Preliminary Injunction

Preliminary Injunction NELSON JENOSA - versus REV. FR. JOSE RENE C. DELARIARTE, O.S.A., in his capacity as t he incumbent Principal of the High School Department of the University of San A gustin, and the UNIVERSITY OF SAN AGUSTIN

The Case

This is a petition for review[1] of the 16 June 2005 Decision[2] and 22 March 2006[3] Resolution of  the Court of Appeals in CA-G.R. SP No. 78894. In its 16 June 2005 Decision, the Court of Appeals granted the petition of respondents University of S an Augustin (University), represented by its incumbent President Rev. Fr. Manuel G. Vergara, O.S.A. (University President), and Rev. Fr. Jose Rene C. Delariarte, O.S.A. (Principal), in his capacity as the incumbent Principal of t he High School Department of  the University (respondents) and ordered the dismissal of Civil Case Nos. 03 -27460 and 03-27646 for lack of jurisdiction over the subject matter. In its 22 March 2006 Resolution, Resolution, the Court of Appeals denied the motion for reconsideration of petitioners Nelson Jenosa and his son Niño C arlo Jenosa, Socorro Canto and her son Patrick Pat rick Canto, Cynthia Apalisok and her daughter Cyndy Apalisok, Eduardo Vargas and his son Clint Eduard Vargas, and Nelia Duro and her son Nonell Gregory Duro (petitioners).

The Facts

On 22 November 2002, some students of t he University, among them petitioners Niño Carlo Jenosa, Patrick Canto, Cyndy Apalisok, Clint Eduard Vargas, and Nonell Gregory Duro (petitioner students), were caught engaging in hazing hazing outside the school premises. premises. The hazing incident was entered into the blotter of the Iloilo City Police.[4]

Thereafter, dialogues and consultations were conducted among the school authorities, the apprehended students and their parents. parents. During the 28 November 2002 meeting, the the parties agreed that, instead of the possibility of being charged and found guilty of hazing, the students who participated in the hazing incident as initiators, including petitioner students, would just t ransfer to another school, while those who participated as neophytes would be suspended suspended for one month. The parents of the apprehended students, including petitioners, affixed their signatures to the minutes of 

the meeting to signify their conformity.[5] conformity.[5] In view of the agreement, the University University did not anymore convene the Committee on Student D iscipline (COSD) to investigate the hazing incident.

On 5 December 2002, the parents of petitioner students (petitioner parents) sent a letter to the University President urging him not not to implement the 28 November November 2002 agreement.[6] According to petitioner parents, the Principal, without convening the COSD, decided to order the immediate transfer of petitioner students.

On 10 December 2002, petitioner parents also wrote a letter to

Mrs. Ida B. Endonila, School

Division Superintendent, Department of Education (DepEd), Iloilo City, seeking her intervention and prayed that petitioner students be allowed to take the home study program instead of t ransferring to another school.[7] The DepEd asked the University to comment on the letter.[8] The University replied replied and attached the minutes of the 28 November 2002 meeting.[9]

On 3 January 2003, petitioners filed a complaint for injunction and damages with the Regional Trial Court, Branch 29, Iloilo City (trial court) docketed as Civil Case No. No. 03-27460.[10] Petitioners assailed the Principal’s decision to order the immediate transfer of petitioner students as a violation of their right

to due process because the COSD was not convened.

On 5 February 2003, the trial court issued a writ of preliminary injunction and directed respondents to admit petitioner students during during the pendency of the case.[11] case.[11] The 5 February 2003 Order reads:

WHEREFORE, let [a] Writ of Preliminary Mandatory Injunction issue. The defendants are hereby directed to allow the plaintiff’s minor children to attend their classes during the pendency of this case,

without prejudice to any disciplinary proceeding to which any or all of them may be liable.

SO ORDERED.[12]

Respondents filed a motion for reconsideration and and asked for the dissolution of the the writ. The trial court denied respondents’ motion.

Respondents complied but with reservations.

the meeting to signify their conformity.[5] conformity.[5] In view of the agreement, the University University did not anymore convene the Committee on Student D iscipline (COSD) to investigate the hazing incident.

On 5 December 2002, the parents of petitioner students (petitioner parents) sent a letter to the University President urging him not not to implement the 28 November November 2002 agreement.[6] According to petitioner parents, the Principal, without convening the COSD, decided to order the immediate transfer of petitioner students.

On 10 December 2002, petitioner parents also wrote a letter to

Mrs. Ida B. Endonila, School

Division Superintendent, Department of Education (DepEd), Iloilo City, seeking her intervention and prayed that petitioner students be allowed to take the home study program instead of t ransferring to another school.[7] The DepEd asked the University to comment on the letter.[8] The University replied replied and attached the minutes of the 28 November 2002 meeting.[9]

On 3 January 2003, petitioners filed a complaint for injunction and damages with the Regional Trial Court, Branch 29, Iloilo City (trial court) docketed as Civil Case No. No. 03-27460.[10] Petitioners assailed the Principal’s decision to order the immediate transfer of petitioner students as a violation of their right

to due process because the COSD was not convened.

On 5 February 2003, the trial court issued a writ of preliminary injunction and directed respondents to admit petitioner students during during the pendency of the case.[11] case.[11] The 5 February 2003 Order reads:

WHEREFORE, let [a] Writ of Preliminary Mandatory Injunction issue. The defendants are hereby directed to allow the plaintiff’s minor children to attend their classes during the pendency of this case,

without prejudice to any disciplinary proceeding to which any or all of them may be liable.

SO ORDERED.[12]

Respondents filed a motion for reconsideration and and asked for the dissolution of the the writ. The trial court denied respondents’ motion.

Respondents complied but with reservations.

On 25 March 2003, respondents filed a motion to dismiss. Respondents alleged that the trial court had no jurisdiction over the subject matter of the case and that petitioners were guilty of forum shopping. On 19 May 2003, the trial court denied respondents’ motion. Respondents filed a motion for reconsideration.

On 21 April 2003, petitioners wrote the DepEd and asked that it direct the University to release the report cards and other credentials of petitioner students.[13] On 8 May 2003, the DepEd sent sent a letter to the University advising it to release petitioner students’ report cards and other credentials if there was

no valid reason to withhold the same.[14] On 14 May 2003, the DepEd sent another letter to the University to follow- up petitioners’ request.*15+ On 20 May 2003, the University University replied that it could not release petitioner students’ report c ards due to their pending disciplinary case with the COSD.*16+

On 28 May 2003, petitioners filed another complaint for mandatory injunction praying for the release of petitioner students’ report cards and other credentials docketed as Civil Case No. 03-

27646.[17]

The trial court consolidated the two cases.[18]

On 17 June 2003, the trial court issued a writ of preliminary injunction and directed the University to release petitioner students’ report cards and other credentials.*19+ Respondents filed a motion motion for

reconsideration. Respondents alleged that they could not not comply with the writ because of the on-going disciplinary case against petitioner students.

On 26 June 2003, the COSD met with petitioners for a preliminary conference on the hazing incident. On 7 July 2003, the University, University, through the COSD, issued its report finding petitioner petitioner students guilty of hazing. The COSD also recommended the exclusion of petitioner students from its rolls effective 28 November 2002.

On 14 July 2003, the trial c ourt issued an Order denying both motions for reconsideration.[20]

On 1 September 2003, respondents re spondents filed a special civil action for certiorari with the Court of  Appeals. Respondents insisted that the trial court had no jurisdiction over the subject matter of Civil

Case Nos. 03-27460 and 03-27646. Respondents also alleged that petitioners were guilty of forum shopping.

The Ruling of the Court of Appeals

In its 16 June 2005 Decision, the Court of Appeals granted respondents’ petition and ordered the

trial court to dismiss Civil Case

Nos. 03-27460 and 03-27646 for lack of jurisdiction over the subject

matter because of petitioners’ failure to exhaust administrative remedies or for being premature.

According to the Court of Appeals, petitioners should have waited for the action of the DepEd or of the University President before resorting to judicial action. The Court of Appeals held:

From the foregoing, it is clear that the court a quo committed grave [abuse] of discretion amounting to LACK OF JURISDICTION in INTERFERING, pre-maturely, with the exclusive and inherent authority of  educational institutions to discipline.

In directing herein petitioners [respondents in this case] to re-admit herein private respondents [petitioners in this case] and eventually, to re lease the report cards and other school credentials, prior to the action of the President of USA and of the recommendation of the COSD, the court a quo is guilty of improper judicial intrusion by encroaching into the exclusive prerogative of educational institutions.[21]

Petitioners filed a motion for reconsideration.[22] In its 22 March 2006 Resolution, the Court of  Appeals denied petitioners’ motion for lack of merit.

The Issues

Petitioners raise the following issues:

1.

Was the Court of Appeals correct in holding that Branch 29 of the Regional Trial Court of Iloilo City

in Civil Case Nos. 03-27460 and 03-27646 did not acquire jurisdiction over the subject matte r of this case for failure of petitioners to exhaust administrative remedies? 2.

Was the recommendation/report/order of the Committee on Student Discipline dated 7 July 2003

valid, and did it justify the order of exclusion of petitioner students retroactive to 28 November 2002?[23]

The Ruling of the Court

The petition has no merit.

Discipline in education is specifically mandated by the 1987 Constitution which provides that all educational institutions shall “teach the rights and duties of citizenship, strengthen ethical and spiritual

values, develop moral character and personal discipline.”*24+ Schools and school administrators have the authority to maintain school discipline[25] and the right to impose appropriate and reasonable disciplinary measures.[26] On the other hand, students have the duty and the responsibility to promote and maintain the peace and tranquility of the school by observing the rules of discipline.[27]

In this case, we rule that the Principal had the authority to order t he immediate transfer of  petitioner students because of the 28 November 2002 agreement.[28] Petitioner parents affixed their signatures to the minutes of the 2 8 November 2002 meeting and signified their conformity to transfer their children to another school. Petitioners Socorro Canto and Nelia Duro even wrote a letter to inform the University that they would transfer t heir children to another school and requested for t he pertinent papers needed for the transfer.[29] In turn, the University did not anymore convene the COSD. The University agreed that it would no longer conduct disciplinary proceedings and instead issue the transfer credentials of petitioner students. Then petitioners reneged on their agreement without any justifiable reason. Since petitioners’ present complaint is one for injunction, and injunction is the strong arm of 

equity, petitioners must come to court with clean hands. In University of the Philippines v. Hon. Catungal, Jr.,[30] a case involving student misconduct, this Court r uled:

Since injunction is the strong arm of equity, he who must apply for it must come with equity or with clean hands. This is so because among the maxims of equity are (1) he who seeks equity must do equity, and

(2) he who comes into equity must come with clean hands. The latter is a frequently

stated maxim which is also expressed in the principle that he who has done inequity shall not have

equity. It signifies that a litigant may be denied relief by a court of equity on the ground that his conduct has been inequitable, unfair and dishonest, or fraudulent, or deceitful as to the controversy in issue.[31]

Here, petitioners, having reneged on their agre ement without any justifiable reason, come to court with unclean hands. This Court may deny a litigant relief if his conduct has been inequitable, unfair and dishonest as to the controversy in issue.

Since petitioners have come to court with inequitable and unfair conduct, we deny them relief. We uphold the validity of the 28 November 2002 ag reement and rule that the Principal had the authority to order the immediate transfer of petitioner students based on the 28 November 2002 ag reement.

WHEREFORE, we DENY the petition. We AFFIRM the 16 June 2005 Decision and the 22 March 2006 Resolution of the Court of Appeals.

SO ORDERED

G.R. No. 161338

April 27, 2007

LUZ GARCIA, JUSTO LUKBAN, ALICE ADEVA, MARCEL LUKBAN, WAVA ANN BAYLON, PAMELA ROSANNA APUYA, ALBERTO GARCIA, JR., AIDA FERRER and JANET VENIDA, Petitioners, vs. ROMULO M. ADEVA, CEZAR E. ECHANO and LIBRADO GUERRA, Respondents. *

DECISION

AUSTRIA-MARTINEZ, J.:

Assailed in the present Petition for Review on Certiorari is the Decision 1 of the Court of Appeals (CA) dated September 18, 2002 nullifying the Resolution dated July 11, 2000 of t he Securities and Exchange Commission (SEC) En Banc and reinstating the Order dated March 13 , 2000 of the SEC Securities Investigation and Clearing Department’s (SICD’s) Hearing Panel (Hearing Panel). Also assailed is the CA

Resolution dated December 18, 2003, denying petitioners’ motion for reconsideration.

The petition stemmed from a dispute between two groups of shareholders within the Mabini College, Inc. (Mabini), with petitioners comprising the Garcia-Lukban group, and respondents, the Adeva group.

Sometime in 1995, petitioners filed SEC LEO Case No. 95-0005 (EB 496), a petition for Annual Elections of Stockholders and SEC Supervision in the Procedural Matter o f Corporate Inspection with Mandatory Injunction, wherein a committee was c omposed for the reconstitution of Mabini’s stock and transfer books.

On July 2, 1999, the incumbent Board of Trustees passed a resolution authorizing the sale through bidding of 106 treasury shares of stock of Mabini by its Pre-qualification, Bids and Award Committee (PBAC) on August 9, 1999. 2 The Board agreed during its Special Meeting held on July 13, 1999 to direct the PBAC to send out to all known stockholders invitations to bid for the entire 106 treasury shares for a minimum bulk bid of One Million Eighty One Thousand Two Hundred (P1,081,200.00) Pesos or Ten

Thousand Two Hundred (P10,200.00) Pesos per share. 3 The bidding, however, w as deferred to September 4, 1999. 4

Thus, petitioners filed on August 31, 1999, SEC Case No. 08-99-6398 seeking to enjoin the scheduled sale, alleging that since 1983, respondent Romulo Adeva (Adeva) intentionally failed to call a stockholders meeting for the election of Mabini’s Board of Trustees on the pretext that its stock and

transfer books are missing, ensuring his indefinite tenure as Pr esident of the corporation. Petitioners prayed that the impending sale be enjoined o n the grounds that the authority given by the Board of  Trustees to the PBAC contravenes Section 9 of the Corporation Code which gives the Board of Directors or Trustees the right to dispose said shares for a reasonable price fixed by the Board; that the scheme to bid out the shares is violative of the stockholders’ preemptive right to purchase treasury shares; 5 that

the stock and transfer book of Mabini has yet to be reconstituted; that as of the date of filing of the petition, there is no official list of stockholders of Mabini; and, that two members of the PBAC, namely: Cesar F. Echano (Echano) and Librado Guerra (Guerra) are not registered stockholders of Mabini. 6

Then SEC Chairman Perfecto Yasay, Jr. issued a temporary restraining order (TRO) on September 2 , 1999 which was extended until September 22 , 1999. Hearing on the application for the issuance of a preliminary injunction was set on September 20 and 21, 1999.

On September 23, 1999, after the expiration of the TRO, the PBAC re-scheduled the sale of the shares on September 28, 1999 at 1:00 to 3:00 p.m. 7 But before said date came, the Hearing Panel issued an Order dated September 27, 1999 granting the issuance of a writ of preliminary injunction, and enjoining the sale of the treasury shares, subject to the posting of an injunction bond in the amount of P50,000.00. 8

Attempt was made to serve a copy of the SEC Order in the morning of September 28, 1999, but it was refused by respondents’ counsel for the reason that the order was not signed by the majority of the

Hearing Panel. 9 The matter was subsequently rectified and at 3:30 p.m. of the same day, the Hearing Panel telefaxed a copy of the signed order but respondents’ counsel still refused to receive t he same on the ground that petitioners did not post an injunction bond and t hat the bidding had already commenced at 1:00 p.m. that day and was already finished, 10 with respondent Guerra as the winning bidder.

As a result, petitioners filed an Omnibus Motion praying that the sale of the treasury shares be nullified and that respondents be cited in indirect contempt. 11

The Hearing Panel denied petitioners’ Omnibus Motion per its Order dated March 1 3, 2000, finding that

there is no ground to nullify the sale or hold respondents in indirect contempt since at the time the sale was held, petitioners had yet to post an injunction bond which was done only on October 8, 1999, or 10 days after the scheduled sale. 12

Petitioners appealed to the SEC En Banc, and in its Resolution dated July 11, 2000, it affirmed the Hearing Panel’s finding that respondents may not be held in indirect contempt as the injunction order

was released "with some defects," but it nullified the sale of the treasury shares based on the Hearing Panel’s "prima facie" finding that it lacked authority from Mabini’s Board of Trustees. 13

This prompted respondents to file a petition for review with the CA.

On September 18, 2002, the CA issued the herein assailed Resolution, granting the petition. It nullified the SEC En Banc’s Resolution dated July 11, 2000 and reinstated the Hearing P anel’s Order dated March

13, 2000. 14 In sustaining the sale of the treasury shares, the CA found that the SEC En Banc went beyond the issue of the propriety of granting the writ of preliminary injunction when it annulled the Mabini’s board resolution authorizing the sale of the treasury shares. According to t he CA, the SEC En

Banc delved on matters that were not before it when it ruled that the board of trustees lacked the authority to dispose of the shares, instead of j ust ruling on whether the Hearing Panel abused its discretion in denying petitioners’ Omnibus Motion. The CA further stated that it does not concur with the SEC En Banc’s ruling that the sale lacked authority from Mabini’s board, as it was the board itself  which authorized the sale through the PBAC. Lastly, the CA sustained the Hearing Panel’s denial of  petitioners’ Omnibus Motion due to their fai lure to timely post an injunction bond. 15

The CA denied petitioners’ motion for reconsideration per Resolution dated December 18, 2003. 16

Petitioners are now before the Court alleging that:

I. THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN F INDING THAT THE SEC DELVED ON MATTERS WHICH WERE NOT LAID BEFORE IT IN THE PETITION FOR C ERTIORARI.

II. THE HONORABLE COURT OF APPEALS COMMITTED GRAVE ERROR WHEN IT FOUND THAT THE SALE OF TREASURY SHARES DID NOT LACK AUTHORITY FROM THE BOARD OF TRUSTEES

III. THE HONORABLE COURT OF APPEALS GRAVELY ERRED WHEN IT UPHELD THE HEARING PANEL’S FINDING THAT THERE IS NO GROUND TO NULLIFY THE BIDDING AND AWARD OF TREASURY SHARES SINCE NO WRIT HAS BEEN ISSUED PREVENTING SUCH BIDDING. 17

The Petition must be denied.

However, it must first be made clear whether the petition filed by petitioners dockete d as SEC Case No. 08-99-6398 is one which seeks only an ancillary remedy or one for Injunction, as a principal action.

The prayer of the Petition reads:

PRAYER

WHEREFORE, the foregoing premises considered, it is most respectfully prayed of this Honorable Commission that:

1. Upon the filing of this petition, a Temporary Re straining Order (TRO) be issued directing respondents, their agents or representatives to cease and desist from offering for sale the treasury shares of Mabini College, Inc. in a bidding to be held for the purpose, on 4 Se ptember 1999, at 12:00 noon, at the Case Room of the Mabini College, Daet Camarines Norte.

2. After due proceedings, said injunction be made permanent.1awphi1.nét

OTHER RELIEFS, just and equitable under the premises are likewise prayed for. 18

At first glance, it se ems obvious that petitioners’ action is only to enjoin respondents Adeva, in his

capacity as member of the Board B oard of Trustees and President of Mabini, Echano, Lydia E. Cacawa, and Guerra, as Chairmen and Members, re spectively of the PBAC of Mabini, "from offering for sale the treasury shares of Mabini College in a bidding to be held for the purpose, on Se ptember 4, 1999 at 12:00 noon."

Garayblas v. Atienza, Jr. 19 is instructive, to wit:

Injunction is a judicial writ, process or proceeding whereby a party is ordered to do or refrain from doing a certain act. It may be the main action or merely a provisional remedy for and as an incident in the main action. The Court has distinguished the main action for injunction from the provisional or ancillary remedy of preliminary injunction, thus:

The main action for injunction is distinct from the provisional or ancillary remedy of preliminary injunction which cannot exist except only as part or an incident of an independent action or proce eding. As a matter of course , in an action for injunction, the auxiliary remedy of preliminary injunction, whether prohibitory or mandatory, may issue. Under the law, the main action for injunction seeks a  judgment embodying a final injunction which is distinct distinct from, and should not be confused with, the provisional remedy of preliminary injunction, the sole object of which is to preserve the status quo until the merits can be heard. hear d. A preliminary injunction is granted at any stage of an action or proceeding prior to the judgment or final order. It persists until it is dissolved or until the t ermination of the action without the court issuing a final injunction. 20

Considering the fact that in this case petitioners also prayed that the injunction be made permanent; and considering the allegations in the petition that under S ection 9 of the Corporation Code, t he power to dispose treasury shares is given to the Board of Directors or Trustees and not to any other Committee created by the Board; that the bidding of treasury shares is a plot by the incumbent President Adeva to corner treasury shares in order to secure majority shareholdings for purposes of corporate control; and that the right of re spondents Echano and Guerra to act as Members of the Board of the PBAC is "very dubious" because their names, as subsequent buyers of shares, are not recorded in the Stock and Transfer Book of Mabini which has been declared missing and has yet to be reconstituted, 21 the Court is convinced that SEC Case No. 08-99-6398 is a principal action for Injunction, not merely for an ancillary remedy of writ of pre liminary injunction, wherein the main issues involved, among others, are: (1) whether the creation of the PBAC by the Board of Trustees is valid under the Corporation Code; (2) whether there was a quorum when the Board of Trustees authorized the sale of the treasury shares; and (3) whether respondents Echano and Guerra are bona fide shareholders. These issues are not involved

in SEC LEO Case No. 95-0005 (EB 496). The latter case is a separate action which involves the annual elections of stockholders and SEC supervision in the procedural matter of corporate injunction as well as the reconstitution of Mabini’s stock and transfer books; and the r econstitution is still being undertaken

at the time that SEC Case No. 08-99-6398 was filed by petitioners. Thus, SEC Case No. 08-99-6398 c annot even be referred to or consolidated with SEC LEO Case No. 95-0005 (EB 496). It is for the Hearing Panel in SEC Case No. 08-99-6398 t o determine whether a final injunction may be issued under the facts and the law of the case.

