EN BANC [ A.M. No.

MTJ-97-1139, October 16, 1997 ]

ROBERTO ESPIRITU, COMPLAINANT, VS. JUDGE EDUARDO JOVELLANOS, 8TH MUNICIPAL CIRCUIT TRIAL COURT, ALCALABAUTISTA, PANGASINAN, RESPONDENT. DECISION
MENDOZA, J.: Respondent is judge of the 8th Municipal Circuit Trial Court of Alcala-Bautista, Pangasinan. He is charged with ignorance of the law, grave abuse of authority, and gross partiality in connection with the preliminary investigation of Criminal Case No. 2346 for frustrated murder which the herein complainant, Roberto Espiritu, had filed against Weny Dumlao. The facts are as follows: In his affidavit[1] in Criminal Case No. 2346, Roberto Espiritu, as complainant, alleged that at around 7:30 in the evening of July 16, 1994, while he was with a group which included Eulogio Pabunan, Arnel Guerra, Januario Peregrino, and Marcelino Bautista, Weny Dumlao approached him and fired at him three times, as a result of which complainant was wounded; that complainant was able to run away; and that Dumlao wanted to kill complainant because the latter had filed a case against Dumlaos brother, Victor, for the murder of complainants son Rolly. On the basis of this affidavit and those of Arnel Guerra[2] and Eulogio Pabunan,[3] SPO II Eduardo R. Yadao filed a criminal complaint for frustrated murder on August 10, 1994[4] in respondents court. After conducting a preliminary examination, respondent judge ordered on August 18, 1994 the arrest of Dumlao and fixed the amount of bail for his provisional liberty at P20,000.00.[5] However, in an order dated September 7, 1994, he reduced the amount of the bail to P10,000.00, stating that Dumlaos father had asked for the reduction. On September 12, 1994, he ordered any peace officer under whose custody [Dumlao] may be found to release the latter in view of the fact that Dumlao had posted bail for P10,000.00.[6] Then on October 12, 1994 he dismissed the complaint, citing, among other reasons, the fact that Dumlao had filed a case against Roberto Espiritu and others as a result of the same incident complained of in Criminal Case No. 2346. It appears that Dumlao had filed on July 27, 1994 a countercharge against complainant and others with the Office of the Provincial Prosecutor in Villasis, Pangasinan for attempted murder and illegal possession of firearm. The case was docketed as I.S. No. V-94-30. Dumlao claimed that as he approached Espiritus group, Arnel Guerra shot him, although Guerra missed him; 1

that as he ran towards his house, other members of the group also fired at him; and that Espiritus group challenged him and his father to come out and fight. Dumlaos complaint (I.S. No. V-94-30) was dismissed on August 15, 1994 for insufficiency of evidence.[7] After a reinvestigation of the two cases, however, Assistant City Prosecutor Paz de G. Peralta directed the filing of an information for attempted murder against complainant Roberto Espiritu, Arnel Guerra, Andres Espiritu, Marlino Bautista, Januario Peregrino, Abrillo Peregrino, Eulogio Pabunan, Dario Pabunan, and Landio Pabunan even as she affirmed the dismissal of Criminal Case No. 2346 against Dumlao.[8] Espiritu sought a review in the Department of Justice, but his petition was denied[9] for having been filed late and for his failure to attach the affidavits submitted during the preliminary investigation. Espiritu filed the complaint in this case, alleging irregularities committed by respondent judge in the conduct of the preliminary investigation of his complaint against Dumlao.[10] Respondent judge filed a comment,[11] denying the charges. Complainant, on the other hand, filed a reply. Among other things, complainant claimed that this was not the first time that respondent judge had shown ignorance of the rules on criminal procedure, because on September 29, 1994, in People of the Philippines v. Cesario Sanchez, Criminal Case No. V-0092, respondent judge had been reprimanded by the Regional Trial Court of Villasis, Pangasinan (Branch 50) for approving the bail bond of the accused when the latter had not yet been arrested. On June 26, 1995, the Court referred the case to Judge Pedro C. Cacho of the Regional Trial Court, Branch 52, at Tayug, Pangasinan for investigation, report, and recommendation. On October 6, 1995, Judge Cacho submitted his report, recommending that respondent judge be fined in the amount of P3,000.00 and reprimanded for neglect of duty, partiality, and/or inefficiency tantamount to grave ignorance of the law. Except as to the amount of the fine recommended, the Court concurs in the report of the investigating judge.

The charges against respondent judge relate to basically two acts committed by him: (1) granting bail to Weny Dumlao in the reduced amount of P10,000.00 and (2) dismissing the criminal complaint against Dumlao. I. With respect to the granting of bail to Weny Dumlao and the reduction of its amount to P10,000.00, complainant alleges: 2. The municipal courts are now courts of records. Per order dated September 7, 1994. . . . the Honorable Judge reduced the amount of bail His Honor set in a previous order (Page 12, Ibid.), 2

from P20,000.00 to P10,000.00 acting supposedly upon the request of the father of the accused. However, there is no such request for reduction of bail on file with the records of the case; 3. At the time the Honorable Judge acted on the request for reduction of bail, the accused was not under detention as he was not arrested nor had he voluntarily surrendered as borne by the records. Accordingly, the Court has not yet acquired jurisdiction over the person of the accused, so the Honorable Judge cannot act on such request for reduction of bail even if interceded by the father of the accused; 4. The amount at which the bail was reduced: P10,000.00 is not commensurate with the gravity of the crime charged, an evident manifestation of the Judges injudiciousness in the exercise of his authority and discretion. The bail bond guide of 1981 provides for the amount P12,500.00;

Simply stated, the complaint is that respondent judge is guilty of ignorance of the law, bias, and partiality for Dumlao as shown by the following: (a) respondent judge granted bail and later reduced its amount when the fact was that, at that time, Dumlao was not in the custody of the court; (b) there was no written motion presented for the reduction of bail, which is a necessity since MCTCs are courts of record; and (c) pursuant to the 1981 Bail Bond Guide the bail for frustrated murder should be P12,500.00. A. It is indeed true that, in general, bail presupposes that the applicant is under arrest, detained, or otherwise deprived of his liberty.[12] In this case, it appears that on July 16, 1994, shortly after the incident, Weny Dumlao surrendered to the police, but the next day (July 17, 1994) he was released to the custody of Assistant Provincial Prosecutor Emiliano Matro.[13] Prosecutor Matro testified that upon DECS Supervisor Nuelito Dumlaos request, he agreed to take custody of Dumlao for which reason Weny Dumlao was released by the police.[14] According to Matro, this was not the first time that he took custody of one who was under investigation.[15] Apparently, therefore, when Dumlao applied for bail on September 7, 1994 to respondent judge, Dumlao was not in custody. Nor was his release to the custody of Assistant City Prosecutor Matro in accordance with law. Under Rule 114, 15 of the Rules of Court, the release on recognizance of any person under detention may be ordered only by a court and only in the following cases: (a) when the offense charged is for violation of an ordinance, a light felony, or a criminal offense, the imposable penalty for which does not exceed 6 months imprisonment and/or P2,000 fine, under the circumstances provided in R.A. No. 6036; (b) where a person has been in custody for a period equal to or more than the minimum of the imposable principal penalty, without application of the Indeterminate Sentence Law or any modifying circumstance, in which case the court, in its discretion, may allow his release on his own recognizance; (c) where the accused has applied for probation, pending resolution of the case but no bail was filed or the accused is incapable of filing one; and (d) in case of a youthful offender held for physical and mental examination, trial, or appeal, if he is unable to furnish bail and under the 3

circumstances envisaged in P.D. No. 603, as amended (Art. 191).[16] But although then not in legal custody, Dumlao subsequently submitted himself to the jurisdiction of the court when on September 7, 1994 he personally asked respondent judge to admit him to bail and reduce its amount. In Paderanga v. Court of Appeals,[17] Miguel Paderanga was one of the accused in a case for multiple murder. Before the arrest warrant could be served on him, he filed through counsel a motion for admission to bail which the trial court set for hearing on November 5, 1992 with notice to both public and private prosecutors. As Paderanga was then confined at a hospital, his counsel manifested that they were submitting custody over Paderangas person to the chapter president of the Integrated Bar of the Philippines and asked that, for purposes of the hearing on his bail application, he be considered as being in the custody of the law. On November 5, 1992, the trial court admitted Paderanga to bail in the amount of P200,000.00. The next day, Paderanga in spite of his weak condition, managed to personally appear before the clerk of court of the trial court and posted bail. He was arraigned and thereafter he attended the hearings. We held that the accused was in the constructive custody of the law when he moved for admission to bail through his lawyers (1) by filing the application for bail with the trial court, (2) by furnishing true information of his actual whereabouts, and (3) by unequivocably recognizing the jurisdiction of said court. Respondent judge thus correctly granted bail to Dumlao. B. Respondent judge erred, however, in fixing the amount of bail at P20,000.00 and reducing it to P10,000.00[18] and in doing so without a hearing. Under the 1981 Bail Bond Guide (Ministry Circular No. 36, September 1, 1981), the amount of bail in cases of frustrated murder is P12,500.00.[19] In its Circular No. 10 dated July 3, 1987, the Department of Justice noted that the amounts fixed in the Bail Bond Guide had become unrealistic and impractical for the purpose of assuring the presence and/or appearance of persons facing charges in court and accordingly directed that the amount of bail be computed at the rate of P10,000.00 per year of imprisonment based on the medium penalty imposable for the offense. Judged by this standard, the P10,000.00 bail fixed in this case was inadequate. The penalty for frustrated murder prior to R.A. No. 7659 is prision mayor in its maximum period (10 years and 1 day to 12 years) to reclusion temporal in its medium period (14 years, 8 months, and 1 day to 17 years and 4 months). So that, applying Art. 50, in relation to Art. 248 of the Revised Penal Code, the medium penalty would be reclusion temporal in its minimum period (12 years and 1 day to 14 years and 8 months). Under Circular No. 10, the amount of the bail should have been fixed between P120,000.00 and P140,000.00. Either respondent judge was grossly ignorant of the law or he deliberately disregarded it to favor the accused. Considering that part of his duties as a judge is conducting preliminary investigations, it is his duty to keep abreast of the laws, rulings, and jurisprudence regarding this matter. It is apparent that he has not. In failing to do so he failed to live up to the injunction of the Code of Judicial Conduct to maintain professional competence.[20] The maxim ignorance 4

of the law excuses no one has special application to judges. Further demonstrating either deliberate disregard of the law or gross ignorance of the same, respondent judge granted bail to Weny Dumlao without notice to the prosecution, in violation of Rule 114, 18. In Chin v. Gustilo,[21] this Court ruled that notice of application for bail to the prosecution is required even though no charge has yet been filed in court and even though under the circumstances bail is a matter of right. The failure to observe the above requirement constitutes ignorance or incompetence which cannot be excused by any protestation of good faith.[22] In this case, the failure to give notice to the prosecution may be due to the fact that there was no written motion filed but only, as respondent judge himself admitted, an oral request by Dumlao and his father that the amount of the bail be reduced. What respondent judge should have done was to have Dumlao put his request in writing and then schedule the incident for hearing with notice to the prosecution. Instead, he readily granted the request, which indicates rather clearly respondent judges partiality. This partiality was nowhere more evident than in the private conference which he had with the Dumlaos in his chambers without the presence of the opposing party, the complainant in this case. Time and again we have admonished judges not only to be impartial but also to appear to be so. For appearance is an essential manifestation of reality.[23] Departing from this established norm, respondent judge signed his September 7, 1994 order reducing the amount of bail to P10,000.00 and then told Dumlao to inform the police about it so that he would be released. II. With respect to the charge that respondent judge, with grave abuse of authority, dismissed the case filed by complainant against Weny Dumlao, it is alleged that: 1. The Honorable Judge of the MCTC subpoenaed Dr. Marcelo S. Patawaran, Jr. (Page 15, Records of the Case-Annex A) and conducted examination upon the doctor without notice, nay presence, of the parties of the case. . . . It is significant to note that the searching questions propounded upon the doctor tended to diminish the significance and importance of the medical certificate (Page 5, Ibid.) which may have been achieved, but the whole of the proceedings unmasked the partiality of the Court towards the accused. Moreover, it is unbelievable that the Honorable Judge is not aware of the plenitude in our jurisprudence of proceedings undertaken by courts and tribunals without notice and presence of the parties that were declared null and void by the Supreme Court; .... 5. On September 12, 1994, the Honorable Judge issued a subpoena upon the accused, requiring the accused to submit his counter-affidavits of his witnesses and his other pieces of evidence, if any. Under the rule, and as contained in the subpoena, the accused was given ten (10) days to do so, and the period expired on September 22, 1994 as he received copies of the subpoena and the complaint with supporting affidavits on September 12, 1994 as shown by the records, Annex A. Without prior motion for extension of period, the Honorable Judge allowed the filing by the 5

accused of his counter-affidavit only on October 11, 1994, some 29 days late [actually only 19 days]. Moreover, the Court did not require the accused to furnish copy of his counter-affidavit to the complainant prior to submitting the same in Court, in violation of Section 2(c), Rule 112 of the Rules of Court; 6. In the resolution recommending the dismissal of this case . . . , the Honorable Judge cited as one reason the existence of a counter-charge pending preliminary investigation before the Office of the Provincial Prosecutor, Villasis, Pangasinan concerning the same incident which is the subject matter of this case, referring to I.S. No. V-94-30, filed by accused as complainant therein. That case (I.S. No. V-94-30) was dismissed per Resolution dated August 15, 1994, copy of which is hereto attached and marked as Annex B. After the dismissal of said case, the accused, as complainant, endeavored to revive the case, but which undertaking took him a long time, hence, the delay of accuseds counter-affidavit in Criminal Case No. 2346. . . . The fact alone that accused was allowed to delay the filing of his counter-affidavit to enable him to revive his counter-charge is an evident gross partiality of the Honorable Judge; and 7. The Honorable Judge, without any basis, directly or impliedly, made a finding that the wound sustained by herein complainant was self-inflicted, totally disregarding the evidence on record, as declared positively by eye witnesses. Such actuation bespeaks of the grave abuse of discretion by the Honorable Judge.

A. With regard to the examination of Dr. Melecio S. Patawaran, Jr. on September 1, 1994 respondent judge admits that he did not give notice to the parties of the same but claims that it was because he was only at that time in the first stage of preliminary investigation.[24] This is inconsistent with his later testimony in which he admitted that when he ordered a warrant of arrest to be issued against Dumlao on August 18, 1994, the first stage of preliminary examination had already been terminated.[25] Respondent contends that Rule 112, 3(e) did not apply to the examination of Dr. Patawaran on September 1, 1994 because at that time Dumlao had not yet submitted his counteraffidavit.[26] This provision states: If the investigating officer believes that there are matters to be clarified, he may set a hearing to propound clarificatory questions to the parties or their witnesses, during which the parties shall be afforded an opportunity to be present but without the right to examine or cross-examine. If the parties so desire, they may submit questions to the investigating officer which the latter may propound to the parties or witnesses concerned.

