jinggoy Estrada, asking for free dates for parties,
claiming that denial of bail is cruel and inhuman, reiterating request for gag order of prosecution
witnesses, availing of production, inspection and copying of documents, requesting for status of alias
case; and

Compliance, dated June 25, 2001, filed by Jinggoy Estrada, requesting for permission to attend
some municipal affairs in San Juan, Metro Manila.100

Furthermore, the Court has previously ruled that even in cases where the prosecution refuses to
adduce evidence in opposition to an application for bail by an accused charged with a capital offense,
the trial court is still under duty to conduct a hearing on said application. 101 The rationale for such
requirement was explained in Narciso vs. Sta. Romana-Cruz (supra), citing Basco vs. Rapatalo:102

"When the grant of bail is discretionary, the prosecution has the burden of showing that the evidence
of guilt against the accused is strong. However, the determination of whether or not the evidence of
guilt is strong, being a matter of judicial discretion, remains with the judge. This discretion by the
very nature of things, may rightly be exercised only after the evidence is submitted to the court at the
hearing. Since the discretion is directed to the weight of the evidence and since evidence cannot
properly be weighed if not duly exhibited or produced before the court, it is obvious that a proper
exercise of judicial discretion requires that the evidence of guilt be submitted to the court, the
petitioner having the right of cross-examination and to introduce his own evidence in rebuttal."103

Rule 114 51
Accordingly, petitioner cannot be released from detention until the Sandiganbayan conducts a hearing
of his application for bail and resolve the same in his favor. Even then, there must first be a finding
that the evidence against petitioner is not strong before he may be granted bail.

Anent the issue of the propriety of the issuance of a writ of habeas corpus for petitioner, he contends
that he is entitled to the issuance of said writ because the State, through the prosecution's refusal to
present evidence and by the Sandiganbayan's refusal to grant a bail hearing, has failed to discharge its
burden of proving that as against him, evidence of guilt for the capital offense of plunder is strong.
Petitioner contends that the prosecution launched "a seemingly endless barrage of obstructive and
dilatory moves" to prevent the conduct of bail hearings. Specifically, the prosecution moved for
petitioner's arraignment before the commencement of bail hearings and insisted on joint bail hearings
for petitioner, Joseph Estrada and Jinggoy Estrada despite the fact that it was only petitioner who
asked for a bail hearing; manifested that it would present its evidence as if it is the presentation of the
evidence in chief, meaning that the bail hearings would be concluded only after the prosecution
presented its entire case upon the accused; and argued that petitioner's motion to quash and his
petition for bail are inconsistent, and therefore, petitioner should choose to pursue only one of these
two remedies.104 He further claims that the Sandiganbayan, through its questioned orders and
resolutions postponing the bail hearings effectively denied him of his right to bail and to due process
of law.105

Petitioner also maintains that the issuance by the Sandiganbayan of new orders canceling the bail
hearings which it had earlier set did not render moot and academic the petition for issuance of a writ
of habeas corpus, since said orders have resulted in a continuing deprivation of petitioner's right to
bail.106 He argues further that the fact that he was arrested and is detained pursuant to valid process
does not by itself negate the efficacy of the remedy of habeas corpus. In support of his contention,
petitioner cites Moncupa vs. Enrile,107 where the Court held that habeas corpus extends to instances
where the detention, while valid from its inception, has later become arbitrary.108

However, the People insist that habeas corpus is not proper because petitioner was arrested pursuant
to the amended information which was earlier filed in court, 109 the warrant of arrest issuant pursuant
thereto was valid, and petitioner voluntarily surrendered to the authorities.110

As a general rule, the writ of habeas corpus will not issue where the person alleged to be restrained of
his liberty in custody of an officer under a process issued by the court which jurisdiction to do so. 111 In
exceptional circumstances, habeas corpus may be granted by the courts even when the person
concerned is detained pursuant to a valid arrest or his voluntary surrender, for this writ of liberty is
recognized as "the fundamental instrument for safeguarding individual freedom against arbitrary and
lawless state action" due to "its ability to cut through barriers of form and procedural mazes." 112 Thus,
in previous cases, we issued the writ where the deprivation of liberty, while initially valid under the
law, had later become invalid,113 and even though the persons praying for its issuance were not
completely deprived of their liberty.114

The Court finds no basis for the issuance of a writ of habeas corpus in favor of petitioner. The general
rule that habeas corpus does not lie where the person alleged to be restrained of his liberty is in the
custody of an officer under process issued by a court which had jurisdiction to issue the
same115 applies, because petitioner is under detention pursuant to the order of arrest issued by the
Sandiganbayan on April 25, 2001 after the filing by the Ombudsman of the amended information for

Rule 114 52
plunder against petitioner and his co-accused. Petitioner had in fact voluntarily surrendered himself to
the authorities on April 25, 2001 upon learning that a warrant for his arrest had been issued.

The ruling in Moncupa vs. Enrile116 that habeas corpus will lie where the deprivation of liberty which
was initially valid has become arbitrary in view of subsequent developments finds no application in
the present case because the hearing on petitioner's application for bail has yet to commence. As
stated earlier, they delay in the hearing of petitioner's petition for bail cannot be pinned solely on the
Sandiganbayan or on the prosecution for that matter. Petitioner himself is partly to be blamed.
Moreover, a petition for habeas corpus is not the appropriate remedy for asserting one's right to
bail.117 It cannot be availed of where accused is entitled to bail not as a matter of right but on the
discretion of the court and the latter has not abused such discretion in refusing to grant bail, 118 or has
not even exercised said discretion. The proper recourse is to file an application for bail with the court
where the criminal case is pending and to allow hearings thereon to proceed.

The issuance of a writ of habeas corpus would not only be unjustified but would also preempt the
Sandiganbayan's resolution of the pending application for bail of petitioner. The recourse of petitioner
is to forthwith proceed with the hearing on his application for bail.

IN THE LIGHT OF ALL THE FOREGOING, judgment is hereby rendered as follows:

1 In G.R. No. 148769 and G.R. No. 149116, the petitions are DISMISSED. The resolutions of
respondent Sandiganbayan subject of said petitions are AFFIRMED; and

2 In G.R. No. 148468, the petition is PARTIALLY GRANTED. The resolution of respondent
Sandiganbayan, Annex "L" of the petition, ordering a joint hearing of petitioner's petition for bail and
the trial of Criminal Case No. 26558 as against former President Joseph E. Estrada is SET ASIDE; the
arraignment of petitioner on July 10, 2001 is also SET ASIDE.

No costs.

SO ORDERED.

Separate Opinions

VITUG, J.:

I fully subscribe to the ponencia in G.R. No. 148468 that

Rule 114 53
a) The arraignment of an accused is not a prerequisite to the conduct of hearings on a petition for bail.
A person is allowed to petition for bail as soon as he is deprived of his liberty by virtue of his arrest or
voluntary surrender.

b) There is no inconsistency between an application of an accused for bail and his filing of a motion to
quash, these two reliefs not being necessarily antithetical to each other.

c) The joinder of hearing of herein petitioner's bail petition with the trial of former President Joseph
Estrada indeed could unduly delay the determination of the issue of the right of petitioner to obtain
provisional liberty.

d) The claim of petitioner that the prosecution has refused to present evidence to prove his guilt for
purposes of his bail application and that the Sandiganbayan has refused to grant a hearing thereon
hardly finds substantiation. Neither has the prosecution waived, expressly or even impliedly, its right
to adduce evidence in opposition to the petition for bail of petitioner.

e) There is no basis for the issuance of a writ of habeas corpus in favor of petitioner. Habeas
corpus does not lie where the person alleged to be restrained of his liberty is in the custody of an
officer under process issued by a court having jurisdiction thereover.

In G.R. No. 148769 and G.R. No. 149116, the issues for resolution are analogous to those posed in
G.R. No. 148965, entitled "Jose 'Jinggoy' Estrada vs. Sandiganbayan [Third Division], People of the
Philippines and Office of the Ombudsman," decided by the Court on 26 February 2002. Petitioner
Atty. Edward Serapio stands indicted with the former President, Mr. Joseph E. Estrada, for plunder.
Petitioner is charged with exactly the same degree of culpability as that of Mr. Jose "Jinggoy" Estrada,
thusly:

"AMENDED INFORMATION

"The undersigned Ombudsman Prosecutor and OIC-Director, EPIB, Office of the Ombudsman,
hereby accuses former PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES, Joseph Ejercito
Estrada a.k.a. 'ASIONG SALONGA' and a.k.a. 'JOSE VELARDE', TOGETHER WITH Jose 'Jinggoy'
Estrada, Charlie 'Atong' Ang, Edward Serapio, Yolanda T. Ricaforte, Alma Alfaro, JOHN DOE a.k.a.
Eleuterio Tan OR Eleuterio Ramos Tan or Mr. Uy, Jane Doe a.k.a. Delia Rajas, and John DOES &
Jane Does, of the crime of Plunder, defined and penalized under R.A. 7080, as amended by Sec. 12 of
R.A. 7659, committed as follows:

"That during the period from June, 1998 to January 2001, in the Philippines, and within the
jurisdiction of this Honorable Court, accused Joseph Ejercito Estrada, THEN A PUBLIC OFFICER,
BEING THEN THE PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES, by himself, AND/OR
in CONNIVANCE/CONSPIRACY with his co-accused, WHO ARE MEMBERS OF HIS FAMILY,
RELATIVES BY AFFINITY OR CONSANGUINITY, BUSINESS ASSOCIATES, SUBORDINATES
AND/OR OTHER PERSONS BY TAKING UNDUE ADVANTAGE OF HIS OFFICIAL POSITION,
AUTHORITY, RELATIONSHIP, CONNECTION OR INFLUENCE, did then and there wilfully,
unlawfully and criminally amass, accumulate and acquire BY HIMSELF, DIRECTLY OR
INDIRECTLY, ill-gotten wealth in the aggregate amount OR TOTAL VALUE of FOUR BILLION
NINETY SEVEN MILLION EIGHT HUNDRED FOUR THOUSAND ONE HUNDRED SEVENTY
THREE PESOS AND SEVENTEEN CENTAVOS (P4,097,804,173.17), more or less, THEREBY

Rule 114 54
UNJUSTLY ENRICHING HIMSELF OR THEMSELVES AT THE EXPENSE AND TO THE DAMAGE
OF THE FILIPINO PEOPLE AND THE REPUBLIC OF THE PHILIPPINES, through ANY OR A
combination OR a series of overt OR criminal acts, OR SIMILAR SCHEMES OR MEANS, described
as follows:

"(a) by receiving OR collecting, directly or indirectly, on SEVERAL INSTANCES, MONEY IN THE

AGGREGATE AMOUNT OF FIVE HUNDRED FORTY-FIVE MILLION PESOS (P545,000,000.00)
MORE OR LESS, FROM ILLEGAL GAMBLING, IN THE FORM OF GIFT, SHARE, PERCENTAGE,
KICKBACK OR ANY FORM OF PECUNIARY BENEFIT BY HIMSELF AND/OR in connivance with
co-accused CHARLIE 'ATONG' ANG, Jose 'Jinggoy' Estrada, Yolanda T. Ricaforte, Edward
Serapio, AND JOHN DOES AND JANE DOES, in consideration OF TOLERATION OR
PROTECTION OF ILLEGAL GAMBLING;"

Atty. Serapio, in G.R. No. 148769, questions the denial by the Sandiganbayan of his motion to quash
the Amended Information on the ground that, among other things, it alleges, at least as to him, neither
a combination or series of overt acts constitutive of plunder nor a pattern of criminal acts indicative of
an overall unlawful scheme in conspiracy with others. In G.R. No. 149116, petitioner claims that the
Sandiganbayan has committed grave abuse of discretion in denying his omnibus motion to hold in
abeyance the issuance of a warrant for his arrest, as well as the proceedings in Criminal Case No.
26558), to conduct a determination of probable cause, and to direct the Ombudsman to conduct a
reinvestigation of the charges against him.

