Vol.29 No.1 2003

JOURNAL
OF THE INTEGRATED BAR OF THE PHILIPPINES
ARTICLES
Diwalwal Gold Mines and Direct Soledad M. Cagampang-De Castro

State Intervention: A Test of Wills
in the Implementation of the Policy
of Control and Supervision Over
Natural Resources by Government
No More ILoveYous Rebecca E. Khan

(Lessons Learned from the ILoveYou
Virus: International Law and Philippine
Legislation in Relation to Cybercrime)
The Double Helix in Chambers: Jose Maria A. Ochave

Forensic DNA Evidence in Criminal
Investigation and Prosecution
The Right of Legal Redemption Arturo M. De Castro

of the Borrower Under the Special
Purpose Vehicle (SPV) Act of 2002
BOOK REVIEW Romeo J. Callejo, Sr.
CASE DIGEST Tarcisio A. Dio
Vol. XXIX 1st & 2nd Quarters 2003 No. 1

JOURNAL
OF THE I N T E G R AT E D B A R OF THE PHILIPPINES
CONTENTS
ARTICLES
Diwalwal Gold Mines and Direct

State Intervention: A Test
of Wills in the Implementation
of the Policy of Control
and Supervision Over Natural
Resources by Government . . . . . . Soledad M. Cagampang-De Castro 1
No More ILoveYous
(Lessons Learned from
the ILoveYou Virus:
International Law and
Philippine Legislation
in Relation to Cybercrime) . . . . . . . . . . . . . . . . . . . Rebecca E. Khan 39
The Double Helix in Chambers:

Forensic DNA Evidence
in Criminal Investigation
and Prosecution . . . . . . . . . . . . . . . . . . . . . . . . Jose Maria A. Ochave 87
The Right of Legal Redemption

of the Borrower Under the
Special Purpose Vehicle (SPV)
Act of 2002 . . . . . . . . . . . . . . . . . . . . . . . . . . . Arturo M. De Castro 105
BOOK REVIEW
Reforming the Judiciary . . . . . . . . . . . . . . . . . . . . . Romeo J. Callejo, Sr. 111
CASE DIGEST
Subject Guide and Digests

Supreme Court Decisions
(January to March 2002) . . . . . . . . . . . . . . . . . . . . . . .Tarcisio A. Dio 116
Civil Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117

Commercial Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 134
Criminal Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 139
Labor Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 180
Land Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 184
Land Reform Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 188
Legal Ethics . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 190
Political Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 194
Remedial Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 213
Taxation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 231
MEMBERS OF THE IBP B OARD OF G OVERNORS
(2001 - 2003)
TEOFILO S. PILANDO, JR.

Chairman of the Board and National President
JOSE ANSELMO I. CADIZ

Executive Vice-President and Governor for Bicolandia
SANTOS V. CATUBAY, JR.

Governor for Greater Manila Region
ESTER L. PISCOSO-FLOR
Governor for Northern Luzon
JOSEFINA S. ANGARA
(July 2001 to August 2002)
Governor for Southern Luzon
ROGELIO N. VELARDE
(September 2002 to Present)
Governor for Southern Luzon
PEDRO S. PRINCIPE
Governor for Central Luzon
EMIL LAO ONG

Governor for Eastern Visayas
LEONARDO ESPINOZA-JIZ
Governor for Western Visayas
CARLITO U. ALVIZO
Governor for Eastern Mindanao
LITTIE SARAH A. AGDEPPA

Governor for Western Mindanao
JOURNAL
OF THE I NTEGRATED B AR OF THE P HILIPPINES
2001 - 2003
Editor-in-Chief
FRANCIS V. SOBREVIAS
Managing Editor Executive Editor

VICTORIA G. DE LOS REYES DIVINAGRACIA S. SAN JUAN
Editors
ELVI JOHN S. ASUNCION

CESARIO A. AZUCENA, JR.
RUBEN F. BALANE
JOEL L. BODEGON
JOSE MARIO C. BUAG
WILBERT L. CANDELARIA
ARTURO M. DE CASTRO
SOLEDAD C. DE CASTRO
ANACLETO M. DIAZ
TARCISIO A. DIO
JAVIER P. FLORES
VICENTE B. FOZ
ISMAEL G. KHAN, JR.
ROSE MARY M. KING
SYLVETTE Y. TANKIANG
AMADO D. VALDEZ
ROGELIO A. VINLUAN
Editorial Consultants
JUSTICE REYNATO S. PUNO
JUSTICE JOSE C. VITUG
JUSTICE ARTEMIO V. PANGANIBAN
Editorial Assistant
AURORA G. GERONIMO
Staff Assistant
REYMA P. ENALISAN
1ST & 2ND Q UARTERS 2003 V OL . XXIX, NO. 1
Copyright 2003 by the Integrated Bar of the Philippines Printed in the Philippines
Journal of the Integrated Bar of the Philippines Vol. XXIX, No. 1
6 IBP LAW JOURNAL [XXIX, 1
ARTICLES IN THIS ISSUE
Volume XXIX No. 1 of the JOURNAL OF THE INTEGRATED BAR OF

THE PHILIPPINES begins with four articles, a book review, and the
regular digest and summary of selected Supreme Court decisions
in the different fields of law.
In the lead article, Diwalwal Gold Mines and Direct State

Intervention: A Test of Wills in the Implementation of the Policy of Control
and Supervision over Natural Resources by Government, SOLEDAD M.
CAGAMPANG-DE CASTRO writes about small scale mining in a
rich tract of mineral land situated in the Agusan-Davao-Surigao
Forest Reserve, more popularly known as the Diwalwal Gold
Rush Area. After identifying the socio-economic, environmental
and political issues at Diwalwal, the author proceeds to discuss
the role of government in regulating the conflicts that have arisen
by reason of the mining operations in the area, advocating the
policy of direct government intervention whether it be been under
its general police power or under the jus regalia over the nations
natural resources.
REBECCA E. KHAN analyzes in No More I LOVE YOUs

(Lessons Learned from the I LOVE YOU VIRUS: International Law
and Philippine Legislation in Relation to Cybercrime) the relationship
between cyberspace and the law, with a focus on crimes committed
on the Internet, now popularly known as cybercrime. She tackles
cybercrime from the perspective of International Criminal Law,
particularly on the issue of criminal jurisdiction. Thereafter, she
examines and assesses Philippine laws. Describing the I LOVE
YOU virus incident as a concrete example of how technology had
outpaced Philippines law and international law, the author
proposes, firstly, that the Philippines enact a statue that adequately
defines all forms of cybercrime and, secondly, that the Philippines
enter into multilateral treaties with other states to combat
cybercrime.
2003] ARTICLES IN THIS ISSUE 7
In the third article, JOSE MARIA A. OCHAVE posits the

view in The Double Helix in Chambers: Forensic DNA Evidence in
Criminal Investigation and Prosecution that the Supreme Court has
now opened the door wide open to the use of DNA evidence in
court, thereby recognizing the immense potential of science,
particularly modern biology, in helping it perform its truth-seeking
function.
Next, ROMEO J. CALLEJO, SR., Associate Justice of the

Supreme Court, reviews Reforming the Judiciary, a book written by
Artemio V. Panganiban, another member of the High Tribunal.
The final item is a digest or summary of selected Supreme

Court decisions covering the period January through March 2002
prepared by TARCISIO A. DIO, Partner of Villareal Rosacia
Dio & Patag. The digest is grouped under the following headings:
(a) Civil Law; (b) Commercial Law; (c) Criminal Law; (d) Labor
Law; (e) Land Law; (f) Land Reform Law; (g) Legal Ethics;
(h) Political Law; (i) Remedial Law; and (j) Taxation.
DIWALWAL GOLD MINES AND DIRECT
STATE INTERVENTION: A TEST OF WILLS
IN THE IMPLEMENTATION OF THE POLICY
OF CONTROL AND SUPERVISION OVER
NATURAL RESOURCES BY GOVERNMENT
By Soledad M. CagampangDe Castro*
Diwalwal Gold Rush Area: A Forest Reservation
The Diwalwal Gold Mines is a rich tract of mineral land

situated in the Agusan-Davao-Surigao Forest Reserve. It is more
popularly known as the Diwalwal Gold Rush Area. It is located
at Mt. Diwata in the municipalities of Monkayo and Cateel within
the territorial jurisdiction of the new Province of Compostela Valley
( formerly Davao del Norte). Diwalwal has been embroiled in
controversy since the mid-80s due to the scramble over gold
deposits found within its bowels.1 It is a well known gold rush
area where extensive small scale mining by small-scale miners are
being conducted.2
The Agusan-Davao-Surigao Forest Reservation was

established by Proclamation No. 369 dated February 27, 1931.3
* A.B., Holy Ghost College; LL.B., University of the Philippines; LL.M., Harvard
Law School; S.J.D., University of Michigan Law School; Practicing Attorney and
Counselor-at-Law: De Castro & Cagampang Law Office; Formerly ARD, Commission on
Audit; EVP-Legal and Audit, Benguet Corporation and Group of Companies; Assistant
Professor, Professorial Lecturer, U.P. College of Law; Ateneo de Manila School of Law.
1 Southeast Mindanao Gold Mining Corp. v. Balite Portal Mining Coop., Hon Cerilles
and Prov. Mining Regulatory Board of Davao, G.R. No. 135190, April 3, 2002.
2 Republic Act (R.A.) No. 7176 (1991).
3 Since 1931, political changes in the Philippines occurred like: the Commonwealth in
1935, the outbreak of World War II in 1941; and the Republic of the Philippines in 1946.
With respect to natural resources, various policy changes have likewise occurred. See
infra notes:
1
In 1991, the Secretary of the Department of Environment and Natural

Resources (DENR) reclassified the portion of the forest reservation
that is the Diwalwal gold mining area with an aggregate total
area of 1863 hectares as non-forest land and declared it open for
small scale mining purposes under DENR Adm. Order No. 66
issued on December 27, 1991.4
DENR Adm. Order No. 66, Dec. 27, 1991, by DENR Sec.
Fulgencio Factoran, Jr. Areas embraced are within the towns of
Monkayo, Compostela, and Nabunturan, in Compostela Valley
Province, as described under PCGS 2546, Block Nos. 1 - with an
area of 162 hectares within Cogonan, Trento, Agusan del Sur;
and an area of 729 hectares within Diwalwal, Monkayo; and Block
5 - with 567 hectares within Bango, Compostela; and Block 9 - with
405 hectares within Inupuan, Nabunturan, all within the Province
of Compostela Valley.
Recognition of Small Scale Mining

as a Legitimate Economic Activity
Early Filipinos engaged in both underground mining of ore

which involved the building of tunnels into the bowels of
mountains and the sluicing of placer gold deposits in river banks
and river beds. Since Pre-Hispanic times, Filipinos have been
mining and processing gold as shown in artifacts of gold jewelry
and implements that abound in various areas of the country. In
the north, particularly in the Mountain Province and Benguet,
also known as the Baguio gold area, gold was recovered from
4 DENR Administrative Order No. 66, December 27, 1991, by DENR Sec. Fulgencio
Factoran, Jr. Areas embraced are within the towns of Monkayo, Compostela, and
Nabunturan, in Compostela Valley Province, as described under PCGS 2546, Block
Nos. 1 - with an area of 162 hectares within Cogonan, Trento, Agusan del Sur; and an area
of 729 hectares within Diwalwal, Monkayo; and Block 5 - with 567 hectares within Bango.
Compostela; and Block 9 - with 405 hectares within Inupuan, Nabunturan, all within the
Province of Compostela Valley.
2003] DIWALWAL GOLD MINES AND DIRECT STATE INTERVENTION 3
gold panning and underground mining by the Ifugaos, the Ibalois

and the Kankaneys. Along the Pacific rim, the known gold areas
are: (a) the Paracale gold mines in the Bicol region in south eastern
Luzon; (b) the Samar and Leyte area in western Visayas; and
(c) the AgusanSurigao-Davao area in the eastern side of Mindanao
in southern Philippines where Diwalwal is located. The gold
artifacts found along the banks of the Agusan River which is fed
by tributary streams and rivers of the Agusan-Surigao-Davao
mountain ranges, show well developed gold craftsmanship among
the ancient tribes who lived in northeastern Mindanao. To date,
the active gold mines are in this Agusan-Surigao-Davao mining
region.
Small scale mining has been a recognized means of

livelihood among Filipinos since the ancient times. However, in
the Philippines, prevailing statutes, policies, incentives and
financing have generally been addressed to the large-scale sector
of the mining industry. While small scale mining was an accepted
reality it was considered of small economic significance, and it
was only in 1984 when Pres. Decree No. 1899, entitled Establishing
Small Scale Mining as a New Dimension in Mining Development
was promulgated by then Pres. Ferdinand Marcos. This law was in
effect a recognition of small scale mining as a vital economic activity
in view of the existence of small mineral deposits that could be
worked profitably at small tonnage requiring minimal capital
investments utilizing manual labor vis--vis the need to generate
more employment opportunities to alleviate the living conditions
of the rural areas.5 Subsequently, in 1991, Rep. Act No. 7076,
known as the Peoples Small Scale Mining Act of 1991, was passed
by the Philippine Congress. From then on small scale mining was
a recognized legal reality subject of special legislation and
regulation.
5 Whereas Clauses, Presidential Decree (P.D.) No. 1899.

The status of small scale mining as a vital economic activity

was elevated under the 1987 Constitution which made the first
constitutional pronouncement of policy on small scale mining, thus:6
Congress may, by law, allow small-scale utilization

of natural resources by Filipino citizen, x x x
Congress enacted on June 27, 1991 Republic Act No. 7076,

the Peoples Small-Scale Mining Act. This new law implements
the above constitutional provision with its declared policy to -
promote, develop, protect and rationalize viable

small scale mining activities in order to generate more
employment opportunities and provide an equitable
sharing of the nations wealth and natural resources,
giving due regard to existing rights.
Rep. Act No. 7076 established a Peoples Small-Scale Mining

Program to be implemented by the Secretary of the DENR and
created the Provincial Mining Regulatory Board (PMRB) under the
DENR Secretarys direct supervision and control. The statute also
authorized the PMRB to declare and set aside small-scale mining
areas subject to review by the DENR Secretary and award mining
contracts to small-scale miners under certain conditions.7
Under Pres. Decree No. 1899, small scale mining refers to

any single unit mining operation having an annual production of
not more 50,000 metric tons of ore and satisfying the following
requisites:8
6 Art. XII, Section 2, par. 3, 1987 Constitution of the Philippines.

7 R.A. No. 7076, (1991) Sections 2, 4, 5, 9, 24, 25.
8 P.D. 1899 (1984) Sec.1.
1. The working is artisanal, either open cast

or shallow underground mining, without the use of
sophisticated mining equipment.
2. Minimal investment on infrastructures and

processing plant.
3. Heavy reliance on manual labor.
4. Owned, managed or controlled by an individual

or entity qualified under existing mining laws, rules
and regulations.
Under Rep. Act. 7076, small scale mining refers to mining

activities which rely heavily on manual labor using simple
implements and methods and do not use explosives or heavy
mining equipment. Small scale miners refers to Filipino citizens
who, individually or in the company of other Filipino citizens,
voluntarily form a cooperative duly licensed by the Department of
Environment and Natural Resources (DENR) to engage, under the
terms and conditions of a contract, in extraction or removal of
minerals or ore-bearing materials and small scale mining contracts
refers to co-production, joint venture or mineral production sharing
agreement between the state and the small scale mining contractor
for the small scale utilization of a plot of mineral land.9
Lands Open to Small Scale Mining
Under Pres. Decree No. 1899, areas that may be subject of

small scale mining operations are:
(1) existing mining claims whose claim owners may

apply for small scale mining permits;
9 Ibid. Sec. 3 (b), (c) , (d).

(2) new mining areas that are not covered by existing

mining claims; and
(3) areas covered by existing reservations.10 Diwalwal

appears to fall under the last category, being formerly
a part of the1931 Agusan-Surigao-Davao Forest
reservation and then removed therefrom and declared
open for small scale mining purposes under DENR
Adm. Order No. 66 of December 27, 1991.11
Under Rep. Act. 7076, priority areas that are open for small
scale mining are those already occupied and actively mined by
small scale miners before August 1, 1987 where the minerals found
therein are technically and commercially suitable for small scale
mining activities.12 Provided that these areas are not considered as
active mining areas, i.e., under actual exploration, development,
exploitation or commercial production by the claim owner or
operator under contract,13 and the areas are not covered by existing
forest rights or reservations and have not been declared as tourist
or marine reserves, parks and wildlife reservations, unless their
status as such is withdrawn by competent authority.14
Other lands which can be open to small scale mining are

public lands which are free of any existing rights and those which
are not active mining areas; as well as private lands, under certain
conditions and parcels of land not exceeding one (1) hectare15
Ancestral lands, can be declared as peoples small scale mining
10 Sections 2, and 7, P.D. No. 1899.

11 Mines Adm. Order No. MRD-41 Series of 1984, Rules and Regulations Governing the
Granting of Small Scale Mining Permits Under Presidential Decree No. 1899.
12 R.A. No. 7076, supra note 8, Sec. 5.
13 Ibid. Sec. 3 (f).
14 Ibid. Sec. 5.
15 Ibid. Sec. 6.
area with the prior consent of the cultural communities concerned

but the members thereof shall be given priority in small scale
mining contracts.16 It is the Provincial/City Mining Regulatory
Board that is given the authority to declare and segregate an area
as Peoples small scale mining area.17
The declaration of Diwalwal as an area open for small scale

mining was not made by a Provincial Mining Regulatory Board as
cited in the above provisions but it was based on Proclamation
No. 369 which gave the DENR Secretary authority to exclude from
forest reservations such portions which were no longer forest lands
as stated in the Whereas clauses of DENR Adm. Order No. 66 of
1991. Prior to its reclassification as a small scale mining area, the
original Diwalwal area was a part of the Agusan-Davao-Surigao
Forest Reservation declared as such in 1931. Thus, DENR Adm.
Order No. 66 appears to be the act of withdrawal of the area from
the status as forest reservation by competent authority as referred
to in Section 5 of Rep. Act 7076.18
The Issue of Existing and Valid Rights

Acquired and Existing Prior to or at the time
of Declaration as a Reservation
The declaration of Diwalwal as small scale mining area under

DENR Adm. Order. No. 66 is subject to existing and valid private
rights.19 This is consistent with Section 3 (g) of the Small Scale
16 Ibid. Sec. 7.
17 Ibid. Sec. 24 and 25.
18 Provided finally That the areas are not covered by existing forest rights reservations
and have been declared as tourist or marine reserves, parks and wildlife reservations,
unless their status as such is withdrawn by competent authority. Sec. 5, R.A. No. 7076.
19 Whereas Clause, DENR Adm. Order No. 66,
.. I hereby declare the following areas as non-forest lands and open for small scale mining
purposes, subject to existing and valid private rights
Mining Act of 1991 which defines existing mining right as

referring to perfected and subsisting mining claim, lease, license
or permit covering a mineralized area prior to its declaration as a
peoples small scale mining area, and Section 5 of R. A. No. 7942,
the Philippine Mining Act of 1995, which provides that small scale
mining agreements can cover a maximum of twenty five percent of
the area of a mining reservation subject to valid existing mining
quarrying rights.20 And with respect to other reservations, the
right of the government to directly operate or to award a mining
contract is subject to the condition that the right of the lessee of a
valid mining contract existing within the reservation at the time of
its establishment shall not be prejudiced or impaired.21
As defined in the mining act, existing mining/quarrying

right means a valid and subsisting mining claim or permit or
quarry permit or any mining lease contract or agreement covering
mineralized area granted/issued under pertinent mining laws.
These valid and existing mining rights have varied forms: as patents
(under the Philippine Bill of 1902); as mining leases under the
Com. Act 137 and Pres. Dec. 463 under the 1935 and 1973
Constitutions; and the more recent production sharing agreements
(MPSA) or financial technical assistance agreements (FTAA) under
the 1987 Constitution.
20 R.A. No. 7942, Sec. 5; Sec. 22 DENR Adm. Order No. 23, Aug 15, 1995, Rules and Regs.
of R.A. No. 7942, Otherwise known as the Philippine Mining Act of 1995; Sec. 12, DENR
Adm. Order No. 96-40, Revised Implementing Rules and Regulations of Rep. Act. No. 7942,
otherwise known as the Philippine Mining Act of 1995.
Small scale mining in mineral reservations is under the rules and regulations of the
Mineral Reservations Development Board (MRDB) Adm. Order No. 3 Series of 1984 and
MRDB Adm. Order No. 3-A, Series of l987 as amended. Small Scale cooperatives shall
have preferential rights for small scale mining contracts in mining reservations.
21 Rep. Act No. 7942, Phil. Mining Act of 1995, Section 6. Provided that the right of the
lessee of a valid mining contract existing within the reservation at the time of its estab-
lishment shall not be prejudiced or impaired.
In the case of mining rights, the nature of such existing and

valid mining right acquired and existing prior to or at the time
of the declaration as a forest reservation in 1931 or as a small-scale
mining area in 1991, as the case may be, would depend on whether
or not such rights were acquired and existing prior to 1935 or
thereafter.22 Mining rights acquired prior to 1935 could be by
absolute ownership and/or by possessory rights. Thus, claim
owners of perfected mining claims located pursuant to the
Philippine Bill of 1902 , prior to the regalian doctrine as embodied
in the 1935 Constitution of the Philippines, were issued indefeasible
Torrens title or a mining patent as allowed under the Philippine
Bill of 1902. These mining claims are referred to as patented
mineral lands but those who were not issued patents or titles
merely acquired possessory rights over the mineral lands and these
are referred to as patentable mineral lands.23
22 Landmarks of political history of the Philippines:

0 -1521 - Pre-Spanish era, under the rule of various Datus or chieftains of barangays
1521-1898 - Spanish colonial rule under the King/Queen of Spain
1898 - (short lived) First Philippine Republic (Malolos Republic)
1898-1946 - American regime: divided into several phases:
1898-1935 - Pre-Commonwealth - (direct American rule under various Organic Acts
of the US Congress like the Philippine Bill of l902, and the Jones Law)
1935-1946 - Commonwealth of the Philippines under the 1935 Constitution
1946 to present - Republic of the Philippines (1935, 1973 and 1987 Constitutions)
See also various mining laws: Phil. Bill of l902 which allowed full title and patents to mineral
lands; Com. Act No.146 and Pres. Dec. No. 463 which established the leasehold system
(absolute ownership over mines and mineral lands being disallowed); and R.A. 7942 which
established the system of mineral production sharing between the government and the
mining claimant/operator. Logging in forest areas used to be covered by timber license
agreements (TLA) until a new system of award was established like the forest manage-
ment agreement (IFMA).
23 The Philippine Bill of 1902: provided for the open and free exploration, occupation and
purchase of minerals and the land where they may be found. It declared all valuable
mineral deposits in public lands in the Philippines Islands, both surveyed and unsurveyed
x x x to be free and open to exploration, occupation, and purchase, and the land in which
they are found, to occupation and purchase, by citizens of the United States, or of said
Islands x x x.
After the 1935 Constitution of the Philippines, acquisition

of mining rights would be based principally on contract, like mining
leases (rather than mining patents or titles) under Com. Act No.
146 and Pres. Decree 463. The leasehold system established under
said laws is consistent with the regalian doctrine or jura regalia
as adopted under the various constitutions starting with the
Commonwealth of the Philippines established in 1935 and the
Philippine republic since 1946.24 Under the jus regalia all natural
resources of the Philippines, including mineral lands and minerals,
are property of the State. However, natural resources25 such as
mineral lands and minerals with respect to which there already
was any existing right, grant, lease or concession at the time of
the inauguration of the Commonwealth Government in 1935 would
not be affected.26
Like the 1935 and 1973 Constitutions, the 1987 Constitution

also adopted the concept of jura regalia that all natural resources
are owned by the State. But it expressly recognized the importance
of the countrys natural resources and ushered in the adoption of
the constitutional policy of full control and supervision by the
State in the exploration, development and utilization of the
countrys natural resources. Under the l987 Constitution, the State
assumed a more dynamic role in the exploration, development
and utilization of the natural resources of the country. The leasehold
24 Atok Big Wedge Mining Co. v. Intermediate Appellate Court, 261 SCRA 546
(Sept. 9, 1996) citing Mendoza, Vicente V., From McKinleys Instruction to the New
Constitution, 1978 Edition, p.5.
25 See Note 3 supra. On November 15, 1935, the Constitution of the Philippine
Commonwealth took effect.
26 any right includes mining and non-mining rights. These would include valid, exist-
ing and unexpired timber license agreements (TLA) or title to land (TCT/OCT). It is how-
ever, essential that these rights should be existing and valid prior to the declaration of the
reservation and the grant of mining rights over such reservations. Mining rights would
include leasehold rights of mining claimants who are proscribed from purchasing the min-
ing claim itself. Mining Leases were granted of 25 years renewable for another 25 years.
system that allowed a 25 year license, concession or lease under

the 1935 and 1973 Constitutions was abolished.
Article XII, Section 2 of the said Charter explicitly states that

the exploration, development and utilization of natural resources
shall be under the full control and supervision of the State.
Consonant therewith, the exploration, development and utilization
of natural resources may be undertaken directly by the State, or it
may opt to enter into co-production, joint venture, or production-
sharing agreements, or it may enter into agreements with foreign-
owned corporations involving either technical or financial assistance
for large-scale exploration, development, and utilization of minerals,
petroleum, and other mineral oils according to the general terms
and conditions provided by law, based on real contribution to the
economic growth and general welfare of the country.27
Because of this radical policy change in favor of a more

active state intervention in the development and utilization of
natural resources, it can be expected that such constitutional
guarantees like the non- impairment of contracts, and protection of
vested rights may give way to police power of the state should the
sovereign choose to undertake a more direct participation in the
development and utilization of natural resources as demanded by
the general welfare of the Filipino people.
An indication of such a trend is demonstrated in the case of

Miners Association of the Philippines, Inc. v. Factoran.28 In said case,
the Supreme Court through Justice Romero expounded, thus:
The economic policy on the exploration,

development and utilization of the countrys natural
27 1987 Philippine Constitution Article XII, Section 2.

28 Miners Association of the Philippines, Inc. v. Factoran, Jr. 240 SCRA 104 (1995);
Carino v. Insular Government, 212 US 449 (1904); Valenton v. Marciano, 3 Phil 537(1904).
resources under Article XII, Section 2 of the 1987

Constitution could not be any clearer. As enunciated
in Article XII, Section 1 of the 1987 Constitution, the
exploration, development and utilization of natural
resources under the new system mandated in
Section 2, is geared towards a more equitable
distribution of opportunities, income, and wealth; a
sustained increase in the amount of goods and services
produced by the nation for the benefit of the people;
and an expanding productivity as the key to
raising the quality of life for all, especially the
underprivileged.
The Court further explained:
The exploration, development and utilization of

the countrys natural resources are matters vital to the
public interest and the general welfare of the people.
The recognition of the importance of the countrys
natural resources was expressed as early as the 1934
Constitutional Convention.
The Court cited the observation of the 1986 UP Constitution

Project:
The 1934 Constitutional Convention recognized

the importance of our natural resources not only for
its security and national defense. Our natural resources
which constitute the exclusive heritage of the Filipino
nation, should be preserved for those under the
sovereign authority of that nation and for their
posterity. This will ensure the countrys survival as a
viable and sovereign republic.
In balancing interests between the constitutional guarantees

against impairment of contracts and police power of the state, the
Supreme Court relied on police power of the state. Thus, it stated:
Well-settled is the rule, however, that regardless

of the reservation clause, mining leases or agreements
granted by the State, such as those granted pursuant
to Executive Order No. 211 referred to in this petition,
are subject to alterations through a reasonable exercise
of the police power of the State.
The prohibition contained in constitutional

provisions against impairing the obligation of contracts
is not an absolute one and it is not to be read with
literal exactness like a mathematical formula. Such
provisions are restricted to contracts which respect
property, or some object or value, and confer rights
which may be asserted in a court of justice, and have
no application to statute relating to public subjects
within the domain of the general legislative powers
of the State, and involving the public rights and public
welfare of the entire community affected by it. They
do not prevent a proper exercise by the State of its
police powers. By enacting regulations reasonably
necessary to secure the health, safety, morals, comfort
or general welfare of the community, even the contracts
may thereby be affected; for such matter can not be
placed by contract beyond the power of the State to
regulate and control them.
xx x xxx
The State, in the exercise of its police power in

this regard, may not be precluded by the constitutional
restriction on non-impairment of contract from altering,
modifying and amending the mining leases or

agreements granted under Presidential Decree No. 463,
as amended, pursuant to Executive Order No. 211.
Police power, being co-extensive with the necessities
of the case and the demands of public interest, extends
to all the vital public needs. The passage of Executive
Order No. 279 which superseded Executive Order No.
211 provided legal basis for the DENR Secretary to
carry into effect the mandate of Article XII, Section 2
of the 1987 Constitution.29
The evolution of Philippine policy on natural resources can

be discerned from the various provisions starting with Article XIII
Sec. 1, of the 1935 Constitution. This provision can be compared
with the 1973 Constitutional provision on natural resources which
is not so different from the original text of the 1935 Constitution.30
29 Supra note 28.

30 Article XIII Sec. 1, of the 1935 Constitution.
Section 1. All agriculture, timber and mineral lands of the public domain, waters, minerals,
coal, petroleum, and other mineral oils, all forces of potential energy and other natural
resources of the Philippines belong to the State, and their disposition, exploitation,
development, or utilization shall be limited to citizens of the Philippines, or to corporations
or associations at least sixty per centum of the capital of which is owned by such citizens,
subject to any existing right, grant, lease or concession at the time of the inauguration of
the Government established under this Constitution. Natural resources with the exception
of public agricultural land, shall not be alienated, and no license, concession, or lease for
the exploitation, development, a period exceeding twenty-five years, renewable for
another twenty-five years, except as to water rights for irrigation, water supply, fisheries,
or industrial uses other than the development of water power, in which cases beneficial use
may be the measure and the limit of the grant.
xxx xxx xxx
Article XIV, Section 8 of the 1973 Constitution.
Section 8. All lands of the public domain, waters, minerals, coal, petroleum and other
mineral oils, all forces of potential energy, fisheries, wildlife, and other natural resources of
the Philippines belong to the State. With the exception of agricultural, industrial or com-
mercial, residential, and resettlement lands of the public domain, natural resources shall
not be alienated, and no license, concession, or lease for the exploration, development,
exploitation or utilization of any of the natural resources shall be granted for period exceed-
ing twenty-five years, renewable for not more than twenty-years except as to water rights
for irrigation, water supply, fisheries, or industrial uses other than the development of
water power, in which cases, beneficial use may be the measure and the limit of the grant.
The policy of direct state control, supervision and management of

natural resources extends to: state ownership of natural resources;
inalienability of said natural resources; full control and supervision
of exploration, development and utilization of natural resources;
undertaking of operations either directly or in partnership with
private enterprise under co-production, joint venture, or production
sharing with qualified persons. The grant to the DENR, a
government agency, of the option to directly conduct mining
operations in reservations is consistent with this radical change in
policy introduced by Article XII, Section 2 of the 1987 Constitution.31
Vested Rights v. State Control

of natural resources
The matter of vested rights vis--vis the new constitutional

policy on natural resources was distinctly illustrated in a case
decided in April of 2002 entitled Southeastern Mindanao Gold Mining
31 Article XII, Section 2 of the 1987 Constitution:

Section 2. All lands of the public domain, waters, minerals, coal, petroleum, and other
mineral oils, all forces of potential energy, fisheries, forest or timber, wildlife, flora and
fauna, and other natural resources are owned by the State. With the exception of agricul-
tural lands, all other natural resources shall not be alienated. The exploration, develop-
ment, and utilization of natural resources shall be under the full control and supervision of
the State. The State may directly undertake such activities, or it may enter into co-produc-
tion, joint venture, or production-sharing agreements with Filipino citizen, or corporations
or association at least sixty per centum of whose capital is owned by such citizens. Such
agreements may be for a period not exceeding twenty-five years, renewable for not more
than twenty-five years, and under such terms and conditions as may be provided by law.
In cases of water rights for irrigation, water supply, fisheries, or industrial uses rather than
the development of water power , beneficial use may be the measure and limit of the grant.
xxx xxx xxx
The President may enter into agreements with foreign-owned corporations involving
either technical or financial assistance for large-scale exploration, development, and
utilization of minerals, petroleum, and other mineral oils according to the general terms
and conditions provided by law, based on real contributions to the economic growth
and general welfare of the country. In such agreements, the State shall promote the
development and use of local scientific and technical sources.
Corp. v. Balite Portal Mining Cooperative, Hon. DENR Sec. Cerilles and
Provincial Mining Regulatory Board of Davao.32 In this case, the
petitioner mining company relied on the validity of the Exploration
Permit (E.P. No. 133) over 4,491 hectares which included the
Diwalwal gold rush area. The Court however ruled that whether
or not the petitioner has a vested right under the Exploration Permit
is still indefinite and unsettled matter, because (a) it is still disputed
in several protest cases filed by small scale miners groups33 which
have not yet been resolved; (b) the continuing validity of EP No.
133 was questioned based on grounds that occurred after the
decision in the Apex Mining case,34 such as that the EP has since
then expired and that the EP cannot be assigned to SEM.
With respect to the alleged vested rights claimed by

petitioner, the same is invariably based on EP No. 133, whose
validity is still being disputed in the Consolidated Mines cases. A
reading of the appealed MAB decision reveals that the continued
efficacy of EP No. 133 is one of the issues raised in said cases, with
respondents therein asserting that Marcopper cannot legally assign
the permit which purportedly had expired. In other words,
32 Supra note 2, G.R. 135190, April 3, 2002.

33 After publication of the MPSA application of SEM, the following filed their opposi-
tions: a) MAC Case No. 004(XI) - JB Management Mining Corporation; b) MAC Case No.
005(XI) - Davao United Miners Cooperative; c) MAC Case No. 006(XI) - Balite Integrated
Small Scale Miners Cooperative; d)MAC Case No. 007(XI) - Monkayo Integrated Small
Scale Miners Association; e) MAC Case No. 008(XI) - Paper Industries Corporation of
the Philippines; f)MAC Case No. 009(XI) - Rosendo Villaflor, et al. g) MAC Case No.
010(XI) - Antonio Dacudao; h) MAC Case No. 011(XI) - Atty. Jose T. Amacio; i) MAC
Case No. 012(XI) - Puting-Bato Gold Miners Cooperative; j) MAC Case No. 016(XI) -
Balite Communal Portal Mining Cooperative; and k) MAC Case No. 97-01(XI) - Romeo
Altamera, et al. In the meantime, on March 3, 1995, Republic Act No. 7942, the Philippine
Mining Act, was enacted. Pursuant to this statute, the above-enumerated MAC cases
were referred to a Regional Panel of Arbitrators (RPA) tasked to resolve disputes involving
conflicting mining rights. The RPA subsequently took cognizance of the RED Mines case,
which was consolidated with the MAC cases.
34 Apex Mining Co, Inc. et.al. v. Hon. Cancio C. Garcia et al., G.R. 92605, 199 SCRA
(1991).
whether or not petitioner actually has a vested right over Diwalwal

under EP No. 133 is still an indefinite and unsettled matter. Until
a positive pronouncement is made by the appellate court in the
Consolidated Mines cases, EP No. 133 cannot be deemed as a
source of any conclusive rights that can be impaired by the
issuance of MO 97-03.
The Court also emphasized that the decision in the Apex

Mining case that was litigated solely between Marcopper and
Apex Mining Corporation cannot be deemed binding and conclusive
on respondent BCMC and the other mining entities who were not
impleaded as parties therein. While SEM may be regarded as
Marcoppers successor to EP No. 133 and therefore bound by the
judgment rendered in the Apex Mining case, the same cannot be
said of respondent BCMC and the other oppositor mining firms,
neither can the Apex Mining case foreclose any question pertaining
to the continuing validity of EP No. 133 on grounds which arose
after the judgment in said case was promulgated.
The Apex Mining case settled the issue of who between Apex
and Marcopper validly acquired mining rights over the disputed
area by availing of the proper procedural requisites mandated by
law, but it certainly did not deal with the question raised by the
small scale miners on whether EP No. 133 had already expired
and remained valid subsequent to its transfer by Marcopper to petitioner.
Thus, the Court stated:
The decision x x x is conclusive only between the

parties with respect to the particular issue herein
raised and under the set of circumstances herein
prevailing. In no case should the decision be
considered as a precedent to resolve or settle claims
of persons/entities not parties hereto. The Apex
decision was not intended to unsettle rights of
persons/entities which have been acquired or which
may have accrued upon reliance on laws passed by

appropriate agencies.35
The above cited case is significant in that it defined the

nature of permits over natural resources issued under the 1987
constitution and pertinent laws, viz. - as mere evidences of a
privilege granted by the state which may be amended, modified
or rescinded when the national interest so requires. These permits
do not vest any permanent or irrevocable rights within the
non-impairment of contract clause or due process clause in the
Bill of Rights of the Constitution.36 The Court categorically:
Incidentally, it must likewise be pointed out that

under no circumstances may petitioners rights under
EP No. 133 be regarded as total and absolute. As
correctly held by the Court of Appeals in its challenged
decision, EP No. 133 merely evidences a privilege
granted by the State, which may be amended, modified
or rescinded when the national interest so requires.
This is necessarily so since the exploration,
development and utilization of the countrys natural
mineral resources are matters impressed with great
public interest. Like timber permits, mining
exploration permits do not vest in the grantee any
permanent or irrevocable right within the purview of
the non-impairment of contract and due process clauses
of the Constitution, since the State, under its all-
encompassing police power, may alter, modify or
amend the same, in accordance with the demands of
the general welfare.37
35 Ibid.
36 Supra notes 6 and 31.
37 Ibid.
The Socio-economic, environmental and

Political issues at Diwalwal
Of the areas covered by Adm. Order No. 66, it is the 729

hectares within the Diwalwal, Monkayo area where significant
social, political, environmental and legal problems converge. From
1985 to 1991, thousands of people flocked to Diwalwal to stake
their respective claims. The Diwalwal gold rush area had been the
site of subsistence small scale mining operations since then. It soon
evolved into an intensive medium scale mining operations
involving thousands of miners, local entrepreneurs and service
providers and financiers that provided logistic support to the
Diwalwal mining operators. Small-scale miners have formed a
group called Monkayo Integrated Small Scale Miners Association
(MISSMA), composed of more than 30,000 members, and have since
been actively and vigilantly involved in upholding and the right
of small scale miners and have been constantly identified as the
initiator of protest actions.
Mining in the Diwalwal area varied from crude to semi-

mechanized and mechanized types of mining operations. With the
increase in size and volume of the Diwalwal mining operations,
corresponding social and environmental problems magnified
leading to direct government intervention. Peace and order
deteriorated rapidly, with hundreds of people perishing in mine
accidents, man-made or otherwise, brought about by unregulated
mining activities. Multifarious problems spawned by the gold rush
assumed gargantuan proportions, such that finding a win-win
solution became a veritable needle in a haystack.38
This Diwalwal situation is a clear illustration of the need to

balance the interests of the many small scale miners, and service
providers who are mostly small entrepreneurs, as well as the needs
38 Ibid.
of non-miners, such as the farmers and the community at large on

the one hand, as against the few capitalists or big business
enterprise, on the other.
Note that the 729 hectare Diwalwal area which was carved
out of the Agusan-Surigao-Davao Forest Reservation had
consistently been declared as open for small scale mining, not
only under Adm. Order No. 66 but also under a Mines Adjudication
Board (MAB) decision that expressly excluded the 729 hectare area
from the coverage of the Mineral Production Sharing Agreement
(MPSA) filed by SEM on July 23, 1994, which small scale miners
opposed. In 1999, the Provincial Mining Regulatory Board (PMRB)
of Compostela Valley declared the 729 hectare land as a peoples
small-scale mining area. The decision was affirmed by the DENR.39
When the legality of Administrative Order 66 of the DENR

which included and declared a 729 hectare land as an open area
for small-scale mining operations, was questioned, any negative
ruling would certainly threaten the livelihood of an estimated
40,000 small-scale miners and their dependents as the contested
729 hectares on Mt. Diwata would become an exclusive mining
area of a big mining company known as the Southeast Mindanao
Gold Mining Corp. (SEM).
SEM claimed to have vested rights over the area on the

basis of an exploration permit issued in its favor over 4,491 hectares
of land. The mining company acquired the rights to the Exploration
Permit No. 133 on February 16, 1994, (while a RED Mines case was
pending seeking to nullify the EP and the MPSA application of
Marcopper), under an assignment from Marcopper Mining Co. Then
Southeast Mindanao Gold Mining Corporation (SEM), applied for
an integrated MPSA over the land covered by the permit. In due
39 PHILIPPINE DAILY INQUIRER, Inquirer News Service: Diwalwal series of news items on
the following Issue Dates: March 2, 15, 26, 27, 31, ( 2002); April 1, 3, 5, 26, 27, 30, (2002);
and Oct. 1, (2001).
time, the Mines and Geosciences Bureau Regional Office No. XI in

Davao City (MGB-XI) accepted and registered the integrated MPSA
application of SEM.40
During the Estrada administration, when violence in

Diwalwal increased, the Mines Adjudication Board (MAB) proposed
a win-win solution where big mining corporations like JB
Management and SEM can co-exist with small-scale miners in the
area. Thus, the 729 hectares will be delineated for use of the small-
scale miners while the rest of the remaining four thousand (4,000)
hectares will go to the mining corporations. The nullification of
Adm. Order No. 66 would preclude the co-existence between
big mining and small scale mining in Diwalwal as only the big
mining with the exploration permit and MPSA would be legally
accepted.41
As if the all encompassing socio-economic, environmental

and legal problems at Diwalwal were not enough, another blow
that ignited the tinder box at Diwalwal was the Cease and Desist
Order (CDO) issued on December, 2001 by Monkayo Mayor Joel
Brillantes against the operation of gold processing plants in the
area. Although small-scale miners in Mt. Diwalwal got a temporary
reprieve after Mayor Joel Brillantes agreed to suspend the
implementation of a cease-and-desist order for at least 60 days,
the mayor asserted that he was not changing his stand on the closure
of the gold processing plants in Diwalwal. He said the plants
should be transferred to another area to avert a big disaster. He
claimed that the closure order was meant to protect the Naboc
River, which serves as water source for the irrigation of rice farms
in the lowland areas. However, the miners feared that the transfer
of the gold processing plants would exact a heavy toll on their
livelihood.42
40 Supra note 33.

41 Supra note 39.
42 Ibid, note 39.
The small scale miners contested the mayors CDO in the

Regional Trial Court of Nabunturan, Compostela Valley, and they
sought to have the order declared null and void and to declare
illegal the padlocking by Brilliantes of their buildings and factories
on Mt. Diwalwal. On March 18, 2002, the court denied their petition.
This was then followed by the slaying of the judge that upheld the
cease and desist order. After failing to get a court order to counter
the closure order, the miners picketed the Pan-Philippine Highway.
This triggered an intense peace and order problem in the Diwalwal
gold rush area as small-scale miners, their wives and children
barricaded the Bincungan Bridge to protest the closure. This bridge
connects the cities of Tagum and Davao. They vowed to remain in
the area until the government lifts the CDO against gold processing
in Diwalwal, Mt. Diwata in Monkayo, Compostela Valley. It
required the intervention of key government officials and politicians
of the province and the national government to convince the small
scale miners to leave the bridge and ease the flow of traffic. In a
dialogue presided by Interior Secretary Joey Lina and other top
local government officials, Monkayo Mayor Brilliantes agreed to
issue the necessary mayors permit to the small-scale miners. During
the closed-door meeting, Brillantes said he would not compromise
the future of the Naboc River but was willing to discuss the plight
of the miners whose status were declared illegal because they do
not have any mining permits.
But there were underlying issues that emerged out of the

protest.43 The mayors company has reportedly entered into a
partnership with Southeast Mining Corp. and Marcopper Mines
which holds the Exploration Permit to 4,491 hectares including the
729 hectare Diwalwal gold rush area. The Diwalwal incident also
exposed the big-time financiers in the area who merely used
43 Ibid. Small scale miners charged that the mayors order was not really to protect the
Naboc River but to protect his interests in JB Mining Corp., a mining firm owned by Mayor
Brilliantes, who has allegedly tied up with Southeast Mindanao Mining Corp. to control
the 729-hectare Diwalwal mining area.
genuine small-scale miners to continue with their environmentally

disastrous mining practices for the past several decades.
The complex social problem at Diwalwal calls for immediate

and decisive action on the part of the national government so that
the mining activities in Mt. Diwalwal will finally be rationalized
and be given to the genuine small-scale miners, with the support
of the national government and to the exclusion of the big-time
financiers, including the big mining companies which should limit
themselves to areas that are not reserved for small scale miners.
The Diwalwal problem has not yet been resolved. On

June 28, 2003, Mayor Brilliantes was shot to death in Davao City.
Initial police reports point to the disputes on small scale mining at
Diwalwal as the reason for his bloody demise.
2002 Government Intervention In Diwalwal:

An Act of Police Power of the State
The 2002 direct government intervention in the Diwalwal

gold rush area is a general exercise of police power for the public
welfare rather than a simple take over of operations of a natural
resource under Article XIII of the Constitution. From the aspect of
environmental protection in the face of continuing degradation of
the environment and serious health hazard from mercury poisoning,
police power can be exercised. Thus, news reports state:
Oct. 1, 2002 - The warning of widespread

mercury pollution, by the way, was made not only by
environmental NGOs but also by the toxicology
department of the University of the Philippines and
the Philippine General Hospital whose team actually
went to the areas at risk and examined the people
there for mercury poisoning. The DENR better believe
their findings: fully 36 per cent of the residents of

Diwalwal have dangerous levels of mercury in their
bodies.44
On August 12, 2002, the DENR Secretary issued an Order

stopping the Diwalwal small scale mining operations, on the basis
of the following Diwalwal problems:
(1) environmental dislocation;

(2) peace and order;
(3) occupational health and safety hazards;
(4) appropriate site and engineered waste and tailings
disposal system.
Cited as specific reasons for the DENR takeover order of the

Diwalwal mining operations were: (1) gravity of the pollution and
siltation resulting from the Diwalwal mining operations resulting
in elevated levels of mercury and serious siltation incidents in the
area, indicating an emergency situation that needs immediate
intervention by government; and the (2) aggravated peace and order
problems resulting in the death of 44 miners due to toxic and
chemical elements introduced in underground tunnels, blockades
and fatal ambuscades. All the above incidents called for immediate
action by the national government.45
Direct government intervention under abovementioned

DENR Order consisted of: (1) Stoppage of mining and mineral
processing operations; (2) Prevention of transport of minerals and/
or mineral products from the Diwalwal mining area without ore
44 Supra note 39.

