Republic of the Philippines

SUPREME COURT
Manila
SECOND DIVISION
G.R. No. L-69809 October 16, 1986
EDGARDO A. GAANAN, petitioner,
vs.
INTERMEDIATE APPELLATE COURT and PEOPLE OF THE PHILIPPINES, respondents.

GUTIERREZ, JR., J.:

This petition for certiorari asks for an interpretation of Republic Act (RA) No. 4200, otherwise known as the AntiWiretapping Act, on the issue of whether or not an extension telephone is among the prohibited devices in Section 1
of the Act, such that its use to overhear a private conversation would constitute unlawful interception of
communications between the two parties using a telephone line.
The facts presented by the People and narrated in the respondent court's decision are not disputed by the petitioner.
In the morning of October 22, 1975, complainant Atty. Tito Pintor and his client Manuel Montebon
were in the living room of complainant's residence discussing the terms for the withdrawal of the
complaint for direct assault which they filed with the Office of the City Fiscal of Cebu against
Leonardo Laconico. After they had decided on the proposed conditions, complainant made a
telephone call to Laconico (tsn, August 26, 1981, pp. 3-5).
That same morning, Laconico telephoned appellant, who is a lawyer, to come to his office and
advise him on the settlement of the direct assault case because his regular lawyer, Atty. Leon
Gonzaga, went on a business trip. According to the request, appellant went to the office of Laconico
where he was briefed about the problem. (Exhibit 'D', tsn, April 22, 1982, pp. 4-5).
When complainant called up, Laconico requested appellant to secretly listen to the telephone
conversation through a telephone extension so as to hear personally the proposed conditions for the
settlement. Appellant heard complainant enumerate the following conditions for withdrawal of the
complaint for direct assault.
(a) the P5,000.00 was no longer acceptable, and that the figure had been increased to P8,000.00. A
breakdown of the P8,000.00 had been made together with other demands, to wit: (a) P5,000.00 no
longer for the teacher Manuel Montebon, but for Atty. Pintor himself in persuading his client to
withdraw the case for Direct Assault against Atty. Laconico before the Cebu City Fiscal's Office;
(b) Public apology to be made by Atty. Laconico before the students of Don Bosco Technical High
School;
(c) Pl,000.00 to be given to the Don Bosco Faculty club;
(d) transfer of son of Atty. Laconico to another school or another section of Don Bosco Technical
High School;
(e) Affidavit of desistance by Atty. Laconico on the Maltreatment case earlier filed against Manuel
Montebon at the Cebu City Fiscal's Office, whereas Montebon's affidavit of desistance on the Direct
Assault Case against Atty. Laconico to be filed later;
(f) Allow Manuel Montebon to continue teaching at the Don Bosco Technical School;
(g) Not to divulge the truth about the settlement of the Direct Assault Case to the mass media;
(h) P2,000.00 attorney s fees for Atty. Pintor. (tsn, August 26, 1981, pp. 47-48).

Twenty minutes later, complainant called up again to ask Laconico if he was agreeable to the
conditions. Laconico answered 'Yes'. Complainant then told Laconico to wait for instructions on
where to deliver the money. (tsn, March 10, 1983, pp. 2-12).
Complainant called up again and instructed Laconico to give the money to his wife at the office of
the then Department of Public Highways. Laconico who earlier alerted his friend Colonel Zulueta of
the Criminal Investigation Service of the Philippine Constabulary, insisted that complainant himself
should receive the money. (tsn, March 10, 1982, pp. 26-33). When he received the money at the
Igloo Restaurant, complainant was arrested by agents of the Philippine Constabulary.
Appellant executed on the following day an affidavit stating that he heard complainant demand
P8,000.00 for the withdrawal of the case for direct assault. Laconico attached the affidavit of
appellant to the complainant for robbery/extortion which he filed against complainant. Since
appellant listened to the telephone conversation without complainant's consent, complainant
charged appellant and Laconico with violation of the Anti-Wiretapping Act.
After trial on the merits, the lower court, in a decision dated November 22, 1982, found both Gaanan and Laconico
guilty of violating Section 1 of Republic Act No. 4200. The two were each sentenced to one (1) year imprisonment
with costs. Not satisfied with the decision, the petitioner appealed to the appellate court.
On August 16, 1984, the Intermediate Appellate Court affirmed the decision of the trial court, holding that the
communication between the complainant and accused Laconico was private in nature and, therefore, covered by
Rep. Act No. 4200; that the petitioner overheard such communication without the knowledge and consent of the
complainant; and that the extension telephone which was used by the petitioner to overhear the telephone
conversation between complainant and Laconico is covered in the term "device' as provided in Rep. Act No. 4200.
In this petition for certiorari, the petitioner assails the decision of the appellate court and raises the following issues;
(a) whether or not the telephone conversation between the complainant and accused Laconico was private in
nature; (b) whether or not an extension telephone is covered by the term "device or arrangement" under Rep. Act
No. 4200; (c) whether or not the petitioner had authority to listen or overhear said telephone conversation and (d)
whether or not Rep. Act No. 4200 is ambiguous and, therefore, should be construed in favor of the petitioner.
Section 1 of Rep. Act No. 4200 provides:
Section 1. It shall be unlawful for any person, not being authorized by all the parties to any private
communication or spoken word, to tap any wire or cable or by using any other device or
arrangement, to secretly overhear, intercept, or record such communication or spoken word by using
a device commonly known as a dictaphone or dictagraph or detectaphone or walkie-talkie or taperecorder, or however otherwise described:
It shall be unlawful for any person, be he a participant or not in the act or acts penalized in the next
preceeding sentence, to knowingly possess any tape record, wire record, disc record, or any other
such record, or copies thereof, of any communication or spoken word secured either before or after
the effective date of this Act in the manner prohibited by this law; or to replay the same for any other
person or persons; or to communicate the contents thereof, either verbally or in writing, or to furnish
transcriptions thereof, whether complete or partial, to any other person: Provided, that the use of
such record or any copies thereof as evidence in any civil, criminal investigation or trial of offenses
mentioned in Section 3 hereof, shall not be covered by this prohibition.
We rule for the petitioner.
We are confronted in this case with the interpretation of a penal statute and not a rule of evidence. The issue is not
the admissibility of evidence secured over an extension line of a telephone by a third party. The issue is whether or
not the person called over the telephone and his lawyer listening to the conversation on an extension line should
both face prison sentences simply because the extension was used to enable them to both listen to an alleged
attempt at extortion.
There is no question that the telephone conversation between complainant Atty. Pintor and accused Atty. Laconico
was "private" in the sense that the words uttered were made between one person and another as distinguished from
words between a speaker and a public. It is also undisputed that only one of the parties gave the petitioner the
authority to listen to and overhear the caller's message with the use of an extension telephone line. Obviously,
complainant Pintor, a member of the Philippine bar, would not have discussed the alleged demand for an P8,000.00

