cases (right to bail)

8/2/2019 Cases (Right to Bail)

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Republic of the PhilippinesSUPREME COURT

Manila

SECOND DIVISION

G.R. No. 115407 August 28, 1995

MIGUEL P. PADERANGA, petitioner,vs.COURT OF APPEALS and PEOPLE OF THE PHILIPPINES, respondents.

REGALADO, J.:

The adverse decision in this case promulgated by respondent Court of Appeals in CA-G.R. SPNo. 32233 on November 24, 1993, as well as its resolution of April 26, 1994 denying themotion for reconsideration thereof, are challenged by petitioner Miguel P. Paderanga in thisappeal by certiorarithrough a petition which raises issues centering mainly on said petitioner'sright to be admitted to bail.

On January 28, 1990, petitioner was belatedly charged in an amended information as a co-conspirator in the crime of multiple murder in Criminal Case No. 86-39 of the Regional TrialCourt, Branch 18 of Cagayan de Oro City for the killing of members of the Bucag familysometime in 1984 in Gingoog City of which petitioner was the mayor at the time. The originalinformation, filed on October 6, 1986 with the Regional Trial Court of Gingoog City, 1hadinitially indicted for multiple murder eight accused suspect, namely, Felipe Galarion, Manuel

Sabit, Cesar Sabit, Julito Ampo, Eddie Torion, John Doe, Peter Doe And Richard Doe as thealleged conspirators in the indiscriminate slaying of the spouses Romeo and Juliet Bucag andtheir son, Romeo, Jr. However, only one of the accused, Felipe Galarion, was apprehended,tried and eventually convicted. Galarion later escaped from prison. The others have remainedat large up to the present. 2

In a bizarre twist of events, one Felizardo ("Ely") Roxas was implicated in the crime. In anamended information dated October 6, 1988, he was charged as a co-accused therein. Asherein petitioner was his former employer and thus knew him well, Roxas engaged theformer's services as counsel in said case. Ironically, in the course of the preliminaryinvestigation therein, said accused, in a signed affidavit dated March 30, 1989 but which helater retracted on June 20, 1990, implicated petitioner as the supposed mastermind behind themassacre of the Bucag family. 3

Then, upon the inhibition of the City Prosecutor of Cagayan de Oro City from the case per hisresolution of July 7, 1989, the Department of Justice, at the instance of said prosecutor,designated a replacement, State Prosecutor Henrick F. Gingoyon, for purposes of both thepreliminary investigation and prosecution of Criminal Case No. 86-39. Pursuant to a resolutionof the new prosecutor dated September 6, 1989, petitioner was finally charged as a co-conspirator in said criminal case in a second amended information dated October 6, 1992.Petitioner assailed his inclusion therein as a co-accused all the way to this Court in G.R. No.


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96080 entitled "Atty. Miguel P. Paderanga vs. Hon. Franklin M. Drilon, Hon. Silvestre H. BelloIII, Atty. Henrick F. Gingoyon, Helen B. Canoy and Rebecca B. Tan." In an en bancdecisionpromulgated on April 19, 1991, the Court sustained the filing of the second amendedinformation against him. 4

Under this backdrop, the trial of the base was all set to start with the issuance of an arrest

warrant for petitioner's apprehension but, before it could be served on him, petitioner throughcounsel, filed on October 28, 1992 a motion for admission to bail with the trial court which setthe same for hearing on November 5, 1992. Petitioner duly furnished copies of the motion toState Prosecutor Henrick F. Gingoyon, the Regional State Prosecutor's Office, and the privateprosecutor, Atty. Benjamin Guimong. On November 5, 1992, the trial court proceeded to hearthe application for bail. Four of petitioner's counsel appeared in court but only AssistantProsecutor Erlindo Abejo of the Regional State Prosecution's Office appeared for theprosecution.5

As petitioner was then confined at the Cagayan Capitol College General Hospital due to "acutecostochondritis," his counsel manifested that they were submitting custody over the person oftheir client to the local chapter president of the integrated Bar of the Philippines and that, for

purposes of said hearing of his bail application, he considered being in the custody of the law.Prosecutor Abejo, on the other hand, informed the trial court that in accordance with thedirective of the chief of their office, Regional State prosecutor Jesus Zozobrado, theprosecution was neither supporting nor opposing the application for bail and that they weresubmitting the same to the sound discretion of the trail judge. 6

Upon further inquiries from the trial court, Prosecutor Abejo announced that he was waivingany further presentation of evidence. On that note and in a resolution dated November 5,1992, the trial court admitted petitioner to bail in the amount of P200,000.00. The followingday, November 6, 1992, petitioner, apparently still weak but well enough to travel by then,managed to personally appear before the clerk of court of the trial court and posted bail in theamount thus fixed. He was thereafter arraigned and in the trial that ensued, he also personallyappeared and attended all the scheduled court hearings of the case. 7

The subsequent motion for reconsideration of said resolution filed twenty (20) days later on November26, 1992 by Prosecutor Gingoyon who allegedly received his copy of the petition for admission to bailon the day after the hearing, was denied by the trial court in its omnibus order dated March 29, 1993.On October 1, 1993, or more than six (6) months later, Prosecutor Gingoyon elevated the matter torespondent Court of Appeals through a special civil action forcertiorari. Thus were the resolution andthe order of the trial court granting bail to petitioner annulled on November 24, 1993, in the decisionnow under review, on the ground that they were tainted with grave abuse of discretion. 8

Respondent court observed in its decision that at the time of petitioner's application for bail, hewas not yet "in the custody of the law," apparently because he filed his motion for admission tobail before he was actually arrested or had voluntarily surrendered. It further noted that apart

from the circumstance that petitioner was charged with a crime punishable by reclusionperpetua, the evidence of guilt was strong as borne out by the fact that no bail wasrecommended by the prosecution, for which reasons it held that the grant of bail was doublyimprovident. Lastly, the prosecution, according to respondent court, was not afforded anopportunity to oppose petitioner's application for bail contrary to the requirements of dueprocess. Hence, this appeal.

Petitioner argues that, in accordance with the ruling of this Court in Santiago vs. Vasquezetc., et al., 9his filing of the aforesaid application for bail with the trial court effectively conferred


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on the latter jurisdiction over his person. In short, for all intents and purposes, he was in thecustody of the law. In petitioner's words, the "invocation by the accused of the court's

jurisdiction by filing a pleading in court is sufficient to vest the court with jurisdiction over theperson of the accused and bring him within the custody of the law."

Petitioner goes on to contend that the evidence on record negates the existence of such strong

evidence as would bar his provisional release on bail. Furthermore, the prosecution, by reasonof the waiver by Prosecutor Abejo of any further presentation of evidence to oppose theapplication for bail and whose representation in court in behalf of the prosecution bound thelatter, cannot legally assert any claim to a denial of procedural due process. Finally, petitionerpoints out that the special civil action forcertiorariwas filed in respondent court after anunjustifiable length of time.

On the undisputed facts , the legal principles applicable and the equities involved in this case,the Court finds for petitioner.

1. Section 1 of Rule 114, as amended, defines bail as the security given for the release of aperson in custody of the law, furnished by him or a bondsman, conditioned upon his appearing

before any court as required under the conditions specified in said Rule. Its main purpose,then, is to relieve an accused from the rigors of imprisonment until his conviction and yetsecure his appearance at the trial. 10As bail is intended to obtain or secure one's provisionalliberty, the same cannot be posted before custody over him has been acquired by the judicialauthorities, either by his lawful arrest or voluntary surrender. 11As this Court has put it in a case"it would be incongruous to grant bail to one who is free." 12

The rationale behind the rule is that it discourages and prevents resort to the former perniciouspractice whereby an accused could just send another in his stead to post his bail, withoutrecognizing the jurisdiction of the court by his personal appearance therein and compliancewith the requirements therefor. 13Thus, inFeliciano vs. Pasicolan, etc., et al., 14where thepetitioner who had been charged with kidnapping with murder went into hiding withoutsurrendering himself, and shortly thereafter filed a motion asking the court to fix the amount of

the bail bond for his release pending trial, the Supreme Court categorically pronounced thatsaid petitioner was not eligible for admission to bail.

As a paramount requisite then, only those persons who have either been arrested, detained, orother wise deprived of their freedom will ever have occasion to seek the protective mantleextended by the right to bail. The person seeking his provisional release under the auspices ofbail need not even wait for a formal complaint or information to be filed against him as it isavailable to "all persons" 15where the offense is bailable. The rule is, of course, subject to thecondition or limitation that the applicant is in the custody of the law. 16

On the other hand, a person is considered to be in the custody of the law (a) when he isarrested either by virtue of a warrant of arrest issued pursuant to Section 6, Rule 112, or by

warrantless arrest under Section 5, Rule 113 in relation to Section 7, Rule 112 of the revisedRules on Criminal Procedure, or (b) when he has voluntarily submitted himself to the

jurisdiction of the court by surrendering to the proper authorities. 17in this light, the ruling, vis-a-vis the facts in Santiago vs. Vasquez, etc., et al., 18 should be explained.