45 Order, Aug. 12, 2002, by DENR Sec. Heherson Alvarez; DENR Adm. Order No. 2002-18,
Aug. 12, 2002, by DENR Sec. H. Alvarez Declaring An Emergency Situation in the Diwalwal
Gold Rush Area and Providing for Interim Guidelines To Address the Critical Environmen-
tal and Social Consequences Therein.
transport permits; (3) Prevention of the transport, storage and/or

use of explosives and explosives accessories and chemical
substances; (4) Creation and deployment of a technical working
group to undertake a technical assessment of the situation and
formulate a mine management plan for the sustainable utilization
of mineral resources in the area.46
The Diwalwal mining operations were generally

unpermitted, i.e., without any government permits, whether local
or national. Thus, with the stoppage order pursuant to the DENR
Adm. Order No. 2002-18, the local and national government had
now the opportunity to enforce all environmental laws and mining
permit requirements. Resumption of mining operations would be
allowed only upon compliance with all permitting requirements.
Considering the number of people involved, and the various
groups whose economic interests were affected by the stoppage, it
was essential to summon the assistance of police and military
agencies as well as the local governments.47
In addressing the environmental problems, the DENR

undertook several courses of action specifically relating to (a) the
relocation of the mineral processing plants and a common tailings
disposal system; (b) construction and operation of a tailings dam;
(c) regulation of the use of mercury, cyanide and other chemicals
for gold processing; health monitoring and assessment activities;
(d) environmental assessments; clearances; planning and programs
including the establishment of a Peoples small scale mining
protection fund and environmental users fee; (e) training for mine
safety, environmental protection; (f) geodetic and geologic
surveys.
46 Ibid.
47 In Re: Deputizing Gen. Hermogenes Ebdane, Jr. Chief PNP and other PNP Officers
To Implement the DENR Stoppage Order and other Instructions/Issuances on the Diwalwal
Gold Rush Area, Aug. 16, by DENR Sec. H. Alvarez.
It is noted that these abovementioned DENR Orders do not

contain the phrase subject to valid and existing rights or vested
rights. The only reference to these concepts is found in Section 7
(b) of DENR Memorandum Order No. 2002-18 that in recognition
of possible vested rights in the area, the DENR shall deposit in
escrow in a government bank, appropriate royalties for rightful
indigenous peoples and mining tenement claimants, in connection
with the collection of taxes, fees and royalties due from mining
operations and processing.48 This means that those with possible
vested rights such as surface owners, and tribes who are owners
of ancestral lands can claim and will be paid their respective share
in fees or royalties allowed under the pertinent laws but these
rights cannot stop the mining and processing activities to be
undertaken under DENR authority. They do not prevent a proper
exercise by the State of its police powers. By enacting regulations
reasonably necessary to secure the health, safety, morals, comfort
or general welfare of the community, even the contracts may thereby
be affected for such matter can not be placed by contract beyond
the power of the State to regulate and control them.49
The New Diwalwal Gold Rush Area:

New Problems, New Conflicts
On August 14, 2002, the Diwalwal Gold Rush Area was

expanded as delineated under DENR Memorandum Order No.
2002-09, to cover an area of 8,100 hectares, a very substantial increase
from the original 2,187 hectares under DENR Adm. Order No. 66
of 1991 which was carved out of the 1,927,400 hectares of Agusan-
Surigao-Davao Forest Reservation declared in 1931. Adm. Order
No. 66 included the controversial 729 hectare area of the Monkayo
area which is said to be the core of the Diwalwal gold rush area.
48 DENR Memo Order No. 2002-18, Section 7.

49 Supra note 28 Miners Association of the Philippines, Inc. v. Factoran, Jr.
The Diwalwal Gold Rush Area now covers 8,100 hectares which
is segregated exclusively for mining activities, and sites for mineral
processing plants and common tailings disposal system. The result
was that vast areas of forest lands which were previously covered
by timber licenses and/or IFMA applications were removed as
forest areas and became open for mining purposes.
With the declaration under the abovementioned DENR

Order, that no Integrated Forest Management Agreements (IFMAs)
or conversion into IFMAs or any other forest use instrument will
be granted or issued covering the Diwalwal Gold Rush Area as
expanded, another serious conflict situation was created. Thus,
when PICOP personnel and security forces continued to secure
the area and exercise control and authority over what was part of
the timber license/concessions (TLA) held by PICOP for so many
years, a serious peace and order problem occurred which required
the intervention of the police and military authorities.
On its face, this pronouncement against the issuance of TLAs

and conversion into IFMAs appears to be consistent with the present
policy on the utilization and development of natural resources,
which includes forest and timber resources, where further grants
or extension of terms of timber licenses (TLAs) are now disallowed.
Only management agreements over tree farms, forested or logging
areas with the government are now allowed.50 However, the realities
of the situation makes enforcement of this new policy difficult.
50 DENR Adm. Order No. 97-04: Rules and Regulations Governing the Industrial Forest
Management Program.
Sec. 3.10 Industrial Forest Management Agreement (IFMA) is a production sharing
agreement entered into by and between the DENR and a qualified applicant, which grants
to the latter the right to develop, utilize and manage a specified area, consistent with the
principle of sustainable development and in accordance with a comprehensive develop-
ment and management plan and under which both parties share in its produce.
Notwithstanding the above legal observation, the realities

are that prior license holders whose licenses and permits are up
for conversion or renewal tend to assert actual control over their
established territory asserting alleged rights even as against the
State.
Although the abovementioned DENR Order expanding the

Diwalwal Gold Rush Area does not expressly mention its being
subject to valid and existing rights, the expected response of
affected parties like PICOP, would be to assert a priority or
preferential right over the subject area as a timber license holder
prior to such DENR declaration in 2002.
The rulings of the Supreme Court touching on the existence

of vested rights with respect to licenses/permits for the utilization
of natural resources in the cases of Southeast Mindanao Mining
Corp. (SEM)51 and the Miners Association52 would be relevant. In
the SEM case, the Court described the nature of [mining] exploration
permits which could very well apply to other types of permits
over natural resources, thus these permits can not be regarded as
total and absolute as these are merely evidences a privilege granted
by the State, which may be amended, modified or rescinded when
the national interest so requires. This is necessarily so since the
exploration, development and utilization of the countrys natural
mineral resources are matters impressed with great public
interest.53 It is also understood that these permits should give
way to police power of the state. Thus it is stated:
Like timber permits, mining exploration permits

do not vest in the grantee any permanent or irrevocable
right within the purview of the non-impairment of

52 Supra note 28.
contract and due process clauses of the Constitution,

since the State, under its all-encompassing police
power, may alter, modify or amend the same, in
accordance with the demands of the general welfare.54
Thus, if forestry rights are based on a former timber license

agreement (TLA) which has expired, and/or is being converted
into an industrial forest management agreement, (IFMA) which is
still pending approval, there are no vested rights to speak of and
the claimed forestry rights are merely inchoate, since there is no
permit, or no contract which is duly signed and approved. Former
TLA holders who apply for conversion into IFMAs over their timber
concessions do not have any preferential right to the grant of IFMAs
under existing rules and regulations, as they still have to prove
their eligibility before an IFMA can be awarded to them.55
Thus, the protection under the vested right principle or
non-impairment clause would not be available to this forestry
right claimant.56

55 Ibid. Sec. 13. Eligibility requirements - In addition. Applicants shall be required to
satisfy the following requirements:
13.1 Environmental Management Record - The applicant must present proof of its
present technical and financial capability to undertake resource protection and conserva-
tion. Rehabilitation of degraded areas and similar activities. An applicant with previous
experiences in natural resources ventures must have demonstrated an exemplary regard
for the environment in its past natural resource use ventures.
13.2 Community Relations Record - If an applicant is a current or former holder of TLA
and/or any other permit, lease, license or agreements issued by the DENR, the applicant
must submit proof of its community relations record. This record may consist of, but is not
limited to, proof of its socio-cultural sensitivity, the character of its past relations with local
communities, cultural appropriateness and social acceptability of its resource manage-
ment strategies.
56 Ibid. Sec. 8 Applications for Conversion or Expansion- All applications for conver-
sion of Timber License Agreements into IFMAs and/or for expansion of IFMA areas shall
be deemed as new applications for IFMA and shall be subject to the pertinent require-
ments and procedures contained in these regulations.
Resumption of Mining Operations

In the Diwalwal Gold Rush Area
The states jus regalia or state ownership as strengthened

and expanded under the 1987 Constitution includes the right to
undertake direct utilization and production of natural resources
by the state. And this right to utilize, either directly or through
private enterprise under production sharing or profit sharing
arrangements in the development and utilization of natural
resources relates not only to mineral resources but to the nations
forest and marine resources and other forms of natural resources
as well. The matter of direct take over of operations, the wisdom,
propriety and feasibility of government undertaking a business
venture, in lieu of private enterprise and/or in lieu of private
persons in the area, however, deserves more in depth evaluation.57
In the case of the Diwalwal small scale mining operations involving
thousands of small scale miners whose livelihood from subsistence
mining is at stake, the matter assumes a different plane that is
beyond the legal aspects of the problem.
Indeed, the new role of DENR has been questioned as

illustrated in the SEM case58 relating to Memorandum Order No.
97-03, wherein the mining company sought recovery of its losses
corresponding to the value of lost gold ore mined by small scale
miners from the Diwalwal area. The mining company SEM asserted
that the DENR Secretary and the Provincial Mining Regulatory
Board of Davao illegally issued ore transport permits (OTPs)
that allowed the small-scale mining group, Balite Portal Mining
57 Art. XIII, 1987 Constitution: Thus, the change from the passive mining lease
contracts to mineral production sharing agreements and from the passive timber
license agreements to Industrial Forest Management Agreements where the
government gets specific production or profit share rather than simple royalties or rents
from the utilization of natural resources.
58 Supra note 32.
Cooperative (BCMC), to illegally extract and haul 60,000 pesos

worth of gold ore per truckload from SEMs mining claims.
The firm claimed that the OTPs were manifestations of

Memorandum Order No. 97-03, issued on June 24, 1997 by the
DENR Secretary, to settle the Diwalwal disputes under a policy of
direct state utilization. SEM argued that DENRs direct state
utilization policy a reference to governments likely brokering
of profit-sharing or management sharing agreements on behalf of
all contending parties in Diwalwal would effectively impair
its vested rights under Exploration Permit (EP) No. 33.
The Court confirmed the states right to directly engage

development and exploitation of natural resources. Direct state
utilization as a policy in resolving the Diwalwal dispute is an
option available to the state. Thus, the DENR can order (as it did
under DENR Memorandum Order No. 97-03) a study of this option
to determine its feasibility. The State still had to study prudently
and exhaustively the various options available to it in rationalizing
the explosive and ever perilous situation in the area, the debilitating
adverse effects of mining in the community and at the same time,
preserve and enhance the safety of the mining operations and ensure
revenues due to the government from the development of the
mineral resources and the exploitation thereof.
The government was still in earnest search of better options

that would be fair and just to all parties concerned. The direct
state utilization of the mineral resources in the area was only one
of the options of the State. Before the State will settle on an option,
an extensive and intensive study of all the facets of a direct state
exploitation was directed by the DENR Secretary. And even if
direct state exploitation was opted by the government, the DENR
still had to promulgate rules and regulations to implement the
same in coordination with the other concerned agencies of the
government.
Relying on Article XII, Section 2, of the 1987 Constitution,

and Section 4, Chapter II of the Philippine Mining Act of 1995
which states that:
Sec. 4. Ownership of Mineral Resources. - Mineral

Resources are owned by the State and the exploration,
development, utilization, and processing thereof shall
be under its full control and supervision. The State
may directly undertake such activities or it may
enter into mineral agreements with contractors.
(Underscoring ours)
the Supreme Court categorically concluded that the State may

pursue the constitutional policy of full control and supervision of
the exploration, development and utilization of the countrys natural
mineral resources, by either directly undertaking the same or by
entering into agreements with qualified entities. Obviously, the
State may not be precluded from considering a direct takeover of
the mines, if it is the only plausible remedy in sight to the gnawing
complexities generated by the gold rush. As implied earlier, the
State need be guided only by the demands of public interest in
settling for this option, as well as its material and logistic
feasibility.59
Direct Undertaking of Mining Operations:

The Role of the NRDC
The measures taken by the DENR in the Diwalwal Gold

Rush Area, which were directly addressed towards the solution of
the peace and order, environmental degradation, social unrest,
health and safety and the like are not difficult to accept or to justify
under the police power of the state as basis for direct government
intervention in the Diwalwal Gold Rush Area. But the DENR has
gone beyond simple police power with the entry of its corporate
59 Ibid.
arm, the National Resource Development Corporation pursuant to

Section 5 of DENR Memorandum Order 2002-18.
The impact of this provision on the Diwalwal Gold Rush

community and on the mining industry as a whole cannot be
underestimated. When fully implemented, the NRDC becomes the
key to direct government intervention in the utilization of mineral
resources, with government operating a business under a grant of
the right to undertake direct utilization of natural resources. And
this right to utilize, either directly or through the active participation
with private enterprise under production sharing or profit sharing
arrangements in the development and utilization of natural
resources, whether mines and minerals, forest and marine resources
and other forms of natural resources.
The Diwalwal Gold Project may well be governments pilot

or demonstration project on how to implement the constitutional
mandate. The DENR has directed its corporate arm, the NRDC, to
undertake the development and utilization activities in the
Diwalwal gold rush area, with specific tasks to plan, manage and
operationalize various mining related activities in the Diwalwal
area, including the development and establishment of a purchasing
and marketing mechanism and facilities for all the gold produced
from the Diwalwal area.60
60 DENR Memo Order No. 2002-18, August 12, 2002.
(a) set up professionally competent and qualified technical groups, with the
technical assistance of the Mines and Geosciences Bureau (MGB);
(b) undertake the necessary planning, management and operationalization of
various mining-related activities in the Diwalwal area;
(c) construction and operations of the mill tailings disposal facility;
(d) implement a mine management plan to generate cash flow for the activities in
the disposal system;
(e) address the environmental, social and sustainable livelihood for subsistence
mine workers;
(f) develop and establish a purchasing and marketing mechanism and facilities to
ensure that all the gold produced from the Diwalwal area are sold to the Central Bank;
(g) Initiate environmental clean up of the Diwalwal mining area and the Naboc River;
(h) establish an environmental users fund and a peoples small scale mining
protection fund
The NRDC was created under Executive Order No. 786

issued by Pres. Marcos in 1982.61 The corporation adopted its own
By-Laws in 1982 through its first set of Board of Directors.62 The
general management of the NRDC is vested in a Board of Directors
of seven members composed of the DENR (Minister) Secretary
as Chairman of the Board, the various cabinet (ministers)
secretaries for: Trade and Industry, Transportation and
Communication, Economic Planning, Finance, Development Bank
of the Philippines, and the President of NRDC. As stated in its
charter, the NRDC on its own or through its subsidiaries, or in
joint venture with private sector shall hasten development by
promoting and/or undertaking the development and/or use of
technologies/systems that complement the utilization of natural
resources with its conservation and/or optimize its utilization.63
The NRDC has various functions and objectives, of which

some are relevant to its role in the Diwalwal Project, such as:
(a) ensuring a stable market for natural resources-based products
by coordinating the production and marketing activities and/or
by engaging in the production and/or local/international
marketing of critical natural resource-based products; and
(b) promoting investment in natural resources-based industries by
providing financial technical and/or management support/
assistance.64
Among its relevant powers would be the power to enter

into any lawful arrangement for sharing of profits, joint ventures,
61 NRDC Charter, E.O. No. 786 (Pres. Marcos) 1982.

62 Section 2, Executive Order No. 786 (1982).
Original BOD: Teodoro Pena (Minister of Natural Resources); Roberto Ongpin
(Minister of Trade & Indusry); Cesar Virata (Minister of Finance); Jose Dans (Minister of
Transportation and Communication); Cesar Zalamea (DBP); Vicente Valdepenas (Minister
of Economic Planning); Arnold Caoili (President of NRDC)
63 Ibid. Sec. 2.
64 Sections 3 (3) & (4).
union interests reciprocal concession or cooperation with any

association, partnership, syndicate or entity located in or organized
under the laws of any authority in any part of the world as may be
necessary to carry out its operations.65
Conceptual Framework
of Direct Government Natural Resource
Development: Diwalwal Style
The socio-economic situation in the Diwalwal Gold Rush

Area calls for a special kind of approach to doing business as a
natural resource company. On the part of the government acting
through the NRDC, backed by the states police power and power
to control, supervise and regulate natural resources, through the
DENR, problems relating to mining operations at Diwalwal should
have its solutions. The key players in this enterprise are: [1] the
small scale miner; [2] the operator; [3] the financier; [4] other service
providers; [5] the gold buyer; and [6] the tax collector.
When the contending rights and interests of the various

players at Diwalwal are properly adjudicated and/or awarded
and enforced, the means of livelihood of thousand of small scale
miners will be adequately protected. This will be the start towards
the resolution of the socio-economic difficulties of the Diwalwal
population that will result in peace and order in the area.
The assured livelihood of small scale miners can be legally

established and governed through service contracts rather than
through assimilation into the organizational structure of the mining
operator, whether it be NRDC directly or an affiliate/subsidiary.
Small scale mining will cease to be unpermitted economic activity.
Proper contractual arrangements and documentations and permits
will facilitate the monitoring of ore and gold production; the proper
65 Ibid. Section 4 (5).
distribution of respective production or profit sharing and the

collection of revenues due to the government from this very
substantial gold mining activity.
The NRDC as operator should formulate and implement

the overall mining plan from mining to gold production, marketing
of gold produced, up to the proper disposal of mining waste.
Thus, the multiple objectives of giving continued livelihood to
small miners as well as other service providers, assuring protection
of the environment, and regular collection of revenues for the
government can be readily attained.
The support systems, including the financing needs of the

small scale miners should also be met, particularly the sourcing of
such financial support and the repayment of financial obligations,
otherwise, the old system of financing small scale mining operations
which are payable in gold production at controlled prices, much
to the disadvantage of the over exploited small scale miner will
again prevail.
Service Contracts under production sharing schemes with

small miners either as individuals or groups and/or cooperative
have been the common mode of employing the small scale miners
in the mining of ore and this has proven to be workable. However,
the financing of their mining activities should be studied because
under these service contracts, the small scale miner is an
independent contractor who shall be responsible for the provision
of manpower, tools and equipment, power, materials and
appropriate ventilation necessary for mining operations, including
those for mine safety and health. He also assumes all risks and
expenses connected with the mining operations within the contract
area , including but not limited to business losses and claims and
actions on account of death, sickness or injury to persons caused
by the mining operations conducted under the service contract.66
66 Standard Provisions (Service Contracts: DENR and Service Contractors [Small Scale
Miners]).
The production sharing is 85% (for the small scale miner)

and 15% (for the government (DENR) as operator) or at such
percentage as may be agreed upon. This takes the form of a service
fee measured by percentage by weight of the actual ore mined
delivered and allocated to the parties in bags of equal weight. The
operator (DENR) has the option to buy the gold or the right of
first refusal to buy the final metal products of the service contractor
(small scale miners) but both parties shall sell their final metal
products to the Central Bank.
CONCLUDING STATEMENT:
The rule of law is the key against the chaos for which
Diwalwal has long been identified with. The decision in the
Southeast Mindanao Mining Corp. case is only the start of era of
rule of law in Diwalwal, as there are still many cases to be resolved
in the administrative level.
The everyday drama that happens at the Diwalwal Gold

Rush Area was brought into focus in the year 2002 and continues
up to the present. The environmental damage may be irreversible
and socio-economic conditions may defy immediate solutions. The
problems that surrounds the dramatis personae at Diwalwal go beyond
what is legal or constitutional for they strike at the core of existence
and survival of the vast number of Filipinos who seek to earn a
living in the gold rich mountains of Diwalwal. As demonstrated in
the measures taken by the DENR to meet the emergency situation
at Diwalwal, it takes political weal and determination to establish
order in a community in chaos, restore peace in the society wrecked
by conflicting claims and divergent interests, to protect the
environment degraded by human neglect, human greed and wanton
waste of resources. It is in Diwalwal where the wisdom and
effectiveness of the policy of direct government intervention
whether it be under its general police power or under the
jus regalia over the nations natural resources has been aptly
demonstrated. It is in Diwalwal where the RULE OF LAW is most
urgently needed and it is in allowing the RULE OF LAW to prevail
where solutions to its multifarious problems will eventually be
found.
!"
NO MORE ILOVEYOUS
Lessons Learned from the ILOVEYOU Virus:

International Law and Philippine Legislation
in Relation to Cybercrime
By Rebecca E. Khan*
I. INTRODUCTION
In the year 2000, a malevolent computer virus crippled

information systems worldwide, endangered national security
technological infrastructure, paralyzed businesses from Asia to the
United States, and resulted in billions of dollars in damage.1 The
ILOVEYOU virus was eventually traced to a computer hacker in
the Philippines,2 and the Philippines quickly became the focus of
the glaring eyes of the global community. Heeding the international
outcry to prosecute the hacker, Philippine officials tried to file
charges but ultimately failed due to the lack of a penal statute that
defined the hackers acts as an offense.3 In the end, the hacker
suspected of causing inordinate damage to computer systems
* A.B., LL.B., University of the Philippines. Member, Philippine Team to the 2002
Philip C. Jessup International Law Moot Court Competition (Case Concerning Regulation
of Access to the Internet), March 2002, Washington D.C. This paper was nominated for the
2003 Roberto Sabido Award for Best Legal Paper.
1 David Ruppe, Love Bug Travels the Globe (5 May 2000), available at http://
more.abcnews.go.com/sections/world/DailyNews/lovebug000505_world.html.
2 Associated Press, Philippine Official Kills Charge in Love Bug Case
(17 May 2000), available at http://more.abcnews.go.com/sections/tech/DailyNews/
virus000517.html.
3 Associated Press, Charges Dismissed: Philippines Drops Charges in Love Bug
Virus Case (21 August 2000), available at http://more.abcnews.go.com/sections/tech/
DailyNews/lovebug000821.html.
39
worldwide got off scot-free, and the international community

blamed inadequate Philippine legislation for letting him go.4
Because of the far-reaching effects of the virus, which had

spread itself through e-mail systems throughout the globe, the
world finally understood how powerful and pervasive the Internet
had become. 5 More importantly, this incident highlighted the
widening gap between technology and the law.6 The law had failed
to keep apace with the rapid growth of the Internet and the novel
problems it presented.
That the law had yet to catch up with the Internet was true
not only for Philippine law, but for international law as well;
despite the fact that other countries which had been affected by the
virus such as the United States had adequate legislation7 that
punished the hackers acts, those countries were powerless because
they had no jurisdiction over the person of the accused.8 This
dilemma emphasizes the fact that crimes committed over the
Internet usually partake of a transborder nature, with acts
4 Shannon C. Sprinkel, Global Internet Regulation: The Residual Effects of the

ILOVEYOU Computer Virus and the Draft Convention on Cyber-Crime, 25 SUFFOLK
TRANSNATL L. REV. 491, 498 (2002) (discussing the Philippines lack of a law governing
cybercrime).
5 See generally the Explanatory Report on the Convention on Cybercrime, available at
http://conventions.coe.int/Treaty/en/Reports/Html/185.htm
6 See Joao Godoy, Computers and International Criminal Law: High Tech Crimes and
Criminals, 6 NEW ENG. INTL & COMP. L. ANN. 95, 112 (2000) (discussing how technology is
always faster than the ability to produce new legislation).
7 The United States has already enacted several statutes which apply directly to com-
puter crimes, or can be made to apply to such crimes. Following this example, several
countries throughout the world have also adopted computer-specific criminal codes that
address unauthorized access and manipulation of data, similar to the Computer Fraud and
Abuse Act of 1996 in the United States. Michael Hatcher, Jay McDannell and Stacy Ostfeld,
Computer Crimes, 36 AM. CRIM. L. REV. 397, 401-429 and 436 (1999) (discussing Federal and
State codes of the United States, and international approaches to cybercrime).
8 Extradition was not an option, because extradition treaties call for double criminality.
See discussion infra Part V.B.1.b.
2003] NO MORE ILOVEYOUS 41
commencing in one State but resulting in effects in another State.

This indicates that local legislation will never be sufficient to
address the problem of Internet crime; crime committed in
cyberspace is an international problem which requires international
solutions. 9
The present paper will examine the relationship between

cyberspace and the law, with a focus on crimes committed on the
Internet, now popularly known as cybercrime. The discussion
will be twofold: first, cybercrime will be tackled from the
perspective of International Criminal Law, particularly on the issue
of criminal jurisdiction. Second, Philippine laws will be examined
and assessed. After this discussion, recommendations shall be made
for further legislation and international conventions.
II. A SPACE WITHOUT BORDERS
An understanding of concepts such as the Internet,

cyberspace and the World Wide Web is essential before proceeding
with a discussion on the legal regime governing them. This portion
of the paper will describe these concepts and provide a brief history
of the development of the Internet.
The Internet is an international network of interconnected

computers that makes it possible for millions of people to
communicate with one another in cyberspace and to access vast
amounts of information from around the world.10 Cyberspace,
which is a concept distinct from but necessarily related to the
Internet, is the electronic or virtual space created by computers
9 Steve Shackelford, Computer-Related Crime: An International Problem in Need of

an International Solution, 27 TEX. INTL L. J. 479, 480 (1992) (discussing how countries
which have already enacted cybercrime-specific legislation fail to address the
international aspects of computer-related crime).
10 Reno v. American Civil Liberties Union, 521 U.S. 844, 845 (1997).
connected together in the Internet, in which a user may move and

act with the consequences in the real world.11 Cyberspace, being a
virtual space, is not located in any particular geographical location,
but can be accessed by anyone, anywhere in the world, with access
to the Internet.12
The Internet has its roots in ARPANET, a project begun in

1969 by the United States Department of Defense.13 The ARPANET
was designed to enable defense researchers at various sites across
the United States to communicate and collaborate.14 In 1973,
ARPANET was connected with an increasing number of other
computer networks throughout the United States and other
countries; this eventually evolved into the Internet as we know it
today.15
Around the globe, millions of people are utilizing the

Internet for information, research, commercial transactions, and
interpersonal correspondence.16 Individuals can obtain access to
the Internet from many different sources. For example, most
colleges and universities around the world provide access for their
students and faculty; many corporations provide their employees
with access through an office network; or individuals can pay for
Internet usage by subscribing to an Internet Service Provider or by
going to internet cafes.17
11 GERALD R. FERRERA ET AL., CYBERLAW: TEXT AND CASES 414 (2001) [hereinafter CYBERLAW].
12 Reno v. ACLU, 521 U.S. at 851.
13 Id. at 849.
14 CYBERLAW, supra note 11, at 3; Reno v. ACLU, 521 U.S. at 850.
15 CYBERLAW, supra note 11, at 3.
16 Id. at 2.
17 Reno v. ACLU, 521 U.S. at 850.
Anyone with access to the Internet may utilize a wide variety

of communication and information retrieval methods, such as
electronic mail, automatic mailing list services, newsgroups, chat
rooms, and the World Wide Web.18
The World Wide Web is the best known category of

communication over the Internet. It allows users to search for and
retrieve information stored in remote computers, as well as to
communicate back to designated sites.19 The Web is comprised of
an immeasurable number of documents stored in different
computers all over the world. Many of these documents are known
as web pages, each identified by a unique address called a
uniform resource locator (URL).20 Just as any person anywhere in
the world can retrieve information from the World Wide Web, any
person or organization with a computer connected to the Internet
can publish or send information over the World Wide Web.21
As of the end of the year 2002, research estimated that the

total number of Internet users worldwide had reached 490 million.22
As the global use of the Internet increases, so does the

potential for its abuse. A surge in cybercrime is inevitable,
considering how readily available the Internet and computers are
for perpetrators of these crimes, and that the Internet provides
inexpensive and worldwide communication in seconds, has few
barriers and relatively no limitations.23 These characteristics of the
18 Id. at 851.
19 Id. at 852.
21 Reno v. ACLU, 521 U.S. at 853.
22 Worldwide Internet Population at http://www.commerce.net/research/stats/
wwstats.html (last visited 8 March 2003).
23 Sara L. Marler, The Convention on Cyber-Crime: Should the United States Ratify?,
37 NEW ENG. L. REV. 183, 187 (2002).
Internet and cyberspace create a hospitable environment for the

commission of international computer crimes.24 To comprehend
the novel problems that crimes committed in cyberspace presents,
one must grasp the idea that cyberspace is borderless.
As previously stated, cyberspace is not tied to any particular

geographical location. It has been said that cyberspace is
everywhere and nowhere. 25 Although this description of
cyberspace somewhat partakes of the metaphysical, it is,
perplexingly enough, an accurate description. Cyberspace has no
geographic or political boundaries; computer systems can be easily
and surreptitiously accessed from anywhere in the world.26 National
borders are immaterial when it comes to the commission of
cybercrime.27 A case in point would be the ILOVEYOU virus,
which originated in the Philippines and spread rapidly through
government and computer systems in more than 20 countries, in
just a matter of minutes.28
Because of the structure of the Internet and cyberspace, it
becomes clear that cybercrime will almost always have an
international dimension.29
III. CYBERCRIME
The term cybercrime denotes crime occurring on the

Internet or via the Internet,30 and this will be the definition of
24 Godoy, supra note 6, at 96-97.

25 Darrel C. Menthe, Jurisdiction in Cyberspace: A Theory of International Spaces,
4 MICH. TELECOMM. TECH. L. REV. 69 (1997).
26 Hatcher, et.al., supra note 7, at 435.
27 Patricia L. Bellia, Chasing Bits across Borders, 2001 U CHI LEGAL F 35, 37 (2001).
28 Id.
29 See generally Steve Shackelford, Computer-Related Crime: An International
Problem in Need of an International Solution, 27 TEX. INTL L. J. 479
30 Marler, supra note 23, at 185.
cybercrime for purposes of this paper. The terms computer crime,

and cybercrime are regularly interchanged with one another and
therefore can have a similar meaning.31 However, it can be said
that computer crime is the more general term of the two, because
it is broadly defined as any illegal act that involves a computer,
its systems, or its applications,32 or any violations of criminal
law that involve a knowledge of computer technology for their
perpetration, investigation, or prosecution.33 A discussion on
computer crime in general applies to cybercrime, the only element
missing being the utilization of the Internet. For purposes of this
paper, the literature on the more general field of computer crimes
was tapped, as it is applicable to the discussion on cybercrime in
particular.
Computer crime comes in two major categories: first, crimes

wherein a computer is the object or target; second, crimes wherein
a computer is the subject or tool in their commission.34
In crimes wherein a computer is the target, the perpetrator

uses the computer to obtain information or to interfere or damage
operating systems or programs.35 Common examples of this type
of crime include theft of intellectual property, the introduction of
computer viruses and the alteration of data.36
In crimes wherein a computer is the tool in the commission

of the crime, computers are used to facilitate crimes which are
31 Id.
33 Hatcher, et.al., supra note 7, at 399.
34 Shackelford, supra note 9, at 483; Hatcher, et.al., supra note 7, at 401; CYBERLAW,
supra note 11 at 302-303. A third category is listed by some authors: crimes wherein the
computer is used to commit traditional crimes, or in other words, are merely incidental to
the crime. The current paper, however, is not going to delve into this category.
36 Id; Shackelford, supra note 9, at 483.
usually a high-tech variation of a traditional criminal offense.37

Examples of this type of crime include the transmission of
pornography and fraudulent e-commerce transactions.38
Specific acts of cybercrime come in many forms, and will

not be discussed in detail here. For purposes of this paper, a
rudimentary listing will suffice. Types of cybercrime can be
grouped into three main categories: crimes against natural and
juridical persons, crimes against property, and crimes against
government.39
Crimes against persons include the following: pornography,

harassment, stalking, death threats, fraud,40 gambling, hate crimes,41
spamming,42 and the sale of controlled items.43 Examples of crimes
against property are commercial espionage, commercial extortion,
hacking,44 cracking,45 malware,46 data manipulation,47 and software
and hardware piracy. Finally, cybercrimes against the government
include espionage and terrorism.48
37 CYBERLAW, supra at 302.

38 Id. at 303.
39 Id. at 304-307.
40 Includes credit card fraud and fraudulent e-commerce transactions.
41 The communication of threatening messages to people on the basis of race, color,
ethnicity, etc.
42 Sending unsolicited bulk e-mail advertisements. CYBERLAW, supra note 11, at 420.
43 See CYBERLAW, supra note 11, at 304-305.
44 the process of gaining access to computers or sites where no access was intended.
CYBERLAW, supra note 11 at 416.
45 intentional, malicious hacking. CYBERLAW, supra note 11 at 414.
46 any harmful software or hardware, including viruses, worms, logic bombs, etc.
CYBERLAW, supra note 11 at 417.
47 changing or erasing existing information. CYBERLAW, supra note 11 at 414.
48 CYBERLAW, supra note 11 at 307.
IV. THE LOVE BUG
In order to give the reader a more concrete picture of how a

cybercrime transpires and how it acquires an international
dimension, perhaps it would be helpful to provide an illustration
of an actual event. As discussed in the introduction, The
ILOVEYOU virus brought cybercrime to the forefront of
international concerns and put the Philippines and the rest of the
world in a legal quandary. This section will discuss the events
surrounding the ILOVEYOU virus.
On 4 May 2000, an e-mail message began circulating with

the subject line ILOVEYOU and the message kindly check the
attached loveletter coming from me.49 The e-mail contained an
attachment that if opened, caused the virus to rapidly proliferate
by automatically sending copies to everyone listed in a users
e-mail address book.50 This overloaded e-mail servers around the
world, slowed them down, or stopped them, and prevented other
e-mail from being sent. 51 The e-mail first appeared in the
Philippines, where it overloaded systems in Philippine banks,
universities and e-commerce businesses. 52 The virus quickly
traveled the globe by midday, about 30 percent of British
companies e-mail systems were affected; hours after the virus
struck London, it traveled to America, where the virus was said to
have hit at least 350,000 files in the United States alone.53 Within a
matter of hours, the virus had rapidly spread to private, commercial,
and government computers across Asia, Australia, Europe and
North America.54 The damage caused by the virus was estimated
at $10 billion.
49 Ruppe, supra note 1

50 Id.
51 Id.
52 Id.
53 Id.
54 Id.
The creation of the virus was eventually traced to Onel de

Guzman, a dropout of the AMA Computer College.55 Trying to
find a law that would fit de Guzmans acts, the National Bureau
of Investigation filed charges against de Guzman under the Access
Device Act56 that penalizes the illegal use of passwords specifically
in credit card and bank transactions. The Philippine Department of
Justice, however, dropped all charges on 21 August 2000, because
the law could not be made to apply to computer hacking.57
Reacting to international criticism on the Philippines lack

of a statute punishing computer crime, then-President Estrada
signed the E-Commerce Act58 into law on 14 June 2000.59 The Act,
which penalizes hacking, could not, however, be applied
retroactively to make de Guzman liable. Thus, de Guzman was
not prosecuted for his acts.
Throughout this paper, reference will be made to the

ILOVEYOU virus incident for purposes of illustration.
55 Associated Press, supra note 2.

56 Rep. Act No. 8484 (1998). Sec. 9 of that Act prohibits, among other acts: producing,
using, trafficking in one or more counterfeit access devices; trafficking in one or more
unauthorized access devices or access devices fraudulently applied for; using, with intent
to defraud, an unauthorized access device; using an access device fraudulently applied
for; possessing one or more counterfeit access devices or access devices fraudulently
applied for.
57 Associated Press, supra note 3; Sprinkel, supra note 4, at 492.
58 Rep. Act No. 8792. See discussion infra Part VI.A.
59 Associated Press, Philippines Sets New Cyber Law (15 June 2000) available at http:/
/more.abcnews.go.com/sections/tech/DailyNews/virus000615.html.
V. INTERNATIONAL CRIMINAL LAW

AND JURISDICTION OVER CYBERCRIME
As discussed earlier, cybercrime almost always has an

international dimension, due to the borderless nature of the Internet
and the ease by which criminal acts in one State can have effects in
another State.
The international element which most cybercrimes possess

does not automatically bring cybercrimes within the definition of
international crime.60 Cybercrime is a relatively new type of crime,
and to date there has yet to be a form of cybercrime which is
universally recognized as criminal.61 However, even if cybercrimes
have not attained the status of international crimes, the transborder
nature of cybercrimes does bring these crimes within the ambit of
International Criminal Law.
Currently, cybercrime is primarily governed by municipal

law. The punishment of cybercrime is dependent on the existence
of local legislation punishing acts of cybercrime where those acts
are committed.62 Thus, International Criminal Law for the purposes
of this study is International Criminal Law in the meaning of
60 An international crime is such act universally recognized as criminal, which is

considered a grave matter of international concern and for some valid reason cannot be left
within the exclusive jurisdiction of the State that would have control over it under ordinary
circumstances. KRIANGSAK KITTICHAISAREE, INTERNATIONAL CRIMINAL LAW 3 (2001), citing
Hostages Trial, US Military Tribunal at Nuremberg, 19 February 1948 (1953) 15 Am.
Dig. 632 at 636.
61 Take note, however, that certain crimes, such as child pornography are consistently
condemned in several States. See Godoy, supra note 6, at 114. Also, the use of the Internet
in the perpetration of the 11 September 2001 terrorist attacks, as well as hacking into U.S.
government websites by China have called attention to what may be an emerging crime of
cyberterrorism. See generally Daniel M. Creekman, A Helpless America? An Examination
of the Legal Options Available to the United States in Response to Varying Types of
Cyber-Attacks from China, 17 AM. U. INTL L. REV. 641 (2002).
62 Sprinkel, supra note 4, at 497 (discussing how some States may criminalize
computer-related offenses while others do not, thus impeding efforts to prosecute).
territorial scope of municipal criminal law,63 or in the sense that a

State applies its internal criminal law to events occurring elsewhere
but having an impact on that State.64
International Criminal Law in this sense looks at a States

jurisdiction over criminal acts. Indeed, the issue of State jurisdiction
is very tricky when it comes to the Internet. Internet users are
constantly challenging the States traditional ability to control
activities occurring in and beyond its borders.65
Jurisdiction refers to the powers a State exercises over

persons, property, or events.66 Jurisdiction comes in three forms:
prescriptive jurisdiction, adjudicative jurisdiction, and enforcement
jurisdiction.67
A. Prescriptive and Adjudicatory Jurisdiction
Prescriptive jurisdiction is the power of a government to

establish and prescribe criminal and regulatory sanctions. 68
63 International Criminal Law is used in at least six different meanings: International

Criminal Law in the meaning of territorial scope of municipal criminal law; International
Criminal Law in the meaning of internationally prescribed municipal criminal law; Interna-
tional Criminal Law in the meaning of internationally authorized municipal criminal law;
International Criminal Law in the meaning of municipal criminal law common to civilized
nations; International Criminal Law in the meaning of international cooperation in the
administration of municipal criminal justice; and International Criminal Law in the material
sense of the word. For a comprehensive discussion, see George Schwarzenberger,
The Problem of an International Criminal Law, in INTERNATIONAL CRIMINAL LAW 5-14
(Gerhard O. W. Mueller & Edward M. Wise, eds., 1965).
64 WILLIAM R. SLOMANSON, FUNDAMENTAL PERSPECTIVES ON INTERNATIONAL LAW 208
(3rd Ed., 2000) [hereinafter SLOMANSON].
65 Id. at 223.
66 MICHAEL BARTON AKEHURST, MODERN INTRODUCTION TO I NTERNATIONAL LAW 109
(7th Ed., 1997) [hereinafter AKEHURST].
67 Id.
68 Ray August, International Cyber-Jurisdiction: A Comparative Analysis, 39 AM. BUS.
L.J. 531, 532 (2002).
The legislature of a State has the power to enact laws governing

conduct within its borders, and in some cases, even beyond its
borders.69
Adjudicative jurisdiction refers to the powers of a States

courts to try and decide cases involving the persons, property or
events in question.70
Four bases of jurisdiction have been invoked by courts to

justify the exercise of prescriptive and adjudicative jurisdiction
over crimes: the territorial principle, the nationality principle, the
protective principle, and the universality principle. 71 These
traditional jurisdictional theories, although existing in International
Law long before the Information Age, continue to provide the bases
for assuming jurisdiction over cybercrime.72
Under the territorial principle of jurisdiction, a States

jurisdictional authority is based on the location of the perpetrators
act.73 A State has jurisdiction over any crime committed in whole
or in part within its territory.74 A crime is committed in part
within the territory when any essential constituent element is
consummated there.75
69 Any state may impose liabilities, even upon persons not within its allegiance, for
conduct outside its borders that has consequences within its borders which the state
reprehends, U.S. v. Aluminum Co. of America, 148 F. 2d 416 (1945) at 443; SLOMANSON,
supra note 64, at 207.
70 AKEHURST, supra note 66, at 109.
71 D.J. HARRIS, CASES AND MATERIALS ON INTERNATIONAL LAW 264-265 (5th Ed., 1998)
[hereinafter HARRIS]; AKEHURST, supra note 66, at 110-113.
72 SLOMANSON, supra note 64, at 223; August, supra note 68, at 532.
73 SLOMANSON, supra note 64, at 209.
74 Harvard Research in International Law, Art. 3, Draft Convention on Jurisdiction with
Respect to Crime, 29 Am. J. Int. L. Supp. 439 (1935) in INTERNATIONAL CRIMINAL LAW 41
(Gerhard O. W. Mueller & Edward M. Wise, eds., 1965).
75 HARRIS, supra note 71, at 278.
Noting that a State has jurisdiction over a crime which is

committed even just in part within its territory, it becomes relevant
to discuss the two sub-categories of this theory of jurisdiction: the
subjective territorial principle and the objective territorial
principle.76 The subjective territorial principle justifies jurisdiction
over criminal conduct which commences within a State and is then
completed abroad.77 The objective territorial principle is also known
as the effects doctrine, and jurisdiction is justified when injurious
effects, although not the criminal conduct itself, occurred on the
territory of a State.78
The act of unleashing the ILOVEYOU virus took place in

the Philippines, but its damaging effects were felt in many other
countries. Some of those countries already had laws which
considered the virus creators acts unlawful.79 In theory, then,
countries which had legislation penalizing the spread of computer
viruses and were affected by the ILOVEYOU virus could have
invoked the effects doctrine to assume jurisdiction over the criminal
act.80
76 AKEHURST, supra note 66, at 110; SLOMANSON, supra note 64, at 210.
77 SLOMANSON, supra note 64, at 210.
78 AKEHURST, supra note 66, at 110-111. The effects doctrine gained acceptance in
International Law through the decision in the Case of the S.S. Lotus (France v. Turkey)
(1927) P.C.I.J. Reports, Series A, No. 10 in HARRIS 267-277. In that case the court had the
opportunity to declare: ...it appears to be now universally admitted that, where a crime is
committed in the territorial jurisdiction of one State as the direct result of the act of a person
at the time corporeally present in another State, international law, by reason of the principle
of constructive presence of the offender at the place where his act took effect, does not
forbid the prosecution of the offender by the former State, should he come within its
territorial jurisdiction. (cited in HARRIS, supra note 71, at 278).
79 See infra note 7.
80 However, acquiring jurisdiction over the criminal act would have been fruitless
because those States would not be able to acquire jurisdiction over the person of the
accused. A country would have to have an extradition treaty with the Philippines in order
to acquire jurisdiction over the person of the Love Bug creator. But even then, extradition
treaties rely on the concept of dual criminality, requiring that the offense sought to be
punished be an offense punished under the criminal laws of the State where the accused is
located and the State requesting extradition. See, e.g., Extradition Treaty with the United
States of America (1994), 1994 U.N.T.S. 279, Art. 2(1). Since the Philippines did not then
punish the acts of the virus creator, the requirement of dual criminality was not met.
Because the territorial principle of jurisdiction can be invoked

whenever any element of a crime occurs within the State claiming
jurisdiction, in applying this theory to cybercrime, it is essential to
consider every contact a defendant has with the forum territory
and not just those which have effects there.81 This is illustrated in
the case of Crown v. Waddon, where the defendant, who was in the
United Kingdom, posted pornographic materials on a server located
in the United States in an attempt to escape liability under a British
law which penalizes publication of obscene materials in the United
Kingdom. 82 The British court sustained its assumption of
jurisdiction by holding that publication had occurred in the United
Kingdom because the defendant had transmitted the pornographic
materials from his computer in the United Kingdom.83
To date, only the territorial principle of jurisdiction has been

invoked by courts when dealing with cybercrime.84
The nationality principle of jurisdiction is based on the

universally accepted rule that a State may regulate the conduct of
its own citizens, and may prosecute its nationals for crimes
committed anywhere in the world.85 For example, if the creator of
the ILOVEYOU virus was outside Philippine territory at the time
he committed his criminal acts, the Philippines could claim
jurisdiction over him on the basis of his Philippine nationality.
The protective principle allows a State to punish acts

prejudicial to its security, even when they are committed by
foreigners abroad.86 Under this principle, any of the States that had
81 August, supra note 68, at 537.