In my separate opinion in G.R. No. 148965, which I now reiterate, I have said:

"Plunder may be committed by any public officer either by himself or "in connivance" with other
persons; it may also be committed by a person who participates with a public officer in the
commission of an offense contributing to the crime of plunder. A person may thus be held accountable
under the law by conniving with the principal co-accused or by participating in the commission of "an
offense" contributing to the crime of plunder. The term "in connivance" would suggest an agreement
or consent to commit an unlawful act or deed with or by another, to connive being to cooperate
secretly or privily with another.1 Upon the other hand, to participate is to have a part or a share in
conjunction with another of the proceeds of the unlawful act or deed.

"The amended Information alleged "connivance" and would assume that petitioner and his co-accused
had a common design in perpetrating the violations complained of constitutive of "plunder."

The Supreme Court in Estrada vs. Sandiganbayan2 has declared the anti-plunder law constitutional
for being neither vague nor ambiguous on the thesis that the terms "series" and "combination" are not
unsusceptible to firm understanding. "Series" refers to two or more acts falling under the same
category of the enumerated acts provided in Section 1(d)3 of the statute; "combination" pertains to two
or more acts falling under at least two separate categories mentioned in the same law.4

"xxx xxx xxx

"The government argues that the illegal act ascribed to petitioner is a part of the chain that links the
various acts of plunder by the principal accused. It seems to suggest that a mere allegation of
conspiracy is quite enough to hold petitioner equally liable with the principal accused for the latter's
other acts, even if unknown to him, in paragraph (a) of the indictment. This contention is a glaring

Rule 114 55
bent. It is, to my mind, utterly unacceptable, neither right nor just, to cast criminal liability on one for
the acts or deeds of plunder that may have been committed by another or others over which he has not
consented or acceded to, participated in, or even in fact been aware of. Such vicarious criminal
liability is never to be taken lightly but must always be made explicit not merely at the trial but
likewise, and no less important, in the complaint or information itself in order to meet the
fundamental right of an accused to be fully informed of the charge against him. It is a requirement that
cannot be dispensed with if he were to be meaningfully assured that he truly has a right to defend
himself. Indeed, an unwarranted generalization on the scope of the anti-plunder law would be a fatal
blow to maintaining its constitutionality given the ratio decidendi in the pronouncement heretofore
made by the Court upholding the validity of the statute.

"Given the foregoing exegesis, the petitioner, although ineffectively charged in the Amended
Information for plunder, could still be prosecuted and tried for a lesser offense, for it is a recognized
rule that an accused shall not be discharged even when a mistake has been made in charging the
proper offense if he may still be held accountable for any other offense necessarily included in the
crime being charged. It is, however, the Sandiganbayan, not this Court, which must make this
determination on the basis of its own findings."

WHEREFORE, I accept the ponencia in G.R. No. 148468 but, as regards G.R. No. 148769 and G.R.
No. 149116, I vote for the remand of the case to the Sandiganbayan for further proceedings on the bail
application of petitioner and urge that the incident be resolved with dispatch.

Dissenting Opinion

SANDOVAL-GUTIERREZ, J.,:

Once again, the Amended Information dated April 18, 2001 in Criminal Case No. 26558 1 is subjected
to judicial scrutiny, this time, via a petition for certiorari under Rule 65 of the 1997 Rules of Civil
Procedure (G.R. No. 148769) filed by petitioner Edward S. Serapio. For easy reference, let me quote
the Amended Information, thus:

"The undersigned Ombudsman Prosecutor and OIC-Director, EPIB, Office of the Ombudsman,
hereby accuses former President of the Republic of the Philippines, Joseph Ejercito Estrada
a.k.a. 'Asiong Salonga'and a.k.a. 'Jose Velarde,' together with Jose 'Jinggoy' Estrada, Charlie 'Atong'
Ang, Edward Serapio, Yolanda T. Ricaforte, Alma Alfaro, John Doe a.k.a Eleuterio Tan or Eleuterio
Ramos Tan or Mr. Uy, Jane Doe a.k.a. Delia Rajas, and John Does & Jane Does, of the crime of
Plunder, defined and penalized under R.A. No. 7080, as amended by Sec. 12 of R.A. No. 7659,
committed as follows:

'That during the period from June 1998 to January, 2001, in the Philippines, and within the
jurisdiction of this Honorable Court, accused Joseph Ejercito Estrada, then a public officer, being then
the President of the Republic of the Philippines, by himself and/or in connivance/conspiracy with his
co-accused, who are members of his family, relatives by affinity or consanguinity, business associates,
subordinates and/or other persons, by taking undue advantage of his official position, authority,
relationship, connection, or influence, did then and there willfully, unlawfully and criminally amass,
accumulate and acquire by himself, directly or indirectly, ill-gotten wealth in the aggregate amount or

Rule 114 56
total value of four billion ninety seven million eight hundred four thousand one hundred seventy three
pesos and seventeen centavos [P4,097,804,173.17], more or less, thereby unjustly enriching himself
or themselves at the expense and to the damage of the Filipino people and the Republic of the
Philippines through any or a combination or a series of overt OR criminal acts, or similar schemes or
means, described as follows:

a) by receiving or collecting, directly or indirectly, an aggregate amount of Five Hundred Forty-Five

Million Pesos (P545,000,000.00), more or less, from illegal gambling in the form of gift, share,
percentage kickback or any form of pecuniary benefit, by himself and/or in connivance with co-
accused Charlie "Atong" Ang, Jose 'Jinggoy' Estrada, Yolanda T. Ricaforte, Edward Serapio, AND
JOHN DOES AND JANE DOES, in consideration OF TOLERATION OR PROTECTION OF
ILLEGAL GAMBLING;

b) by diverting, receiving, misappropriating, converting or misusing directly or indirectly, for his or

their personal gain and benefit, public funds in the amount of one hundred thirty million pesos
(P130,000,000.00) more or less, representing a portion of the Two Hundred Million Pesos
(P200,000,000.00) tobacco excise tax share allocated for the Province of Ilocos Sur under R.A. No.
7171, by himself and/or in connivance with co-accused Charlie 'Atong' Ang, Alma Alfaro, John Doe
a.k.a. Eleuterio Tan Or Eleuterio Ramos Tan or Mr. Uy, and Jane Doe a.k.a Delia Rajas, and other
John Does and Jane Does;

c) by directing, ordering and compelling, for his personal gain and benefit, the Government Service
Insurance System (GSIS) to purchase, 351,878,000 shares of stock, more or less and the Social
Security System (SSS), 329,855,000 shares of stock, more or less, of the Belle Corporation in the
amount of more or less One Billion One Hundred Two Million Nine Hundred Sixty Five Thousand
Six Hundred Seven Pesos and Fifty Centavos [P1,102,965,607.50] and more or less Seven Hundred
Forty Four Million Six Hundred Twelve Thousand Four Hundred Fifty Pesos (P744,612,450.00],
respectively, or a total of a more or less One Billion Eight Hundred Forty Seven Million Five Hundred
Seventy Eight Thousand Fifty Seven Pesos and fifty centavos [P1,847,578,057.50]; and by collecting
or receiving, directly or indirectly, by himself and/or in connivance with John Does and Jane Does,
Commissions or percentages by reason of said purchases of shares of stock in the amount of One
Hundred Eighty-Nine Million Seven Hundred Thousand Pesos [P189,700,000], more or less, from the
Belle Corporation, which became part of the deposit in the Equitable-PCI Bank under the account of
"Jose Velarde";

d) by unjustly enriching himself FROM COMMISSIONS, gifts, shares, percentages, kickbacks, or

any form of pecuniary benefits, in connivance with John Does and Jane Does, in the amount of more
or less Three Billion Two Hundred Thirty-Three Million One Hundred Four Thousand One Hundred
Seventy Three Pesos and Seventeen Centavos [P3,233,104,173.17] and depositing the same under his
account name "Jose Velarde" at the Equitable-PCI Bank.

CONTRARY TO LAW.'"2

In G.R. No. 148965,3 I stood apart from the majority of my brethren in denying the Petition for
Certiorari and Mandamus filed by Jose "Jinggoy," E. Estrada against the Sandiganbayan, People of
the Philippines and Office of the Ombudsman. I articulated in my Dissent the various reasons why I
could not join the majority in sustaining the afore-quoted Amended Information. Now, I am taking

Rule 114 57
this second occasion to reiterate them, hoping that the majority will have a change of mind and
resolve to re-examine its Decision.

Consistent with my previous Dissent, it is my view that petitioner Edward S. Serapio, like Jose
"Jinggoy" Estrada, may not be validly prosecuted for the crime of plunder under the Amended
Information.

To be forthright, the obvious error in the foregoing Information lies in the fact that it joined together
four distinct conspiracies in a single continuing conspiracy of plunder and indiscriminately accused
all the persons who participated therein of the said resulting crime. Simply put, the Amended
Information is a mere fusion of separate conspiracies. It is akin to that of "separate spokes meeting at
a common center, without the rim of the wheel to enclose the spokes." This is legally impermissible.
Such kind of information places the accused's primary right to be informed of the nature and cause of
the accusation against him in jeopardy.

I must reiterate what I have pointed out in G.R. No. 148965.

There exists a distinction between separate conspiracies, where certain parties are common to all the
conspiracies, but with no overall goal or common purpose; and one overall continuing conspiracy
with various parties joining and terminating their relationship at different times. 4 Distinct and separate
conspiracies do not, in contemplation of law, become a single conspiracy merely because one man is a
participant and key figure in all the separate conspiracies. 5 The present case is a perfect example. The
fact that former President Estrada is a common key figure in the criminal acts recited under
paragraphs (a), (b), (c) and (d) of the Amended Information does not automatically give rise to a
single continuing conspiracy of plunder, particularly, with respect to petitioner Serapio whose
participation is limited to paragraph (a). To say otherwise is to impute to petitioner or to any of the
accused the acts and statements of the others without reference to whether or not their acts are
related to one scheme or overall plan. It could not have been the intention of the Legislature, in
drafting R.A. No. 7080, to authorize the prosecution to chain together four separate and distinct
crimes when the only nexus among them lies in the fact that one man participated in all. There lies a
great danger for the transference of guilt from one to another across the line separating conspiracies.