The issue in the present Petition for Review by Certiorari is whether t he CA erred in sustaining the Hearing Panel’s Order dated March 13, 2000 which denied for lack of merit me rit petitioners’ Omnibus Motion

to nullify the sale of the subject treasury sales in a bidding conducted by respondents on September 28, 1999.

Attacking the CA Decision, petitioners claim that the CA erred in finding that the SEC En Banc delved on matters which were not laid before it in the Petition for Certiorari Cer tiorari brought by petitioners questioning the denial of the Omnibus Motion by the Hearing Panel.

To know whether the SEC En Banc went beyond the issue of the propriety of granting the writ of  preliminary injunction in annulling the sale of the treasury shares, a look into the Omnibus Motion filed by petitioners with the Hearing Panel must be made as the Order dated March 13, 2000, denying the Omnibus Motion, is the precursor of the dispute at hand. It is from said motion where it can be determined what were the issues brought up to the SEC En Banc for resolution.

Petitioners’ Omnibus Motion sought the nu llity of the sale of the treasury shares in a bidding conducted

by the PBAC and to hold respondents in contempt. The only reason given by petitioners in claiming that the award of the tre asury shares to the winning bidder was null and void is that the bidding was made despite the issuance of a writ of o f preliminary injunction by the Hearing Panel per its Order date d September 27, 1999. 22 Petitioners also contended that respondents were guilty of indirect contempt for defying said Order. 23 Thus, it is only on these grounds that the Hearing Panel r esolved the Omnibus Motion per its Order dated March 13, 2000, to wit:

In the record however, is the petitioners’ bond in the amount of P50,000.00 pesos posted only on

October 08, 1999, or ten (10) days after the scheduled bidding of the shares of stock on September 28, 1999. Indeed, the injunction bond was late ly filed rendering the same as moot and academic to enjoin

the bidding. Hence, there is no ground to nullify the said proceedings and the result since no writ has been issued preventing such bidding.

Similarly, and since no bond was immediately posted and no writ was issued, the respondents cannot be charged of committing any act constituting indirect contempt of the Commission. The fact that the September 27, 1999 Order was released with some defects would normally put the respondents and their lawyers on guard, and to then scrutinize the regularity and validity of issuance is just a normal prudence [sic] for every litigants to do. And when the process server finally have [sic] a fax copy of the Order which was validly issued, the same was a fait accompli as the bidding was already done. 24 (Emphasis supplied)

Consequently, it was an error for the SEC En Banc to delve into the question whether the sale of the treasury shares lacked authority from the Board of Trustees, and to further flog the Hearing Panel for allegedly disregarding said issue in resolving the Omnibus Motion.

The Court does not subscribe to petitioners’ ar gument that a resolution on the issue of the legality of 

the corporate act authorizing the bidding sought to be enjoined is essential in the appeal taken by them from the Hearing Panel Resolution dated July 11, 200 0 25 to the SEC En Banc.

True, as stated by the SEC En Banc, that the Order dated September 29, 1999 granting petitioners’

application for the issuance of a writ of preliminary injunction made mention that the sale lacked authority from the Board of Trustees. 26 However, as stated by the SEC En Banc, it was merely a "prima facie finding," 27 i.e., subject to contradiction by o ther evidence that may be presente d during the trial on the merits of the main injunction case.

It cannot be over e mphasized that the lone ground relied upon by the Hearing Panel in denying petitioners’ motion to nullify the sale by PBAC of the treasury shares and to hold respondents in indirect contempt is petitioners’ failure to timely post a bond. Thus, any conclusive reliance on the alleged lack

of authority of the Board of Trustees will, in effect, dispose of the case o n the merits and would prematurely prejudge SEC Case No. 08-99-6398 without affording the parties the opportunity to r ebut such prima facie finding.

Any discussion on the validity of the authority to sell the tr easury shares by PBAC is premature. At best, the Hearing Panel’s finding on this score is merely preliminary, subject to a final ruling on the main case.

It is in this context that the Court finds that the CA should have refrained from dealing with the validity of the authority to sell the treasury shares. In the assailed Decision, the CA opined that it "cannot subscribe to the view that the sale of treasury shares lacked authority from the board of trustees x x x because it was precisely the board o f trustees themselves that authorized the sale o f the treasury shares through the PBAC." 28 In effect, the CA went against its own previous ruling that it was grave abuse of  discretion on the part of the SEC En Banc to resolve the matter.

The Court sustains the reinstatement of the Hearing Panel’s Order dated March 13, 2000. The absence of an injunction bond at the time that the bidding was conducted negates the petitioner’s demand for

the invalidity of the sale of the treasury shares and to hold petitioners in indirect contempt of court.

Sec. 4, Rule 58 of the 1997 Rules of Civil Procedure states:

Sec. 4. Verified application and bond for preliminary injunction or temporary r estraining order. - A preliminary injunction or temporary restraining order may be granted only when:

(a) The application in the action or proceeding is ver ified, and shows facts entitling the applicant to the relief demanded; and

(b) Unless exempted by the court, the applicant files with the court where the action or proceeding is pending, a bond executed to the party or person enjoined, in an amount to be fixed by the court, to the effect that the applicant will pay to such party or person all damages which he may sustain by reason of  the injunction or temporary restraining order if the court should finally decide that the applicant was not entitled thereto. Upon approval of the requisite bond, a writ of preliminary injunction shall be issued.

x x x x (Emphasis supplied).1awphi1.nét

Also, as stated by the Hearing Panel, the posting of the injunction bond is required by t he SEC New Rules of Procedure, to wit:

SECTION 1. Issuance of Preliminary Injunction. - A preliminary injunction may be granted by the Hearing Officer, upon bond filed with the Commission to be fixed by the Hearing Officer, at any time after the commencement of the action and before judgment when it is established after notice and hearing:

x x x x (Emphasis supplied).

A preliminary injunction or TRO may be granted only when, among others, the applicant, unless exempted by the court, files with the court where the action or proceeding is pending, a bond executed to the party or person enjoined, in an amount to be fixed by the court, to the effect that the applicant will pay such party or person all damages w hich he may sustain by reason of the injunction or TRO if the court should finally decide that the applicant was not entitled thereto. Upon approval of the requisite bond, a writ of preliminary injunction shall be issued. 29 It has been ruled that the posting of a bond is a condition sine qua non in order that the writ of preliminary injunction may issue. 30

Furthermore, respondents cannot be faulted for pushing through with the bidding and sale of the treasury shares. As the facts have it, the Order dated September 27, 1999 granting the issuance of a writ of preliminary injunction and enjoining the sale of the treasury shares was served on respondents’ counsel in the morning of the scheduled bidding date, Se ptember 28, 1999. Respondents’ counsel,

however, rightly refused to receive the order due to the apparent lack of signatures of the majority of  the Hearing Panel. By the time the defect was rectified and the order served on respondents’ counsel at

3:30 p.m. of the same day, the bidding had already commenced at 1:00 p.m., as scheduled, and the treasury shares sold to respondent Guerra. 31

Consequently, the CA is correct in nullifying the SEC En Banc Decision and in reinstating the Or der dated March 13, 2000 of the Hearing Panel.

WHEREFORE, the petition is DENIED for lack of me rit.

Costs against petitioners.

SO ORDERED.

Receivership

JUANITO A. GARCIA and ALBERTO J. DUMAGO, Petitioners, - versus -

PHILIPPINE AIRLINES, INC., Respondent.

Petitioners Juanito A. Garcia and Alberto J. Dumago assail the December 5, 2003 Decision and April 16, 2004 Resolution of the Court of Appeals[1] in CA-G.R. SP No. 69540 which granted the petition for certiorari of respondent, Philippine Airlines, Inc. (PAL), and denied petitioners’ Motion for

Reconsideration, respectively. The dispositive portion of the assailed Decision reads:

WHEREFORE, premises considered and in view of the foregoing, the instant petition is hereby GIVEN DUE COURSE. The assailed November 26, 2001 Resolution as well as the January 28, 2002 Resolution of public respondent National Labor Relations Commission [NLRC] is hereby ANNULLED and SET ASIDE for having been issued with grave abuse of discretion amounting to lack or excess of   jurisdiction. Consequently, the Writ of Execution and the Notice of Garnishment issued by the Labor Arbiter are hereby likewise ANNULLED and SET ASIDE.

SO ORDERED.[2]

The case stemmed from the administrative charge filed by PAL against its employees-herein petitioners[3] after they were allegedly caught in t he act of sniffing shabu when a team of company security personnel and law enforcers raided the PAL Tech nical Center’s Toolroom Section on July 24, 1995.

After due notice, PAL dismissed petitioners on October 9, 1995 for transgressing the PAL Code of  Discipline,[4] prompting them to file a complaint for illegal dismissal and damages which was, by Decision of January 11, 1999,[5] resolved by t he Labor Arbiter in their favor, thus ordering PAL to, inter alia, immediately comply with the reinstatement aspect of the decision.

Prior to the promulgation of the Labor Arbiter’s decision, the Securities and Exchange

Commission (SEC) placed PAL (hereafter referred to as respondent), which was suffering from severe financial losses, under an Interim Rehabilitation Receiver, who was subsequently replaced by a Permanent Rehabilitation Receiver on June 7, 1999.

From the Labor Arbiter’s decision, respondent appealed to the NLRC which, by Resolution of  January 31, 2000, reversed said decision and dismissed petitioners’ complaint for lack of merit.*6+

Petitioners’ Motion for Reconsideration was denied by Resolution of April 28, 2000 and Entry of 

Judgment was issued on July 13, 2000.[7]

Subsequently or on October 5, 2000, the Labor Arbiter issued a Writ of Execution (Writ) respecting the reinstatement aspect of his January 11, 1999 Decision, and on October 25, 2000, he issued a Notice of Garnishment (Notice). Respondent thereupon moved to quash the Writ and to lift the Notice while petitioners moved to release the garnished amount.

In a related move, respondent filed an Urgent Petition for Injunction with the NLRC which, by Resolutions of November 26, 2001 and January 28, 2002, affirmed the validity of the Writ and the Notice issued by the Labor Arbiter but suspended and referred the action to the Rehabilitation Receiver for appropriate action.

Respondent elevated the matter to the appellate court which issued the herein challenged Decision and Resolution nullifying the NLRC Resolutions on two grounds, essentially espousing that: (1) a subsequent finding of a valid dismissal removes the basis for implementing the reinstatement aspect of a labor arbiter’s decision (the first ground), and (2) the impossibility to comply with the

reinstatement order due to corporate rehabilitation provides a reasonable justification for the failure to exercise the options under Article 223 of the Labor Code (the second ground).

By Decision of August 29, 2007, this Court PARTIALLY GRANTED the present petition and effectively reinstated the NLRC Resolutions insofar as it suspended the proceedings, viz:

Since petitioners’ claim against PAL is a money claim for their wages during the pendency of  PAL’s appeal to the NLRC, the same should have been suspended pending the rehabilitation

proceedings. The Labor Arbiter, the NLRC, as well as the Court of Appeals should have abstained from resolving petitioners’ case for illegal dismissal and should instead have directed them to lodge their claim before PAL’s receiver.

However, to still require petitioners at this time to re-file their labor claim against PAL under peculiar circumstances of the case – that their dismissal was eventually held valid with only the matter of reinstatement pending appeal being the issue – this Court deems it legally expedient to suspend the proceedings in this case.

WHEREFORE, the instant petition is PARTIALLY GRANTED in that the instant proceedings herein are SUSPENDED until further notice from this Court. Accordingly, respondent Philippine Airlines, Inc. is hereby DIRECTED to quarterly update the Court as to the status of its ongoing rehabilitation. No costs.

SO ORDERED.[8] (Italics in the original; underscoring supplied)

By Manifestation and Compliance of October 30, 2007, respondent informed the Court that the SEC, by Order of September 28, 2007, granted its request to exit from rehabilitation proceedings.[9]

In view of the termination of the rehabilitation proceedings, the Court now proceeds to resolve the remaining issue for consideration, which is whether petitioners may collect their wages during the period between the Labor Arbiter’s order of reinstatement pending appeal and the NLRC decision

overturning that of the Labor Arbiter, now that respondent has exited from rehabilitation proceedings.

Amplification of the First Ground

The appellate court counted on as its first ground the view that a subsequent finding of a valid dismissal removes the basis for implementing the reinstatement aspect of a labor arbiter’s decision.

On this score, the Court’s attention is drawn to seemingly divergent decisions concerning

reinstatement pending appeal or, particularly, the option of payroll reinstatement. On the one hand is the jurisprudential trend as expounded in a line of cases including Air Philippines Corp. v. Zamora,[10] while on the other is the recent case of Genuino v. National Labor Relations Commission.[11] At the core of the seeming divergence is the application of paragraph 3 of Article 223 of the Labor Code which reads:

In any event, the decision of the Labor Arbiter reinstating a dismissed or separated employee, insofar as the reinstatement aspect is concerned, shall immediately be executory, pending appeal. The employee shall either be admitted back to work under the same terms and conditions prevailing prior to his dismissal or separation or, at the option of the employer, merely reinstated in the payroll. The posting of a bond by the employer shall not stay the execution for reinstatement provided herein. (Emphasis and underscoring supplied)

The view as maintained in a number of cases is that:

x x x [E]ven if the order of reinstatement of the Labor Arbiter is reversed on appeal, it is obligatory on the part of the employer to reinstate and pay the wages of the dismissed employee during the period of appeal until reversal by the higher court. On the other hand, if the employee has been reinstated during the appeal period and such reinstatement order is reversed with finality, the employee is not required to reimburse whatever salary he received for he is entitled to such, more so if he actually rendered services during the period.[12] (Emphasis in the original; italics and underscoring supplied)

In other words, a dismissed employee whose case was favorably decided by t he Labor Arbiter is entitled to receive wages pending appeal upon reinstatement, which is immediately executory.

Unless there is a restraining order, it is ministerial upon the Labor Arbiter to implement the order of  reinstatement and it is mandatory on the employer to comply therewith.[13]

The opposite view is articulated in Genuino which states:

If the decision of the labor arbiter is later reversed on appeal upon the finding that the ground for dismissal is valid, then the employer has the right to require t he dismissed employee on payroll reinstatement to refund the salaries s/he received while t he case was pending appeal, or it can be deducted from the accrued benefits that the dismissed employee was entitled to receive from his/her employer under existing laws, collective bargaining agreement provisions, and company practices. However, if the employee was reinstated to work during t he pendency of the appeal, then the employee is entitled to the compensation received for actual services rendered without need of  refund.

Considering that Genuino was not reinstated to work or placed on payroll reinstatement, and her dismissal is based on a just cause, then she is not entitled to be paid the salaries stated in item no. 3 of the fallo of the September 3, 1994 NLRC Decision.[14] (Emphasis, italics and underscoring supplied)

It has thus been advanced that there is no point in releasing the wages to petitioners since their dismissal was found to be valid, and to do so would constitute unjust enrichment.

Prior to Genuino, there had been no known similar case containing a dispositive portion where the employee was required to refund the salaries received on payroll reinstatement. In fact, in a catena of cases,[15] the Court did not order the refund of salaries garnished or received by payrollreinstated employees despite a subsequent reversal of the reinstatement order.

The dearth of authority supporting Genuino is not difficult to fathom for it would otherwise render inutile the rationale of reinstatement pending appeal.

x x x [T]he law itself has laid down a compassionate policy which, once more, vivifies and enhances the provisions of the 1987 Constitution on labor and the working man.

xxxx

These duties and responsibilities of the State are imposed not so much to express sympathy for the workingman as to forcefully and meaningfully underscore labor as a primary social and economic force, which the Constitution also expressly affirms with equal intensity. Labor is an indispensable partner for the nation's progress and stability.

xxxx

x x x In short, with respect to decisions reinstating employees, the law itself has determined a sufficiently overwhelming reason for its execution pending appeal.

xxxx

x x x Then, by and pursuant to the same power (police power), the State may authorize an immediate implementation, pending appeal, of a decision reinstating a dismissed or separated employee since that saving act is designed to stop, although temporarily since the appeal may be decided in favor of the appellant, a continuing threat or danger to the survival or even the life of the dismissed or separated employee and his family.[16]

The social justice principles of labor law outweigh or render inapplicable the civil law doctrine of  unjust enrichment espoused by

Justice Presbitero Velasco, Jr. in his Separate Opinion. The

constitutional and statutory precepts portray the otherwise “unjust” situation as a condition affording

full protection to labor.

Even outside the theoretical trappings of the discussion and into the mundane realities of  human experience, the “refund doctrine” easily demonstrates how a favorable decision by the Labor

Arbiter could harm, more than help, a dismissed employee. The employee, to make both ends meet, would necessarily have to use up the salaries received during the pendency of the appeal, only to end up having to refund the sum in case of a final unfavorable decision. It is mirage of a stop-gap leading the employee to a risky cliff of insolvency.

Advisably, the sum is better left unspent. It becomes more logical and practical for the employee to refuse payroll reinstatement and simply find work elsewhere in the interim, if any is available. Notably, the option of payroll reinstatement belongs to the employer, even if the employee is able and raring to return to work. Prior to Genuino, it is unthinkable for one to refuse payroll reinstatement. In the face of the grim possibilities, the rise of concerned employees declining payroll reinstatement is on the horizon.

Further, the Genuino ruling not only disregards the social justice principles behind the rule, but also institutes a scheme unduly favorable to management. Under such scheme, the salaries dispensed pendente lite merely serve as a bond posted in installment by the employer. For in the event of a reversal of the Labor Arbiter’s decision ordering reinstatement, the employer gets back the same

amount without having to spend ordinarily for bond premiums. This circumvents, if not directly contradicts, the proscription that the “posting of a bond *even a cash bond+ by the employer shall not stay the execution for reinstatement.”*17+

In playing down the stray posture in Genuino requiring the dismissed employee on payroll reinstatement to refund the salaries in case a final decision upholds the validity of the dismissal, the Court realigns the proper course of the prevailing doctrine on reinstatement pending appeal vis-à-vis the effect of a reversal on appeal.

Respondent insists that with the reversal of the Labor Arbiter’s Decision, there is no more basis to

enforce the reinstatement aspect of the said decision. In his Separate Opinion, Justice Presbitero Velasco, Jr. supports this argument and finds the prevailing doctrine in Air Philippines and allied cases inapplicable because, unlike the present case, t he writ of execution therein was secured prior t o the reversal of the Labor Arbiter’s decision.

The proposition is tenuous. First, the matter is treated as a mere race against time. The discussion stopped there without considering the cause of the delay. Second, it requires the issuance

of a writ of execution despite the immediately executory nature of the reinstatement aspect of the decision. In Pioneer Texturing Corp. v. NLRC,[18] which was cited in Panuncillo v. CAP Philippines, Inc.,[19] the Court observed:

x x x The provision of Article 223 is clear that an award [by the Labor Arbiter] for reinstatement shall be immediately executory even pending appeal and the posting of a bond by the employer shall not stay the execution for reinstatement. The legislative intent is quite obvious, i.e., to make an award of  reinstatement immediately enforceable, even pending appeal. To require the application for and issuance of a writ of execution as prerequisites for the execution of a reinstatement award would certainly betray and run counter to the very object and intent of Article 223, i.e., the immediate execution of a reinstatement order. The reason is simple. An application for a writ of execution and its issuance could be delayed for numerous reasons. A mere continuance or postponement of a scheduled hearing, for instance, or an inaction on the part of the Labor Arbiter or the NLRC could easily delay the issuance of the writ thereby setting at naught the strict mandate and noble purpose envisioned by Article 223. In other words, i f the requirements of Article 224 [including the issuance of  a writ of execution] were to govern, as we so declared in Maranaw, then the executory nature of a reinstatement order or award contemplated by Article 223 will be unduly circumscribed and rendered ineffectual. In enacting the law, the legislature is presumed to have ordained a valid a nd sensible law, one which operates no further than may be necessary to achieve its specific purpose. Statutes, as a rule, are to be construed in the light of the purpose to be achieved and the evil sought to be remedied. x x x In introducing a new rule on the reinstatement aspect of a labor decision under Republic Act No. 6715, Congress should not be considered to be indulging in mere semantic exercise. x x x[20] (Italics in the original; emphasis and underscoring supplied)

The Court reaffirms the prevailing principle that even if the order of reinstatement of the Labor Arbiter is reversed on appeal, it is obligatory on the part of the employer to reinstate and pay the wages of the dismissed employee during the period of appeal until reversal by the higher court.[21] It settles the view that the Labor Arbiter's order of reinstatement is immediately executory and the employer has to either re-admit them to work under the same terms and conditions prevailing prior to their dismissal, or to reinstate them in the payroll, and that failing to exercise the options in the alternative, employer must pay the employee’s salaries.[22]

Amplification of the Second Ground

The remaining issue, nonetheless, is resolved in the negative on the strength of the second ground relied upon by the appellate court in the assailed issuances. The Court sustains the appellate court’s finding that the peculiar predicament of a corporate rehabilitation rendered it impossible for respondent to exercise its option under the c ircumstances.

The spirit of the rule on reinstatement pending appeal animates the proceedings once the Labor Arbiter issues the decision containing an order of reinstatement. The immediacy of its execution needs no further elaboration. Reinstatement pending appeal necessitates its immediate execution during the pendency of the appeal, if the law is to serve its noble purpose. At the same time, any attempt on the part of the employer to evade or delay its execution, as observed in Panuncillo and as what actually transpired in Kimberly,[23] Composite,[24] Air Philippines,[25] and Roquero,[26] should not be countenanced.

After the labor arbiter’s decision is reversed by a higher tribunal, the employee may be barred

from collecting the accrued wages, if i t is shown that the delay in enforcing the reinstatement pending appeal was without fault on the part of the employer.

The test is two-fold: (1) there must be actual delay or the fact t hat the order of reinstatement pending appeal was not executed prior to its reversal; and (2) the delay must not be due to the employer’s unjustified act or omission. If the delay is due to the employer’s unjustified refusal, the employer may still be required to pay the salaries notwithstanding the reversal of the Labor Arbiter’s

decision.