82 Id.; CYBERLAW supra note 11, at 344.
83 August, supra note 68, at 537; CYBERLAW supra note 11, at 344.
84 CYBERLAW, supra note 11, at 344; August, supra note 68, at 538-543.
86 Id., at 111-112.
been affected by the ILOVEYOU virus could have claimed

jurisdiction over the virus creator, even if he is a Philippine national
and he committed his acts in the Philippines.87
Under the universality principle, any State can claim

jurisdiction over an act that threatens the international community
as a whole and which are criminal in all countries.88 These refer to
crimes such as war crimes, piracy, hijacking, and terrorism, all of
which are universally condemned.89 The applicability of this
principle to cybercrimes is thus doubtful; cybercrimes are not yet
criminalized in most countries, and thus very far from being
considered as universally condemned.90
B. Enforcement Jurisdiction
Even if adjudicative jurisdiction can be acquired over a

cybercrime, enforcement jurisdiction is a whole other matter, the
lack of which can render the acquisition of adjudicative jurisdiction
nugatory.91
Enforcement jurisdiction refers to the power of a State to
compel compliance or to punish noncompliance with its laws or
regulations.92 The jurisdiction to enforce denotes the powers of
physical interference exercised by the executive branch of
87 See supra note 80.

89 Id.
90 See supra note 61.
91 Akehurst points out that that it is essential to differentiate between adjudicative and
enforcement jurisdiction, citing for example, the distinction between the right to arrest and
the right to try. Akehurst illustrates his point thus: For instance, if a man commits a murder
in England and escapes to France, the English courts have jurisdiction to try him, but the
English police cannot enter French territory and arrest him there. AKEHURST, supra note
66, at 109.
government.93 It is comprised of two main powers: (1) the power

to investigate and apprehend; and (2) the power to carry out a
judgment.94 In relation to judicial action, the first power refers to
pre-adjudicatory jurisdiction, and the second is post-adjudicatory
jurisdiction.95
A States jurisdiction to enforce is, as a general rule, confined

to its territory. 96 This flows from the principle of territorial
sovereignty, which dictates that a State may not perform any
governmental act in the territory of another State, without the
consent or authorization of that State.97 Without such consent or
authorization, attempts to investigate, apprehend, or impose a
judgment in another State are a violation of international law.98
1. Jurisdiction to Investigate and Apprehend
A State may only exercise its powers to investigate and

apprehend within its own territory. The power to investigate
necessarily refers to the act of gathering evidence. The power to
apprehend obviously pertains to the acquisition of custody over
the person of the accused. If the evidence it seeks to obtain or the
suspect over whom it wishes to gain custody is found in another
State, then it must obtain the authorization of that State to exercise
the powers to investigate and apprehend. This authorization is
usually embodied in two types of treaties: Mutual Legal Assistance
Treaties, and Extradition Treaties.
93 AKEHURST, supra at 109.

95 Id.
96 Id.
a. Gathering Evidence in Another State
An essential part of criminal law is gathering evidence, and

when dealing with cybercrime that cuts across borders, gathering
evidence becomes extremely complicated. 99 The difficulty in
gathering evidence arises not only because another State is involved,
but is also due to the different ways a computer may hold and
transmit information.100 Indeed, there are two major problems that
law enforcement officials will encounter when gathering evidence
of cybercrime: first, much of the evidence will be located across
international borders; and second, electronic evidence can easily
be lost or destroyed.101
In cybercrime cases, a State which is intent on investigating

an incident will often find that crucial evidence is located beyond
its borders, such as when the data needed is located on an overseas
server. 102 In the incident involving the ILOVEYOU virus, for
example, the evidence of the virus was located on Philippine servers
and computers.103 Law enforcement officials of the United States
thus had to obtain the cooperation of Philippine officials in
conducting an investigation.104
99 Godoy, supra note 6, at 109 (discussing how the act of gathering evidence in other
countries is more complicated in the case of computer crimes).
100 Id.
101 Bellia, supra note 27, at 55-56.
102 Id. at 55.
103 Jim Krane and David Noack, Love Bug Snarls E-mail Worldwide, Virus Jumps
Continents Within Hours (4 May 2000), available at http://www.fas.org/irp/news/2000/05/
virus0504pm_01.htm. (discussing how the virus was traced to servers of Philippine Internet
service provider Skyinet)
104 Michael A. Vatis, Statement for the Record on the NIPCs International Response to
Cyber Attacks and Computer Crime Before the House Committee on Government Affairs,
Subcommittee on Government Management, Information and Technology (26 July 2000),
available at http://www.fbi.gov/congress/congress00/vatis072600.htm. (stating how the
United States Federal Bureau of Investigation worked, through the LEGAT in Manila, with
the Philippines National Bureau of Investigation, to identify the perpetrator)
Cooperation in investigations is usually facilitated by a

Mutual Legal Assistance Treaty.105 Such a treaty allows State parties
to obtain evidence found in each others territory.106 The Philippines
has such a treaty with the United States,107 and the United States
was able to avail of the rights granted under the treaty during the
investigation into the ILOVEYOU virus incident.108
When a Mutual Legal Assistance Treaty is not in force, a

State which seeks to obtain evidence in another State can utilize
letters rogatory.109 A letter rogatory is a formal request sent through
diplomatic channels to a court in another State for judicial assistance
in criminal cases.110
b. Extradition
Very often, the perpetrator of a cybercrime will be found in

a State other than the country which seeks to prosecute him or her.
Using the ILOVEYOU virus incident as a case in point, several
105 Keith Nicholson, International Computer Crime: A Global Village Under Siege,
2 NEW ENG. INTL & COMP. L. ANN. 195, 205 (1996). (discussing how Mutual Legal
Assistance Treaties are one of the best methods for fostering international cooperation in
relation to computer abuse)
106 Godoy, supra note 6, at 111. A drawback to this method of obtaining evidence is that
it is based on convention, and the rights that can be availed of under such a treaty is
limited to States which are parties to such treaties.
107 1994 U.N.T.S. 309. The Philippines, however, has yet to avail of this treaty. All the
requests for legal assistance have come from the United States, and the benefits of this
treaty have thus far been one-sided, the Philippines always being the requested State. See
Severino H. Gana, Jr., Extradition and Legal Assistance: The Philippine Experience at
http://www.unafei.or.jp/pdf/57-06.pdf (last visited 18 March 2003).
108 Lynn Burke, Hey Spyder: Love You, Too (5 May 2000), available at http://
www.wired.com/news/technology/0,1282,36139,00.html. (discussing how the Philippines
being a country with whom the United States has a Mutual Legal Assistance Treaty will
facilitate the Love Bug investigation)
109 Godoy, supra note 6, at 111.
110 Id.
affected countries aside from the Philippines wanted to prosecute

the virus creator. In view of the fact that cybercriminals will almost
always be physically located abroad, extradition becomes one of
the most important aspects of international computer law.111
Extradition is the surrendering of individuals by one State

to another State, in order that they may be tried by the latter for
offenses against its laws.112 Under the Philippine Extradition Law,113
extradition is the removal of an accused from the Philippines
with the object of placing him at the disposal of foreign authorities
to enable the requesting state or government to hold him in
connection with any criminal investigation directed against him or
the execution of a penalty imposed on him under the penal or
criminal law of the requesting state or government.114
Extradition, however, is severely limited by two things. First,

extradition is based on treaty,115 and as such, can only be availed
of between State parties.116 Second, extradition treaties usually have
a dual criminality clause which requires that the offender sought
to be extradited committed an offense which is punishable under
the laws of both State parties.117
The issue of the period when dual criminality must exist

was passed upon by the British House of Lords.118 It was held that
111 Id. at 104 (discussing extradition in relation to computer crimes).

113 Pres. Decree No. 1069 (1977).
114 Id. Sec.2(a).
115 There is no duty to extradite in the absence of a treaty. AKEHURST, supra note 66,
at 117.
116 Vienna Convention on the Law of Treaties, 23 May 1969, art. 12, 1155 U.N.T.S. 331.
117 See, e.g., Extradition Treaty with the United States of America (1994), 1994 U.N.T.S.
279, Art. 2 (1).
118 Gana, supra note 107, citing the case of Regina v. Bartle and the Commissioner of
Police (the Pinochet extradition appeal case).
dual criminality must exist at the time of the commission of the act
and not at the time of the request.119 This principle has become a
source of frustration to law enforcement officials in countries where
cybercrime legislation exists, when the laws of the requested State
fail to address and punish computer-related offenses.120 Again, the
ILOVEYOU virus incident is a case in point. The Philippines only
enacted a law punishing the virus creators acts one month after
the incident; the virus creators acts not being a crime in the
Philippines at the time of commission, the offender could not be
extradited to any other country because the dual criminality
requirement could not be met.
2. Jurisdiction to Enforce Judgments
A judgment of a court is directly enforceable overseas as

long as it is not contrary to local law.121
In the case of Ligue Contre la Racisme et lAntisemitisme v. Yahoo,

a French trial court rendered judgment against the American
company Yahoo, ordering it to remove Nazi memorabilia from its
web sites.122 This French judgment would have been enforceable
in the United States had not Yahoo sought a declaratory judgment
from a United States court which declared that the French judgment
violated Yahoos constitutional rights to free speech.123 This case
illustrates the point that a courts judgment is enforceable abroad
only to the extent that it does not contravene laws of the State
where it is sought to be enforced.
119 Id.
120 Nicholson, supra note 105 (discussing the difficulties created by the dual criminality
principle in relation to computer-related offenses).
121 August, supra note 68 at 565.
122 Id.
123 Id.
VI. PHILIPPINE LAW AND CYBERCRIME
As mentioned earlier, the person responsible for unleashing

the ILOVEYOU virus went unpunished because of the lack of a
penal statute in Philippine law which defined his acts as a criminal
offense. For such inadequate legislation, the Philippines was
heavily criticized by the international community. Reacting to this
criticism, the Philippines has responded by taking legislative and
procedural measures to fill the gap between law and technology.
This section will examine and evaluate these measures. Since one
of the major concerns that emerged after the ILOVEYOU virus
incident was the existence of a statute defining the offense,
particular attention will be devoted here to the sections in the
statute and bills to be discussed which deal with the definition of
offenses.
A. The Electronic Commerce Act of 2000
The Electronic Commerce Act124 was signed into law on 14

June 2000, or just a little over a month after the Love Bug was
unleashed unto the world. That this law was signed by then-
President Joseph Estrada in such a proximate amount of time to
the hullabaloo over the ILOVEYOU virus indicates the pressure
Philippine legislators felt from worldwide criticism.125 However,
although this law was passed during the pendency of the
investigation against the virus creator Onel de Guzman, the law
could not apply retroactively to punish his acts.126
124 Rep. Act No. 8792 (2000).

125 Associated Press, Philippines Sets New Cyber Law (15 June 2000), available at
http://more.abcnews.go.com/sections/tech/DailyNews/virus000615.html.
126 CIVIL CODE, Art. 4.
The Electronic Commerce Act was obviously not primarily

intended to be a penal statute. The title of the Act Electronic
Commerce already bears that out, as does the fact that the statute
was patterned after the UNCITRAL Model Law on Electronic
Commerce.127 This model law, prepared by the United Nations
Commission on International Trade Law (UNCITRAL), was meant
to be a pattern for State legislation that would facilitate trade in the
age of electronic commerce.128
Indeed, the penal provisions in this statute are merely

incidental.129 The section which defines prohibited acts is tucked
away in the catch-all portion of the statute labeled Final
Provisions. Section 33 of the Electronic Commerce Act penalizes
the following acts:
a) Hacking or cracking which refers to unauthorized

access into or interference in a computer system/
server or information and communication system; or
any access in order to corrupt, alter, steal, or destroy
using a computer or other similar information and
communication devices, without the knowledge and
consent of the owner of the computer or information
and communications system, including the
introduction of computer viruses and the like,
resulting in the corruption, destruction, alteration, theft
127 VICENTE B. AMADOR, THE E-COMMERCE ACT AND OTHER LAWS @ CYBERSPACE 9 (2002).
128 Id. at 9-10.
129 Section 3 of R.A. 8792 sets forth the objective of the Act: This Act aims to facilitate
domestic and international dealings, transactions, arrangements, agreements, contracts
and exchanges and storage of information through the utilization of electronic, optical and
similar medium, mode, instrumentality and technology to recognize the authenticity and
reliability of electronic documents related to such activities and to promote the universal
use of electronic transactions in the government and by the general public. The primary
focus is clearly on trade, not the prevention of crime, which is just incidental to the
objective of the statute.
or loss of electronic data messages or electronic

document [ ... ];
b) Piracy or the unauthorized copying, reproduction,

dissemination, distribution, importation, use, removal,
alteration, substitution, modification, storage,
uploading, downloading, communication, making
available to the public, or broadcasting of protected
material, electronic signature or copyrighted works
including legally protected sound recordings or
phonograms or information material on protected
works, through the use of telecommunication
networks, such as, but not limited to, the internet, in a
manner that infringes intellectual property rights [...];
c) Violations of the Consumer Act or Republic Act

No. 7394 and other relevant or pertinent laws through
transactions covered by or using electronic data
messages or electronic documents [ ... ];
d) Other violations of the provisions of this Act [ ... ].
This provision provides a rudimentary listing of cybercrimes

and is wide enough in scope to cover the most common
cybercrimes. Most importantly, it penalizes the introduction of
viruses, which is what the creator of the Love Bug could have been
charged with, had this law already been in force at the time he
unleashed the virus. Paragraph (a) penalizes hacking, cracking,
malware and data manipulation.130 Paragraph (b) penalizes piracy
and other violations of intellectual property rights. Paragraph
(c) can be interpreted to penalize computer fraud, although this is
not too clear-cut. It will be noted that the list of penalized acts here
130 See discussion on cybercrimes, infra Part III.

are confined to crimes against property, which is corollary to the

fact that this section is part of a statute governing commerce.
However, cybercrimes affect more than property. As

discussed earlier, cybercrimes can also be directed against persons
and the government,131 or even public order. While, arguably, other
cybercrimes not covered by the Electronic Commerce Act can be
punished by other laws such as the Revised Penal Code132 or
special laws,133 it is entirely possible that the definitions contained
in these antiquated penal laws have been left behind by
technological innovations, which put the harmful acts beyond the
scope of the law. Whether or not these laws will be adequate to
govern these new crimes will be put to the test when an incident of
cybercrime occurs. A clear example is the ILOVEYOU virus, as
already discussed, where Philippine laws failed to measure up.
131 See discussion infra Part III.

132 Although it has yet to be tested, online pornography, for example, could be punished
under Art. 201 of the Revised Penal Code, which imposes a penalty on: (1) Those who shall
publicly expound or proclaim doctrines openly contrary to public morals; (2) (a) The
authors of obscene literature, published with their knowledge in any form; the editors
publishing such literature; and the owners/operators of the establishment selling the same;
(b) Those who, in theaters, fairs, cinematographs or any other place, exhibit indecent or
immoral plays, scenes, acts or shows, it being understood that the obscene literature or
indecent or immoral plays, scenes, acts or shows, whether live or in film, which are pre-
scribed by virtue hereof, shall include those which (1) glorify criminals or condone crimes;
(2) serve no other purpose but to satisfy the market for violence, lust or pornography;
(3) offend any race or religion; (4) tend to abet traffic in and use of prohibited drugs; and
(5) are contrary to law, public order, morals, and good customs, established policies, lawful
orders, decrees and edicts; (3) Those who shall sell, give away or exhibit films, prints,
engravings, sculptures or literature which are offensive to morals. While clearly, online
activities were not contemplated in this provision, if these activities are committed online,
then the element of public display or publication can be said to have taken place.
133 For example, illegal gambling is governed by Presidential Decrees Nos. 449, 483 and
1602, as amended by Letter of Instructions No. 816. These laws could, conceivably, be
made to apply to online gambling, if the prohibited acts under these statutes are committed
via the Internet.
To date, the Electronic Commerce Act is the only statute in

force that applies to cybercrimes. The penal provision in the
Electronic Commerce Act is basic, and there is much to be refined
and improved upon. Answering this need are several pending
bills in Congress, which shall be discussed next.
B. Senate Bill No. 2025
Senate Bill No. 2025 was introduced by Senator Ramon

Magsaysay, Jr. in the year 2000, soon after the Love Bug fiasco. The
bill is entitled An Act Providing Protection Against Computer
Fraud and Abuses and Other Cyber-Related Fraudulent Activities,
Providing Penalties Therefor and for Other Purposes.
The bill was prompted by the ILOVEYOU virus, and this is

made clear in the explanatory note penned by Senator Magsaysay:
The need for a special law addressing the concerns of computer
owners, cyber users and the entire consumer sector as a whole
heightened with the occurrence very recently of the so-called I
LOVE YOU messages or lovebug computer virus.134 The bill
seeks to punish computer fraud,135 computer forgery,136 damage
134 Explanatory note, S.B. 2025.

135 Defined as the input, alteration, erasure or suppression of computer data or
computer programs, or other interferences in the course of data processing, that
influences the result of data processing thereby causing economic or possessory loss of
property of another person with the intent of procuring an unlawful economic gain for
himself or for another person. S.B. 2025, Sec. 3.1.
136 Defined as the input, alteration, erasure or suppression of computer data or
computer programs, or other interference in the course of data processing, in a manner or
under such conditions, as prescribed by national law, that would constitute the offense of
forgery if it had been committed with respect to a traditional object of such an offense.
S.B. 2025, Sec. 3.2.
to computer data or computer programs,137 computer sabotage,138

unauthorized access,139 and unauthorized interception.140 The bill
also contains a lengthy provision punishing specific forms of
unauthorized access to computers, such as access to computers of
the national government, financial institutions, or medical
facilities.141
Most of the crimes defined under the bill deal with crimes
affecting national government computers. Accordingly, the bill also
seeks to confer authority to the National Security Council, in
addition to the other government agencies concerned, to investigate
offenses defined in the bill, particularly if the violation committed
affects the national security of the country.142 This can be considered
an unnecessary provision because acts which affect the national
security of the country are already within the authority of the
National Security Council.
C. House Bill No. 1310
House Bill No. 1310 was authored by Representative Nanette

Castelo Daza, and is practically identical to Senate Bill No. 2025.
House Bill No. 1310 is entitled An Act Providing Protection
Against Computer Fraud, Abuses and Other Cyber-Related
137 Defined as the erasure, alteration, damaging, deterioration or suppression of com-

puter data or computer programs without right. S.B. 2025, Sec. 3.3.
138 Defined as the input, alteration, erasure or suppression of computer data or computer
programs, or interference with computer systems, with the intent to hinder the functioning
of a computer or of a telecommunications system. S.B. 2025, Sec. 3.4.
139 Defined as the access without right to a computer system or network by infringing
security measures. S.B. 2025, Sec. 3.5.
140 Defined as the interception, made without right and by technical means, of communi-
cations to, from and within a computer system or network. S.B. 2025, Sec. 3.6.
141 S.B. 2025, Sec. 3.7.
142 Id. Sec. 5.
Fraudulent Activities, Providing Penalties Therefor, and for Other

Purposes. The punishable acts under this bill are identical to
those defined in Senate Bill No. 2025, with the addition that this
bill also punishes whoever introduces immoral doctrines, obscene
publications and exhibitions, and indecent shows in cyberspace.143
Just like Senate Bill No. 2025, House Bill No. 1310 also accords
authority to the National Security Council to conduct investigation
on computer-related crimes vis--vis its effects on national
security.144
D. House Bill No. 1908
Penned by Representative Ma. Victoria L. Locsin,145 House

Bill No. 1908 is entitled An Act Defining Computer Crimes,
Providing Penalties Therefor, and for Other Purposes. In its
explanatory note, the bill highlights the need for legislation specific
to computer crimes, and also points to the Love Bug as its impetus:
The creator of the virus was traced locally. However, local and
foreign law enforcement officials could only wring their hands in
frustration and despair when it was discovered that no law could
be properly applied to charge the perpetrator in court.146
One of the salient features of this bill is its comprehensive

definition of terms. Among the terms defined in the bill are
computer virus and damage. Computer virus is defined as
a computer program copied to or installed on a computer, computer
network, computer program, computer software, or computer
143 H.B. 1310, Sec. 3.7, par. (g).

144 Id. Sec. 5.
145 Note, however, that Cong. Locsin was unseated by Eufrocinio Codilla, Sr. following a
unanimous decision of the Supreme Court on 10 December 2002 (Codilla v. Locsin,
G.R. 150605).
146 Explanatory Note, H.B. 1908
system without the informed consent of the owner of the computer,

computer network, computer program, computer software, or
computer system that may replicate itself and that causes
unauthorized activities within or by the computer, computer
network, computer program, computer software, or computer
system.147 Damage takes on an extensive definition in this bill:
Damage refers to any impairment to the integrity or

availability of data, a program, a system, or information that:
1) Causes loss aggregating to not less than ten

thousand pesos in value to one or more persons,
natural or juridical, during any one year period;
2) Modifies, impairs, or potentially modifies or

impairs, the medical examination, diagnosis,
treatment, or case of one or more persons;
3) Causes physical injury to any person; or
4) Threatens public health and/or safety.
Proceeding from the definitions, the bill then goes on to

enumerate a comprehensive list of offenses. The bill enumerates
several prohibited acts, including access to government and private
computers and the information therein, trafficking of passwords,
and variants of computer-assisted fraud.148
A significant portion of the section on prohibited acts is

devoted to the distribution of computer viruses. This may be
reflective of the Love Bugs impact on this piece of legislation.
However, instead of simply penalizing the mere act of intentionally
147 H.B. 1908, Sec. 3(g).

148 Id. Sec. 4.
unleashing a computer virus, the bill sets forth particular

requirements of damage before the act of unleashing a virus can
be punished.149 The verbosity of that particular section could result
in loopholes in the law, if it is passed.
E. House Bill No. 3241
Representative Eric D. Singson is the author of House Bill

No. 3241. The explanatory note of this bill, as in the other bills,
also points to the Love Bug and its impact on international
perception of the Philippines, saying, cyberspace users became
wary of receiving information from the Philippines through the
Internet for fear of computer viruses. The bill is entitled An Act
Preventing and Penalizing Computer Fraud, Abuses and Other
Cyber-Related Fraudulent Activities, and Creating for the Purpose
the Cyber-Crime Investigation and Coordinating Center, Prescribing
its Powers and Functions, and Appropriating Funds Therefor. It
has a comprehensive list of prohibited activities, which seem to
consolidate all the offenses listed in House Bills Nos. 1310 and
1908. With just slight variations in wording, House Bill No. 3241
seeks to punish the acts also sought to be punished in the two
previously-discussed House Bills.
The innovative feature, however, of House Bill No. 3241 is

its proposal to create a Cyber-Crime Investigation and Coordinating
Center, a special body under the control and supervision of the
Office of the President, tasked to combat cyber-related fraudulent
activities and to investigate, coordinate, collate and synergize efforts
of all law enforcement agencies in combating cybercrimes.150
149 See H.B. 1908, Sec. 4(h[1-4]).

150 H.B. 3241, Sec. 4.
The proposal to create a special body to deal with

cybercrimes is perhaps a recognition of the highly technical nature
of such crimes and the need for additional expertise on the part of
the officials dealing with their investigation and prosecution.
F. House Bill No. 4083
An Act to Prevent and Penalize Computer Crimes is the

short and succinct title of House Bill No. 4083. Authored by
Representative Amado T. Espino, Jr., the explanatory note also
points out that the Love Bug virus prompted the cyber world to
hate the Philippines and consider it as a haven for cyber-terrorists
and unscrupulous computer maniacs.151 Equally succinct as its
title is the list of prohibited acts under the proposed law. The bill
seeks to punish: any person who without authorization shall hack,
transmit, encode or introduce any program, code, command or
virus to any computer and as a result of such conduct cause
damage, destruction or alteration to any data, program or
information stored therein;152 any person who without authorization
shall hack, transmit, encode or introduce any program, code,
command or virus to any government computer and as a result of
such conduct cause damage, destruction or alteration to any data,
program or information stored therein;153 any person who shall
break any code, decoder, key, password or any security measure
designed to prevent or secure a computer from unauthorized
access; 154 Any person who shall pass any code, decoder, key,
password or any security measure designed to access a protected
or secured computer which is obtained by him/ her by reason of
his/her position; 155 any person who shall hack or exceeds
151 Explanatory Note, H.B. 4083.

152 H.B. 4083, Art. 4, Sec. 1.
153 Id. Art. 4, Sec. 2.
154 Id. Art. 4, Sec. 3.
155 Id. Art. 4, Sec. 4.
authorized access to a computer and thereby obtain restricted,

confidential, or exclusive program, information or data therein;156
any person who shall use electronic mail to further criminal
activities;157 and any person who shall post, publish, introduce, or
advertise pornographic materials or immoral business or activities
in the internet.158
The other bills previously discussed had very lengthy lists

and descriptions of prohibited activities, sometimes resulting in
redundancy. Instead of going into excessive detail as the other
bills have done, House Bill No. 4083 simply defines seven
punishable acts which can be made applicable to cybercrimes
commonly encountered.
This bill, just like House Bill No. 3241, also proposes the
creation of a special body to deal with cybercrime, to be called the
Anti-Cyber Crime Task Force. 159 The bill proposes that this
task force be jointly organized and its members appointed by
the National Computer Center and the National Bureau of
Investigation.160
G. Procedural Laws
Currently, electronic evidence is excluded from criminal

proceedings. The Supreme Court has already promulgated Rules
on Electronic Evidence, and these rules took effect on 1 August
2001. 161 These rules govern the admissibility of electronic
156 Id. Art. 4, Sec. 5.

157 Id. Art. 4, Sec. 6.
158 Id. Art. 4, Sec. 7.
159 Id. Art. 5.
160 Id.
161 RULES ON ELECTRONIC EVIDENCE, Rule 12, Sec. 2.
documents, 162 electronic signatures, 163 as well as audio,

photographic, video and ephemeral evidence.164 However, these
rules provide that they shall apply to all civil actions and
proceedings, as well as quasi-judicial and administrative cases,165
thereby impliedly excluding criminal proceedings from its
coverage.
By limiting the application of the Rules on Electronic

Evidence to civil actions and quasi-judicial and administrative cases,
the Supreme Court reveals its hesitancy to allow the immediate
use of electronic evidence in criminal actions, opting instead to
give the courts, lawyers and litigants more time to familiarize
themselves with the use of electronic evidence.166 This apprehensive
attitude toward the immediate application of these novel rules
may be borne by the fact that criminal proceedings necessarily
involve the life and liberty of the persons accused, and should
thus be treated with extreme caution.
162 See RULES ON ELECTRONIC EVIDENCE, Rules 3, 5, 7. Rule 2, Sec. 1(h) defines electronic
document as information or the representation of information, data, figures, symbols or
other modes of written expression, described or however represented, by which a right is
established or an obligation extinguished, or by which a fact may be proved and affirmed,
which is received, recorded, transmitted, stored, processed, retrieved or produced elec-
tronically. It includes digitally signed documents and any print-out or output, readable by
sight or other means, which accurately reflects the electronic data message or electronic
document.
163 See RULES ON ELECTRONIC EVIDENCE, Rule 6. Rule 2, Sec. 1(j) defines electronic signa-
ture as any distinctive mark, characteristic and/or sound in electronic form, representing
the identity of a person and attached to or logically associated with the electronic data
message or electronic document or any methodology or procedure employed or adopted
by a person and executed or adopted by such person with the intention of authenticating,
signing or approving an electronic data message or electronic document. For purposes of
these Rules, an electronic signature includes digital signatures.
164 See RULES ON ELECTRONIC EVIDENCE, Rule 11. Ephemeral electronic communication
refers to telephone conversations, text messages, chatroom sessions, streaming audio,
streaming video, and other electronic forms of communication the evidence of which is not
recorded or retained. Rule 2, Sec. 1(k).
166 AMADOR, supra note 127, at 530.
It must be pointed out, however, that the exclusion of

electronic evidence in criminal proceedings could lead to
unacceptable results and incongruity.167
The exclusion by the Supreme Court of criminal proceedings

from the coverage of the Rules on Electronic Evidence appears to
be incongruent to the intentions of legislators in passing the
Electronic Commerce Act, which took effect a year earlier than the
Rules on Electronic Evidence did. Particularly, there is incongruence
with respect to the admissibility of electronic evidence.168
Regarding the admissibility of electronic evidence, the

Electronic Commerce Act provides that in any legal proceedings,
nothing in the application of the rules on evidence shall deny the
admissibility of an electronic data message or electronic document
in evidence on the sole ground that it is in electronic form.169 The
Electronic Commerce Act, by using the phrase in any legal
proceeding indicates no intention on the part of the legislature to
distinguish between civil and criminal proceedings. That criminal
proceedings were also contemplated is necessarily inferred from
the inclusion of penal provisions in the Electronic Commerce Act.170
The Rules on Electronic Evidence, however, provide that an

electronic document is admissible if it is authenticated in the
167 Id.
168 Note, however, that section 5(5) of Article VIII of the Constitution gives the Supreme
Court the power to promulgate rules concerning pleading, practice, and procedure in all
courts. This makes it appear that Congress no longer has the power to repeal, alter or
supplement the rules on pleading, practice and procedure promulgated by the Supreme
Court. JOSE Y. FERIA, 1997 RULES OF CIVIL PROCEDURE 1 (2000). Thus, the promulgated Rules
on Electronic Evidence would prevail over the rules on admissibility contained in the
Electronic Commerce Act, an act of the legislature.
169 Rep. Act No. 8792, Sec. 12.
170 Id. Sec. 33.
manner prescribed by those Rules.171 The Rules, however, do not

apply to criminal proceedings.
A gap, therefore, exists between the existing penal law on

cybercrimes and the means by which their commission can be
proven. Cybercrimes and other crimes committed by means of a
computer will necessarily involve electronic evidence, or data stored
in computers. But even if a law already exists to punish
cybercrimes, the electronic trail created by criminals who commit
such crimes cannot be used in the criminal action filed against
them.172 The lack of procedural rules to govern electronic evidence
in criminal proceedings, therefore, may prove fatal to a prosecution
for the offenses defined by the Electronic Commerce Act.
VII. RECOMMENDATIONS
The ILOVEYOU virus incident illustrated the need for two

things in controlling cybercrime: local legislation and international
cooperation.173 This section will discuss features of a proposed
new cybercrime-specific statute, and factors to consider in the
drafting of a treaty.
A. The Proposed Cybercrime Prevention Act
A policy-making body of the government has taken it upon

itself to draft a comprehensive bill aimed at the prevention of
cybercrime. The Information Technology and Electronic Commerce

172 AMADOR, supra note 127, at 529.
173 Shackelford, supra note 9, at 503 (discussing how it is apparent that to successfully
combat computer-related crime, not only must countries enact legislation, but they must
also foster international cooperation).
Council (ITECC)174 drafted the Cybercrime Prevention Act of

2002,175 by consolidating the bills pending in Congress discussed
earlier.176 However, this draft has not yet been finalized by ITECC,
and no sponsors in Congress have yet been sought for the proposed
bill.177
The proposed bill is entitled An Act Defining Cybercrime,

Providing for Prevention, Suppression and Imposition of Penalties
Thereof and For Other Purposes. The salient features of this bill
include a comprehensive definition of terms,178 a thorough listing
of prohibited acts,179 and the creation of a special administrative
body to deal with cybercrime.180 These features were culled from
the bills pending in Congress. However, this draft bill goes a step
beyond the pending bills by including provisions on issues that
have not been addressed by those bills; these issues include search
174 ITECC is chaired by the President of the Philippines and is the countrys
highest policy-making body with respect to information technology. It was created by
then-President Estrada in the year 2000 through E.O. 264 which merged the National
Information Technology Council and the Electronic Commerce Promotion Council to form
ITECC. In 2001, President Macapagal-Arroyo transferred the chairmanship of ITECC to
the President, through E.O. 18, which also expanded, enhanced, and accelerated ITECCs
policy-implementation capabilities and decision-making processes. ITECC General
Information, at http://www.itecc.gov.ph (last visited 10 March 2003).
175 hereinafter referred to as ITECC Draft Bill. The full text of the ITECC Draft Bill is at
http://cybercrime.inmyhouse.net/docs/draft.pdf (last visited 10 March 2003).
176 Background Information on the Proposed Cybercrime Prevention Act of 2002, at http:/
/cybercrime.inmyhouse.net (last visited 10 March 2003).
177 Id.
178 ITECC Draft Bill, Sec. 3. The bill defines the following terms: access, alteration, com-
puter, computer data, computer program, computer system, cybercrime, damage, database,
deletion, distribution, interception, making available of, network, non-public transmission,
offering, procuring data or material, protected works, service provider, subscriber informa-
tion, suppression of computer data, by technical means, traffic data, without right.
179 Id., Secs. 11-16.
180 Id., Sec. 4.
and seizure,181 the preservation and disclosure of computer data,182

and jurisdiction.183
Chapter III of the draft bill, entitled Prohibited Acts, is

devoted to the definition of offenses. The sections of the ITECC
draft bill which defines prohibited acts read as follows:
SECTION 11. The following acts shall be punishable

under this Act:
11.1. Illegal Access. The access to the whole or any
part of a computer system or network, without right,
or by infringing security measures, with intent to
obtain computer data or program, or in the pursuit of
a dishonest intent, and causing damage to another.
11.2. Illegal Interception. The interception made by
technical means, without right, of any non-public
transmission of computer data to, from, or within a
computer system, including electromagnetic emissions
from a computer system carrying such computer data,
to pursue a dishonest or fraudulent intent.
11.3. Data interference. The intentional damaging,
deletion, deterioration, alteration or suppression of
computer data, without right.
11.4. System Interference. The intentional and
unauthorized hindering or interference with the
functioning of a computer system by inputting,
transmitting, damaging, deleting, deteriorating, altering
or suppressing computer data or program.
11.5. Misuse of Devices. The following acts shall
constitute misuse of devices:
181 Id., Sec. 10.

182 Id., Sec. 19.
183 Id., Sec. 25.
a. The production, sale, procurement for use, import,

distribution or otherwise making available of (i) a
device, including a computer program, designed or
adapted primarily for the purpose of committing any
of the offenses under Sections 11.1 to 11.4 hereof, or
(ii) a computer password, access code, or similar data
by which the whole or any part of a computer system
is capable of being accessed.
b. The possession of an item referred to in paragraphs
a (i) or (ii) above with intent to use said devices for
the purpose of committing any of the offenses under
Sections 11.1 to 11.4 hereof. Provided, however, that
no criminal liability shall attach (i) when the
production, sale, procurement, importation,
distribution or otherwise making available of, or
possession referred to in paragraph [a] above is for
the authorized testing or protection of a computer
system, program or network for a limited period.
11.6. Computer Forgery. The input, alteration,
erasure, or suppression of any computer data or
computer program, or interference with the computer
system, resulting in the corruption or adulteration of
the data or program with the intent to give the same a
semblance of authenticity, regardless of whether or
not the data or program is directly readable and
intelligible, for some fraudulent or dishonest purpose.
The act of knowingly using computer data, which are
the products of computer forgery, as defined herein,
for the purpose of perpetuating a fraudulent or
dishonest design and causing serious damage thereby,
shall likewise be punishable under this Section.
11.7. Computer Fraud.The intentional and
unauthorized input, alteration, erasure or suppression
of computer data or programs, or interference in the
functioning of a computer system, with the intent of
procuring an economic benefit for oneself or for

another person or for the perpetuation of a fraudulent
or dishonest activity.
SECTION 12. Offenses related to Pornography. Any

person guilty of the following acts is likewise
punishable under this Act:
a. Producing pornography for the purpose of
distribution through a computer system or network;
b. Offering or making available pornography through
a computer system or network; or
c. Distributing or transmitting pornography through a
computer system or network.
SECTION 13. Infringement of Intellectual Property
Rights. Any person who, without the knowledge or
consent of the owner thereof, shall willfully copy,
reproduce, disseminate, distribute, or make available
online any protected works as defined herein by
means of a computer system, to gain commercial
advantage for his or another persons benefit shall, in
addition to the penalty provided for under existing
intellectual property laws, also be punishable under
this Act.
Although several offenses are listed, it can be seen that they

fall into three main categories: computer-specific crimes,
pornography and intellectual property rights infringement. The
offenses listed under Section 11illegal access, illegal interception,
data interference, system interference, misuse of devices, computer
forgery, and computer fraudare all offenses in which the
computer is the object or target of the crime.184 These offenses did
not exist before the age of computers and have heretofore not been
defined by the criminal laws of the Philippines.

The discussion earlier in this paper on the bills pending in

Congress reveals that legislators are all agog about viruses,
consistently citing the ILOVEYOU virus in the explanatory note of
the bills, and making sure that the act of unleashing viruses is
specifically prohibited under the bills section on punishable
offenses. A curious thing about the listing of prohibited acts in the
ITECC draft bill is that the word virus does not appear anywhere.
But this does not mean that the problem of viruses is not
addressed. The people in ITECC who drafted this bill are probably
a lot more tech-savvy than the staff of congressmen and senators,
and realized that the word virus does not have to appear in
order to be punished. Instead of giving in to the media hysteria
over the ILOVEYOU virus and making it the anchor point of the
bill as the bills pending in Congress have done, the ITECC draft
bill defines acts which are broad enough to encompass a whole
host of computer-related crime.
Again taking the ILOVEYOU virus as an example, had this

draft bill been the law in force at the time, then the virus creator
could have been charged under any of the following prohibited
acts as defined in the bill: illegal access, illegal interception, data
interference, or system interference. This is because the unleashing
of the virus resulted in all these acts.
The offenses of pornography and intellectual property rights

infringement under Sections 12 and 13, respectively, of the draft
bill are offenses which have the computer merely as a tool in the
commission of the offense. While the draft bill tailors the definition
of these offenses specifically to crimes committed online, the
prosecution of these crimes could already be accomplished through
existing laws.185
185 REVISED PENAL CODE, Art. 201; INTELLECTUAL PROPERTY CODE. See notes 132-133.
The draft bill also seeks to punish conspiracy to commit

cybercrime, 186 as well as accomplices in the commission of
cybercrime,187 and attempted cybercrime.188 This feature is not
found in the bills pending in Congress, where sections defining
punishable acts are limited to the offenses committed.
ITECC, itself being a specialized government body, realized

the importance of having a special body with technical expertise
devoted to combating cybercrimes. Like two of the bills pending
in Congress, the ITECC draft bill proposes the creation of a special
body, called the Cybercrime Investigation and Coordinating
Council, or CICC.189
The draft bill proposes that the CICC have the following
powers and functions:
a. To prepare and implement appropriate and

effective measures to prevent and suppress
cybercrimes;
b. To conduct intelligence and counter-intelligence

operations to identify and prosecute person(s) and/
or entities, including but not limited to private or
government-owned corporations, government
officials and employees, cybercrime syndicates and
their cohorts engaged in cybercrimes and related
activities.
186 ITECC Draft Bill, Sec. 14.

187 Id., Sec. 15.
188 Id., Sec. 16.
189 Id., Sec. 4.
c. To effect searches and seizures in accordance with

law, and to cause and/or implement the procedure
for the arrest, investigation and prosecution of
persons engaged in cybercrimes;
d. To refer the case(s) at hand, as the CICC may deem

proper and necessary, to the Department of Justice,
or any other appropriate law enforcement agencies
for investigation or prosecution, as the case may
be;
e. To follow up the progress of on-going investigation

and prosecution of cases taken cognizance by the
CICC;
f. To formulate and implement plans and programs

for international cooperation on intelligence and
investigations relative to cybercrime prevention,
suppression and prosecution;
g. To coordinate the support and participation of the

business sector, local government units and non-
government organizations in the cybercrime
prevention program and other related projects and
undertakings of the CICC;
h. To recommend the enactment of appropriate

cybercrime laws and issuances; and
i. To perform such other functions and duties necessary

for the proper implementation of this Act.190
190 Id., Sec. 6.

The ITECC draft bill goes a step beyond the mere creation
of this special body with the usual powers and functions as listed
above, but also grants the CICC the powers of search and seizure.
The draft bill allows the CICC, pursuant to a warrant, to: secure a
computer system or part of it or a computer-data storage medium;
make and retain a copy of those computer data secured; maintain
the integrity of the relevant stored computer data; and render
inaccessible or remove those computer data in the accessed
computer system.191
Another salient feature of this draft bill is the proposal for

the creation of a Cybercrime Police Force.192 Under the draft bill,
the CICC is mandated to recommend the enactment of a law creating
such a police force, wherein members would undergo a special
training course in computer technology.193 However, the creation
of a separate cybercrime police force has been criticized for
violating the constitutional mandate of having one police force194
and for being unnecessary.195
An important provision on jurisdiction is included in the

ITECC draft bill, jurisdiction being an issue neglected by the six
pending bills. The draft bill provides:
The proper courts in the Philippines shall have

jurisdiction over any violation of the provisions of
this Act committed within the territory of the
Philippines. In case any of the offenses herein defined
is committed outside the territorial limits of the
191 Id., Sec. 10.

192 Id., Sec. 24.
193 Id.
194 CONST. Art. XVI, Sec. 6.
195 Erwin Lemuel G. Oliva, Separate Cybercrime Police Force Not Needed
(26 January 2003), available at http://www.inq7.net/inf/2003/jan/27/inf_3-1.htm.
Philippines, by Philippine citizens, singly or in

confederation with other nationals, and by such
commission any damage is caused to a computer
system or network in the Philippines, or to a natural
or juridical person who, at the time of the commission
of the offense, is in the Philippines, the proper courts
in the Philippines shall likewise have jurisdiction.196
Although this provision simply reflects jurisdictional

principles already recognized in international law,197 namely the
territorial and nationality principles, spelling it out in the statute
precludes any objection to the jurisdiction of Philippine courts.
As discussed earlier, the penal provisions under the

Electronic Commerce Act insufficiently address the different forms
of cybercrime. The six bills pending in Congress are an
improvement upon the penal provisions of the Electronic
Commerce Act. However, in their zeal to punish the creation
of viruses and other cybercrimes, coupled with a limited
understanding of the technological aspects of the crimes involved,
the bills tend to be too wordy and have a tendency to over-define
prohibited acts, opening the possibility for the exploitation of
loopholes in the law.
The ITECC draft bill, on the other hand, is a refinement and

improvement of the six bills pending in Congress, and could be
the piece of legislation that is needed in order to close the gap
between technology and the law.
The ITECC draft bill, therefore, would be adequate

substantive law if passed. However, as pointed out earlier, the
lack of procedural rules to govern electronic evidence in criminal
196 ITECC Draft Bill, Sec. 25.

197 See discussion infra Part V.
proceedings, may prove fatal to a prosecution for the offenses

defined by substantive laws. The Rules on Electronic Evidence
currently do not apply to criminal proceedings. 198 Once a
substantive law governing cybercrimes is in place, then procedural
rules on evidence must also be adopted, or else the substantive
law could be rendered nugatory.
B. The Need for a Treaty
Because of the transborder nature of cybercrime, 199 it

becomes apparent that local legislation must be complemented by
international cooperation in the form of a convention.200
As discussed earlier, cybercrime presents the problem of

acquiring jurisdiction over the offense, jurisdiction over the person
of the accused, and evidence necessary for prosecution of the
offense. An international treaty could eliminate the procedural and
jurisdictional obstacles that prevent the prosecution of perpetrators
of cybercrime.201 A treaty is necessary because problems such as
safe havens, sovereignty, and inadequate bilateral treaties of
extradition arise when one State penalizes cybercrime and another
country does not,202 as illustrated by the ILOVEYOU virus incident.
198 See discussion infra Part VI.G.

200 Shackelford, supra note 9, at 503.
201 Marler, supra note 23, at 206 and 219. (discussing only through means of a treaty can
countries eliminate jurisdictional problems and work better together when investigating
and collecting evidence to use against cyber-criminals); Sprinkel, supra note 4, at 511
(discussing how a multinational treaty diminishes jurisdictional boundaries).
202 Sprinkel, supra note 4, at 498.
With these difficulties in mind, a treaty governing cybercrime

should have two goals: standardizing domestic statutes and
facilitating cooperative enforcement efforts. 203 Standardizing
domestic statutes addresses the problem of acquisition of
jurisdiction over the offense, by ensuring that cybercrimes are
penalized. Facilitating cooperative enforcement efforts addresses
the problem of acquisition of jurisdiction over the person of the
accused, and the acquisition of evidence.
This second goal can be met by including provisions in the

treaty mandating four key elements: consistent extradition of
criminals, cooperation in the retention of witnesses and evidence,
recognition and enforcement of criminal judgments issued by a
particular nations court, and a combined effort between each
nations law enforcement and prosecutorial organizations.204
A treaty, because of its binding nature between States, is the

only way to ensure international cooperation.205
203 Hatcher, et al., supra note 7, at 439.