In said case, the petitioner who was charged before the Sandiganbayan for violation of theAnti-Graft and Corrupt Practices Act, filed through counsel what purported to be an"Urgent Ex-parte Motion for Acceptance of Cash Bail Bond." Said petitioner was at the timeconfined in a hospital recuperating from serious physical injuries which she sustained in a


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major vehicular mishap. Consequently, she expressly sought leave "that she be considered ashaving placed herself under the jurisdiction of (the Sandiganbayan) for purposes of therequired trial and other proceedings." On the basis of said ex-partemotion and the peculiarcircumstances obtaining in that incident, the Sandiganbayan authorized petitioner to post acash bail bond for her provisional liberty without need of her personal appearance in view ofher physical incapacity and as a matter of humane consideration.

When the Sandiganbayan later issued a hold departure order against her, she question thejurisdiction of that court over her person in a recourse before this Court, on the ground that"she neither been arrested nor has she voluntarily surrendered, aside from the fact that shehas not validly posted bail since she never personally appeared before said court" In rejectingher arguments, the Court held that she was clearly estopped from assailing the jurisdiction ofthe Sandiganbayan for by her own representations in the urgentex parte motion for bail shehad earlier recognized such jurisdiction. Furthermore, by actually posting a cash bail wasaccepted by the court, she had effectively submitted to its jurisdiction over her person.Nonetheless, on the matter of bail, the Court took pains to reiterate that the same cannot beposted before custody of the accused has been acquired by the judicial authorities either byhis arrest or voluntary surrender.

In the case of herein petitioner, it may be conceded that he had indeed filed his motion foradmission to bail before he was actually and physically placed under arrest. He may, however,at that point and in the factual ambience therefore, be considered as being constructively andlegally under custody. Thus in the likewise peculiar circumstance which attended the filing ofhis bail application with the trail court, for purposes of the hearing thereof he should bedeemed to have voluntarily submitted his person to the custody of the law and, necessarily, tothe jurisdiction of the trial court which thereafter granted bail as prayed for. In fact, an arrest ismade either by actual restraint of the arrestee or merely by his submission to the custodyofthe person making the arrest. 19The latter mode may be exemplified by the so-called "housearrest" or, in case of military offenders, by being "confined to quarters" or restricted to themilitary camp area.

It should be stressed herein that petitioner, through his counsel, emphatically made it known tothe prosecution and to the trail court during the hearing for bail that he could not personallyappear as he was then confined at the nearby Cagayan Capitol College General Hospital foracute costochondritis, and could not then obtain medical clearance to leave the hospital. Theprosecution and the trial court, notwithstanding their explicit knowledge of the specificwhereabouts of petitioner, never lifted a finger to have the arrest warrant duly served uponhim. Certainly, it would have taken but the slightest effort to place petitioner in the physicalcustody of the authorities, since he was then incapacitated and under medication in a hospitalbed just over a kilometer away, by simply ordering his confinement or placing him under guard.

The undeniable fact is that petitioner was by then in the constructive custody of the law.Apparently, both the trial court and the prosecutors agreed on that point since they never

attempted to have him physically restrained. Through his lawyers, he expressly submitted tophysical and legal control over his person, firstly, by filing the application for bail with the trailcourt; secondly, by furnishing true information of his actual whereabouts; and, moreimportantly, by unequivocally recognizing the jurisdiction of the said court. Moreover, when itcame to his knowledge that a warrant for his arrest had been issued, petitioner never madeany attempt or evinced any intent to evade the clutches of the law or concealed hiswhereabouts from the authorities since the day he was charged in court, up to the submissionapplication for bail, and until the day of the hearing thereof.


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At the hearing, his counsel offered proof of his actual confinement at the hospital on account ofan acute ailment, which facts were not at all contested as they were easily verifiable. And, as amanifestation of his good faith and of his actual recognition of the authority of trial court,petitioner's counsel readily informed the court that they were surrendering custody of petitionerto the president of the Integrated Bar of the Philippines, Misamis Oriental Chapter. 20In otherwords, the motion for admission to bail was filed not for the purpose or in the manner of the

former practice which the law proscribes for the being derogatory of the authority andjurisdiction of the courts, as what had happened in Feliciano.There was here no intent orstrategy employed to obtain bail in absentia and thereby be able to avoid arrest should theapplication therefore be denied.

2. Section 13, Article III of the Constitution lays down the rule that before conviction, all indictees shallbe allowed bail, except only those charged with offenses punishable by reclusion perpetua when theevidence of guilt is strong. In pursuance thereof, Section 4 of Rule 114, as amended, now providesthat all persons in custody shall, before conviction by a regional trial court of an offense not punishableby death, reclusion perpetua or life imprisonment, be admitted to bail as a matter of right. The right tobail, which may be waived considering its personal nature 21 and which, to repeat, arises from the timeone is placed in the custody of the law, springs from the presumption of innocence accorded everyaccused upon whom should not be inflicted incarceration at the outset since after trial he would beentitled to acquittal, unless his guilt be established beyond reasonable doubt. 22

Thus, the general rule is that prior to conviction by the regional trial court of a criminal offense, anaccused is entitled to be released on bail as a matter of right, the present exceptions thereto being theinstances where the accused is charged with a capital offense or an offense punishable by reclusion

perpetua or life imprisonment 23and the evidence of guilt is strong. Under said general rule, upon properapplication for admission to bail, the court having custody of the accused should, as a matter ofcourse, grant the same after a hearing conducted to specifically determine the conditions of the bail inaccordance with Section 6 (now, Section 2) of Rule 114. On the other hand, as the grant of bailbecomes a matter of judicial discretion on the part of the court under the exceptions to the rule, ahearing, mandatory in nature and which should be summary or otherwise in the discretion of thecourt, 24is required with the participation of both the defense and a duly notified representative of the

prosecution, this time to ascertain whether or not the evidence of guilt is strong for the provisionalliberty of the applicant. 25Of course, the burden of proof is on the prosecution to show that the evidencemeets the required quantum. 26

Where such a hearing is set upon proper motion or petition, the prosecution must be give anopportunity to present, within a reasonable time, all the evidence that it may want to introduce beforethe court may resolve the application, since it is equally entitled as the accused to due process. 27If theprosecution is denied this opportunity, there would be a denial of procedural due process, as aconsequence of which the court's order in respect of the motion or petition is void. 28At the hearing, thepetitioner can rightfully cross-examine the witnesses presented by the prosecution and introduce hisown evidence in rebuttal. 29When, eventually, the court issues an order either granting or refusing bail,the same should contain a summary of the evidence for the prosecution, followed by its conclusion asto whether or not the evidence of guilt is strong. 30The court, though, cannot rely on mere affidavits orrecitals of their contents, if timely objected to, for these represent only hearsay evidence, and thus areinsufficient to establish the quantum of evidence that the law requires. 31

In this appeal, the prosecution assails what it considers to be a violation of procedural due processwhen the court below allowed Assistant Prosecutor Erlindo Abejo of the Regional State Prosecutor'sOffice to appear in behalf of the prosecution, instead of State Prosecutor Henrick P. Gingoyon who isclaimed to be the sole government prosecutor expressly authorized to handle the case and whoreceived his copy of the motion only on the day after the hearing had been conducted. Accordingly, the


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prosecution now insists that Prosecutor Abejo had no authority at all to waive the presentation of anyfurther evidence in opposition to the application for bail and to submit the matter to the sounddiscretion of the trial court. In addition, they argue that the prosecution was not afforded "reasonabletime" to oppose that application for bail.

We disagree. Firstly, it is undisputed that the Office of the Regional State Prosecutor acted as the

collaborating counsel, with State Prosecutor Henrick Gingoyon, in Criminal Case No. 86-39 on thebasis of an authority from then Chief State Prosecutor Fernando de Leon which was sent through radiomessage on July 10, 1992 and duly received by the Office of the Regional State Prosecutor on thesame date. This authorization, which was to be continuing until and unless it was expressly withdrawn,was later confirmed and then withdrawn only on July 12, 1993 by then Secretary of Justice Franklin M.Drilon. This was done after one Rebecca Bucag-tan questioned the authority of Regional StateProsecutor Jesus Zozobrado and State Prosecutor II Erlindo Abejo to enter their appearance ascollaborating government prosecutors in said criminal case. 32It was in fact by virtue of thisarrangement that the same Prosecutor Zozobrado and Prosecutor Perseverando Arana entered theirappearance as collaborating prosecutor in the previous hearing in said case. 33Hence, on the strengthof said authority and of its receipt of the notice of the hearing for bail, the Regional State Prosecutor'sOffice, through Prosecutor Abejo, could validly represent the prosecution in the hearing held onNovember 5, 1992.

Secondly, although it is now claimed that Prosecutor Abejo was allegedly not familiar with thecase, he nonetheless was explicitly instructed about the position of the Regional StateProsecutor's Office on the matter. Prosecutor Zozobrado, whose office received its copy of themotion on the very day when it was sent, that is, October 28, 1992, duly instructed Prosecutor

Abejo to manifest to the court that the prosecution was neither supporting nor opposing theapplication for bail and that they were submitting the matter to its sound discretion. Obviously,what this meant was that the prosecution, at that particular posture of the case, was waivingthe presentation of any countervailing evidence. When the court a quo sought to ascertainwhether or not that was the real import of the submission by Prosecutor Abejo, the latterreadily answered in the affirmative.

The following exchanges bear this out:

PROSECUTOR ERLINDO ABEJO:

I was informed to appear in this case just now Your Honor.

COURT:

Where is your Chief of Office? Your office received a copy of themotion as early as October 28. There is an element of urgency here.