In Genuino, there was no showing that the employer refused to reinstate the employee, who was the Treasury Sales Division Head, during the short span of four months or from the promulgation on May 2, 1994 of the Labor Arbiter’s Decision up to the promulgation on September 3, 1994 of the

NLRC Decision. Notably, the former NLRC Rules of Procedure did not lay down a mechanism to promptly effectuate the self-executory order of reinstatement, making it difficult to establish that the employer actually refused to comply.

In a situation like that in International Container Terminal Services, Inc. v. NLRC[27] where it was alleged that the employer was willing to comply with the order and that the employee opted not to pursue the execution of the order, the Court upheld the self-executory nature of t he reinstatement order and ruled that the salary automatically accrued from notice of the Labor Arbiter's order of  reinstatement until its ultimate reversal by the NLRC. It was later discovered that the employee

indeed moved for the issuance of a writ but was not acted upon by the Labor Arbiter. In that scenario where the delay was caused by the Labor Arbiter, it was ruled that the inaction of the Labor Arbiter who failed to act upon the employee’s motion for the issuance of a writ of execution may no longer

adversely affect the cause of the dismissed employee in view of the self-executory nature of the order of reinstatement.[28]

The new NLRC Rules of Procedure, which took effect on January 7, 2006, now require the employer to submit a re port of compliance within 10 calendar days from r eceipt of the Labor Arbiter’s decision,[29] disobedience to which clearly denotes a refusal to reinstate. The employee need not file a motion for the issuance of the writ of execution since the Labor Arbiter shall thereafter motu proprio issue the writ. With the new rules in place, there is hardly any difficulty in determining the employer’s intransigence in immediately complying with the order.

In the case at bar, petitioners exerted efforts[3 0+ to execute the Labor Arbiter’s order of  reinstatement until they were able to secure a writ of execution, albeit issued on October 5, 2000 after the reversal by the NLRC of the Labor Arbiter’s decision. Technically, there was still actual delay

which brings to the question of whether the delay was due to respondent’s unjustified act or omission.

It is apparent that there was inaction on the part of respondent to reinstate them, but whether such omission was justified depends on the onset of the exigency of corporate rehabilitation.

It is settled that upon appointment by the SEC of a rehabilitation receiver, all actions for claims before any court, tribunal or board against the corporation shall ipso jure be suspended.[31] As stated early on, during the pendency of petitioners’ complaint before the Labor Arbiter, the SEC

placed respondent under an Interim Rehabilitation Receiver. After the Labor Arbiter rendered his decision, the SEC replaced the Interim Rehabilitation Receiver with a Permanent Rehabilitation Receiver.

Case law recognizes that unless there is a restraining order, the implementation of the order of  reinstatement is ministerial and mandatory.[32] This injunction or suspension of claims by legislative fiat[33] partakes of the nature of a restraining order that constitutes a legal justification for respondent’s non-compliance with the reinstatement order. Respondent’s failure to exercise the alternative options of actual reinstatement and payroll reinstatement was thus justified. Such being

the case, respondent’s obligation to pay the salaries pending appeal, as the normal effect of the non-

exercise of the options, did not attach.

While reinstatement pending appeal aims to avert the c ontinuing threat or danger to the survival or even the life of the dismissed employee and his family, it does not contemplate the period when the employer-corporation itself is similarly in a judicially monitored state of being resuscitated in order to survive.

The parallelism between a judicial order of corporation rehabilitation as a justification for the non-exercise of its options, on the one hand, and a claim of actual and imminent substantial losses as ground for retrenchment, on the other hand, stops at the red line on the financial statements. Beyond the analogous condition of financial gloom, as discussed by Justice Leonardo Quisumbing in his Separate Opinion, are more salient distinctions. Unlike the ground of substantial losses contemplated in a retrenchment case, the state of corporate rehabilitation was judicially predetermined by a competent court and not formulated for the first time in this case by respondent.

More importantly, there are legal effects arising from a judicial order placing a corporation under rehabilitation. Respondent was, during the period material to the case, effectively deprived of  the alternative choices under Article 223 of the Labor Code, not only by virtue of the statutory injunction but also in view of the interim relinquishment of management control to give way to the full exercise of the powers of the rehabilitation receiver. Had there been no need to rehabilitate, respondent may have opted for actual physical reinstatement pending appeal to optimize t he utilization of resources. Then again, though the management may think this wise, the rehabilitation receiver may decide otherwise, not to mention the subsistence of the injunction on claims.

In sum, the obligation to pay the employee’s salaries upon the employer’s failure to exercise the

alternative options under Article 223 of the Labor Code is not a hard and fast rule, considering the inherent constraints of corporate rehabilitation.

WHEREFORE, the petition is PARTIALLY DENIED. Insofar as the Court of Appeals Decision of December 5, 2003 and Resolution of April 16, 2004 annulling the NLRC Resolutions affirming the validity of the Writ of Execution and the Notice of Garnishment are concerned, the Court finds no reversible error.

SO ORDERED.

EN BANC

G.R. No. L-29169

August 19, 1968

ROGER CHAVEZ, petitioner, vs. THE HONORABLE COURT OF APPEALS, THE PEOPLE OF THE PHILIPPINES and THE WARDEN OF THE CITY JAIL OF MANILA, respondents.

Estanislao E. Fernandez and Fausto Arce for petitioner. Office of the Solicitor General for respondents.

SANCHEZ, J.:

The thrust of petitioner's case presented in his original and supplementary petitions invoking  jurisdiction of this Court is that he is entitled, on habeas corpus, to be freed from imprisonment upon the ground that in the trial which resulted in his conviction1 he was denied his constitutional right not to be compelled to testify against himself. There is his prayer, too, that, should he fail in this, he be granted the alternative remedies of certiorari to strike down the two resolutions of the Court of  Appeals dismissing his appeal for failure to file brief, and of mandamus to direct the said court to forward his appeal to this Court for the reason that he was raising purely questions of law.

The indictment in the court below — the third amended information — upon which the judgment of  conviction herein challenged was rendered, was for qualified theft of a motor vehicle, one (1) Thunderbird car, Motor No. H9YH-143003, with Plate No. H-16648 Pasay City '62 together with its accessories worth P22,200.00. Accused were the following: Petitioner herein, Roger Chavez, Ricardo Sumilang alias "Romeo Vasquez", Edgardo P. Pascual alias "Ging" Pascual, Pedro Rebullo alias "Pita", Luis Asistio alias "Baby" Asistio, Lorenzo Meneses alias "Lory" Meneses, Peter Doe, Charlie Doe and Paul Doe.2

Averred in the aforesaid information was that on or about the 14th day of November, 1962, in Quezon City, the accused conspired, with intent of gain, abuse of confidence and without the c onsent of the owner thereof, Dy Sun Hiok y Lim, in asporting the motor vehicle above-described.

Upon arraignment, all the accused, except the three Does who have not been identified nor apprehended, pleaded not guilty.1äwphï1.ñët

On July 23, 1963, trial commenced before the judge presiding Branch IX of the Court of First Instance of Rizal in Quezon City.

The trial opened with the following dialogue, which for the great bearing it has on this case, is here reproduced:.

COURT:

The parties may proceed.

FISCAL GRECIA:

Our first witness is Roger Chavez [one of the accused].

ATTY. CARBON [Counsel for petitioner Chavez]:

I am quite taken by surprise, as counsel for the accused Roger Chavez, with t his move of the Fiscal in presenting him as his witness. I object.

COURT:

On what ground, counsel? .

ATTY. CARBON:

On the ground that I have to confer with my client. It is really surprising that at this stage, without my being notified by the Fiscal, my client is being presented as witness for the prosecution. I want to say in passing that it is only at this very moment that I come to know about this strategy of the prosecution.

COURT (To the Fiscal):

You are not withdrawing the information against the accused Roger Chavez by making [him a] state witness?.

FISCAL GRECIA:

I am not making him as state witness, Your Honor. I am only presenting him as an ordinary witness.

ATTY. CARBON:

As a matter of right, because it will incriminate my client, I object.

COURT:

The Court will give counsel for Roger Chavez fifteen minutes within which to confer and explain t o his client about the giving of his testimony.

xxx

xxx

xxx

COURT: [after the recess]

Are the parties ready? .

FISCAL:

We are ready to call on our first witness, Roger Chavez.

ATTY. CARBON:

As per understanding, the proceeding was suspended in order to enable me to confer with my client.

I conferred with my client and he assured me that he will not testify for the prosecution this morning after I have explained to him the consequences of what will transpire.

COURT:

What he will testify to does not necessarily incriminate him, counsel.

And there is the right of the prosecution to ask anybody to act as witness on the witness-stand including the accused.

If there should be any question that is incriminating then that is the time for counsel to interpose his objection and the court will sustain him if and when the court feels that the answer of this witness to the question would incriminate him.

Counsel has all the assurance that the court will not require the witness to answer questions which would incriminate him.

But surely, counsel could not object to have the accused called on the witnessstand.

ATTY. CARBON:

I submit.

xxx

xxx

xxx

ATTY. CRUZ [Counsel for defendants Pascual and Meneses]: .

MAY IT PLEASE THE COURT:

This incident of the accused Roger Chavez being called to testify for the prosecution is something so sudden that has come to the knowledge of this counsel.

This representation has been apprised of the witnesses embraced in the information.

For which reason I pray this court that I be given at least some days to meet whatever testimony this witness will bring about. I therefore move for postponement of today's hearing.

COURT:

The court will give counsel time within which to prepare his cross-examination of this witness.

ATTY. CRUZ:

I labored under the impression that the witnesses for the prosecution in this criminal case are those only listed in the information.

I did not know until this morning that one of the accused will testify as witness for t he prosecution.

COURT:

That's the reason why the court will go along with counsels for the accused and will give them time within which to prepare for their cross-examination of this witness.

The court will not defer the taking of the direct examination of the witness.

Call the witness to the witness stand.

EVIDENCE FOR THE PROSECUTION

ROGER CHAVEZ, 31 years old, single, buy and sell merchant, presently detained at the Manila Police Department headquarters, after being duly sworn according to law, declared as follows:

ATTY. IBASCO [Counsel for defendant Luis Asistio]:

WITH THE LEAVE OF THE COURT:

This witness, Roger Chavez is one of the accused in this case No. Q-5311.

The information alleges conspiracy. Under Rule 123, Section 12, it states:

'The act or declaration of a conspirator relating to the conspiracy and during its existence, may be given in evidence against the co-conspirator after t he conspiracy is shown by evidence other than such act or declaration.'

COURT:

That is premature, counsel. Neither the court nor counsels for the accused know what the prosecution events to establish by calling this witness t o the witness stand.

ATTY. IBASCO:

I submit.

COURT: The Fiscal may proceed.3

And so did the trial proceed. It began with the "direct examination" of Roger Chavez by "Fiscal Grecia".

Came the judgment of February 1, 1965. The version of the prosecution as found by the court below may be briefly narrated as follows:

A few days before November 12, 1962, Roger Chavez saw Johnson Lee, a Chinese, driving a Thunderbird car. With Ricardo Sumilang (movie actor Romeo Vasquez) in mind, whom he knew was in the market for such a car, Chavez asked Lee whether his car was for sale. Lee answered affirmatively and left his address with Chavez. Then, on November 12, Chavez met Sumilang at a barbershop informed him about the Thunderbird. But Sumilang said that he had changed his mind about buying a new car. Instead, he told Chavez that he wanted to mortgage his Buick car for P10,000.00 to cover an indebtedness in Pasay City. Upon the suggestion of Chavez, they went to see Luis Asistio, who he knew was lending money on car mortgages and who, on one occasion, already lent Romeo Vasquez P3,000.00 on the same Buick car. Asistio however told the two that he had a better idea on how to raise the money. His plan was to capitalize on Romeo Vasquez' reputation as a wealthy movie star, introduce him as a buyer to someone who was selling a car and, after the deed of sale is signed, by trickery to run away with the car. Asistio would then register it, sell it to a third person for a profit. Chavez known to be a car agent was included in the plan. He furnished the name of Johnson Lee who was selling his Thunderbird. 1äwphï1.ñët

In the morning of November 14, Chavez telephoned Johnson Lee and arranged for an appointment. Sometime in the afternoon. Chavez and Sumilang met Lee in his Thunderbird on Highway 54. Sumilang was introduced as the interested buyer. Sumilang's driver inspected the car, took the wheel for a while. After Sumilang and Lee agreed on the purchase price ( P21.000.00), they went to Binondo to Johnson Lee's cousin, Dy Sun Hiok, in whose name the car was registered. Thereafter, they went to see a lawyer notary public in Quezon City, known to Chavez for the drafting of the deed of sale. After the deed of sale was drawn up, it was signed by Sumilang as the vendee, Dy Sun Hiok t he vendor, and Sumilang's driver and Johnson Lee the witnesses thereto.

As payment was to be made at Eugene's restaurant in Quezon City, all of them then drove in the Thunderbird car to that place. The deed of sale and other papers remained in the pockets of Johnson Lee.

At Eugene's, a man approached Sumilang with a note which stated that the money was ready at the Dalisay Theater. Sumilang then wrote on the same note that the money should be brought to the restaurant. At the same time he requested Lee to exhibit the deed of sale of the car to the note bearer.4

Then, the two Chinese were left alone in the restaurant. For Sumilang, who had left the table to pose for pictures with some fans and come back, again left never to return. So did Chavez, who disappeared after he left on the pretext of buying cigarettes. The two Chinese could not locate

Sumilang and Chavez. They went out to the place where the Thunderbird was parked, found that it was gone. They then immediately reported its loss to the police. Much later, the NBI recovered the already repainted car and impounded it.

Right after the meeting at Eugene's, Chavez, Sumilang and Asistio converged that same day at Barrio Fiesta, a restaurant at Highway 54 near the Balintawak monument in C aloocan. There, Asistio handed to Sumilang P1,000.00 cash and a golf set worth P800.00 as the latter's share in the transaction. On the 14th of November, the registration of the car was transferred in the name of Sumilang in Cavite City, and three days later, in the name of Asistio in Caloocan.

From the court's decision, Ricardo Sumilang's version, corroborated in part by Asistio, may be condensed as follows:

In the last week of September, 1962, Sumilang saw Roger Chavez at a gas station. The latter informed him that there was a Thunderbird from Clark Field for sale for a price between P20,000.00 and P22,000.00. Chavez said that it could be held for him with a down payment of P10,000.00.

To raise this sum, Sumilang and Chavez, on October 1, went to the house of a certain Nena Hernaez de los Reyes who wrote out a check for P5,000.00 as a loan to Sumilang. That check was exhibited in court. Sumilang and Chavez then went to Pasay City to see a certain Mario Baltazar, an agent of the Pasay City Mayor, and Narsing Cailles, Chief of the Fire Department. Sumilang asked the two for a P10,000-loan backed up by the P5,000.00-check aforesaid on condition that it should not be cashed immediately as there were not enough funds therefor. Baltazar and Cailles agreed to give the money the nextday as long as the check would be left with them and Sumilang would sign a promissory note for P10,000.00. Baltazar later informed Sumilang that Chavez picked up the money the next day. Four or five days afterwards, Chavez returned P4,000.00 to Sumilang because P6,000.00 was enough for the deposit. And so, Sumilang gave back the P4,000.00 to Baltazar.

About the end of October or at the beginning of November, Chavez asked Sumilang for another P3,000.00. Sumilang sent Chavez to Baltazar and C ailles, with a note requesting that t hey accommodate him once more. He also sent a check, again without funds. Baltazar gave the money after verifying the authenticity of the note.

On November 14, Chavez appeared at Sumilang's house with the news that the car was ready if  Sumilang was ready with the rest of the money. So Sumilang got P9,000.00 from his mother and another P4,000.00 from his aparador. He immediately gave P6,000.00 t o Chavez, intending to pay out the balance upon the car's delivery. It was then that Chavez told Sumilang that the car was already bought by a Chinese who would be the vendor.

The purchase price finally agreed upon between Sumilang and Johnson Lee was P21,000.00, plus P500.00 agents commission at the expense of the buyer. Sumilang told Lee that he already paid part of the price to Chavez.

At Eugene's, Chavez asked Sumilang for the balance. Sumilang accommodated. There, Sumilang, also saw a friend, "Ging" Pascual. In the course of their conversation at the bar, Sumilang mentioned the proposed transaction thru Chavez. Pascual warned that Chavez was a "smart" agent and advised that Sumilang should have a receipt for his money. A certain Bimbo, a friend of Pascual, offered to make out a receipt for Chavez to sign.

After Sumilang returned from posing for some photographs with some of his fans, Bimbo showed him the receipt already signed by Chavez. Sumilang requested Pascual and Bimbo to sign the receipt as witnesses. And they did. This receipt was offered as an exhibit by the prosecution and by Sumilang.

When Sumilang was ready to leave Eugene's, Johnson Lee turned over to him the deed of sale, the registration papers and the keys to the car. After shaking hands with Lee, Sumilang drove away in the car with his driver at the wheel.

Two or three days afterwards, Sumilang dropped by the Barrio Fiesta on his way to a film shooting at Bulacan. He saw Asistio with many companions. Asistio liked his Thunderbird parked outside. Asistio offered to buy it from him for P22,500.00. As the offer was good, and knowing Asistio's and his friends' reputation for always getting what they wanted, Sumilang consented to the sale. Asistio tendered a down payment of P1,000.00; the balance he promised to pay the next day after negotiating with some financing company. Before said balance could be paid, t he car was impounded.

The trial court gave evidence to Sumilang's averment, strengthened by Baltazar's and Cailles' corroborations, that he paid good money for the car. Sumilang was thus cleared. So was Asistio whom

the trial court believed to be a mere buyer of the car. And so, the prosecution's theory of conspiracy was discounted.

As to the other accused, the court found no case against Pedro Rebullo alias "Pita" and Lorenzo Meneses alias "Lory". The accused "Ging" Pascual was also acquitted for in the first place he was not identified by Johnson Lee in court.

As to Roger Chavez, however, the court had this to say: "Roger Chavez does not offer any defense. As a matter of fact, his testimony as witness for the prosecution establishes his guilt beyond reasonable doubt."5 The trial court branded him "a self-confessed culprit".6 The court further continued:

It is not improbable that true to the saying that misery loves company Roger Chavez tried to drag his co-accused down with him by coloring his story with fabrications which he expected would easily stick together what with the newspaper notoriety of one and the sensationalism caused by the other. But Roger Chavez' accusations of Asistio's participation is utterly uncorroborated. And coming, as it does, from a man who has had at least two convictions for acts not very different from those charged in this information, the Court would be too gullible if it were to give full credence to his words even if they concerned a man no less notorious than himself.7

The trial court then came to the conclusion that if Johnson Lee was not paid for his car, he had no one but Roger Chavez to blame.

The sum of all these is that the trial court freed all the accused except Roger Chavez who was found guilty beyond reasonable doubt of the crime of qualified theft. He was accordingly sentenced to suffer an indeterminate penalty of not less than ten (10) years, one (1) day, as minimum and not more than fourteen (14) years, eight (8) months and one (1) day as maximum, to indemnify Dy Sun Hiok and/or Johnson Lee in the sum of P21,000.00 without subsidiary imprisonment in case of insolvency, to undergo the accessory penalties prescribed by law, and to pay the costs. The Thunderbird car then in the custody of the NBI was ordered to be turned over to Ricardo Sumilang, who was directed to r eturn to Asistio the sum of P1,000.00 unless the latter chose to pay P21,500.00, representing the balance of  the contract price for the car.

The foregoing sentence was promulgated on March 8, 1 965. Roger Chavez appealed to the Court of  Appeals.

On April 18, 1968, the Court of Appeals required Atty. Natividad Marquez, counsel for Roger Chavez, to show cause within ten days from notice why Chavez' appeal should not be considered abandoned and dismissed. Reason for this is that said lawyer received notice to file brief on December 28, 1967 and the period for the filing thereof lapsed on January 27, 1968 without any brief having been filed.

On May 13, 1968, Atty. Marquez registered a detailed written explanation. She also stated that if she were allowed to file appellant's brief she would go along with the factual findings of the court below but will show however that its conclusion is erroneous.8

On May 14, 1968, the Court of Appeals, despite the foregoing explanation, resolved to dismiss the appeal. A move to reconsider was unavailing. For, on June 21, 1968, the Court of Appeals, through a per curiam resolution, disposed to maintain its May 14 resolution dismissing the appeal, directed the City Warden of Manila where Chavez is confined by virtue of the warrant of arrest issued by the Court of Appeals, to turn him over to Muntinlupa Bilibid Prisons pending execution of the judgment below, and ordered remand of the case to the Quezon City court for execution of judgment.

It was at this stage that the present proceedings were commenced in this Court.

Upon the petitions, the return, and the reply, and after hearing on oral arguments, we now come to grips with the main problem presented.

We concentrate attention on that phase of the issues which relates petitioner's assertion that he was compelled to testify against himself. For indeed if this one question is resolved in the affirmative, we need not reach the others; in which case, these should not be pursued here.

1. Petitioner's plea on this score rests upon his averment, with proof, of violation of his right — constitutionally entrenched — against self-incrimination. He asks that the hand of this Court be made to bear down upon his conviction; that he be relieved of the effects thereof. He asks us to consider the constitutional injunction that "No person shall be compelled to be a witness against himself,"9 fully echoed in Section 1, Rule 115, Rules of Court where, in all criminal prosecutions, the defendant shall be entitled: "(e) To be exempt from being a witness against himself." .