If, as respondent judge claims, the holding of a hearing for the purpose of asking clarificatory questions presupposes the filing by the parties of their affidavits but at the time he examined Dr. Patawaran he had not yet received the counteraffidavit of Weny Dumlao, then what he should have done was to wait until the counteraffidavit was filed and in the meantime not examine Dr. 6

Patawaran. What is particularly objectionable was the examination of Dr. Patawaran as a witness without the presence of the parties. B. Nor is there any excuse for respondents consideration of Dumlaos counteraffidavit despite the fact that it had been filed several days late. Dumlao received the order[27] requiring him to file his counteraffidavit and that of his witnesses on September 12, 1994. As under Rule 112, 3(b) Dumlao had only 10 days from receipt of the subpoena within which to comply, his counteraffidavit should have been filed not later than September 22, 1994. However, it took him 19 more days after the reglementary period had expired before he finally filed his counteraffidavit on October 11, 1994. Dumlao did not ask for an extension, yet respondent judge allowed the counteraffidavit. Respondent claims that[28] The acceptance of the Counter-Affidavit is not my duty. It is my Clerk of Court who received the Counter-Affidavit and when I look into the records, the Counter-Affidavit was already there in the record and I was also preparing a Resolution to that case, so I have to take cognizance of the Counter-Affidavit. After all, there was no one month yet that lapsed so I have to take cognizance of the Counter Affidavit. And immediately after that, I issued a Resolution.

The contention has no merit. The duty of the clerk of court was to receive the counteraffidavit.[29] It was respondent judges responsibility to see to it that what was received in his court had been filed on time. Nor is it true that when respondent judge saw the counteraffidavit, it had already been attached to the records. Clerk of Court Adoracion Marcos testified that upon receipt of the counteraffidavit, she showed it to respondent judge.[30] Respondent judge therefore knew when the counteraffidavit was filed. At the very least, he should have checked whether it was filed on time. That respondent judge allowed the late filing of the counteraffidavit can only be attributed to his desire to enable Dumlao to revive his case against complainant in the Prosecutors Office because it was the linchpin for his defense in Criminal Case No. 2346. C. What has been just said applies as well to respondent judges claim that responsibility for furnishing complainant a copy of the counteraffidavit was not the courts responsibility but Dumlaos. The service of the counteraffidavit on complainant should indeed be made by Dumlao and not by the court,[31] but respondent judge should have seen to it that this duty had been complied with upon the filing of the counteraffidavit. The serve and file rule is so basic for respondent judge not to know it. It was not fair for respondent judge to consider a pleading which the other party knew nothing about because it had not been served on him. D. In dismissing Criminal Case No. 2346, respondent judge said:[32] For the weighing and evaluation of evidence of both parties, the Court took the pain of issuing a subpoena to Dr. Marcelo [actually Melecio] S. Patawaran, Jr., a resident physician of Don 7

Amadeo Perez, Sr. Memorial Hospital at Urdaneta, Pangasinan, who testified that the bullet did not have any exit and there was no bullet left in the body and it becomes only an injury. That the patient was advised to be referred to the Pangasinan Provincial Hospital for x-ray purposes, instead he went to the Sacred Heart Hospital at Urdaneta, Pangasinan and went home after xray. That no x-ray result was submitted to Don Amadeo J. Perez, Sr. Hospital or to the Court to prove that it was really a bullet wound. That he did not notice any powder burns on the injury. . . . [I]n the opinion of the Court, the injury is self inflicted, this case should be dismissed. . . .

Thus, based on alleged testimony of Dr. Patawaran, respondent judge cast doubt on complainants claim that his wound was a gunshot wound and held that the wound had been inflicted by complainant on himself. This is contrary to Dr. Patawarans testimony in the preliminary investigation conducted by respondent judge. Dr. Patawaran said in his testimony:[33] Q: Doctor, here in this medical certificate in the findings or diagnosis it says GSW or gunshot wound, was it really in your opinion a gunshot wound? A: Yes, Judge. Q: Why do you say it is a gunshot wound? A: Because when I saw the wound it manifested the characteristic of a gunshot wound like the inversion of the skin edges. Q: You said inversion of the skin edges Doctor, did you find any bullet in the injury? A: That is why I referred the patient to the Provincial Hospital for x-ray because when you see only the entrance and no exit, its a must so as to locate the bullet as it does not have any exit. Q: Do you know if the bullet is inside the body of the person? A: That will be determined by the x-ray, sir. .... Q: In this medical certificate Doctor below the findings and diagnosis are the letters GSW is in writing and not typewritten as the injuries and entries indicated, will you please explain? A: I initialed it to make it authenticated, a typographical error, sir. Q: From the injury Doctor you can not determine also how far was the assailant? A: Probably around more or less 3 meters, sir. Q: Did you talk to the patient Roberto Espiritu when he was taken to your hospital Doctor? A: Yes, sir. 8

Q: Did Roberto Espiritu ever mention to you the name of the assailant and that he recognized him? A: I just asked what happened and he said pinaltogdac I was shot, and I did not ask the name of the assailant any more.

It would seem respondent judge simply relied on the counteraffidavit of Dumlao for his resolution, particularly the following portion of Dumlaos counteraffidavit:[34] The medical certificate of private complainant Roberto Espiritu doesnt categorically state that the wound is a gun shot wound and if the letters GSW in handwritten form in a ballpen appear therein is an information coming from and supplied by said complainant, other entries are typewritten, it is not a gun shot wound as ascertained and examined by the attending doctor; the complainant was never confined in the hospital; there is no exit of the bullet but no finding whether said bullet is embedded and found inside the body of the alleged victim-complainant; if the private-complainant ever sustained any wound, it is one that is self-inflicted in a vain effort to substantiate a false charge of a serious offense of frustrated murder making it appear as a consequence of a gunshot; the medical certificate doesnt state the healing period of the selfinflicted wound; medical certificate is attached and marked as Annex E to form part hereof.

The foregoing acts of respondent judge clearly demonstrate partiality. WHEREFORE, the Court finds Judge Eduardo U. Jovellanos GUILTY of gross misconduct and imposes on him a FINE of P20,000.00, with a WARNING that repetition of the same or similar offenses will be dealt with more severely. SO ORDERED. Narvasa, C.J., Regalado, Davide, Jr., Romero, Bellosillo, Melo, Puno, Vitug, Kapunan, Francisco, Hermosisima, Jr., Panganiban, and Torres, Jr., JJ., concur.

[1]

Sworn Statement of Roberto Espiritu dated July 18, 1994, Rollo, p. 6. Id., p. 7. Id., p. 8. Id., p. 5, Exh. U, id., p. 16. 9

[2]

[3]

[4]

[5]

[6]

Exh. I. Exh. R. Joint Resolution dated November 11, 1994, Exh. 14, Rollo, pp. 69-73. Per Letter dated February 7, 1995, Exh. 23. Rollo, pp. 1-3. Id., pp. 65-68. Feliciano v. Pasicolan, 2 SCRA 888 (1961).

[7]

[8]

[9]

[10]

[11]

[12]

[13]

The police blotter shows the following: On said time and date [July 17, 1994, 5:52 p.m.] Hon. Emiliano Matro, Asst. Provl Fiscal, Pangasinan, appeared to this station and take into his custody the living person of one Weny Dumlao y Miguel, suspect of alfa shooting incident that transpired on or about 161930H July 94, in Brgy. San Nicolas this matter wherein one Roberto Espiritu y Empabido is the victim. Said person was apprehended by elements this station after the commission of the crime and placed under custodial interrogation. For record purposes. CONFORME TO HEREIN RECORDED EVENT. (Sgd) HON. EMILIANO MATRO 7/17/94 (Custodian)
[14]

TSN, pp. 3, 6, 7, and 10, Sept. 12, 1995; Folder of TSNs, pp. 158, 161, 162, and 165. Id., p. 10; id., p. 165. 2 Florenz D. Regalado, Remedial Law Compendium 281-282 (1989). 247 SCRA 741 (1995). Order of September 7, 1994, Exh. G; Rollo, p. 24. 1981 Bail Bond Guide, p. 29. Code of Judicial Conduct, Canon 3; Aurillo, Jr. v. Francisco, 235 SCRA 283 (1994). 247 SCRA 175 (1995). Depamaylo v. Brotarlo, A.M. No. MTJ-92-731, November 29, 1996; De Los Santos-Reyes v. 10

[15]

[16]

[17]

[18]

[19]

[20]

[21]

[22]

Montesa, 247 SCRA 85 (1995).

[23]

Gallo v. Cordero, 245 SCRA 219 (1995). TSN, p. 2, Sept. 14, 1995; Folder of TSNs, p. 185. Id., p. 4; id., p. 187. Id., 5; id., p. 188. Exh. K, Rollo, p. 26. TSN, p. 22, Sept. 12, 1995; Folder of TSNs, p. 177. TSN, p. 24, Aug. 30, 1995; id., p. 52. Id., p. 23; id., p. 81. Rule 112, 3 provides:

[24]

[25]

[26]

[27]

[28]

[29]

[30]

[31]

(c) Such counter-affidavits and other supporting evidence submitted by the respondent shall also be sworn to and certified as prescribed in paragraph (a) hereof and copies thereof shall be furnished by him to the complainant.
[32]

Resolution dated October 12, 1994, Exh. M, p. 3, Rollo, p. 31. Exh. F, Rollo, pp. 21-23. Id., pp. 27-28.

[33]

[34]

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11

SECOND DIVISION [ A.M. No. RTJ-96-1335, March 05, 1997 ]

INOCENCIO BASCO, COMPLAINANT, VS. JUDGE LEO H.RAPATALO, REGIONAL TRIAL COURT, BRANCH 32, AGOO, LA UNION, RESPONDENT. RESOLUTION
ROMERO, J.: In a sworn letter-complaint dated August 14, 1995, complainant Inocencio Basco charged respondent Judge Leo M. Rapatalo of RTC, Branch 32, Agoo, La Union with gross ignorance or willful disregard of established rule of law for granting bail to an accused in a murder case (Criminal Case No. 2927) without receiving evidence and conducting a hearing. Complainant, who is the father of the victim, alleged that an information for murder was filed against a certain Roger Morente, one of three accused. The accused Morente filed a petition for bail. The hearing for said petition was set for May 31, 1995 by petitioner but was not heard since the respondent Judge was then on leave. It was reset to June 8, 1995 but on said date, respondent Judge reset it to June 22, 1995. The hearing for June 22, 1995, however, did not materialize. Instead, the accused was arraigned and trial was set. Again, the petition for bail was not heard on said date as the prosecution's witnesses in connection with said petition were not notified. Another attempt was made to reset the hearing to July 17, 1995. In the meantime, complainant allegedly saw the accused in Rosario, La Union on July 3, 1995. He later learned that the accused was out on bail despite the fact that the petition had not been heard at all. Upon investigation, complainant discovered that bail had been granted and a release order dated June 29, 1995[1] was issued on the basis of a marginal note[2] dated June 22, 1995, at the bottom of the bail petition by Assistant Prosecutor Manuel Oliva which stated: "No objection: P80,000.00," signed and approved by the assistant prosecutor and eventually by respondent Judge. Note that there was already a release order dated June 29, 1995 on the basis of the marginal note of the Assistant Prosecutor dated June 22, 1995 (when the hearing of the petition for bail was aborted and instead arraignment took place) when another hearing was scheduled for July 17, 1995. In his comment dated October 16, 1995, respondent Judge alleged that he granted the petition based on the prosecutor's option not to oppose the petition as well as the latter's recommendation setting the bailbond in the amount of P80,000.00. He averred that when the prosecution chose not to oppose the petition for bail, he had the discretion on whether to 12

approve it or not. He further declared that when he approved the petition, he had a right to presume that the prosecutor knew what he was doing since he was more familiar with the case, having conducted the preliminary investigation. Furthermore, the private prosecutor was not around at the time the public prosecutor recommended bail. Respondent Judge stated that in any case, the bailbond posted by accused was cancelled and a warrant for his arrest was issued on account of complainant's motion for reconsideration. The Assistant Provincial Prosecutor apparently conformed to and approved the motion for reconsideration.[3] To date, accused is confined at the La Union Provincial Jail. A better understanding of bail as an aspect of criminal procedure entails appreciating its nature and purposes. "Bail" is the security required by the court and given by the accused to ensure that the accused appears before the proper court at the scheduled time and place to answer the charges brought against him or her. In theory, the only function of bail is to ensure the appearance of the defendant at the time set for trial. The sole purpose of confining the accused in jail before conviction, it has been observed, is to assure his presence at the trial.[4] In other words, if the denial of bail is authorized in capital offenses, it is only in theory that the proof being strong, the defendant would flee, if he has the opportunity, rather than face the verdict of the court. Hence the exception to the fundamental right to be bailed should be applied in direct ratio to the extent of probability of evasion of the prosecution.[5] In practice, bail has also been used to prevent the release of an accused who might otherwise be dangerous to society or whom the judges might not want to release."[6] It is in view of the abovementioned practical function of bail that it is not a matter of right in cases where the person is charged with a capital offense punishable by death, reclusion perpetua or life imprisonment. Article 114, section 7 of the Rules of Court, as amended, states, "No person charged with a capital offense, or an offense punishable by reclusion perpetua or life imprisonment when the evidence of guilt is strong, shall be admitted to bail regardless of the stage of the criminal action." When the grant of bail is discretionary, the prosecution has the burden of showing that the evidence of guilt against the accused is strong. However, the determination of whether or not the evidence of guilt is strong, being a matter of judicial discretion, remains with the judge. "This discretion by the very nature of things, may rightly be exercised only after the evidence is submitted to the court at the hearing. Since the discretion is directed to the weight of the evidence and since evidence cannot properly be weighed if not duly exhibited or produced before the court,[7] it is obvious that a proper exercise of judicial discretion requires that the evidence of guilt be submitted to the court, the petitioner having the right of cross examination and to introduce his own evidence in rebuttal."[8] To be sure, the discretion of the trial court, "is not absolute nor beyond control. It must be sound, and exercised within reasonable bounds. Judicial discretion, by its very nature involves the exercise of the judge's individual opinion and the law has wisely provided that its exercise be 13

guided by well-known rules which, while allowing the judge rational latitude for the operation of his own individual views, prevent them from getting out of control. An uncontrolled or uncontrollable discretion on the part of a judge is a misnomer. It is a fallacy. Lord Mansfield, speaking of the discretion to be exercised in granting or denying bail said: "But discretion when applied to a court of justice, means sound discretion guided by law. It must be governed by rule, not by humour; it must not be arbitrary, vague and fanciful; but legal and regular."[9] Consequently, in the application for bail of a person charged with a capital offense cpunishable by death, reclusion perpetua or life imprisonment, a hearing, whether summary or otherwise in the discretion of the court, must actually be conducted to determine whether or not the evidence of guilt against the accused is strong. "A summary hearing means such brief and speedy method of receiving and considering the evidence of guilt as is practicable and consistent with the purpose of hearing which is merely to determine the weight of evidence for the purposes of bail. On such hearing, the court does not sit to try the merits or to enter into any nice inquiry as to the weight that ought to be allowed to the evidence for or against the accused, nor will it speculate on the outcome of the trial or on what further evidence may be therein offered and admitted. The course of inquiry may be left to the discretion of the court which may confine itself to receiving such evidence as has reference to substantial matters, avoiding unnecessary thoroughness in the examination and cross examination."[10] If a party is denied the opportunity to be heard, there would be a violation of procedural due process. That it is mandatory for the judge to require a hearing in a petition for bail is emphasized in the following cases: (1) People v. Sola decided in 1981.[11] In this case seven separate information for murder were filed against the accused Sola and 18 other persons. After preliminary investigation, the municipal trial court issued warrants for their arrest. However without giving the prosecution the opportunity to prove that the evidence of guilt against the accused is strong. the court granted them the right to post bail for their temporary release. Citing People v. San Diego,[12] we held: "We are of the considered opinion that whether the motion for bail of a defendant who is in custody for a capital offense be resolved in a summary proceeding or in the course of a regular trial, the prosecution must be given an opportunity to present, within a reasonable time, all the evidence that it may desire to introduce before the court should resolve the motion for bail. If, as in the criminal case involved in the instant special civil action, the prosecution should be denied such an opportunity, there would be a violation of procedural due process, and the order of the court granting bail should be considered void on that ground." (2) People v. Dacudao decided in 1989.[13] In this case, an information was filed against the accused for murder, a non-bailable offense. The judge, without conducting any hearing, granted bail on the ground that there was not enough evidence to warrant a case for murder because only affidavits of the prosecution witnesses who were allegedly not eyewitnesses to the crime were filed. We held: "Whatever the court possessed at the time it issued the questioned ruling was intended only for prima facie determining whether or not there is sufficient ground to engender a well founded belief that the crime was committed and pinpointing the persons who 14