PROSECUTOR ABEJO:

I am not aware of that, Your Honor, I was only informed just now. Theone assigned here is State Prosecutor Perseverando Arena, Jr. whounfortunately is in the hospital attending to his sick son. I do not knowabout this but before I came I received an instruction from our Chief torelay to this court the stand of the office regarding the motion to admitbail. That office is neither supporting nor opposing it and we aresubmitting to the sound discretion of the Honorable Court.


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COURT:

Place that manifestation on record. For the record, Fiscal Abejo, wouldyou like to formally enter your appearance in this matter?

PROSECUTOR ABEJO:

Yes, Your Honor. For the government, the Regional State Prosecutor'sOffice represented by State Prosecutor Erlindo Abejo.

COURT:

By that manifestation do you want the Court to understand that ineffect, at least, the prosecution is dispensing with the presentation ofevidence to show that the guilt of the accused is strong, the denial . . .

PROSECUTOR ABEJO:

I am amenable to that manifestation, Your Honor.

COURT:

Final inquiry. Is the Prosecution willing to submit the incident coveredby this particular motion for resolution by this court?

PROSECUTOR ABEJO:

Yes, Your Honor.

COURT:

Without presenting any further evidence?

PROSECUTOR ABEJO:

Yes, Your Honor.34

It is further evident from the foregoing that the prosecution, on the instructions of RegionalState prosecutor Zozobrado, had no intention at all to oppose the motion for bail and thisshould be so notwithstanding the statement that they were "neither supporting nor opposing"the motion. What is of significance is the manifestation that the prosecution was "submitting(the motion) to the sound discretion of the Honorable Court." By that, it could not be anyclearer. The prosecution was dispensing with the introduction of evidence en contra and this itdid at the proper forum and stage of the proceedings, that is, during the mandatory hearing forbail and after the trial court had fully satisfied itself that such was the position of theprosecution.

3. In Herras Teehankee vs. Director of Prisons, 35it was stressed that where the trial court hasreasons to believe that the prosecutor's attitude of not opposing the application for bail is not

justified, as when he is evidently committing a gross error or a dereliction of duty, the court, in


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the interest of Justice, must inquire from the prosecutor concerned as the nature of hisevidence to determine whether or not it is strong. And, in the very recent administrativematterRe: First Indorsement Dated July 21, 1992 of Hon. Fernando de Leon, Chief StateProsecutor, Department of Justice; Alicia A. Baylon, City Prosecutor of Dagupan City vs.JudgeDeodoro Sison, 36the Court, citing Tucay vs. Domagas, etc.,37held that where the prosecutorinterposes no objection to the motion of the accused, the trial court should nevertheless set the

application for hearing and from there diligently ascertain from the prosecution whether thelatter is really not contesting the bail application.

No irregularity, in the context of procedural due process, could therefore be attributed to thetrial court here as regards its order granting bail to petitioner. A review of the transcript of thestenographic notes pertinent to its resolution of November 5, 1992 and the omnibus order ofMarch 29, 1993 abundantly reveals scrupulous adherence to procedural rules. As summarizedin its aforementioned order, the lower court exhausted all means to convince itself of thepropriety of the waiver of evidence on the part of the prosecution. Moreover, the omnibus ordercontained the requisite summary of the evidence of both the prosecution and the defense, andonly after sifting through them did the court conclude that petitioner could be provisionallyreleased on bail. Parenthetically, there is no showing that, since then and up to the present,petitioner has ever committed any violation of the conditions of his bail.

As to the contention that the prosecutor was not given the opportunity to present its evidencewithin a reasonable period of time, we hold otherwise. The records indicate that the RegionalState Prosecutor's Office duly received its copy of the application for bail on the very same daythat the it was filed with the trial court on October 28, 1992. Counted from said date up to theday of the hearing on November 5, 1992, the prosecution had more than one (1) week tomuster such evidence as it would have wanted to adduce in that hearing in opposition to themotion. Certainly, under the circumstances, that period was more than reasonable. The factthat Prosecutor Gingoyon received his copy of the application only on November 6, 1992 isbeside the point for, as already established, the Office of the Regional State Prosecutor wasauthorized to appear for the People.

4. What finally militates against the cause of the prosecutor is the indubitably unreasonableperiod of time that elapsed before it questioned before the respondent court the resolution andthe omnibus order of the trial court through a special civil action forcertiorari. The SolicitorGeneral submits that the delay of more than six (6) months, or one hundred eighty-four (184)days to be exact, was reasonable due to the attendant difficulties which characterized theprosecution of the criminal case against petitioner. But then, the certiorariproceeding wasinitiated before the respondent court long after trial on the merits of the case had ensued in thecourt below with the active participation of prosecution lawyers, including ProsecutorGingoyon. At any rate, the definitive rule now in that the special civil action forcertiorarishouldnot be instituted beyond a period of the three months, 38the same to be reckoned by taking intoaccount the duration of time that had expired from the commission of the acts complained toannul the same. 39

ACCORDINGLY, the judgment of respondent Court of Appeals in CA-G.R. SP No. 32233,promulgated on November 24, 1993, annulling the resolution dated November 5, 1992 and theomnibus order dated March 29, 1993 of the Regional Trial Court of Cagayan de Oro City, as well assaid respondent court's resolution of April 26, 1994 denying the motion for reconsideration of said

judgment, are hereby REVERSED and SET ASIDE. The aforesaid resolution and omnibus order of theRegional Trail Court granting bail to petitioner Miguel P. Paderanga are hereby REINSTATED.

SO ORDERED.


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Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

G.R. No. 79269 June 5, 1991

PEOPLE OF THE PHILIPPINES, petitioner,vs.HON. PROCORO J. DONATO, in his official capacity as Presiding Judge, Regional Trial Court,Branch XII, Manila; RODOLFO C. SALAS, alias Commander Bilog, respondents.

The Solicitor General for petitioner.

Jose Suarez, Romeo Capulong, Efren Mercado and Movement of Attorneys for Brotherhood, Integrity,

Nationalism, Inc. (MABINI) for Rodolfo Salas.

DAVIDE, JR., J.:p

The People of the Philippines, through the Chief State Prosecutor of the Department of Justice, theCity Fiscal of Manila and the Judge Advocate General, filed the instant petition forcertiorariandprohibition, with a prayer for restraining order/preliminary injunction, to set aside the order ofrespondent Judge dated July 7, 1987 granting bail to the accused Rodolfo Salas alias"CommanderBilog" in Criminal Case No. 86-48926 for Rebellion, 1 and the subsequent Order dated July 30, 1987granting the motion for reconsideration of 16 July 1987 by increasing the bail bond from P30,000.00 to

P50,000.00 but denying petitioner's supplemental motion for reconsideration of July 17, 1987 whichasked the court to allow petitioner to present evidence in support of its prayer for a reconsideration ofthe order of 7 July 1987.

The pivotal issues presented before Us are whether the right to bail may, under certain circumstances,be denied to a person who is charged with an otherwise bailable offense, and whether such right maybe waived.

The following are the antecedents of this petition:

In the original Information 2 filed on 2 October 1986 in Criminal Case No. 86-48926 of the RegionalTrial Court of Manila, later amended in an Amended Information 3which was filed on 24 October 1986,

private respondent Rodolfo Salas, alias"Commander Bilog", and his co-accused were charged for thecrime of rebellion under Article 134, in relation to Article 135, of the Revised Penal Code allegedlycommitted as follows:

That in or about 1968 and for some time before said year and continuously thereafteruntil the present time, in the City of Manila and elsewhere in the Philippines, theCommunist Party of the Philippines, its military arm, the New People's Army, its massinfiltration network, the National Democratic Front with its other subordinateorganizations and fronts, have, under the direction and control of said organizations'


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leaders, among whom are the aforenamed accused, and with the aid, participation orsupport of members and followers whose whereabouts and identities are still unknown,risen publicly and taken arms throughout the country against the Government of theRepublic of the Philippines for the purpose of overthrowing the present Government,the seat of which is in the City of Manila, or of removing from the allegiance to thatgovernment and its laws, the country's territory or part of it;

That from 1970 to the present, the above-named accused in their capacities as leadersof the aforenamed organizations, in conspiracy with, and in support of the cause of, theorganizations aforementioned, engaged themselves in war against the forces of thegovernment, destroying property or committing serious violence, and other acts in thepursuit of their unlawful purpose, such as . . .

(then follows the enumeration of specific acts committed before and after February1986).

At the time the Information was filed the private respondent and his co-accused were in militarycustody following their arrest on 29 September 1986 at the Philippine General Hospital, Taft Ave.,

Manila; he had earlier escaped from military detention and a cash reward of P250,000.00 was offeredfor hiscapture. 4

A day after the filing of the original information, or on 3 October 1986, a petition forhabeas corpus forprivate respondent and his co-accused was filed with this Court 5which, as shall hereafter bediscussed in detail, was dismissed in Our resolution of 16 October 1986 on the basis of the agreementof the parties under which herein private respondent "will remain in legal custody and will face trialbefore the court having custody over his person" and the warrants for the arrest of his co-accused aredeemed recalled and they shall be immediately released but shall submit themselves to the courthaving jurisdiction over their person.