It has been said that forcing a man to be a witness against himself is at war with "the fundamentals of  a republican government"; 10 that [i]t may suit the purposes of despotic power but it can not abide the pure atmosphere of political liberty and personal freedom."11 Mr. Justice Abad Santos recounts the historical background of this constitutional inhibition, thus: " "The maxim Nemo tenetur seipsum accusare had its origin in a protest against the inquisitorial and manifestly unjust methods of  interrogating accused persons, which has long obtained in the c ontinental system, and, until the expulsion of the Stuarts from the British throne in 1688, and the erection of additional barriers for the protection of the people against the exercise of arbitrary power, was not uncommon even in England. While the admissions of confessions of the prisoner, when voluntarily and freely made, have always ranked high in the scale of incriminating evidence, if an accused person be asked t o explain his apparent connection with a crime under investigation, the ease with which the questions put to him may assume an inquisitorial character, the temptation to press, the witness unduly, to browbeat him if he be timid or reluctant, to push him into a corner, and to entrap him into fatal contradictions, which is so painfully evident in many of the earlier state trials, notably in those of Sir Nicholas Throckmorton, and Udal, the Puritan minister, made the system so odious a s to give rise to a demand for its total abolition. The change in the English criminal procedure in that particular seems to be founded upon no statute and no judicial opinion, but upon a general and silent acquiescence of the courts in a popular demand. But, however adopted, it has become firmly embedded in English, as well as in American jurisprudence. So deeply did the iniquities of the ancient system impress themselves upon the minds of the American colonists that the states, with one accord, made a denial of the right to question an accused person a part of their fundamental law, so that a maxim which in England was a mere rule of evidence, became clothed in this country with t he impregnability of a constitutional enactment." (Brown vs. Walker, 161 U.S., 591, 597; 40 Law. ed., 819, 821)." 12 Mr. Justice Malcolm, in expressive language, tells us that this maxim was recognized in England in t he early days "in a revolt against the thumbscrew and the rack." 13 An old Philippine case [1904] 14 speaks of this constitutional injunction as "older than the Government of the United States"; as having "its origin in a protest against the inquisitorial methods of interrogating the accused person"; and as having been adopted in the Philippines "to wipe out such practices as formerly prevailed in these Islands of  requiring accused persons to submit to judicial examinations, and to give testimony regarding the offenses with which they were charged."

So it is then that this right is "not merely a formal technical rule the enforcement of which is left to the discretion of the court"; it is mandatory; it secures to a defendant a valuable and substantive right; 15 it is fundamental to our scheme of justice. Just a few months ago, the Supreme Court of the United States (January 29, 1968), speaking thru Mr. Justice Harlan warned that "[t]he constitutional privilege was intended to shield the guilty and imprudent as well as the innocent and foresighted." 16

It is in this context that we say that the constitutional guarantee may not be treated with unconcern. To repeat, it is mandatory; it secures to every defendant a valuable and substantive right. Tañada and

Fernando (Constitution of the Philippines, 4th ed., vol. I, pp. 583-584) take note of U.S. vs. Navarro, supra, which reaffirms the rule that the constitutional proscription was established on broad grounds of public policy and humanity; of policy because it would place the witness against the strongest temptation to commit perjury, and of humanity because it would be to extort a confession of truth by a kind of duress every species and degree of which the law abhors. 17

Therefore, the court may not extract from a defendant's own lips and against his will an admission of  his guilt. Nor may a court as much as resort to compulsory disclosure, directly or indirectly, of facts usable against him as a confession of the crime or the tendency of which is to prove the commission of a crime. Because, it is his right to forego testimony, to remain silent, unless he chooses to take the witness stand — with undiluted, unfettered exercise of his own free, genuine will.

Compulsion as it is understood here does not necessarily connote the use of violence; it may be the product of unintentional statements. Pressure which operates to overbear his will, disable him from making a free and rational choice, or impair his capacity for rational judgment would in our opinion be sufficient. So is moral coercion "tending to force testimony from the unwilling lips of the defendant." 18

2. With the foregoing as guideposts, we now turn to the facts. Petitioner is a defendant in a criminal case. He was called by the prosecution as the first witness in that case to testify for the People during the first day of trial thereof. Petitioner objected and invoked the privilege of self-incrimination. This he broadened by the clear cut statement that he will not testify. But petitioner's protestations were met with the judge's emphatic statement that it "is the right of the prosecution to ask anybody to act as witness on the witness stand including the accused," and that defense counsel "could not object t o have the accused called on the witness stand." The cumulative impact of all these is that accusedpetitioner had to take the stand. He was thus peremptorily asked to c reate evidence against himself. The foregoing situation molds a solid case for petitioner, backed by the Constitution, the law, and  jurisprudence.

Petitioner, as accused, occupies a different tier of protection from an ordinary witness. Whereas an ordinary witness may be compelled to take t he witness stand and claim the privilege as each question requiring an incriminating answer is shot at him, 19 and accused may altogether refuse to take the witness stand and refuse to answer any and all questions. 20 For, in reality, the purpose of calling an accused as a witness for the People would be to incriminate him. 2 1 The rule positively intends to avoid and prohibit the certainly inhuman procedure of c ompelling a person "to furnish the missing

evidence necessary for his conviction." 22 This rule may apply even to a co-defendant in a joint trial.23

And the guide in the interpretation of the constitutional precept that the accused shall not be compelled to furnish evidence against himself "is not the probability of the evidence but it is the capability of abuse." 24 Thus it is, that it was undoubtedly erroneous for the trial judge to placate petitioner with these words:.

What he will testify to does not necessarily incriminate him, counsel.

And there is the right of the prosecution to ask anybody to act as witness on the witness-stand including the accused.

If there should be any question that is incriminating then that is the time for counsel to interpose his objection and the court will sustain him if and when the court feels that the answer of this witness to the question would incriminate him.

Counsel has all the assurance that the court will not require the witness to answer questions which would incriminate him.

But surely, counsel could not object to have the accused called on the witness stand.

Paraphrasing Chief Justice Marshall in Aaron Burr's Trial, Robertsons Rep. I, 208 , 244, quoted in VIII Wigmore, p. 355, 25 While a defendant's knowledge of the facts remains concealed within his bosom, he is safe; but draw it from thence, and he is exposed" — to conviction.

The judge's words heretofore quoted — "But surely counsel could not object to have the accused called on the witness stand" — wielded authority. By those words, petitioner was enveloped by a coercive force; they deprived him of his will to resist; they foreclosed choice; the realities of human nature tell us that as he took his oath to t ell the truth, the whole truth and nothing but the truth, no

genuine consent underlay submission to take the witness stand. Constitutionally sound consent was absent.

3. Prejudice to the accused for having been compelled over his objections to be a witness for the People is at once apparent. The record discloses that by leading questions Chavez, the accused, was made to affirm his statement given to the NBI agents on July 17, 1963 at 5:00 o'clock in the afternoon. 26 And this statement detailed the plan and execution thereof by Sumilang (Vasquez), Asistio and himself to deprive the Chinese of his Thunderbird car. And he himself proceeded to narrate the same anew in open court. He identified the Thunderbird car involved in the case. 2 7

The decision convicting Roger Chavez was clearly of the view that the case for the People was built primarily around the admissions of Chavez himself. The trial court described Chavez as t he "star witness for the prosecution". Indeed, the damaging facts forged in the decision were drawn directly from the lips of Chavez as a prosecution witness and of course Ricardo Sumilang for the defense. There are the unequivocal statements in the decision that "even accused Chavez" identified "the very same Thunderbird that Johnson Lee had offered for sale"; that Chavez "testimony as witness for the prosecution establishes his guilt beyond reasonable doubt and that Chavez is "a self-confessed culprit". 1äwphï1.ñët

4. With all these, we have no hesitancy in saying t hat petitioner was forced to testify to incriminate himself, in full breach of his constitutional right to remain silent. It cannot be said now that he has waived his right. He did not volunteer to take the stand and in his own defense; he did not offer himself as a witness; on the contrary, he claimed the right upon being called to testify. If petitioner nevertheless answered the questions inspite of his fear of being accused of perjury or being put under contempt, this circumstance cannot be counted against him. His testimony is not of his own choice. To him it was a case of compelled submission. He was a cowed participant in proceedings before a judge who possessed the power to put him under contempt had he chosen to remain silent. Nor could he escape testifying. The court made it abundantly clear that his testimony at least on direct examination would be taken right then and thereon the first day of the trial.

It matters not that, after all efforts to stave off petitioner's taking the stand became fruitless, no objections to questions propounded to him were made. Here involve is not a mere question of selfincrimination. It is a defendant's constitutional immunity from being called to testify against himself. And the objection made at the beginning is a continuing one. 1äwphï1.ñët

There is therefore no waiver of the privilege. "To be effective, a waiver must be certain and unequivocal, and intelligently, understandably, and willingly made; such waiver following only where liberty of choice has been fully accorded. After a claim a witness cannot properly be held to have waived his privilege on vague and uncertain evidence." 28 The teaching in Johnson vs. Zerbst 29 is this: "It has been pointed out that "courts indulge every reasonable presumption against waiver" of  fundamental constitutional rights and that we "do not presume acquiescence in the loss of  fundamental rights." A waiver is ordinarily an intentional relinquishment or abandonment of a known right or privilege." Renuntiatio non praesumitur.

The foregoing guidelines, juxtaposed with the circumstances of the case heretofore adverted to, make waiver a shaky defense. It cannot stand. If, by his own admission, defendant proved his guilt, still, his original claim remains valid. For the privilege, we say again, is a rampart that gives protection - even to the guilty. 30

5. The course which petitioner takes is correct. Habeas corpus is a high prerogative writ. 31 It is traditionally considered as an exceptional remedy to release a person whose liberty is illegally restrained such as when the accused's constitutional rights a re disregarded. 32 Such defect results in the absence or loss of jurisdiction 33 and therefore invalidates the trial and the consequent conviction of the accused whose fundamental right was violated. 34 That void judgment of conviction may be challenged by collateral attack, which precisely is the function of habeas corpus. 35 This writ may issue even if another remedy which is less effective may be availed of by the defendant. 36 Thus, failure by the accused to perfect his appeal before the Court of Appeals does not preclude a recourse to the writ. 37 The writ may be granted upon a judgment already final. 38 For, as explained in Johnson vs. Zerbst, 39 the writ of habeas corpus as an extraordinary remedy must be liberally given effect 40 so as to protect well a person whose liberty is at stake. The propriety of the writ was given the nod in that case, involving a violation of another constitutional right, in this wise:

Since the Sixth Amendment constitutionally entitles one charged with crime to th e assistance of  Counsel, compliance with this constitutional mandate is an essential jurisdictional prerequisite to a Federal Court's authority. When this right is properly waived, the assistance of Counsel is no longer a necessary element of the Court's jurisdiction to proceed to conviction and sentence. If the accused, however, is not represented by Counsel and has not competently and intelligently waived his constitutional right, the Sixth Amendment stands as a jurisdictional bar t o a valid conviction and sentence depriving him of his liberty. A court's jurisdiction at the beginning of trial may be lost "in the course of the proceedings" due to failure to complete the court — as the Sixth Amendment requires — by providing Counsel for an accused who is unable to obtain Counsel, who has not intelligently

waived this constitutional guaranty, and whose life or liberty is at stake. If this requirement of the Sixth Amendment is not complied with, the court no longer has jurisdiction to proceed. The judgment

of conviction pronounced by a court without jurisdiction is void, and one imprisoned thereunder may obtain release of habeas corpus. 41

Under our own Rules of Court, to grant the remedy to the accused Roger Chavez whose case presents a clear picture of disregard of a constitutional right is absolutely proper. Section 1 of Rule 102 extends the writ, unless otherwise expressly provided by law, "to all cases of illegal confinement or detention by which any person is deprived of his liberty, or by which the rightful custody of any person is withheld from the person entitled thereto.

Just as we are about to write finis to our t ask, we are prompted to restate that: "A void judgment is in legal effect no judgment. By it no rights are divested. From it no rights can be obtained. Being worthless in itself, all proceedings founded upon it are equally worthless. It neither binds nor bars any one. All acts performed under it and all claims flowing out of it are void. The parties attempting to enforce it may be responsible as trespassers. ... " 42

6. Respondents' return 43 shows that petitioner is still serving under a final and valid judgment of  conviction for another offense. We should guard against the improvident issuance of an order discharging a petitioner from confinement. The position we take here is that petitioner herein is entitled to liberty thru habeas corpus only with respect to Criminal Case Q-5311 of the Court of First Instance of Rizal, Quezon City Branch, under which he was prosecuted and convicted.

Upon the view we take of this case, judgment is hereby rendered directing t he respondent Warden of  the City Jail of Manila or the Director of Prisons or any other officer or person in custody of petitioner Roger Chavez by reason of the judgment of the Court of First Instance of Rizal, Quezon City Branch, in Criminal Case Q-5311, entitled "People of the Philippines, plaintiff, vs. Ricardo Sumilang, et al., accused," to discharge said Roger Chavez from custody, unless he is held, kept in custody or detained for any cause or reason other than the said judgment in said Criminal Case Q-5311 of the Court of First Instance of Rizal, Quezon City Branch, in which event the discharge herein directed shall be effected when such other cause or reason ceases to exist.

No costs. So ordered.

Replevin KENNETH HAO, complainant, vs. ABE C. ANDRES, Sheriff IV, Regional Trial Court, Branch 16, Davao City, respondent.

RESOLUTION

QUISUMBING, J.:

Before us is an administrative complaint for gross neglect of duty, grave abuse of authority (oppression) and violation of Republic Act No. 30191 filed by complainant Kenneth Hao against respondent Abe C. Andres, Sheriff IV of the Regional Trial Court (RTC) of Davao City, Branch 16.

The antecedent facts are as follows:

Complainant Hao is one of the defendants in a civil case for replevin docketed as Civil Case No. 31, 127-20052 entitled "Zenaida Silver, doing t rade and business under the name and style ZHS Commercial v. Loreto Hao, Atty. Amado Cantos, Kenneth Hao and John Does," pending before the RTC of Davao City, Branch 16.

On October 17, 2005, Judge Renato A. Fuentes3 issued an Order of Seizure4 against 22 motor vehicles allegedly owned by the complainant. On the strength of the said order, Andres was able to seize two of the subject motor vehicles on October 17, 2005; four on October 18, 2005, and another three on October 19, 2005, or a total of nine motor vehicles.5

In his Affidavit-Complaint6 against Andres before the Office of the Court Administrator (OCA), Hao alleged that Andres gave undue advantage to Zenaida Silver in the implementation of the order and that Andres seized the nine motor vehicles in an oppressive manner. Hao also averred that Andres was accompanied by unidentified armed personnel on board a military vehicle which was excessive since there were no resistance from them. Hao also discovered that the compound where the seized motor vehicles were placed is actually owned by Silver.7

On October 21, 2005, in view of the approval of the complainant’s counter-replevin bond, Judge

Emmanuel C. Carpio8 ordered Andres to immediately cease and desist from further implementing the order of seizure, and to return the seized motor vehicles including its accessories to their lawful owners.9

However, on October 24, 2005, eight of the nine seized motor vehicles were reported missing. In his report,10 Andres stated that he was shocked to find that the motor vehicles were already missing when he inspected it on October 22, 2005. He narrated that on October 21 , 2005, PO3 Rodrigo Despe, one of the policemen guarding the subject motor vehicles, reported to him that a certain "Nonoy" entered the compound and caused the duplication of the vehicles’ keys.11 But Andres claimed the

motor vehicles were still intact when he inspected it on October 21, 2005.

Subsequently, Hao reported that three of the c arnapped vehicles were recovered by the police.12 He then accused Andres of conspiring and conniving with Atty. Oswaldo Macadangdang (Silver’s counsel)

and the policemen in the carnapping of the motor vehicles. Hao also accused Andres of concealing the depository receipts from them and pointed out that t he depository receipts show that Silver and Atty. Macadangdang were the ones who chose the policemen who will guard the motor vehicles.

In his Comment13 dated March 3, 2006, Andres vehemently denied violating Rep. Act No. 3019 and committing gross neglect of duty.

Andres denied implementing the Order of Seizure in an oppressive manner. He said he took the vehicles because they were the specific vehicles ordered to be seized after checking their engine and chassis numbers. Andres likewise denied that he was accompanied by military personnel in the implementation of the order. He claimed that he was merely escorted by policemen pursuant to the directive of Police Senior Supt. Catalino S. Cuy, Chief of the Davao City Police Office. Andres also maintained that no form of harassment or oppression was committed during the implementation of  the order, claiming that the presence of the policemen was only for the purpose of preserving peace and order, considering there were 22 motor vehicles specified in the Order of Seizure. Andres added that he exercised no discretion in the selection of the policemen who assisted in the implementation of the order, much less of those who will guard the seized motor vehicles.

Andres disputed the allegation that he neglected his duty to safeguard the seized vehicles by pointing out that he placed all the motor vehicles under police watch. He added that the policemen had control of the compound where the seized motor vehicles were kept.

Andres likewise contended that after the unauthorized duplication of the vehicles’ keys was reported

to him, he immediately advised the policemen on duty to watch the motor vehicles closely.14 He negated the speculations that he was involved in the disappearance of the seized motor vehicles as he claims to be the one who reported the incident to the court and the police.

As to the allegation of undisclosed depository receipts, Andres maintained that he never denied the existence of the depository receipts. He said the existence of the depository receipts was immediately made known on the same day that the subject motor vehicles were discovered missing. He even used the same in the filing of the carnapping case against Silver a nd her co-conspirators.

Finally, Andres insisted that the guarding of properties under custodia legis by policemen is not prohibited, but is even adopted by the court. Hence, he prays that he be held not liable for the loss of  the vehicles and that he be relieved of his duty to return the vehicles.15

After the OCA recommended that the matter be investigated, we referred the case to Executive Judge Renato A. Fuentes for investigation, report and recommendation.16

In his Investigation Report17 dated September 21, 2006, Judge Fuentes found Andres guilty of serious negligence in the custody of the nine motor vehicles. He recommended that Andres be suspended from office.

Judge Fuentes found numerous irregularities in the implementation of the writ of r eplevin/order of  seizure, to wit: (1) at the time of the implementation of the writ, Andres knew that the vehicles to be seized were not in the names of any of the parties to the case; (2) one vehicle was taken without th e knowledge of its owner, a certain Junard Escudero; (3) Andres allowed Atty. Macadangdang to get a keymaster to duplicate the vehicles’ keys in order to take one motor vehicle; and (4) Andres admitted

that prior to the implementation of the writ of seizure, he consulted Silver and Atty. Macadangdang regarding the implementation of the writ and was accompanied by the latter in the course of the implementation. Judge Fuentes observed that the motor vehicles were speedily seized without strictly observing fairness and regularity in its implementation.18

Anent the safekeeping of the seized motor vehicles, Judge Fuentes pointed out several instances where Andres lacked due diligence to wit: (1) the seized motor vehicles were placed in a compound surrounded by an insufficiently locked see-through fence; (2) three motor vehicles were left outside the compound; (3) Andres turned over the key of the gate to the policemen guarding the motor vehicles; (4) Andres does not even know the full name of the owner of the compound, who was merely known to him as "Gloria"; (5) except for PO3 Despe and SPO4 Nelson Salcedo, the identities of  the other policemen tapped to guard the compound were unknown to Andres; (6) Andres also admitted that he only stayed at least one hour each day from October 19-21, 2005 during his visits to the compound; and (7) even after it was reported to him that a certain "Nonoy" entered the compound and duplicated the keys of the motor vehicles, he did not exert his best effort to look for that "Nonoy" and to confiscate the duplicated keys.19

Judge Fuentes also observed that Andres appeared to be more or less accommodating to Silver and her counsel but hostile and uncooperative to the complainant. He pointed out that Andres depended solely on Silver in the selection of the policemen who would guard the seized motor vehicles. He added that even the depository receipts were not turned over to the defendants/third-party claimants in the replevin case but were in fact concealed from them. Andres also gave inconsistent testimonies as to whether he has in his possession the depository receipts.20

The OCA disagreed with the observations of Judge Fuentes. It recommended that Andres be held liable only for simple neglect of duty and be suspended for one (1) month and one (1) day.21

We adopt the recommendation of the investigating judge.

Being an officer of the court, Andres must be aware that there are well-defined steps provided in the Rules of Court regarding the proper implementation of a writ of replevin and/or an order of seizure. The Rules, likewise, is explicit on the duty of the sheriff in its implementation. To recapitulate what should be common knowledge to sheriffs, the pertinent provisions of Rule 60, of the Rules of Court are quoted hereunder:

SEC. 4. Duty of the sheriff. –Upon receiving such order, the sheriff must serve a copy thereof on the adverse party, together with a copy of the application, affidavit and bond, and must forthwith take the property, if it be in the possession of the adverse party, or his agent, and retain it in his custody. If 

the property or any part thereof be concealed in a building or enclosure, the sheriff must demand its delivery, and if it be not delivered, he must cause the building or enclosure to be broken open and take the property into his possession. After the sheriff has taken possession of the property as herein provided, he must keep it in a secure place and shall be responsible for its delivery to the party entitled thereto upon receiving his fees and necessary expenses for taking and keeping the same. (Emphasis supplied.)

SEC. 6. Disposition of property by sheriff. –If within five (5) days after the taking of the property by the sheriff, the adverse party does not object to the sufficiency of the bond, or of the surety or sureties thereon; or if the adverse party so objects and the court affirms its approval of the applicant’s bond or

approves a new bond, or if the adverse party requires the return of the property but his bond is objected to and found insufficient and he does not forthwith file an approved bond, the property shall be delivered to the applicant. If for any reason the property is not delivered to the applicant, the sheriff must return it to the adverse party. (Emphasis supplied.)

First, the rules provide that property seized under a writ of replevin is not to be delivered immediately to the plaintiff.22 In accordance with the said rules, Andres should have waited no l ess than five days in order to give the complainant an opportunity to object to the sufficiency of the bond or of the surety or sureties thereon, or require the return of the seized motor vehicles by filing a counter-bond. This, he failed to do.

Records show that Andres took possession of two of the subject motor vehicles on October 17, 2 005, four on October 18, 2005, and another three on October 19, 2 005. Simultaneously, as evidenced by the depository receipts, on October 18, 2005, Silver received from Andres six of the seized motor vehicles, and three more motor vehicles on October 19, 2005. Consequently, there is no question that Silver was already in possession of the nine seized vehicles immediately after seizure, or no more than three days after the taking of the vehicles. Thus, Andres committed a clear violation of Section 6, Rule 60 of the Rules of Court with regard to the proper disposal of the property.

It matters not that Silver was in possession of the seized vehicles merely for safekeeping as stated in the depository receipts. The rule is clear that the property seized should not be immediately delivered to the plaintiff, and the sheriff must retain custody of the seized property for at least five days.23 Hence, the act of Andres in delivering the seized vehicles immediately after seizure to Silver for whatever purpose, without observing the five-day requirement finds no legal justification.