probably committed it. Whether or not the evidence of guilt is strong for each individual accused still has to established unless the prosecution submits the issue on whatever it has already presented. To appreciate the strength or weakness of the evidence of guilt, the prosecution must be consulted or held. It is equally entitled to due process." (3) People v. Calo decided in 1990.[14] In this case, the prosecution was scheduled to present nine witnesses at the hearings held to determine whether the evidence against the private respondents was strong. After hearing the fifth witness, the respondent judge insisted on terminating the proceedings. We held: "The prosecution in the instant case was not given adequate opportunity to prove that there is strong evidence of guilt and to present within a reasonable time all the evidence it desired to present." (4) Libarios v. Dabalo decided in 1991[15] which involved an administrative complaint against the respondent judge for ignorance of the law and grave abuse of discretion. In this case, the respondent judge, without conducting any prior hearing, directed the issuance of a warrant of arrest against the accused charged with murder, fixing at the same time the bail at P50,000.00 each on the ground that the evidence against them was merely circumstantial. We held: "Where a person is accused of a capital offense, the trial court must conduct a hearing in a summary proceeding to allow the prosecution to present, within a reasonable time, all evidence it may desire to produce to prove that the evidence of guilt against the accused is strong before resolving the issue of bail for the temporary release of the accused. Failure to conduct a hearing before fixing bail in the instant case amounted to a violation of due process." The respondent judge was ordered to pay a fine of P20,000.00 and warned to exercise more care in the performance of his duties. (5) People v. Nano decided in 1992.[16] In this case. the judge issued an order admitting the accused in a kidnapping and murder case to bail without any hearing. We held: "The prosecution must first be given an opportunity to present evidence because by the very nature of deciding applications for bail, it is on the basis of such evidence that judicial discretion is weighed against in determining whether the guilt of the accused is strong." (6) Pico v. Combong, Jr. decided in 1992.[17]In this administrative case, the respondent judge granted bail to an accused charged with an offense punishable by reclusion perpetua, without notice and hearing and even before the accused had been arrested or detained. We held: "It is well settled that an application for bail from a person charged with a capital offense (now an offense punishable by reclusion perpetua) must be set for hearing at which both the defense and the prosecution must be given reasonable opportunity to prove (in case of the prosecution) that the evidence of guilt of the applicant is strong, or (in the case of the defense) that such evidence of guilt was not strong." The respondent judge was ordered to pay a fine of P20,000.00 and warned to exercise greater care and diligence in the performance of his duties. (7) De Guia v. Maglalang decided in 1993,[18] the respondent judge issued a warrant of arrest and also fixed the bail of an accused charged with the non bailable offense of statutory rape 15

without allowing the prosecution an opportunity to show that the evidence of guilt against the accused is strong. Respondent judge alleged that the only evidence on record the sworn statements of the complaining witness and her guardian were not sufficient to justify the denial of bail. We held: "It is an established principle that in cases where a person is accused of a capital offense, the trial court must conduct a hearing in a summary proceeding, to allow the prosecution an opportunity to present, within a reasonable time, all evidence it may desire to produce to prove that the evidence of guilt against the accused is strong, before resolving the issue of bail for the temporary release of the accused. Failure to conduct a hearing before fixing bail amounts to a violation of due process." It was noted that the warrant of arrest was returned unserved and that after the case was re-raffled to the complainant judge's sala, the warrant was set aside and cancelled. There was no evidence on record showing whether the approved bail was revoked by the complainant judge, whether the accused was apprehended or whether the accused filed an application for bail. Hence, the respondent judge was ordered to pay a fine of P5,000.00 instead of the usual P20,000.00 that the court imposes on judges who grant the application of bail without notice and hearing. (8) Borinaga v. Tamin decided in 1993.[19] In this case, a complaint for murder was filed against five persons. While the preliminary investigation was pending in the Municipal Circuit Trial Court, a petition for bail was filed by one of the accused before the respondent judge in the Regional Trial Court. The respondent judge ordered the prosecutor to appear at the hearing to present evidence that the guilt of the accused is strong. At the scheduled hearing, the public prosecutor failed to appear prompting the respondent to grant the application for bail. We held: "Whether the motion for bail of an accused who is in custody for a capital offense be resolved in a summary proceeding or in the course of a regular trial, the prosecution must be given an opportunity to present within a reasonable time all evidence it may desire to introduce before the court may resolve the motion for bail." The respondent judge was fined P20,000.00 and was warned that the commission of a similar offense in the future will be dealt with more severely. (9) Aurillo v. Francisco decided in 1994.[20] In this administrative case, the respondent judge issued two separate warrants of arrest against two persons charged with murder and parricide, but fixed the amount of bail for each accused without notifying the prosecution of any motion to fix bail nor of any order granting the same. Citing People v. Dacudao,[21] we held: "A hearing is absolutely indispensable before a judge can properly determine whether the prosecution's evidence is weak or strong. Hence, a denial of the prosecution's request to adduce evidence, deprives it of procedural due process, a right to which it is equally entitled as the defense. A hearing is required to afford the judge a basis for determining the existence of those factors set forth under Rule 114, Sec 6." The respondent judge was ordered to pay a fine of P20,000 with a warning that the commission of the same or similar acts in the future will be dealt with more severely. (10) Estoya v. Abraham-Singson decided in 1994[22] In this case, an administrative complaint was filed against the respondent judge, alleging, among others, that she granted an application for bail filed by the accused charged with murder. The grant was made over the objection of the 16

prosecution which insisted that the evidence of guilt was strong and without allowing the prosecution to present evidence in this regard. We held: "In immediately granting bail and fixing it at only P20,000.00 for each of the accused without allowing the prosecution to present its evidence, the respondent denied the prosecution due process. This Court had said so in many cases and had imposed sanctions on judges who granted applications for bail in capital offenses and in offenses punishable by reclusion perpetua without giving the prosecution the opportunity to prove that the evidence of guilt is strong." The respondent judge was dismissed from service because the erroneous granting of bail was just one of the offenses found to have been committed by her in the aforesaid complaint. (11) Aguirre v. Belmonte decided in 1994.[23] In this administrative case the respondent judge issued warrants of arrest and, at the same time and on his own motion. authorized the provisional release on bail of the accused in two criminal cases for murder. The accused were still at large at the time the order granting bail was issued. We held: "A hearing is mandatory before bail can be granted to an accused who is charged with a capital offense." The judge was ordered to pay a fine of P25,000.00 with a warning that a repetition of the same or similar acts in the future will be dealt with more severely. He was meted a fine in a higher amount than the usual P20,000.00 because it involved two criminal cases wherein the respondent judge, "was not only the grantor of bail but likewise the applicant therefor." (12) Lardizabal v. Reyes decided in 1994.[24] In this administrative case, the respondent judge issued an order directing the arrest of the accused charged with rape and, motu proprio, fixed the bail of the accused in the amount of P80,000.00 without application on the part of the accused to be admitted to bail. When the accused filed a motion to reduce bailbond, the respondent judge again, without any prior notice and hearing, reduced the bail to P40,000.00. We held: "The rule is explicit that when an accused is charged with a serious offense punishable by reclusion perpetua, such as rape, bail may be granted only after a motion for that purpose has been filed by the accused and a hearing thereon conducted by a judge to determine whether or not the prosecution's evidence of guilt is strong." The respondent judge was ordered to pay a fine of P20,000.00 with a warning that a repetition of similar or the same offense will be dealt with more severely. (13) Guillermo v. Reyes decided in 1995[25] involving an administrative complaint against the respondent judge for granting bail to the two accused charged with serious illegal detention. When the two accused first filed a joint application for bail, the petition for bail was duly heard and the evidence offered by the accused and the prosecution in opposition thereto were properly taken into account. However, the respondent judge denied the application for bail on the ground that it was premature since the accused were not yet in custody of the law. In a subsequent order, the respondent judge, without conducting any hearing on the aforestated application and thereby denying the prosecution an opportunity to oppose the same, granted said petition upon the voluntary appearance in court of the two accused. Respondent judge insisted that there was a hearing but the proceeding he adverted to was that which was conducted when the motion for bail was first considered and then denied for being premature. We held: "The error of the 17

respondent judge lies in the fact that in his subsequent consideration of the application for bail, he acted affirmatively thereon without conducting another hearing and what is worse, his order concededly lacked the requisite summary or resume of the evidence presented by the parties and necessary to support the grant of bail." The respondent judge was reprimanded because despite the irregularity in the procedure adopted in the proceeding, the prosecution was undeniably afforded the benefit of notice and hearing. No erroneous appreciation of the evidence was alleged nor did the prosecution indicate its desire to introduce additional evidence in an appropriate challenge to the aforestated grant of bail by the respondent. (14) Santos v. Ofilada decided in 1995.[26] In this case, an administrative complaint was filed against the respondent judge, who, without notice and hearing to the prosecution, granted bail to an accused charged with murder and illegal possession of firearm. We held: "Where admission to bail is a matter of discretion, a hearing is mandatory before an accused can be granted bail. At the hearing, both the prosecution and the defense must be given reasonable opportunity to prove, in case of the prosecution, that the evidence of guilt of the applicant is strong, and in the case of the defense, that evidence of such guilt is not strong." The respondent judge was ordered to pay a fine of P20,000.00 with a warning that a repetition of similar acts will warrant a more severe sanction. (15) Sule v. Biteng decided in 1995.[27]In this administrative case, the respondent judge, without affording the prosecution the opportunity to be heard, granted with indecent haste the petition for bail filed by the accused charged with murder because the accused "x x x voluntarily surrendered to the authorities as soon as he was informed that he was one of the suspect (sic) x x x" We held: "With his open admission that he granted bail to the accused without giving the prosecution any opportunity to be heard, the respondent deliberately disregarded decisions of this court holding that such act amounts to a denial of due process, and made himself administratively liable for gross ignorance of the law for which appropriate sanctions may be imposed." The respondent judge was ordered to pay a fine of P20,000.00 and warned that commission of the same or similar acts in the future will be dealt with more severely. (16) Reymualdo Buzon, Jr. v. Judge Tirso Velasco decided in 1996.[28] In this administrative case, the respondent judge, without hearing nor comment from the prosecution, granted bail to an accused charged with murder. Notably, no bail was recommended in the warrant of arrest. We held: "When bail is a matter of discretion, the judge is required to conduct a hearing and to give notice of such hearing to the fiscal or require him to submit his recommendation. x x x Truly, a judge would not be in a position to determine whether the prosecution's evidence is weak or strong unless a hearing is first conducted." A fine of P20,000.00 was imposed on the respondent judge with the stern warning that a repetition of the same or similar acts in the future will be dealt with more severely. The aforecited cases are all to the effect that when bail is discretionary, a hearing, whether summary or otherwise in the discretion of the court, should first be conducted to determine the existence of strong evidence, or lack of it, against the accused to enable the judge to make an intelligent assessment of the evidence presented by the parties. 18

Since the determination of whether or not the evidence of guilt against the accused is strong is a matter of judicial discretion, the judge is mandated to conduct a hearing even in cases where the prosecution chooses to just file a comment or leave the application for bail to the discretion of the court. Hence: (1) In the case of Gimeno v. Arcueno, Sr.,[29] an administrative complaint was filed against the respondent judge for granting bail to one of the accused in a robbery with homicide case without affording the prosecution a chance to be heard. The respondent judge explained that he issued an order for the motion to fix bail but the public prosecutor filed a comment instead which respondent judge thought was adequate compliance with law. Respondent added that the evidence of guilt of the accused, as disclosed by the records, was not so strong as to deny the application for bail. In fact, the accused who filed for bail, together with three others, were later dropped by the Office of the Provincial Prosecutor from the information for failure of the witnesses to positively identify them. We held: "The grant of bail is a matter of right except in cases involving capital offenses when the matter is left to the sound discretion of the court. That discretion lies, not in the determination whether or not a hearing should be held but in the appreciation and evaluation of the prosecution's evidence of guilt against the accused. x x x A hearing is plainly indispensable before a judge can aptly be said to be in a position to determine whether the evidence for the prosecution is weak or strong." Although the respondent judge's explanation was not enough to completely exculpate him, the circumstances, coupled with his sincere belief in the propriety of his order warranted a mitigation of the usual sanction the Court imposes in cases of this nature. The respondent judge was ordered to pay a fine of P5,000.00 and warned that a repetition of the same or similar act in the future will be dealt with more severely. (2) In the case of Concerned Citizens v. Elma,[30] an administrative complaint was filed against the respondent judge for granting bail to a person charged with illegal recruitment in large scale and estafa in five separate information. The accused filed a motion to fix bail and the respondent judge instead of setting the application for hearing, directed the prosecution to file its comment or opposition. The prosecution submitted its comment leaving the application for bail to the discretion of the court. The respondent judge, in granting the bail of the accused rationalized that in ordering the prosecution to comment on the accused's motion to fix bail, he has substantially complied with the requirement of a formal hearing. He further claimed that he required the prosecution to adduce evidence but the latter refused and left the determination of the motion to his discretion. This Court held, "It is true that the weight of the evidence adduced is addressed to the sound discretion of the court. However, such discretion may only be exercised after the hearing called to ascertain the degree of guilt of the accused for the purpose of determining whether or not he should be granted liberty. x x x In the case at bar, however, no formal hearing was conducted by the respondent judge. He could not have assessed the weight of evidence against the accused Gatus before granting the latter's application for bail." The respondent judge was dismissed from service because he was previously fined for a similar offense and was sternly warned that a repetition of the same or similar offense would be dealt with more severely. 19