On November 7, 1986 , private respondent filed with the court below a Motion to Quash theInformation alleging that: (a) the facts alleged do not constitute an offense; (b) the Court has no

jurisdiction over the offense charged; (c) the Court has no jurisdiction over the persons of thedefendants; and (d) the criminal action or liability has been extinguished, 6 to which petitioner filed anOpposition 7citing, among other grounds, the fact that in the Joint Manifestation and Motion datedOctober 14, 1986, in G.R. No. 76009, private respondent categorically conceded that:

xxx xxx xxx

Par. 2 (B) Petitioner Rodolfo Salas will remain in legal custody and face trialbeforethe court having custody over his person.

In his Order of March 6, 1987, 8respondent Judge denied the motion to quash.

Instead of asking for a reconsideration of said Order, private respondent filed on 9 May 1987 a petitionfor bail, 9which herein petitioner opposed in an Opposition filed on 27 May 1987 10 on the ground thatsince rebellion became a capital offense under the provisions of P.D. Nos. 1996, 942 and 1834, whichamended Article 135 of the Revised Penal Code, by imposing the penalty of reclusion perpetua todeath on those who promote, maintain, or head a rebellion the accused is no longer entitled to bail asevidence of his guilt is strong.


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On 5 June 1987 the President issued Executive Order No. 187 repealing, among others, P.D. Nos.1996, 942 and 1834 and restoring to full force and effect Article 135 of the Revised Penal Code as itexisted before the amendatory decrees. Thus, the original penalty for rebellion, prision mayorand afine not to exceed P20,000.00, was restored.

Executive Order No. 187 was published in the Official Gazette in its June 15, 1987 issue (Vol. 83, No.

24) which was officially released for circulation on June 26, 1987.

In his Order of 7 July 1987 11 respondent Judge, taking into consideration Executive Order No. 187,granted private respondent's petition for bail, fixed the bail bond at P30,000.00 and imposed uponprivate respondent the additional condition that he shall report to the court once every two (2) monthswithin the first ten (10) days of every period thereof. In granting the petition respondent Judge stated:

. . . There is no more debate that with the effectivity of Executive Order No. 187, theoffense of rebellion, for which accused Rodolfo Salas is herein charged, is nowpunishable with the penalty ofprision mayorand a fine not exceeding P20,000.00,which makes it now bailable pursuant to Section 13, Article III, 1986 Constitution andSection 3, Rule 114, 1985 Rules of Criminal Procedure. Unlike the old rule, bail is now

a matter of right in non-capital offenses before final judgment. This is very evidentupon a reading of Section 3, Rule 114, aforementioned, in relation to Section 21, samerule. In view, therefore, of the present circumstances in this case, said accused-applicant is now entitled to bail as a matter of right inasmuch as the crime of rebellionceased to be a capital offense.

As to the contention of herein petitioner that it would be dangerous to grant bail to private respondentconsidering his stature in the CPP-NPA hierarchy, whose ultimate and overriding goal is to wipe out allvestiges of our democracy and to replace it with their ideology, and that his release would allow hisreturn to his organization to direct its armed struggle to topple the government before whose courts heinvokes his constitutional right to bail, respondent Judge replied:

True, there now appears a clash between the accused's constitutional right to bail in anon-capital offense, which right is guaranteed in the Bill of Rights and, to quote againthe prosecution, "the existence of the government that bestows the right, theparamount interest of the state." Suffice to state that the Bill of Rights, one of which isthe right to bail, is a "declaration of the rights of the individual, civil, political and socialand economic, guaranteed by the Constitution against impairment or intrusion by anyform of governmental action. Emphasis is placed on the dignity of man and the worthof individual. There is recognition of certain inherent and inalienable rights of theindividual, which the government is prohibited from violating" (Quisumbing-Fernando,Philippine Constitutional Law, 1984 Edition, p. 77). To this Court, in case of suchconflict as now pictured by the prosecution, the same should be resolved in favor ofthe individual who, in the eyes of the law, is alone in the assertion of his rights underthe Bill of Rights as against the State. Anyway, the government is that powerful and

strong, having the resources, manpower and the wherewithals to fight those "whooppose, threathen (sic) and destroy a just and orderly society and its existing civil andpolitical institutions." The prosecution's fear may or may not be founded that theaccused may later on jump bail and rejoin his comrades in the field to sow furtherdisorders and anarchy against the duly constituted authorities. But, then, such a fearcan not be a reason to deny him bail. For the law is very explicit that when it comes tobailable offenses an accused is entitled as a matter of light to bail. Dura est lex sed lex.


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In a motion to reconsider12 the above order filed on 16 July 1987, petitioner asked the court toincrease the bail from P30,000.00 to P100,000.00 alleging therein that per Department of JusticeCircular No. 10 dated 3 July 1987, the bail for the, provisional release of an accused should be in anamount computed at P10,000.00 per year of imprisonment based on the medium penalty imposablefor the offense and explaining that it is recommending P100,000.00 because the private respondent"had in the past escaped from the custody of the military authorities and the offense for which he is

charged is not an ordinary crime, like murder, homicide or robbery, where after the commission, theperpetrator has achieved his end" and that "the rebellious acts are not consummated until the well-organized plan to overthrow the government through armed struggle and replace it with an aliensystem based on a foreign ideology is attained."

On 17 July 1987, petitioner filed a supplemental motion for reconsideration 13 indirectly asking the courtto deny bail to the private respondent and to allow it to present evidence in support thereof consideringthe "inevitable probability that the accused will not comply with this main condition of his bail toappear in court for trial," a conclusion it claims to be buttressed "by the following facts which are widelyknown by the People of the Philippines and which this Honorable Court may have judicial notice of:

1. The accused has evaded the authorities for thirteen years and was an escapee from

detention when arrested;

2. He was not arrested at his residence as he had no known address;

3. He was using the false name "Manuel Mercado Castro" at the time of his arrest andpresented a Driver's License to substantiate his false identity;

4. The address he gave "Panamitan, Kawit, Cavite," turned out to be also a falseaddress;

5. He and his companions were on board a private vehicle with a declared ownerwhose identity and address were also found to be false;

6. Pursuant to Ministry Order No. 1-A dated 11 January 1982 , a reward ofP250,000.00 was offered and paid for his arrest,

which "clearly indicate that the accused does not entertain the slightest intention to appear in court fortrial, if released." Petitioner further argues that the accused, who is the Chairman of the CommunistParty of the Philippines and head of its military arm, the NPA, together with his followers, are nowengaged in an open warfare and rebellion against this government and threatens the existence of thisvery Court from which he now seeks provisional release," and that while he is entitled to bail as amatter of right in view of Executive Order No. 187 which restored the original penalty for rebellionunder Article 135 of the Revised Penal Code, yet, when the interest of the State conflicts with that ofan individual, that of the former prevails for "the right of the State of self-preservation is paramount toany of the rights of an individual enshrined in the Bill of Rights of the Constitution." Petitioner further

invokes precedents in the United States of America holding "that there is no absolute constitutionalbarrier to detention of potentially dangerous resident aliens pending deportation proceedings, 14andthat an arrestee may be incarcerated until trial as he presents a risk of flight; 15 and sustaining adetention prior to trial of arrestee charged with serious felonies who are found after an adversaryhearing to pose threat to the safety of individuals and to the community which no condition of releasecan dispel. 16

On 30 July 1987 respondent Judge handed down the Order 17 adverted to in the introductory portion ofthis decision the dispositive portion of which reads:


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WHEREFORE, in the light of the foregoing considerations, the Court finds the"supplemental" motion for reconsideration to be without merit and hereby denies it butfinds the first motion for reconsideration to be meritorious only insofar as the amount ofbail is concerned and hereby reconsiders its Order of July 7, 1987 only to increase theamount of bail from P30,000.00 to P50,000.00, subject to the approval of this Court,and with the additional condition that accused Rodolfo Salas shall report to the court

once every two (2) months within the first ten (10) days of every period thereof(Almendras vs. Villaluz, et al., L-31665, August 6, 1975, 66 SCRA 58).

In denying the supplemental motion for reconsideration the respondent Judge took into account the"sudden turn-about" on the part of the petitioner in that a day earlier it filed a motion for reconsiderationwherein it conceded the right of the private respondent to bail but merely asked to increase the amountof bail; observed that it is only a reiteration of arguments in its opposition to the petition for bail of 25May 1987; asserted that the American precedents are not applicable since the cases involveddeportation of aliens and, moreover, the U.S. Federal Constitution does not contain a proviso on theright of an accused to bail in bailable offenses, but only an injunction against excessive bail; andquoted the concurring opinion of the late Justice Pedro Tuason in the cases of Nava, et al. vs.Gatmaitan, L-4853, Hernandez vs. Montesa, L-4964 and Angeles vs. Abaya, L-5108, October 11,1951, 90 Phil, 172.

Unable to agree with said Order, petitioner commenced this petition submitting therein the followingissues:

THE HONORABLE RESPONDENT JUDGE PROCORO J. DONATO ACTED WITHGRAVE ABUSE OF DISCRETION AND IN EXCESS OF HIS JURISDICTION, AND INTOTAL DISREGARD OF THE PREVAILING REALITIES, WHEN HE DENIEDPETITIONER'S SUPPLEMENTAL MOTION FOR RECONSIDERATION WITHPRAYER TO BE GIVEN THE OPPORTUNITY TO ADDUCE EVIDENCE INSUPPORT OF ITS OPPOSITION TO THE GRANT OF BAIL TO THE RESPONDENTRODOLFO SALAS.