In Pardo v. Velasco,24 this Court held that

…Respondent as an officer of the Court is charged with certain ministerial duties which must be

performed faithfully to the letter. Every provision in the Revised Rules of Court has a specific reason or objective. In this case, the purpose of the five (5) days is to give a chance to the defendant to object to the sufficiency of the bond or the surety or sureties thereon or require the return of the property by filing a counterbond.…25 (Emphasis supplied.)

In Sebastian v. Valino,26 this Court reiterated that

Under the Revised Rules of Court, the property seized under a writ of replevin is not to be delivered immediately to the plaintiff. The sheriff must retain it in his custody for five days and he shall return it to the defendant, if the latter, as in the instant case, requires its return and files a counterbond.…27

(Emphasis supplied.)

Likewise, Andres’ claim that he had no knowledge that the compound is owned by Silver fails t o

convince us. Regardless of who actually owns the compound, the fact remains that Andres delivered the vehicles to Silver prematurely. It violates the rule requiring him to safekeep the vehicles in his custody.28 The alleged lack of facility to store the seized vehicles is unacceptable considering that he should have deposited the same in a bonded warehouse. If this was not feasible, he should have sought prior authorization from the court issuing the writ before delivering the vehicles to Silver.

Second, it must be stressed that from the moment an order of delivery in replevin is executed by taking possession of the property specified therein, such property is in c ustodia legis. As legal custodian, it is Andres’ dut y to safekeep the seized motor vehicles. Hence, when he passed his duty to

safeguard the motor vehicles to Silver, he committed a clear neglect of duty.

Third, we are appalled that even after PO3 Despe reported the unauthorized duplication of the vehicles’ keys, Andres failed to take extra precautionary measures to ensure the safety of the vehicles. It is obvious that the vehicles were put at risk by the unauthorized duplication of the keys of the vehicles. Neither did he immediately report the incident to the police or to the court. The loss of the motor vehicles could have been prevented if Andres immediately asked the court for an order to transfer the vehicles to another secured place as soon as he discovered the unauthorized duplication. Under these circumstances, even an ordinary prudent man would have exercised extra diligence. His

warning to the policemen to closely watch the vehicles was insufficient. Andres cannot toss back to Silver or to the policemen the responsibility for the loss of the motor vehicles since he remains chiefly responsible for their safekeeping as legal custodian thereof. Indeed, Andres’ failure to take the

necessary precaution and proper monitoring of the vehicles to ensure its safety constitutes plain negligence.

Fourth, despite the cease and desist order, Andres failed to return the motor vehicles to their lawful owners. Instead of returning the motor vehicles immediately as directed, he opted to write Silver and demand that she put up an indemnity bond to secure the third-party cl aims. Consequently, due to his delay, the eventual loss of the motor vehicles rendered the order to return the seized vehicles ineffectual to the prejudice of the complaining owners.

It must be stressed that as court custodian, it was Andres’ respons ibility to ensure that the motor

vehicles were safely kept and that the same were readily available upon order of the court or demand of the parties concerned. Specifically, sheriffs, being ranking officers of the court and agents of the law, must discharge their duties with great care and diligence. In serving and implementing court writs, as well as processes and orders of the court, they cannot afford to err without affecting adversely the proper dispensation of justice. Sheriffs play an important role i n the administration of   justice and as agents of the law, high standards of performance are expected of them.29 Hence, his failure to return the motor vehicles at the time when its return was still feasible constitutes another instance of neglect of duty.

Fifth, as found by the OCA, we agree that Andres also disregarded the provisions of Rule 14130 of the Rules of Court with regard to payment of expenses.

Under Section 9,31 Rule 141 of the Rules of Court, the procedure for the execution of writs and other processes are: First, the sheriff must make an estimate of the expenses to be incurred by him; Second, he must obtain court approval for such estimated expenses; Third, the approved estimated expenses shall be deposited by the interested party with the Clerk of Court and ex officio sheriff; Fourth, the Clerk of Court shall disburse the amount to the executing sheriff; and Fifth, the executing sheriff shall liquidate his expenses within the same period for rendering a return on the writ.

In this case, no e stimate of sheriff’s expenses was submitted to the court by Andres. Without approval of the court, he also allowed Silver to pay directly to the policemen the expenses for the safeguarding

of the motor vehicles including their meals.32 Obviously, this practice departed from the accepted procedure provided in the Rules of Court.

In view of the foregoing, there is no doubt that Andres failed t o live up to the standards required of  his position. The number of instances that Andres strayed from t he regular course observed in the proper implementation of the orders of the court cannot be countenanced. Thus, taking into account the numerous times he was found negligent and careless of his duties coupled with his utter disregard of legal procedures, he cannot be c onsidered guilty merely of simple negligence. His acts constitute gross negligence.

As we have previously ruled:

…Gross negligence refers to negligence characterized by the want of even slight care, acting or

omitting to act in a situation where there is a duty to act , not inadvertently but willfully and intentionally, with a conscious indifference to consequences in so far as other persons may be affected. It is the omission of that care which even inattentive and t houghtless men never fail to take on their own property.…33 (Emphasis supplied.)

…Gross neglect, on the other hand, is such neglect from the gravity of t he case, or the frequency of 

instances, becomes so serious in its character as to endanger or threaten the public welfare. The term does not necessarily include willful neglect or intentional official wrongdoing.34 (Emphasis supplied.)

Good faith on the part of Andres, or lack of it, in proceeding to properly execute his mandate would be of no moment, for he is chargeable with the knowledge that being an officer of the court tasked therefor, it behooves him to make due compliance. He is expected to live up to the exacting standards of his office and his conduct must at all times be characterized by rectitude and forthrightness, and so above suspicion and mistrust as well.35 Thus, an act of gross neglect resulting in loss of properties in custodia legis ruins the confidence lodged by the parties to a suit or the citizenry in our judicial process. Those responsible for such act or omission cannot escape the disciplinary power of this Court.

Anent the allegation of grave abuse of authority (oppression), we likewise agree with the observations of the investigating judge. Records show that Andres started enforcing the writ of  replevin/order of seizure on the same day that the order of seizure was issued. He also admitted that he took the vehicles of persons who are not parties to the replevin case.36 He further admitted that

he took one vehicle belonging to a certain Junard Escudero without the latter’s knowledge and even

caused the duplication of its keys in order that it may be taken by Andres.37 Certainly, these are indications that Andres enforced the order of seizure with undue haste and without giving the complainant prior notice or reasonable time to deliver the motor vehicles. Hence, Andres is guilty of  grave abuse of authority (oppression).

When a writ is placed in the hands of a sheriff, it is his duty, in the absence of any instructions to the contrary, to proceed with reasonable celerity and promptness to execute it according to its mandate. However, the prompt implementation of an order of seizure is called for only in instances where there is no question regarding the right of the plaintiff to the property.38 Where there is such a question, the prudent recourse for Andres is to desist from executing the order and convey the information to his judge and to the plaintiff.

True, sheriffs must comply with their mandated ministerial duty to implement writs promptly and expeditiously, but equally true is the principle that sheriffs by the nature of their functions must at all times conduct themselves with propriety and decorum and act above suspicion. There must be no room for anyone to conjecture that sheriffs and deputy sheriffs as officers of the court have conspired with any of the parties to a case to obtain a favorable judgment or immediate execution. The sheriff is at the front line as representative of the judiciary and by his act he may build or destroy the institution.39

However, as to the charge of graft and corruption, it must be stressed that the same is criminal in nature, thus, the resolution thereof cannot be threshed out in the instant administrative proceeding. We also take note that there is a pending criminal case for carnapping against Andres;40 hence, with more reason that we cannot rule on the allegation of graft and corruption as it may preempt the court in its resolution of the said case.

We come to the matter of penalties. The imposable penalty for gross neglect of duty is dismissal. While the penalty imposable for grave abuse of authority (oppression) is suspension for six (6) months one (1) day to one (1) year.41 Section 55, Rule IV, of the Uniform Rules on Administrative Cases in the Civil Service provides that if the respondent is found guilty of two or more charges or counts, the penalty to be imposed should be that corresponding to the most serious charge or count and the rest shall be considered as aggravating circumstances.

In the instant case, the penalty for the more serious offense which is dismissal should be imposed on Andres. However, following Sections 5342 and 54,43 Rule IV of the Uniform Rules on Administrative Cases in the Civil Service, we have to consider that Andres is a first-time offender; hence, a lighter penalty than dismissal from the service would suffice. Consequently, instead of imposing the penalty of dismissal, the penalty of suspension from office for one (1) year without pay is proper for gross neglect of duty, and another six (6) months should be added for the aggravating circumstance of grave abuse of authority (oppression).

WHEREFORE, the Court finds Abe C. Andres, Sheriff IV, RTC of Davao City, Branch 16, GUILTY of gross neglect of duty and grave abuse of authority (oppression) and is SUSPENDED for one (1) year and six (6) months without pay. He is also hereby WARNED that a repetition of the same or similar offenses in the future shall be dealt with more severely.

SO ORDERED.

Support

Wilson Sy

- versus -

COURT OF APPEALS

In this Petition for Review on Certiorari[1] under Rule 45 of the 1997 Rules of Civil Procedure, petitioner Wilson Sy assails the Decision[2] dated 29 February 1996 of the Court of Appeals in C.A. G.R. SP No. 38936 and its Resolution[3] dated 15 April 1996 denying his motion for reconsideration.

The following are the antecedents:

On 19 January 1994, respondent Mercedes Tan Uy-Sy filed a petition for habeas corpus against petitioner Wilson Sy before the Regional Trial Court of Manila, Branch 48, docketed as Special Proceeding No. 94-69002. Respondent prayed that said writ be issued ordering petitioner to produce their minor children Vanessa and Jeremiah before the court and that after hearing, their care and custody be awarded to her as their mother.[4]

In his answer, petitioner prayed that the custody of the minors be awarded to him instead. Petitioner maintained that respondent was unfit to take custody of the minors. He adduced the following reasons: firstly, respondent abandoned her family in 1992; secondly, she is mentally unstable; and thirdly, she cannot provide proper care to the children.[5]

After trial, the trial court caused the issuance of a writ of habeas corpus and awarded custody of the children to respondent, to wit:

WHEREFORE, judgment is hereby rendered maintaining to the petitioner the custody of the minors Vanessa and Jeremiah, all surnamed Uy-Sy, without, however, prejudice to the visitorial rights of the father, herein respondent, and the temporary arrangement of the c ustody made by the parties during pendency of this proceeding is hereby revoked, and without any further effect. The Court further orders the respondent to pay by way of monthly support for the minors, the amount of P50,000.00 payable to petitioner from [the] date of judgment for failure on the part of respondent to show by preponderance of evidence that the petitioner is unfit to the custody of the minor children who are only 6 and 4 years old.[6]

Petitioner appealed the order of the trial court to the Court of Appeals. Before the appellate court, he alleged that the trial court erred: (1) in awarding the custody of the minor children solely to respondent; and (2) in ordering him to provide respondent support in the amount of P50,000.00 per month.[7]

The Court of Appeals found no merit in the appeal and affirmed the decision of the trial court. The Court of Appeals did not find any reason to disturb the conclusions of t he trial court, particularly petitioner’s failure to prove by preponderance of evidence that respondent was unfit to take custody

over the minor children.

The Court of Appeals held that petitioner was not able to substantiate his contention that respondent was unfit to have custody of the children. On respondent’s supposed abandonment of the f amily, the appellate court found instead that respondent had been driven away by petitioner’s family because of  religious differences. Respondent’s stay in Taiwan likewise could hardly be called abandonment as she

had gone there to earn enough money to rec laim her children. Neither could respondent’s act of  praying outdoors in the rain be considered as evidence of insanity as it may simply be an expression of  one’s faith. Regarding the allegation that respondent was unable to provide for a decent dwelling f or

the minors, to the contrary, the appellate court was satisfied with respondent’s proof of her financial

ability to provide her children with the necessities of life.[8]

As to the second assignment of error, the Court of Appeals held that questions as to care and custody of children may be properly raised in a petition for writ of habeas corpus. Moreover, petitioner was properly heard on the matter relative to the issue of support. He was questioned about his sources of  income for the purpose of determining his ability t o give support. As to the propriety of the amount awarded, the appellate court was unwilling to alter the trial court’s conclusion for petitioner did not

forthrightly testify on his actual income. Neither did he produce i ncome tax returns or other competent evidence, although within his power to do so, to provide a fair indication of his resources. At any rate, the appellate court declared that a judgment of support is never final and petitioner is not precluded at any time from seeking a modification of the same and produce evidence of his cl aim.[9]

Petitioner filed a motion for reconsideration of the Court of Appeals’ decision but the same was

denied.[10]P50,000.00 as support is arbitrary, unjust, unreasonable and tantamount to a clear deprivation of property without due process of law.[11] Hence, this appeal by certiorari wherein petitioner asserts that: (1) the Court of Appeals erred in awarding the custody of the minor children solely to respondent; (2) the Court of Appeals had no jurisdiction to award support in a habeas corpus case as: (a) support was neither alleged nor prayed for in the petition; (b) there was no express or implied consent on the part of the parties to litigate the issue; and (c) Section 6, Rule 99 of the Rules of Court does not apply because the trial court failed to consider the Civil Code provisions on support; and (3) the award of 

For her part, respondent claims that petitioner had lost his privilege to raise the first issue, having failed to raise it before the appellate court. Anent the second issue, respondent takes refuge in the appellate court’s statement that the questions regarding the care and custody of children may

properly be adjudicated in a habeas corpus case. Regarding the third issue, respondent maintains that the amount of support awarded is correct and proper.[12]

There is no merit in the petition regarding the question of care and custody of the children.

The applicable provision is Section 213 of the Family Code which states that:

Section 213. In case of separation of the parents, parental authority shall be exercised by the parent designated by the Court. The Court shall take into account all relevant considerations, especially the choice of the child over seven years of age, unless the parent is unfit.

No child under seven years of age shall be separated from the mother, unless the court finds compelling reasons to order otherwise.

In case of legal separation of the parents, the custody of the minor children shall be awarded to the innocent spouse, unless otherwise directed by the court in the interest of the minor children.[13] But when the husband and wife are living separately and apart from each other, without decree of the court, the court shall award the care, custody, and control of each child as will be for his best interest, permitting the child to choose which parent he prefers to live with if he is over seven (7) years of age unless the parent so chosen be unfit to take charge of the child by reason of moral depravity, habitual drunkenness or poverty.[14]

In all controversies regarding the custody of minors, the sole and foremost consideration is the physical, educational, social and moral welfare of the c hild concerned, taking into account the respective resources and social and moral situations of the contending parents.[15]

However, the law favors the mother if she is a fit and proper person to have custody of her children so that they may not only receive her attention, care, supervision but also have the advantage and benefit of a mother’s love and devotion for which there is no substitute.*16+ Generally, the love,

solicitude and devotion of a mother cannot be replaced by another and are worth more to a child of  tender years than all other things combined.[17] The Civil Code Commission, in recommending the preference for the mother, explained, thus:

The general rule is recommended in order to avoid many a tragedy where a mother has seen her baby torn away from her. No man can sound the deep sorrows of a mother who is deprived of her child of  tender age. The exception allowed by the rule has to be for “compelling reasons” for the good of the child: those cases must indeed be rare, if the mother’s heart is not to be unduly hurt. If she has erred,

as in cases of adultery, the penalty of imprisonment and the (relative) divorce decree will ordinarily be sufficient punishment for her. Moreover, her moral dereliction will not have any effect upon the baby who is as yet unable to understand the situation.[18]

This preference favoring the mother over the father is even reiterated in Section 6, Rule 99 of the Rules of Court (the Rule on Adoption and Custody of Minors) underscoring its significance, to wit:

SEC. 6. Proceedings as to child whose parents are separated. Appeal. ? When husband and wife are divorced or living separately and apart from each other, and the question as to the care, custody and control of a child or children of their marriage is brought before a Regional Trial Court by petition or as an incident to any other proceeding, the court, upon hearing the testimony as may be pertinent, shall award the care, custody and control of each such child as will be for its best interest, permitting the child to choose which parent it prefers to live with if it be over ten years of age, unless the parent so chosen be unfit to take charge of the child by reason of moral depravity, habitual drunkenness, incapacity, or poverty. If upon such hearing, it appears that both parents are improper persons to have the care, custody, and control of the child, the court may either designate the paternal or maternal grandparent of the child, or his oldest brother or sister, or some reputable a nd discreet person to take charge of such child, or commit it to any suitable asylum, chi ldren’s home, or benevolent society. The court may in conformity with the provisions of the Civil Code order either or both parents to support or help support said child, irrespective of who may be i ts custodian, and may make any order that is just and reasonable permitting the parent who is deprived of its care and custody to visit the child or have temporary custody thereof. Either parent may appeal from an order

made in accordance with the provisions of t his section. No child under seven years of age sha ll be separated from its mother, unless the court finds there a re compelling reasons therefor. (Emphasis supplied)

The above-quoted provision expressly acknowledges and authorizes that the matter of care and custody of the children may be raised and adjudicated as an incident to any proceeding, such as a case for habeas corpus.

Evidently, absent any compelling reason to the contrary, the trial court was correct in restoring the custody of the children to the mother, herein respondent, the children being less than seven years of  age, at least at the time the case was decided. Mor eover, petitioner’s contention that respondent is unfit to have custody over the minor children has not been substantiated as found by both courts below. Thus, it is already too late for petitioner to reiterate the assertion for only questions of law may be raised before this Court. Furthermore, the determination of whether the mother is fit or unfit to have custody over the children is a matter well within the sound discretion of the trial court, and unless it is shown that said discretion has been abused the selection will not be interfered with.[19]

Consequently, the Court affirms the award of custody in respondent’s favor.

Now, the issue of support.

Article 203 of the Family Code states that the obligation to give support is demandable from the time the person who has a right to receive the same needs it for maintenance, but it shall not be paid except from the date of judicial or extrajudicial demand. The case of Jocson v. The Empire Ins. Co. and Jocson Lagniton[20] explains the rationale for this rule:

x x x Support does include what is necessary for the education and clothing of the person entitled thereto (Art. 290, New Civil Code). But support must be demanded and the right to it established before it becomes payable (Art. 298, New Civil Code; Marcelo v. Estacio, 70 Phil. 215). For the right to support does not arise from the mere fact of relationship, even from the relationship of parents a nd children, but “from imperative necessity without which it cannot be demanded, and the law presumes

that such necessity does not exist unless support is demanded (Civil C ode of the Philippines, Annotated, Tolentino, Vol. 1, p. 181, citing 8 Manresa 685). In the present case, it does not appear that support for the minors, be it only for their education and clothing, was ever demanded from their father and the need for it duly established. The need for support, as already stated, cannot be presumed, and especially must this be true in the present case where it appears that the minors had means of their own.[21]

As intimated earlier, the Court agrees with the courts below that Section 6, Rule 99[22] of the Rules of  Court permits the ventilation of the question regarding the care and custody of the children as an incident to any proceeding, even a habeas corpus proceeding. Petitioner would have us believe, however, that since respondent’s petition did not include a prayer*23+ for support of the children in

accordance with the above-quoted Family Code provision, the trial court was not justified in awarding support in respondent’s favor. In addition, petitioner claims that he did not give consent to the trial

and the threshing out of the issue as it was not raised in the pleadings.[24] He claims that in fact, he testified on his financial status only to prove that he is financially able to provide for his children and not for the purpose of determining the amount of support.[25] Besides, he contends that the trial court did not order the amendment of the pleadings to conform to the evidence presented pursuant to Section 5[26] Rule 10 of the 1997 Rules of Civil Procedure, an aspect that supports his contention that the parties never consented, expressly or impliedly, to try the issue of support.[27]

The Court is not convinced. Contrary to petitioner’s assertions, respondent testified during trial, without any objection on petitioner’s part, regarding the need for support for the children’s education

and other necessities, viz:

ADD’L DIRECT EXAMINATION OF THE WITNESS

MERCEDES TAN UY-SY

Q:

With the kind permission of this Honorable Court.

Q:

Ms. Sy, the custody of the two minors[,] of course[,] require some expenses on your part

notwithstanding that you said you have savings intended for them, is it not?

A:

Yes, sir.

Q:

And what is the nature of these expenses that you expect to disburse for the children?

A:

For the medicine or health care.

Q:

What else?

A:

For education, for emergency expenses, for basically for food.

Q:

In your estimate, how much would these expenses be per month?

A:

Well, I think, perhaps P50,000.00, sir.

Q:

Which the respondent should furnish?

A:

Yes, sir.

ATTY. CORTEZ

That is all for the witness, Your Honor.[28]

Moreover, based on the transcript of stenographic notes, petitioner was clearly made aware that the issue of support was being deliberated upon, to wit:

WITNESS:

WILSON SY: will be testifying under the same oath.[29]

xxxx

ATTY. ALBON:

Q:

In the hearing of July 23, 1994 as appearing on page 3, Mercedes Sy testified that she would be

needing P50,000.00 a month expenses for her children, what can you say about that?

A:

That is a dillusion [sic] on her part.[30]

The trial court judge even propounded questions to petitioner regarding his sources of income for the purpose of determining the amount of support to be given to the children:

COURT:

I want to find out how much his income now for the purposes of giving support to the children. Please answer the question.

WITNESS:

A:

Shares of stocks.

ATTY. CORTEZ:

Q:

A shares [sic] of stock is the evidence of your investment in the corporation. My question is:

What investment did you put in to enable you to get a share, was it money or property?

A:

There is no money but it was given by my father.

COURT:

Q:

Upon the death of your father you just inherited it?

A:

Before.

Q:

After the death, did you not acquire some of the shares of your father?

A:

No, your Honor.

Q:

What happened to the shares of your father?

A:

It is with my mother.

xxxx

COURT:

Never mind the share of the mother. What is material is his share.

ATTY. CORTEZ:

Q:

How many shares do you have in the corporation?

A:

Right now I have only ten (10) shares.

Q:

What is the value of that [sic] shares?

A:

I [do not] give any importance.

COURT

Q:

For purposes of this case, the Court is asking you how much is your share?

A:

I [do not ] how to appraise.