(3) In the case of Baylon v. Sison,[31an administrative complaint was filed against the respondent judge for granting bail to several accused in a double murder case. The respondent judge claimed that he granted the application for bail because the assistant prosecutor who was present at the hearing did not interpose an objection thereto and that the prosecution never requested that it be allowed to show that the evidence of guilt is strong but instead, submitted the incident for resolution. The respondent judge further claimed that the motion for reconsideration of the order granting bail was denied only after due consideration of the pertinent affidavits. We held: "The discretion of the court, in cases involving capital offenses may be exercised only after there has been a hearing called to ascertain the weight of the evidence against the accused. Peremptorily, the discretion lies, not in determining whether or not there will be a hearing, but in appreciating and evaluating the weight of the evidence of guilt against the accused." The respondent judge was ordered to pay a fine of P20,000.00 with a stern warning that the commission of the same or similar offense in the future would be dealt with more severely. A hearing is likewise required if the prosecution refuses to adduce evidence in opposition to the application to grant and fix bail. "The importance of a hearing has been emphasized in not a few cases wherein the court ruled that even if the prosecution refuses to adduce evidence or fails to interpose an objection to the motion for bail, it is still mandatory for the court to conduct a hearing or ask searching questions from which it may infer the strength of the evidence of guilt, or the lack of it, against the accused."[32] In the recent case of Tucay v. Domagas,[33] an administrative complaint was filed against the respondent judge for granting bail to an accused charged with murder. The application for bail contained the annotation "No objection" of the provincial prosecutor and the respondent judge, without holding a hearing to determine whether the evidence of the prosecution was strong, granted bail and ordered the release of the accused from detention with instructions to the bondsman to register the bond with the Register of Deeds within ten days. It was later found out that the assessed value of the property given was short of the amount fixed for the release of the accused. We held: "Although the provincial prosecutor had interposed no objection to the grant of bail to the accused, respondent judge should have nevertheless have set the petition for bail for hearing and diligently ascertained from the prosecution whether the latter was not really contesting the bail application. x x x Only after satisfying himself that the prosecution did not wish to oppose the petition for bail for justifiable cause (e.g., for tactical reasons) and taking into account the factors enumerated in Rule 114, Sec. 6 for fixing bail should respondent judge have ordered the petition for bail and ordered the release of the accused." Respondent judge herein was ordered to pay a fine of P20,000.00 and was given a stern warning that the commission of a similar offense in the future would be dealt with more severely. Corollarily, another reason why hearing of a petition for bail is required, as can be gleaned from the abovecited case, is for the court to take into consideration the guidelines set forth in Section 6, Rule 114 of the Rules of Court in fixing the amount of bail.[34] This Court, in a number of cases[35] held that even if the prosecution fails to adduce evidence in opposition to an application 20

for bail of an accused, the court may still require that it answer questions in order to ascertain not only the strength of the state's evidence but also the adequacy of the amount of bail. After hearing, the court's order granting or refusing bail must contain a summary of the evidence for the prosecution.[36] On the basis thereof, the judge should then formulate his own conclusion as to whether the evidence so presented is strong enough as to indicate the guilt of the accused. Otherwise, the order granting or denying the application for bail may be invalidated because the summary of evidence for the prosecution which contains the judge's evaluation of the evidence may be considered as an aspect of procedural due process for both the prosecution and the defense. This court in the case of Carpio v. Maglalang[37] invalidated the order of respondent judge granting bail to the accused because "Without summarizing the factual basis of its order granting bail, the court merely stated the number of prosecution witnesses but not their respective testimonies, and concluded that the evidence presented by the prosecution was not "sufficiently strong" to deny bail to Escano." With the mounting precedents, this Court sees no reason why it has to repeatedly remind trial court judges to perform their mandatory duty of conducting the required hearing in bail applications where the accused stands charged with a capital offense. An evaluation of the records in the case at bar reveals that respondent Judge granted bail to the accused without first conducting a hearing to prove that the guilt of the accused is strong despite his knowledge that the offense charged is a capital offense in disregard of the procedure laid down in Section 8, Rule 114 of the Rules of Court as amended by Administrative Circular No. 12-94. Respondent judge admittedly granted the petition for bail based on the prosecution's declaration not to oppose the petition. Respondent's assertion, however, that he has a right to presume that the prosecutor knows what he is doing on account of the latter's familiarity with the case due to his having conducted the preliminary investigation is faulty. Said reasoning is tantamount to ceding to the prosecutor the duty of exercising judicial discretion to determine whether the guilt of the accused is strong. Judicial discretion is the domain of the judge before whom the petition for provisional liberty will be decided. The mandated duty to exercise discretion has never been reposed upon the prosecutor. In the case of Montalbo v. Santamaria,[38] this Court held that the respondent judge is duty bound to exercise judicial discretion conferred upon him by law to determine whether in the case at bar, the proof is evident or the presumption of guilt is strong against the defendant and to grant or deny the petition for provisional liberty. It also held that a writ of mandamus will lie in order to compel the respondent judge to perform a duty imposed upon him by law. The absence of objection from the prosecution is never a basis for granting bail to the accused. 21

It is the court's determination after a hearing that the guilt of the accused is not strong that forms the basis for granting bail. Respondent Judge should not have relied solely on the recommendation made by the prosecutor but should have ascertained personally whether the evidence of guilt is strong. After all, the judge is not bound by the prosecutor's recommendation. Moreover, there will be a violation of due process if the respondent Judge grants the application for bail without hearing since Section 8 of Rule 114 provides that whatever evidence presented for or against the accused's provisional release will be determined at the hearing. The practice by trial court judges of granting bail to the accused when the prosecutor refuses or fails to present evidence to prove that the evidence of guilt of the accused is strong can be traced to the case of Herras Teehankee v. Director of Prisons[39] where this Court gave the following "instructions" to the People's Court,[40] thus: "1) In capital cases like the present when the prosecutor does not oppose the petition for release on bail, the court should, as a general rule, in the proper exercise of its discretion, grant the release after the approval of the bail which it should fix for the purpose; 2) But if the court has reasons to believe that the special prosecutor's attitude is not justified, it may ask him questions to ascertain the strength of the state's evidence or to judge the adequacy of the amount of bail; 3) When, however, the special prosecutor refuses to answer any particular question on the ground that the answer may involve a disclosure imperiling the success of the prosecution or jeopardizing the public interest, the court may not compel him to do so, if and when he exhibits a statement to that effect of the Solicitor General, who, as head of the Office of Special Prosecutors, is vested with the direction and control of the prosecution, and may not, even at the trial, be ordered by the court to present evidence which he does not want to introduce provided, of course, that such refusal shall not prejudice the rights of the defendant or detainee."[41] The rationale for the first instruction was stated by this Court, as follows: "If, for any reason, any party should abstain from introducing evidence in the case for any definite purpose, no law nor rule exists by which he may be so compelled and the court before which the case is pending has to act without that evidence and, in so doing, it clearly would not be failing in its duties. If the Constitution or the law plots a certain course of action to be taken by the court when certain evidence is found by it to exist, and the opposite course if that evidence is wanting, and said evidence is not voluntarily adduced by the proper party, the court's clear duty would be to adopt that course which has been provided for in case of absence of such evidence. Applying the principle to the case at bar, it was no more within the power nor discretion of the court to coerce the prosecution into presenting its evidence than to force the prisoner into adducing hers. And when both elected not to do so, as they had a perfect right to elect, the only thing remaining for the court to do was to grant the application for bail." As for the second instruction, this Court stated that: "The prosecutor might not oppose the application for bail and might refuse to satisfy his burden 22

of proof, but where the court has reasons to believe that the prosecutor's attitude is not justified, as when he is evidently committing a gross error or a dereliction of duty, the court must possess a reasonable degree of control over him in the paramount interest of justice. Under such circumstance, the court is authorized by our second instruction to inquire from the prosecutor as to the nature of his evidence to determine whether or not it is strong, it being possible for the prosecutor to have erred in considering it weak and, therefore, recommending bail." As for the third instruction, this Court declared: "It must be observed that the court is made to rely upon the official statement of the Solicitor General on the question of whether or not the revelation of evidence may endanger the success of the prosecution and jeopardize the public interest. This is so, for there is no way for the court to determine that question without having the evidence disclosed in the presence of the applicant, disclosure which is sought to be avoided to protect the interests of the prosecution before the trial." It is to be recalled that Herras Teehankee was decided fully half a century ago under a completely different factual milieu. Haydee Herras Teehankee was indicted under a law dealing with treason cases and collaboration with the enemy. The said "instructions" given in the said case under the 1940 Rules of Court no longer apply due to the amendments introduced in the 1985 Rules of Court. In the 1940 Rules of Court of the Philippines, the applicable provisions on "Bail" provides, as follows: "Sec. 5. Capital offenses defined. A capital offense, as the term is used in this rule, is an offense which, under the law existing at the time of its commission, and at the time of the application to be admitted to bail, may be punished by death. Sec. 6. Capital offenses not bailable. No person in custody for the commission of a capital offense shall be admitted to bail if the evidence of his guilt is strong. Sec. 7. Capital offense Burden of proof . On the hearing of an application for admission to bail made by any person who is in custody for the commission of a capital offense, the burden of showing that the evidence of guilt is strong is on the prosecution. The above-cited provisions have not been adopted in toto in the 1985 Rules of Court, as amended by Administrative Circular No. 12-94, since some phrases and lines have been intercalated, as shown by the underscored phrases and statements below: "Sec. 6. Capital offense, defined. A capital offense, as the term is used in these rules, is an offense which, under the law existing at the time of its commission and at the time of the application to be admitted to bail, may be punished with death. Sec. 7. Capital offense or an offense punishable by reclusion perpetua or life imprisonment, 23

not bailable. No person charged with a capital offense, of an offense punishable by reclusion perpetua or life imprisonment, when evidence of guilt is strong, shall be admitted to bail regardless of the stage of the criminal prosecution. Sec. 8. Burden of proof in bail application. At the hearing of an application for admission to bail filed by any person who is in custody for the commission of an offense punishable by death, reclusion perpetua or life imprisonment, the prosecution has the burden of showing that evidence of guilt is strong. The evidence presented during the bail hearings shall be considered automatically reproduced at the trial, but upon motion of either party, the court may recall any witness for additional examination unless the witness is dead, outside of the Philippines or otherwise unable to testify." It should be noted that there has been added in Section 8 a crucial sentence not found in the counterpart provision, Section 7, Rule 110 of the 1940 Rules of Court. The above-underscored sentence in Section 8, Rule 114 of the 1985 Rules of Court, as amended, was added to address a situation where in case the prosecution does not choose to present evidence to oppose the application for bail, the judge may feel duty-bound to grant the bail application. In such a case, the judge may well lose control of the proceedings. In a sense, this undermines the authority of a judge since all that the prosecution has to do to "force" the judge to grant the bail application is to refrain from presenting evidence opposing the same. In effect, this situation makes Sections 6 and 7 of the 1940 Rules of Court on "Bail" meaningless since whether or not the evidence of guilt of a person charged with a capital offense is strong cannot be determined if the prosecution chooses not to present evidence or oppose the bail application in a hearing precisely to be conducted by the trial judge for that purpose, as called for in the two sections. In the event that the prosecution fails or refuses to adduce evidence in the scheduled hearing, then a hearing as in a regular trial should be scheduled. In this regard, a hearing in the application for bail necessarily means presentation of evidence, and the filing of a comment or a written opposition to the bail application by the prosecution will not suffice. The prosecution under the revised provision is duty bound to present evidence in the bail hearing to prove whether the evidence of guilt of the accused is strong and not merely to oppose the grant of bail to the accused. "This also prevents the practice in the past wherein a petition for bail was used as a means to force the prosecution into a premature revelation of its evidence and, if it refused to do so, the accused would claim the grant of bail on the ground that the evidence of guilt was not strong."[42] It should be stressed at this point, however, that the nature of the hearing in an application for bail must be equated with its purpose i.e., to determine the bailability of the accused. If the prosecution were permitted to conduct a hearing for bail as if it were a full-dress trial on the merits, the purpose of the proceeding, which is to secure provisional liberty of the accused to enable him to prepare for his defense, could be defeated. At any rate, in case of a summary hearing, the prosecution witnesses could always be recalled at the trial on the merits.[43] In the light of the applicable rules on bail and the jurisprudential principles just enunciated, this 24

Court reiterates the duties of the trial judge in case an application for bail is filed: (1) Notify the prosecutor of the hearing of the application for bail or require him to submit his recommendation (Section 18, Rule 114 of the Rules of Court as amended); (2) 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 (Sections 7 and 8, supra); (3) Decide whether the evidence of guilt of the accused is strong based on the summary of evidence of the prosecution (Baylon v. Sison, supra); (4) If the guilt of the accused is not strong, discharge the accused upon the approval of the bailbond. (Section 19, supra). Otherwise, petition should be denied. The above-enumerated procedure should now leave no room for doubt as to the duties of the trial judge in cases of bail applications. So basic and fundamental is it to conduct a hearing in connection with the grant of bail in the proper cases that it would amount to judicial apostasy for any member of the judiciary to disclaim knowledge or awareness thereof.[44] A judge owes it to the public and the administration of justice to know the law he is supposed to apply to a given controversy. He is called upon to exhibit more than just a cursory acquaintance with the statutes and procedural rules. There will be faith in the administration of justice only if there be a belief on the part of litigants that the occupants of the bench cannot justly be accused of a deficiency in their grasp of legal principles.[45] Respondent judge herein insists that he could exercise his discretion in granting bail to the accused since the Assistant Prosecutor signified in writing that he had no objection to the grant of bail and recommended, instead, the bailbond in the sum of P80,000.00. It is to be emphasized that although the court may have the discretion to grant the application for bail, in cases of capital offenses, the determination as to whether or not the evidence of guilt is strong can only be reached after due hearing which, in this particular instance has not been substantially complied with by the respondent Judge. While it may be true that the respondent judge set the application for bail for hearing three times, thus showing lack of malice or bad faith in granting bail to the accused, nonetheless, this does not completely exculpate him because the fact remains that a hearing has not actually been conducted in violation of his duty to determine whether or not the evidence against the accused is strong for purposes of bail. Normally, the Court imposes a penalty of P20,000.00 fine in cases where the judge grants the application for bail without notice and hearing. In view however of the circumstances of this case, a reprimand instead of the P20,000.00 would suffice. WHEREFORE, in view of the foregoing, respondent Judge Leo M. Rapatalo, RTC, Branch 32, Agoo, La Union, is hereby REPRIMANDED with the WARNING that a repetition of the same or 25

similar acts in the future will be dealt with more severely. SO ORDERED. Regalado, (Chairman), Puno, Mendoza, and Torres, Jr., JJ., concur.

[1]

Release Order dated June 29, 1995, p. 13, Rollo. p. 10, Rollo. Order dated August 17, 1995, p. 19, Rollo.

[2]

[3]

[4]

Del Carmen, Rolando V., Criminal Procedure, Law and Practice, p. 31, 3rd ed. (1995). Section 7, supra. Del Carmen, Rolando V., supra.

[5]

[6]

[7]

Ramos v. Ramos, 45 Phil. 362. Ocampo v. Bernabe, 77 Phil. 55.

[8]

[9]

Francisco, Ricardo J., Criminal Procedure, 1993 ed., p. 226. citing Rex v. Wilkee, 4 Burr., 2527; 98 Reprint, 327, cited in note 26 (a), 6 C.J., p. 254.
[10]

Siazon v Presiding Judge, et al., 42 SCRA 184 (1971). 103 SCRA 393. 26 SCRA 522 (1968). 170 SCRA 489. 186 SCRA 620 199 SCRA 48

[11]

[12]

[13]

[14]

[15]

[16]

205 SCRA 155 215 SCRA 421 A.M. No. RTJ-89-306, March 1, 1993 26

[17]

[18]

[19]

226 SCRA 206, 216 (1993). 235 SCRA 283. Supra. 237 SCRA 1 237 SCRA 778 238 SCRA 640.

[20]

[21]

[22]

[23]

[24]

[25]

240 SCRA 154. 245 SCRA 56. 243 SCRA 524. A.M. No RTJ-94-1209, 253 SCRA 601. 250 SCRA 376 (1995). 241 SCRA 84 (1995).

[26]

[27]

[28]

[29]

[30]

[31]

243 SCRA 284 (1995). See also the cases of Borinaga v. Tamin, supra and Aguirre v. Belmonte, supra and Tucay v. Domagas, 242 SCRA 110 (1995).
[32]

Baylon v. Sison, supra. 242 SCRA 110 (1995). See also People v. Dacudao, supra and Aurillo v. Francisco, supra.

[33]

[34]

[35]

Baylon v. Sison, supra.; Borinaga v. Tamin, supra; Santos v. Ofilada, supra; Aguirre v. Belmonte, supra.
[36]

See People v. San Diego, 26 SCRA 52; People v. Nano, supra; Guillermo v. Reyes, supra; Santos v. Ofilada, supra.
[37]

196 SCRA 41 (1991).

[1930]

[38]

54 Phil. 955,

27

[39]

76 Phil. 756 (1946).

[40]

Created under Commonwealth Act No. 682 to try cases of treason and collaboration with the enemy.
[41]

Supra, p. 774. Regalado, F.D., Remedial Law Compendium, 7th Revised Edition, Volume II, p. 343. Siazon v Presiding Judge, et al., supra. Borinaga v. Tamin, supra. Supra, citing Libarios v. Dabalos, 199 SCRA 48 (1991).