The principle laid down above is no longer novel in other jurisdictions. Various American decisions
had expounded on the matter. In Battle vs. State,6 a judgment of conviction was reversed on the
ground that the allegation of conspiracy in the indictment was insufficient, thus:

"Among the requirements for the allegations in an indictment to be sufficient are (1) the specificity
test, i.e., does the indictment contain all the elements of the offense pleaded in terms sufficient enough
to apprise the accused of what he must be prepared to meet, and (2) is the indictment pleaded in such
a manner as to enable the defendant to plead prior jeopardy as a defense if additional charges are
brought for the same offense. x x x Further, our Supreme Court has recently considered the criteria for
sufficiency in conspiracy cases in Goldberg vs. State, 351 So. 2d 332 (Fla. 1977),7 as this court has
likewise done in State vs. Giardino, 363 So. 2d 201 (Fla. 3d DCA 1978). 8 Applying the principles
developed in the above cases to the instant cause, we are of the opinion that Count I of the indictment
was insufficient. It is impossible to ascertain whether the indictment charges that appellant conspired
with Acuna and Hernandez jointly or severally, or whether appellant conspired entirely with persons
unknown. Also, it is impossible to tell whether appellant met with Acuna and Hernandez jointly or
severally, or whether appellant conspired entirely with persons unknown. Also, it is impossible to tell

Rule 114 58
whether appellant met with Acuna and Hernandez jointly or severally, or whether appellant met with
persons unknown to plan the murder of Torres. Because appellant was left to guess who these other
conspirators might be and because the vagueness of the allegations did nothing to protect him from
further prosecution, we are of the opinion that they were too vague and indefinite to meet the
requirements set forth above. Accordingly, in our opinion the trial court erred in failing to dismiss
Count I of the indictment for conspiracy against appellant." (Footnote supplied)

In State vs. Harkness,9 a demurrer to the information was sustained on the ground that an information
charging two separate conspiracies is bad for misjoinder of parties where the only connection between
the two conspiracies was the fact that one defendant participated in both. The Supreme Court of
Washington ruled:

"[W]e see no ground upon which the counts against both the Harknesses can be included in the same
information. While they are charged with crimes of the same class, the crimes are alleged to have
been committed independently and at different times. The crimes are related to each other only by the
fact that the prescriptions used were issued by the same physician. x x x We find ourselves unable to
agree with the appellant that the misjoinder is cured by the conspiracy charge. It is doubtful if the
count is sufficient in form to charge a conspiracy. x x x Reference is made in the count, to counts one
to six, inclusive, for a specification of the acts constituting the conspiracy. When these counts are
examined, it will be seen that they charge separate substantive offenses without alleging any concert
of action between the Harknesses."

Thus, when certain persons unite to perform certain acts, and some of them unite with others who are
engaged in totally different acts, it is error to join them in an information.10 Otherwise stated,
defendants charged with two separate conspiracies having one common participant are not, without
more, properly joined, and similarity of acts alone is insufficient to indicate that series of acts
exist.11 Joinder may be permitted when the connection between the alleged offenses and the parties is
the accused's awareness of the identity and activity of the other alleged participants. 12 There must be a
showing of one overall common goal to which the participants bind themselves.

Apparently, the factual recitals of the Amended Information fail to sufficiently allege that petitioner
Serapio deliberately agreed or banded with the rest of the accused for the purpose of committing
Plunder. There is no averment that he conspired with them in committing the crimes specified in
paragraphs (b), (c) and (d) of the Amended Information, such as misappropriation of the tobacco
excise tax share of Ilocos Sur; receipt of commissions by reason of the purchase of shares of stock
from the Belle Corporation; and acquisition of unexplained wealth.

To my mind, the Amended Information only makes out a case of bribery "in toleration or protection of
illegal gambling." While he is being charged for the "crime of Plunder, defined and penalized under
R.A. No. 7080," his alleged participation therein is limited to what is specified under paragraph (a) of
the Amended Information.

The essence of the law on plunder lies in the phrase "combination or series of overt or criminal acts."
The determining factor of R.A. No. 7080, as can be gleaned from the Record of the Senate, is
the plurality of the overt acts or criminal acts under a grand scheme or conspiracy to amass ill-gotten
wealth. Thus, even if the amassed wealth equals or exceeds fifty million pesos, a person cannot be
prosecuted for the crime of plunder if he performs only a single criminal act.13

Rule 114 59
It is the majority's position that since there is an allegation of conspiracy at the inception of the
Amended Information, the criminal acts recited in paragraphs (b), (c) and (d) pertain to petitioner as
well, the act of one being the act of all. This is an obvious non sequitur. Even the Amended
Information, on its face, cannot admit such a construction.

First, it bears noting that the Amended Information named the co-conspirators of former President
Estrada individually and separately in each of the four predicate offenses. Paragraph (a) named
petitioner Jose "Jinggoy" Estrada, "Atong" Ang, Yolanda T. Ricaforte, Edward Serapio, John Does
and Jane Does as co-conspirators in the crime of bribery. Paragraph (b) named Alma Alfaro, "Atong"
Ang, Eleuterio Ramos Tan, Delia Rajas and other John Does and Jane Does as co-conspirators in the
crime of malversation of public funds representing a portion of the tobacco excise tax share allocated
to the Province of Ilocos Sur. Paragraph (c) and (d) named John Does and Jane Does as co-
conspirators in the purchase of the Belle's shares and in the acquisition of ill-gotten wealth in the
amount of P3,233,104,173.17 under the account name "Jose Velarde."

Is it logical to infer from the Amended Information the existence of a single continuing conspiracy of
plunder when the factual recital thereof individually and separately named the co-conspirators in
each of the predicate offenses? I must reecho my answer in G.R. No. 148965, i.e., an outright no. A
single agreement to commit several crimes constitutes one conspiracy. By the same reasoning,
multiple agreements to commit separate crimes constitute multiple conspiracies. To individually and
separately name the co-conspirators in each of the predicate offenses is to reveal the absence of a
common design. The explicit clustering of co-conspirators for each predicate offense thwarts the
majority's theory of a single continuing conspiracy of plunder. It reveals a clear line segregating each
predicate offense from the other. Thus, the act of one cannot be considered as the act of all.

Second, the allegation of conspiracy at the inception of the Amended Information basically pertains to
former President Estrada as the common key figure in the four predicate offenses. Allow me to quote
the pertinent portion, thus:

"That during the period from June 1998 to January, 2001, in the Philippines, and within the
jurisdiction of this Honorable Court, accused Joseph Ejercito Estrada, then a public officer, being
then the President of the Republic of the Philippines, by himself and/or in connivance/conspiracy with
his co-accused, who are members of his family, relatives by affinity or consanguinity, business
associates, subordinates and/or other persons, by taking undue advantage of his official position,
authority, relationship, connection, or influence, did then and there willfully, unlawfully and
criminally amass, accumulate and acquire by himself, directly or indirectly, ill-gotten wealth in the
aggregate amount or total value of four billion ninety seven million eight hundred four thousand one
hundred seventy three pesos and seventeen centavos [P4,097,804,173.17], more or less, thereby
unjustly enriching himself or themselves at the expense and to the damage of the Filipino people and
the Republic of the Philippines through any or a combination or a series of overt OR criminal acts, or
similar schemes or means, described as follows: x x x."

From the foregoing allegation, it can be reasonably construed that former President Estrada conspired
with all the accused in committing the four predicate offenses. However, whether his co-accused
conspired with him jointly or individually for the commission of all, or some or one of the predicate
offenses is a question that may be answered only after a reading of the entire Amended Information. I
note with particularity the phrase in the Amended Information stating, "by himself and/or14 in
connivance/conspiracy with his co-accused." The phrase indicates that former President Estrada did

Rule 114 60
not, in all instances, act in connivance with the other accused. At times, he acted alone. Consequently,
as alleged in the succeeding paragraphs (a), (b), (c) and (d), his co-accused conspired with him
individually and not jointly. Petitioner Serapio cannot therefore be associated with the former
President in all the latter's alleged criminal activities.

Of course, I cannot ignore the use of the phrase "on several instances" and "aggregate amount of
P545,000,000.00" in paragraph (a) of the Amended Information. At first glance, this may be construed
as attributing to petitioner Serapio a "combination or series of overt act." However, a reading of the
Amended Information, in its entirety, readily reveals that the said phrases pertain to former President
Estrada, the principal accused in the case. Allegedly, the former President, on several instances,
received or collected an aggregate amount of P545,000,000.00, more or less from illegal gambling in
the form of gift, share, percentage, kickback or any form of pecuniary benefit "by himself and/or in
connivance with co-accused Charlie "Atong" Ang, Jose "Jinggoy" Estrada, Yolanda T.
Ricaforte, petitioner Serapio and John Does and Jane Does. We have already explained the
implication of the phrase "by himself and/or in connivance." Consequently, the acts committed by
former President Estrada on the several instances referred to cannot automatically be attributed to
petitioner.

Third, petitioner's criminal intent to advance the unlawful object of the conspiracy (plunder) is not
sufficiently alleged in the factual recitals of the Amended Information. Corollarily, the intent required
is the intent to advance or further the unlawful object of the conspiracy. 15 This means that so far as the
relevant circumstances are concerned, both parties to the agreement must have mens rea.16 There is no
conspiracy to commit a particular crime unless the parties to the agreement intend that the
consequences, which are ingredients of that crime, shall be caused. 17 In the present case, while there is
an allegation that former President Estrada "willfully, unlawfully and criminally"18amassed ill-gotten
wealth in the aggregate amount of P4,097,804,173.17, none is mentioned with regard to petitioner.
There is nothing in the Amended Information that suggests whether or not petitioner has the mens rea
to engage in the commission of the serious crime of plunder. Indeed, there are no allegations that he
"willfully, unlawfully or criminally" joined with the rest of the accused to amass ill-gotten wealth. This
renders the Amended Information fatally defective with respect to petitioner. Every crime is made up
of certain acts and intent: these must be set forth in the complaint with reasonable
particularity.19 Imperatively, an information charging that a defendant conspired to commit an offense
must allege that the defendant agreed with one or more persons to commit the offense.20

And fourth, the statement in the accusatory portion of the Amended Information cumulatively
charging all the accused of the crime of Plunder cannot be given much weight in determining the
nature of the offense charged. It is a jurisprudentially-embedded rule that what determines the "nature
and cause of accusation" against an accused is the crime described by the facts stated in the
information or complaint and not that designated by the fiscal in the preamble thereof.21 In the
recent En Banc ruling in Lacson vs. Executive Secretary,22 citing the 1954 case of People vs.
Cosare23 and People vs. Mendoza,24 this Court held:

"The factor that characterizes the charge is the actual recital of the facts. The real nature of the
criminal charge is determined not from the caption or preamble of the information nor from the
specification of the provision of law alleged to have been violated, they being conclusions of law, but
by the actual recital of factsin the complaint or information."25

Rule 114 61
Thus, in the event that the appellation of the crime charged, as determined by the public prosecutor,
does not exactly correspond to the actual crime constituted by the criminal acts described in the
information to have been committed by the accused, what controls is the description of the said
criminal acts and not the technical name of the crime supplied by the public prosecutor.26

There is a caveat that an information under the broad language of a general conspiracy statute must be
scrutinized carefully as to each of the charged defendants because of the possibility, inherent in a
criminal conspiracy charge, that its wide net may ensnare the innocent as well as the culpable.27

Let it be stressed that guilt should remain individual and personal, even as respect conspiracies. It is
not a matter of mass application. There are times when of necessity, because of the nature and scope
of a particular federation, large numbers of persons taking part must be tried by their conduct. The
proceeding calls for the use of every safeguard to individualize each accused in relation to the mass.
Criminal they may be, but it is not the criminality of mass conspiracy. They do not invite mass trial by
their conduct. True, this may be inconvenient for the prosecution. But the government is not one of
mere convenience or efficiency. It too has a stake with every citizen, in his being afforded the
individual protections, including those surrounding criminal trials.28 The shot-gun approach of a
conspiracy charge could amount to a prosecution for general criminality resulting in a finding of guilt
by association. The courts should, at all times, guard against this possibility so that the constitutional
rights of an individual are not curbed or clouded by the web of circumstances involved in a
conspiracy charge.29

Corollarily, petitioner prays in G.R. No. 148468 for this Court to issue a writ of habeas corpus. The
Amended Information being fatally defective, it is imperative that petitioner be dropped from the
Amended Information and proceeded against under a new one charging the proper offense. In the
absence of a standing case against him, the issuance of a writ of habeas corpus is in order."30

WHEREFORE, I vote to GRANT the petitions in G.R. No. 148769 and G.R. No. 148468.