Q:

More or less, how much? Use the word more or less, is that one million more or less, 2 million,

more or less, 10 million, more or less? Anyway, this is not a BIR proceeding, this is a Court proceeding?

A:

I want to speak the truth but I [do not] know. I did not even see the account.

COURT:

Proceed.

ATTY. CORTEZ

xxxx

Q:

At that time of your father’s death*,+ you were *sic+already holding ten (10) shares or was it

less?

A:

More.

Q:

More than ten (10) shares?

A:

Yes, sir.

COURT

Q:

What is the par value of that one (1) share?

A:

I [do not] know, your Honor.

xxxx

COURT:

Let it remain that he owns ten (10) shares.

ATTY. CORTEZ:

xxxx

A:

Yes, 10 shares. The other shares I already sold it.

Q:

How many shares did you sell?

A:

I only have 10 shares now. I don’t know how many shares that I have left. I only know the 20

shares.[31]

Applying Section 5,[32] Rule 10 of the 1997 Rules of Civil Procedure, since the issue of support was tried with the implied consent of the parties, it should be treated in all respects as if it had been raised in the pleadings. And since there was implied consent, even if no motion had been filed and no amendment had been ordered, the Court holds that the trial court validly rendered a judgment on the issue.[33]Bank of America v. American Realty Corporation,[34] the Court stated: Significantly, in the case of 

There have been instances where the Court has held that even without the necessary amendment, the amount proved at the trial may be validly awarded, as in Tuazon v. Bolanos (95 Phil. 106), where we said that if the facts shown entitled plaintiff to relief other than that asked for, no amendment to the complaint was necessary, especially where defendant had himself raised the point on which recovery was based. The appellate court could t reat the pleading as amended to conform to the evidence although the pleadings were actually not amended. Amendment is also unnecessary when only clerical error or non substantial matters are involved, as we held in Bank of the Philippine Islands vs. Laguna (48 Phil. 5). In Co Tiamco v. Diaz (75 Phil. 672), we stressed t hat the rule on amendment need not be applied rigidly, particularly where no surprise or prejudice is caused the objecting party. And in the recent case of National Power Corporation v. Court of Appeals (113 SCRA 556), we held that where there is a varianc e in the defendant’s pleadings and the evidence adduced by it at the trial, the Court may treat the pleading as amended to conform with the evidence.[35]

The Court likewise affirms the award of P50,000.00 as support for the minor children. As found by both courts, petitioner’s representations regarding his family’s wealth and his capability to provide for his family more than provided a fair indication of his financial standing even though he proved to be less than forthright on the matter.[36] In any event, this award of support is merely provisional as the amount may be modified or altered in accordance with the increased or decreased needs of the needy party and with the means of the giver.[37]

WHEREFORE, the Decision dated 29 February 1996 of the Eleventh Division of the Court of Appeals in C.A. G.R. SP No. 38936 and its Resolution[38] dated 15 April 1996 are AFFIRMED. Costs against petitioner.

SO ORDERED.

Remedial Law 1 HANNAH EUNICE D. SERANA, petitioner, vs. SANDIGANBAYAN and PEOPLE OF THE PHILIPPINES, respondents.

DECISION

REYES, R.T., J.:

CAN the Sandiganbayan try a government scholaran** accused, along with her brother, of swindling government funds?

MAAARI bang litisin ng Sandiganbayan ang isang iskolar ng bayan, at ang kanyang kapatid, na kapwa pinararatangan ng estafa ng pera ng bayan?

The jurisdictional question is posed in this petition for certiorari assailing the Resolutions1 of the Sandiganbayan, Fifth Division, denying petitioner’s motion to quash the information and h er motion

for reconsideration.

The Antecedents

Petitioner Hannah Eunice D. Serana was a senior student of the University of the Philippines-Cebu. A student of a state university is known as a government scholar. She was appointed by then President Joseph Estrada on December 21, 1999 as a student regent of UP, to serve a one-year term starting January 1, 2000 and ending on December 31, 2000.

In the early part of 2000, petitioner discussed with President Estrada the renovation of Vinzons Hall Annex in UP Diliman.2 On September 4, 2000, petitioner, with her siblings and relatives, registered

with the Securities and Exchange Commission the Office of t he Student Regent Foundation, Inc. (OSRFI).3

One of the projects of the OSRFI was the renovation of the Vinzons Hall Annex.4 President Estrada gave Fifteen Million Pesos (P15,000,000.00) to the OSRFI as financial assistance for the proposed renovation. The source of the funds, according to the information, was the Office of the President.

The renovation of Vinzons Hall Annex failed to materialize.5 The succeeding student regent, Kristine Clare Bugayong, and Christine Jill De Guzman, Secretary General of the KASAMA sa U.P., a systemwide alliance of student councils within the state university, consequently filed a complaint for Malversation of Public Funds and Property with the Office of the Ombudsman.6

On July 3, 2003, the Ombudsman, after due investigation, found probable cause to indict petitioner and her brother Jade Ian D. Serana for estafa, docketed as Criminal Case No. 27819 of the Sandiganbayan.7 The Information reads:

The undersigned Special Prosecution Officer III, Office of the Special Prosecutor, hereby accuses HANNAH EUNICE D. SERANA and JADE IAN D. SERANA of the crime of Estafa, defined and penalized under Paragraph 2(a), Article 315 of the Revised Penal Code, as amended committed as follows:

That on October, 24, 2000, or sometime prior or subsequent thereto, in Quezon City, Metro Manila, Philippines, and within the jurisdiction of this Honorable Court, above-named accused, HANNAH EUNICE D. SERANA, a high-ranking public officer, being then the Student Regent of the University of  the Philippines, Diliman, Quezon City, while in the performance of her official functions, committing the offense in relation to her office and taking advantage of her position, with intent to gain, conspiring with her brother, JADE IAN D. SERANA, a private individual, did t hen and there wilfully, unlawfully and feloniously defraud the government by falsely and fraudulently representing to former President Joseph Ejercito Estrada that the renovation of the Vinzons Hall of the University of the Philippines will be renovated and renamed as "President Joseph Ejercito Estrada Student Hall," and for which purpose accused HANNAH EUNICE D. SERANA requested the amount of FIFTEEN MILLION PESOS (P15,000,000.00), Philippine Currency, from the Office of the President, and the latter relying and believing on said false pretenses and misrepresentation gave and delivered to said accused Land Bank Check No. 91353 dated October 24, 2000 in the amount of FIFTEEN MILLION PESOS (P15,000,000.00), which check was subsequently encashed by accused Jade Ian D. Serana on October 25, 2000 and misappropriated for their personal use and benefit, and despite repeated demands

made upon the accused for them to return aforesaid amount, the said accused failed a nd refused to do so to the damage and prejudice of the government in the aforesaid amount.

CONTRARY TO LAW. (Underscoring supplied)

Petitioner moved to quash the information. She claimed that the Sandiganbayan does not have any  jurisdiction over the offense charged or over her person, in her capacity as UP student regent.

Petitioner claimed that Republic Act (R.A.) No. 3 019, as amended by R.A. No. 8249, enumerates the crimes or offenses over which the Sandiganbayan has jurisdiction.8 It has no j urisdiction over the crime of estafa.9 It only has jurisdiction over crimes covered by Title VII, C hapter II, Section 2 (Crimes Committed by Public Officers), Book II of the Revised Penal Code (RPC). Estafa falling under Title X, Chapter VI (Crimes Against Property), Book II of the RPC is not within the Sandiganbayan’s

 jurisdiction.

She also argued that it was President Estrada, not the government, that was duped. Even assuming that she received the P15,000,000.00, that amount came from Estrada, not from the coffers of the government.10

Petitioner likewise posited that the Sandiganbayan had no jurisdiction over her person. As a student regent, she was not a public officer since she merely represented her peers, in contrast to the other regents who held their positions in an ex officio capacity. She addsed that she was a simple student and did not receive any salary as a student regent.

She further contended that she had no power or authority to receive monies or funds. Such power was vested with the Board of Regents (BOR) as a whole. Since it was not alleged in the information that it was among her functions or duties to receive funds, or that the crime was committed in connection with her official functions, the same is beyond the jurisdiction of the Sandiganbayan citing the case of Soller v. Sandiganbayan.11

The Ombudsman opposed the motion.12 It disputed petitioner’s interpretation of the law. Section

4(b) of Presidential Decree (P.D.) No. 1606 clearly contains the catch -all phrase "in relation to office," thus, the Sandiganbayan has jurisdiction over the charges against petitioner. In the same breath, the

prosecution countered that the source of the money is a matter of defense. It should be threshed out during a full-blown trial.13

According to the Ombudsman, petitioner, despite her protestations, iwas a public officer. As a member of the BOR, she hads the general powers of administration and exerciseds the corporate powers of UP. Based on Mechem’s definition of a public office, petitioner’s stance that she was not

compensated, hence, not a public officer, is erroneous. Compensation is not an essential part of public office. Parenthetically, compensation has been interpreted to include allowances. By this definition, petitioner was compensated.14

Sandiganbayan Disposition

In a Resolution dated November 14, 2003, the Sandiganbayan denied petitioner’s motion for lack of 

merit.15 It ratiocinated:

The focal point in controversy is the jurisdiction of the Sandiganbayan over this case.

It is extremely erroneous to hold that only criminal offenses covered by Chapter II, Section 2, Title VII, Book II of the Revised Penal Code are within the jurisdiction of this Court. As correctly pointed out by the prosecution, Section 4(b) of R.A. 8249 provides that the Sandiganbayan also has jurisdiction over other offenses committed by public officials and employees in relation to their office. From this provision, there is no single doubt that this Court has jurisdiction over the offense of estafa committed by a public official in relation to his office.

Accused-movant’s claim that being merely a member in representation of the student body, she was never a public officer since she never received any compensation nor does she fall under Salary Grade 27, is of no moment, in view of the express provision of Section 4 of Republic Act No. 8249 which provides:

Sec. 4. Jurisdiction – The Sandiganbayan shall exercise exclusive original jurisdiction in all cases involving:

(A) x x x

(1) Officials of the executive branch occupying the positions of regional director and higher, otherwise classified as Grade "27" and higher, of the Compensation and Position Classification Act of 1989 (Republic Act No. 6758), specifically including:

xxxx

(g) Presidents, directors or trustees, or managers of government-owned or controlled corporations, state universities or educational institutions or foundations. (Italics supplied)

It is very clear from the aforequoted provision that the Sandiganbayan has original exclusive  jurisdiction over all offenses involving the officials enumerated in subsection (g), irrespective of their salary grades, because the primordial consideration in the inclusion of these officials is the nature of  their responsibilities and functions.

Is accused-movant included in the contemplated provision of law?

A meticulous review of the existing Charter of the University of the Philippines reveals that the Board of Regents, to which accused-movant belongs, exclusively exercises the general powers of  administration and corporate powers in the university, such as: 1) To receive and appropriate to the ends specified by law such sums as may be provided by law for the support of the university; 2) To prescribe rules for its own government and to enact for the government of the university such general ordinances and regulations, not contrary to law, as are consistent with the purposes of the university; and 3) To appoint, on recommendation of the President of the University, professors, instructors, lecturers and other employees of the University; to fix their compensation, hours of service, and such other duties and conditions as it may deem proper; to grant to them in its discretion leave of absence under such regulations as it may promulgate, any other provisions of law to the contrary notwithstanding, and to remove them for cause after an investigation and hearing shall have been had.

It is well-established in corporation law that the corporation can act only through its board of  directors, or board of trustees in the case of non-stock corporations. The board of directors or trustees, therefore, is the governing body of t he corporation.

It is unmistakably evident that the Board of Regents of the University of the Philippines is performing functions similar to those of the Board of Trustees of a non-stock corporation. This draws to fore the conclusion that being a member of such board, accused-movant undoubtedly falls within the category of public officials upon whom this Court i s vested with original exclusive jurisdiction, regardless of the fact that she does not occupy a position classified as Salary Grade 27 or higher under the Compensation and Position Classification Act of 1989.

Finally, this court finds that accused- movant’s contention that the same of P15 Million was received from former President Estrada and not from the coffers of the government, is a matter a defense that should be properly ventilated during the trial on the merits of this case.16

On November 19, 2003, petitioner filed a motion for reconsideration.17 The motion was denied with finality in a Resolution dated February 4, 2004.18

Issue

Petitioner is now before this Court, contending that "THE RESPONDENT COURT COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK AND/OR EXCESS OF JURISDICTION IN NOT QUASHING THE INFORMATION AND DISMISING THE CASE NOTWITHSTANDING THAT IS HAS NO JURISDICTION OVER THE OFFENSE CHARGED IN THE INFORMATION."19

In her discussion, she reiterates her four-fold argument below, namely: (a) the Sandiganbayan has no  jurisdiction over estafa; (b) petitioner is not a public officer with Salary Grade 27 and she paid her tuition fees; (c) the offense charged was not committed in relation to her office; (d) the funds in question personally came from President Estrada, not from the government.

Our Ruling

The petition cannot be granted.

Preliminarily, the denial of a motion to quash is not correctible by certiorari.

We would ordinarily dismiss this petition for certiorari outright on procedural grounds. Wellestablished is the rule that when a motion to quash in a criminal case is denied, the remedy is not a petition for certiorari, but for petitioners to go to trial, without prejudice to reiterating the special defenses invoked in their motion to quash.20 Remedial measures as regards interlocutory orders, such as a motion to t o quash, are frowned upon and often dismissed.21 The evi dent reason for this rule is to avoid multiplicity of appeals in a single action.22

In Newsweek, Inc. v. Intermediate Appellate Court,23 the Court clearly explained and illustrated the rule and the exceptions, thus:

As a general rule, an order denying a motion to dismiss is merely interlocutory and cannot be subject of appeal until final judgment or order is rendered. (Sec. 2 of Rule 41). The ordinary procedure to be followed in such a case is to file an answer, go to trial and if t he decision is adverse, reiterate the issue on appeal from the final judgment. The same rule applies to an order denying a motion to quash, except that instead of filing an answer a plea is entered and no appeal lies from a judgment of  acquittal.

This general rule is subject to t o certain exceptions. If the court, in denying the motion to dismiss or motion to quash, acts without or in excess of jurisdiction or with grave abuse of discretion, then certiorari or prohibition lies. The reason is that it would be unfair to require the defendant or accused to undergo the ordeal and expense of a trial if the court has no jurisdiction over the subject matter or offense, or is not the court of proper venue, or if the denial of the motion to dismiss or motion to quash is made with grave abuse of discretion or a whimsical and capricious exercise of judgment. In such cases, the ordinary remedy of appeal c annot be plain and adequate. The following are a few examples of the exceptions to the general rule.

In De Jesus v. Garcia (19 SCRA 554), upon the denial of a motion to dismiss based on lack of   jurisdiction over the the subject matter, matter, this Court granted granted the petition for certiorari and prohibition prohibition against the City Court of Manila and directed the respondent court to dismiss the case.

In Lopez v. City Judge (18 SCRA 616), upon the denial of a motion to quash based on lack of   jurisdiction over the the offense, this this Court granted the petition for prohibition prohibition and enjoined enjoined the respondent court from further proceeding in the case.

In Enriquez v. Macadaeg (84 Phil. 674), upon the denial of a motion to dismiss based on improper venue, this Court granted the petition for prohibition and enjoined the respondent judge from taking cognizance of the case except to dismiss the same.

In Manalo v. Mariano (69 SCRA 80), upon the denial of a motion to dismiss based on bar by prior  judgment, this Court Court granted the petition for certiorari certiorari and directed the respondent judge to dismiss the case.

In Yuviengco v. Dacuycuy (105 SCRA 668), upon the denial of a motion to dismiss based on the Statute of Frauds, this Court granted the petition petiti on for certiorari and dismissed the amended complaint.

In Tacas v. Cariaso (72 SCRA 527), this Court granted the petition for certiorari after the motion to quash based on double jeopardy was denied by respondent judge and ordered him to desist from further action in the criminal case except to dismiss the same.

In People v. Ramos (83 SCRA 11), the order denying the motion to quash based on prescription was set aside on certiorari and the criminal case was dismissed by this Court.24

We do not find the t he Sandiganbayan to have committed a grave abuse of discretion.

The jurisdiction of the Sandiganbayan is set by P.D. No. 1606, as amended, not by

R.A. No. 3019, as amended.

We first address pe titioner’s contention that the jurisdiction of the Sandiganbayan is determined by Section 4 of R.A. No. 3019 (The Anti-Graft and Corrupt Practices Act, as amended). We note that petitioner refers to Section 4 of the said law yet quotes Section 4 of P.D. No. 1606, as amended, in her motion to quash before the Sandiganbayan.25 She repeats the r eference in the instant petition for certiorari26 and in her memorandum of authorities.27

We cannot bring ourselves to write this t his off as a mere clerical or typographical error. It bears stressing that petitioner repeated this claim twice despite corrections made by the Sandiganbayan.28

Her claim has no basis in law. It is P.D. No. 1606, as amended, rather than R.A. No. 3019, as amended, that determines the jurisdiction of the Sandiganbayan. Sandiganbayan. A brief legislative history of the statute creating the Sandiganbayan is in order. The Sandiganbayan was created by P.D. No. 1486, promulgated by then President Ferdinand E. Marcos on June 11, 1978. It was promulgated to attain the highest norms of official conduct required of public officers and employees, based on the concept that public officers and employees shall serve with t he highest degree of responsibility, integrity, loyalty and efficiency and shall remain at all times accountable to the people.29

P.D. No. 1486 was, in turn, amended by P.D. No. 1606 which was promulgated on December 10, 1978. P.D. No. 1606 expanded the jurisdiction of the Sandiganbayan.30

P.D. No. 1606 was later amended by P.D. No. 1861 on March 23, 1983, f urther altering the Sandiganbayan jurisdiction. jurisdiction. R.A. No. 7975 approved on March 30, 1995 made succeeding amendments to P.D. No. 1606, which was again a gain amended on February 5, 1997 by R.A. No. 8249. Section 4 of R.A. No. 8249 further modified the jurisdiction of the Sandiganbayan. As it now stands, the Sandiganbayan has jurisdiction over the following:

Sec. 4. Jurisdiction. - The Sandiganbayan shall exercise exclusive original jurisdiction jurisdiction in all cases c ases involving:

A. Violations of Republic Act No. 3019, as amended, other known as the Anti-Graft and Corrupt Practices Act, Republic Act No. 1379, and Chapter II, Section 2, Title VII, Book II of the Revised Penal

Code, where one or more of the accused are officials occupying the following positions in the government, whether in a permanent, acting or i nterim capacity, at the time of the commission of the offense:

(1) Officials of the executive branch occupying the positions of regional director and higher, otherwise classified as Grade "27" and higher, of the Compensation and Position Classification Act of 989 (Republic Act No. 6758), specifically including:

" (a) Provincial governors, vice-governors, members of the sangguniang panlalawigan, and provincial treasurers, assessors, engineers, and other city department heads;

" (b) City mayor, vice-mayors, members of t he sangguniang panlungsod, city treasurers, assessors, engineers, and other city department heads;

"(c ) Officials of the diplomatic service occupying the position of consul and higher;

" (d) Philippine army and air force colonels, naval captains, and all officers of higher rank;

" (e) Officers of the Philippine National Police while occupying the position of provincial director and those holding the rank of senior superintended or higher;

" (f) City and provincial prosecutors and their assistants, and officials and prosecutors in the Office of  the Ombudsman and special prosecutor;

" (g) Presidents, directors or trustees, or managers of government-owned or controlled corporations, state universities or educational institutions or foundations.

" (2) Members of Congress and officials thereof classified as Grade "27'" a nd up under the Compensation and Position Classification Act of 1989;

" (3) Members of the judiciary without prejudice to the provisions of the Constitution;

" (4) Chairmen and members of Constitutional Commission, without prejudice to the provisions of the Constitution; and

" (5) All other national and local officials classified as Grade "27'" and higher under the Compensation and Position Classification Act of 1989.

B. Other offenses of felonies whether simple or complexed with other crimes committed by the public officials and employees mentioned in subsection a of this section in relation to their office.

C. Civil and criminal cases filed pursuant to and in connection with Executive Order Nos. 1, 2, 14 and 14-A, issued in 1986.

" In cases where none of the accused are occupying positions corresponding to Salary Grade "27'" or higher, as prescribed in the said Republic Act No. 6758, or military and PNP officer mentioned above, exclusive original jurisdiction thereof shall be vested in the proper regional court, metropolitan trial court, municipal trial court, and municipal circuit trial court, as the case may be, pursuant to their respective jurisdictions as provided in Batas Pambansa Blg. 129, as a mended.

" The Sandiganbayan shall exercise exclusive appellate jurisdiction over final judgments, resolutions or order of regional trial courts whether in the exercise of their own original jurisdiction or of their appellate jurisdiction as herein provided.

" The Sandiganbayan shall have exclusive original jurisdiction over petitions for the i ssuance of the writs of mandamus, prohibition, certiorari, habeas corpus, injunctions, and other ancillary writs and processes in aid of its appellate jurisdiction and over petitions of similar nature, including quo warranto, arising or that may arise in cases filed or which may be filed under Executive Order Nos. 1, 2, 14 and 14-A, issued in 1986: Provided, That the jurisdiction over these petitions shall not be exclusive of the Supreme Court.

" The procedure prescribed in Batas Pambansa Blg. 129, as well as the implementing rules that the Supreme Court has promulgated and may thereafter promulgate, relative to appeals/petitions for review to the Court of Appeals, shall apply to appeals and petitions for review filed with the Sandiganbayan. In all cases elevated to the Sandiganbayan and from the Sandiganbayan to the Supreme Court, the Office of the Ombudsman, through its special prosecutor, shall represent the People of the Philippines, except in cases filed pursuant to Executive Order Nos. 1, 2, 14 and 14-A, issued in 1986.

" In case private individuals are charged as co-principals, accomplices or accessories with the public officers or employees, including those employed in government-owned or controlled corporations, they shall be tried jointly with said public officers and employees in the proper courts which shall exercise exclusive jurisdiction over them.