[42]

[43]

[44]

[45]

Source: Supreme Court E-Library | Date created: April 26, 2011 This page was dynamically generated by the E-Library Content Management System

Supreme Court E-Library

THIRD DIVISION [ G.R. No. 189122, March 17, 2010 ]

JOSE ANTONIO LEVISTE, PETITIONER, VS. THE COURT OF APPEALS AND PEOPLE OF THE PHILIPPINES, RESPONDENTS. DECISION
CORONA, J.: Bail, the security given by an accused who is in the custody of the law for his release to guarantee his appearance before any court as may be required,[1] is the answer of the criminal justice system to a vexing question: what is to be done with the accused, whose guilt has not 28

yet been proven, in the "dubious interval," often years long, between arrest and final adjudication?[2] Bail acts as a reconciling mechanism to accommodate both the accused's interest in pretrial liberty and society's interest in assuring the accused's presence at trial.[3] Upon conviction by the Regional Trial Court of an offense not punishable by death, reclusion perpetua or life imprisonment, the accused who has been sentenced to prison must typically begin serving time immediately unless, on application, he is admitted to bail.[4] An accused not released on bail is incarcerated before an appellate court confirms that his conviction is legal and proper. An erroneously convicted accused who is denied bail loses his liberty to pay a debt to society he has never owed.[5] Even if the conviction is subsequently affirmed, however, the accused's interest in bail pending appeal includes freedom pending judicial review, opportunity to efficiently prepare his case and avoidance of potential hardships of prison.[6] On the other hand, society has a compelling interest in protecting itself by swiftly incarcerating an individual who is found guilty beyond reasonable doubt of a crime serious enough to warrant prison time.[7] Other recognized societal interests in the denial of bail pending appeal include the prevention of the accused's flight from court custody, the protection of the community from potential danger and the avoidance of delay in punishment.[8] Under what circumstances an accused may obtain bail pending appeal, then, is a delicate balance between the interests of society and those of the accused.[9] Our rules authorize the proper courts to exercise discretion in the grant of bail pending appeal to those convicted by the Regional Trial Court of an offense not punishable by death, reclusion perpetua or life imprisonment. In the exercise of that discretion, the proper courts are to be guided by the fundamental principle that the allowance of bail pending appeal should be exercised not with laxity but with grave caution and only for strong reasons, considering that the accused has been in fact convicted by the trial court.[10] THE FACTS Charged with the murder of Rafael de las Alas, petitioner Jose Antonio Leviste was convicted by the Regional Trial Court of Makati City for the lesser crime of homicide and sentenced to suffer an indeterminate penalty of six years and one day of prision mayor as minimum to 12 years and one day of reclusion temporal as maximum.[11] He appealed his conviction to the Court of Appeals.[12] Pending appeal, he filed an urgent application for admission to bail pending appeal, citing his advanced age and health condition, and claiming the absence of any risk or possibility of flight on his part. The Court of Appeals denied petitioner's application for bail.[13] It invoked the bedrock principle in the matter of bail pending appeal, that the discretion to extend bail during the course of appeal should be exercised "with grave caution and only for strong reasons." Citing wellestablished jurisprudence, it ruled that bail is not a sick pass for an ailing or aged detainee or a prisoner needing medical care outside the prison facility. It found that petitioner 29

... failed to show that he suffers from ailment of such gravity that his continued confinement during trial will permanently impair his health or put his life in danger. x x x Notably, the physical condition of [petitioner] does not prevent him from seeking medical attention while confined in prison, though he clearly preferred to be attended by his personal physician.[14] For purposes of determining whether petitioner's application for bail could be allowed pending appeal, the Court of Appeals also considered the fact of petitioner's conviction. It made a preliminary evaluation of petitioner's case and made a prima facie determination that there was no reason substantial enough to overturn the evidence of petitioner's guilt. Petitioner's motion for reconsideration was denied.[15] Petitioner now questions as grave abuse of discretion the denial of his application for bail, considering that none of the conditions justifying denial of bail under the third paragraph of Section 5, Rule 114 of the Rules of Court was present. Petitioner's theory is that, where the penalty imposed by the trial court is more than six years but not more than 20 years and the circumstances mentioned in the third paragraph of Section 5 are absent, bail must be granted to an appellant pending appeal. THE ISSUE The question presented to the Court is this: in an application for bail pending appeal by an appellant sentenced by the trial court to a penalty of imprisonment for more than six years, does the discretionary nature of the grant of bail pending appeal mean that bail should automatically be granted absent any of the circumstances mentioned in the third paragraph of Section 5, Rule 114 of the Rules of Court? Section 5, Rule 114 of the Rules of Court provides: Sec. 5. Bail, when discretionary. -- Upon conviction by the Regional Trial Court of an offense not punishable by death, reclusion perpetua, or life imprisonment, admission to bail is discretionary. The application for bail may be filed and acted upon by the trial court despite the filing of a notice of appeal, provided it has not transmitted the original record to the appellate court. However, if the decision of the trial court convicting the accused changed the nature of the offense from non-bailable to bailable, the application for bail can only be filed with and resolved by the appellate court. Should the court grant the application, the accused may be allowed to continue on provisional liberty during the pendency of the appeal under the same bail subject to the consent of the bondsman. If the penalty imposed by the trial court is imprisonment exceeding six (6) years, the accused shall be denied bail, or his bail shall be cancelled upon a showing by the prosecution, with notice to the accused, of the following or other similar circumstances: 30

(a) That he is a recidivist, quasi-recidivist, or habitual delinquent, or has committed the crime aggravated by the circumstance of reiteration; (b) That he has previously escaped from legal confinement, evaded sentence, or violated the conditions of his bail without a valid justification; (c) That he committed the offense while under probation, parole, or conditional pardon; (d) That the circumstances of his case indicate the probability of flight if released on bail; or (e) That there is undue risk that he may commit another crime during the pendency of the appeal. The appellate court may, motu proprio or on motion of any party, review the resolution of the Regional Trial Court after notice to the adverse party in either case. (emphasis supplied) Petitioner claims that, in the absence of any of the circumstances mentioned in the third paragraph of Section 5, Rule 114 of the Rules of Court, an application for bail by an appellant sentenced by the Regional Trial Court to a penalty of more than six years' imprisonment should automatically be granted. Petitioner's stance is contrary to fundamental considerations of procedural and substantive rules. BASIC PROCEDURAL CONCERNS FORBID GRANT OF PETITION Petitioner filed this special civil action for certiorari under Rule 65 of the Rules of Court to assail the denial by the Court of Appeals of his urgent application for admission to bail pending appeal. While the said remedy may be resorted to challenge an interlocutory order, such remedy is proper only where the interlocutory order was rendered without or in excess of jurisdiction or with grave abuse of discretion amounting to lack or excess of jurisdiction.[16] Other than the sweeping averment that "[t]he Court of Appeals committed grave abuse of discretion in denying petitioner's application for bail pending appeal despite the fact that none of the conditions to justify the denial thereof under Rule 114, Section 5 [is] present, much less proven by the prosecution,"[17] however, petitioner actually failed to establish that the Court of Appeals indeed acted with grave abuse of discretion. He simply relies on his claim that the Court of Appeals should have granted bail in view of the absence of any of the circumstances enumerated in the third paragraph of Section 5, Rule 114 of the Rules of Court. Furthermore, petitioner asserts that the Court of Appeals committed a grave error and prejudged the appeal by denying his application for bail on the ground that the evidence that he committed a capital offense was strong. We disagree. It cannot be said that the Court of Appeals issued the assailed resolution without or in excess of its jurisdiction. One, pending appeal of a conviction by the Regional Trial Court of an offense not 31

punishable by death, reclusion perpetua, or life imprisonment, admission to bail is expressly declared to be discretionary. Two, the discretion to allow or disallow bail pending appeal in a case such as this where the decision of the trial court convicting the accused changed the nature of the offense from non-bailable to bailable is exclusively lodged by the rules with the appellate court. Thus, the Court of Appeals had jurisdiction to hear and resolve petitioner's urgent application for admission to bail pending appeal. Neither can it be correctly claimed that the Court of Appeals committed grave abuse of discretion when it denied petitioner's application for bail pending appeal. Grave abuse of discretion is not simply an error in judgment but it is such a capricious and whimsical exercise of judgment which is tantamount to lack of jurisdiction.[18] Ordinary abuse of discretion is insufficient. The abuse of discretion must be grave, that is, the power is exercised in an arbitrary or despotic manner by reason of passion or personal hostility.[19] It must be so patent and gross as to amount to evasion of positive duty or to a virtual refusal to perform the duty enjoined by or to act at all in contemplation of the law. In other words, for a petition for certiorari to prosper, there must be a clear showing of caprice and arbitrariness in the exercise of discretion.[20] Petitioner never alleged that, in denying his application for bail pending appeal, the Court of Appeals exercised its judgment capriciously and whimsically. No capriciousness or arbitrariness in the exercise of discretion was ever imputed to the appellate court. Nor could any such implication or imputation be inferred. As observed earlier, the Court of Appeals exercised grave caution in the exercise of its discretion. The denial of petitioner's application for bail pending appeal was not unreasonable but was the result of a thorough assessment of petitioner's claim of ill health. By making a preliminary appraisal of the merits of the case for the purpose of granting bail, the court also determined whether the appeal was frivolous or not, or whether it raised a substantial question. The appellate court did not exercise its discretion in a careless manner but followed doctrinal rulings of this Court. At best, petitioner only points out the Court of Appeal's erroneous application and interpretation of Section 5, Rule 114 of the Rules of Court. However, the extraordinary writ of certiorari will not be issued to cure errors in proceedings or erroneous conclusions of law or fact.[21] In this connection, Lee v. People[22] is apropos: ... Certiorari may not be availed of where it is not shown that the respondent court lacked or exceeded its jurisdiction over the case, even if its findings are not correct. Its questioned acts would at most constitute errors of law and not abuse of discretion correctible by certiorari. In other words, certiorari will issue only to correct errors of jurisdiction and not to correct errors of procedure or mistakes in the court's findings and conclusions. An interlocutory order may be assailed by certiorari or prohibition only when it is shown that the court acted without or in excess of jurisdiction or with grave abuse of discretion. However, this Court generally frowns upon this remedial measure as regards interlocutory orders. To tolerate the practice of allowing 32

interlocutory orders to be the subject of review by certiorari will not only delay the administration of justice but will also unduly burden the courts.[23] (emphasis supplied) WORDING OF THIRD PARAGRAPH OF SECTION 5, RULE 114 CONTRADICTS PETITIONER'S INTERPRETATION The third paragraph of Section 5, Rule 114 applies to two scenarios where the penalty imposed on the appellant applying for bail is imprisonment exceeding six years. The first scenario deals with the circumstances enumerated in the said paragraph (namely, recidivism, quasi-recidivism, habitual delinquency or commission of the crime aggravated by the circumstance of reiteration; previous escape from legal confinement, evasion of sentence or violation of the conditions of his bail without a valid justification; commission of the offense while under probation, parole or conditional pardon; circumstances indicating the probability of flight if released on bail; undue risk of committing another crime during the pendency of the appeal; or other similar circumstances) not present. The second scenario contemplates the existence of at least one of the said circumstances. The implications of this distinction are discussed with erudition and clarity in the commentary of retired Supreme Court Justice Florenz D. Regalado, an authority in remedial law: Under the present revised Rule 114, the availability of bail to an accused may be summarized in the following rules: xxxxxxxxx e. After conviction by the Regional Trial Court wherein a penalty of imprisonment exceeding 6 years but not more than 20 years is imposed, and not one of the circumstances stated in Sec. 5 or any other similar circumstance is present and proved, bail is a matter of discretion (Sec. 5); f. After conviction by the Regional Trial Court imposing a penalty of imprisonment exceeding 6 years but not more than 20 years, and any of the circumstances stated in Sec. 5 or any other similar circumstance is present and proved, no bail shall be granted by said court (Sec. 5); x x x[24] (emphasis supplied) Retired Court of Appeals Justice Oscar M. Herrera, another authority in remedial law, is of the same thinking: Bail is either a matter of right or of discretion. It is a matter of right when the offense charged is not punishable by death, reclusion perpetua or life imprisonment. On the other hand, upon conviction by the Regional Trial Court of an offense not punishable death, reclusion perpetua or life imprisonment, bail becomes a matter of discretion. 33

Similarly, if the court imposed a penalty of imprisonment exceeding six (6) years then bail is a matter of discretion, except when any of the enumerated circumstances under paragraph 3 of Section 5, Rule 114 is present then bail shall be denied.[25] (emphasis supplied) In the first situation, bail is a matter of sound judicial discretion. This means that, if none of the circumstances mentioned in the third paragraph of Section 5, Rule 114 is present, the appellate court has the discretion to grant or deny bail. An application for bail pending appeal may be denied even if the bail-negating[26] circumstances in the third paragraph of Section 5, Rule 114 are absent. In other words, the appellate court's denial of bail pending appeal where none of the said circumstances exists does not, by and of itself, constitute abuse of discretion. On the other hand, in the second situation, the appellate court exercises a more stringent discretion, that is, to carefully ascertain whether any of the enumerated circumstances in fact exists. If it so determines, it has no other option except to deny or revoke bail pending appeal. Conversely, if the appellate court grants bail pending appeal, grave abuse of discretion will thereby be committed. Given these two distinct scenarios, therefore, any application for bail pending appeal should be viewed from the perspective of two stages: (1) the determination of discretion stage, where the appellate court must determine whether any of the circumstances in the third paragraph of Section 5, Rule 114 is present; this will establish whether or not the appellate court will exercise sound discretion or stringent discretion in resolving the application for bail pending appeal and (2) the exercise of discretion stage where, assuming the appellant's case falls within the first scenario allowing the exercise of sound discretion, the appellate court may consider all relevant circumstances, other than those mentioned in the third paragraph of Section 5, Rule 114, including the demands of equity and justice;[27] on the basis thereof, it may either allow or disallow bail. On the other hand, if the appellant's case falls within the second scenario, the appellate court's stringent discretion requires that the exercise thereof be primarily focused on the determination of the proof of the presence of any of the circumstances that are prejudicial to the allowance of bail. This is so because the existence of any of those circumstances is by itself sufficient to deny or revoke bail. Nonetheless, a finding that none of the said circumstances is present will not automatically result in the grant of bail. Such finding will simply authorize the court to use the less stringent sound discretion approach. Petitioner disregards the fine yet substantial distinction between the two different situations that are governed by the third paragraph of Section 5, Rule 114. Instead, petitioner insists on a simplistic treatment that unduly dilutes the import of the said provision and trivializes the established policy governing the grant of bail pending appeal. In particular, a careful reading of petitioner's arguments reveals that it interprets the third 34