consideration in order to have his client withdraw a direct assault charge against Atty. Laconico filed with the Cebu
City Fiscal's Office if he knew that another lawyer was also listening. We have to consider, however, that affirmance
of the criminal conviction would, in effect, mean that a caller by merely using a telephone line can force the listener
to secrecy no matter how obscene, criminal, or annoying the call may be. It would be the word of the caller against
the listener's.
Because of technical problems caused by the sensitive nature of electronic equipment and the extra heavy loads
which telephone cables are made to carry in certain areas, telephone users often encounter what are called
"crossed lines". An unwary citizzen who happens to pick up his telephone and who overhears the details of a crime
might hesitate to inform police authorities if he knows that he could be accused under Rep. Act 4200 of using his
own telephone to secretly overhear the private communications of the would be criminals. Surely the law was never
intended for such mischievous results.
The main issue in the resolution of this petition, however, revolves around the meaning of the phrase "any other
device or arrangement." Is an extension of a telephone unit such a device or arrangement as would subject the user
to imprisonment ranging from six months to six years with the accessory penalty of perpetual absolute
disqualification for a public officer or deportation for an alien? Private secretaries with extension lines to their
bosses' telephones are sometimes asked to use answering or recording devices to record business conversations
between a boss and another businessman. Would transcribing a recorded message for the use of the boss be a
proscribed offense? or for that matter, would a "party line" be a device or arrangement under the law?
The petitioner contends that telephones or extension telephones are not included in the enumeration of "commonly
known" listening or recording devices, nor do they belong to the same class of enumerated electronic devices
contemplated by law. He maintains that in 1964, when Senate Bill No. 9 (later Rep. Act No. 4200) was being
considered in the Senate, telephones and extension telephones were already widely used instruments, probably the
most popularly known communication device.
Whether or not listening over a telephone party line would be punishable was discussed on the floor of the Senate.
Yet, when the bill was finalized into a statute, no mention was made of telephones in the enumeration of devices
"commonly known as a dictaphone or dictagraph, detectaphone or walkie talkie or tape recorder or however
otherwise described." The omission was not a mere oversight. Telephone party lines were intentionally deleted from
the provisions of the Act.
The respondent People argue that an extension telephone is embraced and covered by the term "device" within the
context of the aforementioned law because it is not a part or portion of a complete set of a telephone apparatus. It is
a separate device and distinct set of a movable apparatus consisting of a wire and a set of telephone receiver not
forming part of a main telephone set which can be detached or removed and can be transferred away from one
place to another and to be plugged or attached to a main telephone line to get the desired communication corning
from the other party or end.
The law refers to a "tap" of a wire or cable or the use of a "device or arrangement" for the purpose of secretly
overhearing, intercepting, or recording the communication. There must be either a physical interruption through a
wiretap or the deliberate installation of a device or arrangement in order to overhear, intercept, or record the spoken
words.
An extension telephone cannot be placed in the same category as a dictaphone, dictagraph or the other devices
enumerated in Section 1 of RA No. 4200 as the use thereof cannot be considered as "tapping" the wire or cable of a
telephone line. The telephone extension in this case was not installed for that purpose. It just happened to be there
for ordinary office use. It is a rule in statutory construction that in order to determine the true intent of the legislature,
the particular clauses and phrases of the statute should not be taken as detached and isolated expressions, but the
whole and every part thereof must be considered in fixing the meaning of any of its parts. (see Commissioner of
Customs v. Esso Estandard Eastern, Inc., 66 SCRA 113,120).
In the case of Empire Insurance Com any v. Rufino (90 SCRA 437, 443-444), we ruled:
Likewise, Article 1372 of the Civil Code stipulates that 'however general the terms of a contract may
be, they shall not be understood to comprehend things that are distinct and cases that are different
from those upon which the parties intended to agree.' Similarly, Article 1374 of the same Code
provides that 'the various stipulations of a contract shall be interpreted together, attributing to the
doubtful ones that sense which may result from all of them taken jointly.
xxx xxx xxx

Consequently, the phrase 'all liabilities or obligations of the decedent' used in paragraph 5(c) and
7(d) should be then restricted only to those listed in the Inventory and should not be construed as to
comprehend all other obligations of the decedent. The rule that 'particularization followed by a
general expression will ordinarily be restricted to the former' is based on the fact in human
experience that usually the minds of parties are addressed specially to the particularization, and that
the generalities, though broad enough to comprehend other fields if they stood alone, are used in
contemplation of that upon which the minds of the parties are centered. (Hoffman v. Eastern
Wisconsin R., etc., Co., 134 Wis. 603, 607, 115 NW 383, cited in Francisco, Revised Rules of Court
(Evidence), 1973 ed, pp. 180-181).
Hence, the phrase "device or arrangement" in Section 1 of RA No. 4200, although not exclusive to that enumerated
therein, should be construed to comprehend instruments of the same or similar nature, that is, instruments the use
of which would be tantamount to tapping the main line of a telephone. It refers to instruments whose installation or
presence cannot be presumed by the party or parties being overheard because, by their very nature, they are not of
common usage and their purpose is precisely for tapping, intercepting or recording a telephone conversation.
An extension telephone is an instrument which is very common especially now when the extended unit does not
have to be connected by wire to the main telephone but can be moved from place ' to place within a radius of a
kilometer or more. A person should safely presume that the party he is calling at the other end of the line probably
has an extension telephone and he runs the risk of a third party listening as in the case of a party line or a telephone
unit which shares its line with another. As was held in the case of Rathbun v. United States (355, U.S. 107, 2 L Ed
2d 137-138):
Common experience tells us that a call to a particular telephone number may cause the bell to ring
in more than one ordinarily used instrument. Each party to a telephone conversation takes the risk
that the other party may have an extension telephone and may allow another to overhear the
conversation. When such takes place there has been no violation of any privacy of which the parties
may complain. Consequently, one element of 605, interception, has not occurred.
In the same case, the Court further ruled that the conduct of the party would differ in no way if instead of repeating
the message he held out his hand-set so that another could hear out of it and that there is no distinction between
that sort of action and permitting an outsider to use an extension telephone for the same purpose.
Furthermore, it is a general rule that penal statutes must be construed strictly in favor of the accused. Thus, in case
of doubt as in the case at bar, on whether or not an extension telephone is included in the phrase "device or
arrangement", the penal statute must be construed as not including an extension telephone. In the case of People v.
Purisima, 86 SCRA 542, 562, we explained the rationale behind the rule:
American jurisprudence sets down the reason for this rule to be the tenderness of the law of the
rights of individuals; the object is to establish a certain rule by conformity to which mankind would be
safe, and the discretion of the court limited. (United States v. Harris, 177 US 305, 44 L Ed 780, 20 S
Ct 609; Braffith v. Virgin Islands (CA3) 26 F2d 646; Caudill v. State, 224 Ind 531, 69 NE2d; Jennings
v. Commonwealth, 109 VA 821,63 SE 1080, all cited in 73 Am Jur 2d 452). The purpose is not to
enable a guilty person to escape punishment through a technicality but to provide a precise definition
of forbidden acts." (State v. Zazzaro, 20 A 2d 737, quoted in Martin's Handbook on Statutory
Construction, Rev. Ed. pp. 183-184).
In the same case of Purisima, we also ruled that on the construction or interpretation of a legislative measure, the
primary rule is to search for and determine the intent and spirit of the law. A perusal of the Senate Congressional
Records will show that not only did our lawmakers not contemplate the inclusion of an extension telephone as a
prohibited device or arrangement" but of greater importance, they were more concerned with penalizing the act of
recording than the act of merely listening to a telephone conversation.
xxx xxx xxx
Senator Taada. Another possible objection to that is entrapment which is certainly
objectionable. It is made possible by special amendment which Your Honor may
introduce.
Senator Diokno.Your Honor, I would feel that entrapment would be less possible with
the amendment than without it, because with the amendment the evidence of
entrapment would only consist of government testimony as against the testimony of