204 Id.; Eric J. Bakewell, Michelle Koldaro and Jennifer M. Tija, Computer Crimes, 38 AM.
CRIM. L. REV. 481, 523-24 (2001).
205 One possible alternative is for the Philippines to accede to a treaty currently open for
accession: the Council of Europe has already come up with a Convention on Cybercrime
(E.T.S. No. 185; Budapest, 23 November 2001). This Convention is the first international
treaty dealing with cybercrime. Although the treaty has not yet entered into force (entry
into force requires five ratifications, and to date there have only been two), the Convention
has been signed by 34 states. It is open even to States which are not members of the
Council of Europe; Canada, Japan, South Africa and the United States have signed the
treaty. The Convention aims to harmonize the domestic criminal substantive law involving
cybercrime, provide for domestic criminal procedural law powers necessary for the
investigation and prosecution of such offenses, and set up a fast and effective regime of
international co-operation. The Convention contains four chapters: (I) Use of terms;
(II) Measures to be taken at domestic level - substantive law and procedural law;
(III) International co-operation; (IV) Final clauses. See note 5, infra.
VIII. SUMMARY AND CONCLUSION
Cybercrime has evolved as a new species of crime that defies

existing law and legal mechanisms. The ILOVEYOU virus incident
was a concrete example of how technology had outpaced Philippine
law and international law. In order for the Philippines to avoid
such incidents in the future, the Philippines must enact a statute
that adequately defines all forms of cybercrimes. However, the
enactment of a law is not enough. In order to make this substantive
law effective, Rules on Electronic Evidence applicable to criminal
proceedings must also be adopted. Furthermore, in order to protect
its interests with respect to cybercrime originating abroad, as well
as to fulfill international obligations to suppress cybercrime locally,
the Philippines should consider entering into multilateral treaties
with other States to combat cybercrime.
!"
THE DOUBLE HELIX IN CHAMBERS:
FORENSIC DNA EVIDENCE IN CRIMINAL
INVESTIGATION AND PROSECUTION
By Jose Maria A. Ochave*
Eventually, as the appropriate case comes, courts should not hesitate to

rule on the admissibility of DNA evidence. For it was said that courts
should apply the results of science when competently obtained in aid of
situations presented since to reject said result is to deny progress.
- Quisumbing, J. in Tijing, et al. v. Court of Appeals1
It was an obiter dictum in a fairly simple case that took only

nine pages to decide.2 But it is perhaps one of the most significant
* B.S. Chemical Engineering and LL.B., University of the Philippines; LL.M., University
of Michigan at Ann Arbor.
1 G.R. No. 125901, promulgated March 8, 2001, at 8.
2 The Tijing Court reviewed the decision of the Court of Appeals in a habeas corpus
case initiated by the Spouses Edgardo and Bienvenida Tijing against private respondent
Angelita Diamante for the recovery of their son Edgardo, Jr. The Supreme Court ruled in
favor of the petitioners on several grounds, but primarily on the strength of testimonial
evidence proving that private respondent could not have possibly sired the child because
she had previously undergone ligation and her husband was sterile because of an acci-
dent. The court also took note of the strong similarities in the physical features of Bienvenida
and Edgardo, Jr. and the unusual circumstances surrounding the delayed filing of the
alleged birth certificate of the child by the private respondent. The facts on which the
decision was anchored were plain and unequivocal. Hence, the significance of the case is
more for its obiter dictum, the full text of which is as follows:
Parentage will still be resolved using conventional methods unless we adopt the
modern and scientific ways available. Fortunately, we now have the facility and
expertise in using DNA test for identification and parentage testing. The Univer-
sity of the Philippines Natural Science Research Institute (UP-NSRI) DNA Analy-
sis Laboratory has now the capability to conduct DNA typing using short tandem
repeat (STR) analysis. The analysis is based on the fact that the DNA of a child/
person has two (2) copies, one copy from the mother and the other from the father.
The DNA from the mother, the alleged father and child are analyzed to establish
parentage. Of course, being a novel scientific technique, the DNA test as evidence
is still open to challenge. Eventually, as the appropriate case comes, courts should
not hesitate to rule on the admissibility of DNA evidence. For it was said that
courts should apply the results of science when competently obtained in aid of
situations presented since to reject said result is to deny progress. Though it is
not necessary in this case to resort to DNA testing, in the future it would be useful
to all concerned in the prompt resolution of parentage and identity issues.
87
obiter dicta in Philippine legal history. In Tijing, the Supreme Court

expressed its willingness to open the judicial door to modern
biology; it was only waiting for the appropriate case to come
along.
The wait did not take long. On May 9, 2002, the door swung
open. Curiously, it was not a straightforward case of filiation that
ushered the use of new modern biology in the court.3 In People v.
Vallejo4 , the court en banc found the accused guilty of rape with
homicide and affirmed the decision of the trial court imposing
upon him the penalty of death. It was also the first time that the
Supreme Court admitted and relied upon DNA evidence. The
National Bureau of Investigation took buccal swabs and hair
samples from the accused and vaginal swabs from the victim during
her autopsy. The NBI forensic chemist found that the vaginal swabs
from the victim contained the DNA profiles of both accused and
victim. The court admitted the DNA evidence as corroborative
evidence, which together with the other evidence, pointed to the
guilt of the accused. Vallejo was a quantum leap from Tijing. Not
only was forensic DNA evidence admitted, but it was used to
decide a criminal case where, as the following discussion will show,
its use is more susceptible to legal challenge.
This paper is an introduction to the legal issues surrounding

the forensic use of DNA evidence in criminal cases. It is divided
into three parts. The first part explains what DNA is and why it is
useful in criminal investigation and prosecution. Part 2 discusses
the different types of DNA tests and identifies their respective
uses and limitations. The final part raises and addresses major
legal issues in the use of DNA evidence. It also discusses problems
3 There is a bit of irony here. DNA evidence, which has served to acquit many death
penalty inmates in other jurisdictions, has in its first use in the Philippines resulted in the
affirmation of a death penalty sentence.
4 G.R. No. 144656, promulgated on 9 May 2002 [hereafter Vallejo.].
2003] THE DOUBLE HELIX IN CHAMBERS: FORENSIC DNA EVIDENCE 89
IN CRIMINAL INVESTIGATION AND PROSECUTION
in post-conviction DNA testing, although no solutions are offered

as they are best addressed in another paper. The article concludes
with an optimistic, although cautionary, note on the use of DNA
evidence in the criminal courtroom.
I. WHAT IS DNA?
DNA, or deoxyribonucleic acid, is a long molecule found in

all living cells. It is made up of two strands twisted around each
other in a helical staircase and contains information coding for
cellular structure, organization and function.5 It may be found either
in the nucleus or mitochondria of the human cell.
The DNA in the human nucleus is unique (except in the case

of identical twins and bone marrow transplant recipients) because
it is the product of sexual reproduction and thus is the resulting
combination of half of the DNA of a persons mother and half of
his fathers. It is also identical throughout a persons body, whether
it is found in his blood, saliva, skin cells, bone and even hair roots.
Every cell in the human body is the result of cellular division, thus
every cell contains the same set of DNA as the original cell. The
DNA is likewise stable. It does not change over time so samples
that were collected years ago may be used to compare with samples
that were obtained only recently.6 Because of these properties,
nuclear DNA has become a useful identifier of persons.
The other type of DNA, mitochondrial DNA, is equally

useful in identifying persons. It is, however, different from nuclear
5 U.S. Department of Energy Human Genome Program, Genomics and Its Impact on
Medicine and Society: A 2001 Primer, US Department of Energy Online; available at
http://www.ornl.gov, accessed on 25 June 2002.
6 National Commission on the Future of DNA Evidence, National Institute of Justice,
U.S. Department of Justice, POSTCONVICTION DNA TESTING: RECOMMENDATIONS FOR HAN-
DLING REQUESTS (1999), at 21 [hereafter 1999 NIJ Report].
DNA as it passes from mother to child unchanged by sexual

reproduction.7 Hence, the DNA in the mitochondria of our cells
all come from our respective mothers, with no contribution from
our fathers. Our mitochondrial DNA and those of our siblings are
identical, having all come from our mother.
In comparing human DNA molecules for forensic purposes,

one need not analyze the entire DNA molecule. About 99.9% of the
DNA is common to all people. Hence, comparison is limited to the
0.1% of the human DNA that is sufficiently variable to be unique
to each individual.8 This variable DNA, also called the non-
coding or junk DNA, plays no direct role in the development
of our characteristics, but the entire framework for using DNA as
an identification tool relies upon them. In essence, the various
types of DNA tests compare the small set of features of non-coding
DNA called DNA profiles, which can be represented as an
ordered series of numbers thus allowing for automated analyses.
There are several profiling kits now available commercially. Profiler
Plus, for example, is used in Australian forensic laboratories. It
analyzes nine points in the human DNA where short sequences of
proteins are repeated a variable number of times.9 The Federal
Bureau of Investigation has chosen a profiling kit which has 13
specific loci to serve as standard for its DNA database. The DNA
7 Gans, Jeremy and Gregor Urbas. DNA Identification in the Criminal Justice System
in TRENDS AND ISSUES IN CRIME AND CRIMINAL JUSTICE (Canberra: Australian Institute of
Criminology), May 2002, at 1-2 [hereafter Gans]. The Tijing Court was imprecise when it
failed to specify nuclear DNA when it explained that the DNA of a child/person has two
(2) copies, one copy from the mother and the other from the father. As discussed above,
the mitochondrial DNA only comes from the mother. A fascinating account of how
mitochondrial DNA has been used to trace the ancestry of 95% of the current European
population to only seven women can be found in Sykes, Bryan. THE SEVEN DAUGHTERS
OF EVE (London: Corgi Books), 2001.
8 De Foore, David. Postconviction DNA Testing: A Cry for Justice from the Wrongly
Convicted, 33 TEX. L. REV. 491 (2002), at 494.
9 Gans, supra 8, at 2.
Analysis Laboratory at the U.P. National Sciences Research Institute

(UP-NSRI) uses seven such markers for paternity testing.10
II. TYPES OF DNA TESTS
When a crime is committed, evidence sample is collected

by the crime scene investigators from the body of the victim for
traces of DNA coming from the suspect. The evidence sample is
then matched with a reference sample taken from the suspect and
the victim11 or found in a criminal database. The purpose of the
DNA test is to determine the existence of an association, or a match,
between the evidence sample and the reference sample.12
There are several types of DNA tests available, but all follow
the same basic steps:
The general procedures include: (1) the isolation of

the DNA from an evidence sample containing DNA of
unknown origin and, generally at a later time, the
isolation of DNA from a sample (e.g., blood) from a
known individual; (2) the processing of the DNA so
that test results may be obtained; (3) the determination
of the DNA test results (or types), from a specific
region of the DNA; and (4) the comparison and
interpretation of the test results from the unknown
and known samples to determine whether the known
individual is excluded as (is not) the source of the
DNA or is included as a possible source of the DNA.13
10 De Ungria, Maria Corazon, et al. The Philippine Genetic Database of Short Tandem
Repeats (STR) in DNA-based Paternity Testing, 131 PHIL. J. OF SCIENCE 1 (2002).
11 Vallejo, supra note 5, at 17.
12 Id., at 18, citing Inman, Keith and Norah Rudin, AN INTRODUCTION TO FORENSIC DNA
ANALYSIS (1997).
13 1999 NIJ Report, supra note 7, at 21.
The type of DNA test used is important lest accuracy and

reliability be compromised. The original forensic applications of
DNA analysis used a technology called Restriction Fragment Length
Polymorphism (RFLP) developed by Sir Alec Jeffreys and first
reported in 1985. It uses a special class of enzymes called
restriction enzymes to cut human DNA into smaller fragments
which are then visualized as banding patterns unique to each
individual.14 However, this type of test requires a large quantity
of DNA and the samples must not have been degraded by
environmental factors such as dirt or mold.15
A number of other tests have been developed since then.

These newer DNA analysis techniques enable laboratories to
develop biological evidence that are so minute as to be invisible
to the naked eye, such as skin cells left on objects that an individual
has touched.16
Using the Polymerase Chain Reaction (PCR) technique, a

laboratory can replicate exact copies of the DNA contained in a
biological sample without affecting the original sample. Unlike
RFLP analysis which requires biological samples the size of the
Philippine peso, PCR can be used to reproduce millions of the
DNA contained in a few skin cells. And because PCR requires
only a minute quantity of the sample, it can also be used by
laboratories to analyze highly degraded biological evidence for
14 De Ungria, Maria Corazon A., Forensic DNA Analysis in Criminal and Civil Cases
(manuscript) [hereafter De Ungria Manuscript].
15 National Commission on the Future of DNA Evidence, National Institute of Justice,
U.S. Department of Justice, USING DNA TO SOLVE COLD CASES: A SPECIAL REPORT (2002),
at 5 [hereafter 2002 NIJ Report]. RFLP, however, continues to be useful in paternity testing
where the quantity and quality of the biological samples are not a problem. It has been
widely used and accepted in U.S. courts with about 300 appellate rulings on it as of 1999.
1999 NIJ Report, supra note 7, at 26.
the DNA they contain.17 PCR testing was first applied in a criminal
case in the United States in 1986. Since then it has become one of
the most widely used techniques in crime laboratories around the
world.
One of the most common PCR-based technique is the Short

Tandem Repeat (STR) technology. It evaluates specific regions in
the DNA. The variable nature of the STR regions (usually the non-
coding regions) that are analyzed for forensic testing enables the
laboratory to differentiate one DNA profile from another. For
example, the likelihood that any two individuals, except identical
twins and bone marrow transplant recipients, will have the same
13-loci DNA profile could be as high as 1 in a billion or even
greater.18 In the Philippines, PCR-based STR technology is used
by the DNA laboratories of the National Bureau of Investigation,
St. Lukes Medical Center and UP-NSRI in routine DNA testing.
These institutions prefer it over other methods due the extensive
genetic variability of STR markers, [its] high success rate in
generating DNA profiles with small quantities of DNA, the
availability of standard kits and protocols and the relative ease in
DNA analysis.19
Old remains and biological evidence which lack nucleated

cells such as hair shafts, bones and teeth or those which have been
so degraded are not amenable to either RFLP or PCR testing. They
may, however, yield results using Mitochondrial DNA (mtDNA)
analysis. This method uses the DNA found in the mitochondria
instead of those in the nucleus. It is particularly useful in missing-
persons or unidentified-remains investigations where there is a
17 Id., at 6. However, because PCR technique is highly sensitive, care must be taken so as
not to contaminate the evidence sample as any contaminating DNA will likewise be
replicated. Contamination issue are therefore relevant in PCR but not as much in RFLP. Id.
18 Id.
19 De Ungria Manuscript, supra note 15, at 2.
maternal relative present who can provide the reference sample.

As explained earlier, mitochondrial DNA is passed on solely from
mother to child. Hence, all maternal relatives of a person (e.g., the
mother or maternal grandmother of a person) have identical
mitochondrial DNA and this fact is used in the identification
process.20
One of the most recent types of DNA testing is the Y-

chromosome analysis. Genetic markers have now been identified
on the Y chromosome thus making it possible to target only the
male fraction of a biological sample. This technique is valuable in
cases where there are multiple male contributors in a biological
evidence sample. Y-chromosome testing may eventually eliminate
the need for laboratories to extract and separate semen and vagina
cells from, say vaginal swabs, prior to analysis.21
DNA tests may yield three possible results:22
1. Inclusion This happens when the results from the

reference sample from a known individual are all consistent with
or are all present in the results from the unknown evidence sample.
The analyst then proceeds to determine the statistical significance
of the similarity. This is done with reference to a population
database that can help provide statistical frequencies regarding
the rarity of a particular set of genetic information observed in the
evidence sample and for a known individual in various population
groups. 23 False positives (i.e., a falsely accused individual is
identified as a source of the evidence sample) can happen,
particularly if the test system used tests at only one or a few loci of
the DNA.

21 Id.
2. Exclusion The samples are different and therefore must

have originated from different sources. This happens when the
results obtained from the reference sample are not all present in
the results from the evidence sample.24 The Vallejo Court noted
that a conclusion of exclusion is absolute and requires no further
analysis or discussion.25
3. Inconclusive Results are interpreted to be inconclusive

when, based on the DNA test, it is not possible to be sure whether
the evidence and reference samples have similar DNA types. This
may be due to several reasons like degradation or contamination
of the samples, limited amount of suitable evidence sample, or
where evidence sample may have been adequate in quantity and
quality but there are no available reference samples for comparison.
The analysis will then have to be repeated, in its entirety or portions
thereof, using the same or different samples.
In the United States, where DNA evidence is used most

extensively, as of June 26, 2003, 131 persons have been exonerated
by the use of DNA tests.26 However, it is important to note that
DNA-testing is a two-edged sword, it can also confirm the guilt of
the accused, the Vallejo case being a good example.
24 Id., at 29.
26 The Innocence Project, available at www.innocenceproject.org, accessed on 27 June
2003. The most well-known initiative in the use of DNA tests to exonerate unjustly
convicted persons is the Innocence Project. It was founded by Barry Scheck and Peter
Neufeld and operates out of the Benjamin N. Cardozo School of Law at Yeshiva University
in New York City. Law school students do most of the legal work under the supervision of
their professors. The irony is that Scheck and Neufeld, both defense lawyers, started as
anti-DNA test lawyers, insisting that DNA evidence was not reliable and should therefore
not be allowed in court. Now, they champion the reliability of DNA fingerprinting
evidence, using it to exonerate people who have been falsely convicted. Fridell, Ron.
DNA FINGERPRINTING: THE ULTIMATE IDENTITY (New York: Franklin Watts), 2001, at 57.
III. LEGAL AND POLICY ISSUES
A. In the Use of DNA Evidence in Criminal Prosecution
In Vallejo, the Court outlined the standards that should be

applied in determining the admissibility and probative value of
DNA evidence:
In assessing the probative value of DNA evidence,

therefore, courts should consider, among other things,
the following data: how the samples were collected,
how they were handled, the possibility of
contamination of the samples, the procedure followed
in analyzing the samples, whether the proper
standards and procedures were followed in conducting
the tests, and the qualification of the analyst who
conducted the test.27
The reliability of forensic DNA evidence relies heavily on

the proper collection and handling of biological samples from the
crime scene. Improper handling, storage and preservation resulting
in contamination can render the biological samples inutile. The
common sources of false positive reactions are contaminations from
human handlers, such as bystanders at the crime scene,
investigators, medico-legal examiners, forensic analysts, evidence
custodian and even lawyers. This is why the Vallejo court
emphasized the need to establish the chain of custody of the
biological sample. Meticulous documentation is required if proper
chain of custody is to be established. The documentation should
list the identities and extent of handling of all personnel who had
access to the biological sample, from the crime scene to the court.28

28 De Ungria Manuscript, supra note 15, at 7. It should be noted, however, that false
positive reactions do not occur because of non-human sources of contamination like
animals, bacteria, soil, plant and water. Id.
In a filiation trial, it is easy to establish the chain of custody,

especially if biological samples were taken from the parties at the
DNA laboratory itself. Alas, the same cannot be said yet of samples
taken from crime scenes in the Philippines. Unless investigators
and similar personnel are aggressively trained on the proper
collection and handling of biological samples and adequately
incented to comply with chain-of-custody standards, the use of
DNA evidence in Philippine criminal investigation will be severely
limited.29
The Vallejo court also emphasized the need for proper

standards and procedures in conducting the DNA tests and the
qualification of the analysts. Although current DNA laboratories in
the country continue to upgrade their test standards and procedures
to conform with those of the more established laboratories abroad,
there is as yet no laboratory or analyst certification program in
place. Hence, the trial courts will have to be more discerning in
evaluating the qualifications and competence of DNA laboratories
and analysts.
Before DNA evidence became widely accepted in U.S. courts,

it had to hurdle a number of legal issues. It is reasonable to expect
the same issues to be raised as the use of DNA evidence tries to
establish a foothold in Philippine courts. The most significant issues
raised relate to unreasonable search and seizure, equal protection
and self-incrimination.
The most frequently raised argument is that obtaining a

DNA sample and using the genetic information derived from it
constitutes unreasonable search and seizure. In traditional search
29 The absence of biological samples for DNA tests is a problem for inmates that are
currently in Death Row. The UP DNA Analysis Laboratory reports that of the 58 cases,
involving 67 Death Row inmates, that they reviewed in the first quarter of 2002, samples for
only two cases still exist. Id.
and seizure analysis, probable cause is required when the

government wishes to intrude below the surface of the skin or into
an area where there is expectation of privacy. Hence, a warrant is
typically required where bodily intrusion is involved.30 However,
the U.S. Supreme Court admits exceptions to this rule by balancing
the degree of intrusion upon an individuals privacy against the
government interest at stake.31 In Schmerber v. State of California32 ,
the Court held that it was reasonable under the search & seizure
clause to take blood involuntarily from a suspected drunk driver
at the emergency room of a hospital. In Winston v. Lee33 , the Court
categorically declared that blood tests do not constitute an unduly
extensive imposition on an individuals personal privacy and bodily
integrity34 . These two cases have been used in the U.S. to argue
that extracting blood samples from suspects for purposes of DNA
testing does not constitute unreasonable search & seizure.35 There
is reason to expect that a similar analysis may be made in the
Philippines. In an obiter dictum in Guazon v. De Villa36 , the Court
quoted with favor the declaration in Breithaupt v. Abram37 that there
is nothing brutal or offensive in the taking of a sample of blood
when done, as in this case, under the protective eye of a physician
30 Rothstein, Mark A. and Sandra Carnahan, Legal and Policy Issues in Expanding the
Scope of Law Enforcement DNA Data Banks, 67 BROOKLYN L.R. 127 (2001), at 135 [hereaf-
ter Rothstein].
31 Id., at 138.
32 384 U.S. 757 (1966).
33 470 U.S. 753 (1985).
34 Id.
35 Rothstein, supra note 31, at 141. (Rothstein and Carnahan, however, are critical of
these decisions. They particularly deride one state court which found, without analysis,
that only minimal bodily intrusion was required where a DNA saliva sample was obtained
by rubbing the inside of the cheeks with a sponge on a toothbrush-like handle for approxi-
mately fifteen seconds.).
36 181 SCRA 623 (1990) (prohibition with injunction to prohibit police from conducting
saturation drives in Metro Manila) [hereafter Guazon Case].
37 352 U.S. 432 (1957).
... [T]he absence of conscious consent, without more, does not

necessarily render the taking a violation of a constitutional right.38
The right of the individual to be protected from such an invasion
of his body is considered as far outweighed by the value of its
deterrent effect on the evil sought to be avoided by the police
action.39
In the U.S., state laws require that DNA samples be taken

only from certain classes of offenders, such as those convicted of
sex crimes and murder. A number of defendants have argued that
this violates the constitutional precept that no state shall deny any
person within its jurisdiction the equal protection of the laws. State
courts have held that since the classification of sex offender or
murderer is based on the nature of the offense and not on a
suspect class like race, these challenges to DNA statutes should be
reviewed using the rational basis test. Under this test, the statute
is presumed valid if the classification is rationally related to a
legitimate interest. The courts have invariably found a rational
relationship between the governments classification of certain
offenders and its objective to investigate and prosecute similar
classes of unsolved and future crimes. Hence, unequal protection
challenges have consistently been rejected.40 Given the prohibitive
cost of DNA tests and the limited resources of the Philippine
government, it is reasonable to expect that the initial mandatory
DNA tests will be required only of certain serious offenses and the
equal protection argument will be raised. It remains to be seen if
the Supreme Court would arrive at the same conclusion as U.S.
state courts.
Finally, it is argued that obtaining DNA samples from

suspects is a violation of the constitutional right against self-
38 Guazon Case, supra note 37, at 634.

39 Id.
40 Rothstein, supra note at 146-147.
incrimination, or the right of the accused not to testify against

himself or to provide the State with testimonial evidence or
evidence of a communicative nature. Since U.S. jurisprudence is
replete with cases holding that the privilege against self-
incrimination does not protect the accused against compulsion to
produce blood or urine, state courts have consistently held that
the DNA contained in ones blood or saliva is non-testimonial, and
thus the privilege against self-incrimination is not violated. In the
Philippine, one will unavoidably have to contend with the
constitutional prohibition against compelling a person to be a
witness against himself.41
B. In Post-Conviction DNA Testing
The DNA Forensic Laboratory bewails its inability to gain

access to biological samples in the only two of the 58 cases Death
Row cases that it reviewed where such samples are still available.42
The absence of any statute or judicial guidelines for DNA testing
after a case had become final and executory has stymied efforts to
use DNA evidence to ensure that no person is imposed the death
penalty for a crime he never committed. There is no statute,
jurisprudence or provision in the Rules of Court expressly allowing
a convicted person access to biological evidence after his case has
been affirmed with finality by the Supreme Court.
There are a number of reasons behind the reluctance of courts

to reopen a case after a decision has become final and executory.
Among these are:
1. The strong presumption that the verdict is

correct because the accused was found guilty by
41 1987 Constitution, Art. III, Sec. 17.

42 De Ungria Manuscript, supra note 15, at 10.
an impartial judge after a trial with full

constitutional protections;
2. The need for finality;
3. The recognition that the likelihood of more accurate

determinations of guilt or innocence diminishes
over time as memories fade, witnesses disappear,
and the opportunity for perjury increases; and
4. The need to conserve judicial resources by not

opening the floodgates to meritless and costly
claims.43
However, with DNA evidence, the first and third reasons

lose their appeal. The number of vacated convictions after DNA
tests were introduced in the U.S. weakens the argument that existing
constitutional protections are sufficient. Likewise, DNA evidence,
unlike memory, does not weaken over time; thus, severely
weakening the third reason as well. As to the second and fourth
reasons, they will have to be balanced with the desire of the court
to perform its truth-seeking function.
In any case, it may be worth looking again at U.S. practice

for a glimpse of some of the issues that any statute or guidelines
on post-conviction DNA testing may have to grapple with. These
are summarized below:44
1. Is there a constitutional right to DNA testing? In

Brady v. Maryland,45 the U.S. Supreme Court held that a defendant
has a constitutional right at or before trial to be informed of
43 1999 NIJ report, supra note 7, at 9.

44 See 1999 NIJ Report, supra note 7.
45 373 U.S. 83 (1963).
exculpatory evidence in the hands of the State. Art. III, Sec. 14(2) of
the Philippine Constitution arguably provides a similar right when
it declares that in all criminal prosecutions, the accused shall
enjoy the right... to have compulsory process to secure the
attendance of witnesses and the production of evidence in his
behalf.
In Arizona v. Youngblood,46 the petitioner argued that his

conviction should be overturned because the State before trial had
destroyed rectal swabs containing sperm which could have
demonstrated his innocence if subjected to serological testing. The
Court refused to vacate the conviction without proof that the swabs
were destroyed in bad faith, but failed to rule on whether petitioner
would be entitled to testing if the swabs now existed. However,
there are some state court decisions holding that DNA testing is
such a potentially powerful tool to demonstrate innocence that
procedural bars should give way. For example, in State v. Thomas,47
the court declared thus:
Under these circumstances, consideration of

fundamental fairness demands that the [DNA] testing
of this now 7-year-old rape kit material be done now
.... Our system fails every time an innocent person is
convicted, no matter how meticulously the procedural
requirements governing criminal trials are followed.
That failure is even more tragic when an innocent
person is sentence to a prison term.... We regard it as
... important to rectify that failure .... There is a
possibility, if not probability, that DNA testing now
can put to rest the question of defendants guilt.... We
would rather [permit the testing] than sit by while a
46 488 U.S. 51 (1988).

47 586 A.2d 250 (1991).
[possibly] innocent man...languishes in prison while

the true offender stalks his next victim.48 (emphasis
supplied)
2. What kind of showing must the petitioner make to be

afforded access to DNA testing? In New York, the newly discovered
evidence must be of such a character as to create a probability
that had such evidence been received at trial the verdict would
have been more favorable to the defendant. Other States require
that the newly-discovered evidence should provide conclusive
proof that there would have been a different verdict.49 The
Philippine Revised Rules of Criminal Procedure allows new trial
if there is new and material evidence [that] has been discovered
which the accused could not with reasonable diligence have
discovered and produced at the trial and which if introduced and
admitted would probably change the judgment.50 However, the
current problem faced by DNA evidence advocates is how to show
that the DNA from the biological samples would probably change
the judgment if the petitioner cannot even have access to the
relevant biological samples.51
3. Is an indigent petitioner entitled to have the Government

pay for post-conviction DNA Testing? DNA testing is expensive and
beyond the reach of indigent petitioners. In Little v. Streater,52 the
U.S. Supreme Court held that an indigent inmate who was being
sued in a paternity action had a right, under the due process and
equal protection clauses, to funding for blood grouping tests
because [un]like other evidence that may be susceptible to varying
48 Id., at 253-254, cited in 1999 NIJ Report, supra note 7, at 12.

50 Rule 121, Sec. 2(b).
51 In some instances, biological samples cannot be located, not stored, and the slides
used to contain them were washed for re-used. De Ungria Manuscript, supra note 15, at 12.
52 452 U.S. 1 (1981).
interpretation or disparagement, blood test results, if obtained

under proper conditions by qualified experts, are difficult to
refute. 53 This case is significant because it recognizes: (i) the
constitutional importance of a technological advance that can alter
fact determinations; and (ii) the right of an indigent inmate to avail
himself of the benefits of such a technological advance. However,
even in the U.S., the application of this decision to post-conviction
cases for DNA testing is still difficult since it goes against the
interest of the State to preserve the finality of judgments.54 The
same difficulty may be faced by any post-conviction applicant in
the Philippines.
IV. CONCLUSION
With Tijing, and later Vallejo, the Supreme Court has opened
the door wide open to the use of DNA evidence in court. However,
as the foregoing discussion shows, its wider application in criminal
cases is still saddled with legal, administrative and policy issues
that still have to be addressed, perhaps in a statute or in guidelines
that the Court itself will have to issue. One thing is clear, however,
the court has come of age and recognized the immense potential of
science, particularly modern biology, in helping it perform its truth-
seeking function a truly welcome development, albeit one that
we should approach with caution lest junk science finds its way
into the courtroom.
!"
53 Id., at 14.
54 1999 NIJ Report, supra note 7, at 18-19.
THE RIGHT OF LEGAL REDEMPTION
OF THE BORROWER UNDER THE SPECIAL
PURPOSE VEHICLE (SPV) ACT OF 2002
By Arturo M. De Castro*
The Special Purpose Vehicle (SPV) Act of 2002 (Republic

Act 9182) seeks to implement the declared policies of the State,
inter alia, to encourage private sector investments in non-
performing assets, to help in the rehabilitation of distressed
businesses and to improve the liquidity of the financial system
which can be harnessed to proper economic growth.1
To enhance these policies, the SPVs established under this

law which acquire or invest in non-performing assets are granted
tax exemptions and fee privileges. The transfer of non-performing
assets from the financial institution to an SPV, and from the SPV to
a third party or dacion en pago by the borrower or by a third party
in favor of a Financial Institution or in favor of an SPV is exempt
from (i) documentary stamp tax, (ii) capital gains tax on transfer of
lands and other assets treated as capital assets, (iii) creditable
withholding income tax imposed on the transfer of land and or
building treated as ordinary asset, and (iv) value added tax, and is
subject only to 50% of the applicable mortgage registration and
transfer fees, 50% of the filing fees for any foreclosure initiated by
the SPV in relation to any Non-Performing Asset acquired from a
Financial Institution, and 50% of the land registration fees.2
* A.B., LL.B., University of the Philippines; LL.M., SJD, University of Michigan;

Professorial Lecturer, UP College of Law (1981-1982), Ateneo de Manila School of Law
(1997 up to the present) teaching Corporate Suspension of Payments, Rehabilitation and
Insolvency Proceedings; Makatibased Private Law Practitioner.
1 Section 2, R.A. 9182.
2 Section 15, R.A. 9182.
105
This article will focus on the specific issue whether the

Borrower has the right of first refusal or pre-emption or legal right
of redemption with respect to transactions between the SPV and
the Financial Institution (FI) involving the collaterals of the Borrower.
It is useful both to the SPVs and third party investors in the

Non-Performing Assets (NPAs) and the Borrowers to clarify their
respective rights and obligations in respect of the transactions
envisioned under the SPV Act. On the part of the SPV and the
third party investors in the Non-Performing Assets, it may not be
attractive to buy or acquire non-performing assets or credit under
pending litigation with the Borrower if the latter has the legal right
of redemption that may be exercised by paying the transfer price
plus the cost of money from the sale up to the time of redemption.
On the part of the Borrowers, it is better if they are aware of their
legal and equitable right of redemption to enable them to protect
their interest by seasonable exercise of such legal or equitable right.
Under Republic Act No. 9182, and The Implementing Rules

and Regulations of the Special Purpose Vehicle (SPV) Act of 2002,
which became effective on April 9, 2003, Financial Institutions (FIs)
with Non-Performing Loans (NPLs) whose principal and/or interest
has remained unpaid for at least 180 days after it has become past
due, or any event of default under the loan agreement has occurred,
may opt to transfer the NPLs to an SPV. Before the transfer may
take effect, the FI is required to give prior written notice to the
Borrowers of the NPLs and all persons holding prior encumbrances
upon the assets mortgaged or pledged, granting the Borrowers a
period of not more than 90 days from notice to restructure or
renegotiate the loan under such terms and conditions as may be
agreed upon by the Borrower and the FIs concerned.3 After the
sale or transfer of the NPLs, the transferring FI shall inform the
3 Section 12 (a), R.A. 9182.

2003] THE RIGHT OF LEGAL REDEMPTION OF THE BORROWER 107
UNDER THE SPECIAL PURPOSE VEHICLE (SPV) ACT OF 2002
borrower in writing at the last known address of the fact of the sale
or transfer of the NPLs.4
No Right of First Refusal
The law does not give the Borrower the right of first refusal.
The required notice gives the Borrower only the right to restructure
or re-negotiate the loan as may be mutually agreed upon with the
FI concerned. After the lapse of the period in the notice without
any mutual agreement reached for the restructuring or settlement,
the FI may sell or transfer the NPLs to an SPV without having to
re-offer the terms of the sale or transfer to the SPV even when these
terms agreed with the SPV are better than the terms previously
offered to the Borrower.
The Legal Right of Redemption
The SPV Act of 2002 requires that the transferring FI shall

inform the Borrower in writing at the last known address of the
fact of the sale or the transfer of the NPLs.5 This is necessary for
the effective substitution of creditor. Under the SPV Law, the SPV
assumes all the rights and obligations of the transferring FI.6
Has the Borrower the legal right of redemption?
It is humbly submitted that the Borrower has the right of

legal redemption by paying the SPV the transfer price plus the
cost of money up to the time of redemption (interest on the transfer
price) and the judicial costs in case of sale or transfer of NPLs
4 Section 12 , R.A. 9182.

5 Ibid.
6 Section 14, R.A. 9182.
under litigation, which may be exercised within 30 days from the

date the SPV demands payment from the Borrower, for the
following indubitable reasons:
1) The Civil Code provides for the legal right of

redemption in case of sale or transfer of credit or other
incorporeal right under litigation, as follows:
Art. 1634. When a credit or other incorporeal

right in litigation is sold, the debtor shall have
a right to extinguish it by reimbursing the
assignee for the price the latter paid therefor,
the judicial costs incurred by him, and the
interest on the price from the day on which the
same was paid.
A credit or other incorporeal right shall be

considered in litigation from the time the
complaint concerning the same is answered.
The debtor may exercise his right within

thirty days from the date the assignee demands
payment from him (1535).
2) The SPV Act of 2002 does not specifically

provide for the legal right of redemption, which may
mislead people to believe that such right of legal
redemption is not granted to the Borrower. But neither
does the law preclude such right of the Borrower.
3) The general provision of Art. 1634 of the

Civil Code on sale of credit or other incorporeal right
under litigation is applicable to the transactions under
the SPV Act of 2002, although the latter is a special
law, because the SPV Act itself specifically provides
2003] THE RIGHT OF LEGAL REDEMPTION OF THE BORROWER 109
UNDER THE SPECIAL PURPOSE VEHICLE (SPV) ACT OF 2002
that in the transfer of the NPLs, the provisions on
assignment of credits under the New Civil Code shall
apply.7
The language of Art. 1634 of the Civil Code requires that the
transaction must be an assignment or sale of a credit in litigation
and there must be a pending suit at the moment of the sale or
transfer wherein the complaint had been filed and already answered
prior to the sale of the credit.
I believe that the above requirements are open to

constitutional challenge for being discriminatory to Borrowers
whose credit is not yet the subject of litigation. I do not see any
substantial distinctions to justify a drastically different treatment
between NPLs not yet in litigation and NPLs under litigation with
the answer to the complaint already filed at the time of transfer or
sale to the SPV.
To enforce the artificial requirement granting the legal right

of redemption only to borrowers whose credit is under litigation
would encourage the rush of litigation by Borrower solely to qualify
for the legal right of redemption. This is against the public policy
against unnecessary lawsuits. Besides, this artificial distinction
would frustrate the philosophy and equitable rationale behind the
legal right of redemption to prevent unjust enrichment on the part
of the assignee or Buyer of the credit and to protect the Borrower
by allowing him to pay only the amount which the creditor is
willing to accept for the credit in order to promote the policy of
the law to help in the rehabilitation of distressed businesses.
7 Section 13, R.A. 9182.

CONCLUSION
The Borrower of NPLs and all persons holding prior

encumbrances upon the assets mortgaged or pledged have the
legal right of redemption with respect to the NPLs transferred by
the FI to an SPV under the Special Purpose Vehicle (SPV) Act. This
legal right of redemption may be exercised by paying the transfer
price plus the cost of money up to the date of redemption and the
costs of suit within 30 days from the time the SPV demands payment
from the Borrower.
In order to avoid collusion between the FI and the SPV, it is

better if the Borrower is involved in the negotiations between the
FI and the SPV on the acquisition of the NPLs. In this way, if a
tripartite agreement is reached, the NPLs are amicably settled
among all the parties.
!"
BOOK REVIEW
REFORMING THE JUDICIARY
A Book Review By Romeo J. Callejo, Sr.*
Reform. Does the term not suggest that something is the

matter, or worse, that things are really bad? This was the reason
that for some time, there were misgivings about naming the project
judicial reform. Institutions after all are loathe to admit that
they are in need of reform. But when one of the leading members
of the High Court of the land itself, boldly entitles his latest book
Reforming the Judiciary, then reform might not be so bad a name
after all.
One book a year and no cases left undecided. This is Mr.