THE HONORABLE RESPONDENT JUDGE PROCORO J. DONATO ACTED WITHGRAVE ABUSE OF DISCRETION AND IN EXCESS OF HIS JURISDICTION WHENHE GRANTED BAIL TO THE RESPONDENT RODOLFO SALAS.

in support of which petitioner argues that private respondent is estopped from invoking his right to bail,having expressly waived it in G.R. No. 76009 when he agreed to "remain in legal custody and face trialbefore the court having custody of his person" in consideration of the recall of the warrant of arrest forhis co-petitioners Josefina Cruz and Jose Concepcion; and the right to bail, even in non-capitaloffenses, is not absolute when there is prima facie evidence that the accused is a serious threat to thevery existence of the State, in which case the prosecution must be allowed to present evidence for thedenial of bail. Consequently, respondent Judge acted with grave abuse of discretion when he did notallow petitioner to present all the evidence it may desire to support its prayer for the denial of bail and

when he declared that the State has forfeited its right to do so since during all the time that the petitionfor bail was pending, it never manifested, much less hinted, its intention to adduce such evidence. Andthat even if release on bail may be allowed, respondent judge, in fixing the amount of bail atP50,000.00 (originally P30,000.00 only), failed to take into account the lengthy record of privaterespondents' criminal background, the gravity of the pending charge, and the likelihood of flight. 18

In Our resolution of 11 August 1987 19 We required the respondents to comment on the petition andissued a Temporary Restraining Order ordering respondent Judge to cease and desist from


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implementing his order of 30 July 1987 granting bail to private respondent in the amount ofP50,000.00.

In his Comment filed on 27 August 1987, 20 private respondent asks for the outright dismissal of thepetition and immediate lifting of the temporary restraining order on the following grounds:

I

RESPONDENT SALAS NEVER WAIVED HIS RIGHT TO BAIL; NEITHER IS HEESTOPPED FROM ASSERTING SAID RIGHT. ON THE CONTRARY IT ISPETITIONER WHO IS ESTOPPED FROM RAISING THE SAID ISSUE FOR THEFIRST TIME ON APPEAL.

II

RESPONDENT SALAS ENJOYS NOT ONLY THE CONSTITUTIONAL RIGHT TO BEPRESUMED INNOCENT BUT ALSO THE RIGHT TO BAIL.

III

RESPONDENT SALAS IS NOT CHARGED WITH A CAPITAL OFFENSE(RECLUSION PERPETUA), HENCE HE HAS THE RIGHT TO BAIL AS MANDATEDBY THE CONSTITUTION.

IV

THE ORDER OF JULY 30, 1987 DENYING PETITIONER OPPORTUNITY TOPRESENT EVIDENCE IS CORRECT. PETITIONER'S ALLEGED RIGHT TOPRESENT EVIDENCE IS NON-EXISTENT AND/OR HAD BEEN WAIVED.

V

THE ISSUANCE OF A TEMPORARY RESTRAINING ORDER IN THIS CASEVIOLATES NOT ONLY RESPONDENT SALAS' RIGHT TO BAIL BUT ALSO HISOTHER CONSTITUTIONAL RIGHT TO DUE PROCESS.

We required the petitioner to reply to the comment of private respondent. 21 The reply was filed on 18September 1987. 22

In Our resolution of 15 October 1987 23 We gave due course to the petition and required the parties tofile simultaneously their memoranda within twenty days from notice.

In their respective manifestations and motions dated 5 November24 and 23 November1987 25 petitioner and private respondents asked to be excused from filing their Memoranda and thatthe petition and reply be considered as the Memorandum for petitioner and the Comment as theMemorandum for private respondent, which We granted in Our resolution of 19 November 1987 26 and1 December 1987, 27 respectively.

In Our resolution of 14 September 1989 We required the Solicitor General to express his stand on theissues raised in this petitions, 28 which he complied with by filing his Manifestation on 30 May1990 29 wherein he manifests that he supports the petition and submits that the Order of respondent


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Judge of July 7, July 17 and July 30, 1987 should be annulled and set aside asserting that privaterespondent had waived the light to bail in view of the agreement in G.R. No. 76009; that granting bailto him is accepting wide-eyed his undertaking which he is sure to break; in determining bail, theprimary consideration is to insure the attendance of the accused at the trial of the case against himwhich would be frustrated by the "almost certainty that respondent Salas will lump bail of whateveramount"; and application of the guidelines provided for in Section 10 of Rule 114, 1985 Rules on

Criminal Procedure on the amount of bail dictates denial of bail to private respondent. The SolicitorGeneral likewise maintains that the right of the petitioner to hearing on the application of privaterespondent for bail cannot be denied by respondent Judge.

And now on the issues presented in this case.

I.

Unquestionably, at the time the original and the amended Informations for rebellion and the applicationfor bail were filed before the court below the penalty imposable for the offense for which the privaterespondent was charged was reclusion perpetua to death. During the pendency of the application forbail Executive Order No. 187 was issued by the President, by virtue of which the penalty for rebellion

as originally provided for in Article 135 of the Revised Penal Code was restored. The restored law wasthe governing law at the time the respondent court resolved the petition for bail.

We agree with the respondent court that bail cannot be denied to the private respondent for he ischarged with the crime of rebellion as defined in Article 134 of the Revised Penal Code to which isattached the penalty ofprision mayorand a fine not exceeding P20,000.00. 30 It is, therefore, a bailableoffense under Section 13 of Article III of the 1987 Constitution which provides thus:

Sec. 13. All persons, except those charged with offenses punishable by reclusionperpetua when evidence of guilt is strong, shall, before conviction, be bailable bysufficient sureties, or be released on recognizance as may be prescribed by law. Theright to bail shall not be impaired even when the privilege of the writ ofhabeascorpusis suspended. Excessive bail shall not be required.

Section 3, Rule 114 of the Rules of Court, as amended, also provides:

Bail, a matter of right: exception. All persons in custody shall, before finalconviction, be entitled to bail as a matter of right, except those charged with a capitaloffense or an offense which, under the law at the time of its commission and at thetime of the application for bail, is punishable by reclusion perpetua, when evidence ofguilt is strong.

Therefore, before conviction bail is either a matter of right or of discretion. It is a matter of right whenthe offense charged is punishable by any penalty lower than reclusion perpetua. 31 To that extent theright is absolute. 32

And so, in a similar case for rebellion, People vs. Hernandez, et al., 99 Phil. 515, despite the fact thatthe accused was already convicted, although erroneously, by the trial court for the complex crime ofrebellion with multiple murders, arsons and robberies, and sentenced to life imprisonment, We grantedbail in the amount of P30,000.00 during the pendency of his appeal from such conviction. To thevigorous stand of the People that We must deny bail to the accused because the security of the Stateso requires, and because the judgment of conviction appealed from indicates that the evidence of guiltof Hernandez is strong, We held:


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. . . Furthermore, individual freedom is too basic, too transcendental and vital in arepublican state, like ours, to be derived upon mere general principles and abstractconsideration of public safety. Indeed, the preservation of liberty is such a majorpreoccupation of our political system that, not satisfied with guaranteeing its enjoymentin the very first paragraph of section (1) of the Bill of Rights, the framers of ourConstitution devoted paragraphs (3), (4), (5), (6), (7), (8), (11), (12), (13), (14), (15),

(16), (17), (18), and (21) of said section (1) to the protection of several aspects offreedom.

The 1987 Constitution strengthens further the right to bail by explicitly providing that it shall not beimpaired even when the privilege of the writ ofhabeas corpus is suspended. This overturns the Court'sruling in Garcia-Padilla vs. Enrile, et al., supra., to wit:

The suspension of the privilege of the writ ofhabeas corpusmust, indeed, carry with itthe suspension of the right to bail, if the government's campaign to suppress therebellion is to be enhanced and rendered effective. If the right to bail may bedemanded during the continuance of the rebellion, and those arrested, captured anddetained in the course thereof will be released, they would, without the least doubt,

rejoin their comrades in the field thereby jeopardizing the success of governmentefforts to bring to an end the invasion, rebellion or insurrection.

Upon the other hand, if the offense charged is punishable by reclusion perpetua bail becomes a matterof discretion. It shall be denied if the evidence of guilt is strong. The court's discretion is limited todetermining whether or not evidence of guilt is strong. 33But once it is determined that the evidence ofguilt is not strong, bail also becomes a matter of right. In Teehankee vs. Director of Prisons,supra., We held:

The provision on bail in our Constitution is patterned after similar provisions containedin the Constitution of the United States and that of many states of the Union. And it issaid that:

The Constitution of the United States and the constitution of the manystates provide that all persons shall be bailable by sufficient sureties,except for capital offenses, where the proof is evident or the presumptionof guilt is great, and, under such provisions, bail is a matter of right whichno court or judge can properly refuse, in all cases not embraced in theexceptions. Under such provisions bail is a matter of right even in cases ofcapital offenses, unless the proof of guilt is evident or the presumptionthereof is great!34

Accordingly, the prosecution does not have the right to present evidence for the denial of bail in theinstances where bail is a matter of right. However, in the cases where the grant of bail is discretionary,due process requires that the prosecution must be given an opportunity to present, within a reasonabletime, all the evidence that it may desire to introduce before the court should resolve the motion forbail. 35

We agree, however, with petitioner that it was error for the respondent court to fix the bond atP30,000.00, then later at P50,000.00 without hearing the prosecution. The guidelines for the fixing ofthe amount of bail provided for in Section 10 of Rule 114 of the Rules of Court are not matters leftentirely to the discretion of the court. As We stated in People vs. Dacudao, et al., 170 SCRA, 489, 495:


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Certain guidelines in the fixing of a bailbond call for the presentation of evidence andreasonable opportunity for the prosecution to refute it. Among them are the nature andcircumstances of the crime, character and reputation of the accused, the weight of theevidence against him, the probability of the accused appearing at the trial, whether ornot the accused is a fugitive from justice, and whether or not the accused is underbond in other case. . . .