the defendant. With this amendment, they would have the right, and the government
officials and the person in fact would have the right to tape record their conversation.
Senator Taada. In case of entrapment, it would be the government.
Senator Diokno. In the same way, under this provision, neither party could record
and, therefore, the court would be limited to saying: "Okay, who is more credible, the
police officers or the defendant?" In these cases, as experienced lawyers, we know
that the Court go with the peace offices.
(Congressional Record, Vol. 111, No. 33, p. 628, March 12, 1964).
xxx xxx xxx
Senator Diokno. The point I have in mind is that under these conditions, with an
agent outside listening in, he could falsify the testimony and there is no way of
checking it. But if you allow him to record or make a recording in any form of what is
happening, then the chances of falsifying the evidence is not very much.
Senator Taada. Your Honor, this bill is not intended to prevent the presentation of
false testimony. If we could devise a way by which we could prevent the presentation
of false testimony, it would be wonderful. But what this bill intends to prohibit is the
use of tape record and other electronic devices to intercept private conversations
which later on will be used in court.
(Congressional Record, Vol. III, No. 33, March 12, 1964, p. 629).
It can be readily seen that our lawmakers intended to discourage, through punishment, persons such as
government authorities or representatives of organized groups from installing devices in order to gather evidence for
use in court or to intimidate, blackmail or gain some unwarranted advantage over the telephone users.
Consequently, the mere act of listening, in order to be punishable must strictly be with the use of the enumerated
devices in RA No. 4200 or others of similar nature. We are of the view that an extension telephone is not among
such devices or arrangements.
WHEREFORE, the petition is GRANTED. The decision of the then Intermediate Appellate Court dated August 16,
1984 is ANNULLED and SET ASIDE. The petitioner is hereby ACQUITTED of the crime of violation of Rep. Act No.
4200, otherwise known as the Anti-Wiretapping Act.
SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila
FIRST DIVISION

G.R. No. 93833 September 28, 1995

SOCORRO D. RAMIREZ, petitioner,
vs.
HONORABLE COURT OF APPEALS, and ESTER S. GARCIA, respondents.

KAPUNAN, J.:
A civil case damages was filed by petitioner Socorro D. Ramirez in the Regional Trial Court of Quezon City alleging
that the private respondent, Ester S. Garcia, in a confrontation in the latter's office, allegedly vexed, insulted and
humiliated her in a "hostile and furious mood" and in a manner offensive to petitioner's dignity and personality,"
contrary to morals, good customs and public policy." 1
In support of her claim, petitioner produced a verbatim transcript of the event and sought moral damages, attorney's
fees and other expenses of litigation in the amount of P610,000.00, in addition to costs, interests and other reliefs
awardable at the trial court's discretion. The transcript on which the civil case was based was culled from a tape
recording of the confrontation made by petitioner. 2 The transcript reads as follows:
Plaintiff Soccoro D. Ramirez (Chuchi) Good Afternoon M'am.
Defendant Ester S. Garcia (ESG) Ano ba ang nangyari sa 'yo, nakalimot ka na
kung paano ka napunta rito, porke member ka na, magsumbong ka kung ano ang
gagawin ko sa 'yo.
CHUCHI Kasi, naka duty ako noon.
ESG Tapos iniwan no. (Sic)

CHUCHI Hindi m'am, pero ilan beses na nila akong binalikan, sabing ganoon
ESG Ito and (sic) masasabi ko sa 'yo, ayaw kung (sic) mag explain ka, kasi
hanggang 10:00 p.m., kinabukasan hindi ka na pumasok. Ngayon ako ang babalik sa
'yo, nag-aaply ka sa States, nag-aaply ka sa review mo, kung kakailanganin ang
certification mo, kalimutan mo na kasi hindi ka sa akin makakahingi.
CHUCHI Hindi M'am. Kasi ang ano ko talaga noon i-cocontinue ko up to 10:00
p.m.
ESG Bastos ka, nakalimutan mo na kung paano ka pumasok dito sa hotel.
Magsumbong ka sa Union kung gusto mo. Nakalimutan mo na kung paano ka
nakapasok dito "Do you think that on your own makakapasok ka kung hindi ako.
Panunumbyoyan na kita (Sinusumbatan na kita).
CHUCHI Itutuloy ko na M'am sana ang duty ko.
ESG Kaso ilang beses na akong binabalikan doon ng mga no (sic) ko.
ESG Nakalimutan mo na ba kung paano ka pumasok sa hotel, kung on your own
merit alam ko naman kung gaano ka "ka bobo" mo. Marami ang nag-aaply alam
kong hindi ka papasa.
CHUCHI Kumuha kami ng exam noon.
ESG Oo, pero hindi ka papasa.
CHUCHI Eh, bakit ako ang nakuha ni Dr. Tamayo
ESG Kukunin ka kasi ako.
CHUCHI Eh, di sana
ESG Huwag mong ipagmalaki na may utak ka kasi wala kang utak. Akala mo ba
makukuha ka dito kung hindi ako.
CHUCHI Mag-eexplain ako.
ESG Huwag na, hindi ako mag-papa-explain sa 'yo, makaalala ka kung paano ka
puma-rito. "Putang-ina" sasabi-sabihin mo kamag-anak ng nanay at tatay mo ang
mga magulang ko.
ESG Wala na akong pakialam, dahil nandito ka sa loob, nasa labas ka puwede ka
ng hindi pumasok, okey yan nasaloob ka umalis ka doon.
CHUCHI Kasi M'am, binbalikan ako ng mga taga Union.
ESG Nandiyan na rin ako, pero huwag mong kalimutan na hindi ka makakapasok
kung hindi ako. Kung hindi mo kinikilala yan okey lang sa akin, dahil tapos ka na.
CHUCHI Ina-ano ko m'am na utang na loob.
ESG Huwag na lang, hindi mo utang na loob, kasi kung baga sa no,
nilapastangan mo ako.
CHUCHI Paano kita nilapastanganan?
ESG Mabuti pa lumabas ka na. Hindi na ako makikipagusap sa 'yo. Lumabas ka
na. Magsumbong ka. 3
As a result of petitioner's recording of the event and alleging that the said act of secretly taping the confrontation
was illegal, private respondent filed a criminal case before the Regional Trial Court of Pasay City for violation of