SERAPIO v. SANDIGANBAYAN
GR Numbers 148468, 148769, and 149116
January 28, 2003

FACTS:

The case is a consolidation of 3 petitions filed by Edward Serapio which assailed resolutions of the 3 rd Division
of the Sandiganbayan in denying his petition for bail, motion for reinvestigation and motion to quash, and a
petition for habeas corpus in relation to a plunder case against him.

Petitioner was a member of the Board of Trustees and legal counsel of the Erap Muslim Youth Foundation. He
received a Php200 million donation from Chavit Singson. He received the donation and turned it over to the
treasurer of the Foundation and it was deposited to the account with the Equitable PCI Bank.

Rule 114 62
In 2000, Singson publicly accused Estrada and his cohorts of engaging in several illegal activities triggering the
filing with the Ombudsman several criminal complaints against Estrada. Petitioner was among the persons
included in the criminal charges.

Ombudsman filed with the Sandiganbayan several informations against Estrada and other persons and no bail
was recommended for the provisional released of the accused. Ombudsman found probable cause for plunder
and petitioner filed an MR. It was denied because the information was already filed with the Sandiganbayan.

Sandiganbayan issued a Resolution finding probable cause to justify the issuance of warrants of arrests for the
accused, including petitioner. Petitioner was detained at Camp Crame for the said charge. Arraignment was set
and petitioner filed a petition for Bail. Several other bail meetings did not push through.

Even before the Sandiganbayan can resolve the issues, petitioner filed with the Supreme Court a petition for
habeas corpus and certiorari praying that the issued Resolutions of the Sandiganbayan be declared void
because he was denied due process.

ISSUE:

Whether the Sandiganbayan denied the petitioner of his right to due process of the law.

HELD:

No. The right to a preliminary investigation is not a constitutional right, but it is a right conferred by a
statute. Petitioner was afforded the opportunity to answer the charges against him during the
preliminary investigation. Jurisprudence dictates that the Court do not interfere with the discretion of the
Ombudsman in its conduct of preliminary investigations. It was enunciated in Raro v. Sandiganbayan that in
the performance of the task to determine probable cause, the Ombudsmans discretion is paramount .
The lack of a preliminary investigation does not impair the validity of the information filed before the court.

The denial of his prayer for a writ of habeas corpus does not deny him of his right to due process because
there is no basis for the issuance of the writ in favor of the petitioner. Petitioner has voluntarily surrendered
himself to the authorities. Habeas corpus does not lie because there was no deprivation of liberty. Also, the
delay in the hearing of the bail cannot be solely pinned upon the Sandiganbayan. Petitioner is also to be
blamed. Habeas corpus is not the appropriate remedy for asserting ones right to bail.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

Rule 114 63
G.R. No. 101421 February 10, 1994

CONSTANCIO C. TORRALBA, petitioner,

vs.
THE SANDIGANBAYAN, THE OMBUDSMAN and THE PEOPLE OF THE
PHILIPPINES, respondents.

G.R. No. 101422 February 10, 1994

ALEXANDER H. LIM, petitioner,

vs.
THE SANDIGANBAYAN, THE OMBUDSMAN and THE PEOPLE OF THE
PHILIPPINES, respondents.

Balgos & Perez for petitioners in G.R. Nos. 101421 & 101422.

The Solicitor General for respodents.

VITUG, J.:

These two petitions for certiorari, prohibition and mandamus question the denial by the
Sandiganbayan of a motion filed by the petitioners seeking a reinvestigation of the charges against
them for violation of the Anti-Graft and Corrupt Practices Act. The petitioners claim that they have
been deprived of their right to a full preliminary investigation.

On 14 June 1990, Felix T. Rengel, a member of the Sangguniang Panlalawigan of the province of
Bohol, filed a complaint1 with the Office of the Ombudsman for the Visayas. Rengel asked the
Ombudsman to investigate Constancio C. Torralba, Governor of Bohol; Atty. Alexander H. Lim,
member of the Sangguniang Panlalawigan of Bohol; Manuel Navarro, sales manager of Autographics,
Inc., in Cebu; and Christopher Lim, a sales agent, for conspiracy in overpricing two (2) units of
Nissan "double-cab pick-ups" purchased by the provincial government.2

In his answer, Torralba denied Rengel's accusation, asserting that the purchase was regular, necessary,
reasonable and not extravagant, as so evidenced by the pre-audit and post-audit reports of the
Commission on Audit ("COA").3For his part, Alexander H. Lim filed a comment on the complaint,
disclaiming any participation in the canvass, bidding, or other procedural aspects leading to the
purchase of the two vehicles and averring that his only involvement was to sign the Requisition and
Issue Voucher (RIV) for the payment of said vehicles conformably with the terms of the purchase.4

On 18 October 1990, the Office of the Ombudsman for the Visayas issued an Order 5 directing the
herein petitioners and their co-respondents in the complaint to respond to certain interrogatories.
Torralba and Lim complied, respectively, on 15 October 19906 and 22 October 1990.7

On 26 October 1990, Director Vicente Y. Varela, Jr., issued a Resolution 8 recommending the dismissal
of the complaint for lack of prima facie evidence. Forthwith, the records of the case were forwarded
to the Office of the Ombudsman in Manila for review and evaluation.

Rule 114 64
Four months later, or on 12 February 1991, complaint Rengel, through counsel, filed a manifestation
before the Office of the Ombudsman in Manila, urging that the audit report of the Provincial Auditor
of Bohol be considered in the re-evaluation of the case. 9 The report, which was submitted upon the
request of the Office of the Ombudsman for Visayas, would show, according to him, an overprice of
P85,756.00 in the purchase of the two vehicles. He explained that the audit report could not
theretofore form part of the records of the case because it was submitted by the Regional Director of
the Commission on Audit, Regional Office No. VII, to the Office of the Ombudsman for Visayas, only
on 19 December 1990 when the records of the case had already been transmitted to the Office of the
Ombudsman in Manila for review.

On 20 May 1991, Agapito B. Rosales, Director of the Fact-Finding and Intelligence Bureau, Office of
the Ombudsman, issued a Resolution,10 with the following dispositive portion:

WHEREFORE, in the light of the foregoing consideration, it is respectfully recommended that the
Resolution dated October 26, 1990 subject of this review be, as it is hereby disapproved. In lieu
thereof, that this Resolution be adopted and approved with the following recommendations:

1. There being a prima facie case of violation of Sec. 3,

par (g) of R.A. 3019, as amended, against respondents Governor Constancio Torralba, let the
corresponding Information be filed with the Sandiganbayan;

2. For lack of prima facie case of violation of Sec. 3, par. (g) of R.A. 3019, as amended, against
respondents Sangguniang Panlalawigan Member Alexander Lim, Manuel Navarro, a private
individual and Christopher Lim, a private individual, there being no evidence of conspiracy among
and between the respondents, the same is, as it is hereby, dismissed.

3. The administrative action in this case should be initiated by the Commission on Audit.

So Resolved.

On the recommendation, however, of Jane Aurora C. Lantion, Special Prosecution Officer III,
Ombudsman Conrado M. Vasquez authorized the modification of the above Resolution (of 20 May
1991) and ordered, instead, that all the respondents in the complaint be charged with violation of the
Anti-Graft Law.11 The result was the filing of an information, for violation of Section 3 (g) 12 of
Republic Act No. 3019, with the Sandiganbayan against the herein petitioners, including Manuel
Navarro and Christopher Lim, which was so docketed as Criminal Case No. 16914.

On 24 July 1991, Torralba filed motions to quash the warrant for his arrest and for
reinvestigation.13 The motions were later adopted by Lim. The motion to quash the warrant of arrest
was premised on the allegation that no valid preliminary investigation was conducted prior to the
issuance thereof. The motion for reinvestigation, on the other hand, was sought because, the
petitioners averred, they were not furnished with copies of the Resolutions of OMB Director Varela,
Director Rosales and SPO Lantion, recommending the filing of an information against them, thus
denying to them, in contravention of the provisions of Section 7 of Administrative Order No. 07, their
right to seek a reconsideration thereof. In an Order, dated 02 August 1991, the motions to quash and
for reinvestigation were both denied by the Sandiganbayan for lack of merit, and it forthwith set the
arraignment for 09 September 1991.14

Rule 114 65
Petitioner Torralba filed a motion for the reconsideration of said Order, 15 where he additionally
alleged that he was furnished likewise with a copy of the report of the Commission on Audit, on
which Director Rosales and SPO Lantion relied heavily in reversing the previous recommendation of
Director Varela. Petitioner Lim, again, adopted this motion for reconsideration.

On 26 August 1991, petitioner Torralba filed an urgent motion to suspend the arraignment 16 in view of
his request for reinvestigation. On the same day, Torralba filed another pleading embodying additional
argument in support of his motion for reconsideration 17 but mainly stressing that the audit report
surfaced only when the case was already pending review by the Office of the Ombudsman.

On 04 September 1991, the Sandiganbayan issued a Resolution 18 denying, for lack of merit,
petitioners' motion for reconsideration and their urgent motion to suspend the arraignment. 19 The
Sandiganbayan stated that the accused "were all aware of the nature, import and legal consequences of
the COA Report in question, especially considering that their offices and that of the Provincial
Auditor of Bohol (were) all in Tagbilaran City;" in any case, it said, even without the COA report,
the prima facie finding of the Office of the Ombudsman could still be sustained. The Sandiganbayan
continued:

2. Invoking Section 27 of R.A. No. 6770, accused Torralba contends that he was never afforded the
opportunity to move for the reconsideration of the Resolutions of Director Rosales and SPO Lantion
as approved by the Ombudsman, with which he was never furnished. Section 27 reads in part that "a
motion for reconsideration of any order, directive or decision of the Office of the Ombudsman must
be filed within five (5) days after receipt of written notice." But the same Section 27, last sentence,
also provides that "the above rules may be amended or modified by the Office of the Ombudsman as
the interest of justice may require." Pursuant thereto and Section 18 of the same Act, the Office of the
Ombudsman promulgated its Rules of Procedure, Section 7, Rule II of which recites:

(a) Only one motion for reconsideration or reinvestigation of an approved order or resolution shall be
allowed, the same to be filed within fifteen days from notice thereof with the Office of the
Ombudsman, or the Deputy Ombudsman as the case may be.

(b) No motion for reconsideration or reinvestigation shall be entertained after the information shall
have been filed in court, except upon order of the court wherein the case was filed."