Justice Artemio V. Panganibans unsurpassed record. It is also the
best summation of judicial reform. Why should a justice of the
Supreme Court endeavor to write one book a year? The author
provides the most convincing answer. In Chapter 4, which is given
the heading Prerequisites for a Successful Reform Program, he
writes: Early on, however, we realized that the key to developing
a sound reform program was the ability to distinguish fact from
perception. Thus, we also conducted perception surveys that
provided an impression of how judges, court personnel and
external stakeholders viewed the gravity of the problems. From
such surveys we likewise gauge the level of public confidence in
the existing judicial system. Accordingly, we were able to ground
the reform program on a realistic assessment of the facts that would
make our project goals more viable and consequently enhance the
public image of the judiciary. Establishing lines of communication
between the courts and their stakeholders, both internal and
* Associate Justice, Supreme Court.
111
external (and who, in this Republic, is not a stakeholder in the

judiciary?) and keeping the lines open this is what this book is
all about. This is the tremendous service it does. Because one
who sits on the Supreme Court itself reaches out to the public and
through its pages gives them a feel of the rhythm of the Courts
heart, the book bridges what would otherwise be a yawning abyss
between Olympus and dwelling-place of citizens.
A good part of the book is given to the Action Program for

Judicial Reform. It is a commitment of which Mr. Justice
Panganiban can rightly be called a founding father. Not only is
he a member of the Committee that oversees the fruition of the
program. He has also been its spokesperson. In his presentation
during the round table discussion on Philippine Judicial Reform
held in Ottawa, Canada, on June 19, 2002, he summarized in ten
points the dimensions of the reform program to which the
Philippine judiciary has dedicated itself. Consistent with the
philosophical tack he has always taken, the author examines the
presuppositions and prerequisites of judicial reform with
characteristic incisiveness.
If in last years book, Mr. Justice Panganiban had a chapter

on E-values for Lawyers, this year he makes the very pointed
and necessary assertion that Good Governance Begins with Ethics.
He identifies four ins: integrity, independence, intelligence and
industry. These, for him, are the constituents of an ethical
disposition, and the beginning of all good governance. While the
Supreme Court has been unrelenting and severe in dealing with
judges misdeeds, it has always preferred a more positive approach:
leading by example, and teaching by precept. This section of Justice
Panganibans book is one such attempt to remind judges what is
expected of them. As importantly, however, it also informs the
public the standards judges go by, for it is important that citizens
realize that judges decisions and orders are crafted not principally
to please, nor to win applause and approval, but to apply the law,
2003] REFORMING THE JUDICIARY 113
and to do justice as the law dictates. As a department chair of

Criminal Law in the Philippine Judicial Academy, I was informed
that once, Mr. Justice Panganiban clearly told the representatives
of agencies that had offered assistance to judicial reform that while
the Supreme Court could only welcome assistance, it would
nevertheless do so discriminatingly, zealously guarding its
independence.
One of Mr. Justice Panganibans earlier books was simply

titled Transparency. He returns to the theme in Chapter 7 of the
present book, and fittingly so, for it is to the passion for transparency
that the authors one-book-a-year commitment may be ascribed.
There can hardly be anything more helpful to the cause of
transparency than keeping the public informed of the workings of
the court, of its achievements, of the challenges that face it and yes,
even of its disappointments. Very interestingly, in this chapter,
Justice Panganiban advances the thesis that transparency insofar as
adjudication is concerned is the key to the acceptability of
judgments by the public. This is a point of utmost importance.
For members of the Bench, ones popular acceptability is not the
crucial criterion. It is rather the result of transparency in the fair
and impartial disposition of cases.
Many of the succeeding chapters are given to important

cases decided by the Supreme Court with the author as ponente.
Particularly interesting to the public will be Justice Panganibans
first-person account of the historic events leading to the assumption
to the Presidency of the Republic by President Gloria Macapagal-
Arroyo. As one reads his account, one cannot but share in the
tension of the hour and realize what a crucial as well as delicate
role the Supreme Court played. No one who has completed the
chapter will be left unconvinced that statesmanship and
patriotism of the highest order characterized the Courts deportment
in that determinative moment of Philippine history.
Justice Panganiban separate concurring opinion on the

constitutionality of the plunder law has clarified the law not only
for the dramatis personae in the plunder case of former President
Estrada which is still sub judice but for all professors and students
of law in the future. Besides sweeping aside the void-for-
vagueness assault on the law, the separate concurring opinion
clarifies the meaning of key terms, uncovers the legislative
intendment, and provides useful doctrinal guides for future judicial
application.
The coconut levy issue was one that called for urgent
resolution and for some time, many faulted the court for tarrying
in its judgment, hardly appreciating the complexity of legal issues
raised. The Court at last ruled, with the author as ponente. The
Court would not be rushed into a categorical characterization of
the funds for that was a matter that called for more reflection.
However, it would neither shirk from its duty of resolving a
pressing controversy. Who was to vote the UCPB shares? The
Court, speaking through Mr. Justice Panganiban, ruled that the
government should be allowed to continue voting the shares, since
these were purchased from funds that were prima facie public in
character. The decision made progress over earlier decisions that
would go no farther than state that they were impressed or
affected with public character. This time, it characterized them
as prima facie public in character. Without second guessing what
the Court might eventually hold on the matter, it is a matter of
judicial tradition that absent very compelling reasons to abandon
this characterization, this will eventually be how matters will be
made to stand.
The Greek word for reform is metanoia but this means not
just changing ones mind. It means, above all, changing ones
heart. Justice Panganiban chose as the opening passage of his
book a quotation from the Gospels exhorting to conversion.
Conversion is the order of the day not because the Court has
2003] REFORMING THE JUDICIARY 115
betrayed the trust the Republic has reposed on it, but because it
dedicates itself to the unrelenting, unhesitating self-examination
and self-scrutiny that will allow it to be worthy of the trust the
public has and ought to have in it, the confidence that has merited
for it accolades not only here (witness the Filipino of the Year
2001 recognition which Justice Panganiban reflects on) but also
abroad. It has set its sights on re-engineering itself, on focusing its
attention and its resources on the goals of independence, credibility,
and competence shoving aside every other adventitious and even
tangential consideration to dwell on the heart of the matter.
Reform and conversion these after all are matters of the heart.
!"
SUBJECT GUIDE AND DIGESTS

SUPREME COURT DECISIONS
(January to March 2002)
Prepared By Tarcisio A. Dio*
Civil Law
Commercial Law
Criminal Law
Labor Law
Land Law
Land Reform Law

Political Law
Remedial Law
Taxation
* Partner, Villareal Rosacia Dio & Patag; A.B., LL.B., University of the
Philippines.
2003] SC DECISIONS - CIVIL LAW 117
CIVIL LAW
PERSONS
CIVIL PERSONALITY
Capacity to Act. A person is not incapacitated to contract

merely because of advanced years or by reason of physical
infirmities - unless such age or infirmities impair his/her mental
faculties as to prevent him/her from properly, intelligently, and
fairly protecting his/her property rights. (Mendezona v. Ozamiz,
G.R. No. 143370, 6 February 2002).
MARRIAGE
Conjugal Partnership Property. Under the Family Code, the

disposition of a conjugal property by the husband as administrator
in appropriate cases requires the written consent of the wife;
otherwise, the disposition is void. Court authorization under Article
124 (The Family Code) is only resorted to in cases where the
spouse who does not give consent is incapacitated. In this case, the
petitioner failed to allege and prove that respondent wife was
incapacitated to give her consent to the contracts. (Jader-Manalo v.
Camaisa, G.R. No. 147978, 23 January 2002).
PATERNITY AND FILIATION
Legitimate Children. (a) Presumption of Legitimacy. Under

the New Civil Code, a child born and conceived during a valid
marriage is presumed to be legitimate. The presumption , however,
is not conclusive and may be overthrown by evidence to the
contrary. (Liyao v. Tanhoti-Liyao, G.R. No. 138961, 7 March 2002).
(b) Impugnation of Legitimacy. [i] The fact that Corazon had

been living separately from her husband at the time petitioner was
conceived and born is of no moment. While physical impossibility
for the husband to have sexual intercourse with his wife is one of
the grounds for impugning the legitimacy of a child, the grounds
for impugning the legitimacy of a child in Article 255 of the New
Civil Code may only be invoked by the husband or, in proper
cases, his heirs under the conditions set forth under Article 262 of
the same code. Impugning the legitimacy of the child is a strictly
personal right of the husband or, in exceptional cases, his heirs for
the simple reason that he is the one directly confronted with the
scandal and ridicule which the infidelity of his wife produces and
he should be the one to decide whether to conceal that infidelity or
expose it in view of the moral and economic interest involved.
Outside of these cases, none can impugn the legitimacy of a child.
Hence, the acts of the undisputed children of Corazon with her
husband in testifying for herein petitioner did not amount to
impugnation of the legitimacy of the latter. There is nothing on
the records to indicate that the husband had already passed away
at the time of the birth of the petitioner or at the time of the initiation
of this proceedings. Notably, the case at bar was initiated by
petitioner himself through his mother, Corazon, and not through
the aforementioned children. It is settled that the legitimacy of the child
can be impugned only in a direct action brought for that purpose, by the
proper parties and within the period limited by law. (id.)
Illegitimate Children. (a) Compulsory Recognition. The

present petition initiated by Corazon, mother and guardian ad litem
of petitioner (then a minor), to compel recognition of petitioner by
respondents (heirs of the late William, allegedly the paramour of
Corazon) as the illegitimate son of the late William - cannot
prosper. A child born within a valid marriage is presumed
legitimate even though the mother may have declared against its
legitimacy or may have been sentenced as an adulteress. Petitioner
cannot be allowed to maintain his present petition and subvert the
clear mandate of the law that only the husband or, in exceptional
circumstances, his heirs, could impugn the legitimacy of a child
born in a valid and subsisting marriage. The child himself
cannot choose his own filiation. If the husband (presumed to be
the father) does not impugn the legitimacy of the child, then the
status of the child is fixed, and the latter cannot choose to be the
child of his mothers alleged paramour. On the other hand, if the
presumption of legitimacy is overthrown, the child cannot elect
the paternity of the husband who successfully defeated the
presumption. (id.)
(b) Period for Filing the Action. Article 285 of the New Civil
Code provides that the action for the recognition may be brought
only during the lifetime of the presumed parent/s, subject to two
(2) exceptions provided therein. One of these exceptions is if the
father or mother died during the minority of the child, in which
case the latter may file the action before the expiration of four
years from the attainment of his majority. The two exceptions
above have been omitted by Articles 172, 173 and 175 of the Family
Code. Under the new law, an action for the recognition of an
illegitimate child must be brought within the lifetime of the alleged
parent. Nonetheless, the Family Code provides the caveat that
rights that have already vested prior to its enactment should not
be prejudiced or impaired. Hence, illegitimate children who were
still minors at the time the Family Code took effect (3 August 1988)
and whose putative parent died during their minority are given
the right to seek recognition for a period of up to four years
from attaining majority age. (Bernabe v. Alejo, G.R. No. 140500,
21 January 2002). The words natural children in Article 285
have been clarified to include minors even if their parents
were disqualified from marrying each other; and spurious
children. (id.)
PARENTAL AUTHORITY
Custody of Child. Temporary Custody. The paramount

criterion is the welfare and well-being of the child in arriving at
the decision as to whom custody of the minor should be given. In
the case at bar, the appellate court did not err in allowing the
father to have temporary custody of her daughter who, pending
the termination of proceedings for guardianship, should not be
wrenched off from her familiar surroundings and thrust into a
strange environment away from the people and places to which
she had apparently formed an attachment. In this case, it appears
that the child was in the custody of her father and paternal
grandparents when the temporary custody issue was raised in
court. (Tonog v. CA, G.R. No. 122906, 7 February 2002).
Special Parental Authority. Under Article 218 of the Family

Code, the following shall have special parental authority over a
minor child while under their supervision, instruction or custody:
(1) the school, its administrators and teachers; or (2) the individual,
entity or institution engaged in child care. This special parental
authority and responsibility applies to all authorized activities,
whether inside or outside the premises of the school, entity or
institution such as field trips, excursions and other affairs of the
pupils and students outside the school premises, whenever
authorized by the school or its teachers. Under Article 219 of the
Family Code, if the person under custody is a minor, those
exercising special parental authority are principally and solidarily
liable for damages caused by the acts or omissions of the
unemancipated minor while under their supervision, instruction,
or custody. In this case, however, petitioner school was not
held liable for death indemnity, moral damages and attorneys
fees as the proximate cause of the accident was not attributable
to the minor in its custody. (St. Marys Academy v. Carpitanos,
G.R. No. 143363, 6 February 2002).
OWNERSHIP
Recovery of Property. (Article 433, New Civil Code). The

true owner must resort to judicial process for the recovery of
property. The term judicial process could mean no less than an
ejectment suit or reinvindicatory action in which the ownership
claims of the contending parties may be properly heard and
adjudicated. (PNB v. CA, G.R. No. 135219, 17 January 2002).
DIFFERENT MODES OF ACQUIRING OWNERSHIP
DONATION
Donation Inter Vivos. The express irrevocability of the

donation in this case is the distinctive standard that identifies that
document as a donation inter vivos. The other provisions therein
which seemingly make the donation mortis causa do not go against
the irrevocable character of the subject donation. The provisions
which state that the donation will only take effect upon the death
of the donor and that there is a prohibition to alienate, encumber,
dispose of or sell the donated property, should be harmonized
with its express irrevocability. Said statements have been construed
only to mean that after the donors death, the donation will take
effect so as to make the donees the absolute owners of the donated
property, free from all liens and encumbrances. Another indication
that the donation is inter vivos is the acceptance clause. Acceptance
is a requirement for donations inter vivos. (Austria-Magat v. CA,
G.R. No. 106755, 1 February 2002).
Revocation of Donation. The act of selling the subject

property to the petitioner herein cannot be considered as a valid
act of revocation of the deed of donation for the reason that an
action to revoke the donation must be filed pursuant to Article 764
of the New Civil Code. The rule that there can be automatic
revocation without a court action does not apply to the case at bar
as there is no provision in the subject deed of donation for
automatic revocation in the event of non-compliance with any of
the conditions set forth therein. (id.)
OBLIGATIONS AND CONTRACTS
OBLIGATIONS
NATURE AND EFFECT
Fortuitous Event. Article 1174 of the New Civil Code states

that no person shall be responsible for a fortuitous event that could
not be foreseen or, though foreseen, was inevitable. (Mindex
Resources Development v. Morillo, G.R. No. 138123, 12 March 2002;
The Philippine American General Insurance Co., Inc.,v. Mgg Marine
Services, G.R. No. 135645, 8 March 2002). To constitute a fortuitous
event, the following elements must concur: [i] the cause of the
unforeseen and unexpected occurrence or of the failure of the debtor
to comply with obligations must be independent of human will;
[ii] it must be impossible to foresee the event that constitutes the
caso fortuito or, if it can be foreseen, it must be impossible to avoid;
[iii] the occurrence must be such as to render it impossible for the
debtor to fulfill obligations in a normal manner; and [iv] the obligor
must be free from any participation in the aggravation of the injury
or loss. (id.)
DIFFERENT KINDS OF OBLIGATIONS
PURE AND CONDITIONAL OBLIGATIONS
Rescission. Article 1191 of the New Civil Code. Among the

issues discussed: (a) Reciprocal Obligations. (b) No Third Persons
Involved. (c) Material Breach. (d) Restoration of the Parties to Status
Quo Ante. (Ong Yong v. Tiu, G.R. No. 144476, 1 February 2002).
OBLIGATIONS WITH A PENAL CLAUSE
Penalty Clause. Reasonableness of penalty charge. (Ligutan

v. CA, G.R. No. 138677, 12 February 2002).
EXTINGUISHMENT OF OBLIGATIONS
Novation. Loan obligation is not extinguished by a

subsequent execution of a mortgage to secure its payment.
(Ligutan v. CA, G.R. No. 138677, 12 February 2002).
CONTRACTS
Voidable Contracts. Under Articles 1330 and 1390 of the

New Civil Code, the following contracts are voidable: (1) Those
where one of the parties is incapable of giving consent to a contract;
(2) Those where the consent is vitiated by mistake, violence,
intimidation, undue influence or fraud. (Katipunan v. Katipunan,
G.R. No. 132415, 30 January 2002).
(a) Undue Influence. It appears in this case that respondent

signed the deed without the remotest idea of what it was and that
undue influence was exerted on him. Said respondent was illiterate
and had a mental age of a six-year old child. The documents he
purportedly signed were all in English and there is no showing
that the said contracts were read and /or explained nor translated
in a language he understood. (id.)
(b) Fraud. Sale of subject house which is not safely habitable.

(Jumalon v. CA, G. R. No. 127767, 30 January 2002).
Void Contracts. (a) An absolutely simulated contract of sale

is void ab initio and transfers no right of ownership. (Cruz v. Bancom
Finance Corporation, G.R. No. 147788, 19 March 2002). (b) Sale of real
property by parties who have not been authorized by the owner to
sell. (AF Realty & Development, Inc. v. Dieselman Freight Services, Co.,
G.R. No. 111448, 16 January 2002).
TRUSTS
Implied Trusts. (a) Mateo and Josue were officers of the

association that was formed by the tenants of a building for the
acquisition of the property, including subject Apartment Unit, of
which the Genguyons had been the tenants for 24 years. The
facts and evidence on record conclusively show that Mateo
surreptitiously purchased the Apartment Unit from the original
owners, and that the Genguyons were not aware of his secret
machinations to acquire the property for himself. Mateo did not
inform the Genguyons of the sale to him. It was Barretto (one of
the original owners) who wrote the Genguyons telling them that
the Apartment Unit had been sold to Mateo and that they had six
(6) months within which to vacate the premises. Mateo abused the
confidence and trust that the Genguyons bestowed on him. Josue,
fully aware of the questionable circumstances attending Mateos
acquisition, in turn purchased the said property from Mateo. The
Genguyons had no inkling that Mateo or Josue were even interested
to buy the Apartment Unit. They trusted Mateo and then Josue to
negotiate, among others, for the acquisition of the Apartment Unit
in behalf of the Genguyons. They never suspected that Mateo and
Josue would appropriate for themselves the Apartment Unit. When
sued by the Genguyons, Josue denied that a constructive trust was
created as he did not commit any fraud. Held: Constructive trusts
do not only arise out of fraud or duress, but also from abuse of
confidence, in order to satisfy the demands of justice. Mateo and
Josue are barred from acquiring for their own benefit the Apartment
Unit. They have to respect the preferential right of the Genguyons
over the Apartment Unit. (Arlegui v. CA, G.R. No. 126437,
6 March 2002).
(b) When the Genguyons filed the action for reconveyance,

they were in possession of the subject property. The Court has
held that the 10-year prescription period applies only when the
plaintiff or the person enforcing the trust is not in possession of
the property. If a person claiming to be the owner thereof is in
actual possession of the property, the right to seek reconveyance,
which in effect seeks to quiet title to the property, does not prescribe.
Even though the Genguyons filed the action for reconveyance after
the case for ejectment against them was instituted, the same was
not rendered stale or improper. (id.)
(c) The Genguyons were awarded damages (whether

compensatory or nominal) in the amount of P35,000.00, inclusive
of attorneys fees, based on Article 19, 21, 2221 and 2222 of the New
Civil Code. (id.)
SALES
Contract to Sell. (Insular Life Assurance Company, Ltd.

v. Young, G.R. No. 140964, 16 January 2002).
Dacion En Pago. (Philippine Lawin Bus, Co., v. CA, G.R.

No. 130972, 23 January 2002).
Right of Repurchase. In pacto de retro sale. (Abilla v.

Gobonseng, G.R. No. 146651, 17 January 2002).
LEASE
Term of Lease. Extension. (a) A stipulation in a lease contract

stating that its five-year term is subject to an option to renew
shall be interpreted to be reciprocal in character. Unless the
language shows an intent to allow the lessee to exercise it
unilaterally, such option shall be deemed to benefit both the lessor

and the lessee who must both consent to the extension or renewal,
as well as to its specific terms and conditions. In the instant case,
there was nothing in the aforesaid stipulation or in the actuation of
the parties that showed that they intended an automatic renewal
or extension of the term of the contract. (LL and Company
Development and Agro-Industrial Corporation v. Huang, G.R. No. 142378,
7 March 2002). (b) The extension of a lease contract must be made
before its term expires - not after. Upon the lapse of the stipulated
period, courts cannot belatedly extend or make a new lease for the
parties, even on the basis of equity. (id.)
Grounds for Judicial Ejectment. Rental Reform Act of 2002.

Article 1673 of the New Civil Code. (a) Nonpayment of Rent.
Respondents justify their nonpayment of rent on the ground that
petitioners refused to accept their payments. Article 1256 of the
New Civil Code, however, provides that if the creditor to whom
tender of payment has been made refuses without just cause to
accept it, the debtor shall be released from responsibility by the
consignation of the thing or sum. (b) Mere subsequent payment
of rentals by the lessee and the receipt thereof by the lessor does
not, absent any other circumstance that may dictate a contrary
conclusion, legitimize the unlawful character of the possession.
The lessor may still pursue the demand for ejectment. (c) As to the
contention that it is not fair to eject respondents from the premises
after only five years, considering the value of the improvements
they introduced therein, suffice it to say that they did so with the
knowledge of the risk - the contract had plainly provided for a
five-year lease period. (id.).
Increase in Rentals. Suspension of Payment. In this case,

petitioner could not unilaterally increase the rental. Hence, upon
refusal of petitioner to accept rentals from the respondents at the
old rate, the respondents should have deposited such rentals with
a bank or the judicial authorities. But they failed. Article 1658 of
the New Civil Code provides only two instances in which the
lessee may suspend payment of rent: (1) the lessor fails to make
the necessary repairs or (2) the lessor fails to maintain the lessee in
peaceful and adequate enjoyment of the property leased. None of
these is present in the case at bar. (id.).
Lessees Obligations. Articles 1667 and 1665 of the New

Civil Code. The lessee is responsible for the deterioration or loss
of the thing leased, unless he proves that it took place without his
fault. (Mindex Resources Development v. Morillo, G.R. No. 138123,
12 March 2002).
Damages in Illegal Detainer. Refer to rents or the

reasonable compensation for the use and occupation of the
premises, or fair rental value of the property. Temperate, actual,
moral and exemplary damages are not recoverable in such cases.
(Herrera v. Bollos, G. R. No. 138258, 18 January 2002).
WORK AND LABOR
CONTRACT FOR A PIECE OF WORK
Video Taping. Wedding Celebration. Breach of contgract.

(Herbosa v. CA, G. R. No. 119086, 25 January 2002). The exercise of
due care in the selection and supervision of employees not a
defense in culpa contractual, such as in this case. (Herbosa v. CA,
G.R. No. 119086, 25 January 2002).
COMMON CARRIERS
Definition. The New Civil Code (Article 1732) definition of

common carriers makes no distinction between: [i] one whose
principal business activity is the carrying of persons or goods or
both, and one who does such carrying only as an ancillary activity;
[ii] person or enterprise offering transportation service on a regular

or scheduled basis and one offering such service on an occasional,
episodic or unscheduled basis; (c) a carrier offering its services to the
general public, i.e., the general community or population, and one
who offers services or solicits business only from a narrow segment
of the general population. (Calvo v. UCPB General Insurance Co.,
Inc., G.R. No. 148496, 19 March 2002).
Extraordinary Diligence. Common carriers, from the nature

of their business and for reasons of public policy, are mandated to
observe extraordinary diligence in the vigilance over the goods
and for the safety of the passengers transported by them. As a
general rule, common carriers are presumed to have been at fault
or negligent if the goods transported by them are lost, destroyed,
or if the same deteriorated. (The Philippine American General Insurance
Co., Inc., v. Mgg Marine Services, G.R. No. 135645, 8 March 2002;
Herbosa v. CA, G. R. No. 119086, 25 January 2002). In this case,
petitioner accepted the cargo without exception despite the
apparent defects in some of the container vans. Hence, for failure
of petitioner to prove that she exercised extraordinary diligence in
the carriage of goods in this case or that she is exempt from liability,
the presumption of negligence as provided under Art. 1735 holds.
(Calvo v. UCPB General Insurance Co., Inc., G.R. No. 148496, 19 March
2002). However, this presumption of fault or negligence does not
arise in the cases enumerated under Article 1734 of the New Civil
Code. (Mindex Resources Development v. Morillo, G.R. No. 138123,
12 March 2002; The Philippine American General Insurance Co.,
Inc., v. Mgg Marine Services, G.R. No. 135645, 8 March 2002).
LOAN
Real Contract. It is perfected only upon the delivery of

the object of the contract. (BPI Investment Corporation v. CA,
G.R. No. 133632, 15 February 2002).
AGENCY
General Agency. A general power permits the agent to do

all acts for which the law does not require a special power. (Dominion
Insurance Corporation v. CA, G. R. No. 129919, 6 February 2002).
Special Power of Attorney. Article 1878 of the New Civil

Code enumerates the instances when a special power of attorney
is required, such as: (1) To make such payments as are not usually
considered as acts of administration; xxx (15) Any other act of
strict dominion. The payment or settlement of insurance claims is
not an act of administration. (id.). (7) To loan or borrow money,
unless the latter act be urgent and indispensable for the preservation
of the things which are under administration; x x x (12) To create or
convey real rights over immovable property; x x x. (Adriano v.
Pangilinan, G.R. No. 137471, 16 January 2002). Thus, the Court held:
[i] In a sale of a parcel of land or any interest therein made through
an agent, a special power of attorney is essential. (Pineda v. CA,
G.R. No. 127094, 6 February 2002). [ii] Cruz had no written authority
from the board of directors of respondent corporation (owner of
lot) to sell or negotiate the sale of the lot, much less to appoint
other persons for the same purpose. Such lack of authority precludes
him from conferring any authority to Polintan involving the subject
realty. Necessarily, neither could Polintan authorize Felicisima.
Clearly, the collective acts of respondent Cruz, Polintan and
Felicisma cannot bind respondent corporation in the purported
contract of sale. (AF Realty & Development, Inc. v. Dieselman Freight
Services, Co., G.R.No. 111448, 16 January 2002).
Violation of Principals Instruction by Agent. Respondent

deviated from the instructions of his principal by paying and
settling insurance claims which were not within his authority.
Nonetheless, he was allowed to be reimbursed of what he paid to
the extent that it benefited his principal, in light of Articles 1918
and 1236 of the New Civil Code. (Dominion Insurance Corporation v.
CA, G.R. No. 129919, 6 February 2002).
SURETYSHIP
Continuing Surety. Here, the extensions of the terms for

paying the loans did not release the surety. (Taedo v. Allied
Banking Corporation, G.R. No. 136603, 18 January 2002; Lee v. CA,
G.R. No. 117913, 1 February 2002).
MORTGAGE
Essential Requisites. Only the absolute owner of the

property can constitute a valid mortgage on it. (Cruz v. Bancom
Finance Corporation, G.R. No. 147788, 19 March 2002). (a) Mortgage
by Non-Owner. Doctrine of Comparative Negligence. In the present
case, the mortgagee (who is engaged in the business of lending
money secured by real estate mortgage), could have easily avoided
the loss by simply exercising due diligence to ascertain the identity
of the impostor who claimed to be the registered owner of the
property mortgaged. (Adriano v. Pangilinan, G.R. No. 137471,
16 January 2002).
Not Innocent Mortgagee for Value. (id.).
Equitable Mortgage. (Magdalena Blancia v. Vda. de Calauor,

G.R. No. 138251, 29 January 2002).
Extrajudicial Foreclosure of Mortgage. Act 3135, as amended,

entitled An Act to Regulate the Sale of Property Under Special Powers
Inserted in or Annexed to Real Estate Mortgages. (Casano v. Magat,
A.M. No. P-02-1539, 24 January 2002).
PLEDGE
Notice of Auction Sale. Article 2112 of the New Civil Code

does not prohibit the sending of a single notice of sale to the
debtor and pledgor informing of the scheduled public auction

sale and a second public auction sale on the following day, in the
event that the pledged shares are not sold on the first auction.
(Insular Life Assurance Company, Ltd. v. Young, G.R. No. 140964,
16 January 2002).
DAMAGES
Actual or Compensatory Damages. Must be proved, and

cannot be presumed. (Country Bankers Insurance Corporation v. Lianga
Bay and Community Multi-Purpose Cooperative, Inc., G.R. No. 136914,
25 January 2002; Herbosa v. CA, G. R. No. 119086, 25 January 2002;
Mindex Resources Development v. Morillo, G.R. No. 138123, 12 March
2002). Aggrieved party is obliged to minimize damages resulting
from the act or omission in question. (Lim v. CA, G.R. No. 125817,
16 January 2003).
Attorneys Fees. Award of attorneys fees is the exception

rather than the rule and counsels fees are not to be awarded every
time a party wins a suit. It cannot be granted simply because one
was compelled to sue to protect and enforce ones right. The power
of the court to award attorneys fees under Article 2208 of the New
Civil Code demands factual, legal, and equitable justification which
must be explicitly state in the body of the decision and not only in
the dispositive portion thereof. In the absence of stipulation, a
winning party may be awarded attorneys fees only in case the
plaintiffs action or defendants stand is so untenable as to amount
to gross and evident bad faith. The grant must be proven by facts;
it cannot depend on mere speculation or conjecture. (Mindex
Resources Development v. Morillo, G.R. No. 138123, 12 March 2002;
BPI Investment Corporation v. CA, G.R. No. 133632, 15 February 2002;
AF Realty & Development, Inc. v. Dieselman Freight Services, Co., G.R.No.
111448, 16 January 2002; Insular Life Assurance Company, Ltd. v. Young,
G.R. No. 140964, 16 January 2002; Quirino v. Diaz, G. R. No. 137305,
17 January 2002). Bearing in mind that the rate of attorneys fees

has been agreed to by the parties and intended to answer not only
for litigation expenses but also for collection efforts as well, the
Court, like the appellate court, deems the award of attorneys fees
equivalent to 10% of the total amount of indebtedness to be
reasonable. (Ligutan v. CA, G.R. No. 138677, 12 February 2002).
Litigation Expenses. (Country Bankers Insurance Corporation

v. Lianga Bay and Community Multi-Purpose Cooperative, Inc., G.R. No.
136914, 25 January 2002). The only costs that a winning party
may recover are those prescribed in Rule 142 of the Revised Rules
of Court (1964 Revision). The provisions thereof bind all lower
courts, including the CA, the Sandiganbayan, the CTA, the RTC
and the MTC. No court may award costs in excess of the sums
specified therein. In this case, the RTCs award of costs of suit in
the amount of THIRTY-ONE MILLION PESOS (P31,000,000.00)
against the GSIS was declared to be patently absurd and void.
(GSIS v. Bengson Commercial Buildings, Inc., G.R. No. 137448,
31 January 2002).
Interest Rate. Guidelines on the application of the proper

interest rates. (Country Bankers Insurance Corporation v. Lianga Bay
and Community Multi-Purpose Cooperative, Inc., G.R. No. 136914,
25 January 2002; Solidbank Corporation v. CA, G.R. No. 138131,
12 March 2002; Lim v. CA, G.R. No. 125817, 16 January 2003).
Moral Damages. (BPI Investment Corporation v. CA, G.R. No.

133632, 15 February 2002; AF Realty & Development, Inc. v. Dieselman
Freight Services, Co., G.R. No. 111448, 16 January 2002; Insular Life
Assurance Company, Ltd. v. Young, G.R. No. 140964, 16 January 2002).
Exemplary Damages. (BPI Investment Corporation v. CA,

G.R. No. 133632, 15 February 2002; AF Realty & Development, Inc. v.
Dieselman Freight Services, Co., G.R. No. 111448, 16 January 2002;
Country Bankers Insurance Corporation v. Lianga Bay and Community
Multi-Purpose Cooperative, Inc., G.R. No. 136914, 25 January 2002;

Herbosa v. CA, G.R. No. 119086, 25 January 2002; AF Realty &
Development, Inc. v. Dieselman Freight Services, Co., G.R. No. 111448,
16 January 2002).
Nominal Damages. (BPI Investment Corporation v. CA,

G.R. No. 133632, 15 February 2002).
!"
COMMERCIAL LAW
CORPORATION LAW
Corporate Powers. Exercised by the Board of Directors

(Section 23 of the Corporation Code). Thus, contracts or acts of a
corporation must be made either by the board of directors or by a
corporate agent duly authorized by the board. Absent such valid
delegation/authorization, the declarations of an individual director
relating to the affairs of the corporation, but not in the course of, or
connected with, the performance of authorized duties of such
director, are held not binding on the corporation. (AF Realty &
Development, Inc. v. Dieselman Freight Services, Co., G.R. No. 111448,
16 January 2002).
Officers. An office has been defined as a creation of the

charter of a corporation, while an officer, as a person elected by
the directors or stockholders. On the other hand, an employee
occupies no office and is generally employed not by action of the
directors and stockholders but by the managing officer of the
corporation who also determines the compensation to be paid to
such employee. (a) As petitioners appointment as comptroller
required the approval and formal action of the IBCs Board of
Directors to become valid, then petitioner is a corporate officer
whose dismissal may be the subject of a controversy cognizable by
the SEC under Section 5(c) of P.D. 902-A, which includes
controversies involving both election and appointment of corporate
directors, trustees, officers, and managers. Had petitioner been an
ordinary employee, such board action would not have been
required. (Nacpil v. International Broadcasting Corporation, G.R. No.
144767, 21 March 2002). (b) That the position of comptroller is not
expressly mentioned among the officers of the IBC in its By-Laws
is of no moment, because the IBC Board of Directors is empowered
2003] SC DECISIONS - COMMERCIAL LAW 135
under the IBC By-Laws and Section 25 of the Corporation Code to

appoint such other officers as it may deem necessary. (c) As to
petitioners argument that the nature of his functions is
recommendatory thereby making him a mere managerial officer,
the Court has previously held that the relationship of a person to a
corporation, whether as officer or agent or employee, is not
determined by the nature of the services performed but instead by
the incidents of the relationship as they actually exist. (d) It is
likewise of no consequence that petitioners complaint for illegal
dismissal includes money claims, for such claims are actually part
of the perquisites of his position in, and therefore linked with his
relations with, the corporation. The inclusion of such money claims
does not convert the issue into a simple labor problem. Clearly,
the issues raised by petitioner against the IBC are matters that
come within the area of corporate affairs and management and
constitute a corporate controversy in contemplation of the
Corporation Code. (e) Under Section 5.2 of the Securities
Regulation Code (R.A. No. 8799), which was signed into law on 19
July 2000, the SECs jurisdiction over all cases enumerated in
Section 5 of P.D. 902-A has been transferred to the RTC. (Nacpil v.
International Broadcasting Corporation, G.R. No. 144767, 21 March 2002).
Powers of Officers. A perusal of the By-Laws of MICO

shows that the power to borrow money for the company and issue
mortgages, bonds, deeds of trust and negotiable instruments or
securities secured by mortgages or pledges of property belonging
to the company may be delegated by its Board of Directors to any
of its standing committee, officer or agent. Hence, PBCom had
every right to rely on the Certification issued by MICOs corporate
secretary that Chua Siok Suy was duly authorized to borrow money
and obtain credit facilities in behalf of MICO from PBCom.
(Lee v. CA, G.R. NO. 117913, 1 February 2002).
TRADEMARKS
Supplemental Register. (Kho v. CA, G.R. No. 115758,

19 March 2002).
Infringement. Remedies. (Sambar v. Levi Strauss & Co.,

G.R. No. 132604, 6 March 2002).
INSURANCE
Health Care Insurance. Insurable interest. Every person

has an insurable interest in the life and health of himself, of his
spouse and of his children. (a) Health care agreement is in the
nature of non-life insurance, which is primarily a contract of
indemnity. Once the member incurs hospital, medical or any other
expense arising from sickness, injury or other stipulated
contingency, the health care provider must pay for the same to the
extent agreed upon under the contract. (b) Concealment.
(c) Rescission of Policy. (d) Beneficiary. Petitioner alleges that
respondent was not the legal wife of the deceased member,
considering that at the time of their marriage, the deceased was
previously married to another woman who was still alive. Held:
The health care agreement is in the nature of a contract of indemnity.
Hence, payment should be made to the party who incurred the
expenses. It is not controverted that respondent paid all the hospital
and medical expenses. She is therefore entitled to reimbursement.
The records adequately prove the expenses incurred by respondent
for the deceaseds hospitalization, medication and the professional
fees of the attending physicians. (Philamcare Health Systems,
Inc.v. CA, G.R. No. 125678, 18 March 2002).
2003] SC DECISIONS - COMMERCIAL LAW 137
PUBLIC UTILITY
Certificate of Public Convenience. Certificate of

Registration of Motor Vehicle. Kabit System. In this case, a
passenger jeepney covered by a certificate of public convenience
was sold by its owner to a buyer who continued to operate it
under the same certificate of public convenience under the so-
called kabit system. In the course of business, the vehicle met an
accident through the fault of another vehicle. Held: The new owner
of the passenger jeepney may sue for damages against the erring
vehicle. (Lim v. CA, G.R. No. 125817, 16 January 2003).
Manila Electric Company (MERALCO). Differential

Billings. Allegedly for unregistered consumption of electricity
resulting from the tampering of Meralcos electric meter. (MERALCO
v. Macro Textile Mills Corporation, G.R. No. 126243, 18 January 2002).
BANKS
Letters of Credit (Lee v. CA, G.R. NO. 117913, 1 February

2002).
Trust Receipts (id.).
Certificate of Deposit. A bank acts at its peril when it pays

deposits evidenced by a certificate of deposit, without its production
and surrender after proper indorsement. In this case, the certificates
of deposit were clearly marked payable to bearer. Petitioner
should not have paid respondents husband or any third party
without requiring the surrender of the certificates of deposit.
Petitioner claims that it did not demand the surrender of the subject
certificates of deposit since respondents husband was one of the
banks senior managers. Long after respondents husband had
allegedly been paid respondents deposit and before his retirement
from service, petitioner never required him to deliver the
certificates of deposit in question. Moreover, the accommodation

given to respondents husband was made in violation of the banks
policies and procedures. Thus, petitioner bank failed to exercise
that degree of diligence required by the nature of its business.
(Far East Bank and Trust Company v. Querimit, G.R. No. 148582,
16 January 2002).
Forged Check. Bank negligence in allowing encashment of.

(Westmont Bank v. Ong, G.R. No. 132560, 30 January 2002).
NEGOTIABLE INSTRUMENTS LAW
Forgery. When a signature is forged or made without the

authority of the person whose signature it purports to be, it is
wholly inoperative, and no right to retain the instrument, or to
give a discharge therefor, or to enforce payment thereof against
any party thereto, can be acquired through or under such signature,
unless the party against whom it is sought to enforce such right is
precluded from setting up the forgery or want of authority.
(Section 23). In the case at bar, since the signature of the payee, was
forged to make it appear that he had made an indorsement in
favor of the forger, such signature should be deemed as inoperative
and ineffectual. Petitioner, as the collecting bank, grossly erred in
making payment by virtue of said forged signature. The payee,
herein respondent, should therefore be allowed to recover from
the collecting bank. (id.).
!"
2003] SC DECISIONS - CRIMINAL LAW 139
CRIMINAL LAW
REVISED PENAL CODE (RPC)
FELONIES AND CIRCUMSTANCES WHICH

AFFECT CRIMINAL LIABILITY
CONSUMMATED, FRUSTRATED AND ATTEMPTED FELONIES
Attempted. Petitioner stabbed the victim twice on the chest,

which is indicative of an intent to kill. Believing that the victim
was dying, petitioner left. However, there is no evidence that the
wounds sustained by the victim were fatal enough as to cause
death. Circumstances which qualify criminal responsibility cannot
rest on mere conjectures, no matter how reasonable or probable,
but must be based on facts of unquestionable existence. The
uncertainty on the nature of the wounds warrants the appreciation
of a lesser gravity of the crime committed as this is in accordance
with the fundamental principle in Criminal Law that all doubts
should be resolved in favor of the accused. Even if the victim was
wounded but the injury was not fatal and could not cause his
death, the crime would only be attempted. (Paddayuman v. People,
G.R. No. 120344, 23 January 2002). Attempted murder. (People v.
Costales, G.R. No. 141154-56, 15 January 2002).
Frustrated. Appellants intent to kill is reflected by the

weapon he used; and the nature and position of the wounds
inflicted on the victim (thru and thru laceration of the gall bladder,
stomach and the jejunum) as a result of the stabbing by
appellant. Were it not for timely medical attention, Cura would
have died from said wounds. (People v. Salva, G.R. No. 132351,
10 January 2002).
CONSPIRACY AS A MEANS OF COMMITTING FELONY
Conspiracy - Exists when two or more persons come to an

agreement concerning the commission of a felony and decide to
commit it. The conduct of the accused before, during, and after the
commission of the crime may be considered to show an extant
conspiracy. For conspiracy to exist, it is not essential that there be
an agreement for an appreciable period prior to the commission of
the crime; it is sufficient that at the time of its commission, the
accused had the same purpose and were united in its execution.
Illustrative cases: (a) The assailants encounter with the victim along
Legaspi Street was purely coincidental. This notwithstanding, at
the time of the attack, the accused Jocel and Remwel manifested
their common purpose to kill the victim by getting on his jeep
almost at the same time and stabbing him simultaneously on the
chest and getting off the jeep almost at the same time. Then the
two assailants ran away from the crime scene. Jocel called Remwel
back and after briefly conversing, they ran together towards the
Divine Jesus Memorial Park. (People v. Bejo, G.R. No. 138454,
13 February 2002). (b) The physical evidence on record shows that
two weapons (a bolo and a knife) were used, the wounds on the
victims were inflicted by stabbing and hacking and negate the
defense that only one of the accused would use both the bolo and
the knife alternatively or successively. (People v. Manlasing,
G.R. Nos. 131736-37, 11 March 2002). (c) Surrounding and in a
concerted fashion assaulting the unarmed victim proved that
appellants had intentionally and voluntarily acted together for the
realization of a common criminal intent to kill the victim. (People v.
Asuela, G.R. Nos. 140393-94, 4 February 2002). (d) The three
malefactors, all wearing ski masks and sporting weapons, arrived
together at the house of Director Rosas. While one was threatening
Rosas, the other was intimidating Gabilo and the third was pointing
his weapon on Norman. After getting the money and valuables of
Gabilo and Rosas, all three went downstairs together, two of them
dragging Gabilo with them. Upon the instruction of accused Nerio,
accused Batocan stabbed Gabilo. The three malefactors finally left

together in the same car, with Nerio driving. (People v. Suela,
G.R. No. 133570-71, 15 January 2002). (e) The three (3) accused-
appellants acted in concert to perpetrate the ghastly incident. Catian
and Calunod dealt the fatal blows while Sumalpong watched in
stolid silence, with nary a whimper of protest even when his two
(2) companions smashed their deadly weapons into the body of
their defenseless victim. Not content with his inaction, Sumalpong
then carelessly slung the body of their fallen victim over his
shoulder and walked away to an undisclosed location. (People v.
Catian, G.R. No. 139693, 24 January 2002). (f) It exists where the
participants performed specific acts with such closeness and
coordination as unmistakably to indicate a common purpose or
design in bringing about the crime, such as, where one of the
accused-appellants held the arms of the victim enabling the other
accused to stab the victim. (People v. Campomanes, G.R. No. 132568,
6 February 2002). (g) Prosecution witness Luna was present at the
scene of the crime, he being one of the victims. He stated that
during the election campaign trails on May 13, 1984, the group of
Pacificador, escorted by the accused-appellants overtook their
Tamaraw several times, and the latter pointed their guns against
them, making it very apparent that accused-appellants were tailing
the group of Luna. Ultimately, accused-appellants perpetrated their
unlawful design against the group of Luna when they strategically
positioned themselves at the southern end of the single-lane
Pangpang Bridge in Sibalom, Antique, parked their vehicle near
the foot of the bridge, making sure that the group of Luna would
not be able to pass through and took cover in the nearby canal and
waited for the arrival of their prey. The simultaneous acts of
leaving, waiting for their victims to come out, tailing and firing at
them continuously at close range, and escaping from the crime
scene clearly establish a conspiracy among the malefactors. (People
v. Pacificador, G.R. No. 126515, 6 February 2002). (h) Present in the
following cases: Rape and Acts of Lasciviousness. (People v. Dy,
G.R. Nos. 115236-37, 29 January 2002), Kidnapping for Ransom.
(People v. Bacungay, G.R. No. 125017, 12 March 2002). Special

complex crime of Robbery with Homicide. (People v. Dinamling,
G.R. No. 134605, 12 March 2002). Illegal Recruitment by a Syndicate.
(People v. Hernandez, G.R. Nos. 141221-36, 7 March 2002). But
was not established in this case of Acts of Lasciviousness.
(People v. Castillo, G.R. No. 131200, 15 February 2002).
JUSTIFYING CIRCUMSTANCES
Self-defense. Elements not established. (1) Unlawful

Aggression on the part of the Deceased. What merely transpired
before petitioners gun went off was a heated exchange of words
between the protagonists, which does not amount to unlawful
aggression. Unlawful aggression presupposes an actual, sudden,
and unexpected attack, or imminent danger thereof. The person
defending himself must have been attacked with actual physical
force or with actual use of weapon. Unlawful aggression is a
condition sine qua non for the justifying circumstance of self-defense.
In this case, all that the deceased did immediately before he was
shot was shout expletives and slap petitioners hand when the
latter pointed it to his face. These acts, while offensive, did not
warrant petitioners act of drawing and firing his gun. (Tangan v.
CA, G.R. No. 105830, 15 January 2002). Even assuming that there
was an altercation for the possession of the cameras and that the
Vinculados clenched their fists in anger, with Miguel saying A
ganoon ba. Kung gusto mo Mayor ay sasapakin kita, the same is not
unlawful aggression. Unlawful aggression refers to an attack
that has actually broken out or materialized or at the very least is
clearly imminent: it cannot consist in oral threats or a merely
threatening stance or posture. (People v. Galvez, G.R. No. 130397,
17 January 2002).
(2) Reasonable Necessity of the Means Employed to Prevent

or Repel the Aggression. The nature and number of wounds
suffered by the Vinculados likewise negate any claim of self-
defense. Levis mandible was literally hanging from his face as a
result of a bullet wound. He was rendered blind in one eye due to
another bullet wound and absorbed two more bullets on the chest
and shoulder. On the other hand, Alvin died due to four gunshot
wounds, all on his back. They demonstrate a determined effort to
kill the victim and not self-defense. (id.).
(3) Lack of Sufficient Provocation on the Part of the Defending

Person.
Moreover, accused-appellant left his victim and did not even

bother to report the matter to the proper authorities. All told, the
plea of self-defense cannot be justifiably entertained where it is
not only uncorroborated by any separate competent evidence but
also extremely doubtful in itself. (id.). By claiming self-defense,
petitioner assumes the onus to establish his plea with certainty by
credible, clear and convincing evidence; otherwise, conviction will
follow from his admission that he killed the victim. (Paddayuman v.
People, G.R. No. 120344, 23 January 2002; People v. Quening,
G,R. No. 132167, 8 January 2002; People v. Pacificador, G.R. No. 126515,
6 February 2002).
Defense of Relative. Not established. The weapon used and

the grave wounds inflicted on the victims negate the reasonableness
of appellants action, taken allegedly in defense of his brothers.
Appellants testimony on record is unconvincing, confused, and
evasive. Like self-defense, defense of relatives must be proved
positively and convincingly. (People v. Salva, G.R. No. 132351,
10 January 2002).
Defense of Stranger. Not established. The presence of a

large number of wounds on the victim negates self-defense and
indicates a determined effort to kill the victim. (People v. Saure,
G.R. No. 135848, 12 March 2002). Finally, accused-appellants acts
of fleeing and hiding in Sorsogon immediately after the shooting
are indicative of his guilt. (People v. Galvez, G.R. No. 130397,
17 January 2002).
MITIGATING CIRCUMSTANCES
Incomplete Self-defense. Privileged Mitigating. Unlawful

aggression is a condition sine qua non for self-defense, whether
complete or incomplete. It appears that the deceased did not
commit any unlawful aggression towards accused-appellant. On
the contrary, it was accused-appellant who was the aggressor when
he shot the deceased who was unarmed and raising his hands. A
person defending himself has no more right to attack an aggressor
when the unlawful aggression has ceased. In the instant case,
accused-appellant was not justified in attacking the deceased as
the latter had his hands raised and was no longer poised to attack
accused-appellants father at the time he was shot. Furthermore,
the acts of the deceased immediately prior to the shooting did not
constitute unlawful aggression. (People v. Adlawan, G.R. No. 131839,
30 January 2002).
Minority. Privileged Mitigating. (a) Established. At the time

of the commission of the crime, Gutierez was seventeen years,
seven months and three days old; thus, minority was correctly
appreciated in his favor. (People v. Gutierrez, G.R. No. 142905, 18
March 2002). The claim of the accused that he was seventeen years
old when the crime was committed will be upheld by the court
even without any proof to corroborate his testimony, especially so
when coupled by the fact that the prosecution failed to present
contradictory evidence thereto. Therefore, the penalty to be
imposed on accused-appellant should be lowered by one degree.

(People v. Monteron, G.R. No. 130709, 6 March 2002; Reyes v. CA,
G.R. No. 127703, 18 January 2002). (b) Not appreciated. Being already
19 years old when he committed the crime, accused-appellant
is not entitled to the privileged mitigating circumstance.
(People v. Gutierrez, G.R. No. 142905, 18 March 2002)
Sufficient Provocation. Must be proportionate to the gravity

of the retaliatory act. In this case, the victim merely shouted at the
appellant and asked him to leave. Stabbing her to death could
hardly be proportionate in gravity to her act of shouting, no matter
how loud. (People v. Lab-eo, G. R. No. 133438, 16 January 2002)
Passion or Obfuscation. Requisites: (1) There be an act, both

unlawful and sufficient, to produce such a condition of mind; and
(2) Said act which produced the obfuscation was not far removed
from the commission of the crime by a considerable length of time
during which the perpetrator might recover his equanimity. In the
case at bar, accused-appellant thought his father, whose face was
bloodied and lying unconscious on the ground, was dead. Surely,
such a scenario is sufficient to trigger an uncontrollable burst of
legitimate passion. His act, therefore, of shooting the deceased,
right after learning that the latter was the one who harmed his
father, satisfies the requisite of this mitigating circumstance.
(People v. Adlawan, G.R. No. 131839, 30 January 2002). However,
where: the victim did not do anything unlawful in asking the
appellant to leave, there is an absolute lack of proof that the
appellant was utterly humiliated by the victims utterance, nor
was it shown that the victim made that remark in an insulting and
repugnant manner such utterance is not the stimulus required by
jurisprudence to be so overwhelming as to overcome reason
and self-restraint on the part of the accused. (People v. Lab-eo,
G.R. No. 133438, 16 January 2002)
Voluntary Confession. Mitigating, if done before the

prosecution presents its evidence. (People v. Callos, G.R. No. 133478,
16 January 2002).
Voluntary Surrender. To be considered as a mitigating

circumstance, the following requisites must be present: (1) The
offender has not been actually arrested; (2) The offender surrendered
himself to a person in authority or to the latters agent; and (3) The
surrender was voluntary. For a surrender to be voluntary, it must
be spontaneous and show the intent of the accused to submit
himself unconditionally to the authorities, either: [i] because he
acknowledges his guilt; or [ii] because he wishes to save them the
trouble and expense incidental to his search and capture.
(People v. Boquila, G.R. No. 136145, 8 March 2002).
(a) Appreciated: [i] in favor of appellant who testified that

after the hacking incident, he went to the house of the kagawad who
brought him to the Municipal Building of Aroroy to admit to the
killing, albeit in self-defense. (People v. Quening, G,R. No. 132167,
8 January 2002). [ii] where shortly after the incident, the appellant
went to the municipal hall and surrendered to the authorities.
(People v. Lab-eo, G. R. No. 133438, 16 January 2002); [iii] Three
(3) days after the death of the victim, accused-appellant read in the
local newspaper that the victim had six children. This bothered
his conscience, prompting him to go to the police and admit his
guilt. (People v. Boquila, G.R. No. 136145, 8 March 2002).
(b) Not appreciated: [i] The conduct of the accused and not
his intention alone, after the commission of the offense, determines
the spontaneity of the surrender. The surrender is not spontaneous
where it took accused-appellant more than three years from the
issuance of the warrant of arrest before he finally decided to
surrender. (People v. Adlawan, G.R. No. 131839, 30 January 2002).
[ii] The accused testified that he voluntarily surrendered not because
he acknowledged his guilt but because there was a threat made
by the person whom he alleged to be the real assailant.