Republic Act 4200, entitled "An Act to prohibit and penalize wire tapping and other related violations of private
communication, and other purposes." An information charging petitioner of violation of the said Act, dated October 6,
1988 is quoted herewith:
INFORMATION
The Undersigned Assistant City Fiscal Accusses Socorro D. Ramirez of Violation of Republic Act No.
4200, committed as follows:
That on or about the 22nd day of February, 1988, in Pasay City Metro Manila,
Philippines, and within the jurisdiction of this honorable court, the above-named
accused, Socorro D. Ramirez not being authorized by Ester S. Garcia to record the
latter's conversation with said accused, did then and there willfully, unlawfully and
feloniously, with the use of a tape recorder secretly record the said conversation and
thereafter communicate in writing the contents of the said recording to other person.
Contrary to law.
Pasay City, Metro Manila, September 16, 1988.
MARIANO M. CUNETA
Asst. City Fiscal
Upon arraignment, in lieu of a plea, petitioner filed a Motion to Quash the Information on the ground that the facts
charged do not constitute an offense, particularly a violation of R.A. 4200. In an order May 3, 1989, the trial court
granted the Motion to Quash, agreeing with petitioner that 1) the facts charged do not constitute an offense under
R.A. 4200; and that 2) the violation punished by R.A. 4200 refers to a the taping of a communication by a
personother than a participant to the communication. 4
From the trial court's Order, the private respondent filed a Petition for Review on Certiorari with this Court, which
forthwith referred the case to the Court of Appeals in a Resolution (by the First Division) of June 19, 1989.
On February 9, 1990, respondent Court of Appeals promulgated its assailed Decision declaring the trial court's order
of May 3, 1989 null and void, and holding that:
[T]he allegations sufficiently constitute an offense punishable under Section 1 of R.A. 4200. In thus
quashing the information based on the ground that the facts alleged do not constitute an offense, the
respondent judge acted in grave abuse of discretion correctible by certiorari. 5
Consequently, on February 21, 1990, petitioner filed a Motion for Reconsideration which respondent Court of
Appeals denied in its Resolution 6 dated June 19, 1990. Hence, the instant petition.
Petitioner vigorously argues, as her "main and principal issue" 7 that the applicable provision of Republic Act 4200 does
not apply to the taping of a private conversation by one of the parties to the conversation. She contends that the provision
merely refers to the unauthorized taping of a private conversation by a party other than those involved in the
communication. 8 In relation to this, petitioner avers that the substance or content of the conversation must be alleged in
the Information, otherwise the facts charged would not constitute a violation of R.A. 4200. 9 Finally, petitioner agues that
R.A. 4200 penalizes the taping of a "private communication," not a "private conversation" and that consequently, her act of
secretly taping her conversation with private respondent was not illegal under the said act. 10
We disagree.
First, legislative intent is determined principally from the language of a statute. Where the language of a statute is
clear and unambiguous, the law is applied according to its express terms, and interpretation would be resorted to
only where a literal interpretation would be either impossible 11 or absurb or would lead to an injustice. 12
Section 1 of R.A. 4200 entitled, " An Act to Prohibit and Penalized Wire Tapping and Other Related Violations of
Private Communication and Other Purposes," provides:
Sec. 1. It shall be unlawfull for any person, not being authorized by all the parties to any private
communication or spoken word, to tap any wire or cable, or by using any other device or
arrangement, to secretly overhear, intercept, or record such communication or spoken word by using

a device commonly known as a dictaphone or dictagraph or detectaphone or walkie-talkie or tape

recorder, or however otherwise described.
The aforestated provision clearly and unequivocally makes it illegal for any person, not authorized by all the parties
to any private communication to secretly record such communication by means of a tape recorder. The law makes
no distinction as to whether the party sought to be penalized by the statute ought to be a party other than or different
from those involved in the private communication. The statute's intent to penalize all persons unauthorized to make
such recording is underscored by the use of the qualifier "any". Consequently, as respondent Court of Appeals
correctly concluded, "even a (person) privy to a communication who records his private conversation with another
without the knowledge of the latter (will) qualify as a violator" 13 under this provision of R.A. 4200.
A perusal of the Senate Congressional Records, moreover, supports the respondent court's conclusion that in
enacting R.A. 4200 our lawmakers indeed contemplated to make illegal, unauthorized tape recording of private
conversations or communications taken either by the parties themselves or by third persons. Thus:
xxx xxx xxx
Senator Taada: That qualified only "overhear".
Senator Padilla: So that when it is intercepted or recorded, the element of secrecy would not appear
to be material. Now, suppose, Your Honor, the recording is not made by all the parties but by some
parties and involved not criminal cases that would be mentioned under section 3 but would cover, for
example civil cases or special proceedings whereby a recording is made not necessarily by all the
parties but perhaps by some in an effort to show the intent of the parties because the actuation of
the parties prior, simultaneous even subsequent to the contract or the act may be indicative of their
intention. Suppose there is such a recording, would you say, Your Honor, that the intention is to
cover it within the purview of this bill or outside?
Senator Taada: That is covered by the purview of this bill, Your Honor.
Senator Padilla: Even if the record should be used not in the prosecution of offense but as evidence
to be used in Civil Cases or special proceedings?
Senator Taada: That is right. This is a complete ban on tape recorded conversations taken without
the authorization of all the parties.
Senator Padilla: Now, would that be reasonable, your Honor?
Senator Taada: I believe it is reasonable because it is not sporting to record the observation of one
without his knowing it and then using it against him. It is not fair, it is not sportsmanlike. If the
purpose; Your honor, is to record the intention of the parties. I believe that all the parties should know
that the observations are being recorded.
Senator Padilla: This might reduce the utility of recorders.
Senator Taada: Well no. For example, I was to say that in meetings of the board of directors where
a tape recording is taken, there is no objection to this if all the parties know. It is but fair that the
people whose remarks and observations are being made should know that the observations are
being recorded.
Senator Padilla: Now, I can understand.
Senator Taada: That is why when we take statements of persons, we say: "Please be informed that
whatever you say here may be used against you." That is fairness and that is what we demand.
Now, in spite of that warning, he makes damaging statements against his own interest, well, he
cannot complain any more. But if you are going to take a recording of the observations and remarks
of a person without him knowing that it is being taped or recorded, without him knowing that what is
being recorded may be used against him, I think it is unfair.
xxx xxx xxx
(Congression Record, Vol. III, No. 31, p. 584, March 12, 1964)