A perusal of Section 7 (a) and (b) shows that, indeed, an accused may file a motion for
reconsideration or reinvestigation of an approved order or resolution. Two situations are
contemplated. First, the motion shall be filed with the Ombudsman but, second, if the information is
already filed in court, the motion shall be entertained upon order of the court.

In the instant case, when accused Torralba filed his Motion to Quash Warrant of Arrest and for Re-
investigation dated July 23, 1991, and this Court entertained the same by denying the motion after due
consideration thereof in its Order of August 26, 1991, the said accused thereby availed of, and was
accorded, the opportunity to have the resolutions of Director Rosales and SPO Lantion reconsidered
and his case reinvestigated. The instant Motion for Reconsideration of the Order of August 2, 1991, is
the accused Torralba's second opportunity.

The following day, or on 5 September 1991, Torralba and Lim filed with this Court separate petitions
for certiorari, prohibition and mandamus, with prayer for a writ of preliminary injunction. The Court

Rule 114 66
issued a temporary restraining order enjoining the Sandiganbayan from proceeding with the
arraignment of both petitioners.20 The two petitions were also ordered consolidated.

The petitioners here aver that the entitlement of an accused to a full preliminary investigation is a
substantive right, which cannot be denied to them. Hence, they submit, their motion for
reinvestigation, in light of the pronouncement of this Court in Doromal v. Sandiganbayan,21 should
have been granted by the Sandiganbayan.

We see merit in the petitions.

Under Section 18 of Republic Act No. 6770, otherwise known as the Ombudsman Act of 1989, the
Office of the Ombudsman is authorized to promulgate its rules of procedure "for the effective exercise
or performance of its powers, functions, and duties." Pursuant to this section, Administrative Order
No. 07, dated 10 April 1990, embodying the Rules of Procedure of the Office of the Ombudsman, has
been promulgated. Section 4 of Rule V thereof provides that the rules would take effect "following the
completion of their publication in the Official Gazetteor in three (3) newspapers of general
circulation," and that the Rules would govern all cases then still pending or brought thereafter except,
in the case of those already pending, "to the extent that their application would not be feasible or
would cause injustice to any party." The Rules, having been published in the 1st May 1990 issue of
the Manila Bulletin, were in effect, and should have been observed, when Rengel filed his complaint
before the Office of the Ombudsman for Visayas on 14 June 1990.

Section 6 and Section 7, Rule II, of the Ombudsman Rules of Procedure, provide:

Sec. 6. Notice to parties. The parties shall be served with a copy of the resolution as finally
approved by the Ombudsman or by the proper Deputy Ombudsman.

Sec. 7. Motion for reconsideration.

(a) Only one motion for reconsideration or reinvestigation shall be allowed, the same to be filed
within fifteen (15) days from notice thereof with the Office of the Ombudsman, or the Deputy
Ombudsman as the case may be.

(b) No motion for reconsideration or reinvestigation shall be entertained after the information shall
have been filed in court, except upon order of the court wherein the case was filed.

The averment of the petitioners22 that they have not been served with copies of the final Resolution of
20 May 1991, as well as of the approved modified memorandum of SPO Lantion and the special audit
report,23 has not been controverted. In fact, the petitioners have come to know of the resolution only
through daily newspapers accounts which chronicled the filing of the charges against them. 24 The
special audit report itself, upon which the resolution is based, has not been presented during the
preliminary investigation proper at the level of the Office of the Ombudsman for Visayas. The
Solicitor General, who has begged leave to be excused from filing a comment on the petitions, has
himself opined that the petitioners should have at least been furnished with the audit report, 25 since
the rules do grant to the petitioners the right to submit counter-affidavits and "controverting
evidence."26

Rule 114 67
The inevitable conclusion is that the petitioners were not only effectively denied the opportunity to
file a motion for reconsideration of the Ombudsman's final resolution but also deprived of their right
to a full preliminary investigation preparatory to the filing of the information against them.

It is true that a preliminary investigation is not an occasion for a full and exhaustive display of the
parties' evidence, being merely an inquiry to determine whether or not there is sufficient ground to
engender a founded belief that a crime has been committed and that the respondent is probably guilty
thereof.27 The right to such preliminary investigation, nevertheless, is still an indispensable element of
our criminal justice system that may not be treated lightly, let alone ignored. In Go. v. Court of
Appeals,28 the Court, speaking through Mr. Justice Florentino P. Feliciano, reiterated:

. . . . While that right is statutory rather than constitutional in its fundament, since it has in fact been
established by statute, it is a component part of due process in criminal justice. The right to have a
preliminary investigation conducted before being bound over to trial for a criminal offense and hence
formally at risk of incarceration or some other penalty, is not a mere formal or technical right; it is
a substantive right.

The incomplete preliminary investigation in this case, however, does not warrant the quashal of the
information, nor should it obliterate the proceedings already had. Neither is the court's jurisdiction nor
validity of an information adversely affected by deficiencies in the preliminary investigation. Instead,
the Sandiganbayan is to hold in abeyance any further proceedings therein and to remand the case to
the Office of the Ombudsman for the completion of the preliminary investigation, 29 the outcome of
which shall then be indorsed to Sandiganbayan for its appropriate action.

WHEREFORE, the two petitions for certiorari, prohibition and mandamus are hereby GRANTED.
The Sandiganbayan shall remand the case to the Office of the Ombudsman which shall proceed with
dispatch in the completion of the preliminary investigation of OMB-VIS-90-0631. The restraining
order issued by this Court on 05 September 1991 shall remain in force and effect until such time as
the preliminary investigation shall have been terminated and appropriate pleadings, conformably with
the findings of the Ombudsman, would have been submitted to the Sandiganbayan. Costs de oficio.

SO ORDERED.

EN BANC

[G.R. No. L-101. December 20, 1945.]

HAYDEE E HERRAS TEEHANKEE, Petitioner, v. LEOPOLDO ROVIRA, ANTONIO QUIRINO, and POMPEYO
DIAZ, Respondents.

Vicente J. Francisco, for Petitioner.

Respondent Judges, in their own behalf.

Rule 114 68
 SYLLABUS

1. CONSTITUTIONAL LAW; BAIL; ARTICLE III, SECTION 1(16), OF COMMONWEALTH CONSTITUTION REFERS TO ALL
PERSONS. Article III, section 1(16), of the Commonwealth Constitution refers to all persons, not only to persons against
whom a complaint or information has already been formally filed. It lays down the rule that all persons shall before
conviction be bailable except those charged with capital offenses when evidence of guilt is strong. In order that a person
can invoke this constitutional precept, it is not necessary that he should wait until a formal complaint or information is
filed against him. From the moment he is placed under arrest, detention or restraint by the officers of the law, he can
claim this guarantee of the Bill of Rights, and this right he retains unless and until he is charged with a capital offense and
evidence of his guilt is strong. Indeed, if, as admitted on all sides, the precept protects those already charged under a
formal complaint or information, there seems to be no legal or just reason for denying its benefits to one as against
whom the proper authorities may even yet conclude that there exists no sufficient evidence of guilt. To place the former
in a more favored position than the latter would be, to say the least, anomalous and absurd. If there is a presumption of
innocence in favor of one already formally charged with a criminal offense (Constitution, article III, section 1 [17]), a
fortiori, this presumption should be indulged in favor of one not yet so charged, although already arrested or detained.

2. ID.; ID.; HEARING IN PEOPLES COURT ON APPLICATION BY POLITICAL PRISONER OR DETAINEE FOR BAIL. Upon
application by a political prisoner or detainee to the Peoples Court for provisional release under bail, a hearing, summary
or otherwise, should be held with due notice to the Office of Special Prosecutors, as well as to the prisoner or detainee. It
will be remembered that section 22 of the Peoples Court Act subjects the prosecution, trial, and disposal of cases before
the Peoples Court to "existing laws and rules of court," unless otherwise expressly provided in said act. Consequently,
the hearing and disposal of applications for bail for provisional release before the Peoples Court should be governed by
existing laws and rules of court, the hearing and disposal of such applications being a mere part of the "prosecution, trial,
and disposal" of the corresponding cases before said court. If attention should be directed to the clause "unless
otherwise expressly provided herein" in said section 22, in connection with the firs proviso of section 19 of the same act,
it should be borne in mind that the provisions of said Act should be construed in harmony with those of the Constitution,
under the well settled rule of statutory construction that legislative enactments should be construed, wherever possible,
in a manner that would avoid their conflicting with the fundamental law.

3. ID.; ID.; ID.; PURPOSE OF HEARING. While it is true that the Solicitor General recommended Fifty Thousand Pesos
(P50,000) as a reasonable bail "on the strength of the evidence at hand," it may happen that thereafter his office may
have secured additional evidence which, in addition to or in connection with that he already possessed, in his opinion is
sufficiently strong to prove petitioners guilt for a capital offense, in which case, he may yet decide to oppose the
application for bail heretofore filed by the petitioner at the hearing thereof. Of course, it may also happen that, either
because no such further evidence has come into his possession or because, in his judgment, the public interest would be
better served by his withholding the evidence that he has until the trial in the merits, he would prefer not to oppose the
application for bail. At the hearing of the application the Solicitor General will be free to adopt one course or the other. If
he opposes, the burden of proof will be on him to show that petitioner is not entitled to bail. Petitioner will have the
right to offer evidence to prove her right thereto. In fine, the hearing is for the purpose of enabling the Peoples Court to
exercise its sound discretion as to whether or not under the Constitution and laws in force petitioner is entitled to
provisional release under bail.

HILADO, J.:

Petitioner Haydee Herras Teehankee is a political detainee delivered by the Counter Intelligence
Corps, United States Army, to the Commonwealth Government, pursuant to the Proclamation of
General of the Army Douglas MacArthur, dated December 29, 1944. She was one of the petitioners in
case No. L-44, "Raquiza vs. Bradford," of this court (p. 50, ante). She is now confined in the
Correctional Institution for Women under the custody of the Commonwealth Government since
October, 1945, when she was thus delivered to the said government.

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Under the date of October 2, 1945, petitioner, through her husband, Alberto Teehankee, filed with the
People's Court a petition wherein, invoking the provisions of Executive Order No. 65, promulgated by
His Excellency, the President of the Philippines, dated September 3, 1945, she prayed that her
immediate release be ordered on the ground that no evidence exists upon which she could be charged
with any act punishable by law, or, alternatively, that the People's Court fix the bail for her provisional
liberty, in conformity with the aforesaid executive order, and upon approval of such bail, that an order
be forthwith issued directing then officer having official custody of her person to immediately release
her.

On October 4, 1945, the Hon. Antonio Quirino, one of the Associate Judges of the People's Court,
upon considering the said petition, required the Solicitor General "to file his comment and
recommendation as soon as possible."

On October 5, 1945, the Solicitor General filed recommendation in compliance with said order,
stating: "that on the strength of the evidence at hand, the reasonable basil recommended for the
provisional release of the petitioner be fixed at Fifty Thousand Pesos (50,000)."

On October 9, 1945, the Hon. Leopoldo Rovira, Presiding Judge of the People's Court, entered an
order referring the petition for provisional release above mentioned for consideration by the Fifth
Division of said Court, but adding the following statement: "in my opinion, it should be denied
notwithstanding the recommendation of the Solicitor General for her provisional release under a bond
of Fifty Thousand Pesos (50,000)."