" Any provisions of law or Rules of Court to the contrary notwithstanding, the criminal action and the corresponding civil action for the recovery of civil liability shall, at all times, be simultaneously instituted with, and jointly determined in, the same proceeding by the Sandiganbayan or the appropriate courts, the filing of the criminal action being deemed to necessarily carry with it the filing of the civil action, and no right to reserve the filing such civil action separately from the criminal action shall be recognized: Provided, however, That where the civil action had heretofore been filed separately but judgment therein has not yet been rendered, and the criminal case is hereafter filed with the Sandiganbayan or the appropriate court, said civil action shall be transferred to the Sandiganbayan or the appropriate court, as the case may be, for consolidation and joint determination with the criminal action, otherwise the separate civil action shall be deemed abandoned."

Upon the other hand, R.A. No. 3019 is a penal statute approved on August 17, 1960. The said law represses certain acts of public officers and private persons alike which constitute graft or corrupt practices or which may lead thereto.31 Pursuant to Section 10 of R.A. No. 3019, all prosecutions for violation of the said law should be filed with the Sandiganbayan.32

R.A. No. 3019 does not contain an enumeration of the cases over which the Sandiganbayan has  jurisdiction. In fact, Section 4 of R.A. No. 3019 erroneously cited by petitioner, deals not with the  jurisdiction of the Sandiganbayan but with prohibition on private individuals. We quote:

Section 4. Prohibition on private individuals.  – (a) It shall be unlawful for any person having family or close personal relation with any public official t o capitalize or exploit or take advantage of such family or close personal relation by directly or indirectly requesting or receiving any present, gift or mater ial or pecuniary advantage from any other person having some business, transaction, application, request or contract with the government, in which such public official has to intervene. Family relation shall include the spouse or relatives by consanguinity or affinity in the third c ivil degree. The word "close personal relation" shall include close personal friendship, social and fraternal connections, and professional employment all giving rise to intimacy which assures free access to such public officer.

(b) It shall be unlawful for any person knowingly to induce or c ause any public official to commit any of the offenses defined in Section 3 hereof.

In fine, the two statutes differ in that P.D. No. 1606, as amended, defines the jurisdiction of the Sandiganbayan while R.A. No. 3019, as amended, defines graft and corrupt practices and provides for their penalties.

Sandiganbayan has jurisdiction over the offense of estafa.

Relying on Section 4 of P.D. No. 1606, petitioner contends that estafa is not among those crimes cognizable by the Sandiganbayan. We note that in hoisting this argument, petitioner isolated the first paragraph of Section 4 of P.D. No. 1606, without regard to the succeeding paragraphs of the said provision.

The rule is well-established in this jurisdiction that statutes should receive a sensible construction so as to avoid an unjust or an absurd conclusion.33 Interpretatio talis in ambiguis semper fienda est, ut evitetur inconveniens et absurdum. Where there is ambiguity, such interpretation as will avoid inconvenience and absurdity is to be adopted. Kung saan mayroong kalabuan, ang pagpapaliwanag ay hindi dapat maging mahirap at katawa-tawa.

Every section, provision or clause of the statute must be expounded by reference to each other in order to arrive at the effect contemplated by the legislature.34 The intention of the legislator must be

ascertained from the whole text of the law and every part of the act is to be taken into view.35 In other words, petitioner’s interpretation lies in direct opposition to the rule that a statute must be

interpreted as a whole under the principle that the best interpreter of a statute is the statute itself.36 Optima statuti interpretatrix est ipsum statutum. Ang isang batas ay marapat na bigyan ng kahulugan sa kanyang kabuuan sa ilalim ng prinsipyo na ang pinakamainam na interpretasyon ay ang mismong batas.

Section 4(B) of P.D. No. 1606 reads:

B. Other offenses or felonies whether simple or c omplexed with other crimes committed by the public officials and employees mentioned in subsection a of this section in relation to their office.

Evidently, the Sandiganbayan has jurisdiction over other felonies committed by public officials in relation to their office. We see no plausible or sensible reason to exclude estafa as one of the offenses included in Section 4(bB) of P.D. No. 1606. Plainly, estafa is one of those other felonies. The  jurisdiction is simply subject to the twin requirements that (a) the offense is committed by public officials and employees mentioned in Section 4(A) of P.D. No. 1 606, as amended, and that (b) the offense is committed in relation to their office.

In Perlas, Jr. v. People,37 the Court had occasion to explain that the Sandiganbayan has jurisdiction over an indictment for estafa versus a director of the National Parks Development Committee, a government instrumentality. The Court held t hen:

The National Parks Development Committee was created originally as an Executive Committee on January 14, 1963, for the development of the Quezon Memorial, Luneta and other national parks (Executive Order No. 30). It was later designated as the National Parks Development Committee (NPDC) on February 7, 1974 (E.O. No. 69). On January 9, 1966, Mrs. Imelda R. Marcos and Teodoro F. Valencia were designated Chairman and Vice-Chairman respectively (E.O. No. 3). Despite an attempt to transfer it to the Bureau of Forest Development, Department of Natural Resources, on December 1, 1975 (Letter of Implementation No. 39, issued pursuant to PD No. 830, dated November 27, 1975), the NPDC has remained under the Office of the President (E.O. No. 709, dated July 27, 1981).

Since 1977 to 1981, the annual appropriations decrees listed NPDC as a regular government agency under the Office of the President and allotments for its maintenance and operating expenses were issued direct to NPDC (Exh. 10-A, Perlas, Item Nos. 2, 3).

The Sandiganbayan’s jurisdiction over estafa was reiterated with greater firmness in Bondoc v. Sandiganbayan.38 Pertinent parts of the Court’s ruling in Bondoc read:

Furthermore, it is not legally possible to transfer Bondoc’s cases to the Regional Trial Court, for the

simple reason that the latter would not have jurisdiction over the offenses. As already above intimated, the inability of the Sandiganbayan to hold a joint trial of Bondoc’s cases and those of the

government employees separately charged for the same crimes, has not altered the n ature of the offenses charged, as estafa thru falsification punishable by penalties higher than prision correccional or imprisonment of six years, or a fine of P6,000.00, committed by government employees in conspiracy with private persons, including Bondoc. These crimes are within the exclusive, original  jurisdiction of the Sandiganbayan. They simply cannot be taken cognizance of by the regular courts, apart from the fact that even if the cases could be so transferred, a joint trial would nonetheless not be possible.

Petitioner UP student regent is a public officer.

Petitioner also contends that she is not a public officer. She does not receive any salary or remuneration as a UP student regent. This is not the first or likely the last time that We will be called upon to define a public officer. In Khan, Jr. v. Office of the Ombudsman, We ruled that it is difficult to pin down the definition of a public officer.39 The 1987 Constitution does not define who are public officers. Rather, the varied definitions and concepts are found in different statutes and jurisprudence.

In Aparri v. Court of Appeals,40 the Court held that:

A public office is the right, authority, and duty created and conferred by law, by which for a given period, either fixed by law or enduring at the pleasure of the creating power, an individual is invested with some portion of the sovereign functions of the government, to be exercise by him for the benefit

of the public ([Mechem Public Offices and Officers,] Sec. 1). The right to hold a public office under our political system is therefore not a natural right. It exists, when it exists at all only because and by virtue of some law expressly or impliedly creating and conferring it (Mechem Ibid., Sec. 64). There is no such thing as a vested interest or an estate in an office, or even an absolute right to hold office. Excepting constitutional offices which provide for special immunity as regards salary and tenure, no one can be said to have any vested right in an office or its salary (42 Am. J ur. 881).

In Laurel v. Desierto,41 the Court adopted the definition of Mechem of a public office:

"A public office is the right, authority and duty, created and conferred by law, by which, for a given period, either fixed by law or enduring at the pleasure of the creating power, an individual is invested with some portion of the sovereign functions of the government, to be exercised by him for the benefit of the public. The individual so invested is a public officer."42

Petitioner claims that she is not a public officer with Salary Grade 27; she is, in fact, a regular tuition fee-paying student. This is likewise bereft of merit. It is not only the salary grade that determines the  jurisdiction of the Sandiganbayan. The Sandiganbayan also has jurisdiction over other officers enumerated in P.D. No. 1606. In Geduspan v. People,43 We held that while the first part of Section 4(A) covers only officials with Salary Grade 27 and higher, its second part specifically includes other executive officials whose positions may not be of Salary Grade 27 and higher but who are by express provision of law placed under the jurisdiction of the said court. Petitioner falls under the jurisdiction of the Sandiganbayan as she is placed there by express provision of law.44

Section 4(A)(1)(g) of P.D. No. 1606 explictly vested the Sandiganbayan with jurisdiction over Presidents, directors or trustees, or managers of government-owned or controlled corporations, state universities or educational institutions or foundations. Petitioner falls under this category. As the Sandiganbayan pointed out, the BOR performs functions similar to those of a board of trustees of a non-stock corporation.45 By express mandate of law, petitioner is, indeed, a public officer as contemplated by P.D. No. 1606.

Moreover, it is well established that compensation is not an essential element of public office.46 At most, it is merely incidental to the public office.47

Delegation of sovereign functions is essential in the public office. An investment in an individual of  some portion of the sovereign functions of the government, to be exercised by him for the benefit of  the public makes one a public officer.48

The administration of the UP is a sovereign function in line with Article XIV of the Constitution. UP performs a legitimate governmental function by providing advanced instruction in literature, philosophy, the sciences, and arts, and giving professional and technical training.49 Moreover, UP is maintained by the Government and it declares no dividends and is not a corporation created for profit.50

The offense charged was committed in relation to public office, according to the Information.

Petitioner likewise argues that even assuming that she is a public officer, the Sandiganbayan would still not have jurisdiction over the offense because it was not committed in relation to her office.

According to petitioner, she had no power or authority to act without the approval of the BOR. She adds there was no Board Resolution issued by the BOR authorizing her to contract with then President Estrada; and that her acts were not ratified by the governing body of the state university. Resultantly, her act was done in a private capacity and not in r elation to public office.

It is axiomatic that jurisdiction is determined by the averments in the information.51 More than that,  jurisdiction is not affected by the pleas or the theories set up by defendant or respondent in an answer, a motion to dismiss, or a motion to quash.52 Otherwise, jurisdiction would become dependent almost entirely upon the whims of defendant or respondent.53

In the case at bench, the information alleged, in no uncertain terms that petitioner, being then a student regent of U.P., "while in the performance of her official functions, committing the offense in relation to her office and taking advantage of her position, with intent to gain, conspiring with her brother, JADE IAN D. SERANA, a private individual, did then and t here wilfully, unlawfully and feloniously defraud the government x x x." (Underscoring supplied)

Clearly, there was no grave abuse of discretion on the part of the Sandiganbayan when it did not quash the information based on this ground.

Source of funds is a defense that should be raised during trial on the merits.

It is conten ded anew that the amount came from President Estrada’s private funds and not from the government coffers. Petitioner insists the charge has no leg to stand on.

We cannot agree. The information alleges that the funds came from the Office of the President and not its then occupant, President Joseph Ejercito Estrada. Under the information, it is averred that "petitioner requested the amount of Fifteen Million Pesos (P15,000,000.00), Philippine Currency, from the Office of the President, and the latter relying and believing on said false pretenses and misrepresentation gave and delivered to said accused Land Bank Check No. 91353 dated October 24, 2000 in the amount of Fifteen Million Pesos (P15,000,000.00)."

Again, the Court sustains the Sandiganbayan observation that the source of the P15,000,000 is a matter of defense that should be ventilated during the trial on the merits of the instant case.54

A lawyer owes candor, fairness and honesty to the Court.

As a parting note, petitioner’s counsel, Renato G. dela Cruz, misrepresented his reference to Section 4

of P.D. No. 1606 as a quotation from Section 4 of R.A. No. 3019. A review of his motion to quash, the instant petition for certiorari and his memorandum, unveils the misquotation. We urge petitioner’s

counsel to observe Canon 10 of the Code of Professional Responsibility, specifically Rule 10.02 of the Rules stating that "a lawyer shall not misquote or misrepresent."

The Court stressed the importance of this rule in Pangan v. Ramos,55 where Atty Dionisio D. Ramos used the name Pedro D.D. Ramos in connection with a criminal case. The Court ruled that Atty. Ramos

resorted to deception by using a name different from that with which he was authorized. We severely reprimanded Atty. Ramos and warned that a repetition may warrant suspension or disbarment.56

We admonish petitioner’s counsel to be more careful and accurate in his citation. A lawyer’s conduct

before the court should be characterized by candor and fairness.57 The administration of justice would gravely suffer if lawyers do not act with complete candor and honesty before the courts.58

WHEREFORE, the petition is DENIED for lack of merit.

SO ORDERED.

RUPERTO A. AMBIL, JR., Petitioner,

- versus -

SANDIGANBAYAN and PEOPLE OF THE PHILIPPINES,

VILLARAMA, JR., J.: Before us are two consolidated petitions for review on certiorari filed by petitioner Ruperto A. Ambil, Jr.[1] and petitioner Alexandrino R. Apelado Sr.[2] assailing the Decision[3] promulgated on September 16, 2005 and Resolution[4] dated November 8, 2006 of the Sandiganbayan in Criminal Case No. 25892. The present controversy arose from a letter[5] of Atty. David B. Loste, President of the Eastern Samar Chapter of the Integrated Bar of the Philippines (IBP), to the Office of the Ombudsman, praying for an investigation into the alleged transfer of then Mayor Francisco Adalim, an accused in Criminal Case No. 10963 for murder, from the provincial jail of Eastern Samar to the residence of petitioner, then Governor Ruperto A. Ambil, Jr. In a Report[6] dated January 4, 1999, the National Bureau of  Investigation (NBI) recommended the filing of criminal charges against petitioner Ambil, Jr. for violation of Section 3(e)[7] of Republic Act (R.A.) No. 3019, otherwise known as the Anti-Graft and Corrupt Practices Act, as amended. On September 22, 1999, the new President of the IBP, Eastern Samar Chapter, informed the Ombudsman that the IBP is no longer interested in pursuing the case against petitioners. Thus, he recommended the dismissal of the complaint against petitioners.[8] Nonetheless, in an Information[9] dated January 31, 2000, petitioners Ambil, Jr. and Alexandrino R. Apelado, Sr. were charged with violation of Section 3(e) of R.A. No. 3019, together with SPO3 Felipe A. Balano. Upon reinvestigation, the Office of the Ombudsman issued a Memorandum[10] dated August 4, 2000, recommending the dismissal of the complaint as regards Balano and the amendment of the Information to include the charge of Delivering Prisoners from Jail under Article 156[11] of the Revised Penal Code, as amended, (RPC) against the remaining accused. The Amended Information[12] reads:

That on or about the 6th day of September 1998, and for sometime prior [or] subsequent thereto, [in] the Municipality of Borongan, Province of Eastern Samar, Philippines, and within the jurisdiction of  this Honorable Court, [the] above-named accused, Ruperto A. Ambil, Jr.[,] being then the Provincial Governor of Eastern Samar, and Alexandrino R. Apelado, being then the Provincial Warden of Eastern Samar, both having been public officers, duly elected, appointed and qualified as such, committing the offense in relation to office, conniving and confederating together and mutually helping x x x each other, with deliberate intent, manifest partiality and evident bad faith, did then and there wilfully, unlawfully and criminally order and cause the release from the Provincial Jail of detention prisoner Mayor Francisco Adalim, accused in Criminal Case No. 10963, for Murder, by virtue of a warrant of  Arrest issued by Honorable Arnulfo P. Bugtas, Presiding Judge, RTC-Branch 2, Borongan, Eastern Samar, and thereafter placed said detention prisoner (Mayor Francisco Adalim) under accused RUPERTO A. AMBIL, JR.’s custody, by allowing said Mayor Adalim to stay at accused Ambil’s residence

for a period of Eighty-Five (85) days, more or less which act was done without any court order, thus accused in the performance of official functions had given unwarranted benefits and a dvantage to detainee Mayor Francisco Adalim to the prejudice of the government. CONTRARY TO LAW. BAIL BOND RECOMMENDED: P30,000.00 each.[13] On arraignment, petitioners pleaded not guilty and posted bail. At the pre-trial, petitioners admitted the allegations in the Information. They reason, however, that Adalim’s transfer was justified considering the imminent threats upon his person and the dangers posed by his detention at the provincial jail. According to petitioners, Adalim’s sister, Atty. Juliana A.

Adalim-White, had sent numerous prisoners to the same jail where Mayor Adalim was to be held. Consequently, the prosecution no longer offered testimonial evidence and rested its case after the admission of its documentary exhibits. Petitioners filed a Motion for Leave to File Demurrer to Evidence with Reservation to Present Evidence in Case of Denial[14] but the same was denied. At the trial, petitioners presented three witnesses: petitioner Ambil, Jr., Atty. Juliana A. AdalimWhite and Mayor Francisco C. Adalim. Petitioner Ambil, Jr. testified that he was the Governor of Eastern Samar from 1998 to 2001. According to him, it was upon the advice of Adalim’s lawyers that he directed the transfer of Adalim’s

detention to his home. He cites poor security in the provincial jail as the primary reason for taking personal custody of Adalim considering that the latter would be in the company of inmates who were put away by his sister and guards identified with his political opponents.[15] For her part, Atty. White stated that she is the District Public Attorney of Eastern Samar and the sister of Mayor Adalim. She recounted how Mayor Adalim was arrested while they were attending a wedding in Sulat, Eastern Samar, on September 6, 1998. According to Atty. White, she sought the

alternative custody of Gov. Ambil, Jr. after Provincial Warden and herein petitioner Apelado, Sr. failed to guarantee the mayor’s safety.*16+

Meanwhile, Francisco Adalim introduced himself as the Mayor of Taft, Eastern Samar. He confirmed his arrest on September 6, 1998 in connection with a murder case filed against him in the Regional Trial Court (RTC) of Borongan, Eastern Samar. Adalim confirmed Atty. White’s account that

he spotted inmates who served as bodyguards for, or who are associated with, his political rivals at the provincial jail. He also noticed a prisoner, Roman Akyatan, gesture to him with a raised clenched fist. Sensing danger, he called on his sister for help. Adalim admitted staying at Ambil, Jr.’s residence

for almost three months before he posted bail after the charge against him was downgraded to homicide.[17] Petitioner Apelado, Sr. testified that he was the Provincial Jail Warden of Eastern Samar. He recalls that on September 6, 1998, SPO3 Felipe Balano fetched him at home to assist in the arrest of  Mayor Adalim. Allegedly, Atty. White was contesting the legality of Mayor Adalim’s arrest and

arguing with the jail guards against booking him for detention. At the provincial jail, petitioner was confronted by Atty. White who informed him that he was under the governor, in the latter’s capacity as a provincial jailer. Petitioner claims that it is for this reason that he submitted to the governor’s

order to relinquish custody of Adalim.[18] Further, petitioner Apelado, Sr. described the physical condition of the jail t o be dilapidated and undermanned. According to him, only two guards were incharge of looking after 50 inmates. There were two cells in the jail, each housing 25 inmates, while an isolation cell of 10 square meters was unserviceable at the time. Also, there were several nipa huts within the perimeter for use during conjugal visits.[19] On September 16, 2005, the Sandiganbayan, First Division, promulgated the assailed Decision[20] finding petitioners guilty of violating Section 3(e) of R.A. No. 3019. The court ruled that in moving Adalim to a private residence, petitioners have c onspired to accord him unwarranted benefits in the form of more comfortable quarters with access to t elevision and other privileges that other detainees do not enjoy. It stressed that under the Rules, 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.[21] The Sandiganbayan brushed aside petiti oners’ defense that Adalim’s transfer was made to ensure his safety. It observed that petitioner Ambil, Jr. did not personally verify any actual threat on Adalim’s life but relied simply on the advice of Adalim’s lawyers. The Sandiganbayan also pointed out

the availability of an isolation cell and nipa huts within the 10-meter-high perimeter fence of the jail which could have been used to separate Adalim from other prisoners. Finally, it cited petitioner Ambil, Jr.’s failure to turn over Adalim despite advice from Assistant Secretary Jesus Ingeniero of the

Department of Interior and Local Government. Consequently, the Sandiganbayan sentenced petitioner Ambil, Jr. to an indeterminate penalty of  imprisonment for nine (9) years, eight (8) months and one (1) day to twelve (12) years and four (4) months. In favor of petitioner Apelado, Sr., the court appreciated the incomplete justifying

circumstance of obedience to a superior order and sentenced him to imprisonment for six (6) years and one (1) month to nine (9) years and eight (8) months. Hence, the present petitions. Petitioner Ambil, Jr. advances the following issues for our consideration: I WHETHER OR NOT SECTION 3(e) REPUBLIC ACT NO. 3019, AS AMENDED, APPLIES TO PETITIONER’S

CASE BEFORE THE SANDIGANBAYAN. II WHETHER OR NOT A PUBLIC OFFICER SUCH AS PETITIONER IS A PRIVATE PARTY FOR PURPOSES OF SECTION 3(e), REPUBLIC ACT NO. 3019, AS AMENDED. III WHETHER OR NOT PETITIONER ACTED WITH DELIBERATE INTENT, MANIFEST PARTIALITY, EVIDENT BAD FAITH OR GROSS INEXCUSABLE NEGLIGENCE IN THE CONTEXT OF SAID SECTION 3(e). IV WHETHER OR NOT PETITIONER AS PROVINCIAL GOVERNOR AND JAILER UNDER SECTIONS 1730 AND 1733, ARTICLE III, CHAPTER 45 OF THE ADMINISTRATIVE CODE OF 1917 AND SECTION 61, CHAPTER V, REPUBLIC ACT 6975 HAS THE AUTHORITY TO TAKE CUSTODY OF A DETENTION PRISONER. V WHETHER OR NOT PETITIONER IS ENTITLED TO THE JUSTIFYING CIRCUMSTANCE OF FULFILLMENT OF A DUTY OR THE LAWFUL EXERCISE OF A RIGHT OR OFFICE. VI WHETHER OR NOT PETITIONER SHOULD HAVE BEEN ACQUITTED BECAUSE THE PROSECUTION EVIDENCE DID NOT ESTABLISH HIS GUILT BEYOND REASONABLE DOUBT.[22] For his part, petitioner Apelado, Sr. imputes the following errors on the Sandiganbayan: I THERE WAS MISAPPREHENSION OF FACTS AND/OR MISAPPLICATION OF THE LAW AND JURISPRUDENCE IN CONVICTING ACCUSED APELADO, EITHER AS PRINCIPAL OR IN CONSPIRACY WITH HIS CO-ACCUSED AMBIL. II