Senator Diokno: Do you understand, Mr. Senator, that under Section 1 of the bill as now worded, if a
party secretly records a public speech, he would be penalized under Section 1? Because the speech
is public, but the recording is done secretly.
Senator Taada: Well, that particular aspect is not contemplated by the bill. It is the communication
between one person and another person not between a speaker and a public.
xxx xxx xxx
(Congressional Record, Vol. III, No. 33, p. 626, March 12, 1964)
xxx xxx xxx
The unambiguity of the express words of the provision, taken together with the above-quoted deliberations from the
Congressional Record, therefore plainly supports the view held by the respondent court that the provision seeks to
penalize even those privy to the private communications. Where the law makes no distinctions, one does not
distinguish.
Second, the nature of the conversations is immaterial to a violation of the statute. The substance of the same need
not be specifically alleged in the information. What R.A. 4200 penalizes are the acts of secretly overhearing,
intercepting or recording private communications by means of the devices enumerated therein. The mere allegation
that an individual made a secret recording of a private communication by means of a tape recorder would suffice to
constitute an offense under Section 1 of R.A. 4200. As the Solicitor General pointed out in his COMMENT before the
respondent court: "Nowhere (in the said law) is it required that before one can be regarded as a violator, the nature
of the conversation, as well as its communication to a third person should be professed." 14
Finally, petitioner's contention that the phrase "private communication" in Section 1 of R.A. 4200 does not include
"private conversations" narrows the ordinary meaning of the word "communication" to a point of absurdity. The word
communicate comes from the latin word communicare, meaning "to share or to impart." In its ordinary signification,
communication connotes the act of sharing or imparting signification, communication connotes the act of sharing or
imparting, as in a conversation, 15 or signifies the "process by which meanings or thoughts are shared between
individuals through a common system of symbols (as language signs or gestures)" 16 These definitions are broad enough
to include verbal or non-verbal, written or expressive communications of "meanings or thoughts" which are likely to include
the emotionally-charged exchange, on February 22, 1988, between petitioner and private respondent, in the privacy of the
latter's office. Any doubts about the legislative body's meaning of the phrase "private communication" are, furthermore, put
to rest by the fact that the terms "conversation" and "communication" were interchangeably used by Senator Taada in his
Explanatory Note to the bill quoted below:
It has been said that innocent people have nothing to fear from their conversations being overheard.
But this statement ignores the usual nature of conversations as well the undeniable fact that most, if
not all, civilized people have some aspects of their lives they do not wish to expose.
Freeconversations are often characterized by exaggerations, obscenity, agreeable falsehoods, and
the expression of anti-social desires of views not intended to be taken seriously. The right to
the privacy of communication, among others, has expressly been assured by our Constitution.
Needless to state here, the framers of our Constitution must have recognized the nature
of conversations between individuals and the significance of man's spiritual nature, of his feelings
and of his intellect. They must have known that part of the pleasures and satisfactions of life are to
be found in the unaudited, and free exchange of communication between individuals free from
every unjustifiable intrusion by whatever means. 17
In Gaanan vs. Intermediate Appellate Court, 18 a case which dealt with the issue of telephone wiretapping, we held that
the use of a telephone extension for the purpose of overhearing a private conversation without authorization did not
violate R.A. 4200 because a telephone extension devise was neither among those "device(s) or arrangement(s)"
enumerated therein, 19 following the principle that "penal statutes must be construed strictly in favor of the accused." 20 The
instant case turns on a different note, because the applicable facts and circumstances pointing to a violation of R.A. 4200
suffer from no ambiguity, and the statute itself explicitly mentions the unauthorized "recording" of private communications
with the use of tape-recorders as among the acts punishable.
WHEREFORE, because the law, as applied to the case at bench is clear and unambiguous and leaves us with no
discretion, the instant petition is hereby DENIED. The decision appealed from is AFFIRMED. Costs against
petitioner.

SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. 168338

February 15, 2008

FRANCISCO CHAVEZ, petitioner,

vs.
RAUL M. GONZALES, in his capacity as the Secretary of the Department of Justice; and NATIONAL
TELECOMMUNICATIONS COMMISSION (NTC), respondents.

SEPARATE CONCURRING OPINION

CARPIO, J.:
The Case
This is a petition for the writs of certiorari and prohibition to set aside "acts, issuances, and orders" of respondents
Secretary of Justice Raul M. Gonzalez (respondent Gonzales) and the National Telecommunications Commission
(NTC), particularly an NTC "press release" dated 11 June 2005, warning radio and television stations against airing
taped conversations allegedly between President Gloria Macapagal-Arroyo and Commission on Elections
(COMELEC) Commissioner Virgilio Garcillano (Garcillano)1 under pain of suspension or revocation of their airwave
licenses.
The Facts
On 24 June 2004, Congress, acting as national board of canvassers, proclaimed President Arroyo winner in the
2004 presidential elections.2 President Arroyo received a total of 12,905,808 votes, 1,123,576 more than the votes
of her nearest rival, Fernando Poe, Jr. Sometime before 6 June 2005, the radio station dzMM aired the Garci Tapes
where the parties to the conversation discussed "rigging" the results of the 2004 elections to favor President Arroyo.
On 6 June 2005, Presidential spokesperson Ignacio Bunye (Bunye) held a press conference in Malacaang Palace,
where he played before the presidential press corps two compact disc recordings of conversations between a
woman and a man. Bunye identified the woman in both recordings as President Arroyo but claimed that the contents
of the second compact disc had been "spliced" to make it appear that President Arroyo was talking to Garcillano.
However, on 9 June 2005, Bunye backtracked and stated that the woman's voice in the compact discs was not
President Arroyos after all.3 Meanwhile, other individuals went public, claiming possession of the genuine copy of
the Garci Tapes.4 Respondent Gonzalez ordered the National Bureau of Investigation to investigate media
organizations which aired the Garci Tapes for possible violation of Republic Act No. 4200 or the Anti-Wiretapping
Law.
On 11 June 2005, the NTC issued a press release warning radio and television stations that airing the Garci Tapes
is a "cause for the suspension, revocation and/or cancellation of the licenses or authorizations" issued to them. 5 On
14 June 2005, NTC officers met with officers of the broadcasters group, Kapisanan ng mga Broadcasters sa
Pilipinas (KBP), to dispel fears of censorship. The NTC and KBP issued a joint press statement expressing
commitment to press freedom.6
On 21 June 2005, petitioner Francisco I. Chavez (petitioner), as citizen, filed this petition to nullify the "acts,
issuances, and orders" of the NTC and respondent Gonzalez (respondents) on the following grounds: (1)
respondents conduct violated freedom of expression and the right of the people to information on matters of public
concern under Section 7, Article III of the Constitution, and (2) the NTC acted ultra vires when it warned radio and
television stations against airing the Garci Tapes.
In their Comment to the petition, respondents raised threshold objections that (1) petitioner has no standing to
litigate and (2) the petition fails to meet the case or controversy requirement in constitutional adjudication. On the
merits, respondents claim that (1) the NTC's press release of 11 June 2005 is a mere "fair warning," not censorship,
cautioning radio and television networks on the lack of authentication of the Garci Tapes and of the consequences of
airing false or fraudulent material, and (2) the NTC did not act ultra vires in issuing the warning to radio and
television stations.
In his Reply, petitioner belied respondents' claim on his lack of standing to litigate, contending that his status as a
citizen asserting the enforcement of a public right vested him with sufficient interest to maintain this suit. Petitioner
also contests respondents' claim that the NTC press release of 11 June 2005 is a mere warning as it already
prejudged the Garci Tapes as inauthentic and violative of the Anti-Wiretapping Law, making it a "cleverly disguised x
x x gag order."