paragraph of Section 5, Rule 114 to cover all situations where the penalty imposed by the trial court on the appellant is imprisonment exceeding six years. For petitioner, in such a situation, the grant of bail pending appeal is always subject to limited discretion, that is, one restricted to the determination of whether any of the five bail-negating circumstances exists. The implication of this position is that, if any such circumstance is present, then bail will be denied. Otherwise, bail will be granted pending appeal. Petitioner's theory therefore reduces the appellate court into a mere fact-finding body whose authority is limited to determining whether any of the five circumstances mentioned in the third paragraph of Section 5, Rule 114 exists. This unduly constricts its "discretion" into merely filling out the checklist of circumstances in the third paragraph of Section 5, Rule 114 in all instances where the penalty imposed by the Regional Trial Court on the appellant is imprisonment exceeding six years. In short, petitioner's interpretation severely curbs the discretion of the appellate court by requiring it to determine a singular factual issue -- whether any of the five bail-negating circumstances is present. However, judicial discretion has been defined as "choice."[28] Choice occurs where, between "two alternatives or among a possibly infinite number (of options)," there is "more than one possible outcome, with the selection of the outcome left to the decision maker."[29] On the other hand, the establishment of a clearly defined rule of action is the end of discretion.[30] Thus, by severely clipping the appellate court's discretion and relegating that tribunal to a mere fact-finding body in applications for bail pending appeal in all instances where the penalty imposed by the trial court on the appellant is imprisonment exceeding six years, petitioner's theory effectively renders nugatory the provision that "upon conviction by the Regional Trial Court of an offense not punishable by death, reclusion perpetua, or life imprisonment, admission to bail is discretionary." The judicial discretion granted to the proper court (the Court of Appeals in this case) to rule on applications for bail pending appeal must necessarily involve the exercise of judgment on the part of the court. The court must be allowed reasonable latitude to express its own view of the case, its appreciation of the facts and its understanding of the applicable law on the matter.[31] In view of the grave caution required of it, the court should consider whether or not, under all circumstances, the accused will be present to abide by his punishment if his conviction is affirmed.[32] It should also give due regard to any other pertinent matters beyond the record of the particular case, such as the record, character and reputation of the applicant,[33] among other things. More importantly, the discretion to determine allowance or disallowance of bail pending appeal necessarily includes, at the very least, an initial determination that the appeal is not frivolous but raises a substantial question of law or fact which must be determined by the appellate court.[34] In other words, a threshold requirement for the grant of bail is a showing that the appeal is not pro forma and merely intended for delay but presents a fairly debatable issue.[35] This must be so; otherwise, the appellate courts will be deluged with frivolous and time-wasting appeals made for the purpose of taking advantage of a lenient attitude on bail pending appeal. Even more significantly, this comports with the very strong presumption on 35

appeal that the lower court's exercise of discretionary power was sound,[36] specially since the rules on criminal procedure require that no judgment shall be reversed or modified by the Court of Appeals except for substantial error.[37] Moreover, to limit the bail-negating circumstances to the five situations mentioned in the third paragraph of Section 5, Rule 114 is wrong. By restricting the bail-negating circumstances to those expressly mentioned, petitioner applies the expressio unius est exclusio alterius[38] rule in statutory construction. However, the very language of the third paragraph of Section 5, Rule 114 contradicts the idea that the enumeration of the five situations therein was meant to be exclusive. The provision categorically refers to "the following or other similar circumstances." Hence, under the rules, similarly relevant situations other than those listed in the third paragraph of Section 5, Rule 114 may be considered in the allowance, denial or revocation of bail pending appeal. Finally, laws and rules should not be interpreted in such a way that leads to unreasonable or senseless consequences. An absurd situation will result from adopting petitioner's interpretation that, where the penalty imposed by the trial court is imprisonment exceeding six years, bail ought to be granted if none of the listed bail-negating circumstances exists. Allowance of bail pending appeal in cases where the penalty imposed is more than six years of imprisonment will be more lenient than in cases where the penalty imposed does not exceed six years. While denial or revocation of bail in cases where the penalty imposed is more than six years' imprisonment must be made only if any of the five bail-negating conditions is present, bail pending appeal in cases where the penalty imposed does not exceed six years imprisonment may be denied even without those conditions. Is it reasonable and in conformity with the dictates of justice that bail pending appeal be more accessible to those convicted of serious offenses, compared to those convicted of less serious crimes? PETITIONER'S THEORY DEVIATES FROM HISTORY AND EVOLUTION OF RULE ON BAIL PENDING APPEAL Petitioner's interpretation deviates from, even radically alters, the history and evolution of the provisions on bail pending appeal. The relevant original provisions on bail were provided under Sections 3 to 6, Rule 110 of the 1940 Rules of Criminal Procedure: Sec. 3. Offenses less than capital before conviction by the Court of First Instance. -- After judgment by a municipal judge and before conviction by the Court of First Instance, the defendant shall be admitted to bail as of right. Sec. 4. Non-capital offenses after conviction by the Court of First Instance. -- After conviction by the Court of First Instance, defendant may, upon application, be bailed at the discretion of the 36

court. Sec. 5. Capital offense defined. -- A capital offense, as the term is used in this rule, is an offense which, under the law existing at the time of its commission, and at the time of the application to be admitted to bail, may be punished by death. Sec. 6. Capital offense not bailable. -- No person in custody for the commission of a capital offense shall be admitted to bail if the evidence of his guilt is strong. The aforementioned provisions were reproduced as Sections 3 to 6, Rule 114 of the 1964 Rules of Criminal Procedure and then of the 1985 Rules of Criminal Procedure. They were modified in 1988 to read as follows: Sec. 3. Bail, a matter of right; exception. -- All persons in custody, shall before final conviction be entitled to bail as a matter of right, except those charged with a capital offense or an offense which, under the law at the time of its commission and at the time of the application for bail, is punishable by reclusion perpetua, when evidence of guilt is strong. Sec. 4. Capital offense, defined. -- A capital offense, as the term is used in this Rules, is an offense which, under the law existing at the time of its commission, and at the time of the application to be admitted to bail, may be punished by death. (emphasis supplied) The significance of the above changes was clarified in Administrative Circular No. 2-92 dated January 20, 1992 as follows: The basic governing principle on the right of the accused to bail is laid down in Section 3 of Rule 114 of the 1985 Rules on Criminal Procedure, as amended, which provides: Sec. 3. Bail, a matter of right; exception. -- All persons in custody, shall before final conviction, be entitled to bail as a matter of right, except those charged with a capital offense or an offense which, under the law at the time of its commission and at the time of the application for bail, is punishable by reclusion perpetua, when evidence of guilt is strong. Pursuant to the aforecited provision, an accused who is charged with a capital offense or an offense punishable by reclusion perpetua, shall no longer be entitled to bail as a matter of right even if he appeals the case to this Court since his conviction clearly imports that the evidence of his guilt of the offense charged is strong. Hence, for the guidelines of the bench and bar with respect to future as well as pending cases before the trial courts, this Court en banc lays down the following policies concerning the effectivity of the bail of the accused, to wit: 1) When an accused is charged with an offense which under the law existing at the time of its commission and at the time of the application for bail is punishable by a penalty lower than 37

reclusion perpetua and is out on bail, and after trial is convicted by the trial court of the offense charged or of a lesser offense than that charged in the complaint or information, he may be allowed to remain free on his original bail pending the resolution of his appeal, unless the proper court directs otherwise pursuant to Rule 114, Sec. 2 (a) of the Rules of Court, as amended; 2) When an accused is charged with a capital offense or an offense which under the law at the time of its commission and at the time of the application for bail is punishable by reclusion perpetua and is out on bail, and after trial is convicted by the trial court of a lesser offense than that charged in the complaint or information, the same rule set forth in the preceding paragraph shall be applied; 3) When an accused is charged with a capital offense or an offense which under the law at the time of its commission and at the time of the application for bail is punishable by reclusion perpetua and is out on bail and after trial is convicted by the trial court of the offense charged, his bond shall be cancelled and the accused shall be placed in confinement pending resolution of his appeal. As to criminal cases covered under the third rule abovecited, which are now pending appeal before his Court where the accused is still on provisional liberty, the following rules are laid down: 1) This Court shall order the bondsman to surrender the accused within ten (10) days from notice to the court of origin. The bondsman thereupon, shall inform this Court of the fact of surrender, after which, the cancellation of the bond shall be ordered by this Court; 2) The RTC shall order the transmittal of the accused to the National Bureau of Prisons thru the Philippine National Police as the accused shall remain under confinement pending resolution of his appeal; 3) If the accused-appellant is not surrendered within the aforesaid period of ten (10) days, his bond shall be forfeited and an order of arrest shall be issued by this Court. The appeal taken by the accused shall also be dismissed under Section 8, Rule 124 of the Revised Rules of Court as he shall be deemed to have jumped his bail. (emphasis supplied) Amendments were further introduced in Administrative Circular No. 12-94 dated August 16, 1994 which brought about important changes in the said rules as follows: SECTION 4. Bail, a matter of right. -- All persons in custody shall: (a) before or after conviction by the Metropolitan Trial Court, Municipal Trial Court, Municipal Trial Court in Cities and Municipal Circuit Trial Court, and (b) before conviction by the Regional Trial Court of an offense not punishable by death, reclusion perpetua or life imprisonment, be admitted to bail as a matter of right, with sufficient sureties, or be released on recognizance as prescribed by law of this Rule. (3a) 38

SECTION 5. Bail, when discretionary. -- Upon conviction by the Regional Trial Court of an offense not punishable by death, reclusion perpetua or life imprisonment, the court, on application, may admit the accused to bail. The court, in its discretion, may allow the accused to continue on provisional liberty under the same bail bond during the period of appeal subject to the consent of the bondsman. If the court imposed a penalty of imprisonment exceeding six (6) years but not more than twenty (20) years, the accused shall be denied bail, or his bail previously granted shall be cancelled, upon a showing by the prosecution, with notice to the accused, of the following or other similar circumstances: (a) That the accused is a recidivist, quasi-recidivist, or habitual delinquent, or has committed the crime aggravated by the circumstance of reiteration; (b) That the accused is found to have previously escaped from legal confinement, evaded sentence or has violated the conditions of his bail without valid justification; (c) That the accused committed the offense while on probation, parole, under conditional pardon; (d) That the circumstances of the accused or his case indicate the probability of flight if released on bail; or (e) That there is undue risk that during the pendency of the appeal, the accused may commit another crime. The appellate court may review the resolution of the Regional Trial Court, on motion and with notice to the adverse party. (n) SECTION 6. Capital offense, defined. -- A capital offense, as the term is used in these Rules, is an offense which, under the law existing at the time of its commission and at the time of the application to be admitted to bail, maybe punished with death. (4) SECTION 7. Capital offense or an offense punishable by reclusion perpetua or life imprisonment, not bailable. -- No person charged with a capital offense, or an offense punishable by reclusion perpetua or life imprisonment, when evidence of guilt is strong, shall be admitted to bail regardless of the stage of the criminal prosecution. (emphasis supplied) The above amendments of Administrative Circular No. 12-94 to Rule 114 were thereafter amended by A.M. No. 00-5-03-SC to read as they do now. The development over time of these rules reveals an orientation towards a more restrictive approach to bail pending appeal. It indicates a faithful adherence to the bedrock principle, that 39

is, bail pending appeal should be allowed not with leniency but with grave caution and only for strong reasons. The earliest rules on the matter made all grants of bail after conviction for a non-capital offense by the Court of First Instance (predecessor of the Regional Trial Court) discretionary. The 1988 amendments made applications for bail pending appeal favorable to the appellant-applicant. Bail before final conviction in trial courts for non-capital offenses or offenses not punishable by reclusion perpetua was a matter of right, meaning, admission to bail was a matter of right at any stage of the action where the charge was not for a capital offense or was not punished by reclusion perpetua.[39] The amendments introduced by Administrative Circular No. 12-94 made bail pending appeal (of a conviction by the Regional Trial Court of an offense not punishable by death, reclusion perpetua or life imprisonment) discretionary. Thus, Administrative Circular No. 12-94 laid down more stringent rules on the matter of post-conviction grant of bail. A.M. No. 00-5-03-SC modified Administrative Circular No. 12-94 by clearly identifying which court has authority to act on applications for bail pending appeal under certain conditions and in particular situations. More importantly, it reiterated the "tough on bail pending appeal" configuration of Administrative Circular No. 12-94. In particular, it amended Section 3 of the 1988 Rules on Criminal Procedure which entitled the accused to bail as a matter of right before final conviction.[40] Under the present rule, bail is a matter of discretion upon conviction by the Regional Trial Court of an offense not punishable by death, reclusion perpetua or life imprisonment. Indeed, pursuant to the "tough on bail pending appeal" policy, the presence of bail-negating conditions mandates the denial or revocation of bail pending appeal such that those circumstances are deemed to be as grave as conviction by the trial court for an offense punishable by death, reclusion perpetua or life imprisonment where bail is prohibited. Now, what is more in consonance with a stringent standards approach to bail pending appeal? What is more in conformity with an ex abundante cautelam view of bail pending appeal? Is it a rule which favors the automatic grant of bail in the absence of any of the circumstances under the third paragraph of Section 5, Rule 114? Or is it a rule that authorizes the denial of bail after due consideration of all relevant circumstances, even if none of the circumstances under the third paragraph of Section 5, Rule 114 is present? The present inclination of the rules on criminal procedure to frown on bail pending appeal parallels the approach adopted in the United States where our original constitutional and procedural provisions on bail emanated.[41] While this is of course not to be followed blindly, it nonetheless shows that our treatment of bail pending appeal is no different from that in other democratic societies. In our jurisdiction, the trend towards a strict attitude towards the allowance of bail pending appeal is anchored on the principle that judicial discretion -- particularly with respect to 40

extending bail -- should be exercised not with laxity but with caution and only for strong reasons.[42] In fact, it has even been pointed out that "grave caution that must attend the exercise of judicial discretion in granting bail to a convicted accused is best illustrated and exemplified in Administrative Circular No. 12-94 amending Rule 114, Section 5."[43] Furthermore, this Court has been guided by the following: The importance attached to conviction is due to the underlying principle that bail should be granted only where it is uncertain whether the accused is guilty or innocent, and therefore, where that uncertainty is removed by conviction it would, generally speaking, be absurd to admit to bail. After a person has been tried and convicted the presumption of innocence which may be relied upon in prior applications is rebutted, and the burden is upon the accused to show error in the conviction. From another point of view it may be properly argued that the probability of ultimate punishment is so enhanced by the conviction that the accused is much more likely to attempt to escape if liberated on bail than before conviction.[44] (emphasis supplied) As a matter of fact, endorsing the reasoning quoted above and relying thereon, the Court declared in Yap v. Court of Appeals[45] (promulgated in 2001 when the present rules were already effective), that denial of bail pending appeal is "a matter of wise discretion." A FINAL WORD Section 13, Article II of the Constitution provides: SEC. 13. All persons, except those charged with offenses punishable by reclusion perpetua when evidence of guilt is strong, shall, before conviction, be bailable by sufficient sureties, or be released on recognizance as may be provided by law. x x x (emphasis supplied) After conviction by the trial court, the presumption of innocence terminates and, accordingly, the constitutional right to bail ends.[46] From then on, the grant of bail is subject to judicial discretion. At the risk of being repetitious, such discretion must be exercised with grave caution and only for strong reasons. Considering that the accused was in fact convicted by the trial court, allowance of bail pending appeal should be guided by a stringent-standards approach. This judicial disposition finds strong support in the history and evolution of the rules on bail and the language of Section 5, Rule 114 of the Rules of Court. It is likewise consistent with the trial court's initial determination that the accused should be in prison. Furthermore, letting the accused out on bail despite his conviction may destroy the deterrent effect of our criminal laws. This is especially germane to bail pending appeal because long delays often separate sentencing in the trial court and appellate review. In addition, at the post-conviction stage, the accused faces a certain prison sentence and thus may be more likely to flee regardless of bail bonds or other release conditions. Finally, permitting bail too freely in spite of conviction invites frivolous and time-wasting appeals which will make a mockery of our criminal justice system and court processes. 41

WHEREFORE, the petition is hereby DISMISSED. The Court of Appeals is hereby directed to resolve and decide, on the merits, the appeal of petitioner Jose Antonio Leviste docketed as CA-G.R. CR No. 32159, with dispatch. Costs against petitioner. SO ORDERED. Velasco, Jr., Nachura, Peralta, and Mendoza, JJ., concur.