(People v. Cortezano, G.R. No. 140732, 29 January 2002). [iii] After the
killings, the accused went into hiding and only surrendered after
the police were tipped on his whereabouts and sent a team to
arrest him. (People v. Manlasing, G.R. Nos. 131736-37, 11 March 2002).
[iv] The surrender was made too late in a place too distant from
the crime site as well as the place of residence of the accused.
(People v. Costales, G.R. No. 141154-56, 15 January 2002).
AGGRAVATING CIRCUMSTANCES
In General. Four kinds: (a) Generic - those that can generally

apply to all crimes; (b) Specific - those that apply only to particular
crimes; (c) Qualifying - those that change the nature of the crime;
and (d) Inherent - those that must of necessity accompany the
commission of the crime. Except for scoffing at the victims corpse,
all the qualifying circumstances enumerated in Article 248 of the
RPC (Murder) are also aggravating circumstances because they are
likewise found in Article 14 of the same Code, enumerating the
aggravating circumstances. (People v. Lab-eo, G.R. No. 133438,
16 January 2002). While a non-alleged but proven aggravating
circumstance cannot be used to increase the penalty, nonetheless
it can be the source of civil awards. (People v. Suela,
G.R. No. 133570-71, 15 January 2002).
Taking Advantage of Public Position. To be aggravating,

the public officer must use the influence, prestige or ascendancy
which his office gives him as a means by which he realizes his
purpose. In this case, there was no showing that accused-appellant
took advantage of his being a policeman to shoot Jelord or that he
used his influence, prestige or ascendancy in killing the
victim. Accused-appellant could have shot Jelord even without
being a policeman. (People v. Villamor, G.R. No. 141908-09,
15 January 2002).
Dwelling. Aggravating in rape. The kitchen where Marita

was dragged by appellant is her dwelling, albeit the same does
not belong to her. The dwelling contemplated in Article 14(3) of
the RPC does not necessarily mean that the victim owns the place
where he lives or dwells. Be he a lessee, a boarder, or a bedspacer,
the place is his home. That the crime was consummated in the
nearby house is also immaterial. Marita was forcibly taken by
appellant from her dwelling house (kitchen) and then raped nearby.
(People v. de la Torre, G.R. No. 98431, 15 January 2002). Aggravating
in homicide. (People v. Taboga, G.R. Nos. 144086-87, 6 February 2002).
Disregard of Age or Sex. Killing of a woman is not attended by
this aggravating circumstance if the offender did not manifest any
specific insult or disrespect towards the offended partys sex. In
the case at bar, there is absolutely no showing that accused-
appellant deliberately intended to offend or insult the victim.
However, even if disrespect or disregard of age or sex were not
appreciated, the four circumstances enumerated in Article 14,
paragraph 3 of the RPC, as amended, can be considered singly or
together. (id.).
Nighttime. Becomes an aggravating circumstance when:

(1) it was specially sought by the offender; or (2) it was taken
advantage of by him; or (3) it facilitated the commission of the
crime by insuring the offenders immunity from capture. Although
the crime was committed at 7 oclock in the evening, no evidence
was presented showing that nighttime was especially sought by
the offenders to consummate the crime or to facilitate its
commission. (People v. Conde, G.R. No. 134483, 16 January 2002;
People v. Moreno, G.R. No. 140033, 25 January 2002). Not aggravating
in these cases: [i]. The darkness of the night was not purposely
sought by the offenders to facilitate the commission of the crime
nor to ensure its execution with impunity. (People v. Boquila,
G.R. No. 136145, 8 March 2002). [ii] Absorbed by treachery.
Evident Premeditation. Elements: (1) the time when the

offender determined to commit the crime; (2) an act manifestly
indicating that the culprit had clung to his determination; and
(3) a sufficient lapse of time between the determination and the
execution to allow the accused to reflect upon the consequences of
his act. The elements of evident premeditation must be established
with equal certainty and clarity as the criminal act itself before it
can be appreciated as a qualifying circumstance. (a) Such elements
were established in these cases. (People v. Pacificador, G.R. No. 126515,
6 February 2002; People v. Manlasing, G.R. Nos. 131736-37,
11 March 2002). (b) Not established in these cases: (People v. Panabang,
G.R. No. 137514-15, 16 January 2002; People v. Catian, G.R. No. 139693,
24 January 2002; People v. Alba, G.R. No. 130523, 29 January 2002;
People v. Costales, G.R. No. 141154-56, 15 January 2002; People v. Ciron,
G.R. No. 139409, 18 March 2002).
Craft. Disguise, though established, cannot be appreciated

in this case of robbery with homicide, as the same was not
alleged in the information. In this case, absorbed in treachery.
(People v. Lab-eo, G. R. No. 133438, 16 January 2002).
Abuse of Superrior Strength. (People v. Asuela, G.R.

Nos. 140393-94, 4 February 2002; People v. Bejo, G.R. No. 138454,
13 February 2002; People v. Hermo, G.R. No. 135026, 15 February 2002;
People v. Matignas, G.R. No. 126146, 12 March 2002). That there
were two killers as against one victim did not of itself establish
abuse of superior strength. (People v. Abejuela, G.R. No. 134484,
30 January 2002).
Treachery. There is treachery when the offender commits

any of the crimes against persons: (1) employing means, methods
or forms in the execution thereof which tend directly and specially
to insure its execution without risk to himself arising from the
defense which the offended party might make; and (2) deliberately
or consciously adopted the means of execution. (Article 14,
paragraph 16, RPC). The essence of treachery is that the attack is

deliberate and without warning, done in a swift and unexpected
manner, affording the hapless, unarmed and unsuspecting victim
no chance to resist or escape. (People v. Lab-eo, G. R. No. 133438,
16 January 2002). It must be clearly shown that the method of assault
adopted by the aggressor was deliberately chosen to accomplish
the crime without risk to the aggressor. (People v. Bejo, G.R.
No. 138454, 13 February 2002; People v. Catian, G.R. No. 139693,
24 January 2002). The law stresses the manner of performance or
accomplishment of the crime than any other factor. (People v. Bagano,
G.R. No. 139531, 31 January 2002; People v. Coscos, G.R. No. 132321,
21 January 2002; People v. Abejuela, G.R. No. 134484, 30 January 2002).
(a) Treachery was established in the following cases: [i] The

accused-appellant fired the first shot at the deceased who was
unarmed and had his hands raised. The first shot hit the deceased
who fell to the ground. While the deceased was already lying
helpless on the ground, the accused-appellant turned the head of
the deceased to have a better a better shot at it. Then, he fired the
second shot. (People v. Adlawan, G.R. No. 131839, 30 January 2002).
[ii] Accused-appellant and Welinido approached the victim

from behind and assaulted him without any provocation
whatsoever. No altercation preceded the incident and there was
nothing to warn the victim of any impending attack on his person,
which would put him on guard against accused-appellants
offensive. Although the victim sensed that he was being tailed
by accused-appellant and he was able to turn around and see
his attackers, the suddenness of the assault and the immediate
infliction of four consecutive stab wounds ensured that he would
not be able to retaliate or defend himself. (People v. Abejuela,
G.R. No. 134484, 30 January 2002).
[iii] The accused and the victim had been drinking gin for
two hours. There was no altercation. When the victim stood up
and asked permission to leave, the four accused, without warning,

carried out their sinister plan. Raul held the hands of the victim
and looked back at Ronnie, ostensibly as a signal of sort, after
which, the latter immediately stood up and stabbed the
victim. This was followed by another stab by Elenito and a hack
by appellant Romeo. (People v. Cantuba, G.R. No. 126022,
12 March 2002).
[iv] Crisanto and Bernie were holding both hands of the

victim, while Gerry and Jackson were beating him with a piece of
wood on the different parts of his body. The victim was unarmed
and defenseless. (People v. Cuenca, G.R. No. 143819, 29 January 2002).
[v] The accused-appellant, stealthily and without warning,

rushed towards the victim from behind and stabbed him in the
chest. The victim, who was then seated, was not aware of any
impending danger. Although there had been prior verbal
altercation, the victim had reasons to believe that the matter had
already been settled. Considering the multitude of persons who
participated in the benefit dance, the victim was totally devoid of
any suspicion that the accused-appellant, who was not a resident
of Barangay Basak, would perform such a dastardly act. When the
victim was trying to run away, the accused-appellant even pursued
him and stabbed him repeatedly while trying to defend himself.
(People v. Saure, G.R. No. 135848, 12 March 2002).
[vi] The manner by which accused-appellants positioned

themselves prior to the ambush demonstrated treachery. Not only
were they armed with high-powered guns and greater in number
than the group of Luna; they took advantage of the stillness of the
night and took cover at the nearby canal where they could not be
seen, ensuring their own safety in case the group of Luna acted in
retaliation and fired back. The treacherous manner by which
accused-appellants perpetrated the crime was shown not only by
the sudden and unexpected attack upon the unsuspecting victims
but also by the deliberate manner in which the attack was

perpetrated. (People v. Pacificador, G.R. No. 126515, 6 February 2002).
[vii] In a sitting position with arms restrained by one of the

accused, the victim becomes a helpless and defenseless object of
the attack. It is immaterial that the victim initially grappled with
Campomanes and was even able to hit the latter with the camera.
Crucial is the moment when Rosita came with a bladed weapon,
and with the victim in a sitting position with his arms raised and
held by Campomanes, said victim was repeatedly stabbed by
Rosita. (People v. Campomanes, G.R. No. 132568, 6 February 2002).
[ix] The victim was on his way home. He was expecting to

be greeted by his family, when the appellant suddenly emerged
from a bamboo enclosure. Appellant, who was at that time already
holding a gun, positioned himself at the back of the victim. From
there, he promptly fired at him from behind. While he uttered the
words, Eto ang hinahanap mo, Bong! at the same time firing at the
victim, that barely warned the latter nor gave him ample period to
put up even a semblance of defense. In fact, the only reaction the
victim was able to make was to try to turn his face towards the
direction where he heard the voice come from. (People v. Ponsaran,
G.R. Nos. 139616-17, 6 February 2002).
[x] The victim was on his motorcycle leaving Casa Blanca

and turning right to Narciso St. in the early morning of July 8 when
he was suddenly shot from behind by accused-appellant. The
bullet entered the victims body at the right lumbar area, almost
at the back of the victim. (People v. Norrudin, G.R. No. 129053,
25 January 2002).
[xi] The victim was merrily drinking with companions and

without the slightest inkling of the fate that would befall him. The
accused surreptitiously positioned himself at the back of the victim,
aimed his gun, and without any warning, shot the latter at close
range. (People v. Panabang, G.R. No. 137514-15, 16 January 2002).
[xii] It would appear that accused-appellant already had

an ax to grind when he went to the house of the victim, and he
already had a gun with him. The victim was not even facing
accused-appellant when he was shot, suddenly and unexpectedly.
(People v. Coscos, G.R. No. 132321, 21 January 2002).
[xiii] That the wife of the victim, and most probably so, the
victim himself, noticed that accused-appellant was carrying a knife,
does not negate treachery. There was no previous animosity
between the victim and accused-appellant. The victims failure to
deliver the goods to accused-appellants house was no reason for
the victim to expect an assault from the accused appellant. The
victims wife testified that though she saw the knife carried by
accused-appellant, she did not warn her husband because it never
crossed her mind that he would stab him as her husband was
already old. That the victims injury was frontal does not preclude
the finding of treachery. The victim was unarmed and in a stooping
position (hence unable to defend himself) as he was about to give
the goods to accused-appellant when the latter delivered the fatal
blow. (People v. Orpilla, G.R. No. 118073, 25 January 2002).
[xiv] When the victim was attacked, he was on board

the boat while his assailant was on the shore. The attack was so
sudden and unexpected that it rendered the victim unable and
unprepared to defend himself. (People v. Cortezano, G.R. No. 140732,
29 January 2002).
[xv] Appellant and Aniag, both armed with a .38 caliber

gun, unexpectedly fired two shots behind the victim and John who
were playing darts. Both were unarmed. Apparently caught by
surprise, the victim barely ran 3 to 4 meters away from the appellant,
but he fell when hit by the latters third shot. As the victim slumped
helplessly on the street, appellant went near him and, at close
range, fired several more shots, hitting his head and the back of his
body. To ensure the attack by appellant without risk to himself,
Aniag had his gun pointed at the victim, ready to shoot, if necessary.
Appellant contends that there can be no treachery because the first
two shots did not hit the victim and John and were fired to warn
the victim of the impending danger. The Court was not persuaded.
Nowhere in the records can it be deduced that the first two shots
were clearly warning shots. What is certain is, after these shots
were fired, the victim ran away but appellant shot him again, hitting
his back which caused him to fall. Even assuming that the first
two shots were warning shots, treachery was still appreciated as
the execution of the attack made it impossible for the victim to
defend himself or to retaliate. (People v. Samson, G.R. No. 124666,
15 February 2002).
[xvi] Appellants were allowed inside the house of the couple

Marjin and Jorja. They were even given supper after which the
elderly couple went upstairs to their bedroom. Appellants
remained downstairs and continued watching television. The
victims in extending their hospitality to their tenants had neither
hint nor suspicion of the fate that Mario had in store for them.
When Mario lured Magin to the phone, the latter was unaware he
would be attacked. The attack on Jorja then was also without
warning and was treacherous. (People v. Manlasing, G.R. Nos. 131736-
37, 11 March 2002).
[xvii] The accused-appellant suddenly embraced the victim

giving his co-accused-appellant full opportunity to stab their victim
on his left chest. (People v. Bagano, G.R. No. 139531, 31 January 2002).
[xviii] The unsuspecting victims in the jeep driven by

Lorenzo were taken by surprise and had no means to defend
themselves. They were simply on their way to attend a hearing in
another town in Pangasinan and had no inkling that such a
gruesome attack would befall them at the break of dawn.
(People v. Gutierrez, G.R. No. 137610-11, 6 February 2002).
[xix] The accused-appellant stabbed the victim three times

at the back when the latter was already wounded and about to fall
to the ground. Clearly, the victim was in no position to defend
himself and repel the attack of accused-appellant. (People v. Ciron,
G.R. No. 139409, 18 March 2002).
[xx] What is decisive is that the execution of the attack made

it impossible for the victim to defend himself or to retaliate. Here,
accused-appellant evidently timed his attack with the sudden
blast of music. The shot was a complete surprise to the victim,
rendering him utterly defenseless at the time of the assault. The
alleged animosity between the victim and accused-appellant, as
well as their encounter which preceded the shooting incident, will
not preclude the finding of treachery. (People v. Sebastian,
G.R. No. 131734, 7 March 2002).
[xxi] The Accused-appellant suddenly attacked from behind

and stabbed the deceased on the back. The deceased and his
companions could not have been aware of the impending attack.
They had no reason to expect any violent incident since, as testified
to by Roderick (companion of the deceased), he knew of no
misunderstanding between accused-appellant and the deceased.
The deceased was in no position to defend himself from the attack,
since he was drunk and unable to run. In fact, the victim instantly
fell to the ground after the first blow on his back. Thereafter,
accused-appellant took the victim by his shirt and stabbed him
several times while he lay on the ground. (People v. Alilin,
G.R. No. 134379, 21 March 2002).
[xxii] While seemingly the slaying of Lopito was the

consequence of a chance encounter, the manner in which it was
perpetrated was treacherous. The fatal attack on him was so swift
and unexpected, and without the slightest provocation on his part.
He had no inkling that he would be killed for what was apparently
a minor traffic accident. An unexpected attack under circumstances
which render the victim unable and unprepared to defend himself

by reason of the suddenness and severity of the attack, thus
insuring the execution of the crime without risk to the accused-
appellants, constitutes alevosia. The fact that the victim may have
been forewarned of his peril when he was punched by accused-
appellant Espaa will not diminish the suddenness of the attack.
(People v. Gutierrez, G.R. No. 142905, 18 March 2002).
[xxiii] Accused-appellant and his confederate swiftly and

unexpectedly barged into the Marcelo residence in the middle of
the night, shot Miguel Marcelo to death as well as his wife Crispina
who almost lost her life, and sprayed a substance which temporarily
blinded the other occupants of the house. (People v. Costales,
G.R. No. 141154-56, 15 January 2002).
[xxiv] Treachery was also shown where a totally

unsuspecting Jelord held onto his brother Jerry on board their
motorcycle on their way home blissfully unaware of the onrushing
peril behind them. The victim and his brother were fired upon at
their back. (People v. Villamor, G.R. No. 141908-09, 15 January 2002).
(b) Treachery - Not Established. [i] Where treachery is

alleged, the manner of attack must be proven. Without any
particulars as to the manner in which the aggression commenced
or how the act that resulted in the victims death unfolded, treachery
cannot be appreciated. It is not sufficient that the victim was
unarmed and that the means employed by the malefactor brought
about the desired result. The prosecution must prove that appellant
deliberately and consciously adopted such means, method or
manner of attack as would deprive the victim of an opportunity
for self-defense or retaliation. In this case, the prosecutions principal
witness testified that he did not actually see the commencement of
the attack. In fact, he himself declared that the commotion had
begun outside the establishment he was in. (People v. De Leon,
G.R. No. 144052, 6 March 2002).
[ii] Witness Rabino said he did not see how the incident
commenced, his testimony could not be utilized to support the
allegation of treachery. The fatal wounds found at the back of the
deceased do not, by themselves, indicate treachery. In the absence
of other details that would confirm that indeed appellant
deliberately adopted the means employed to kill the deceased,
treachery cannot be appreciated. Treachery cannot be presumed
and must be proved by clear and convincing evidence or as
conclusively as the killing itself. (People v. Quening, G,R. No. 132167,
8 January 2002).
[iii] True, appellant stabbed Milanes at the back while

Ferdinand encircled his arm in a tight grip around the victims
neck. But Milanes was together with an armed policeman and
other passengers. There were also on-lookers. The incident
happened at past 7 oclock A.M., during a traffic jam. The
presence of the policeman albeit in civilian attire and his
companions who came to Milanes rescue shows that the victim
was not completely helpless. Neither is there sufficient evidence
to establish that appellant consciously adopted the mode of attack.
It also appears that, the day before the incident, the appellant and
the victim had a heated argument. (People v. Salva, G.R. No. 132351,
10 January 2002).
[iv] The mere suddenness of an attack does not automatically

mean treachery. It appears that the meeting between the accused-
appellants group and the victim was obviously a casual encounter.
The impulsive stabbing followed a brief heated argument between
the group and Bacuta regarding the latters driving. While the
attack may have been sudden, the circumstances show that the
casual, brief, and tension-filled encounter did not afford the
accused-appellant an opportunity to plan and deliberately adopt
the method of assault as to accomplish the crime without risk to
himself. He simply used whatever weapon he had on hand.
(People v. Bejo, G.R. No. 138454, 13 February 2002).
[iv] Treachery must be proven as indubitably as the killing

itself and it cannot be deduced from mere presumption or sheer
speculation. In the case at bar, the prosecution failed to present
any proof as to the manner the attack commenced or how the act
which resulted in the victims death unfolded. The evidence
presented by the prosecution only proved the events after the attack
had happened. Hence, treachery cannot be appreciated. (People v.
Bulan, G.R. No. 133224, 25 January 2002). Since nobody witnessed
the actual shooting, there could be no proof whatsoever of treachery.
(People v. Manlasing, G.R. Nos. 131736-37, 11 March 2002).
[v] There is no treachery where the attack was preceded by

a quarrel and a heated discussion, as in this case. Here, also, there
is no ample evidence that would show that accused-appellant
deliberately or consciously adopted the means or method in
stabbing the victim. (People v. Lumintigar, G.R. No. 132557,
15 January 2002).
(c) Treachery absorbs abuse of superior strength. (People v.

Manlasing, G.R. Nos. 131736-37, 11 March 2002; People v. Lab-eo,
G.R. No. 133438, 16 January 2002).
(d) Treachery can only be considered as a qualifying

circumstance that would affect the nature of the crime and not as a
generic aggravating circumstance that would raise the penalty to
death. (People v. Bagano, G.R. No. 139531, 31 January 2002).
Cruelty. Ignominy. To be appreciated, there must be proof

that the accused delighted in making their victim suffer slowly
and gradually, causing him unnecessary physical and moral pain
in the consummation of the criminal act. That accused-appellants
burned the body of the deceased is not sufficient to show that
means were employed which added ignominy to the natural effects
of the act. Nor may cruelty as found by the trial court be sustained
because there is no showing that the victim was burned while he
was still alive. (People v. Catian, G.R. No. 139693, 24 January 2002).
Band. Whenever more than three armed malefactors shall

have acted together in the commission of an offense, it shall be
deemed to have been committed by a band. Aggravating in this
case for robbery with homicide warranting the imposition of the
death penalty. (People v. Dinamling, G.R. No. 134605, 12 March 2002).
ALTERNATIVE CIRCUMSTANCES
Relationship. Aggravating in the crimes of rape under

Article 335 and acts of lasciviousness under Article 336, RPC.
(People v. Caigat, G.R. No. 137963, 6 February 2002).
PERSONS CRIMINALLY IIABLE
Accomplices. Lariba and Rogel merely guarded the house

for the purpose of either helping the other accused-appellants in
facilitating the successful denouement to the crime or repelling
any attempt to rescue the kidnap victim, as shown by the
availability of arms and ammunition to them. They thus cooperated
in the execution of the offense by previous or simultaneous acts by
means of which they aided or facilitated the execution of the crime
but without any indispensable act for its accomplishment. It appears
that Lariba and Rogel had knowledge that Valler and Garcia
kidnapped Atty. Tioleco for the purpose of extorting ransom and
their cooperation to pursue such crime. But these facts, without
more, do not make them co-conspirators since knowledge of, and
participation in, the criminal act are also inherent elements of an
accomplice. The crime could have been accomplished even without
the participation of Lariba and Rogel. The victim had been rendered
immobile by Valler and Garcia before the latter established contacts
with Mrs. Tioleco and demanded ransom. The participation of
Lariba and Rogel was thus hardly indispensable. (People v. Garcia,
G.R. No. 133489 & 143970, 15 January 2002).
PENALTIES IN GENERAL
Penalties that may be Imposed. (a) The Sandiganbayan found

petitioner guilty of violation of Section 3602, in relation to Section
3601 of the Tariff and Customs Code of the Philippines in Criminal
Case No. 16773. However, the Sandiganbayan stated it had reason
to believe the accused Remigio was liable under the final
paragraph of Section 3407 of the same code. Actually, petitioner
was charged with violation of Section 3602, in relation to Section
3601, not Section 3407 of the same Code. Section 3407 did not exist
in 1988 (when the alleged offense was committed). It was only
introduced in 1993 with the enactment of R.A. No. 7651 on June 4,
1993. The law is settled that no statute, decree, ordinance, rule or
regulation shall be given retrospective effect unless expressly so
provided, or favorable to the accused. An accused cannot be
convicted of an offense, unless it is charged in the complaint or
information. (Remigio v. Sandiganbayan, G.R. Nos. 145422-23,
18 January 2002).
(b) Section 11 of R.A. 7659 (took effect 31 December 1993),

which amended Article 335 of the RPC, is not applicable to this
crime of rape that was committed sometime in December 1993 and
not by the end of December 1993. In respect to rape committed on
6 November 1997, R.A. 8353 (the law expanding the definition of
the crime of Rape and reclassifying the same as a crime against
persons) applies. (People v. Flores, G.R. Nos. 134488-89, 25 January
2002). At the time the alleged rape was committed in 1994, the
existing law on rape had not yet been modified to include insertion
of any instrument or foreign object into the genital or anal orifice
of another person. Said amendment provided by R.A. No. 8353,
entitled The Anti-Rape Law of 1997, became effective only on 22
October 1997. (People v. Matignas, G.R. No. 126146, 12 March 2002).
Retroactive Effect of Penal Laws. Procedural Law Favorable

to the Accused. Given retroactive effect even as the crime was
committed and the decision of the trial court rendered before the
New Rules of Criminal Procedure was promulgated. Thus, disguise
could not be appreciated to increase the penalty to death as it was
not alleged in the information. (People v. Suela, G.R. No. 133570-71,
15 January 2002).
Complex Crime. As the multiple murder and frustrated

murder resulted from the firing of several shots against the eight
(8) victims, the crimes are not complex. Article 48 of the RPC is not
applicable. (People v. Pacificador, G.R. No. 126515, 6 February 2002).
CIVIL LIABILITY
Civil Indemnity. In the nature of actual or compensatory

damages. The award is mandatory for each count, upon the finding
of the commission of the crime, without need of further proof of
damages. Guidelines:
(a) Increased to P125,000.00 in Rape with Homicide. (People

v. Felixminia G.R. No. 125333, 20 March 2002). Originally, set at
P100,000.00 in People vs. Tahop. (People v. Tablon, G.R. No. 137280,
13 March 2002).
(b) P75,000.00 in Qualified Rape (effectively qualified by

any of the circumstances under which the death penalty is mandated
by law). (People v. Rodavia, G.R. Nos. 133008-24, 6 February 2002;
People v. Marcellana, G.R. No. 137401-03, 6 February 2002; People v.
Daganio, G.R. No. 137385, 23 January 2002; People v. Callos, G.R. No.
133478, 16 January 2002; People v. Escao, G.R. Nos. 140218-23,
13 February 2002; People v. Abao, G.R. No. 142728, 23 January 2002).
(c) P50,000.00 in Rape where the death penalty is not decreed.
(People v. de la Torre, G.R. No. 98431, 15 January 2002; People v. Esuela,
G.R. Nos. 138720-21, 19 March 2002; People v. Valindo, G.R. No. 140027,
18 March 2002; People v. Palaa, G.R. No. 124053, 20 March 2002;
People v. Hermanes, G.R. No. 139416, 12 March 2002; People v. Escao,

G.R. Nos. 140218-23, 13 February 2002; People v. Esurea, G.R. No.
142727, 23 January 2002; People v. Parcia, G.R. No. 141136, 28 January
2002; People v. Tagud, G.R. No. 140733, 30 January 2002; People v.
Velasquez, G.R. Nos. 142561-62, 15 February 2002).
(c) P75,000.00 in Robbery with Homicide. (People v. Dinamling,

G.R. No. 134605, 12 March 2002).
(d) P50,000.00 in Murder. (People v. Catian, G.R. No. 139693,

24 January 2002; People v. Samson, G.R. No. 124666, 15 February 2002;
People v. Gutierrez, G.R. No. 142905, 18 March 2002).
(e) P50,000.00 in Homicide. (People v. Rama, G.R. No. 144386,

23 January 2002; People v. Pea, G.R. No. 133964, 13 February 2002;
People v. Taboga, G.R. Nos. 144086-87, 6 February 2002).
Moral Damages. In addition to civil indemnity. Also

awarded automatically, or mandatorily, without need of further
proof other than the commission of the crime. The award of moral
damages is not intended to punish the accused but to compensate
for the mental anguish, serious anxiety, and moral shock suffered
by the victim or his/her family as the proximate result of the
wrongful act. The award is not meant to enrich the victim at the
expense of the accused. (People v. Dy, G.R. Nos. 115236-37, 29 January
2002). Guidelines:
(a) P50,000.00 in Rape with Homicide. (People v. Felixminia

G.R. No. 125333, 20 March 2002; People v. Tablon, G.R. No. 137280,
13 March 2002).
(b) P200,000.00 in Kidnapping for Ransom (People v. Garcia,

G.R. No. 133489 & 143970, 15 January 2002).
(a) P50,000.00 in Rape, whether Qualified or not. (People v.

Valindo, G.R. No. 140027, 18 March 2002; People v. Esuela, G.R. Nos.
138720-21, 19 March 2002). (People v. de la Torre, G.R. No. 98431,
15 January 2002; People v. Hermanes, G.R. No. 139416, 12 March 2002;
People v. Marcellana, G.R. No. 137401-03, 6 February 2002; People v.
Esurea, G.R. No. 142727, 23 January 2002 People v. Quezada, G.R.
Nos. 135557-58, 30 January 2002; People v. Parcia, G.R. No. 141136, 28
January 2002; People v. Rodriguez, G.R. No. 133984, 30 January 2002;
People v. Tagud, G.R. No. 140733, 30 January 2002; People v. Velasquez,
G.R. Nos. 142561-62, 15 February 2002; People v. Rodriguez, G.R. No.
138987, 6 February 2002; People v. Rodavia, G.R. Nos. 133008-24, 6
February 2002; People v. Escao, G.R. Nos. 140218-23, 13 February
2002; People v. Valindo, G.R. No. 140027, 18 March 2002; People v.
Esuela, G.R. Nos. 138720-21, 19 March 2002). The fact that the
complainant has suffered the scars of mental, physical and
psychological trauma which constitute the basis for moral damages
is too obvious to still require the recital thereof at the trial by the
victim, since the Court itself even assumes and acknowledges such
agony on her part as a gauge of her credibility. (People v. Daganio,
G.R. No. 137385, 23 January 2002).
(b) P50,000.00 in Robbery with Homicide. (People v. Dinamling,

G.R. No. 134605, 12 March 2002).
(c) P50,000.00 in Murder. (People v. Alilin, G.R. No. 134379.

March 21, 2002; People v. Gutierrez, G.R. No. 142905, 18 March 2002;
People v. Abao, G.R. No. 142728, 23 January 2002People v. Samson,
G.R. No. 124666, 15 February 2002; People v. Catian, G.R. No. 139693,
24 January 2002; People v. Lab-eo, G. R. No. 133438, 16 January 2002;
People v. Orpilla, G.R. No. 118073, 25 January 2002; People v. Alilin,
G.R. No. 134379. March 21, 2002; People v. Gutierrez, G.R. No. 142905,
18 March 2002).
(d) P50,000.00 in Homicide. (People v. Cortezano, G.R. No.

140732, 29 January 2002). Award of P500,000.00 was reduced to
P50,000.00 (People v. Panabang, G.R. No. 137514-15, 16 January 2002;

People v. Taboga, G.R. Nos. 144086-87, 6 February 2002). The unlawful
killing of a person, which may either be murder or homicide,
entitles the heirs of the deceased to moral damages, without need
of independent proof other than the fact of death of the victim.
This is so because the law presumes that the death of the victim
naturally causes mental anguish, serious anxiety, and wounded
feelings to his bereaved family. (People v. Ciron, G.R. No. 139409,
18 March 2002).
Exemplary Damages. In addition to civil indemnity and

moral damages. (a) P25,000.00 in incestuous rape. (People v. Esurea,
G.R. No. 142727, 23 January 2002; People v. Daganio, G.R. No. 137385,
23 January 2002; People v. Rodriguez, G.R. No. 133984, 30 January
2002; People v. Tagud, G.R. No. 140733, 30 January 2002; People v.
Rodriguez, G.R. No. 138987, 6 February 2002; People v. Rodavia, G.R.
Nos. 133008-24, 6 February 2002).(People v. Escao, G.R. Nos. 140218-
23, 13 February 2002). (b) P25,000.00 in rape committed by use of
deadly weapon and the presence of the aggravating circumstance
of dwelling, both of which indicate the criminal perversity of the
appellant. (People v. de la Torre, G.R. No. 98431, 15 January 2002).
(c) P25,000 in Murder. (People v. Samson, G.R. No. 124666, 15 February
2002). The attendance of treachery in the killing of the victim justifies
the award of P20,000.00 exemplary damages. (People v. Panabang,
G.R. No. 137514-15, 16 January 2002). (d) P50,000.00 in homicide.
The attendance of the aggravating circumstances of dwelling and
disregard of sex, justified the award. (People v. Taboga, G.R. Nos.
144086-87, 6 February 2002). (e) P10,000 each to the surviving spouse
and the heirs of the victim of robbery with homicide. (People v.
Dinamling, G.R. No. 134605, 12 March 2002).
Actual Damages. To seek recovery of actual damages, it is

necessary to prove the actual amount of loss with a reasonable
degree of certainty, premised upon competent proof and on the
best evidence obtainable by the injured party. (People v. Taboga,
G.R. Nos. 144086-87, 6 February 2002; People v. Dinamling, G.R. No.

134605, 12 March 2002). The Court can only grant such amount for
expenses if proper receipts support them. (People v. Yatco, G.R. No.
138388, 19 March 2002). The same cannot be based on the allegation
of a witness without any tangible document to support such a
claim. Anent the award of actual damages, the same was the subject
of stipulation between the parties. Hence, the award of P21,125.00
as actual damages was affirmed. (People v. Alilin, G.R. No. 134379,
March 21, 2002). Award of actual damages was disallowed for
failure of the prosecution to present receipts in support thereof or
reduced to the extent only that they were duly supported by
receipts. (People v. Catian, G.R. No. 139693, 24 January 2002; People v.
Orpilla, G.R. No. 118073, 25 January 2002; People v. Dy, G.R. Nos.
115236-37, 29 January 2002; People v. Cuenca, G.R. No. 143819,
29 January 2002).
Temperate Damages. In lieu of actual damages, P10,000.00,

by way of temperate damages, was awarded to the heirs of the
victim since they were able to prove pecuniary loss, only that
there was no competent proof as to the amount thereof. (People v.
Orpilla, G.R. No. 118073, 25 January 2002; People v. Adlawan, G.R. No.
131839, 30 January 2002).
Loss of Earning Capacity. In addition to civil indemnity

and moral damages, actual damages for loss of net earning capacity
of the victim of a crime involving loss of human life is awarded,
computed on the basis of the following formula:
Net Earning Capacity (X) = Life Expectancy x Gross

Annual Income - Living Expenses
(50% of Gross Annual Income)
where life expectancy = 2/3 x (80 - [age of deceased]);
and
Gross Annual Income = Monthly Earnings x number
of months (12)
(People v. Orpilla, G.R. No. 118073, 25 January 2002; People v. Cortezano,

G.R. No. 140732, 29 January 2002; People v. Adlawan, G.R. No. 131839,
30 January 2002; People v. Yatco, G.R. No. 138388, 19 March 2002;
People v. Ciron, G.R. No. 139409, 18 March 2002). The new ruling in
People v. Panabang (16 January 2002) now precludes any award for
loss of earning capacity without adequate proof. The bare testimony
of the brother of the deceased that at the time of his death he was
earning P250.00 daily as carpenter is not sufficient proof. (People v.
Cuenca, G.R. No. 143819, 29 January 2002). Earlier, in People v. Verde,
the testimony of the victims wife was deemed sufficient to establish
the basis for the grant of award for the loss of earning capacity to
the heirs of the deceased despite the absence of documentary
evidence to substantiate such claim. (id.) Subsequent to People v.
Cuenca, the Court ruled that the testimony of the wife of the
deceased that her husband, a 42-year old farmer at the time of his
death, had an average harvest of twice a year from their 2-hectare
rice farm and a net gain of P50,000.00 in six months - is sufficient to
establish a basis from which the Court can make a fair and
reasonable estimate of damages for the loss of earning capacity.
(People v. Ciron, G.R. No. 139409, 18 March 2002).
Civil Liability in Rape. The accused must recognize the

child (offspring of the rape committed in December 1993) as his
natural son and give him reasonable support. (People v. Flores,
G.R. Nos. 134488-89, 25 January 2002).
SPECIFIC CRIMES
CRIMES AGAINST PERSONS
RAPE
Qualified Rape Punishable by Death.

(A) Under Section 11 of RA No. 7659 (Heinous Crime Law
or Death Penalty Law, which took effect on 31 December 1993),
as amended by R.A. No. 8353 (Anti-Rape Law, which took effect

on 22 October 1997), the imposition of the death penalty in rape
cases becomes mandatory: (1) when the offended party is under
eighteen (18) years of age (Minority) and (2) the offender is
a parent, ascendant, step-parent, guardian, or relative by
consanguinity or affinity within the third civil degree, or the
common-law spouse of the parent of the victim (Relationship).
To be properly appreciated, the qualifying circumstances of
Minority and Relationship must be specifically alleged and proved.
(People v. Esurea, G.R. No. 142727, 23 January 2002; People v. Abao,
G.R. No. 142728, 23 January 2002; People v. Valindo, G.R. No. 140027,
18 March 2002).
(a) Specific Allegation. (1) Minority. An Information merely

stating that appellant had carnal knowledge of his minor daughter,
without stating the actual age of the latter, does not meet the
requirement. Much less, an information that did not allege Minority
at all. (People v. Hermanes, G.R. No. 139416, 12 March 2002; People v.
Cristobal, G.R. No. 144161, 12 March 2002). (2) Relationship. Failure
to allege Relationship. (People v. Rodriguez, G.R. No. 138987,
6 February 2002). An allegation that accused-appellant is the uncle
of private complainants is not also sufficient. It is necessary to
specifically allege that such relationshipby affinity or consanguinity
is within the third civil degree. (People v. Velasquez, G.R. Nos. 142561-
62, 15 February 2002). (Editors Note: People v. Aquino, G.R. Nos.
144340-42, 6 August 2002 ruled that the Information which reads,
x x x the accused, being the uncle of the 5-year old Charlaine,
passes the test of sufficiency of the allegation and clearly forewarns
the accused that the circumstances of Minority and Relationship
attended the commission of the crime).
(b) Clearly Proved. (1) Minority. When the victim is ten (10)
years old or below, judicial notice of Minority may be taken. Hence,
there is no more need for the prosecution to present the certificate
of live birth or other equally acceptable official document to prove
the victims age. (People v. Valindo, G.R. No. 140027, 18 March 2002;
People v. Abao, G.R. No. 142728, 23 January 2002). When the alleged
age of the victim at the time of the sexual assault is between 13
and 18 years, neither her bare testimony nor that of her mother
would suffice to prove her age and consequently qualify the crime
to justify the imposition of the death penalty. This is because in
this era of modernism and rapid growth, the victims mere physical
appearance is not enough to gauge her exact age. (People v. Quezada,
G.R. Nos. 135557-58, 30 January 2002; People v. Rodriguez, G.R. No.
133984, 30 January 2002). The birth certificate of the victim or, in
lieu thereof, any other documentary evidence that can help establish
the age of the victim should be presented. In the case at bar, no
evidence was presented to show the victims age, save for her own
testimony. While the testimony of a person as to her age, although
hearsay, is admissible as evidence of family tradition, it cannot be
considered proof beyond reasonable doubt of Minority. (People v.
Esurea, G.R. No. 142727, 23 January 2002). Not clearly established
due to conflicting evidence. (People v. Rodriguez, G.R. No. 138987,
6 February 2002; People v. Quezada, G.R. Nos. 135557-58, 30 January
2002; People v. Silvano, G.R. Nos. 141105-11, 8 March 2002).
(2) Relationship. The bare statement in passing of the victim

that appellant is an uncle, without any corroborating testimonial
or documentary evidence to clearly establish that relationship,
would be insufficient. (People v. Capili, G.R. No. 142747, 12 March
2002). The Relationship of stepfather and stepdaughter alleged
in the information was not established as the appellant and the
victims mother were only common-law spouses (People v. Esuela,
G.R. Nos. 138720-21, 19 March 2002); or where the prosecution failed
to prove that appellant and the victims mother were married.
(People v. Valindo, G.R. No. 140027, 18 March 2002; People v. Silvano,
G.R. Nos. 141105-11, 8 March 2002).
(c) When either one of the said circumstances of Minority

and Relationship is omitted or lacking, that which is pleaded in
the information and proven by the evidence, may be considered as

a generic aggravating circumstance. (People v. Escao, G.R. Nos.
140218-23, 13 February 2002).
(b) Rape committed in full view of the spouse, parent, any

of the children or other relatives within the third civil degree of
consanguinity of the victim. The circumstance committed in full
view of the spouse, parent, any of the children or other relatives
within the third civil degree of consanguinity is a qualifying
circumstance. Although proved, it was not alleged in the
Information. As such, it cannot be appreciated to warrant the
imposition of the death penalty. (People v. Esurea, G.R. No. 142727,
23 January 2002).
(c) Rape Victim is Below Seven (7) Years Old. (Section 335,
No. 3 of the RPC, as amended by RA 7659). (People v. Felixminia
G.R. No. 125333, 20 March 2002). Article 266-B (5) of the RPC, imposes
the death penalty when the victim is a child below seven (7) years
old. The allegation in the information specifically stating that xxx
the victim xxx is only seven years old ruled out the application of this
specific provision that can justify the imposition of the capital
punishment. (People v. Baring, G.R. No. 137933, 28 January 2002).
(d) Rape with Homicide. Special Complex Crime (Article

335 of the RPC, as amended by RA No. 7659). When by reason or
on the occasion of the rape, a homicide is committed, the penalty
shall be death. (People v. Tablon, G.R. No. 137280, 13 March 2002).
Statutory Rape. The crime is committed by one who has

carnal knowledge of a woman under twelve years of age. (People v.
Palaa, G.R. No. 124053, 20 March 2002; People v. Somodio, G.R. Nos.
134139-40, 15 February 2002). When the victim is under twelve years
old, carnal knowledge alone is rape. (People v. Abao, G.R. No.
142728, 23 January 2002). Duresss or threat is immaterial. (People v.
Palaa, G.R. No. 124053, 20 March 2002; People v. Somodio, G.R. Nos.
134139-40, 15 February 2002). But, in this case, the accused-appellant

was nor convicted of statutory rape, even as the prosecution proved
that the victim was only 11 years old at the time the crime was
committed, because the information explicitly alleged that the
complainant was a 12-year old minor. (People v. Estopito,
G.R. No. 136144, 15 January 2002).
Rape. (1) Element of force, threat or intimidation - explained.

(People v. Moreno, G.R. No. 140033, 25 January 2002; People v. Rodriguez,
G.R. No. 133984, 30 January 2002; People v. Ollama, G.R. No. 133185,
6 February 2002). (a) Gang rape - not established due to insufficient
evidence to show that appellants employed force and intimidation,
as averred in the information. (People v. Castillo, G.R. No. 131200,
15 February 2002). (b) Under Article 335 of the RPC, whenever the
crime of rape is committed with the use of a deadly weapon, the
penalty shall be reclusion perpetua to death. The informations in the
aforesaid cases alleged that in the commission of the rapes, accused-
appellant was armed with a balisong or armed with a knife.
Considering the presence in these cases of the aggravating
circumstance of Minority, the proper penalty is death. (People v.
Escao, G.R. Nos. 140218-23, 13 February 2002). However, in this
case, a reading of the information discloses no allegation that the
rape was committed with the use of a deadly weapon. The
circumstance armed with a bladed weapon alleged in the
information refers to the robbery. Hence, it cannot serve to qualify
the crime of rape. (People v. Moreno, G.R. No. 140033, 25 January
2002). (c) Sweetheart theory totally unavailing. Marita is a married
woman with five children in her care. To embroil her into such
kind of amorous relationship, strong and convincing evidence is
necessary to prove the same. In those cases where the defense of
consensual relationship was sustained, evidence like love notes,
mementos and witnesses attesting to a consensual relationship were
presented. (People v. de la Torre, G.R. No. 98431, 15 January 2002).
(d) Victim was drugged, (People v. Dy, G.R. Nos. 115236-37,
29 January 2002).
(2) Element of Carnal Knowledge. Rupture of the hymen is

not essential nor is it an element of rape. Absence of hymenal
lacerations is also not an indicia that rape has not been committed.
(People v. Gilbero, G.R. No. 142005, 23 January 2002). Slightest
Penetration, explained. Decisions finding a case for rape even if
the attackers penis merely touched the external portions of the
female genitalia were made in the context of the existence of an
erectile penis capable of full penetration. The element of carnal
knowledge does not establish itself by presumptions but always
the burden lies with the State to prove this act positively and
actually. (People v. Quare, G.R. Nos. 140729-30, 15 February 2002;
People v. Caigat, G.R. No. 137963, 6 February 2002).
Anti-Rape Law of 1997. Appellant, by forcing the victim to

lie face down and inserting his penis into her anus, committed
rape under Article 266-A of the RPC, as amended by R.A. No. 8353
(the Anti-Rape Law of 1997). (People v. Perez, G.R. No. 141647-51,
6 March 2002).
Attempted Rape. (People v. Quare, G.R. Nos. 140729-30,

15 February 2002).
Murder is defined as the unlawful killing of any person

when qualified by any of the circumstances listed under Article
248 of the RPC, among which is alevosia. (People v. Gutierrez,
G.R. No. 142905, 18 March 2002; People v. Lab-eo, G. R. No. 133438.
16 January 2002).
Homicide. (People v. Salva, G.R. No. 132351, 10 January 2002;

People v. Quening, G,R. No. 132167, 8 January 2002; People v. Lumintigar,
G.R. No. 132557, 15 January 2002; People v. Gutierrez, G.R. No. 142905,
18 March 2002).
Slight Physical Injuries. (People v. Asuela, G.R. Nos. 140393-

94, 4 February 2002).
CRIMES AGAINST PERSONAL LIBERTY
Kidnapping for Ransom and Serious Illegal Detention.