ISSUE
The principal issue for resolution is whether the NTC warning embodied in the press release of 11 June 2005
constitutes an impermissible prior restraint on freedom of expression.
I vote to (1) grant the petition, (2) declare the NTC warning, embodied in its press release dated 11 June 2005, an
unconstitutional prior restraint on protected expression, and (3) enjoin the NTC from enforcing the same.
1. Standing to File Petition

Petitioner has standing to file this petition. When the issue involves freedom of expression, as in the present case,
any citizen has the right to bring suit to question the constitutionality of a government action in violation of freedom
of expression, whether or not the government action is directed at such citizen. The government action may chill into
silence those to whom the action is directed. Any citizen must be allowed to take up the cudgels for those who have
been cowed into inaction because freedom of expression is a vital public right that must be defended by everyone
and anyone.
Freedom of expression, being fundamental to the preservation of a free, open and democratic society, is
oftranscendental importance that must be defended by every patriotic citizen at the earliest opportunity. We have
held that any concerned citizen has standing to raise an issue of transcendental importance to the nation,7 and
petitioner in this present petition raises such issue.
2. Overview of Freedom of Expression, Prior Restraint and Subsequent Punishment
Freedom of expression is the foundation of a free, open and democratic society. Freedom of expression is an
indispensable condition8 to the exercise of almost all other civil and political rights. No society can remain free, open
and democratic without freedom of expression. Freedom of expression guarantees full, spirited, and even
contentious discussion of all social, economic and political issues. To survive, a free and democratic society must
zealously safeguard freedom of expression.
Freedom of expression allows citizens to expose and check abuses of public officials. Freedom of expression allows
citizens to make informed choices of candidates for public office. Freedom of expression crystallizes important
public policy issues, and allows citizens to participate in the discussion and resolution of such issues. Freedom of
expression allows the competition of ideas, the clash of claims and counterclaims, from which the truth will likely
emerge. Freedom of expression allows the airing of social grievances, mitigating sudden eruptions of violence from
marginalized groups who otherwise would not be heard by government. Freedom of expression provides a civilized
way of engagement among political, ideological, religious or ethnic opponents for if one cannot use his tongue to
argue, he might use his fist instead.
Freedom of expression is the freedom to disseminate ideas and beliefs, whether competing, conforming or
otherwise. It is the freedom to express to others what one likes or dislikes, as it is the freedom of others to express
to one and all what they favor or disfavor. It is the free expression for the ideas we love, as well as the free
expression for the ideas we hate.9 Indeed, the function of freedom of expression is to stir disputes:
[I]t may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with
conditions as they are, or even stirs people to anger. Speech is often provocative and challenging. It may
strike at prejudices and preconceptions and have profound unsettling effects as it presses for acceptance of
an idea.10
Section 4, Article III of the Constitution prohibits the enactment of any law curtailing freedom of expression:
No law shall be passed abridging the freedom of speech, of expression, or the press, or the right of the
people peaceably to assemble and petition the government for redress of grievances.
Thus, the rule is that expression is not subject to any prior restraint or censorship because the Constitution
commands that freedom of expression shall not be abridged. Over time, however, courts have carved out narrow
and well defined exceptions to this rule out of necessity.
The exceptions, when expression may be subject to prior restraint, apply in this jurisdiction to only four
categories of expression, namely: pornography,11 false or misleading advertisement,12 advocacy of imminent lawless
action,13 and danger to national security.14 All other expression is not subject to prior restraint. As stated
in Turner Broadcasting System v. Federal Communication Commission, "[T]he First Amendment (Free Speech
Clause), subject only to narrow and well understood exceptions, does not countenance governmental control over
the content of messages expressed by private individuals."15
Expression not subject to prior restraint is protected expression or high-value expression. Any content-based
prior restraint on protected expression is unconstitutional without exception. A protected expression means
what it says it is absolutely protected from censorship. Thus, there can be no prior restraint on public debates on
the amendment or repeal of existing laws, on the ratification of treaties, on the imposition of new tax measures, or
on proposed amendments to the Constitution.
Prior restraint on expression is content-based if the restraint is aimed at the message or idea of the expression.
Courts will subject to strict scrutiny content-based restraint. If the content-based prior restraint is directed at
protected expression, courts will strike down the restraint as unconstitutional because there can be no contentbased prior restraint on protected expression. The analysis thus turns on whether the prior restraint is contentbased, and if so, whether such restraint is directed at protected expression, that is, those not falling under any of the
recognized categories of unprotected expression.