In the instant case petitioner has sufficiently made out allegations which necessitate a grant of anopportunity to be heard for the purpose of determining the amount of bail, but not for the denial thereofbecause aforesaid Section 10 of Rule 114 does not authorize any court to deny bail.

II.

It must, however, be stressed that under the present state of the law, rebellion is no longer punishableby prision mayorand fine not exceeding P20,000.00. Republic Act No. 6968 approved on 24 October1990 and which took effect after publication in at least two newspapers of general circulation,amended, among others, Article 135 of the Revised Penal Code by increasing the penalty for rebellionsuch that, as amended, it now reads:

Article 135. Penalty for rebellion, insurrection or coup d'etat. Any person whopromotes, maintains, or heads a rebellion or insurrection shall suffer the penaltyofreclusion perpetua.

Any person merely participating or executing the commands of others in a rebellion orinsurrection shall suffer the penalty ofreclusion perpetua.

xxx xxx xxx

This amendatory law cannot apply to the private respondent for acts allegedly committed prior to itseffectivity. It is not favorable to him. "Penal laws shall have a retroactive effect insofar as they favor the

person guilty of a felony, who is not a habitual criminal, as this term is defined in Rule 5 of Article 62 ofthis Code, although at the time of the publication of such laws a final sentence has been pronouncedand the convict is serving the same. 36

III.

We agree with Petitioner that private respondent has, however, waived his right to bail in G.R. No.76009.

On 3 October 1986, or the day following the filing of the original information in Criminal Case No. 86-48926 with the trial court, a petition forhabeas corpus for herein private respondent, and his co-accused Josefina Cruz and Jose Concepcion, was filed with this Court by Lucia Cruz, Aida

Concepcion Paniza and Beatriz Salas against Juan Ponce Enrile, Gen. Fidel Ramos, Brig. Gen.Renato de Villa, Brig. Gen. Ramon Montao, and Col. Saldajeno praying, among others, that thepetition be given due course and a writ ofhabeas corpusbe issued requiring respondents to producethe bodies of herein private respondent and his co-accused before the Court and explain by whatauthority they arrested and detained them. The following proceedings took place thereafter in saidcase:


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1. In a resolution of 7 October 1986 We issued a writ ofhabeas corpus, required respondents to makea return of the writ on or before the close of office hours on 13 October and set the petition for hearingon 14 October 1986 at 10:00 o'clock in the morning.

2. On 13 October 1986 respondents, through the Office of the Solicitor General, filed a Return To TheWrit ofHabeas Corpusalleging therein that private respondent and Josefina Cruz alias"Mrs. Mercado",

and Jose Milo Concepcion alias"Eugene Zamora" were apprehended by the military on September29, 1986 in the evening at the Philippine General Hospital Compound at Taft Ave., Mangga beingleaders or members of the Communist Party of the Philippines, New People's Army and NationalDemocratic Front, organizations dedicated to the overthrow of the Government through violent means,and having actually committed acts of rebellion under Article 134 of the Revised Penal Code, asamended. After their arrest they were forthwith charged with rebellion before Branch XII of theRegional Trial Court, National Capital Region in Criminal Case No. 86-48926 and on 3 Octoberwarrants for their arrest were issued and respondents continue to detain them because of the warrantsof arrest and the pendency of the criminal cases against them. Respondents further allege that,contrary to the allegation in the petition, herein private respondent was not a member of the NDF panelinvolved in peace negotiations with the Government; neither is he and his companions Cruz andConcepcion covered by any, safe conduct pass issued by competent authorities.

3. At the hearing on 14 October 1986 the parties informed the Court of certain agreements reachedbetween them. We issued a resolution reading as follows:

When this case was called for hearing this morning, Attorneys Romeo Capulong, ArnoV. Sanidad, Efren H. Mercado, Edgardo Pamin-tuan, Casiano Sabile, Ramon Cura,and William Chua appeared for the petitioners with Atty. Capulong arguing for thepetitioners. Solicitor General Sedfrey Ordonez, Assistant Solicitor General Romeo C.de la Cruz and Trial Attorney Josue E. Villanueva appeared for the respondents, withSolicitor General Ordoez arguing for the respondents.

Petitioners' counsel, Atty. Romeo Capulong, manifested in open Court that inconformity with the agreement reached with the government, the petition forhabeas

corpuswill be withdrawn with detainee Rodolfo Salas to remain under custody,whereas his co-detainees Josefina Cruz and Jose Milo Concepcion will be releasedimmediately.

Solicitor General Sedfrey Ordoez, also in open Court, confirmed the foregoingstatement made by petitioners' counsel regarding the withdrawal of the petitionforhabeas corpus, declaring that no objection will be interposed to the immediaterelease of detainees Josefina Cruz and Jose Milo Concepcion, and that no bond willbe required of them, but they will continue to face trial with their co-accused, RodolfoSalas; further, that they will not be rearrested on the basis of the warrants issued bythe trial court provided that they manifest in open Court their willingness to subjectthemselves to the jurisdiction of the Court and to appear in court when their presence

is required.

In addition, he stated that he is willing to confer with petitioners' counsel today relativeto the compromise agreement that they have previously undertaken to submit.

Upon manifestation of petitioners' counsel, Atty. Romeo Capulong, that on his oath asmember of the Bar, the detainees Josefina Cruz and Jose Milo Concepcion haveagreed to subject themselves to the jurisdiction of the trial court, the Court orderedtheir immediate release.


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Thereafter, the Court approved the foregoing manifestations and statements andrequired both parties to SUBMIT to the Court their compromise agreement by 4:00o'clock this afternoon. Teehankee, C.J., is on official leave.

4. At 3:49 o'clock in the afternoon of 14 October 1986 the parties submitted a Joint Manifestation andMotion duly signed by Atty. Romeo Capulong, counsel for petitioners, and Solicitor General Sedfrey

Ordoez, Assistant Solicitor General Romeo C. de la Cruz and Trial Attorney Josue S. Villanueva,counsel for respondents, which reads as follows:

COME NOW petitioners and the respondents, assisted by their respective counsel,and to this Honorable Tribunal respectfully manifest:

1. That in the discussion between Romeo Capulong, petitioners' counsel, and SolicitorGeneral Sedfrey A. Ordoez on October 13, 1986 exploratory talks were conducted tofind out how the majesty of the law may be preserved and human considerations maybe called into play.

2. That in the conference both counsel agreed to the following terms of agreement:

a. The petition forhabeas corpus will be withdrawn by petitioners andJosefina Cruz and Jose Milo Concepcion will be immediately releasedbut shall appear at the trial of the criminal case for rebellion (People v.Rodolfo Salas, et al., Criminal Case No. 4886 [should be 86-48926],Regional Trial Court, National Capital Judicial Region) filed againstthem under their personal recognizance.

b. Petitioner Rodolfo Salas will remain in legal custody and face trialbefore the court having custody over his person.

c. The warrant of arrest for the persons of Josefina Cruz and Jose Milo

Concepcion is hereby deemed recalled in view of formal manifestationbefore the Supreme Court that they will submit themselves to the courthaving jurisdiction over their person.

3. That on October 14, the Solicitor General was able to obtain the conformity of theGovernment to the foregoing terms which were likewise accepted by petitioner (sic)and their counsel of record.

4. That the two counsel submitted their oral manifestation during the hearing onOctober 14 and the present manifestation in compliance with the resolution announcedin court this morning.

WHEREFORE, it is prayed that the petition forhabeas corpus be dismissed.

5. On 16 October 1986 We issued the following resolution:

G.R. No. 76009 [In the Matter of the Petition forHabeas Corpusof Rodolfo Salas,Josefina Cruz and Jose Milo Concepcion, et al. v. Hon. Juan Ponce Enrile, Gen. FidelV. Ramos, Brig. Gen. Renato de Villa, Brig. Gen. Ramon Montao and Col. VirgilioSaldajeno] considering the Joint Manifestation and Motion dated October 14, 1986filed by Attorneys Romeo Capulong, Arno V. Sanidad, Efren H. Mercado and Ricardo


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Fernandez, Jr. as counsel for petitioners and Solicitor General Sedfrey A. Ordonez andAssistant Solicitor General Romeo C. de la Cruz and Trial Attorney Josue S.Villanueva as counsel for respondents which states that they have entered into anagreement whereby: [a] the petition forhabeas corpuswill be withdrawn by petitioners,and Josefina Cruz and Jose Milo Concepcion will be immediately released but shallappear at the trial of the criminal case for rebellion [People vs. Rodolfo Salas, et al.,

Criminal Case No. 4886, Regional Trial Court, National Capital Judicial Region, BranchXII, Manila], filed against them, on their personal recognizance; [b] petitioner RodolfoSalas will remain in legal custody and face trial before the court having custody overhis person; and [c] the warrant of arrest for the person of Josefina Cruz and Jose MiloConcepcion is hereby deemed recalled in view of the formal manifestation before thisCourt that they will submit themselves to the court having jurisdiction over their personand in view of the said agreement, the petition forhabeas corpus be dismissed, theCourt Resolved to DISMISS the petition forhabeas corpus but subject to the conditionthat petitioners' lead counsel, Atty. Capulong, upon his oath as member of the Bar,shall abide by his commitment to ensure the appearance of Josefina Cruz and JoseMilo Concepcion at the trial of the criminal case for rebellion filed against them.Teehankee,C.J., is on official leave.