There is no quantum of merit in the contention that kidnapping for
ransom is committed only when the victim is released as a result
of the payment of ransom. The gist of the crime is not the forcible
or secret confinement, imprisonment, inveiglement, or kidnapping
without lawful authority, but x x x the felonious act of so doing
with intent to hold for a ransom the person so kidnapped, confined,
imprisoned, inveigled, etc. Once intent is present, as in the case
at bar, kidnapping for ransom is already committed. Jurisprudence
is replete with cases wherein botched ransom payments and
effective recovery of the victim did not deter a finding of culpability
for kidnapping for ransom. The death penalty was imposed
on Valler and Garcia as mandated by Art. 267 of the RPC, as
amended by RA 7659. (People v. Garcia, G.R. No. 133489 & 143970,
15 January 2002).
CRIMES AGAINST PROPERTY
Robbery. Violence or intimidation against persons - not

established. (People v. Suela, G.R. No. 133570-71, 15 January 2002).
Theft. The constitutive element of violence or intimidation

against persons in robbery was not present at the time of the
snatching of the shoulder bag of the victim. The force or
intimidation exerted by the accused against the victim was for a
reason foreign to the fact of the taking of the bag, as it was for the
purpose of accomplishing his lustful desire. Accused-appellant
may thus be held liable for simple theft only, in addition to the
crime of rape. (People v. Moreno, G.R. No. 140033, 25 January 2002).
Estafa. With Unfaithfulness or Abuse of Confidence. Article

315, (1) [b], RPC. Established in this case: [i] Accused received the
jewelry for the purpose of selling the same under an express

obligation to remit to complainant the proceeds thereof or to return
those she is unable to sell, thereby creating a fiduciary relationship
between them; [ii] Accused misappropriated the jewelry as shown
by the fact that she failed to return the same or the proceeds thereof
despite demand; and [iii] the misappropriation prejudiced the
private complainant. Defense of novation of the criminal liability
rejected. (Ocampo-Paule v. CA, G.R. No. 145872, 4 February 2002).
Estafa and Violation of the Bouncing Checks Law. Article

315 (2) [d], RPC, as amended by RA No. 4885. BP Blg. 22.
(People v. Flores, G.R. Nos. 146921-22, 31 January 2002).
CRIMES AGAINST CHASTITY
Qualified Seduction. Charged with rape, the accused cannot

be convicted of qualified seduction under the same information.
Rape and qualified seduction are not identical offenses. While the
two felonies have one common element, which is carnal knowledge
of a woman, they significantly vary in all other respects. (People v.
Marcellana, G.R. Nos. 137401-03, 6 February 2002).
Acts of Lasciviousness (Article 336, RPC). Elements:

(1) that the offender commits any act of lasciviousness or lewdness;
(2) that it is done [i] by using force or intimidation or [ii] when the
offended party is deprived of reason or otherwise unconscious, or
[iii] when the offended party is under 12 years of age; and (3) that
the offended party is another person of either sex. Although the
information was for qualified rape, accused-appellant can be
convicted of acts of lasciviousness because the crime of acts of
lasciviousness is included in rape. (People v. Caigat, G.R. No. 137963,
6 February 2002). However, the above rule did not apply to this
case where the crime of rape and acts of lasciviousness were
committed by two different persons acting in conspiracy. The rule
applied here is, there being conspiracy, the crime committed by

one conspirator is added to the crime committed by his
co-conspirator and vice-versa. (People v. Dy, G.R. Nos. 115236-37,
29 January 2002).
SPECIAL COMPLEX CRIMES
Robbery with Homicide. (a) Elements: (1) the taking of

personal property with violence or intimidation against persons;
(2) that the property taken belongs to another; (3) the taking was
done with animo lucrandi; and (4) on the occasion of robbery or by
reason thereof, homicide was committed. (People v. Cario,
G.R. No. 141737, 20 March 2002). In proving the case, it is necessary
that the robbery itself be established conclusively as any other
essential element of the crime. In this case, it appears that, apart
from the sack of rice, necklace with pendant, three rings, vial of
perfume and cash which were recovered within the vicinity of the
burned house, no one saw accused-appellant actually asporting these
items, much less has it been satisfactorily shown that robbery was the main
purpose of the culprit in perpetrating the crimes. Accused-appellant
was convicted of the special complex crime because, according to
the lower court, [w]ith the recovery of the various items in or
about the vicinity of the burned house, including cash money, the
[c]ourt is convinced that robbery was the main purpose of the culprit
and that the killing was merely incidental thereto. This is a glaring
error because it practically convicted the accused-appellant of the
crime charged on the basis of an assumption. Absent any evidence
that the accused indeed robbed the victim, the special complex
crime of robbery with homicide cannot stand. (People v. Taboga,
G.R. Nos. 144086-87, 6 February 2002). In another case, there was
nothing in the evidence on record that would show that the victim
had a wristwatch and that accused-appellant took said watch on
the fateful night, as alleged in the information. In his extrajudicial
confession, accused-appellant merely narrated that he announced
a hold-up and thereafter he and the victim grappled for the gun.
As they struggled, accused-appellant squeezed the trigger, thus
shooting the victim. Accused-appellant then hurriedly got off the
taxicab, leaving his gun behind. There was no mention about the
taking of the wristwatch. As the prosecution failed to prove the
robbery, accused-appellant should only be convicted for homicide.
(People v. Boquila, G.R. No. 136145, 8 March 2002).
(b) Regardless of the number of homicides committed, the

crime should still be denominated as robbery with homicide.
The number of persons killed is immaterial and does not increase
the penalty prescribed by Article 294 of the RPC. Stated differently,
the homicides or murders and physical injuries, irrespective of
their numbers, committed on the occasion or by reason of the
robbery are merged in the composite crime of robbery with
homicide. The trial courts denomination of the offense as robbery
with double homicide is erroneous. (People v. Dinamling,
G.R. No. 134605, 12 March 2002).
(c) Whenever homicide has been committed as a consequence

or on the occasion of the robbery, all those who took part as
principals in the robbery will also be held guilty as principals of
the special complex crime of robbery with homicide, although they
did not actually take part in the homicide, unless it appears that
they endeavored to prevent the homicide. (id.).
(d) Where a complex crime is charged and the evidence

fails to support the charge as to one of the component offenses, the
accused can be convicted only of the offense proved. (People v.
Taboga, G.R. Nos. 144086-87, 6 February 2002). Where the evidence
does not conclusively prove the robbery, the killing of the victim
would be classified either as a simple homicide or murder,
depending upon the absence or presence of any qualifying
circumstance. (People v. Boquila, G.R. No. 136145, 8 March 2002).
Robbery with Rape. Article 293 (2) and Article 294 of the
RPC. To be liable for such crime, the offender must have the intent
to take the personal property of another under circumstances that
make the taking one of robbery and such intent must precede the
rape. If the original plan was to commit rape, but the accused after
committing the rape also committed robbery when the opportunity
presented itself, the robbery should be viewed as a separate and
distinct crime. In this case, the accused-appellant committed two
separate offenses of rape and theft - not the special complex
crime of robbery with rape. (People v. Moreno, G.R. No. 140033,
25 January 2002).
Rape with Homicide. See Rape.
OTHER PENAL LAWS
Anti-Piracy and Anti-Highway Robbery Law of 1974

(P.D. No. 532) (People v. Langalen, G.R. No. 139670, 21 January 2002).
BOUNCING CHECKS LAW (B.P. 22)
While the gravamen of violation of B.P. 22 is the issuance of

worthless checks that are dishonored upon their presentment for
payment, penal laws should not be applied mechanically. The
application of the law must be consistent with the purpose of and
reason for the law. When the reason for the law ceases, the law
ceases. In this case, where it appears that the creditor had collected
already more than a sufficient amount to cover the value of the
checks for payment of rentals, via auction sale, holding the debtors
president to answer for a criminal offense under B.P. 22 two years
after said collection and before the informations were filed, is no
longer tenable nor justified. (Griffith v. CA, G.R. No. 129764,
12 March 2002). Committed together with estafa. See ESTAFA.
Illegal Possession of Firearm. Although the prosecution duly

established that the crime of illegal possession of firearm under
P.D. 1866 was committed, R.A. 8294 ( took effect 7 July 1997)
amended the decree and now considers the use of unlicensed
firearm merely as a special aggravating circumstance in murder
and homicide, and not as a separate offense. Still, the above
circumstance was not appreciated in this case of murder and
frustrated murder, as the same was not alleged in the information.
The Dangerous Drugs Act of 1972, as amended. (People v.

Rodriguez, G.R. No. 144399, 20 March 2002; People v. Aspiras, G.R.
No. 138382-84, 12 February 2002; People v. Bongalon, G.R. No. 125025,
23 January 2002).
LABOR CODE OF THE PHILIPPINES
Illegal Recruitment in Large Scale. (Article 38 of the Labor

Code). Elements: (1) the offender has no valid license or authority
required by law to enable him/her to lawfully engage in recruitment
and placement of workers; (2) he or she undertakes either any
activity within the meaning of recruitment and placement defined
under Article 13 (b), or any prohibited practices enumerated under
Article 34 of the Labor Code; (3) the offender commits said acts
against three or more persons, individually or as a group. The
accused-appellants could not be convicted for illegal recruitment
committed in large scale based on several informations filed by
only one complainant. When the Labor Code speaks of illegal
recruitment committed against three (3) or more persons,
individually or as a group, it must be understood as referring to
the number of complainants in each case who are complainants
therein. In other words, a conviction for large scale illegal
recruitment must be based on a finding in each case of illegal
recruitment of three or more persons whether individually or as a
group. Article 13 (b) of the Labor Code defines recruitment and

placement as x x x any act of canvassing, enlisting, contracting,
transporting, utilizing, hiring, or procuring workers, and includes
referrals, contract services, promising or advertising for employment,
locally or abroad, whether for profit or not: x x x. Consequently,
even in the absence of money given as consideration for accused-
appellants services, she would still be considered as having
engaged in recruitment activities, since it was sufficiently
demonstrated that she promised overseas employment to private
complainants. (People v. Dionisio, G.R. No. 130170, 29 January 2002).
In another case, recruitment and placement was not sufficiently
established. Section 36, Rule 130 of the Rules of Court states that a
witness can testify only to those facts which he knows of his
personal knowledge. He is not permitted to testify as to a
conclusion of law. The testimony of the prosecution witnesses
that appellants brought them to Manila does not necessarily mean
that they were transported in the context of Article 13 (b) for it
could be that, based on the defenses account, appellants merely
accompanied Rogelios family to Manila. If two inculpatory facts
are capable of two different interpretations, that which would favor
the accused should be adopted. Again, the term recruit is a
conclusion of law. The prosecution failed to elicit from Loreta
how appellants recruited Luther. (People v. Segun, G.R. No. 119076,
25 March 2002).
(b) Illegal Recruitment Committed by a Syndicate. Elements:

(1) carried out by a group of three or more persons; (2) conspiring
and/or confederating with one another in carrying out any unlawful
or illegal transaction, enterprise or scheme defined under the first
paragraph of Article 38 of the Labor Code. It has been shown that
Karl, Yolanda and Francisco conspired with each other in convincing
private complainants to apply for overseas job and giving them
the guaranty that they would be hired as domestic helpers in Italy
although they were not licensed to do so. (People v. Hernandez,
G.R. Nos. 141221-36, 7 March 2002).
Illegal Recruitment and Estafa. A person who is convicted

of illegal recruitment may, in addition, be convicted of estafa under
Article 315 (2) of the RPC provided the elements of estafa are
present. (id.).
!"
LABOR LAW
CONDITIONS OF EMPLOYMENT
Holidays. Regular Muslim Holiday Pay. Muslim holidays

are provided under Articles 169 and 170, Title I, Book V, of P.D.
No. 1083, otherwise known as the Code of Muslim Personal Laws.
(San Miguel Corporation v. CA, G.R. No. 146775, 30 January 2002).
COLLECTIVE BARGAINING
Collective Bargaining Agreement (CBA). CBA refers to the

negotiated contract between a legitimate labor organization and
the employer concerning wages, hours of work and all other terms
and conditions of employment in a bargaining unit, including
mandatory provisions for grievances and arbitration machineries.
As in all other contracts, there must be clear indications that the
parties reached a meeting of the minds. Considering that the parties
failed to reach an agreement regarding certain items of the CBA,
they still have the duty to negotiate a new collective bargaining
agreement in good faith, pursuant to the applicable provisions of
the Labor Code. (University of the Immaculate Concepcion, Inc. v.
Secretary of Labor And Employment, G. R. No. 146291, 23 January 2002).
PAL-PALEA Agreement. (a) 10-Year Suspension of CBA.

The assailed PAL-PALEA agreement was the result of voluntary
collective bargaining negotiations undertaken in light of the severe
financial situation faced by the employer, with the peculiar and
unique intention of not merely promoting industrial peace at PAL,
but preventing the latters closure. There is no conflict between
said agreement and Article 253-A of the Labor Code. Article 253-A
has a two-fold purpose. One is to promote industrial stability and
2003] SC DECISIONS - LABOR LAW 181
predictability. Inasmuch as the agreement sought to promote

industrial peace at PAL during its rehabilitation, said agreement
satisfies the first purpose of Article 253-A. The other is to assign
specific timetables wherein negotiations become a matter of right
and requirement. Nothing in Article 253-A prohibits the parties
from waiving or suspending the mandatory timetables and agreeing
on the remedies to enforce the same. In the instant case, it was
PALEA, as the exclusive bargaining agent of PALs ground
employees, that voluntarily entered into the CBA with PAL. It
was also PALEA that voluntarily opted for the 10-year suspension
of the CBA. Either case was the unions exercise of its right to
collective bargaining. The right to free collective bargaining, after
all, includes the right to suspend it. (b) The acts of public
respondents in sanctioning the 10-year suspension of the PAL-
PALEA CBA did not contravene the protection to labor policy of
the Constitution. The agreement afforded full protection to labor;
promoted the shared responsibility between workers and
employers; and the exercised voluntary modes in settling disputes,
including conciliation to foster industrial peace. (c) The 10-year
suspension of the CBA under the PAL-PALEA agreement did not
make PALEA a company union for said period, amounting to unfair
labor practice, in violation of Article 253-A of the Labor Code. The
relevant provisions of the agreement, taken together, clearly show
the intent of the parties to maintain union security during the
period of the suspension of the CBA. Its objective is to assure the
continued existence of PALEA during the said period. It is
consistent with the State policy to promote unionism to enable
workers to negotiate with management on an even playing field
and with more persuasiveness than if they were to individually
and separately bargain with the employer. (d) The agreement does
not violate the five-year representation limit mandated by Article
253-A. Under said article, the representation limit for the exclusive
bargaining agent applies only when there is an extant CBA in full
force and effect. In the instant case, the parties agreed to suspend
the CBA and put in abeyance the limit on the representation period.
The PAL-PALEA agreement dated September 27, 1998, is a valid

exercise of the freedom to contract. Under the principle of
inviolability of contracts guaranteed by the Constitution, the contract
must be upheld. (Rivera v. Hon. Espiritu, G.R. No. 135547, 23 January
2002).
Inter-Union Conflict. Unfair Labor Practices of Labor

Organizations. Right of local union to disaffiliate from its mother
federation recognized. There is nothing shown in the records nor
is it claimed by the federation that the local union was expressly
forbidden to disaffiliate from the federation nor were there any
conditions imposed for a valid breakaway. As such, the pendency
of an election protest involving both the mother federation and the
local union did not constitute a bar to a valid disaffiliation. Neither
was it disputed by the federation that 92.5% of the total union
membership supported the claim of disaffiliation and had in fact
disauthorized the federation from instituting any complaint in their
behalf. It was entirely reasonable then for the employer company
to enter into a collective bargaining agreement with the local union
that, having validly severed itself from the federation, has affiliated
anew with another federation. The mere act of disaffiliation did
not divest the local union of its own personality; neither did it
give the federation the license to act independently of the local
union. Recreant to its mission, the federation cannot simply ignore
the demands of the local chapter and decide for its welfare. The
federation might have forgotten that as an agent it could only act
in representation, of and in accordance with the interests, of the
local union. The complaint then for unfair labor practice lodged by
the federation against the company employer and the local union
and their respective officers, having been filed by a party which
has no legal personality to institute the complaint, should have
been dismissed at the first instance for failure to state a cause of
action. (Philippine Skylanders, Inc. v. NLRC, G.R. No. 127374,
31 January 2002).
2003] SC DECISIONS - LABOR LAW 183
LABOR RELATIONS
NATIONAL LABOR RELATIONS COMMISSION
Labor Arbiters. The Labor Arbiter had no jurisdiction over

the case for illegal dismissal and non-payment of benefits filed by
an officer of a corporation. Under P.D. 902-A (The Revised
Securities Act), the law in force when the complaint for illegal
dismissal was instituted by petitioner in 1997, controversies in
the election or appointment of directors, trustees, officers, or
managers of corporations, partnerships or associations fall under
the exclusive jurisdiction of the SEC. (Nacpil v. International
Broadcasting Corporation, G.R. No. 144767, 21 March 2002).
ANTI-SEXUAL HARASSMENT ACT OF 1995 (R.A. 7877)
Sexual Harassment. Work, Education or Training-Related

(Secs. 3 and 7). Petitioner would not have been able to take undue
liberalities on the person of Juliet had it not been for his high
position in the City Health Office of Cagayan de Oro City.
(Jacutin v. People, G.R. No. 140604, 6 March 2002).
!"
LAND LAW
Forest Land. The Government claimed that at the time of

filing of the land registration case and of rendition of the decision
on June 15, 1967, the subject land was classified as timberland
under LC Project No. 15-B of San Narciso, Quezon, as shown in BF
Map No. LC-1180; hence, inalienable and not subject to registration.
Under the Regalian doctrine, all lands of the public domain belong
to the State, and the State is the source of any asserted right to
ownership in land and charged with the conservation of such
patrimony. This same doctrine also states that all lands not
otherwise appearing to be clearly within private ownership are
presumed to belong to the State. To overcome such presumption,
incontrovertible evidence must be shown by the applicant that the
land subject of the application is alienable or disposable. In the
case at bar, there was no evidence showing that the land has been
reclassified as disposable or alienable. Before any land may be
declassified from the forest group and converted into alienable or
disposable land for agricultural or other purposes, there must be a
positive act from the government. Even rules on the confirmation
of imperfect titles do not apply unless and until the land classified
as forest land is released in an official proclamation to that effect
so that it may form part of the disposable agricultural lands of the
public domain. Declassification of forest land is an express and
positive act of Government. It cannot be presumed. Neither
should it be ignored nor deemed waived. (Pagkatipunan v. CA,
G.R. No. 129682, 21 March 2002).
The classification of forest land, or any land for that matter,

is descriptive of its legal nature or status, and does not have to be
descriptive of what the land actually looks like. A forested area
classified as forest land of the public domain does not lose such
classification simply because loggers or settlers may have stripped
it of its forest cover. Moreover, the original text of Section 48 (b),
2003] SC DECISIONS - LAND LAW 185
Chapter VIII of the Public Land Act, which took effect on December
1, 1936, expressly provided that only agricultural land of the public
domain are subject to acquisitive prescription. (id.).
Petitioners contention that the Government is now barred

from questioning the validity of the certificate of title issued to
them, considering that it took the Government almost eighteen (18)
years to assail the same - is erroneous. It is a basic precept that
prescription does not run against the State. The lengthy occupation
of the disputed land by petitioners cannot be counted in their
favor, as it remained part of the patrimonial property of the State,
which property, is inalienable and indisposable. (id.)
In light of the foregoing, the CA did not err when it set

aside the June 15, 1967 decision of the court a quo and ordered that
the subject lot be reverted back to the public domain. Since the
land in question is unregistrable, the land registration court did
not acquire jurisdiction over the same. Any proceedings had or
judgment rendered therein is void and is not entitled to the respect
accorded to a valid judgment. (id.)
PROPERTY REGISTRATION DECREE (P.D. NO. 1529)
Reopening and Review of Decree of Registration (Article

32). A person deprived of land or any estate or interest therein by
adjudication or confirmation of title obtained by actual fraud may
seek the reopening and review of a decree of registration. The
Torrens System is intended to guarantee the integrity and
conclusiveness of the certificate of registration but it cannot be
used for the perpetuation of fraud against the real owner of the
registered land. (Francisco v. CA, G.R. No. 130768, 21 March 2002).
LAND REGISTRATION ACT (ACT NO. 496)
Buyer in Good Faith. As a general rule, every person

dealing with registered land may safely rely on the correctness of
the certificate of title and is no longer required to look behind the
certificate in order to determine the actual owner. (Section 39).
However, this rule is subject to the right of a person deprived of
land through fraud to bring an action for reconveyance; provided,
the rights of innocent purchasers for value and in good faith are
not prejudiced. An innocent purchaser for value or any equivalent
phrase shall be deemed under Section 38 to include an innocent
lessee, mortgagee or any other encumbrancer for value.
(Cruz v. Bancom Finance Corporation, G.R. No. 147788, 19 March 2002).
Reconstitution of Torrens Certificates. Presupposes the loss

or destruction of the original copy of the certificate of title on file
with the Register of Deeds. In such a case, the procedure prescribed
under R.A. No. 26 would have to be observed. (Rexlon Realty Group,
Inc.v. CA, G.R. No. 128412, 15 March 2002).
Replacement of Lost Duplicate Certificate. In this case, what

was sought was the issuance of another owners duplicate copy of
the certificates of title under the provisions of Section 109 of PD
No. 1529. In a petition for the issuance of a new owners duplicate
copy of a certificate of title in lieu of one allegedly lost, the RTC,
acting only as a land registration court, has no jurisdiction to pass
upon the question of actual ownership of the land covered by the
lost owners duplicate copy of the certificate of title. (Rexlon Realty
Group, Inc.v. CA, G.R. No. 128412, 15 March 2002). Private respondent
misrepresented that the owners duplicate copy of the certificate of
title was lost when, in fact, it was not. The misrepresentation in
this case, though not constituting extrinsic fraud, is still an evidence
of absence of jurisdiction. If the owners duplicate copy of a
certificate of title has not been lost but is in fact in the possession
of another person, the replacement title is void and the court
2003] SC DECISIONS - LAND LAW 187
rendering the decision did not acquire jurisdiction. Consequently,

the decision may be attacked any time. (id.).
!"
LAND REFORM LAW
Agricultural Tenancy. Essential requisites: (1) the parties

are the landowner and the tenant; (2) the subject is agricultural
land; (3) there is consent; (4) the purpose is agricultural production;
(5) there is personal cultivation; and (6) there is sharing of harvests.
All these requisites must concur in order to create a tenancy
relationship between the parties. The absence of one does not
make an occupant of a parcel of land, or a cultivator thereof, or a
planter thereon, a de jure tenant. Unless a person has established
his status as a de jure tenant, he is not entitled to security of tenure
nor is he covered by the Land Reform Program of the government
under existing tenancy laws. With the landowners admission that
petitioners were tenants on the subject landholding, the element of
sharing harvest is assumed as a factual element in that admission.
(Heirs of Jose Juanite v. CA, G. R. No. 138016, 30 January 2002).
Agricultural Lessees Right of Redemption. Arcega, et al.

are deemed the cultivators-owners of their respective land-
holdings under R.A. 3844, as amended, from the time the Land
Bank Certification dated January 15, 1982 was presented to the
RTC on January 20, 1982; and that the said Certification is
equivalent to a consignation or tender of payment in court. Thus,
the subsequent cancellation by the LBP of its earlier Certification
cannot affect the right already acquired by Arcega, et al. as such
agricultural lessees. (Heirs of Jose Juanite v. CA, G. R. No. 138016,
30 January 2002; Spouses Mallari v. Arcega, G.R. No. 106615,
20 March 2002).
Voluntary Offer to Sell. Applicable rules and procedures.

Under DAR Administrative Order No. 3, Series of 1989, it is not
necessary that the voluntary offeror of the lot be the registered
owner thereof. However, private respondent failed to show that
the DAR accepted and approved his offer to sell, without which,
2003] SC DECISIONS - LAND R EFORM LAW 189
private respondent cannot safely presume that his voluntary offer

to sell was accepted by the DAR. (GSIS v. CA, G.R. No. 128118,
15 February 2002).
!"
LEGAL ETHICS
LAWYERS
Duty to Society. (a) Respondent did not exercise the good

faith required of a lawyer in handling the legal affairs of his client.
It is evident from the records that he tried to coerce the complainant
to comply with his letter-demand by threatening to file various
charges against the latter. When the complainant did not heed his
warning, he made good his threat and filed a string of criminal
and administrative cases against the complainant. Respondents
action is malicious as the cases he instituted against the complainant
did not have any bearing or connection to the cause of his client.
Clearly, the respondent violated the proscription in Canon 19, 9.01
of the Code of Professional Responsibility. (Ong v. Atty. Unto,
Adm. Case No. 2417, 6 February 2002).
(b) In the case at bar, respondent violated his solemn oath

as a lawyer not to engage in unlawful, dishonest or deceitful
conduct. He maintained that the signature of the donor was genuine
despite the finding of experts to the contrary. He also tried to
make a mockery of the legal profession by advancing the flimsy
excuse that, as a Notary Public, his failure to submit a copy of the
document to the Clerk of Court was his secretarys fault. There is
also a showing that respondent harassed the occupants of the
property subject of the donation. He asked MERALCO to disconnect
its services to the property, threatening law suits if his demands
were not heeded. He also posted security guards to intimidate the
occupants of the property. Clearly, respondents acts caused
dishonor to the legal profession. A notary who acknowledged a
document that was a forgery destroys the integrity and dignity of
the legal profession. He does not deserve to continue as a member
of the bar. (Alitagtag v. Atty. Garcia, A. C. No. 4738, 6 February 2002).
2003] SC DECISIONS - LEGAL ETHICS 191
Duty to Client. Neglect of legal matter entrusted to counsel.

Deceiving his client that he had already filed the petition in the
annulment case when in fact, the petition was only filed on a later
date. For his neglect in handling the case, he promised to return
half of the amount that was paid to him but he never did. Such
misconduct clearly betrays the confidence reposed in him by his
client. (Reyes v. Javier, A.C. No. 5574, 1 February 2002).
JUDGES
Gross Inefficiency. Undue Delay in Rendering Decision.

Lower courts are mandated by Article VIII, Section 15 (1) of the
Constitution to resolve or decide cases within three (3) months
after they have been submitted for decision. An extension of the
period may be granted by the Court upon request of the judge
concerned on account of heavy caseload or for other reasonable
excuse. Without an extension granted by the Court, a delay in the
disposition of cases is tantamount to gross inefficiency on the
part of the judge. (Arap v. Judge Mustafa, A.M. No. SCC-01-7,
12 March 2002).
Gross Ignorance of the Law. Observance of the law is

required of every judge. When the law is sufficiently basic, a judge
owes it to his office to simply apply it; anything less than that is
either deliberate disregard thereof or gross ignorance of the law.
(De Guzman, Jr. v. Sison, A.M. No. RTJ-01-1629, 26 March 2001).
Sanctioning Dishonesty and Defying Directive of the Court.

A judge is supposed to set the example for court personnel under
his administrative supervision to follow. He cannot expect to be
effective in his judicial and administrative duties if he himself acts
contrary to the law and the established rules and orders of the
Supreme Court. Respondent judges conduct in giving a court
employee the protective mantle to falsify her official time records,
the penalty for which is dismissal from the service, and signing the
same, merits no less than the penalty of dismissal. Moreover,
respondent judges Memorandum authorizing respondent
employees further stay in Baguio City was issued in direct
contravention of an official action and directive from the Court
Administrator through whom the Supreme Court exercises
administrative supervision over all lower courts and personnel
thereof. (The Court Administrator v. Abdullahi, A.M. No. P-02-1560,
20 March 2002).
Improperiety. (a) Presence in Gambling Casinos or Cockpits.

Judges of inferior courts are enjoined from playing or being present
in gambling casinos and/or going to cockpits and placing bets in
cockfights. The fact that the cockpits where respondent used to
go were licensed and the cockfights were conducted on authorized
days will not absolve him. Verily, it is plainly despicable to see a
judge inside a cockpit and more so, to see him bet therein. Mixing
with the crowd of cockfighting enthusiasts and bettors is
unbecoming a judge and undoubtedly impairs the respect due
him. Ultimately, the Judiciary itself suffers therefrom because a
judge is a visible representation of the Judiciary. Most often, the
public mind does not separate the judge from the Judiciary. (City
Government Of Tagbilaran v. Judge Hontanosas, A.M. No. MTJ-98-1169,
29 January 2002). (b) The judges use of physical violence against a
colleague reveals a marked lack of judicial temperament and self-
restraint, traits not only desirable but indispensable for every judge
to possess; besides the basic equipment of learning in the law.
Such behavior puts the judiciary into disrepute. By fighting within
court premises, the parties have failed, not only to observe the
proper decorum expected of members of the judiciary, they
have failed to promote public confidence in the integrity and
impartiality of the judiciary. (Judge Alumbres v. Judge Caoibes, Jr.,
A.M. No. RTJ-99-1431, 23 January 2002).
2003] SC DECISIONS - LEGAL ETHICS 193
Inhibition in Criminal Cases. (City Government of Tagbilaran

v. Judge Hontanosas, A.M. No. MTJ-98-1169, 29 January 2002).
In-chambers Session. (Balderama v. Judge Alagar,

A.M. No. RTJ-99-1449, 18 January 2002).
Administrative Cases Against Judges. Section 3, Rule 17 of

the Rules of Court provides that if the plaintiff fails to comply
with any order of the court, the action may be dismissed upon
motion of the defendant or upon the courts own motion, and the
dismissal shall have the effect of an adjudication on the merits,
unless otherwise provided by the court. The Court has applied
this rule in an administrative case against a judge where the
complainant failed to appear and present evidence despite
notice. The Court would like to put to task complainants who
file administrative cases against members of the bench and
later desist from pursuing them to their conclusion. Judges
should be protected from frivolous complaints for they erode
the administration of justice. (Vistan v. Judge Angeles,
A.M. No. RTJ-02-1672, 30 January 2002).
!"
POLITICAL LAW
CONSTITUTIONAL LAW
BILL OF RIGHTS
Freedom from Unreasonable Searches and Seizures.

Warrantless Search and Seizure. (A) Search of Moving
Vehicle. A warrantless search of a moving vehicle is justified on
the ground that it is not practicable to secure a warrant because the
vehicle can be quickly moved out of the locality or jurisdiction in
which the warrant must be sought. Searches without warrant of
automobiles is also allowed for the purpose of preventing
violations of smuggling or immigration laws, provided such
searches are made at borders or constructive borders like
checkpoints near the boundary lines of the State. The mere mobility
of these vehicles, however, does not give the police officers
unlimited discretion to conduct indiscriminate searches without
warrants if made within the interior of the territory and in the
absence of probable cause. (Caballes v. CA, G.R. No. 136292,
15 January 2002).
(1) Stop-and-Search at military or police checkpoints has

been declared to be not illegal per se, for as long as it is warranted
by the exigencies of public order and conducted in a way least
intrusive to motorists. A checkpoint may either be a mere routine
inspection or it may involve an extensive search. (a) Routine
inspections are not regarded as violative of an individuals right
against unreasonable search. The search which is normally
permissible in this instance is limited to the following: [i] Where
the officer merely draws aside the curtain of a vacant vehicle which
is parked on the public fair grounds; [ii] Simply looks into a vehicle;
[iii] Flashes a light therein without opening the cars doors;
2003] SC DECISIONS - POLITICAL LAW 195
[iv] where the occupants are not subjected to a physical or body

search; [vi] where the inspection of the vehicles is limited to a
visual search or visual inspection; and [vi] where the routine check
is conducted in a fixed area. In this case, the police officers did not
merely conduct a visual search or visual inspection of herein
petitioners vehicle. They had to reach inside the vehicle, lift the
kakawati leaves and look inside the sacks before they were able to
see the cable wires. It cannot be considered a simple routine check.
(id.). (b) Extensive Search. On the other hand, when a vehicle is
stopped and subjected to an extensive search, such a warrantless
search would be constitutionally permissible only if the officers
conducting the search have reasonable or probable cause to believe,
before the search, that either the motorist is a law-offender or they
will find the instrumentality or evidence pertaining to a crime in
the vehicle to be searched. Cases of justified search of this kind
cited. In the case at bar, the vehicle of the petitioner was flagged
down because the police officers who were on routine patrol
became suspicious when they saw that the back of the vehicle was
covered with kakawati leaves which, according to them, was
unusual and uncommon. That the vehicle looked suspicious simply
because it is not common for such to be covered with kakawati
leaves does not constitute probable cause as would justify the
conduct of a search without a warrant. In addition, the police
authorities do not claim to have received any confidential report
or tipped information that petitioner was carrying stolen cable wires
in his vehicle which could otherwise have sustained their suspicion.
Jurisprudence is replete with cases where tipped information has
become a sufficient probable cause to effect a warrantless search
and seizure. Unfortunately, none exists in this case. (id.)
(B) Plain View Doctrine. An object is in plain view if it is

plainly exposed to sight. Where the object seized was inside a
closed package, the object itself is not in plain view and therefore
cannot be seized without a warrant. However, if the package
proclaims its contents, whether by its distinctive configuration, its
transparency, or if its contents are obvious to an observer, then the

contents are in plain view and may be seized. From the records of
this case, the cable wires were not exposed to sight because they
were placed in sacks and covered with leaves. The articles were
neither transparent nor immediately apparent to the police
authorities. They had no clue as to what was hidden underneath
the leaves and branches. As a matter of fact, they had to ask
petitioner what was loaded in his vehicle. In such a case, it has
been held that the object is not in plain view which could have
justified mere seizure of the articles without further search. (id.) A
search incident to a lawful arrest - is limited to the person of one
arrested and the premises within his immediate control. Under the
plain view doctrine, unlawful objects within the plain view of
an officer who has the right to be in the position to have that view
are subject to seizure. Requisites for validity: (a) Prior valid intrusion
based on a valid warrantless arrest in which the police are legally
present in the pursuit of their official duties; (b) The evidence was
inadvertently discovered by the police who had the right to be
where they were; (c) The evidence must be immediately apparent;
and (d) plain view justifies mere seizure of evidence without
further search. Here the prosecution failed to show whether or
not the plastic bag was transparent that would prove beyond
reasonable doubt that the plain view of such plastic bag would
readily disclose that its contents are marijuana. (People v. Aspiras,
G.R. No. 138382-84, 12 February 2002).
(c) Consented Search. The constitutional immunity against

unreasonable searches and seizures is a personal right which may
be waived. The consent must be voluntary in order to validate an
otherwise illegal detention and search, i.e., the consent is
unequivocal, specific, and intelligently given, uncontaminated by
any duress or coercion. Consent to a search is not to be lightly
inferred, but must be shown by clear and convincing evidence.
The question whether a consent to a search was in fact voluntary is
a question of fact to be determined from the totality of all the
circumstances. Relevant to this determination are the following

characteristics of the person giving consent and the environment in
which consent is given: [i] the age of the defendant; [ii] whether he
was in a public or secluded location; [iii] whether he objected to
the search or passively looked on; [iv] the education and intelligence
of the defendant; [v] the presence of coercive police procedures;
[vi] the defendants belief that no incriminating evidence will be
found; [vii] the nature of the police questioning; [viii] the
environment in which the questioning took place; and [ix] the
possibly vulnerable subjective state of the person consenting. It is
the State which has the burden of proving, by clear and positive
testimony, that the necessary consent was obtained and that it was
freely and voluntarily given. In case of consented searches or
waiver of the constitutional guarantee against obtrusive searches,
it is essential that: (1) the right exists; (2) the person involved had
knowledge, either actual or constructive, of the existence of such
right; and (3) the said person had an actual intention to relinquish
the right. Here, evidence is lacking that the petitioner intentionally
surrendered his right against unreasonable searches. The statements
of the police officers were not asking for his consent; they were
declaring to him that they will look inside his vehicle. It is doubtful
whether permission was actually requested and granted. Neither
can petitioners passive submission be construed as an implied
acquiescence to the warrantless search. The accused is not to be
presumed to have waived the unlawful search conducted simply
because he failed to object. (Caballes v. CA, G.R. No. 136292,
15 January 2002).
Freedom of Association. Includes the freedom not to

associate. Private respondents cannot be compelled to become
members of the SCHA (homeowners association) by the simple
expedient of including them in its Articles of Incorporation and
By-laws, without their express or implied consent. To band
themselves together as an association of lot owners in a subdivision
project, the lot owners must agree, directly or indirectly, to become
members of the association. Membership in a homeowners

association may be acquired in various ways - often through deeds
of sale, Torrens certificates or other forms of evidence of property
ownership. In the present case, however, other than the said
Articles of Incorporation and By-laws, there is no showing that
private respondents agreed to be SCHA members. (Sta. Clara
Homeowners Association v. Spouses Gaston, G.R. No. 141961,
23 January 2002).
Right to Speedy Disposition of Cases. Is deemed violated

only when the proceedings is attended by vexatious, capricious,
and oppressive delays; or when unjustified postponements of the
trial are asked for and secured, or when without cause or
unjustifiable motive, a long period of time is allowed to elapse
without the party having his case tried. (Ty-Dazo v. Sandiganbayan,
G.R. No. 143885-86, 21 January 2002).
RIGHTS OF THE ACCUSED
(1) Right to Counsel During Custodial Investigation. Section

12, Article III of the 1987 Constitution embodies the mandatory
protection afforded a person under custodial investigation for the
commission of a crime and the duty of the State to enforce such
mandate. (a) The right refers to competent and independent
counsel, - not the mere presence of a lawyer beside the accused.
An effective and vigilant counsel necessarily and logically requires
that the lawyer be present and able to advise and assist his client
from the time the confessant answers the first question asked by
the investigating officer until the signing of the extrajudicial
confession. The lawyer should ascertain that the confession is
made voluntarily and that the person under investigation fully
understands the nature and the consequence of his extrajudicial
confession in relation to his constitutional rights. The modifier
competent and independent stresses the need to accord the accused,
under the uniquely stressful conditions of a custodial investigation,

an informed judgment on the choices explained to him by a diligent
and capable lawyer. (People v. Suela, G.R. No. 133570-71, 15 January
2002). [i] Edgardos extrajudicial confession to the police authorities
was obtained in violation of his constitutional rights. This appellant
did not finish first year high school. The lawyer given to said
accused interviewed him (before the latter gave his confession) for
only around five minutes. After this initial interview, said lawyer
just listened nonchalantly to the questions propounded by the police
and to the answers given by Edgardo. Counsel was not even sure
that he had explained to appellant the consequences of his
extrajudicial confession. Furthermore, the said lawyers attention
was divided while attending the custodial investigation, as he was
also looking over another paper work on his desk. Where the
prosecution failed to discharge the States burden of proving with
clear and convincing evidence that the accused had enjoyed effective
and vigilant counsel before he extrajudicially admitted his guilt,
the extrajudicial confession cannot be given any probative value.
(id.). [ii] The appellant allegedly confessed in Leyte that the stolen
Citizen wristwatch had been given to his girlfriend. When he
rendered this confession, he did not execute any written waiver of
his right to remain silent or of his right to counsel. Any admission
wrung from the accused in violation of his constitutional rights is
inadmissible in evidence against him. Therefore, his alleged
statement as to the location of the wristwatch is inadmissible. (id.).
(b) The mantle of protection covers the period from the time
a person is taken into custody for investigation of his possible
participation in the commission of a crime or from the time he is
singled out as a suspect in the commission of a crime although not
yet in custody and up to the termination of the custodial
investigation. [i] The counsel of choice of the accused must be
present and must be able to advise and assist his client from the
time he answers the first question until the time he signs the
extra-judicial confession. (People v. Felixminia G.R. No. 125333,
20 March 2002). [ii] While the appellant was assisted by a lawyer

when he reduced his extrajudicial confession into writing and
signed it, the said lawyers testimony shows that the custodial
investigation started without his presence. Admissions obtained
during custodial investigations without the benefit of counsel
although later reduced to writing and signed in the presence of
counsel are still flawed under the Constitution. (People v. Matignas,
G.R. No. 126146, 12 March 2002).
Right to Be Presumed Innocent (People v. Escordial,

G.R. No. 138934-35, 16 January 2002).
Right Against Double Jeopardy. Judgment of acquittal in

criminal proceedings is final and unappealable whether it happens
at the trial court level or before the CA. This means that a review
of alleged errors in the said judgment arising from misappreciation
of facts and the evidence adduced cannot be made without
trampling upon the right of the accused against double jeopardy.
(Yuchengco v. CA, G.R. No 139768, 7 February 2002).
POLITICAL LAW
EXECUTIVE DEPARTMENT
Secretary of the Department of Environment and Natural

Resources (DENR). Under the Revised Forestry Code of the
Philippines, particularly Section 68-A, the Secretary of DENR or a
duly authorized representative has exclusive authority to order
the confiscation in favor of the government of the vehicles used in
the commission of offenses punishable by the said Code. DENR
promulgated Administrative Order (AO) No. 54-93, amending
Department Administrative Order (DAO) No. 59-90 providing the
guidelines for the confiscation, forfeiture and disposition of
conveyances used in violation of forestry laws, rules and
regulations. On the other hand, under Section 68 of the same code,

the transportation, movement or conveyance of forest products
without legal documents is penalized and the criminal case is within
the jurisdiction of the RTC. The guilt or the innocence of the
accused in the criminal case is immaterial to the confiscation of the
vehicle under Section 68-A which involves a different matter
cognizable by the DENR Secretary. Hence, the RTC cannot order
the release of the confiscated vehicle on the ground that the accused
in the criminal case penalized by Section 68 was acquitted.
(DENR v. Daraman, G.R. No. 125797, 15 February 2002).
GOVERNMENT OWNED
OR CONTROLLED CORPORATIONS
Water Districts. The members of the board of directors of

water districts are not entitled to receive benefits and allowances
in excess of those allowed by P.D. 198 (as amended by P.D. 768
and P.D. 1479) and the guidelines of the Local Water Utilities
Administration (LWUA) and other applicable law. R.A. 6758,
otherwise known as the Salary Standardization Law, does not apply
to water districts nor refer to the compensation of its board of
directors who do not receive salaries but per diems for their
compensation. The right to compensation of members of the board
of directors of water districts is limited to per diems. (Baybay Water
District v. COA, G.R. Nos. 147248-49, 23 January 2002).
ADMINISTRATIVE AGENCIES
National Telecommunications Commission (NTC). Nature

of Office and Functions. Issuance of provisional franchise.
(Republic v. Express Telecommunications Co., Inc., G.R. No. 147096,
15 January 2002; Bayan Telecommunications, Inc. v. Express
Telecommunications Co., Inc., G.R. No. 147210, 15 January 2002).
JUDICIAL DEPARTMENT
Heirarchy of Courts. A lower court cannot reverse or set

aside decisions or orders of a superior court, especially of the
Supreme Court, for to do so will negate the principle of hierarchy
of courts and nullify the essence of review. A final judgment,
albeit erroneous, is binding on the whole world. Thus, it is the
duty of the lower courts to obey the decisions of the Supreme
Court and render obeisance to its status as the apex of the hierarchy
of courts. A becoming modesty of inferior courts demands
conscious realization of the position that they occupy in the
interrelation and operation of the integrated judicial system of the
nation. There is only one Supreme Court from whose decisions all
other courts should take their bearings. Respondent RTC, and for
this matter, all lower courts, ought to be reminded that a final and
executory decision or order can no longer be disturbed or reopened
no matter how erroneous it may be. (Rivera v. Hon. Espiritu,
G.R. No. 135547, 23 January 2002; Spouses Mallari v. Arcega,
G.R. No. 106615, 20 March 2002).
Decisions. The Philippine Constitution mandates that no

decision shall be rendered by any court without expressing therein
clearly and distinctly the facts and the law on which it is based.
This vital requirement is not only demanded from the courts; quasi-
judicial bodies are similarly required to give basis for all their
decisions, rulings or judgments pursuant to the Administrative
Code whose roots may also be traced to the Constitutional mandate.
A decision need not be a complete recital of the evidence presented.
So long as the factual and legal bases are clearly and distinctly set
forth supporting the conclusions drawn therefrom, the decision
arrived at is valid. Nonetheless, in order to effectively buttress the
judgment arrived at, it is imperative that a decision should not be
simply limited to the dispositive portion but must state the nature
of the case, summarize the facts with references to the record, and
contain a statement of the applicable laws and jurisprudence and
the tribunals assessments and conclusions on the case. This practice

would better enable a court to make an appropriate consideration
of whether the dispositive portion of the judgment sought to
be enforced is consistent with the findings of facts and conclusions
of law made by the tribunal that rendered the decision.
(People v. Baring, G.R. No. 137933, 28 January 2002).
(b) Petitioner should bear in mind that the Decision, although

penned by a member of the Court, is a decision of the whole
Court. Hence, any attack on the integrity of the ponente, or any
member of the Court for that matter, is an attack on the entire
Court. More importantly, petitioner fails to establish with concrete
proof his imputations of bias. Petitioner and his counsel should be
admonished for making such baseless and unsubstantiated
accusations of bias against the Court. (Tangan v. CA, G.R. No. 105830,
15 January 2002).
(c) The efficacy of a decision is not necessarily impaired by

the fact that its writer only took over from a colleague who had
earlier presided at the trial. (People v. Yatco, G.R. No. 138388,
19 March 2002).
(d) Obiter Dictum defined as an opinion expressed by a

court upon some question of law which is not necessary to the
decision of the case before it. It is a remark made or opinion
expressed by a judge in his decision upon a cause, by the way,
that is, incidentally or collaterally, and not directly upon the
question before him, or upon a point not necessarily involved in
the determination of the cause, or introduced by way of illustration,
or analogy or argument. Such are not binding as precedent. An
adjudication on any point within the issues presented by the case
cannot be considered as obiter dictum, and this rule applies to all
pertinent questions, although only incidentally involved, which
are presented and decided in the regular course of the consideration
of the case and led to the final conclusion, and to any statement as
to matter on which the decision is predicated. (Villanueva v. CA,