On the same date, October 9, 1945, the Hon. Pompeyo Diaz, Associate Judge of said Court, entered
an order disposing of said petition and denying the same "in view of the gravity of the offense as can
be deduced from the fact that the office of the Special Prosecutors recommends as high as Fifty
Thousand Pesos (50,000) for her provisional release."

A motion having been filed by petitioner with the People's Court praying said court to reconsider its
order of October 9, 1945, denying her petition for provisional release the Court, through Associate
Judge Pompeyo Diaz, denied said motion.

In her present petition for the writs of certiorari and mandamus originally filed with this Court on
October 19, 1945, petitioner avers that the above-mentioned Judges of the People's Court, in denying
her petition for provisional liberty under bail, as well as her motion for reconsideration, acted in
excess of jurisdiction and with grave abuse of discretion. Paragraph VII of this petition contains her
allegations in support of this charge.

Under the date of October 21, 1945, respondent Judge Pompeyo Diaz filed his answer stating that the
order denying bail "was issued under express mandate of the law", citing section 19 of
Commonwealth Act No. 682.

Article III, section 1 (16) of the Commonwealth Constitution provides that:

All persons shall before conviction be bailable by sufficient sureties, except those charged with capital
offenses when evidence of guilt is strong. Excessive bail shall not be required.

Rule 110 of the Rules of Court provides in the following sections:

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SEC. 3. Offenses less than capital before conviction by the Court of First Instance. After
judgement by a justice of the peace and before conviction by the court of First Instance, the defendant
shall be admitted to bail as of right.

SEC. 4. Noncapital offenses after conviction by the Court of First

Instance. After conviction by the Court of First Instance, defendant may, upon application, be
bailed at the discretion of the court.

SEC. 5. Capital offenses defined. A capital offense, as the term the time of its commission, and at
the time of the application to be admitted to bail, may be punished by death.

SEC. 6. Capital offense not bailable. No person in custody for the commission of a capital offense
shall be admitted to bail if the evidence of his guilt is strong.

SEC. 7. Capital offenses burden of proof. On the hearing of an application for admission to bail
made by any person who is in custody for the commission of a capital offense, the burden of showing
that evidence of guilt is strong is on the prosecution.lawphi1.net

SEC. 8. Notice of application to fiscal. When admission to bail is a matter of discretion, the court
must require that reasonable notice of the hearing of the application for bail be given to the fiscal.

Section 66 of General Orders, No. 58 stipulates:

When admission to bail is a matter of discretion, the court must require that reasonable notice of the
hearing of the application for bail be given to the promotor fiscal.

Section 19 of Commonwealth Act No. 682 contains the following proviso:

SEC. 19. . . . Provided, however, That existing provisions of law to the contrary notwithstanding, the
aforesaid political prisoners may, in the discretion of the People's Court, after due notice to the office
of Special Prosecutors and hearing, be released on bail, even prior to the presentation of the
corresponding information, unless the Court finds that there is strong evidence of the commission of a
capital offense. . . . .

Section 22 of Commonwealth Act No. 682 ordains:

SEC. 22. The prosecution, trial and disposal of cases before the People's Court shall be governed by
existing laws and rules of court, unless otherwise expressly provided herein . . . .

Against the petitioner herein no information had yet been presented when she filed her petition dated
October 2, 1945, containing the alternative prayer for the fixing of bail for her provisional liberty. She
there invokes Executive Order No. 65 of the President of the Philippines, date September 3, 1945. The
proviso above quoted from section 19 of the People's Court Act (Commonwealth At No. 682) also
existed in the statute books at the time.

The able arguments adduced on both sides have received the most careful consideration of the Court
as befits the importance of the questions involved. However, in the view we take of the case, a
majority of the Court are of opinion that the only question calling for decision at this time are: (1)

Rule 114 71
whether Article III, section 1 (16) of the Commonwealth Constitution is applicable to the instant case;
(2) whether a hearing should be held of the application for bail with attendance of the petitioner and
the Solicitor General or the latter's representative; and (3) if so, what kind of hearing it should be.

1. As to the first question, we hold that Article III, section 1 (16) of the Commonwealth Constitution
is applicable to the instant case. This Constitutional mandate refers to all persons, not only to persons
against whom a complaint or information has already been formally filed. It lays down the rule that all
persons shall before conviction be bailable except those charged with capital offenses when evidence
of guilt is strong. According to this provision, the general rule is that any person, before being
convicted of any criminal offense, shall be bailable, except when he is charged with a capital offense
and the evidence of his guilt is strong. Of course, only those persons who have been either arrested,
detained or otherwise deprived of their liberty will ever have occasion to seek the benefits of said
provision. But in order that a person can invoke this constitutional precept, it is not necessary that he
should wait until a formal complaint or information is filed against him. From the moment he is
placed under arrest, detention or restraint by the officers of the law, he can claim this guarantee of the
Bill of Rights, and this right he retains unless and until he is charged with a capital offense and
evidence of his guilt is strong. Indeed if, as admitted on all sides, the precept protects those already
charged under a formal complaint or information, there seems to be no legal or just reason for denying
its benefits to one as against whom the proper authorities may even yet conclude that there exists no
sufficient evidence of guilt. To place the former in a more favored position than the latter would be, to
say the least, anomalous and absurd. If there is a presumption of innocence in favor of one already
formally charged with criminal offense (Constitution, Article III, section 1[17], a fortiori, this
presumption should be indulged in favor of one not yet so charged, although already arrested or
detained.

In Cooleys Constitutional Limitations, 7th edition, pages 436-438, we read the following:

Perhaps the most important of the protections to personal liberty consists in the mode of trial which is
secured to every person accused of crime. At the common law, accusations of felony were made in the
form of an indictment by a grand jury; and this process is still retained in many of the States, while
others have substituted in its stead an information filed by the prosecuting officer of the State or
county. The mode of investigating the facts, however, is the same in all; and this is through a trial by
jury, surrounded by certain safeguards which are a well-understood part of the system, and which the
government cannot dispense with.

First, we may mention that the humanity of our law always presumes an accused party innocent until
he is proved to be guilty. This is a presumption which attends all the proceedings against him, from
their initiation until they result in a verdict, which either finds the party guilty or converts the
presumption of innocence into an adjudged fact.

If there were any mode short of confinement which would, with reasonable certainty, insure the
attendance of the accused to answer the accusation, it would not be justifiable to inflict upon him that
indignity, when the effect is to subject him, in a greater or less degree, to the punishment of a guilty
person, while as yet it is not determined that he has committed any crime. If the punishment on
conviction cannot exceed in severity the forfeiture of a large sum of money, then it is reasonable to
suppose that such a sum of money, or an agreement by responsible parties to pay it to the government
in case the accused should fail to appear, would be sufficient security for his attendance; and
therefore, at the common law, it was customary to take security of this character in all cases of

Rule 114 72
misdemeanor; one or more friends of the accused undertaking for his appearance for trial, and
agreeing that a certain sum of money should be levied of their goods and chattels, lands and
tenements, if he made default. But in the case of felonies, the privilege of giving bail before trial was
not a matter of right; and in this country, although the criminal code is much more merciful than it
formerly was in England, and in some cases the allowance of bail is almost a matter of course, there
are others in which it is discretionary with the magistrate to allow it or not, and where it will
sometimes be refused if the evidence of guilty is strong or the presumption great. Capital offenses are
not generally regarded as bailable; at least, after indictment, or when the party is charged by the
finding of a coroner's jury; . . . ."

All the Justice Cooley says in the foregoing quotations regarding the humanity of the law in his
jurisdiction and its presumption that an accused party is innocent until he is proved to be guilty, is
distinctly true also in ours where the constitutional, statutory, and reglementary provisions on the
point have been borrowed from America. The same should be said of what he says regarding the
granting of bail for provisional liberty before conviction, and even after, in exceptional cases, of
course, always subject to the limitation established by our own Constitutional, laws and rules of court.
From the last part of said quotation it follows, firstly, that before indictment or charge by the corner's
jury, in the jurisdiction to which the author refers, there may be cases in which even a capital offense
is bailable, and, secondly, that even after indictment or the finding of a corner's jury in these
jurisdictions, there may be exceptional cases where a capital offense is still bailable. Under our
Constitution, as we have seen, all offenses are bailable before conviction except capital offenses when
evidence of guilt is strong. In consonance with this constitutional provision, section 3 of Rule 110 of
the Rules of Court stipulates that non-capital offenses before conviction by the Court of First Instance
shall be bailable as of right; section 4 of the same Rule provides that after conviction by the Court of
First Instance such offense may, upon application, be bailable at the discretion of the court; and
section 6 of the said Rule provides that "no person in custody for the commission of a capital offense
shall be admitted to bail if the evidence of his guilt is strong."

By the common law, all offenses including treason, murder, and other felonies, were bailable before
indictment found, although the granting or refusing of such bail in case of capital offenses was a
matter within the discretion of the court. (6 C. J., 953; emphasis supplied.)

2. As to the second question, we hold that upon application by a political prisoner or detainee to the
People's Court for provisional release under bail, a hearing, summary or otherwise, should be held
with due notice to the Office of Special Prosecutors, as well as to the prisoner or detainee. It will be
remembered that section 22 of the People's Court Act subjects the prosecution, trial, and disposal of
cases before the People's Court to existing laws and rules of court," unless otherwise expressly
provide in said act. Consequently, the hearing and disposal of application for bail for provisional
release before the People's Court should be governed by existing laws and rules of court, the hearing
and disposal of such applications being a mere part of the "prosecution, trial, and disposal" of the
corresponding cases before said court. If attention should be directed to the clause "unless otherwise
expressly provided herein " in said section 22, in connection with the first proviso of section 19 of the
same act, it should be borne in mind that the provisions of said act should be construed in harmony
with those of the Constitution, under the well-settled rule of the statutory construction that legislative
enactments should be construed, wherever possible, in manner that would avoid their conflicting with
the fundamental law.

Rule 114 73
3. As to the third question. While it is true that the Solicitor General on October 3, 1945,
recommended Fifty Thousand Pesos (P50,000) as a reasonable bail "on the strength of the evidence at
hand," it may happen that thereafter his office may have secured additional evidence which in
addition to or in connection with the already possessed, in his opinion is sufficiently strong to prove
petitioner's guilt for a capital offense, in which case, he may yet decide to oppose the application for
bail heretofore filed by petitioner at the hearing thereof hereinafter ordered. It will be remembered
that petitioner, while under the custody of the Counter Intelligence Corps, United States Army, was
charged with (a) "Active Collaboration with the Japanese" and (b) "Previous Association with the
enemy" (Raquiza vs. Bradford, p. 50, ante). Under the definition of the treason in the Revised Penal
Code, active collaboration with the Japanese and association with them during the war in the
Philippines may constitute treason, a capital offense.

ART. 114. Any person who, owing allegiance to the United States or the Government of the
Philippine Islands, not being a foreigner, . . . adheres to their enemies, giving them aid or comfort
within the Philippine Islands or elsewhere, shall be punished by reclusion temporal to death and shall
pay a fine not to exceed 20,000 pesos. (Revised Penal Code.)