It is the stand of the petitioner that private respondent, "in agreeing to remain in legal custody evenduring the pendency of the trial of his criminal case, [he] has expressly waived his right to bail." 37Uponthe other hand, private respondent asserts that this claim is totally devoid of factual and legal basis, forin their petition forhabeas corpus they precisely questioned the legality of the arrest and the continueddetention of Rodolfo Salas, Josefina Cruz and Jose Milo Concepcion, which was not resolved by thisCourt or by the compromise agreement of the parties but left open for further determination in anotherproceeding. Moreover, the matter of the right to bail was neither raised by either party nor resolved bythis Court, and the legal steps promptly taken by private respondent after the agreement was reached,like the filing of the motion to quash on 7 November 1986 and the petition for bail on 14 May 1987,were clear and positive assertions of his statutory and constitutional rights to be granted not onlyprovisional but final and permanent liberty. Finally, private respondent maintains that the term "legalcustody" as used in the Joint Manifestation and Motion simply means that private respondent agreed

to continue to be in the custody of the law or in custodia legis and nothing else; it is not to beinterpreted as waiver.

Interestingly, private respondent admits that:

"Custody" has been held to mean nothing less than actual imprisonment. It is alsodefined as the detainer of a person by virtue of a lawful authority, or the "care andpossession of a thing or person." (Bouviers Law Dictionary, Third Ed, Vol. I, pp. 741-742 citingSmith v. Com. 59 Pa. 320 and Rolland v. Com. 82 Pa. 306)

He further admits that, in the light of Section 1 of Rule 114 of the Rules of Court and settledjurisprudence, the "constitutional right to bail is subject to the limitation that the person applying for

admission to bail should be in the custody of the law or otherwise deprived of his liberty."

38

When the parties in G.R. No. 76009 stipulated that:

b. Petitioner Rodolfo Salas will remain in legal custodyand face trial before the courthaving custody over his person.

they simply meant that Rodolfo Salas, herein respondent, will remain in actual physical custody of thecourt, or in actual confinement or detention, as distinguished from the stipulation concerning his co-


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petitioners, who were to be releasedin view of the recallof the warrants of arrest against them; theyagreed, however, "to submit themselves to the court having jurisdiction over their persons." Noteshould be made of the deliberate care of the parties in making a fine distinction between legalcustodyand court having custody over the person in respect to Rodolfo Salas and court having

jurisdiction over the persons of his co-accused. Such a fine distinction was precisely intended toemphasize the agreement that Rodolfo Salaswill not be released, but should remain in custody. Had

the parties intended otherwise, or had this been unclear to private respondent and his counsel, theyshould have insisted on the use of a clearer language. It must be remembered that at the time theparties orally manifested before this Court on 14 October 1986 the terms and conditions of theiragreement and prepared and signed the Joint Manifestation and Motion, a warrant of arrest hadalready been issued by the trial court against private respondent and his co-accused. The stipulationthat only the warrants of arrest for Josefina Cruz and Jose Milo Concepcion shall be recalled and thatonly they shall be released, further confirmed the agreement that herein petitioner shall remain incustody of the law, or detention or confinement.

In defining bail as:

. . . the security given forthe release of a person in custody of the law, . . .

Section 1 of Rule 114 of the Revised Rules of Court admits no other meaning or interpretation for theterm "in custody of the law" than that as above indicated. The purpose of bail is to relieve an accusedfrom imprisonment until his conviction and yet secure his appearance at the trial. 39 It presupposes thatthe person applying for it should be in the custody of the law or otherwise deprived of liberty. 40

Consequently, having agreedin G.R. No. 76009 to remain in legal custody, private respondent hadunequivocably waived his right to bail.

But, is such waiver valid?

Article 6 of the Civil Code expressly provides:

Art. 6. Rights may be waived, unless the waiver is contrary to law, public order, publicpolicy, morals, or good customs, or prejudicial to a third person with a right recognizedby law.

Waiver is defined as "a voluntary and intentional relinquishment or abandonment of a known existinglegal right, advantage, benefit, claim or privilege, which except for such waiver the party would haveenjoyed; the voluntary abandonment or surrender, by a capable person, of a right known by him toexist, with the intent that such right shall be surrendered and such person forever deprived of itsbenefit; or such conduct as warrants an inference of the relinquishment of such right; or the intentionaldoing of an act inconsistent with claiming it." 41

As to what rights and privileges may be waived, the authority is settled:

. . . the doctrine of waiver extends to rights and privileges of any character, and, sincethe word "waiver" covers every conceivable right, it is the general rule that a personmay waive any matter which affects his property, and any alienable right or privilege ofwhich he is the owner or which belongs to him or to which he is legally entitled,whether secured by contract, conferred with statute,or guaranteed byconstitution, provided such rights and privileges rest in the individual, are intended forhis sole benefit, do not infringe on the rights of others, and further provided the waiver


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of the right or privilege is not forbidden by law, and does not contravene public policy;and the principle is recognized that everyone has a right to waive, and agree to waive,the advantage of a law or rule made solely for the benefit and protection of theindividual in his private capacity, if it can be dispensed with and relinquished withoutinfringing on any public right, and without detriment to the community at large. . . .

Although the general rule is that any right or privilege conferred by statuteorguaranteed by constitution may be waived, a waiver in derogation of a statutory rightis not favored, and a waiver will be inoperative and void if it infringes on the rights ofothers, or would be against public policy or morals and the public interest may bewaived.

While it has been stated generally that all personal rights conferred by statuteand guaranteed by constitutionmay be waived, it has also been said that constitutionalprovisions intended to protect property may be waived, and even some of the constitutionalrights created to secure personal liberty are subjects of waiver.42

In Commonwealth vs. Petrillo,43 it was held:

Rights guaranteed to one accused of a crime fall naturally into two classes: (a) those inwhich the state, as well as the accused, is interested; and (b) those which are personalto the accused, which are in the nature of personal privileges. Those of the first classcannot be waived; those of the second may be.

It is "competent for a person to waive a right guaranteed by the Constitution, and to consent to actionwhich would be invalid if taken against his will." 44

This Court has recognized waivers of constitutional rights such as, for example, the right againstunreasonable searches and seizures; 45 the right to counsel and to remain silent; 46 and the right to beheard. 47

Even the 1987 Constitution expressly recognizes a waiver of rights guaranteed by its Bill of Rights.Section 12(l) of Article III thereof on the right to remain silent and to have a competent andindependent counsel, preferably of his own choice states:

. . . These rights cannot be waived except in writing and in the presence of counsel.

This provision merely particularizes the form and manner of the waiver; it, nevertheless, clearlysuggests that the other rights may be waived in some other form or manner provided such waiver willnot offend Article 6 of the Civil Code.

We hereby rule that the right to bail is another of the constitutional rights which can be waived. It is aright which is personal to the accused and whose waiver would not be contrary to law, public order,public policy, morals, or good customs, or prejudicial to a third person with a right recognized by law.

The respondent Judge then clearly acted with grave abuse of discretion in granting bail to the privaterespondent.

WHEREFORE, the Orders of respondent Judge of July 7, 1987 and July 30, 1987 in Criminal CaseNo. 86-48926 entitled People of the Philippines vs. Rodolfo C. Salas alias Commander Bilog/Henry,


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Josefina Cruz alias Mrs. Mercado, and Jose Milo Concepcion alias Eugene Zamora, for Rebellion, arehereby NULLIFIED and SET ASIDE.

SO ORDERED.

Republic of the Philippines

SUPREME COURTManila

FIRST DIVISION

A.M. No. RTJ-99-1488 June 20, 2000

JUANA MARZAN-GELACIO, complainant,vs.Judge ALIPIO V. FLORES in his capacity as Presiding Judge, Branch 20, RTC, Vigan, IlocosSur,respondent.

D E C I S I O N

YNARES_SANTIAGO, J.:

Before Us is an administrative complaint for Gross Ignorance of the Law and Evident Partiality broughtby Complainant Juana Marzan-Gelacio against respondent Judge Alipio V. Flores, Presiding Judge ofthe Regional Trial Court (RTC) of Vigan, Ilocos Sur, Branch 20.

Culled from the records, the facts of the case, as summed by the Office of the Court Administrator(OCA) are as follows:

Ms. Juana Marzan Gelacio filed two (2) counts of rape against Emmanuel Artajos. The said cases

were docketed as Criminal Cases Nos. 4187 and 4188. It was thereafter raffled to the sala ofrespondent Judge Alipio Flores, RTC, Branch 20, Vigan, Ilocos Sur.

On February 26, 1988, presumably after going over the records of the case and the recommendationof 1st Assistant Provincial Prosecutor Redentor Cardenas, Judge Flores concluded that the evidenceof guilt was weak but made a finding of a probable cause. Consequently, he issued warrants of arrestwith a recommendation of P200,000.00 bailbond in both cases.