G.R. No. 142947, 19 March 2002).
CONSTITUTIONAL COMMISSIONS
CIVIL SERVICE COMMISSION
Career Executive Service (CES). Petitioner was appointed

in a permanent capacity to the position of Executive Director II of
the TRB in 1992. At that time, said position was excluded from the
coverage of the CES, so petitioner was able to occupy said position
although she was not a career service executive officer (CESO).
The subsequent inclusion of her position under the CES, however,
did not automatically qualify her for the said position as she lacked
the required eligibility. At most, the permanent status accorded to
her appointment would only allow her to occupy said position
until the appointing authority would replace her with someone
who has the required eligibility therefor. (Dimayuga v. Benedicto,
G.R. No. 144153, 16 January 2002). Security of tenure in the CES is
acquire with respect to rank, and not to position. The guaranty of
security of tenure to members of the CES does not extend to the
particular positions to which they may be appointed (a concept
which is applicable only to first and second-level employees in the
civil service) but to the rank to which they are appointed by the
President. Then too, the cases on unconsented transfer invoked by
private respondent find no application in the present case. Private
respondents appointment is merely temporary; hence, he could
be transferred or reassigned to other positions without violating
his right to security of tenure. (id.; Dr. Osea v. Dr. Malaya,
G.R. No. 139821, 30 January 2002).
Parens Patriae. Patria Potestas. Applied in the Civil

Service. Is a government employee who has been arrested and
detained for a non-bailable offense and for which she was
suspended for her inability to report for work until the termination
of the case still required to file a formal application for leave of
absence to protect her security of tenure and be entitled to return
to work upon her acquittal. Did her absence from office for more
than one (1) year automatically justify the City Government, her
employer, to drop her from the rolls, without prior notice to her,
even as she had been placed under suspension from employment
until the termination of her case, which finally resulted in her
acquittal for lack of evidence? When the issues were finally elevated
to the Court, it resolved them with a view to do justice to the
worker. Paternal power should consist or be exercised with
affection, not in atrocity. The following concepts were discussed
and resolved: Absent Without Leave. Automatic Leave of Absence.
Civil Service Commission Authority to Interpret its Own Rules.
Suspension. Dropping from the Rolls. Backwages. Abandonment.
Due Process. Legal Effects of Void Acts. Presumption of Regularity
of Performance of Duties. Employment and its Value to the Worker.
The Court also applied: [i] the idea of suspended employer-
employee relationship widely accepted in labor law to account for
situations wherein laborers would have no work to perform for
causes not attributable to them; and [ii] the rule that a government
official or employee who had been illegally dismissed and whose
reinstatement had later been ordered is considered as not having
left his office, so that he is entitled to all the rights and privileges
that should accrue to him by virtue of the office that he held.
(Makati City v. Civil Service Commission, G.R. No. 131392, 6 February
2002). In a separate opinion Justice Vitug said the award of back
salaries should be reduced to five years conformably with the
pronouncement of the Court in a long line of cases. (id.).
THE COMMISSION ON ELECTIONS (COMELEC)
Election Returns. Discrepancies. Correction of Manifest

Errors. Exclusions of. (OHara v. COMELEC, G.R. Nos. 148941-42,
12 March 2002).
Pre-proclamation Controversies. May be filed directly with

the COMELEC. Authority to annul any canvass and proclamation
illegally made. (id.).
Failure of Elections. (Datu Ampatuan v. COMELEC,

G.R. No. 149803, 31 January 2002).
THE COMMISSION ON AUDIT (COA)
Power to Examine and Audit. (a) Under Section 2 (1), Article

IX-D of the Constitution, the power of COA to examine and audit
is non-exclusive. On the other hand, under Section 2 (2) of the
same Article of the Constitution, COAs authority to define the
scope of its audit, promulgate auditing rules and regulations, and
disallow unnecessary expenditures is exclusive. The framers of
the Constitution were fully aware of the need to allow independent
private audit of certain government agencies in addition to the
COA audit, as when there is a private investment in a government-
controlled corporation, or when a government corporation is
privatized or publicly listed, or as in the case at bar when the
government borrows money from abroad. In these instances the
government enters the marketplace and competes with the rest of
the world in attracting investments or loans. To succeed, the
government must abide with the reasonable business practices of
the marketplace. Otherwise, no investor or creditor will do business
with the government, frustrating government efforts to attract
investments or secure loans that may be critical to stimulate
moribund industries or resuscitate a badly shattered national
economy as in the case at bar. (DBP v. COA, G.R. No. 88435,
16 January 2002). (b) The power of the COA to examine and audit
government agencies, while non-exclusive, cannot be taken away
from the COA. (Section 3, Article IX-D of the Constitution). The
mere fact that private auditors may audit government agencies
does not divest the COA of its power to examine and audit the
same government agencies. The COA is neither by-passed nor

ignored since even with a private audit, the COA will still conduct
its usual examination and audit, and its findings and conclusions
will still bind government agencies and their officials. As the
constitutionally mandated auditor of all government agencies, the
COAs findings and conclusions necessarily prevail over those of
private auditors, at least insofar as government agencies and
officials are concerned. Section 8 of P.D. No. 2029 on the hiring of
private auditors also discussed. (id.). (c) Government Auditing
Code of the Philippines (P.D. No. 1445, Sections 26, 31 and 32)
does not prohibit the hiring of private auditors by government
agencies. Thus, Section 26 must be applied in harmony with Section
58 of the General Banking Law of 2000 (R.A. No. 8791) which
authorizes unequivocally the Monetary Board to require banks to
hire independent auditors and Sections 25 and 28 of the New Central
Bank Act (R.A. No. 7653), which authorize expressly the Monetary
Board to conduct periodic or special examination of all banks. (id.).
COA properly disallowed the accelerated implementation of the
Salary Standardization Law in the National Electrification
Administration. (National Electrification Administration v. COA,
G.R. No. 143481, 15 February 2002).
LOCAL GOVERNMENT
Tax Ordinances and Revenue Measures. Procedure for

Approval and Effectivity. The periods stated in Section 187 of the
Local Government Code of 1991 for questioning the constitutionality
or validity of tax ordinances or revenue measures are mandatory.
Posting in lieu of publiction. (Section 188). (Hagonoy Market Vendor
Association v. Hagonoy, G.R. No. 137621, 6 February 2002).
Local Elective Officials. Term of Office. To apply the

disqualification under Section 8, Article X of the Constitution, two
(2) conditions must concur: (1) that the official concerned has been
elected for three consecutive terms in the same local government

post, and (2) that he has fully served three consecutive terms. Under
Section 43 (b) of the Local Government Code of 1991, the term
limit for elective local officials must be taken to refer to the right to
be elected as well as the right to serve in the same elective position.
Consequently, it is not enough that an individual has served three
consecutive terms in an elective local office, he must also have
been elected to the same position for the same number of times
before the disqualification can apply. Voluntary renunciation of a
term does not cancel the renounced term in the computation of the
three term limit; conversely, involuntary severance from office for
any length of time short of the full term provided by law amounts
to an interruption of continuity of service. (Adormeo v. COMELEC,
G.R. No. 147927, 4 February 2002).
ACCOUNTABILITY OF PUBLIC OFFICERS
THE OMBUDSMAN
No Authority to Directly Remove or Dismiss Government

Officials or Empoyees. Under Section 13, subparagraph (3),
of Article XI of the 1987 Constitution, the Ombudsman can only
recommend the removal of the public official or employee found
to be at fault, to the public official concerned. The Ombudsman
has no authority to directly dismiss the petitioner from the
government service, more particularly, from his position in the
BID. (Tapiador v. Office Of The Ombudsman, G.R. No. 129124,
15 March 2002).
Investigative Powers. The power to investigate and to

prosecute granted by law to the Ombudsman is plenary and
unqualified. It pertains to any act or omission of any public officer
or employee when such act or omission appears to be illegal, unjust,
improper or inefficient. The law does not make a distinction
between cases cognizable by the Sandiganbayan and those

cognizable by regular courts. The clause any illegal act or omission
of any public official is broad enough to embrace any crime
committed by a public officer or employee. Moreover, the
jurisdiction of the Office of the Ombudsman should not be equated
with the limited authority of the Special Prosecutor under Section
11 of R.A. 6770. The Office of the Special Prosecutor is merely a
component of the Office of the Ombudsman and may only act
under the supervision and control and upon authority of the
Ombudsman. Its power to conduct preliminary investigation and
to prosecute is limited to criminal cases within the jurisdiction of
the Sandiganbayan. Hence, in this case, the Ombudsman has
authority to investigate and prosecute the criminal cases against
respondents in the RTC, even as this authority is not exclusive and
is shared with the regular prosecutors. (Ombudsman v. Enoc,
G.R. Nos. 145957-68, 25 January 2002).
URBAN LAND REFORM AND HOUSING
The Urban Land Reform Law (P.D. No. 1517). Right of

First Refusal. The right of first refusal applies only to tenants who
have resided for ten (10) years or more on the leased land declared
as within the Urban Land Reform Zone, and who have built their
homes on that land. It does not apply to apartment dwellers. P.D.
No. 2016, which amended P.D. No. 1517, did not extend its benefits
to apartment dwellers. The said law grants the right of first refusal
only to legitimate tenants who have built their homes on the land
they are leasing. (Arlegui v. CA, G.R. No. 126437, 6 March 2002).
Housing and Land Use Regulatory Board (HLURB).

Homeowners Association. Originally, administrative supervision
over homeowners associations was vested by law in the Securities
and Exchange Commission (SEC). Pursuant to Executive Order
(EO) No. 535, however, the Home Insurance and Guaranty
Corporation (HIGC) assumed the regulatory and adjudicative

functions of the SEC over homeowners associations. The powers
and responsibilities vested in the HIGC with respect to
homeowners associations were later transferred to the HLURB
pursuant to R.A. 8763. (Sta. Clara Homeowners Association v. Spouses
Gaston, G.R. No. 141961, 23 January 2002). HIGC exercises limited
jurisdiction over homeowners disputes. The law confines its
authority to controversies that arise from any of the following intra-
corporate relations: (1) between and among members of the
association; (2) between any and/or all of them and the association
of which they are members; and (3) between the association and
the State insofar as the controversy concerns its right to exist as a
corporate entity. The Complaint here is for damages. It does not
assert membership in the SCHA as its basis. Rather, it is based on
an alleged violation of the alleged right of access through the
subdivision and on the alleged embarrassment and humiliation
suffered by the plaintiffs. (id.).
NATIONAL ECONOMY AND PATRIMONY
Bangko Sentral ng Pilipinas. Central Banks constitutional

power of supervision over banks under Section 20, Article XII of
the Constitution includes the power to examine and audit banks.
Thus, COA and the Central Bank have concurrent jurisdiction under
the Constitution to examine and audit government banks. The
Bangko Sentral ng Pilipinas, which succeeded the Central Bank,
retained under the 1987 Constitution and the General Banking Law
of 2000 (R.A. No. 8791) the same constitutional and statutory power
the Central Bank had under the Freedom Constitution and the
General Banking Act (RA No. 337) with respect to the independent
audit of banks. (DBP v. COA, G.R. No. 88435, 16 January 2002).
SEQUESTRATION
Sandiganbayan. Has full authority to decide on all

incidents in the ill-gotten wealth case, including the propriety of
the writs of sequestration issued by the Presidential Commission
on Good Government. (Republic v. Sandiganbayan, G.R. No. 135789,
31 January 2002).
ADMINISTRATIVE LAW
Dishonesty, Gross Misconduct and Falsification of Official

Document. Falsification of Daily Time Records (DTRs). Dishonesty
under Rule XIV, Sec. 23, of the Omnibus Rules of the Civil Service is
punishable by dismissal on commission of the first offense. (The
Court Administrator v. Abdullahi, A.M. No. P-02-1560, 20 March 2002).
Death of Respondent. The charges against respondent

Antonio were referred to Judge Parazo for investigation, report
and recommendation, and thereafter, to the Office of the Court
Administrator for evaluation, report and recommendation.
Respondent was able to answer the complaint and substantiate his
defenses. While the administrative case was pending, respondent
died. His heirs moved for the dismissal of the case against him
and to facilitate the release of whatever benefits may have accrued
to him during his twenty years in the service. The Court resolved
the case notwithstanding and imposed the appropriate
administrative sanctions. (Office of the Court Administrator v. Atty.
Saguyod, A.M. Nos. P-96-1229-30, 25 March 2002).
PUBLIC OFFICERS
Clerk of Court (The Court Administrator v. Abdullahi,

A.M. No. P-02-1560, 20 March 2002).
Sheriffs. Deputy Sheriffs. (Talion v. Ayupan, A.M. No. P-01-

1529, 23 January 2002; DBP v. Nequinto, A.M. No. MTJ-01-1376,
23 January 2002).
!"
2003] SC DECISIONS - REMEDIAL LAW 213
REMEDIAL LAW
CIVIL PROCEDURE
ORDINARY CIVIL ACTIONS
CAUSE OF ACTION
Nowhere in the allegations does it appear that relief is sought

against petitioner. Respondents causes of action were all against
her husband, such as for judicial appointment of respondent as
administratrix of the conjugal partnership or absolute community
property; accounting by the husband of the conjugal partnership;
forfeiture of husbands share in co-owned property acquired
during his illicit relationship with petitioner and the dissolution of
the conjugal partnership of gains between respondent and her
husband; forfeiture of husbands share; support which cannot be
demanded from a stranger; and moral damages. (Relucio v. Lopez,
G.R. No. 138497, 16 January 2002)
PARTIES
Real Party in Interest. If petitioner is not a real party in

interest, she cannot be an indispensable party. (Relucio v. Lopez,
G.R. No. 138497, 16 January 2002)
Necessary Party. (id.)
PLEADINGS
Period for Filing. As early as 23 January 1993, the Court has

issued an order directing court offices closed on Saturdays so that
when the last day for filing of a pleading falls on a Saturday, the
same should be done on the following Monday, provided the latter
is not a holiday. (Herbosa v. CA, G.R. No. 119086, 25 January 2002).
MOTION TO DISMISS
Grounds. Forum-shopping. (GSIS v. Bengson Commercial

Buildings, Inc., G.R. No. 137448, 31 January 2002; Yupangco Cotton
Mills, Inc. v. CA, G.R. No. 126322, 16 January 2002). Extant when a
party repetitively avails himself of several judicial remedies in
different venues, simultaneously or successively, all substantially
founded on the same transactions, essential facts and circumstances,
all raising substantially the same issues and involving exactly the
same parties. In the case at bar, the remedy of the respondents is to
file an appeal within the reglementary period after the issuance of
the MTC decision. However, insofar as assailing the MTCs order
of execution, the respondents appeal thereof would be too slow
and inadequate to prevent the injurious effect of respondents
imminent dispossession of the property. Thus, respondents filing
of a petition for certiorari to assail the MTCs order for immediate
execution of its decision is proper. However, respondents petition
for certiorari was not limited for said purpose as they likewise
assailed the main decision of the MTC in the same petition. This
is improper as appeal is still their appropriate remedy under the
former Rules of Court (Section 1, Rule 40 Appeal from Inferior
Courts to CFI). What compounded the matter is that the respondents
had already a pending notice of appeal with the MTC to assail its
decision in the forcible entry case. Clearly, by also assailing the
decision of the MTC in the forcible entry case in their subsequent
petition for certiorari, respondents are guilty of forum-shopping
which carries the sanction of dismissal of both the petition for
certiorari and the appeal filed by the respondents with the RTC.
(Candido v. Camacho, G.R. No. 136751, 15 January 2002).
Res Judicata. (Serrano v. CA, G.R. No. 122930, 6 February

2002).
INTERVENTION
Time to Intervene. At any time before the rendition of

judgment. At the execution stage of the decision, it is not
appropriate for petitioner to intervene. (Boncodin v. CA, G. R. No.
130757, 18 January 2002).
ADMISSION BY ADVERSE PARTY
Written Request for Admission (Section 1, Rule 26 of

the Rules of Court). Addressed to a partys counsel - may be
answered by said counsel in behalf of his client. (Laada v. CA,
G.R. No. 102390, 1 February 2002).
NEW TRIAL
Newly Discovered Evidence. (Mendezona v. Ozamiz,

G.R. No. 143370, 6 February 2002; Serrano v. CA, G.R. No. 122930,
6 February 2002).
RELIEF FROM JUDGMENT
Petitioners should not suffer the consequences of their

counsels negligence. It necessarily follows then that petitioners
period to file the petition for relief should be counted from their
actual notice of the order, which was sometime in April 1999. The
petition for relief filed on May 27, 1999 was well within the sixty
day period prescribed in Rule 38, Section 3 of the 1997 Rules of
Civil Procedure. The instant case involves the possible loss of

property without due process of law. More particularly, petitioners
stand to lose their land without being allowed to defend their title
from the adverse claims of private respondents. Hence, in the
interest of substantial justice, the reopening of the case is ordered
to allow defendants, petitioners herein, an opportunity to present
evidence in their behalf. (Salazar v. CA, G.R. No. 142920, 6 February
2002; GSIS v. Bengson Commercial Buildings, Inc., G.R. No. 137448,
31 January 2002).
EXECUTION, SATISFACTION AND EFFECT OF JUDGMENT
Writ of Execution. Must conform substantially to every

essential particular of the judgment promulgated. Execution that
is not in harmony with the judgment is bereft of validity. It must
conform, more particularly, to that ordained or decreed in the
dispositive portion of the decision. In the case at bar, the
dispositive portion of the decision subject of the assailed order
and writ of execution specifically limited the liability of private
respondent and did not include the payment of interest. Hence,
the writ of execution of the decision cannot modify the same by
ordering private respondent to pay interest. (Solidbank Corporation
v. CA, G.R. No. 138131, 12 March 2002).
Execution Pending Appeal or Discretionary Execution. As

a general rule, the execution of a judgment should not be had until
and unless the judgment has become final and executory, i.e., the
period of appeal has lapsed without an appeal having been taken;
or appeal having been taken, the appeal has been resolved and the
records of the case have been returned to the court of origin, in
which event, execution shall issue as a matter of right. Execution
pending appeal in accordance with Section 2 of Rule 39 of the
Rules of Court is, therefore, the exception. The requisites for the
grant of a motion for execution pending appeal are: (a) there must
be a motion by the prevailing party with notice to the adverse

party; (b) there must be a good reason for execution pending appeal;
and (c) the good reason must be stated in a special order. Such
requisites must be strictly construed. Thus, anent the requisite that
there must be good reason justifying the execution of the judgment
pending appeal, such good reason must constitute superior
circumstances demanding urgency which will outweigh the injury
or damage should the losing party secure a reversal of the
judgment. What may constitute good reasons is addressed to the
sound discretion of the court. (Fortune Guarantee and Insurance
Corporation v. CA, G.R. No. 110701, 12 March 2002). In this case, the
finding of respondent judge and affirmed by the CA; that good
reasons existed to justify execution pending appeal of a decision
involving an electric cooperative was sustained by the Court. (id.).
In another case, superior or urgent circumstance to warrant
discretionary execution was not shown. The mere putting up of a
bond is not sufficient reason to justify the plea for execution
pending appeal. (Baez v. Baez, G.R. No. 133628, 23 January 2002).
Writ of Possession. (Rule 39, Section 33, Revised Rules of

Court). The obligation of a court to issue an ex-parte writ of
possession in favor of the purchaser in an extrajudicial foreclosure
sale ceases to be ministerial once it appears that there is a third
party in possession of the property who is claiming a right adverse
to that of the debtor/mortgagor. As such, a third person in
possession of an extrajudicially foreclosed realty, who claims a
right superior to that of the original mortgagor, may not be
dispossessed on the strength of a mere ex-parte possessory writ,
since to do so would be tantamount to his summary ejectment in
violation of the basic tenets of due process. In the same vein,
respondents are not obliged to prove their ownership of the
foreclosed lot in the ex-parte proceedings conducted below. The
trial court has no jurisdiction to determine who between the parties
is entitled to ownership and possession of the foreclosed lot.
Likewise, registration of the lot in petitioners name does not
automatically entitle the latter to possession thereof. Petitioner

must resort to the appropriate judicial process for recovery of the
property and cannot simply invoke its title in an ex-parte proceeding
to justify the ouster of respondents. (PNB v. CA, G.R. No. 135219,
17 January 2002).
Proceedings when Property Claimed by Third Person. A

third party whose property has been levied upon by a sheriff to
enforce a decision against a judgment debtor is afforded with
several alternative remedies to protect its interests: (a) File a third
party claim with the sheriff (of the Labor Arbiter in this case) and
(b) If the third party claim is denied, the third party may appeal
the denial (to the NLRC in this case). Such alternative remedies
may be availed of cumulatively and the third party is not precluded
from availing himself of the other alternative remedies in the event
he fails in the remedy first availed of. Even if a third party claim is
denied, a third party may still file the proper action with a
competent court to recover ownership of the property illegally
seized by the sheriff. This finds support in Section 17 (now 16),
Rule 39, of the Revised Rules of Court. Thus, a third-party claimant
may also avail of the remedy known as terceria by serving on
the officer making the levy an affidavit of his title and a copy
thereof upon the judgment creditor. The officer shall not be bound
to keep the property, unless such judgment creditor or his agent,
on demand of the officer, indemnifies the officer against such claim
by a bond in a sum not greater than the value of the property
levied on. An action for damages may be brought against the sheriff
within one hundred twenty (120) days from the filing of the bond.
The aforesaid remedies are nevertheless without prejudice to any
proper action that a third-party claimant may deem suitable to
vindicate his claim to the property. Such proper action is,
obviously, entirely distinct from that explicitly prescribed in Section
17 of Rule 39 and would have for its object the recovery of
ownership or possession of the property seized by the sheriff, as
well as damages resulting from the allegedly wrongful seizure
and detention thereof despite the third-party claim; and it may be

brought against the sheriff and such other parties as may be alleged
to have colluded with him in the supposedly wrongful execution
proceedings, such as the judgment creditor himself. (Yupangco
Cotton Mills, Inc. v. CA, G.R. No. 126322, 16 January 2002).
Garnishment. Forced Intervenor. Garnishment consists in

the citation of some stranger to the litigation, who is a debtor to
one of the parties to the action. By this means, such debtor stranger
becomes a forced intervenor; and the court, having acquired
jurisdiction over his person by means of citation, requires him to
pay his debt, not to his former creditor, but to the new creditor,
who is creditor in the main litigation. It is merely a case of
involuntary novation by the substitution of one creditor for another.
There is no need for the institution of a separate action under Rule
39, Section 43, which contemplates a situation where the person
allegedly holding property of (or indebted to) the judgment debtor
claims an adverse interest in the property (or denies the debt). In
this case, petitioner expressly admits its obligation to PNEI. (PNB
Madecor v. R&R Metal Casting and Fabricating, Inc., G.R. No. 132245,
2 January 2002).
Effect of Judgments. Res Judicata. (MERALCO v. Philippine

Consumers Foundation, Inc., G.R. No. 101783, 23 January 2002).
PROCEDURE IN THE COURT OF APPEALS (CA)
Execution of Judgment. No Discretionary Execution. The

CA has no authority to issue immediate execution pending appeal
of its own decision. Discretionary execution under Rule 39, Section
2(a) of the Revised Rules of Court, as amended, applies to a
judgment or final order of the trial court. On the other hand,
Section 11 of Rule 51 expressly provides that the judgment of the
CA shall be remanded to the lower court for execution ten (10)
days after entry of judgment, unless notice is given that the

decision would be appealed to the Supreme Court. By requiring
the remand of the records to the lower court after the entry of
judgment, the rules completely cut off any authority of the CA to
directly undertake the execution of the final judgment, much less
the authority to order its execution pending its finality. (Heirs of the
Late Justice Jose B. L. Reyes v. Justices Demetria, etc., A. M. No. CA-01-
32, 23 January 2002; Insular Life Assurance Company, Ltd. v. Young,
G.R. No. 140964, 16 January 2002).
PETITION FOR REVIEW
The proper remedy of a party aggrieved by a decision of

the CA is a petition for review under Rule 45 which is not similar
to a petition for certiorari under Rule 65 both of the Rules of Court.
As provided in Rule 45 of the Rules of Court, decisions, final
orders or resolutions of the CA in any case, i.e., regardless of the
nature of the action or proceedings involved, may be appealed to
the Supreme Court by filing a petition for review, which would be
but a continuation of the appellate process over the original case.
On the other hand, a special civil action under Rule 65 is an
independent action based on the specific grounds therein provided
and, as a general rule, cannot be availed of as a substitute for the
lost remedy of an ordinary appeal, including that under Rule 45.
Accordingly, when a party adopts an improper remedy, as in this
case, his petition may be dismissed outright. (Fortune Guarantee
and Insurance Corporation v. CA, G.R. No. 110701, 12 March 2002).
Petitioners failure to attach certified true copies of the assailed
Resolution of the Secretary of Justice was sufficiently explained.
(Hagonoy Market Vendor Association v. Hagonoy, G.R. No. 137621.
February 6, 2002).
ANNULMENT OF JUDGMENT OF THE RTC
Extrinsic Fraud - contemplates a situation where a litigant

commits acts outside of the trial of the case, the effect of which
prevents a party from having a trial, a real contest, or from
presenting all of his case to the court, or where it operates upon
matters pertaining, not to the judgment itself, but to the manner in
which it was procured so that there is not a fair submission of the
controversy. The overriding consideration is that the fraudulent
scheme of the prevailing litigant prevented a party from having
his day in court. (Rexlon Realty Group, Inc.v. CA, G.R. No. 128412,
15 March 2002).
PROVISIONAL REMEDIES
Temporary Restraining Order. Regularity of its issuance by

the CA (former Special Third Division). (Heirs of the Late Justice
Jose B. L. Reyes v. Justices Demetria, etc., A. M. No. CA-01-32,
23 January 2002).
Preliminary Injunction. (Kho v. CA, G.R. No. 115758,

19 March 2002).
SPECIAL CIVIL ACTIONS
FORCIBLE ENTRY AND UNLAWFUL DETAINER
Illegal Detainer. (a) Distinguished from Forcible Entry. In

forcible entry, the plaintiff has prior possession of the property
and he is deprived thereof by the defendant through force,
intimidation, threat, strategy or stealth. In an unlawful detainer,
the defendant unlawfully withholds possession of the property
after the expiration or termination of his right thereto under any
contract, express or implied; hence, prior physical possession is

not required. In this case, although the phrase unlawfully
withholding was not actually used by petitioner in her complaint,
the allegations therein nonetheless amount to an unlawful
withholding of the subject property by private respondents because
they continuously refused to vacate the premises even after
petitioners counsel had already sent them notices to that effect.
(Barba v. CA, G.R. No. 126638, 6 February 2002). (b) In the case at
bar, the MTC dismissed the case for lack of jurisdiction but, on
appeal, the RTC reversed the dismissal and rendered judgment
ejecting the defendants from the parcel of land involved and
condemning them to pay damages and attorneys fees. This is not
correct. In case of reversal of orders dismissing a case without trial
or lack of jurisdiction. the case shall be remanded to the MTC for
further proceedings. (Sec. 8 Rule 40, 1997, Rules of Civil Procedure).
The RTC, in reversing an appealed case dismissing the action,
cannot decree the eviction of the defendants and award damages.
A court cannot take judicial notice of a factual matter in controversy.
The court may take judicial notice of matters of public knowledge,
or which are capable of unquestionable demonstration, or ought to
be known to judges because of their judicial functions. Before taking
such judicial notice, the court must allow the parties to be heard
thereon. There can be no judicial notice on the rental value of the
premises in question without supporting evidence. (Herrera v. Bollos,
G. R. No. 138258, 18 January 2002).
CERTIORARI
Certiorari. (Metropolitan Manila Development Authority v. Jancom

Environmental Corporation, G.R. No. 147465, 30 January 2002).
CONTEMPT
Indirect Contempt. (Guillen v. Judge Caon, A.M. No.

MTJ-01-1381, 14 January 2002).
SPECIAL PROCEEDINGS
ESCHEATS
Interested Party in escheats proceedings. (Republic v. CA,

G.R. No. 143483, 31 January 2002).
CRIMINAL PROCEDURE
PROSECUTION OF OFFENSES
Information. Where the Crime Charged is Punishable by

Death. An information for a crime punishable with the supreme
penalty of death must adhere to a higher standard in complying
with the requirements of the law and the Rules of Court. The
qualifying circumstance must be alleged with more particularity
to alert the accused that his life hangs in the balance because of the
special circumstance that raises the crime to a higher category.
Thus, when the victims minority qualifies the crime of rape, the
exact age of the victim must be specifically alleged in the
Information to warrant the imposition of the death penalty.
(People v. Tagud, G.R. No. 140733, 30 January 2002).
Amendment of Information or Complaint. Amendment of

a criminal charge sheet depends much on the time when the change
is requested. (a) If before arraignment, it is a matter of right; no
leave of court is necessary and the prosecution is free to do so
even in matters of substance and in form. (b) An amendment sought
after the accused had already been arraigned can only be made by
a prior leave and at the discretion of the court, only as to matters

of form - when the same can be done without prejudice to the
rights of the accused. In other words, even if the amendment is
only as to matter of form, one other criterion must accompany it
for its admission, which is, that it should not be prejudicial to the
accused. In essence, matters of substance refer to the recital of
facts constituting the offense charged and determinative of the
jurisdiction of the court. All other matters are merely of form.
(Villanueva v. CA, G.R. No. 142947, 19 March 2002).
ARRAIGNMENT
Plea of Guilty to Capital Offense. Section 3, Rule 116 of the

Revised Rules of Criminal Procedure. (People v. Pastor, G.R.
No. 140208, 12 March 2002). Searching Inquiry. (People v. Rodriguez,
G.R. No. 133984, 30 January 2002).
BAIL
Petition for Bail. Duties of judges in case a petition for bail

is filed: (1) In all cases, whether bail is a matter of right or discretion,
notify the prosecutor of the hearing of the application for bail or
require him to submit his recommendation; (2) Where bail is a
matter of discretion, conduct a hearing of the application for bail,
regardless of whether or not the prosecution refuses to present
evidence to show that the guilt of the accused is strong for the
purpose of enabling the court to exercise its sound discretion;
(3) Decide whether the guilt of the accused is strong, based on the
summary of evidence of the prosecution; and (4) If the guilt of the
accused is not strong, discharge the accused upon the approval of
the bail bond. Otherwise the bail should be denied. (Te v. Judge
Perez, A.M. No. MTJ-00-1286, 21 January 2002). In this case, the trial
court scheduled several hearing dates for the petition for bail. The
prosecution asked for a reasonable opportunity to present evidence.

However, the trial court denied postponement, ostensibly to give
the accused a speedy trial. Instead, the trial court proceeded to
hear the evidence for the defense, despite vigorous objection from
the prosecution. In granting the petition for bail without giving the
prosecution adequate opportunity to adduce evidence, the trial
court acted with grave abuse of discretion. (People v. Antona,
G.R. No. 137681, 31 January 2002).
ARREST
Warrant of Arrest. The 1987 Constitution requires the judge

to determine probable cause personally, making it the exclusive
and personal responsibility of the issuing judge to satisfy himself
of the existence of probable cause. The determination of probable
cause by the prosecutor is for a purpose different from that which
is to be made by the judge. Whether there is reasonable ground to
believe that the accused is guilty of the offense charged and should
be held for trial is what the prosecutor passes upon. The judge, on
the other hand, determines whether a warrant of arrest should be
issued against the accused, i.e., whether there is a necessity for
placing him under immediate custody in order not to frustrate the
ends of justice. Since their objectives are different, the judge cannot
rely solely on the report of the prosecutor in finding probable
cause to justify the issuance of a warrant of arrest. A judge fails in
this constitutionally mandated duty if he relies merely on the
certification or report of the investigating officer. In the case at bar,
the fact that the respondent Judge ordered the re-investigation of
the case does not in any way make him liable for ignorance of the
law. (Cruz v. Judge Areola, A.M. No. RTJ-01-1642, 6 March 2002).
Arrest Without Warrant; When Lawful. (a) Accused-

appellants were arrested in flagrante delicto under Section 5(a) of
Rule 113. (People v. Rodriguez, G.R. No. 144399, 20 March 2002).

(b) An offense has just been committed and the arresting officer or
person hasprobable cause to believe based on personal
knowledge of facts or circumstances that the person to be arrested
has committed it (Section 5 (b) of Rule 113). The arrest in this
instance must be based upon probable cause, which means an
actual belief or reasonable grounds of suspicion. In these cases,
the crime took place in December 1996 but accused-appellant was
arrested only a week after the occurrence of the crime. As the
arresting officers were not present when the crime was committed,
they could not have personal knowledge of the facts and
circumstances of the commission of the crime so as to be justified
in the belief that accused-appellant was guilty of the crime. The
arresting officers had no reason for not securing a warrant.
(People v. Escordial, G.R. Nos. 138934-35, 16 January 2002).
TRIAL
Discharge of Accused to be a State Witness. Rule 119, Section

9 (now Section 17) of the Rules of Court expressly requires the
presentation of evidence in support of the prosecutions prayer for
the discharge of an accused to be a state witness. (Merciales v. CA,
G.R. No. 124171, 18 March 2002).
APPEAL
Appeal. (a) Throws the whole case open for review and it
becomes the duty of the Court to correct any error in the appealed
judgment, whether it is made the subject of an assignment of error
or not. (People v. Lab-eo, G. R. No. 133438, 16 January 16, 2002; (People
v. Salva, G.R. No. 132351, 10 January 2002). (b) Dismissed as to
accused-appellant who escaped from the detention cell, pursuant
to Rule 124, Section 8 of the Rules of Court. (People v. Matignas,
G.R. No. 126146, 12 March 2002).
EVIDENCE
PRESENTATION OF EVIDENCE
OBJECT EVIDENCE
Physical Evidence. Revolver and its mechanism. Belies

petitioners version of the incident as an accidental shooting. A
revolver is not prone to accidental firing. It will not fire unless
uncocked, then considerable pressure applied on the trigger to fire
the revolver. Physical evidence is a mute but eloquent manifestation
of truth. Regarded as evidence of the highest order. (Tangan v. CA,
G.R. No. 105830, 15 January 2002).
TESTIMONIAL EVIDENCE
Witnesses. Child Witness. Rule on Examination of a Child

Witness. Section 22. Corroboration. Corroboration shall not be
required of a testimony of a child. His testimony, if credible by
itself, shall be sufficient to support a finding of fact, conclusion, or
judgment subject to the standard proof required in criminal and
non-criminal cases. Forensic examination of a child victim of rape.
(People v. Baring, G.R. No. 137933, 28 January 2002).
Hearsay Rule. A witness can testify only to those facts which

he knows of his personal knowledge, which means those facts
which are derived from his perception. Consequently, a witness
may not testify as to what he merely learned from others either
because he was told or read or heard the same. Such testimony is
considered hearsay and may not be received as proof of the truth
of what he has learned. Such is the hearsay rule which applies not
only to oral testimony or statements but also to written evidence
as well. (Country Bankers Insurance Corporation v. Lianga Bay and
Community Multi-Purpose Cooperative, Inc., G.R. No. 136914, 25 January
2002). The Sworn Statements of Jose and Ernesto are inadmissible

in evidence for being hearsay, inasmuch as they did not take the
witness stand and could not therefore be cross-examined. (Country
Bankers Insurance Corporation v. Lianga Bay and Community Multi-
Purpose Cooperative, Inc., G.R. No. 136914, 25 January 2002).
EXCEPTIONS TO THE HEARSAY RULE
Dying Declaration and Part of the Res Gestae. (People v.

Pea, G.R. No. 133964, 13 February 2002; People v. Cortezano, G.R. No.
140732, 29 January 2002). Dying declaration not established.
(People v. Marquina, G.R. No. 130213, 31 January 2002).
Independent Relevant Statement. No error was committed

by the trial court in admitting the respective testimonies of Dorothy
and Kit that Maritess told them that accused-appellant had fired a
warning shot in the early morning of July 8, 1995, since the same
were offered not to establish the truth of Maritess statement, but
only to show that Maritess uttered the same. (People v. Norrudin,
G.R. No. 129053, 25 January 2002).
Entries in Official Records. (Country Bankers Insurance

Corporation v. Lianga Bay and Community Multi-Purpose Cooperative,
Inc., G.R. No. 136914, 25 January 2002).
PRESENTATION OF EVIDENCE
EXAMINATION OF WITNESSES
Impeachment of Adverse Partys Witness. Previous

extrajudicial statements cannot be employed to impeach the
credibility of a witness unless his attention is first directed to the
discrepancies, and he must then be given an opportunity to explain
them. It is only when the witness cannot give a reasonable

explanation that he shall be deemed impeached. (People v. Cortezano,
G.R. No. 140732, 29 January 2002).
AUTHENTICATION AND PROOF OF DOCUMENTS
Ancient Document. Escritura de Compra y Venta is admissible

even if not translated from its Spanish text because it was
not objected to and is an ancient document. (Lubos v. Galupo,
G.R. No. 139136, 16 January 2002).
WEIGHT AND SUFFICIENCY OF EVIDENCE
Circumstantial Evidence. (People v. Baniega, G.R. No. 139578,

15 February 2002; People v. Matignas, G.R. No. 126146,
12 March 2002; People v. Dinamling, G.R. No. 134605, 12 March 2002).
Extrajudicial Confession. (a) Requisites for Admissibility.

The confession must be: (1) voluntary; (2) made with the assistance
of a competent and independent counsel, preferably of the
confessants choice; (3) express; and (4) in writing. (People v. Porio,
G.R. No. 117202, 13 February 2002; People v. Matignas, G.R. No. 126146,
12 March 2002; People v. Tablon, G.R. No. 137280, 13 March 2002).
(b) Extrajudicial Confession given by accused to radio

announcer. Valid in this case. (People v. Taboga, G.R. Nos. 144086-
87, 6 February 2002). Also, Batocans confession to Rosas, who is
not a police officer, is admissible in evidence. The Rules state that
the declaration of an accused acknowledging his guilt of the
offense charged, or of any offense necessarily included therein,
may be given in evidence against him. Batocans verbal
declarations are not covered by Sections 12 (1) and (3) of Article III
of the Constitution, because they were not extracted while he was
under custodial investigation. (People v. Suela, G.R. No. 133570-71,

15 January 2002).
(c) Affidavit of Desistance. Not given credence. (People v.

Somodio, G.R. No. 134139-40, 15 February 2002).
!"
2003] SC DECISIONS - TAXATION 231
TAXATION
NATIONAL INTERNAL REVENUE CODE
DOCUMENTARY STAMP TAX
On Life Insurance Policies. Junior Estate Builder Policy

with an automatic increase clause which already formed part of
the insurance contract when originally executed. It is clear from
Section 173 that the payment of documentary stamp taxes is done
at the time the act is done or transaction had and the tax base for
the computation of documentary stamp taxes under Section 183 is
the amount fixed in the policy. Logically, the amount fixed in the
policy is the figure written on its face and whatever increases will
take effect in the future by reason of the automatic increase clause,
without the need of another contract. Thus, the amount insured by
the policy at the time of its issuance necessarily included the
additional sum covered by the automatic increase clause because
it was already determinable at the time the transaction was entered
into and formed part of the policy. The deficiency of documentary
stamp tax imposed on private respondent is definitely not on the
amount of the original insurance coverage, but on the increase of
the amount insured upon the effectivity of the Junior Estate Builder
Policy. (Commissioner of Internal Revenue v. Lincoln Philippine Life
Insurance Company, Inc., G.R. No. 119176, 19 March 2002).
LOCAL TAXATION
Real Property Tax. Tax Assessment Notices. The September

3, 1986 and October 31, 1989 notices do not contain the essential
information that a notice of assessment must specify, namely, the
value of a specific property or proportion thereof which is being
taxed, discovery, listing, classification and appraisal of the property

subject to taxation. In fact, the tenor of the notices bespeaks an
intention to collect unpaid taxes, thus the reminder to the taxpayer
that the failure to pay the taxes shall authorize the government to
auction off the properties subject to taxes. The last paragraph of
the said notices that informs the taxpayer that in case payment has
already been made, the notices may be disregarded is an indication
that it is in fact a notice of collection. Whether or not a tax assessment
had been made and sent to the petitioner prior to the collection of
back taxes by respondent Municipal Treasurer is of vital importance
in determining the applicability of Section 64 of the Real Property
Tax Code, inasmuch as payment under protest is required only
when there has in fact been a tax assessment, the validity of which
is being questioned. Concomitantly, the doctrine of exhaustion of
administrative remedies finds no application where no tax
assessment has been made. (MERALCO v. Barlis, G.R. No. 114231,
1 February 2002).
!"
THE IBP N ATIONAL O FFICERS
(2001-2003)
National President - Teofilo S. Pilando, Jr.
Executive Vice President - Jose Anselmo I. Cadiz
National Secretary - Jaime M. Vibar
National Treasurer - Ester Sison - Cruz
Executive Director for Operations - Juan Jose Rodom T. Fetiza
Executive Director for Planning - Agustinus V. Gonzaga
Asst. National Secretary - Ivan John E. Uy
Asst. National Treasurer - Maria Teresita C. Sison Go
Chairman for Legal Aid - Josefina S. Angara

Rogelio N. Velarde
(September 1, 2002 to Present)
Legal Aid National Director - Ma. Celia H. Fernandez

Pura Angelica Y. Santiago

(August 30, 2002 to Present)
Director for Bar Discipline - Victor C. Fernandez

(July 2001 to February 2003)
Julio C. Elamparo
(March 1, 2003 to Present)
Editor-in-Chief of the IBP Journal - Francis V. Sobrevias

and the IBP Newsletter
ISSN 0118-9247
Vol. XXIX, No. 1 J OURNAL OF THE I NTEGRATED B AR OF THE P HILIPPINES 1st & 2nd Quarters 2003
Vol. XXIX, No. 1 J OURNAL OF THE I NTEGRATED B AR OF THE P HILIPPINES 1st & 2nd Quarters 2003

Vol.29 No.1 2003

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JOURNAL

OF THE INTEGRATED BAR OF THE PHILIPPINES

Diwalwal Gold Mines and Direct Soledad M. Cagampang-De Castro

No More ILoveYous Rebecca E. Khan

The Double Helix in Chambers: Jose Maria A. Ochave

The Right of Legal Redemption Arturo M. De Castro

BOOK REVIEW Romeo J. Callejo, Sr.

CASE DIGEST Tarcisio A. Dio

Vol. XXIX 1st & 2nd Quarters 2003 No. 1

Diwalwal Gold Mines and Direct

The Double Helix in Chambers:

The Right of Legal Redemption

Reforming the Judiciary . . . . . . . . . . . . . . . . . . . . . Romeo J. Callejo, Sr. 111

Subject Guide and Digests

Civil Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117

TEOFILO S. PILANDO, JR.

JOSE ANSELMO I. CADIZ

SANTOS V. CATUBAY, JR.

EMIL LAO ONG

LITTIE SARAH A. AGDEPPA

Managing Editor Executive Editor

ELVI JOHN S. ASUNCION

1ST & 2ND Q UARTERS 2003 V OL . XXIX, NO. 1

ARTICLES IN THIS ISSUE

Volume XXIX No. 1 of the JOURNAL OF THE INTEGRATED BAR OF

In the lead article, Diwalwal Gold Mines and Direct State

REBECCA E. KHAN analyzes in No More I LOVE YOUs

In the third article, JOSE MARIA A. OCHAVE posits the

Next, ROMEO J. CALLEJO, SR., Associate Justice of the

The final item is a digest or summary of selected Supreme

By Soledad M. CagampangDe Castro*

Diwalwal Gold Rush Area: A Forest Reservation

The Diwalwal Gold Mines is a rich tract of mineral land

The Agusan-Davao-Surigao Forest Reservation was

In 1991, the Secretary of the Department of Environment and Natural

Recognition of Small Scale Mining

Early Filipinos engaged in both underground mining of ore

gold panning and underground mining by the Ifugaos, the Ibalois

Small scale mining has been a recognized means of

5 Whereas Clauses, Presidential Decree (P.D.) No. 1899.

The status of small scale mining as a vital economic activity

Congress may, by law, allow small-scale utilization

Congress enacted on June 27, 1991 Republic Act No. 7076,

promote, develop, protect and rationalize viable

Rep. Act No. 7076 established a Peoples Small-Scale Mining

Under Pres. Decree No. 1899, small scale mining refers to

6 Art. XII, Section 2, par. 3, 1987 Constitution of the Philippines.

1. The working is artisanal, either open cast

2. Minimal investment on infrastructures and

3. Heavy reliance on manual labor.

4. Owned, managed or controlled by an individual

Under Rep. Act. 7076, small scale mining refers to mining

Lands Open to Small Scale Mining

Under Pres. Decree No. 1899, areas that may be subject of

(1) existing mining claims whose claim owners may

9 Ibid. Sec. 3 (b), (c) , (d).

(2) new mining areas that are not covered by existing

(3) areas covered by existing reservations.10 Diwalwal

Other lands which can be open to small scale mining are