IN THE ABSENCE OF COMPETENT PROOF BEYOND REASONABLE DOUBT OF CONSPIRACY BETWEEN ACCUSED AMBIL AND HEREIN PETITIONER, THE LATTER SHOULD BE ACCORDED FULL CREDIT FOR THE JUSTIFYING CIRCUMSTANCE UNDER PARAGRAPH 6, ARTICLE 11 OF THE REVISED PENAL CODE. III THE COURT A QUO’S BASIS IN CONVICTING BOTH ACCUSED AMBIL AND HEREIN PETITIONER OF HAVING GIVEN MAYOR ADALIM “UNWAR RANTED BENEFITS AND ADVANTAGE TO THE PREJUDICE x x

x OF THE GOVERNMENT IS, AT THE MOST, SPECULATIVE.[23] The issues raised by petitioner Ambil, Jr. can be summed up into three: (1) Whether he is guilty beyond reasonable doubt of violating Section 3(e), R.A. No. 3019; (2) Whether a provincial governor has authority to take personal custody of a detention prisoner; and (3) Whether he is entitled to the  justifying circumstance of fulfillment of duty under Article 11(5)[24] of the RPC. Meanwhile, petitioner Apelado, Sr.’s assignment of errors can be condensed into two: (1) Whether he is guilty beyond reasonable doubt of violating Section 3( e), R.A. No. 3019; and (2) Whether he is entitled to the justifying circumstance of obedience to an order issued by a superior for some lawful purpose under Article 11(6)[25] of the RPC. Fundamentally, petitioner Ambil, Jr. argues that Section 3(e), R.A. No. 3019 does not apply to his case because the provision contemplates only transactions of a pecuniary nature. Since the law punishes a public officer who extends unwarranted benefits to a private person, petitioner avers that he cannot be held liable for extending a favor to Mayor Adalim, a public officer. Further, he claims good faith in taking c ustody of the mayor pursuant to his duty as a “Provincial Jailer” under the Administrative Code of 1917. Considering this, petitioner believes himself entitled to the justifying circumstance of fulfillment of duty or lawful exercise of duty. Petitioner Apelado, Sr., on the other hand, denies allegations of conspiracy between him and petitioner Ambil, Jr. Petitioner Apelado, Sr. defends that he was merely following the orders of a superior when he transferred the detention of Adalim. As well, he invokes immunity from criminal liability. For the State, the Office of the Special Prosecutor (OSP) points out the absence of jurisprudence that restricts the application of Section 3(e), R.A. No. 3019 to transactions of a pecuniary nature. The OSP explains that it is enough to show that in performing their functions, petitioners have accorded undue preference to Adalim for liability to attach under the provision. Further, the OSP maintains that Adalim is deemed a private party for purposes of applying Section 3(e), R.A. No. 3019 because the unwarranted benefit redounded, not to his person as a mayor, but to his person as a detention prisoner accused of murder. It suggests further that petitioners were motivated by bad faith as evidenced by their refusal to turn over Adalim despite instruction from Asst. Sec. Ingeniero. The OSP also reiterates petitioners’ lack of authority to take custody of a detention prisoner without a court

order. Hence, it concludes that petitioners are not entitled to the benefit of any justifying circumstance.

After a careful review of this case, the Court finds the present petitions bereft of merit. Petitioners were charged with violation of Section 3(e) of R.A. No. 3019 or the Anti-Graft and Corrupt Practices Act which provides: Section. 3. Corrupt practices of public officers. - In addition to acts or omissions of public officers already penalized by existing law, the following shall constitute corrupt practices of any public officer and are hereby declared to be unlawful: xxxx (e) Causing any undue injury to any party, including the Government, or giving any private party any unwarranted benefits, advantage or preference in the discharge of his official, administrative or  judicial functions through manifest partiality, evident bad faith or gross inexcusable negligence. This provision shall apply to officers and employees of offices or government corporations charged with the grant of licenses or permits or other concessions. In order to hold a person liable under this provision, the following elements must concur: (1) the accused must be a public officer discharging administrative, judicial or official functions; (2) he must have acted with manifest partiality, evident bad faith or gross inexcusable negligence; and (3) his action caused any undue injury to any party, including the government, or gave any private party unwarranted benefits, advantage or preference in the discharge of his functions.[26] As to the first element, there is no question that petitioners are public officers discharging official functions and that jurisdiction over them lay with the Sandiganbayan. Jurisdiction of the Sandiganbayan over public officers charged with violation of the Anti-Graft Law is provided under Section 4 of Presidential Decree No. 1606,[27] as amended by R.A. No. 8249.[28] The pertinent portions of Section 4, P.D. No. 1606, as amended, read as follows: SEC. 4. Jurisdiction.—The Sandiganbayan shall exercise exclusive original jurisdiction in all cases involving: a. Violations of Republic Act No. 3019, as amended, otherwise known as the Anti-Graft and Corrupt Practices Act, Republic Act No. 1379, and Chapter II, Section 2, Title VII, Book II of the Revised Penal Code, where one or more of the accused are officials occupying the following positions in the government, whether in a permanent, acting or interim c apacity, at the time of the commission of the offense: (1) Officials of the executive branch occupying the positions of regional director and higher, otherwise classified as Grade ‘27’ and higher, of the Compensation and Position Classification Act of 1989

(Republic Act No. 6758), specifically including: (a) Provincial governors, vice-governors, members of the sangguniang panlalawigan and provincial treasurers, assessors, engineers and other provincial department heads[;]

xxxx In cases where none of the accused are occupying positions corresponding to Salary Grade ‘27’

or higher, as prescribed in the said Republic Act No. 6758, or military and PNP officers mentioned above, exclusive original jurisdiction thereof shall be vested in the proper regional t rial court, metropolitan trial court,

municipal trial court, and municipal circuit trial court, as the case may

be, pursuant to their respective jurisdiction as provided in Batas Pambansa Blg. 129, as amended.

xxxx Thus, the jurisdiction of the Sandiganbayan over petitioner Ambil, Jr. is beyond question. The same is true as regards petitioner Apelado, Sr. As to him, a Certification[29] from the Provincial Government Department Head of the HRMO shows that his position as Provincial Warden is classified as Salary Grade 22. Nonetheless, it is only when none of the accused are occupying positions corresponding to salary grade ‘27’ or higher shall exclusive jurisdiction be vested in the lower courts.

Here, petitioner Apelado, Sr. was charged as a co-principal with Governor Ambil, Jr., over whose position the Sandiganbayan has jurisdiction. Accordingly, he was correctly tried jointly with said public officer in the proper court which had exclusive original jurisdiction over them  – the Sandiganbayan. The second element, for its part, describes the three ways by which a violation of Section 3(e) of  R.A. No. 3019 may be committed, that is, through manifest partiality, evident bad faith or gross inexcusable negligence. In Sison v. People,*30+ we defined “partiality,” “bad faith” and “gross negligence” as follows: “Partiality” is synonymous with “bias” which “excites a disposition to see and report matters as they are wished for rather than as they are.” “Bad faith does not simply connote bad judgment or

negligence; it imputes a dishonest purpose or some moral obliquity and c onscious doing of a wrong; a breach of sworn duty through some motive or intent or ill will; it partakes of the nature of fraud.” “Gross negligence has been so defined as negligence characterized by the want of even slight care,

acting or omitting to act in a situation where there is a duty to act, not inadvertently but wilfully and intentionally with a conscious indifference to consequences in so far as other persons may be affected. It is the omission of that care which even inattentive and thoughtless men never fail to take on their own property.” x x x*31+

In this case, we find that petitioners displayed manifest partiality and evident bad faith in transferring the detention of Mayor Adalim to petitioner Ambil, Jr.’s house. There is no merit to petitioner Ambil, Jr.’s contention that he is authorized to transfer the detention of prisoners by virtue of his power as the “Provincial Jailer” of Eastern Samar.

Section 28 of the Local Government Code draws the extent of the power of local chief executives over the units of the Philippine National Police within their jurisdiction:

SEC. 28. Powers of Local Chief Executives over the Units of the Philippine National Police. —The extent of operational supervision and control of local chi ef executives over the police force, fire protection unit, and jail management personnel assigned in their respective jurisdictions shall be governed by the provisions of Republic Act Numbered Sixty-nine hundred seventy-five (R.A. No. 6975), otherwise known as “The Department of the Interior and Local Government Act of 1990,” and the rules and regulations issued pursuant thereto. In particular, Section 61, Chapter 5 of R.A. No. 6975[32] on the Bureau of Jail Management and Penology provides: Sec. 61. Powers and Functions. - The Jail Bureau shall exercise supervision and control over all city and municipal jails. The provincial jails shall be supervised and controlled by the provincial government within its jurisdiction, whose expenses shall be subsidized by the National Government for not more than three (3) years after the effectivity of this Act. The power of control is the power of an officer to alter or modify or set aside what a subordinate officer had done in the performance of his duties and to substitute the judgment of the former for that of the latter.[33] An officer in control lays down the rules in the doing of an act. If they are not followed, he may, in his discretion, order the act undone or re-done by his subordinate or he may even decide to do it himself.[34] On the other hand, the power of supervision means “overseeing or the authority of an officer to see to it that the subordinate officers perform their duties.”*35+ If the subordinate officers fail or

neglect to fulfill their duties, the official may take such action or step as prescribed by law to make them perform their duties. Essentially, the power of supervision means no more than the power of  ensuring that laws are faithfully executed, or that subordinate officers act within the law.[36] The supervisor or superintendent merely sees to it that the r ules are followed, but he does not lay down the rules, nor does he have discretion to modify or replace them.[37] Significantly, it is the provincial government and not the governor alone which has authority to exercise control and supervision over provincial jails. In any case, neither of said powers authorizes the doing of acts beyond the parameters set by law. On the contrary, subordinates must be enjoined to act within the bounds of law. In the event that the subordinate performs an act ultra vires, rules may be laid down on how the act should be done, but always in conformity with the law. In a desperate attempt to stretch the scope of his powers, petitioner Ambil, Jr. cites Section 1731, Article III of the Administrative Code of 1917 on Provincial jails in support. Section 1731 provides: SEC. 1731. Provincial governor as keeper of jail. —The governor of the province shall be charged with the keeping of the provincial jail, and it shall be his duty to administer the same in accordance with law and the regulations prescribed for the government of provincial prisons. The immediate custody and supervision of the jail may be committed to the care of a jailer to be appointed by the provincial governor. The position of jailer shall be regarded as within the unclassified civil service but may be filled in the manner in which classified positions are filled, and if so filled, the appointee shall be

entitled to all the benefits and privileges of classified employees, except that he shall hold office only during the term of office of the appointing governor and until a successor in the office of the jailer is appointed and qualified, unless sooner separated. The provincial governor shall, under the direction of the provincial board and at the expense of the province, supply proper food and cl othing for the prisoners; though the provincial board may, in its discretion, let t he contract for the feeding of the prisoners to some other person. (Emphasis supplied.) This provision survived the advent of the Administrative Code of 1987. But again, nowhere did said provision designate the provincial governor as the “provincial jailer,” or even slightly suggest that

he is empowered to take personal custody of prisoners. What is clear from the cited provision is that the provincial governor’s duty as a j ail keeper is confined to the administration of the jail and the

procurement of food and clothing for the prisoners. After all, administrative acts pertain only to those acts which are necessary to be done to carry out legislative policies and purposes already declared by the legislative body or such as are devolved upon it[38] by the Constitution. Therefore, in the exercise of his administrative powers, the governor can only enforce the law but not supplant it. Besides, the only reference to a transfer of prisoners in said article is found in Section 1737[39] under which prisoners may be turned over to the jail of the neighboring province in case the provincial jail be insecure or insufficient to accommodate all provincial prisoners. However, this provision has been superseded by Section 3, Rule 114 of the Revised Rules of Criminal Procedure, as amended. Section 3, Rule 114 provides: SEC. 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. Indubitably, the power to order the release or transfer of a person under detention by legal process is vested in the court, not in the provincial government, much less the governor. This was amply clarified by Asst. Sec. Ingeniero in his communication[40] dated October 6, 1998 addressed to petitioner Ambil, Jr. Asst. Sec. Ingeniero wrote: 06 October 1996 GOVERNOR RUPERTO AMBIL Provincial Capitol Borongan, Eastern Samar

Dear Sir:

This has reference to the letter of Atty. Edwin B. Docena, and the reports earlier received by this Department, relative to your alleged action in taking into custody Mayor Francisco “Aising” Adalim of 

Taft, that province, who has been previously arrested by virtue by a warrant of arrest issued in Criminal Case No. 10963.

If the report is true, it appears that your actuation is not in accord with the provision of Section 3, Rule 113 of the Rules of Court, which mandates that an arrested person be delivered to the nearest police station or jail.

Moreover, invoking Section 61 of RA 6975 as legal basis in taking custody of the accused municipal mayor is misplaced. Said section merely speaks of the power of supervision vested unto the provincial governor over provincial jails. It does not, definitely, include the power to take in custody any person in detention.

In view of the foregoing, you are hereby enjoined to conduct yourself within the bounds of law and to immediately deliver Mayor Adalim to the provincial jail in order to avoid legal complications.

Please be guided accordingly.

Very truly yours,

(SGD.) JESUS I. INGENIERO Assistant Secretary Still, petitioner Ambil, Jr. insisted on his supposed authority as a “provincial jailer.” Said petitioner’s

usurpation of the court's authority, not to mention his open and willful defiance to official advice in order to accommodate a former political party mate,[41] betray his unmistakable bias and the evident bad faith that attended his actions. Likewise amply established beyond reasonable doubt is the third element of the crime. As mentioned above, in order to hold a person liable for violation of Section 3(e), R.A. No. 3019, it is required that the act constituting the offense consist of either (1) causing undue injury to any party, including the government, or (2) giving any private party any unwarranted benefits, advantage or preference in the discharge by the accused of his official, administrative or judicial functions.

In the case at hand, the Information specifically accused petitioners of giving unwarranted benefits and advantage to Mayor Adalim, a public officer charged with murder, by causing his release from prison and detaining him instead at the house of petitioner Ambil, Jr. Petitioner Ambil, Jr. negates the applicability of Section 3(e), R.A. No. 3019 in this case on two points. First, Section 3(e) is not applicable to him allegedly because the last sentence thereof provides that the “provision shall apply

to officers and employees of offices or government corporations charged with the grant of licenses, permits or other concessions” and he is not such government officer or employee. Second, the

purported unwarranted benefit was accorded not to a private party but to a public officer. However, as regards his first contention, it appears that petitioner Ambil, Jr. has obviously lost sight, if he is not altogether unaware, of our ruling in Mejorada v. Sandiganbayan[42] where we held that a prosecution for violation of Section 3(e) of the Anti-Graft Law will lie regardless of whether or not the accused public officer is “charged with the grant of licenses or permits or other concessions.”

Following is an excerpt of what we said in Mejorada, Section 3 cited above enumerates in eleven subsections the corrupt practices of any public officers (sic) declared unlawful. Its reference to “any public officer” is without distinction or

qualification and it specifies the acts declared unlawful. We agree with the view adopted by the Solicitor General that the last sentence of paragraph [Section 3] (e) is intended to make clear the inclusion of officers and employees of officers (sic) or g overnment corporations which, under the ordinary concept of “public officers” may not come within the term. It is a strained construction of 

the provision to read it as applying exclusively to public officers charged with the duty of granting licenses or permits or other concessions.[43] (Italics supplied.)

In the more recent case of Cruz v. Sandiganbayan,[44] we affirmed that a prosecution for violation of  said provision will lie regardless of whether the accused public officer is charged with the grant of  licenses or permits or other concessions.[45] Meanwhile, regarding petitioner Ambil, Jr.’s second contention, Section 2(b) of R.A. No. 3019 defines a “public officer” to include elective and appointive officials and employees, permanent or

temporary, whether in the classified or unclassified or exemption service receiving c ompensation, even nominal from the government. Evidently, Mayor Adalim is one. But considering that Section 3(e) of R.A. No. 3019 punishes the giving by a public officer of unwarranted benefits to a private party, does the fact that Mayor Adalim was the recipient of such benefits take petitioners’ case beyond the ambit of said law? We believe not. In drafting the Anti-Graft Law, the lawmakers opted to use “private party” rather than “private person” to describe the recipient of the unwarranted benefits, advantage or preference for a reason. The term “party” is a technical word having a precise meaning in legal parlance*46+ as distinguished from “person” which, in general usage, refers to a human being.*47+ Thus, a private person simply

pertains to one who is not a public officer. While a private party is more comprehensive in scope to

mean either a private person or a public officer acting in a private capacity to protect his personal interest. In the present case, when petitioners transferred Mayor Adalim from the provincial jail and detained him at petitioner Ambil, Jr.’s residence, they accorded such privilege to Adalim, not in his

official capacity as a mayor, but as a detainee charged with murder. Thus, for purposes of applying the provisions of Section 3(e), R.A. No. 3019, Adalim was a private party. Moreover, in order to be found guilty under the second mode, it suffices that the accused has given unjustified favor or benefit to another i n the exercise of his official, administrative or judicial functions.*48+ The word “unwarranted” means lacking adequate or official support; unjustified; unauthorized or without justification or adequate reason. “Advantage” means a more favorable or

improved position or condition; benefit, profit or gain of any kind; benefit from some course of action. “Preference” signifies priority or higher evaluation or desirability; choice or estimation above

another.[49] Without a court order, petitioners transferred Adalim and detained him in a place other than the provincial jail. The latter was housed in much more comfortable quarters, provided better nourishment, was free to move about the house and watch television. Petitioners readily extended these benefits to Adalim on the mere representation of his lawyers that the mayor’s life would be put

in danger inside the provincial jail. As the Sandiganbayan ruled, however, petitioners were unable to establish the existence of any risk on Adalim’s safety. To be sure, the latter would not be alone in having unfriendly company in lockup. Yet, even if we treat Akyatan’s gesture of raising a closed fist at Adalim as a threat of 

aggression, the same would still not constitute a spec ial and compelling reason to warrant Adalim’s detention outside the provincial jail. For one, there were nipa huts within the perimeter fence of the  jail which could have been used to separate Adalim from the rest of the prisoners while the isolation cell was undergoing repair. Anyhow, such repair could not have exceeded the 85 days that Adalim stayed in petitioner Ambil, Jr.’s house. More importantly, even if Adalim could have proven the

presence of an imminent peril on his person to petitioners, a court order was still indispensable for his transfer. The foregoing, indeed, negates the application of the justifying circumstances claimed by petitioners. Specifically, petitioner Ambil, Jr. invokes the justifying circumstance of fulfillment of duty or lawful exercise of right or office. Under paragraph 5, Article 11 of the RPC, any person who acts in the fulfillment of a duty or in the lawful exercise of a right or office does not incur any criminal liability. In order for this justifying circumstance to apply, two requisites must be satisfied: (1) the accused acted in the performance of a duty or in the lawful exercise of a right or office; and (2) the injury caused or the offense committed be the necessary consequence of the due performance of duty or the lawful exercise of such right or office.*50+ Both requisites are lacking in petitioner Ambil, Jr.’s case.

As we have earlier determined, petitioner Ambil, Jr. exceeded his a uthority when he ordered the transfer and detention of Adalim at his house. Needless to state, the resulting violation of the AntiGraft Law did not proceed from the due performance of his duty or lawful exercise of his office. In like manner, petitioner Apelado, Sr. invokes the justifying circumstance of obedience to an order issued for some lawful purpose. Under paragraph 6, Article 11 of the RPC, any person who acts in obedience to an order issued by a superior for some lawful purpose does not i ncur any criminal liability. For this justifying circumstance to apply, the following requisites must be present: (1) an order has been issued by a superior; (2) such order must be for some lawful purpose; and (3) the means used by the subordinate to carry out said order is lawful.[51] Only the first requisite is present in this case. While the order for Adalim’s transfer emanated from petitioner Ambil, Jr., who was then

Governor, neither said order nor the means employed by petitioner Apelado, Sr. to carry it out was lawful. In his capacity as the Provincial Jail Warden of Eastern Samar, petitioner Apelado, Sr. fetched Mayor Adalim at the provincial jail and, unarmed with a court order, transported him to the house of  petitioner Ambil, Jr. This makes him liable as a principal by direct participation under Article 17(1)[52] of the RPC. An accepted badge of conspiracy is when the accused by their acts aimed at the same object, one performing one part of and another performing another so as to complete it with a view to the attainment of the same object, and their acts although apparently independent were in fact concerted and cooperative, indicating closeness of personal association, concerted action and concurrence of  sentiments.[53] Conspiracy was sufficiently demonstrated by pe titioner Apelado, Sr.’s willful cooperation in executing petitioner Ambil, Jr.’s order to move Adalim from jail, despite the absence of a court order.

Petitioner Apelado, Sr., a law graduate, cannot hide behind the cloak of ignorance of the law. The Rule requiring a court order to transfer a person under detention by legal process is elementary. Truth be told, even petitioner governor who is unschooled in the intricacies of the law expressed reservations on his power to transfer Adalim. All said, the concerted acts of petitioners Ambil, Jr. and Apelado, Sr. resulting in the violation charged, makes them equally r esponsible as conspirators. As regards the penalty imposed upon petitioners, Section 9(a) of R.A. No. 3019 punishes a public officer or a private person who violates Section 3 of R.A. No. 3 019 with imprisonment for not less than six (6) years and one (1) month to not more than fifteen (15) years and perpetual disqualification from public office. Under Section 1 of the Indeterminate Sentence Law or Act No. 4103, as amended by Act No. 4225, if the offense is punished by a special law, the court shall sentence the accused to an indeterminate sentence, the maximum term of which shall not exceed the maximum fixed by said law and the minimum shall not be less than the minimum term prescribed by the same. Thus, the penalty imposed by the Sandiganbayan upon petitioner Ambil, Jr. of imprisonment for nine (9) years, eight (8) months and one (1) day to twelve (12) years and four (4) months is in accord