Of course, it may also happen that either because no such further evidence has come into his
possession or because, in his judgement, the public interest would be better served by him
withholding the evidence that he has until the trial in the merits, he would prefer not to oppose the
application for bail. At the hearing of the application the Solicitor General will be free to adopt one
course or the other. If he opposes, the burden of proof will be on him to show the petitioner is not
entitled to bail. Petitioner will have the right to offer evidence to prove her right thereto. In fine, the
hearing is for the purpose of enabling the People's Court to exercise its sound discretion as to whether
or not under the Constitution and laws in force petitioner is entitled to provisional release under bail.

WHEREFORE, it is the judgement of this Court that: (a) the order of the People's Court, dated
October 9, 1945, denying petitioner's petition for provisional release under bail, and the order of said
Court, dated October 13, 1945, denying petitioner's motion for reconsideration of said order of
October 9, 1945, which we declare to have been entered with grave abuse of discretion, be set aside;
and (b) that for the proper application of the pertinent constitutional, statutory, and reglementary
provisions alluded to in the body of this decision, a hearing of the petitioner's application for bail be
held before the People's Court with due notice to the Solicitor General, as well as to the petitioner, as
hereinabove outlined, said hearing, whether summary or otherwise, to be such as would enable the
People's Court to exercise its sound discretion in the disposal of the aforesaid petition. Without costs.
So ordered.

Separate Opinions

OZAETA, PARAS, and PERFECTO, JJ., concurring and dissenting:

We concur in the opinion prepared by Mr. Justice Hilado in so far as it holds that subsections (16) and
(17), section 1 Article III of the Constitution a are applicable to the instant case; and that the Rules of
Court, particularly sections 3 to 8 of Rule 110, govern the procedure in the People's Court as to
applications for bail under the first proviso of section 19 of Commonwealth Act No. 682.

But we are constrained to dissent from said opinion and its dispositive part in so far as the Court fails
to enforce and give practical effect to the said constitutional provisions in the present case, with the

Rule 114 74
lamentable result that the herein petitioner, who has been confined in prison for about ten months
without any formal charge having been filed against her, but who under said constitutional provisions
and the Rules of court cited is clearly entitled to be forthwith released on bail, will have to undergo
further unnecessary delay to secure her provisional liberty.

We shall briefly express our conception of the force and effect of the mandatory provision of the
Constitution on the admission to bail of all persons before conviction as applied to the undisputed
facts of the is case:

The main question involved herein is the interpretation of the second proviso of section 19 of
Commonwealth Act No. 682, which reads as follows:

Provided, however, That existing provisions of law to the contrary notwithstanding, the aforesaid
political prisoners may, in the discretion of the People's Court, after due notice to the Office of Special
Prosecutors and hearing, be released on bail, even prior to the presentation of the corresponding
information, unless the Court finds there is strong evidence of the commission of a capital offense.

This statutory provision must be construed congruently with the provision of the Constitution and in
harmony with the existing laws on the subject, particularly sections 3 to 8 Rule 110 of the Rules of
Court. b

Subsection (16), section 1 of Article III of the Constitution provides as follows:

(16) All persons shall before conviction be bailable by sufficient sureties, except those charged with
capital offense when evidence of guilt is strong. Excessive bail shall not be required.

Rule 110 of the Rules of the Court contains the following provisions:

SEC. 3. Offense less than capital before conviction of the Court of First Instance. After judgement
by a justice of the peace and before conviction by the Court of First Instance, the defendant shall be
admitted to bail as of right.

SEC. 4. Noncapital offenses after conviction by the Court of First

Instance. After conviction by the Court of First Instance, defendant may upon application, be
bailed at the discretion of the court.

SEC. 5. Capital offenses defined. A capital offense, as the term is used in this rule, is an offense
which, under the law existing at the time of its commission, and at the time of the application to be
admitted to bail, may be punished by death.

SEC. 6. Capital offense not bailable. No person in custody for the commission of a capital offense
shall be admitted to bail if the evidence of his guilt is strong.

SEC. 7. Capital offense burden of proof. On the hearing of an application for admission to bail
made by any person who is in custody for the commission of a capital offense, the burden of showing
that evidence of guilt is strong is on the prosecution.

Rule 114 75
SEC. 8. Notice of application to fiscal. When admission to bail is a matter of discretion, the court
must require that the reasonable notice of the hearing of the application for bail be given to the fiscal.

In accordance with section 2 of said Commonwealth Act No. 682, the political prisoners subject to the
jurisdiction of the People's Court may be accused of any of the crime against national security, to wit,
(1) treason, (2) conspiracy and proposal to commit treason, (3) misprision of treason, (4) espionage,
(5) inciting to war or giving motives for reprisals, (6) violation of neutrality, (7) correspondence with
hostile country, and (8) flight to enemy's country. (SeeTitle One, Book Two, Revised Penal Code,
entitled "Crimes Against National Security." under which are found articles 114-121, penalizing the
specific crimes just mentioned.) Of these eight crimes only the first treason is a capital offense;
none of the seven others is punishable with death.

Under the constitutional provision and the rules of Court above quoted, admission to bail before
conviction of all persons not charged with capital offenses is mandatory and not discretionary with the
court; they "shall be admitted to bail as of right." No statute can in any manner impair that
constitutional right. Therefore, the proviso in question to the effect that the political prisoners may, in
the discretion of the People's Court, after due notice to the Office of Special Prosecutors and hearing,
be released on bail, even prior to the presentation of the corresponding information, unless the court
finds that there is strong evidence of the commission of a capital offense, can only be construed to
refer to such political prisoners as may be actually or prospectively charged with a capital offense;
because if that statutory provision be construed to include political prisoners not charged or
chargeable with a capital offense, it would be unconstitutional, since under the Constitution such
political prisoners before conviction are entitled to bail as of right and not in the discretion of the
court. c

Let us cite a concrete example. A political prisoner is charged or chargeable only with the simple
crime of espionage, which is punishable with prision correccional. He or she applies to the People's
Court for release on bail. The Solicitor General, upon being notified of the application, does not
oppose it but recommends a specific amount for the bail. Can it be successfully contended that such a
case is governed by the proviso in question and that the application for the bail has to be set for
hearing, after which the People's Court has the direction to deny it? No, because such a person under
the Constitution "shall before conviction be bailable by sufficient sureties." In such a case there is no
need for any hearing because there is no discretion to be exercised by the court on the matter. The
hearing mentioned in the proviso in question can only have for its purpose the determination of
whether or not "there is strong evidence of the commission of a capital offense." Therefore, when
there is no claim on the part of the Solicitor General that the applicant for bail is charged or
chargeable with a capital offense, there is no necessity for any hearing.

Under the provision of law then it may be asked may the People's Court admit such an applicant
to bail? Under section 3 Rule 110 of the Rules of Court, which provides that before conviction by the
Court of First Instance (the People's Court in such a case takes the place of the Court of First
Instance), "the defendant shall be admitted to bail as of right ." Section 22 of the People's Court Law
provides that "the prosecution, trial and disposal of cases before the People's Court shall be governed
by existing laws and rules of court, unless otherwise expressly provided herein." The "otherwise" does
not apply to the hypothetical case at hand because, as we have shown, the proviso in question cannot
be applied to noncapital offenses without violating the Constitution.

Rule 114 76
What then is disposing procedure to be followed by the People's Court in disposing of applications for
bail? In accordance with the constitutional and statutory provisions above quoted, all of which must
be harmonized and applied, the procedure should be as follows:

As soon as the application is led the People's Court shall notify the Solicitor General thereof. If
according to the proofs in the possession of the Solicitor General the applicant has been or may be
charged with a capital offense, he shall immediately either oppose the application or agree to it and
recommend the amount of the bail bond, depending upon whether or not his proofs against the
applicant are strong. If he opposes the application, the People's Court shall immediately set it for a
summary hearing with the presence of both parties for the sole purpose of determining whether or not
there is strong evidence of the commission of a capital offense. If there is, the court must deny the
application; if there is not, it must grant it. Therein lies the court's discretion to grant or deny the bail
in the appreciation of the evidence. If the Solicitor General does not oppose the application, either
because the applicant is not chargeable with a capital offense or because he is not yet in a position to
determine whether or not the applicant is chargeable with a capital offense or because even if the
applicant has been or may be charged with a capital offense the evidence he has at hand is not strong,
there is no necessity for a hearing because there is no issue to be litigated and determined. In that case
the only discretion to be exercised by the court lies in the fixing of the amount of the bail bond, taking
into consideration the recommendation of the Solicitor General and the constitutional mandate that
"excessive bail shall not be required."

In the instant case the Solicitor General, upon being notified of the petitioner's application for bail, did
not oppose said application but recommended that the bail bond be fixed at P50,000. The Solicitor
General is a responsible high officer of the Government having the same rank as Under Secretary of
Justice. Under the People's Court Law he is the head of the Office of Special Prosecutors, charged
with the heavy and delicate responsibility of prosecuting the political prisoners mentioned in sections
2 and 19 of the People's Court Law. We see no reason or justification whatsoever to distrust and
disregarded his recommendation. We have every reason to believe that he knows his duty in the
premises under the Constitution and the existing laws, and that he has acted in accordance therewith.
It is therefore to be presumed that when he did not oppose the petitioner's application for bail but on
the contrary agreed thereto by recommending the amount of the bail bond, it was either because the
petitioner was not chargeable with a capital offense or because the Solicitor General was not yet in a
position to determine whether or not she was chargeable with a capital offense or because even if she
were so chargeable the evidence he had at hand was not strong. Moreover, in failing to oppose the
application and recommending that it be granted, the Solicitor General was undoubtedly, and properly,
guided by the consideration that after all, even if the applicant should be provisionally released on
bail, he would have a perfect right to move for its cancellation and for her rearrest if he should find
later that there is strong evidence against her of the commission of a capital offense and he should
decide to charge her therewith. We find therefore that the Solicitor General has acted strictly in
accordance with law, equity, and justice. It is unfair to him to compel him to disclose whatever
evidence he may have in his possession at this stage of the case by ordering a hearing on the
application for bail in spite of his nonopposition thereto and his recommendation that it be granted;
and it is unjust to the petitioner, who has been confined in prison for about ten months without any
formal charge having filed against her, to further withhold from her the provisional liberty on bail to
which she is of right entitled under the Constitution and the existing laws.

Instead of firmly, fearlessly, and instantly applying the constitutional and statutory provisions, which
it admits are applicable, to the facts of the case as presented to us, the Court seems to waver,

Rule 114 77
speculating on possibilities, and would have the People's Court toy and dally with the detainer's
liberty. The Court says:

. . . While it is true that the Solicitor General on October 5, 1945, recommended Fifty Thousand Pesos
(50,000) as a reasonable bail "on the strength of the evidence at hand," it may happen that thereafter
his office may have secured additional evidence which, in addition to or in connection with that he
already possessed, in his opinion is sufficiently strong to prove petitioner's guilt for a capital offense,
in which case, he may yet decide to oppose the application for a bail heretofore filed by the petitioner
at the hearing thereof hereinafter ordered. . . . Of course, it may also happen that, either because no
such further evidence has come into his possession or because, in his judgement, the public interest
would be better served by his withholding the evidence that he has until the trial on the merits, he
would prefer not to oppose the application for bail. At the hearing of the application to the Solicitor
General will be free to adopt one course or the other. . . . .