If the prior restraint is not aimed at the message or idea of the expression, it is content-neutral even if it burdens
expression. A content-neutral restraint is a restraint which regulates the time, place or manner of the expression in
public places16 without any restraint on the content of the expression. Courts will subject content-neutral restraints to
intermediate scrutiny.17
An example of a content-neutral restraint is a permit specifying the date, time and route of a rally passing through
busy public streets. A content-neutral prior restraint on protected expression which does not touch on the content of
the expression enjoys the presumption of validity and is thus enforceable subject to appeal to the courts. 18Courts will
uphold time, place or manner restraints if they are content-neutral, narrowly tailored to serve a significant
government interest, and leave open ample alternative channels of expression. 19
In content-neutral prior restraint on protected speech, there should be no prior restraint on the content of the
expression itself. Thus, submission of movies or pre-taped television programs to a government review board is
constitutional only if the review is for classification and not for censoring any part of the content of the submitted
materials.20 However, failure to submit such materials to the review board may be penalized without regard to the
content of the materials.21 The review board has no power to reject the airing of the submitted materials. The review
boards power is only to classify the materials, whether for general patronage, for adults only, or for some other
classification. The power to classify expressions applies only to movies and pre-taped television programs 22but not
to live television programs. Any classification of live television programs necessarily entails prior restraint on
expression.
Expression that may be subject to prior restraint is unprotected expression or low-value expression. By definition,
prior restraint on unprotected expression is content-based 23 since the restraint is imposed because of the content
itself. In this jurisdiction, there are currently only four categories of unprotected expression that may be subject to
prior restraint. This Court recognized false or misleading advertisement as unprotected expression only in October
2007.24
Only unprotected expression may be subject to prior restraint. However, any such prior restraint on
unprotected expression must hurdle a high barrier. First, such prior restraint is presumed
unconstitutional.Second, the government bears a heavy burden of proving the constitutionality of the prior
restraint.25
Courts will subject to strict scrutiny any government action imposing prior restraint on unprotected expression. 26The
government action will be sustained if there is a compelling State interest, and prior restraint is necessary to protect
such State interest. In such a case, the prior restraint shall be narrowly drawn - only to the extent necessary to
protect or attain the compelling State interest.
Prior restraint is a more severe restriction on freedom of expression than subsequent punishment. Although
subsequent punishment also deters expression, still the ideas are disseminated to the public. Prior restraint
prevents even the dissemination of ideas to the public.
While there can be no prior restraint on protected expression, such expression may be subject to subsequent
punishment,27 either civilly or criminally. Thus, the publication of election surveys cannot be subject to prior
restraint,28 but an aggrieved person can sue for redress of injury if the survey turns out to be fabricated. Also, while
Article 201 (2)(b)(3) of the Revised Penal Code punishing "shows which offend any race or religion" cannot be used
to justify prior restraint on religious expression, this provision can be invoked to justify subsequent punishment of the
perpetrator of such offensive shows.29
Similarly, if the unprotected expression does not warrant prior restraint, the same expression may still be subject to
subsequent punishment, civilly or criminally. Libel falls under this class of unprotected expression. However, if the
expression cannot be subject to the lesser restriction of subsequent punishment, logically it cannot also be subject
to the more severe restriction of prior restraint. Thus, since profane language or "hate speech" against a religious
minority is not subject to subsequent punishment in this jurisdiction,30 such expression cannot be subject to prior
restraint.
If the unprotected expression warrants prior restraint, necessarily the same expression is subject to subsequent
punishment. There must be a law punishing criminally the unprotected expression before prior restraint on such
expression can be justified. The legislature must punish the unprotected expression because it creates a
substantive evil that the State must prevent. Otherwise, there will be no legal basis for imposing a prior restraint on
such expression.
The prevailing test in this jurisdiction to determine the constitutionality of government action imposing prior restraint
on three categories of unprotected expression pornography,31 advocacy of imminent lawless action, and danger to
national security - is the clear and present danger test.32 The expression restrained must present a clear and present
danger of bringing about a substantive evil that the State has a right and duty to prevent, and such danger must be
grave and imminent.33
Prior restraint on unprotected expression takes many forms - it may be a law, administrative regulation, or
impermissible pressures like threats of revoking licenses or withholding of benefits. 34 The impermissible pressures

need not be embodied in a government agency regulation, but may emanate from policies, advisories or conduct of
officials of government agencies.
3. Government Action in the Present Case
The government action in the present case is a warning by the NTC that the airing or broadcasting of the Garci
Tapes by radio and television stations is a "cause for the suspension, revocation and/or cancellation of the
licenses or authorizations" issued to radio and television stations. The NTC warning, embodied in a press
release, relies on two grounds. First, the airing of the Garci Tapes "is a continuing violation of the Anti-Wiretapping
Law and the conditions of the Provisional Authority and/or Certificate of Authority issued to radio and TV stations."
Second, the Garci Tapes have not been authenticated, and subsequent investigation may establish that the tapes
contain false information or willful misrepresentation.
Specifically, the NTC press release contains the following categorical warning:
Taking into consideration the countrys unusual situation, and in order not to unnecessarily aggravate the
same, the NTC warns all radio stations and television networks owners/operators that the conditions of the
authorizations and permits issued to them by Government like the Provisional Authority and/or Certificate of
Authority explicitly provides that said companies shall not use its stations for the broadcasting or telecasting
of false information or willful misrepresentation. Relative thereto, it has come to the attention of the
Commission that certain personalities are in possession of alleged taped conversation which they claim,
(sic) involve the President of the Philippines and a Commissioner of the COMELEC regarding their
supposed violation of election laws. These personalities have admitted that the taped conversations are
product of illegal wiretapping operations.
Considering that these taped conversations have not been duly authenticated nor could it be said at this
time that the tapes contain an accurate or truthful representation of what was recorded therein, (sic) it is the
position of the Commission that the continuous airing or broadcast of the said taped conversations
by radio and television stations is a continuing violation of the Anti-Wiretapping Law and the
conditions of the Provisional Authority and/or Certificate of Authority issued to these radio and
television stations. If it has been (sic) subsequently established that the said tapes are false and/or
fraudulent after a prosecution or appropriate investigation, the concerned radio and television
companies are hereby warned that their broadcast/airing of such false information and/or willful
misrepresentation shall be just cause for the suspension, revocation and/or cancellation of the
licenses or authorizations issued to the said companies. (Boldfacing and underscoring supplied)
The NTC does not claim that the public airing of the Garci Tapes constitutes unprotected expression that may be
subject to prior restraint. The NTC does not specify what substantive evil the State seeks to prevent in imposing
prior restraint on the airing of the Garci Tapes. The NTC does not claim that the public airing of the Garci Tapes
constitutes a clear and present danger of a substantive evil, of grave and imminent character, that the State has a
right and duty to prevent.
The NTC did not conduct any hearing in reaching its conclusion that the airing of the Garci Tapes constitutes a
continuing violation of the Anti-Wiretapping Law. At the time of issuance of the NTC press release, and even up to
now, the parties to the conversations in the Garci Tapes have not complained that the wire-tapping was without their
consent, an essential element for violation of the Anti-Wiretapping Law.35 It was even the Office of the President,
through the Press Secretary, that played and released to media the Garci Tapes containing the alleged "spliced"
conversation between President Arroyo and Commissioner Garcillano. There is also the issue of whether
a wireless cellular phone conversation is covered by the Anti-Wiretapping Law.
Clearly, the NTC has no factual or legal basis in claiming that the airing of the Garci Tapes constitutes a violation of
the Anti-Wiretapping Law. The radio and television stations were not even given an opportunity to be heard by the
NTC. The NTC did not observe basic due process as mandated in Ang Tibay v. Court of Industrial Relations.36
The NTC claims that the Garci Tapes, "after a prosecution or the appropriate investigation," may constitute "false
information and/or willful misrepresentation." However, the NTC does not claim that such possible false information
or willful misrepresentation constitutes misleading commercial advertisement. In the United States, false or
deceptive commercial speech is categorized as unprotected expression that may be subject to prior restraint.
Recently, this Court upheld the constitutionality of Section 6 of the Milk Code requiring the submission to a
government screening committee of advertising materials for infant formula milk to prevent false or deceptive claims
to the public.37 There is, however, no claim here by respondents that the Garci Tapes constitute false or misleading
commercial advertisement.
The NTC concedes that the Garci Tapes have not been authenticated as accurate or truthful. The NTC also
concedes that only "after a prosecution or appropriate investigation" can it be established that the Garci Tapes
constitute "false information and/or willful misrepresentation." Clearly, the NTC admits that it does not even know
if the Garci Tapes contain false information or willful misrepresentation.
4. Nature of Prior Restraint in the Present Case