On March 16, 1998, complainant through her private prosecutor, Atty. Jessie Emmanuel A. Vizcarra,filed an Urgent Motion to Deny Bail. Two (2) months thereafter, more particularly on May 27, 1998counsel for the accused, Atty. Salacnib Baterina filed a Petition to Reduce Bailbond with a notation:"No objection for P100,000.00 in each case by Provincial Prosecutor Jessica G. Viloria."

On June 18, 1998, Judge Flores issued an order denying the "Motion to Deny Bail" filed by the PrivateProsecutor stating that the proper and appropriate recourse of an aggrieved party, as in these cases,should have been to ask for a reconsideration of the granting of bail to the Provincial Prosecutor and/orappeal direct to the Secretary of Justice, being a capital offense, within the reglementary period setforth by the Rules of said Office.

In the same order, the Petition to Reduce Amount of Bail was held in abeyance pending arrest and/orvoluntary surrender of the accused.


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Apparently, on June 22, 1998 Judge Flores issued an order granting Motion for Reduction of Bail ofthe accused. (No copy of Order dated June 22, 1998 was attached).

On July 8, 1998 the Private Prosecution filed a Motion to Cancel Bail Bonds of the Accused with theimprimatur of Assistant Public Prosecutor Arnulfo Manzano.

On July 13, 1998, Judge Alipio Flores, acting on the said motion, treated the same as a Motion forReconsideration on the granting of bail, and granted the same. The motion to cancel bail was held inabeyance pending arrest of the accused. He likewise recalled the Orders dated June 18 and 22, 1998,which he issued and ordered the immediate arrest of the accused.

On July 22, 1998, Judge Flores denied the Motion to Cancel Bailbond and reinstated his Orders datedJune 18 and 22, 1998. The Order of Arrest for the accused was likewise quashed. Judge Flores inissuing this Order relied on the stand of the Public Prosecutor that in accordance with the guidelines ofthe Department of Justice the cases are bailable.

It was in the granting of a bail in the crime of rape where complainant questions the actuation ofrespondent Judge.

Complainant contends that respondent Judge is ignorant of the law when he granted bail withoutgiving the prosecution a chance to prove the guilt of the accused. She claims that it is very elementaryfor him not to know that petition for bail must be set for hearing.

On August 27, 1998, Court Administrator Alfredo L. Benipayo by way of 1st Indorsement requiredJudge Alipio V. Flores to answer the complaint of Ms. Juana Marzan Gelacio.

Respondent Judge in his comment alleged in sum that:

1.....On or before February 26, 1998, before making a finding of probable cause and issuanceof the corresponding Warrants of Arrest in the said cases and finding that 1st Assistant

Provincial Prosecutor Redentor Cardenas recommended bailbonds of P200,000.00 for each ofthe cases, called the branch prosecutor, 3rd Assistant Provincial Prosecutor Arnulfo Manzanoin his chambers after the morning session to find out whether or not the recommendation forbail was not inadvertent. The latter informed that the complainant was not able to prove all theelements of rape and under their (Fiscals) guidelines on Bailbonds, the same is bailable.Thereafter, the Fiscals Office even sent their 1997 Guidelines on Bailbonds;

2.....After a careful perusal of the records of the two (2) cases, more particularly the onlyevidence on record which is the affidavit of the complainant Gelacio and the resolution thereof,he (respondent) concluded that the evidence of guilt was weak but made a finding of probablecause, issued the corresponding warrant of arrest with a recommendation of P200,000.00bailbond in both cases, both on February 26, 1998;

3.....On March 16, 1998, private complainant through private prosecutor, Atty. JessieEmmanuel A. Vizcarra, filed an Urgent Motion to Deny Bail, and on May 27, 1998 accusedthrough, Atty. Salacnib Baterina, filed a Petition to Reduce Bailbond with a notation for: NoObjection for P100,000.00 in each case by the Provincial Prosecutor Jessica G. Viloria;

4.....Because of the inconsistent stand of the Private Prosecutor and Public Prosecutor, theCourt in its order dated June 2, 1998, treated first the Motion' to Deny Bailbond by ordering the


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Public Prosecutor and defense to comment/oppose the same within 10 days from receiptthereof, with the Petition to Reduce Bailbonds meantime held in abeyance.

On June 18, 1998, the Court issued the order now under question.

5.....It is also noteworthy to mention that the private prosecutor on 8 July 1998 filed a Motion to

Cancel Bail Bonds of the Accused, which the Court motu proprio set for hearing on July 22,1998.

In said hearing the Public Prosecution through 3rd Assistant Provincial Prosecutor ArnulfoManzano opposed the cancellation of Bailbonds maintaining the stand of the prosecution thatboth offenses are bailable.

6.....He does not personally know the accused nor the private complainant, and the questionedcases had resulted in a battle royale between the private prosecution and the publicprosecution with respect to the bailbond issue, in which case law and precedents dictate thatthe public prosecution has control and supervision over the private prosecutor, in spite of this,the Court had always given the latter the right to be heard;

7.....There can be no partiality on his part as this is the only Rape case filed in Court where theProsecution recommended bail;

8.....The remedy of the Private Prosecution should have been to question his final order byproper proceedings to a higher court to test whether or not he gravely abused its discretionamounting to lack of jurisdiction before an administrative complaint is filed.

On October 26, 1998, complainant through counsel filed her position paper refuting the allegations ofrespondent Judge in his comment and reiterated her former claim that respondent Judge was ignorantof the law in granting bail without any hearing.

In his comment to Position Paper of Private Complainant and Rejoinder respondent Judge stressed insum that in the finding of probable cause and issuance of the corresponding warrant of arrest, theJudge may adopt the finding of the Provincial Prosecutor.

On the basis of the foregoing factual narration, the OCA in the evaluation report recommended that therespondent Judge be fined Ten Thousand (P10,000.00) Pesos for granting bail without a hearing witha warning that a repetition of the same or similar acts in the future will be dealt with more severely,reasoning that:

In G.R. No. 80906 entitled "Amaya, et al. v. Ordonez", September 5, 1988, the Honorable Court ruledthat:

"Whatever the fiscal recommends as the amount of bail for the provisional release of an accused isonly recommendatory. The Judge still retains the discretion to apply the precedents laid down by theSupreme Court regarding the reasonable nature of the bail to be required. It is not bound by theFiscals recommendation. More binding are the decisions of the Supreme Court."

In the case at bar, respondent Judge does not deny that he granted bail to a person accused of two (2)counts of rape. He however attempted to excuse himself by saying that when he inquired inside hischambers from the Prosecutor as to whether there was really a recommendation of bail forP200,000.00 for each case and he (Fiscal) answered in the affirmative, he had no choice, according to


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him, but to adopt the same. Moreover, he added the Prosecutor relied on the Bail Bond Guide issuedby the Department of Justice. Such an excuse is unacceptable. It only manifested his weakness anddisplayed his ignorance of the law and several court decisions on matters such as this. It is veryelementary that felonies are defined and their corresponding penalties are found in the Revised PenalCode. Hence, respondent Judge should not have been misled by the insinuation of the Fiscal that the1996 Bail Bond Guide clearly expresses the bail to be recommended in the crime of rape. Instead,

mindful perhaps of the basic legal principles, the Revised Penal Code should have prevailed. Besides,he should have known that the Bail [Bond] Guide is addressed to the Prosecutors and their Assistantsand not to the Judges.

What is even more perplexing is the attitude of the Judge in asking the Prosecutor to explain hisrecommendation of bail. This is contrary to Rule 2.01 of Canon 2 of the Code of Judicial Conduct. Inno case is a Judge allowed to engage in a legal discussion inside his chambers, of the pendingincidents of a case, without the presence of the representatives of the parties.

Moreover, it was patent error for him to base his order granting bail merely on the supporting affidavitsattached to the information since those were merely intended to establish probable cause as a basisfor the issuance of an arrest warrant, and not to control his discretion to deny or grant in (sic) bail in all

situation i.e., with or without a motion from the accused and even without conducting a hearing onthe matter.

It is admitted that there was a recommendation of bail. But the prosecutors recommendation, althoughpersuasive, does not necessarily bind the Court.

A hearing is indispensable before a Judge can aptly (sic) said to be in a position to determine whetherthe evidence for the prosecution is weak or strong. And the discretion to determine whether it is weakor strong may be exercised only after the evidence is submitted to the Court at the hearing. Whether ina summary proceeding or in the course of a regular trial, the prosecution must be given an opportunityto present, within a reasonable time, as the evidence it may desire to introduce before the court mayresolve the motion for bail.

Besides, the Judge should have known that even when bail is a matter of right, in fixing the amount ofbail, he is required to take into account a number of factors, such as the character and reputation ofthe accused, forfeiture of other bonds, or whether or not he is a fugitive from justice.

The fact that the prosecution refuses to adduce evidence, it is still mandatory for the court to conduct ahearing or ask searching and clarificatory questions from which it may infer the strength of theevidence of guilt, or the lack of it, against the accused. Where the prosecution does not oppose theapplication for bail and refuses to satisfy his burden of proof, but the court has reasons to believe thatthe prosecutors attitude is not justified, as when he is evidently committing a gross error or adereliction of duty, the court, in the interest of justice, must inquire from the prosecution as to thenature of his evidence to determine whether or not it is strong, it being possible that the prosecutor[may] have erred in considering it weak and therefore, in recommending bail.

The foregoing findings and disquisitions of the OCA are well taken. It is imperative that judges beconversant with basi

cases (right to bail)

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