[1]

Section 1, Rule 114, RULES OF COURT.

[2]

Verilli, Donald, The Eighth Amendment and the Right to Bail: Historical Perspectives, 82 Columbia L.Rev. 328 (1982).
[3]

Id. See Section 5, Rule 114, RULES OF COURT.

[4]

[5]

Keller, Doug, Resolving A "Substantial Question": Just Who Is Entitled to Bail Pending Appeal Under the Bail Reform Act of 1984?, 60 Fla. L. Rev. 825 (2008).
[6]

Leibowitz, Debra, Release Pending Appeal: A Narrow Definition of `Substantial Question' Under the Bail Reform Act, 54 FDMLR 1081 (1986).
[7]

Keller, supra. Leibowitz, supra note 6. Keller, supra. Yap v. Court of Appeals, 411 Phil. 190, 202 (2001).

[8]

[9]

[10]

[11]

Decision dated January 14, 2009 in Criminal Case No. 07-179 penned by Judge Elmo M. Alameda. Rollo, pp. 198-235.
[12]

Notice of Appeal dated January 14, 2009. Id., p. 238-241.

[13]

Resolution dated April 8, 2009 in CA-G.R. CR No. 32159 penned by Associate Justice Martin S. Villarama, Jr. (now a member of this Court) and concurred in by Associate Justices Jose C. 42

Reyes, Jr. and Normandie B. Pizarro of the third Division of the Court of Appeals. Id., pp. 36-45.
[14]

Id., p. 43. Id., p. 47. See Section 1, Rule 65, RULES OF COURT. See Petition, p. 14. Rollo, p. 16.

[15]

[16]

[17]

[18]

Dueas, Jr. v. House of Representatives Electoral Tribunal, G.R. No. 185401, 21 July 2009, 593 SCRA 316, 344.
[19]

Id. Id, p. 345. Fortich v. Corona, 352 Phil. 461 (1998). 441 Phil. 705 (2002). Id. Regalado, Florenz, II REMEDIAL LAW COMPENDIUM 417 (Tenth Revised Edition [2004]).

[20]

[21]

[22]

[23]

[24]

Justice Regalado was Vice-Chairman and, later, Co-Chairman of the Committee on Revision of the Rules of Court which proposed the present (2000) rules on criminal procedure (Rules 110127 of the Rules of Court). It should be noted, however, that Justice Regalado speaks of application for bail pending appeal in cases "wherein a penalty of imprisonment exceeding 6 years but not more than 20 years is imposed." (Emphasis supplied) A careful reading of the third paragraph of Section 5, Rule 114 does not impose the limit of "not more than 20 years."
[25]

Herrera, Oscar, IV REMEDIAL LAW 455-456 (2007).

Justice Herrera was Consultant to the Committee on Revision of the Rules of Court which proposed the present (2000) rules on criminal procedure (Rules 110-127 of the Rules of Court).
[26]

These circumstances are herein referred to as "bail-negating" because the presence of any of them will negate the allowance of bail.
[27]

Discretion implies that, in the absence of a positive law or fixed rule, the judge is to decide 43

by his view of expediency or by the demands of equity and justice. (Negros Oriental Planters Association, Inc. v. Presiding Judge of RTC-Negros Occidental, Branch 52, Bacolod City , G.R. No. 179878, 24 December 2008, 575 SCRA 575 and Luna v. Arcenas, 34 Phil. 80 [1916] both citing Goodwin v. Prime [92 Me., 355]).
[28]

Rosenberg, Maurice, Judicial Discretion of the Trial Court, Viewed from Above, 22 Syracuse L. Rev. 635, 659 (1971) cited in Painter, Mark and Welker, Paula, Abuse of Discretion: What Should It Mean in Ohio Law?, 29 Ohio N.U. L. Rev. 209 (2002).
[29]

Steven Alan Childress & Martha S. Davis, 2 Standards of Review 15.8, at 296 (1986) cited in Painter and Welker, supra.
[30]

Negros Oriental Planters Association, Inc. v. Presiding Judge of RTC-Negros Occidental, Branch 52, Bacolod City, supra note 21.
[31]

Morada v. Tayao, A.M. No. RTJ-93-978, 07 February 1994, 229 SCRA 723. Reyes v. Court of Appeals, 83 Phil. 658 (1949). Id. United States v. Motlow, 10 F.2d 657 (1926) (Butler, Circuit Justice). See D'Aquino v. United States, 180 F.2d 271, 272 (1959) (Douglas, Circuit Justice).

[32]

[33]

[34]

[35]

Justice Douglas of the United States Supreme Court, in his capacity as a Circuit Justice, was one of the first judges to discuss the definition of "substantial question." He equated the phrase with an issue that is "fairly debatable." Later, he provided additional guidance to district courts trying to determine whether a defendant's appeal would raise a fairly debatable issue: [T]he first consideration is the soundness of the errors alleged. Are they, or any of them, likely to command the respect of the appellate judges? It is not enough that I am unimpressed. I must decide whether there is a school of thought, a philosophical view, a technical argument, an analogy, an appeal to precedent or to reason commanding respect that might possibly prevail.(Herzog v. United States, 75 S. Ct. 349, 351 (1955) (Douglas, Circuit Justice)

See also United States v. Barbeau, 92 F. Supp. 196, 202 (D. Alaska 1950), aff'd, 193 F.2d 945 (9th Cir. 1951), cert. denied, 343 U.S. 968 (1952); Warring v. United States, 16 F.R.D. 524, 526 (D. Md. 1954); United States v. Goo, 10 F.R.D. 337, 338 (D. Hawaii 1950).
[36]

Luna v. Arcenas, supra note 21 quoting 2 Encyclopedia of Pleading and Practice 416, 418.

Thus, the general rule and one of the fundamental rules of appellate procedure is that decisions 44

of a trial court which "lie in discretion" will not be reviewed on appeal, whether the case be civil or criminal, at law or in equity (Cuan v. Chiang Kai Shek College, Inc, G.R. No. 175936, 03 September 2007, 532 SCRA 172, 187-188).
[37]

Section 10, Rule 114, RULES OF COURT. The express mention of one implies the exclusion of all others not mentioned. Regalado, Florenz, II REMEDIAL LAW COMPENDIUM 273 (Fifth Revised Edition [1988]). See Herrera, supra note 19, p. 457.

[38]

[39]

[40]

[41]

In particular, in the United States, the history of bail pending appeal has been divided by one scholar on the matter into four distinct periods: (1st period) 1879 to 1934, (2nd period) 1934 to 1956, (third period) 1956 to 1984 and (post-1984 period) 1984 to present. The first period, during which the rules on the matter were just being developed, showed liberality in the grant of bail pending appeal. The second period produced a more restrictive rule, one which limited bail to defendants who could prove that their appeal would raise "a substantial question which should be determined by the appellate court." The third period saw the enactment of the Bail Reform Act of 1966 establishing a standard wherein bail may be allowed pending appeal unless it appears that the appeal is frivolous or taken for delay. Under that standard, the court could deny bail if the defendant was a flight risk or a danger to the community. Hence, bail pending appeal was again favored. The post-1984 period is determined by the enactment and implementation of the Bail Reform Act of 1984. The law was purposely designed to make restrictive the allowance of bail pending appeal. As the Act's legislative history explains, prior law had "a presumption in favor of bail even after conviction" and Congress wanted to "eliminate" that presumption. (Keller, supra note 5.)
[42]

Obosa v. Court of Appeals, G.R. No. 114350, 16 January 1997, 266 SCRA 281. Id. Id. See also Yap v. Court of Appeals, supra note 10. Id.

[43]

[44]

[45]

[46]

See Obosa v. Court of Appeals and Yap v. Court of Appeals, supra. See also Bernas, Joaquin, THE 1987 CONSTITUTION OF THE REPUBLIC OF THE PHILIPPINES: A COMMENTARY, p. 492 (2009).

45

DISSENTING OPINION PERALTA, J.: The denial of an application for bail pending appeal on a case where the accused was charged with Murder but was convicted with Homicide seriously poses some important questions. By denying the application for bail pending appeal of an accused who was charged with the crime of Murder but was convicted of the crime of Homicide, is this Court, in effect, saying that the evidence of guilt for the crime of Murder is strong despite the lower court's finding of proof beyond reasonable doubt of the crime of Homicide, a bailable offense? By denying the application for bail pending appeal on the ground that the evidence of guilt for the crime of Murder is strong, is this court, in a way, unknowingly preempting the judgment of the Court of Appeals as to the main case? In the event that the Court of Appeals sustains the conviction of the accused of the crime of Homicide, a bailable offense and the accused decides to file a Petition for Certiorari before this Court, will the denial of the application for bail of the accused still be effective? With due respect to the present ponencia, an affirmative response to the above questions would bring about some absurdities. Section 13, Article III of the 1987 Philippine Constitution provides the following: Sec. 13. ALL PERSONS, EXCEPT THOSE CHARGED WITH OFFENSES PUNISHABLE BY RECLUSION PERPETUA WHEN EVIDENCE OF GUILT IS STRONG, SHALL, BEFORE CONVICTION, BE BAILABLE BY SUFFICIENT SURETIES, OR BE RELEASED ON RECOGNIZANCE AS MAY BE PROVIDED BY LAW. THE RIGHT TO BAIL SHALL NOT BE IMPAIRED EVEN WHEN THE PRIVILEGE OF THE WRIT OF HABEAS CORPUS IS SUSPENDED. EXCESSIVE BAIL SHALL NOT BE REQUIRED. The Philippine Constitution itself emphasizes the right of an accused to bail with the sole exception of those charged with offenses punishable by reclusion perpetua when evidence of guilt is strong. Cases, like in the present case, when an accused is charged with Murder but was convicted with Homicide, mean only one thing, that the lower court found the evidence for the crime charged not strong, hence, the accused's conviction of a lesser offense. Therefore, the denial of the same accused's application for bail pending appeal on the ground that the evidence of his guilt for the crime charged is strong, would unintentionally be suggestive of the outcome of the appealed decision of the lower court. The discretion whether to grant the application for bail or not is given to the CA in cases such as the present one, on the reason that the same appellate court can review the factual findings of the lower court. However, this will no longer be the case if a Petition for Certiorari is filed with this Court as it is not a trier of facts. Hence, the existence of those queries brought about by the majority opinion casts confusion rather than an enlightenment on the present case. 46

The following discussion, in my opinion, should shed light on the matter: Before this Court is a Petition for Certiorari under Rule 65 of the 1997 Rules of Civil Procedure which seeks to nullify and set aside the Resolutions[1] dated April 8, 2009 and July 14, 2009 of the Court of Appeals (CA). The antecedent facts are the following: Arising from a shooting incident that happened on January 12, 2007 at petitioner Jose Antonio Leviste's office where Rafael de las Alas died of gunshot wounds, petitioner was charged with murder under the Amended Information dated March 15, 2007 in Criminal Case No. 07-179 of the Regional Trial Court (RTC) of Makati City, Branch 150. Petitioner, on February 23, 2007, filed an Urgent Application for Admission to Bail Ex Abundanti Cautela[2] on the ground that the evidence of the prosecution was not strong. The trial court, in its Order[3] dated May 21, 2007, granted petitioner's application for bail. Subsequently, trial ensued and, on January 14, 2009, the trial court rendered its Decision[4] finding petitioner guilty beyond reasonable doubt of the crime of homicide, the dispositive portion of which reads: WHEREFORE, PREMISES CONSIDERED, accused Jose Antonio Leviste y Casals is hereby found guilty beyond reasonable doubt of the crime of homicide and is sentenced to suffer the indeterminate penalty of six (6) years and one (1) day of prision mayor as minimum, to twelve (12) years and one (1) day of reclusion temporal as maximum. Accused is further ordered to pay the heirs of the victim, Rafael de las Alas, the amount of Php50,000.00 as death indemnity and Php50,000.00 as moral damages. Accused Jose Antonio Leviste y Casals shall be credited in the service of his sentence consisting of deprivation of liberty, with the full time during which he had undergone preventive imprisonment at the Makati City Jail from February 7, 2007 up to May 22, 2007 up provided that he agreed voluntarily in writing to abide by the same disciplinary rules imposed upon convicted prisoners. SO ORDERED. Consequently, in its Order[5] dated January 14, 2009, the trial court canceled petitioner's bail bond, ruling that: Accused Jose Antonio Leviste y Casals was charged with the crime of Murder, a capital offense or an offense which under the law at the time of its commission and at the time of the application for bail is punishable by reclusion perpetua to death. The accused is presently out on bail. After trial, the accused was however convicted of Homicide, a lesser offense than that charged in the Information. Accused was accordingly sentenced to suffer the indeterminate penalty of six (6) 47

years and one (1) day of prision mayor as minimum, to twelve (12) years and one (1) day of reclusion temporal as maximum. Sec. 5, Rule 114 of the Rules on Criminal Procedure which is deemed to have modified SC Administrative Circular No. 2-92 dated January 20, 1992, provides: Bail, when discretionary. - Upon conviction by the Regional Trial Court of an offense not punishable by death, reclusion perpetua, or life imprisonment, admission to bail is discretionary. The application for bail may be filed and acted upon by the trial court despite the filing of a notice of appeal, provided it has not transmitted the original record to the appellate court. However, if the decision of the trial court convicting the accused changed the nature of the offense from non-bailable to bailable, the application for bail can only be filed with and resolved by the appellate court. In Obosa v. Court of Appeals, G.R. No. 114350, January 16, 1997, 266 SCRA 281, 78 SCAD 17, the Supreme Court, speaking thru the Third Division, stated: x x x that bail cannot be granted as a matter of right even after an accused, who is charged with a capital offense, appeals his conviction for a non-capital crime. Courts must exercise utmost caution in deciding applications for bail considering that the accused on appeal may still be convicted of the original capital offense charged and that the risk attendant to jumping bail still subsists. In fact, trial courts would be well advised to leave the matter of bail, after conviction for a lesser crime than the capital offense originally charged, to the appellate court's sound discretion. In view of the aforecited rules and prevailing jurisprudence on the matter, the bailbond posted by the accused for his provisional liberty is deemed cancelled. Accused being considered a national prisoner is ordered committed to the Makati City Jail, Makati City, pending his transfer to the New Bilibid Prison at Muntinlupa City. SO ORDERED. Petitioner filed a Notice of Appeal[6] dated January 14, 2009 and on January 15, 2009, filed with the CA an Urgent Application for Admission to Bail Pending Appeal and an Urgent Ex Parte Motion for Special Raffle and to Resolve the Attached Application for Admission to Bail. The CA, in its Resolution dated April 8, 2009, denied petitioner's application for bail pending appeal, the disposition reading: IN VIEW OF THE FOREGOING REASONS, "the Urgent Application for Admission to Bail Pending Appeal" is hereby DENIED. SO ORDERED. The CA also denied petitioner's Motion for Reconsideration dated April 14, 2009 in its Resolution[7] dated July 14, 2009. 48