Thus the only reason why the Court does not grant the petition outright is that it may happen that after
the Solicitor General had recommended the bail to the People's Court he might have secured
additional evidence which in his opinion is sufficiently strong to prove petitioner's guilt of a capital
offense, and he may yet decide to oppose the application for bail; that is to say, in such event he
should be given a chance to oppose the application for bail if he cared to reveal his evidence before
the trial on the merits. But why waver in deciding the case as presented and speculate on unforeseen
and unproven happenings when, after all, the release on bail before conviction is necessarily
provisional and not final? At any time that the Solicitor General can convince the court that he has
strong evidence of the commission of a capital offense by the petitioner, he may have her rearrested
and her bond cancelled.

The Court says that at the hearing of the application which it orders the People's Court to hold, the
Solicitor General will be free to adopt one course or the other meaning to oppose or not to oppose the
bail. It directs what the Solicitor General should do if he should oppose, but does not indicate what
People's Court should do if the Solicitor General should not oppose. In the dispositive part the Court
directs "that for the proper application of the pertinent constitutional, statutory and reglementary
provisions alluded to in the body of this decision, a hearing of petitioner's application for bail be held
before the People's Court with due notice to the Solicitor General, as well as to the petitioner, as
hereinabove outlined, said hearing, whether summary or otherwise, to be such as would enable the
People's Court to exercise its sound discretion in the disposal of the aforesaid petition." This seems to
indicate that whether or not the Solicitor General opposes the application a hearing should be held
for what purpose if there is no opposition, we do not know. In the body of the decision, from which
we have quoted above, it is stated that the Solicitor General may refer not to oppose the application
for bail ether because no further evidence has come into his possession or because in his judgement
the public interest would be better served by withholding the evidence he has until the trial on the
merits. Why order a hearing when the Solicitor General desires without his evidence and prefers no to
oppose the bail?

We fear that such apparent inconsistency and ambiguity will be productive of unnecessary disputes
and delays in the final disposition of the application for bail, which will probably necessitate another
recourse to this Court. In the meantime the detainee, whose constitutional right has been disregarded,
must continue to languish in jail.

Rule 114 78
On the threshold of our existence as an independent nation this Court ought to define its attitude
unequivocally and set a definite line of conduct to be followed in deciding such question of vital
importance as this, involving personal liberties. Our decision in this and similar cases will form a
weather-vane by which the people can see whether we are traveling on the path of freedom and
democracy or are wobbling in the direction of the opposite way of life. If we condone, tolerate, or
gloss over unlawful restraints or violations of personal liberties and other rights guaranteed and
protected by the Constitution, our profession of adherence to freedom and democracy would be
taunted as sheer mockery and undiluted hypocrisy, and we would not only disappoint the great nation
that initiated us in the democratic way of life but would also lose the respect of all liberty-loving
peoples.

We think that the decision of the Court in this case is another step in the wrong direction d. Like a
woman's first lapse of virtue, the first wrong step of the Court will easily be followed by another, and
the rights of the citizens enumerated in the Bill of Rights will gradually be whittled away until they
exist only in theory.

This dissent is intended as a warning against such a calamity. We deem it pertinent to quote in this
connection the noble words of Justice Jackson as United States Prosecutor of war crimes in Germany:

We must never forget that the record on which we judge these defendants today is the record on which
history will judge us tomorrow.

To pass these defendants a poisoned chalice is to put it to our own lips as well. We must summon such
detachment and intellectual integrity to our task that this trial will commend itself to posterity as
fulfilling humanity's aspiration to do justice.

Our conclusion is that upon the record of the case before us the petitioner is entitled to be released on
bail as of right under subsection (16), section 1, Article III of the Constitution and section 3 of Rule
110 of the Rules of Court, and that, therefore, there is no necessity to remand the case for further
proceedings.

DE JOYA, J., concurring:

I fully concur in the opinion prepared by Mr. Justice Hilado. The observance of the procedure outlined
in the decision which is nothing new (Payao vs. Lesaca, 63 Phil., 210, 214; Marcos vs. Judge of the
Court of First Instance of Ilocos Norte, G.R. No. 46490), will prevent any possible criticism of the
fairness and impartially of the court, which are absolutely essential to secure public confidence, which
may be undermine by a misapprehension of the true spirit of the law, due perhaps to impetuosity or
inexperience on the part of a particular judge. The political prisoners now under custody are entitled
to the same rights under the Constitution as those, actually accused of crimes.

Rule 114 79
 FIRST DIVISION

[G.R. No. L-1771. December 4, 1947.]

SY GUAN (alias LIM HONG), Petitioner, v. RAFAEL AMPARO, Judge of First Instance of Manila, Respondent.

Paredes, Gaw & Gonzales for Petitioner.

The respondent judge in his own behalf.

SYLLABUS

1. CERTIORARI; WHEN TO BE CONSIDERED AS MANDAMUS. When a petition for certiorari contains sufficient
allegations essential in a petition for mandamus, and the latter is the appropriate remedy, the Court will consider the
petition as one for mandamus.

2. CRIMINAL PROCEDURE; BAIL; PRIOR ABSCONDING AND FORFEITURE, EFFECT OF ON RIGHT TO BAIL. Where bail is a
matter of right and prior absconding and forfeiture is not excepted from such right bail must be allowed irrespective of
such circumstance. The existence of a high degree of probability that the defendant will abscond confers upon the court
no greater discretion than to increase the bond to such an amount as would reasonably tend to assure the presence of
the defendant when it is wanted, such amount to be subject, of course, to the constitutional provision that "excessive
bail shall not be required."

DECISION

TUASON, J.:

Sy Guan alias Lim Hong is under prosecution with two others for visiting an opium den. The case is now pending in the
Court of First Instance of Manila, to which the accused appealed from a sentence of one month and one day of
imprisonment imposed by the municipal court. Having failed to appear in the Court of First Instance when the cause was
called for trial, Sy Gunas bond, for P300, was ordered forfeited and a warrant for his arrest was issued. Upon being
rearrested, this prisoner offered to put up a new bond. The offer was rejected by the Honorable Rafael Amparo, Judge,
"in view of the fact that Sy Guan has heretofore jumped his bail."cralaw virtua1aw library

The upshot is the present petition for certiorari, alleging lack or excess of jurisdiction. The appropriate remedy is
mandamus, and, as the application contains sufficient allegations essential in a petition of this character, we shall
consider this proceeding as one to compel the respondent judge to admit the petitioner to bail.

The petitioner denies that he fled or avoided going to trial. He alleges misunderstanding on his part and change of
address as the cause of his nonappearance. The point is unimportant. Assuming for the sake of this case that the
petitioner purposely "jumped" his bail, that fact does not operate as a forfeiture of his right to temporary liberty. Except
where bail is a matter of right, irrespective of such circumstance the breach of a prior bond is a compelling reason for the
refusal of bail in the same cause. But where bail is a matter of right and prior absconding and forfeiture is not excepted
from such right bail must be allowed irrespective of such circumstance. (8 C. J. S., 77; Rowan v. Randolph, 268 Fed., 527.)

Bail before conviction is a constitutional right of an accused, except in prosecutions for capital offenses where the proof
of guilt is strong. (Article III, section 1, paragraph 16, Philippine Constitution.) Other than this, the Constitution makes no
exceptions. The existence of high degree of probability that the defendant will abscond confers upon the court no greater
discretion than to increase the bond to such an amount as would reasonably tend to assure the presence of the
defendant when it is wanted, such amount to be subject, of course, to the other provision of the same section and
paragraph cited, that excessive bail shall not be required."cralaw virtua1aw library

Rule 114 80
It is ordered that the petitioner be released upon filing a new bond with sufficient sureties, without special judgment as
to costs.

RIGHT TO BAIL
Q: What is bail?
A: Under the Rules of Court it is the security given for the release of a person in custody of the law,
furnished by him or a bondsman, to guarantee his appearance before any court as required under the
conditi ons prescribed under the rules (Sec. 1, Rule 114).

Q: What is the nature of the right to bail?

A: The right to bail is a consti tuti onal right which fl ows from the presumpti on of innocence in favor of
every accused who should not be subjected to the loss of freedom. Thus, the right to bail
only accrues when a person is arrested or deprived of his liberty. The right to bail presupposes that
the accused is under legal custody (Paderanga v. Court of Appeals, 247 ACRS 741)

Q: What are the purposes of bail?

a) To relieve an accused from the rigors of imprisonment unti l his convicti on and yet secure his
appearance at the trial (Almeda v. Villaluz GR No L31665, August 6, 1975);
b) To honor the presumpti on of innocence unti l his guilt is province beyond reasonable doubt;
c) To enable him to prepare his defense without being subjected to punishment prior to convicti on

Q: When is bail a matt er of right?

In the MTC, it is a matt er of right before or aft er convicti on, regardless of the off ense. In the RTC, GR:
it is a matt er of right before convicti on,

EXCEPTIONS : off enses punishable by death, reclusion perpetua, or life sentence and the evidence of
guilt is strong, in which case it is discreti onary.

Note: The prosecuti on cannot adduce evidence for the denial of bail where it is a matt er of right.
However where the grant of bail is discreti onary, the prosecuti on may show proof to deny the bail.

Q: When the accused is enti tled as a matt er of right to bail, may the court refuse to grant him bail
on the ground that there exists a high degree of probability that he will abscond or escape?

A: No. What the court can do is to increase the amount of bail. One of the guidelines that the judge
may use in fi xing a reasonable amount of bail is the probability of the accused appearing in trial. (Sy
Guan v. Amparo, G.R. No. L-1771, Dec. 4, 1947).
Q: When is bail a MATTER OF DISCRETION?

A: Bail is a matt er of discreti on

1. Upon convicti on by the RTC of an off ense not punishable by death, reclusion perpetua
imprisonment;

Rule 114 81
2. If or life the penalty of imprisonment exceeds six (6) years but not more than 20 years, bail shall
be denied upon a showing by the prosecuti on, with noti ce to the accused, of the following or
other similar circumstances:
That he is a recidivist, quasirecidivist or habitual delinquent , or has committ ed the crime
aggravated by the circumstance of reiterati on;

That he previously escaped from legal confi nement , evaded sentence, or has violated the
conditi ons of his bail without valid justi fi cati on;

That he committ ed the off ense while on probati on, parole, or under conditi onal pardon;
That the circumstances of his case indicate the probability of fl ight if released on bail; or
That there is undue risk that during the pendency of the appeal, he may commit another
crime (Sec. 5).

3. Regardless of the stage of the criminal prosecuti on, a person charged with a capital off ense, or an
off ense punishable by reclusion perpetua or life imprisonment, when EViDENCE OF GUILT IS NOT
STRONG (Sec. 7); and
4. Juvenile charged with an off ense punishable by death, reclusion perpetua or life imprisonment
evidence of guilt is strong (Sec. 17, A.M. No. 02-1-18-SC).

Q: What is the remedy of the accused when bail is discreti onary?

When bail is discreti onary, the remedy of the accused is to fi le a peti ti on for bail. Once a peti ti on for
bail is fi led, the court is mandated to set a hearing. The purpose of the hearing is to give opportunity
to the PROSECUTION TO PROVE that the evidence of guilt is strong. If STRONG, bail will be denied. If
WEAK, the bail will be granted.

Q: Who has the burden of proof in bail applicati ons ?

It is the prosecuti on who has the burden of showing that evidence of guilt is strong at the hearing of
an applicati on for bail fi led by a person who is charged for the commission of a capital off ense or
off ense punishable by reclusion perpetua or life imprisonment (Sec. 8, Rule 114).

Rule 114 82