Hence, the present petition. Petitioner states the following arguments: THE COURT OF APPEALS COMMITTED GRAVE ABUSE OF DISCRETION IN DENYING PETITIONER'S APPLICATION FOR BAIL PENDING APPEAL DESPITE THE FACT THAT NONE OF THE CONDITIONS TO JUSTIFY THE DENIAL THEREOF UNDER RULE 114, SECTION 5 ARE PRESENT, MUCH LESS PROVEN BY THE PROSECUTION. THE COURT OF APPEALS GRAVELY ERRED IN IGNORING THE FACT THAT PETITIONER WAS CONVICTED OF HOMICIDE, A BAILABLE OFFENSE, AND THAT AS TWICE SHOWN IN THE PROCEEDINGS BELOW, THE EVIDENCE THAT PETITIONER COMMITTED THE CRIME OF MURDER IS NOT STRONG. THE COURT OF APPEALS UNJUSTLY PREJUDGED PETITIONER'S APPEAL BY CONCLUDING THAT THE EVIDENCE OF GUILT FOR MURDER IS STRONG, DESPITE THE FINDINGS OF THE TRIAL COURT TO THE CONTRARY. THE COURT OF APPEALS SHOWED UNJUST BIAS IN ALLOWING PROSECUTOR VELASCO TO PARTICIPATE IN THE APPELLATE PROCEEDINGS.[8] According to petitioner, the CA should have granted bail in view of the absence of any of the circumstances enumerated under paragraphs (a) to (e), Section 5, Rule 114. He adds that he is neither a recidivist, a quasi-recidivist or habitual delinquent, nor a flight risk; and there is no undue risk that he would commit another crime during the pendency of his appeal. Petitioner further argues that the CA committed a grave error and prejudged the appeal by denying his application for bail on the ground that the evidence that he committed a capital offense was strong. He points out that the records show that the trial court already granted him bail, since it found that the prosecution had failed to demonstrate that the evidence of his guilt for the crime of murder was strong; and this was further confirmed when the trial court convicted him of the crime of homicide instead of murder. Hence, petitioner insists that the trial court's determination that he is not guilty of a capital offense should subsist even on appeal. Anent the third issue, petitioner claims that the CA allowed Prosecutor Emmanuel Velasco to delay his application for bail by filing mere manifestations requesting the CA to provide him with copies of petitioner's motions and written submissions. In its Comment dated November 20, 2009, the Office of the Solicitor General (OSG) contends that the CA committed no grave abuse of discretion in denying petitioner's application for bail pending appeal. Although the grant of bail is discretionary in non-capital offenses, if, as in this case, imprisonment has been imposed on the petitioner in excess of six (6) years and circumstances point to a considerable likelihood that he may flee if released on bail, then he must be denied bail, or his bail previously granted should be canceled. The OSG also reiterates the ruling in Obosa v. Court of Appeals,[9] which was relied upon by the CA in denying the application for bail, stating that after an accused has been tried and convicted, the presumption 49

of innocence, which may be relied upon if prior application is rebutted, the burden is upon the accused to show error in the conviction. As to the claim of petitioner that the CA gravely abused its discretion in allowing Prosecutor Velasco to participate in the appellate proceedings, the OSG dismissed the said argument as without merit. In his Manifestation and Motion dated December 9, 2009, petitioner contends that the OSG's arguments in its Comment are a mere rehash of the baseless justifications and arguments made by the CA in denying his application for bail, arguments which have already been tackled and refuted by him in the present petition. Petitioner, in a Manifestation dated November 25, 2009, notified this Court that he had filed a Very Urgent Motion for a Medical Pass before the CA, as he had to undergo medical treatment at the soonest possible time. In his December 21, 2009 Reply [to Respondent People of the Philippines' Comment dated 20 November 2009], petitioner reiterated the arguments he raised in his petition. In a letter dated November 25, 2009, which was received by the Office of the Chief Justice on December 7, 2009, Mrs. Teresita C. de las Alas (wife), Ms. Dinna de las Alas-Sanchez (daughter), and Ms. Nazareth H. de las Alas (daughter) expressed consent to the grant of bail to the petitioner. The petition is impressed with merit. Sections 5 and 7, Rule 114 of the 2000 Revised Rules on Criminal Procedure, as amended, provide that: Sec. 5. Bail, when discretionary. - Upon conviction by the Regional Trial Court of an offense not punishable by death, reclusion perpetua, or life imprisonment, admission to bail is discretionary. The application for bail may be filed and acted upon by the trial court despite the filing of a notice of appeal, provided it has not transmitted the original record to the appellate court. However, if the decision of the trial court convicting the accused changed the nature of the offense from non-bailable to bailable, the application for bail can only be filed with and resolved by the appellate court. Should the court grant the application, the accused may be allowed to continue on provisional liberty during the pendency of the appeal under the same bail subject to the consent of the bondsman. If the penalty imposed by the trial court is imprisonment exceeding six (6) years, the accused shall be denied bail, or his bail shall be canceled upon a showing by the prosecution, with notice to the accused, of the following or other similar circumstances: (a) That he is a recidivist, quasi-recidivist, or habitual delinquent, or has committed the crime 50

aggravated by the circumstance of reiteration; (b) That he has previously escaped from legal confinement, evaded sentence, or violated the conditions of his bail without a valid justification; (c) That he committed the offense while under probation, parole, or conditional pardon; (d) That the circumstances of his case indicate the probability of flight if released on bail; or (e) That there is undue risk that he may commit another crime during the pendency of the appeal. The appellate court may, motu propio or on motion of any party, review the resolution of the Regional Trial Court after notice to the adverse party in either case. SEC. 7. Capital offense or an offense punishable by reclusion perpetua or life imprisonment, not bailable. - No person charged with a capital offense, or an offense punishable by reclusion perpetua or life imprisonment, shall be admitted to bail when evidence of guilt is strong, regardless of the stage of the criminal prosecution. Prior to the affectivity of the above provisions, the governing rule in the granting or cancellation of bail was encapsulated in Administrative Circular No. 12-94,[10] stating that: Sec. 3. Bail, a matter of right; exception. - All persons in custody shall, before final conviction, be entitled to bail as a matter of right, except those charged with a capital offense or an offense which, under the law at the time of its commission and at the time of the application for bail, is punishable by reclusion perpetua, when evidence of guilt is strong. xxxx SEC. 5 Bail, When Discretionary. - Upon conviction by the Regional Trial Court of an offense not punishable by death, reclusion perpetua or life imprisonment, the court, on application, may admit the accused to bail. The court, in its discretion, may allow the accused to continue on provisional liberty under the same bail bond during the period of appeal subject to the consent of the bondsman. If the court imposed a penalty of imprisonment exceeding six (6) years but not more than twenty (20) years, the accused shall be denied bail, or his bail previously granted shall be canceled, upon a showing by the prosecution, with notice to the accused, of the following or other similar circumstances: (a) That the accused is a recidivist, quasi-recidivist, or habitual delinquent, or has committed the crime aggravated by the circumstance of reiteration; (b) That the accused is found to have previously escaped from legal confinement, evaded sentence, or has violated the conditions of his bail without valid justification; (c) That the accused committed the offense while on probation, parole, or under conditional pardon; 51

(d) That the circumstances of the accused or his case indicate the probability if flight of released on bail; or (e) That there is undue risk that during the pendency of the appeal, the accused may commit another crime. The appellate court may review the resolution of the Regional Trial Court, on motion and with notice to the adverse party. As can be gleaned above, the set of circumstances appearing in Section 5, Rule 114 of the Rules of Court brought about by Administrative Circular No. 12-94 has been retained in the present Rules. Notably, it was after the ruling of this Court in Obosa v. Court of Appeals[11] that the present provisions of Secs. 5 and 7, Rule 114 of the 2000 Revised Rules of Criminal Procedure became effective. In canceling petitioner's bail bond and denying his application for bail pending appeal, the trial court and the CA, as well as the OSG in its Comment to the petition, relied on Obosa v. CA,[12] where this Court ruled that bail cannot be granted as a matter of right even after an accused, who is charged with a capital offense, appeals his conviction for a non-capital crime. The said case, however, is not applicable. In Obosa, the petitioner therein was convicted and applied for bail pending appeal prior to the affectivity of the amendments brought about by Administrative Circular No. 12-94; thus, the set of circumstances, as now seen in the present Rules, was yet to be present. Granting arguendo that the present provisions of Section 5, Rule 114 can be made applicable to petitioner Obosa, this Court, in that same case, still deemed him to be disqualified from the grant of bail on the basic reason that, aside from Obosa being convicted of two counts of homicide, circumstances a, b, d and e of Section 5, Rule 114 of the Rules of Court were present. In the present case, as will be discussed later, not one of the circumstances that would warrant the denial of bail is present. Incidentally, magnified in the denial of petitioner's application for bail pending appeal was the reliance of the CA on the judgment of conviction rendered by the trial court. According to the CA, the evidence of guilt of the petitioner, as found by the trial court, was strong, therefore, the provisions of Section 7 of Rule 114 of the 2000 Revised Rules of Criminal Procedure were applicable, the crime charged being murder. However, it must be remembered that although petitioner was charged with the crime of murder, he was convicted of the crime of homicide. Prior to the said conviction, the trial court, after bail hearing, granted bail to petitioner, thus: Accordingly, for failure of the prosecution to demonstrate that the evidence of guilt of the accused Jose Antonio J. Leviste for the crime of Murder is strong to foreclose his right to bail, the court hereby grants the motion and, allows the accused to post bail in the amount of P300,000.00 for his provisional liberty. Accused shall be discharged or released only upon the approval of his bail by the Court. 52

SO ORDERED.[13] Ultimately, after the trial of the case, the trial court found petitioner guilty beyond reasonable doubt of the crime of homicide, not murder as originally charged, demonstrating the consistency of the trial court's findings in the bail hearing and in the actual trial of the said case. Nevertheless, the CA, in denying petitioner's application for bail, relied on Section 7, Rule 114 of the Rules of Court insisting that the evidence of guilt of the petitioner was strong. By ruling thus, the CA has not accorded respect to the factual findings of the trial court. It is a time-honored legal precept, in this regard that the findings of fact of the trial court are accorded great respect by appellate courts and should not be disturbed on appeal unless the trial court has overlooked, ignored, or disregarded some fact or circumstance of sufficient weight or significance which, if considered, would alter the situation.[14] Moreover, there seems to be a disparity between the pronouncement of the CA that the trial court found the evidence of guilt of the petitioner strong and the explanation of why the former considered it to be so. The CA ruled that: From the judgment of conviction rendered by the trial court, the prosecution had demonstrated that appellant's guilt is strong, after finding that accused failed to satisfy the requirements of self-defense to justify the shooting of the victim. Said court carefully and meticulously evaluated the evidence on record and ruled that the claim of appellant that the victim was the agressor deserves disbelief considering that evidence at the scene of the crime indicated that the victim could not have fired the gun apparently placed in his hand; appellant's conduct in refusing to be subjected to paraffin test is not the natural tendency of a person claiming self-defense; and neither was appellant threatened or intimidated by the victim's averred pugnacious, quarrelsome or trouble-seeking character of the victim. And even assuming arguendo that there was unlawful aggression, the trial court found that the five (5) gunshot wounds (four) [4] shots even aimed at head, a vital organ) were not reasonable means to repel the same, and the evidence demonstrated a determined effort on the part of the appellant to kill the victim and not just to defend himself. However, appellant was convicted of the lesser offense (homicide) since the qualifying circumstances of treachery, evident premeditation and cruelty or ignominy, alleged in the Amended Information, were not duly proven at the trial.[15] The above observation of the CA serves nothing but to bolster the earlier finding of the trial court that the prosecution was not able to present evidence that would prove that the guilt of the petitioner as to the crime charged (murder) was strong. Section 7, Rule 114 of the Rules of Court, clearly mandates that no person charged with a capital offense, or an offense punishable by reclusion perpetua or life imprisonment, shall be admitted to bail when evidence of guilt is strong. The provision distinctly refers to the crime charged and not the crime proven. The failure then of the prosecution to prove the existence of the circumstances to qualify the crime committed to murder, the crime charged, necessarily means that the evidence of his guilt of the said crime is not strong. Ideally, what the CA should have done was to consolidate the application for bail with the 53

petition filed before it because it is only in that manner by which the appellate court may ascertain whether the evidence of guilt of the accused for the crime charged is indeed strong, or in reverse, whether the lower court was right in convicting the accused of a lesser offense. Above all else, the CA should have applied the provisions of Section 5, Rule 114 of the Rules of Court, wherein the appellate court is given the discretion to grant bail to the petitioner after considering the enumerated circumstances, the penalty imposed by the trial court having exceeded six years. Although this Court has held that the discretion to extend bail during the course of the appeal should be exercised with grave caution and for strong reasons, considering that the accused has been in fact convicted by the trial court,[16] the set of circumstances succinctly provided in Section 5, Rule 114 of the Rules of Court should be considered. The said set of circumstances has been provided as a guide for the exercise of the appellate court's discretion in granting or denying the application for bail, pending the appeal of an accused who has been convicted of a crime where the penalty imposed by the trial court is imprisonment exceeding six (6) years. Otherwise, if it is intended that the said discretion be absolute, no such set of circumstances would have been necessarily included in the Rules. Thus, if the present ruling of the CA is upheld, anyone who has been charged with a capital offense, or an offense punishable by reclusion perpetua or life imprisonment but convicted by the trial court of a lesser offense, would no longer be able to apply for bail pending one's appeal. And by that premise, the discretion accorded to the appellate court in granting or denying applications for bail for those who have been convicted by the trial court with imprisonment exceeding six (6) years as penalty would have to be rendered nugatory and the provisions of Section 5, Rule 114 of the 2000 Revised Rules of Criminal Procedure would also be rendered useless. Therefore, applying the provisions of Section 5, Rule 114 of the 2000 Revised Rules of Criminal Procedure and after a careful perusal of the records and a learned consideration of the arguments of the parties, this Court finds no reason to deny petitioner his application for bail pending appeal. Petitioner is indisputably not a recidivist, quasi-recidivist, or habitual delinquent, or has he committed the crime aggravated by the circumstance of reiteration. He has also not previously escaped from legal confinement, evaded sentence, or violated the conditions of his bail without a valid justification. He did not commit the offense charged while under probation, parole, or conditional pardon. Lastly, as shown by his previous records and pointed out by petitioner,[17] considering his conduct while out on bail during the trial of his case, his advanced age,[18] and his current health condition,[19] the probability of flight is nil and there is no risk that he may commit another crime during the pendency of the appeal. Also noted by this Court is the letter of the heirs of Rafael de las Alas giving their consent and stating that they have no objection to petitioner's application for bail. Although the said letter or consent can never be a basis for the grant of the application for bail, it serves as a reference for the petitioner's improbability to evade whatever negative result the grant of his appeal might bring. Nonetheless, what governs in this case is the discretion of the appellate court as guided by the provisions of Section 5, Rule 114 of the 2000 Revised Rules of Criminal Procedure. 54

Necessarily, due to the above discussion, I humbly dissent.

[1]

Rollo, pp. 36-45. Id. at 150-154. Id. at 164-197. Id. at 198-235. Id. at 236-237. Id. at 238-239. Id. at 47. Id. at 16. 334 Phil. 253 (1997). Dated October 1, 1994, amending the 1985 Rules of Criminal Procedure. Supra note 9. Id. Rollo, p. 197. (Emphasis supplied.)

[2]

[3]

[4]

[5]

[6]

[7]

[8]

[9]

[10]

[11]

[12]

[13]

[14]

People of the Philippines v. Dizon, 329 Phil. 685, 695 (1996), citing People v. Gomez, 229 SCRA 138 (1994).
[15]

Rollo, p. 44. (Emphasis supplied.)

[16]

Yap, Jr. v. Court of Appeals, 411 Phil. 190, 202 (2001), citing Obosa v. Court of Appeals, supra note 9.
[17]

Rollo, p. 22. 69 years and 7 months old upon the filing of his petition. Manifestation dated November 25, 2009; rollo, pp. 327-328. 55

[18]

[19]