The NTC action restraining the airing of the Garci Tapes is a content-based prior restraint because it is directed at
the message of the Garci Tapes. The NTCs claim that the Garci Tapes might contain "false information and/or willful
misrepresentation," and thus should not be publicly aired, is an admission that the restraint is content-based.
5. Nature of Expression in the Present Case
The public airing of the Garci Tapes is a protected expression because it does not fall under any of the four
existing categories of unprotected expression recognized in this jurisdiction. The airing of the Garci Tapes is
essentially a political expression because it exposes that a presidential candidate had allegedly improper
conversations with a COMELEC Commissioner right after the close of voting in the last presidential elections.
Obviously, the content of the Garci Tapes affects gravely the sanctity of the ballot. Public discussion on the
sanctity of the ballot is indisputably a protected expression that cannot be subject to prior restraint. Public discussion
on the credibility of the electoral process is one of the highest political expressions of any electorate, and thus
deserves the utmost protection. If ever there is a hierarchy of protected expressions, political expression would
occupy the highest rank,38 and among different kinds of political expression, the subject of fair and honest elections
would be at the top. In any event, public discussion on all political issues should always remain uninhibited, robust
and wide open.
The rule, which recognizes no exception, is that there can be no content-based prior restraint on protected
expression. On this ground alone, the NTC press release is unconstitutional. Of course, if the courts
determine that the subject matter of a wiretapping, illegal or not, endangers the security of the State, the public
airing of the tape becomes unprotected expression that may be subject to prior restraint. However, there is no claim
here by respondents that the subject matter of the Garci Tapes involves national security and publicly airing the
tapes would endanger the security of the State. 39
The alleged violation of the Anti-Wiretapping Law is not in itself a ground to impose a prior restraint on the airing of
the Garci Tapes because the Constitution expressly prohibits the enactment of any law, and that includes antiwiretapping laws, curtailing freedom of expression. 40 The only exceptions to this rule are the four recognized
categories of unprotected expression. However, the content of the Garci Tapes does not fall under any of these
categories of unprotected expression.
The airing of the Garci Tapes does not violate the right to privacy because the content of the Garci Tapes is a matter
of important public concern. The Constitution guarantees the peoples right to information on matters of public
concern.41 The remedy of any person aggrieved by the public airing of the Garci Tapes is to file a complaint for
violation of the Anti-Wiretapping Law after the commission of the crime. Subsequent punishment,absent a lawful
defense, is the remedy available in case of violation of the Anti-Wiretapping Law.
The present case involves a prior restraint on protected expression. Prior restraint on protected expression differs
significantly from subsequent punishment of protected expression. While there can be no prior restraint on protected
expression, there can be subsequent punishment for protected expression under libel, tort or other laws. In the
present case, the NTC action seeks prior restraint on the airing of the Garci Tapes, not punishment of personnel of
radio and television stations for actual violation of the Anti-Wiretapping Law.
6. Only the Courts May Impose Content-Based Prior Restraint
The NTC has no power to impose content-based prior restraint on expression. The charter of the NTC does not vest
NTC with any content-based censorship power over radio and television stations.
In the present case, the airing of the Garci Tapes is a protected expression that can never be subject to prior
restraint. However, even assuming for the sake of argument that the airing of the Garci Tapes constitutes
unprotected expression, only the courts have the power to adjudicate on the factual and legal issue of whether the
airing of the Garci Tapes presents a clear and present danger of bringing about a substantive evil that the State has
a right and duty to prevent, so as to justify the prior restraint.
Any order imposing prior restraint on unprotected expression requires prior adjudication by the courts on whether
the prior restraint is constitutional. This is a necessary consequence from the presumption of invalidity of any prior
restraint on unprotected expression. Unless ruled by the courts as a valid prior restraint, government agencies
cannot implement outright such prior restraint because such restraint is presumed unconstitutional at inception.
As an agency that allocates frequencies or airwaves, the NTC may regulate the bandwidth position, transmitter
wattage, and location of radio and television stations, but not the content of the broadcasts. Such content-neutral
prior restraint may make operating radio and television stations more costly. However, such content-neutral restraint
does not restrict the content of the broadcast.
7. Government Failed to Overcome Presumption of Invalidity

Assuming that the airing of the Garci Tapes constitutes unprotected expression, the NTC action imposing prior
restraint on the airing is presumed unconstitutional. The Government bears a heavy burden to prove that the NTC
action is constitutional. The Government has failed to meet this burden.
In their Comment, respondents did not invoke any compelling State interest to impose prior restraint on the public
airing of the Garci Tapes. The respondents claim that they merely "fairly warned" radio and television stations to
observe the Anti-Wiretapping Law and pertinent NTC circulars on program standards. Respondents have not
explained how and why the observance by radio and television stations of the Anti-Wiretapping Law and pertinent
NTC circulars constitutes a compelling State interest justifying prior restraint on the public airing of the Garci Tapes.
Violation of the Anti-Wiretapping Law, like the violation of any criminal statute, can always be subject to criminal
prosecution after the violation is committed. Respondents have not explained why there is a need in the present
case to impose prior restraint just to prevent a possible future violation of the Anti-Wiretapping Law. Respondents
have not explained how the violation of the Anti-Wiretapping Law, or of the pertinent NTC circulars, can incite
imminent lawless behavior or endanger the security of the State. To allow such restraint is to allow prior restraint on
all future broadcasts that may possibly violate any of the existing criminal statutes. That would be the dawn of
sweeping and endless censorship on broadcast media.
8. The NTC Warning is a Classic Form of Prior Restraint
The NTC press release threatening to suspend or cancel the airwave permits of radio and television stations
constitutes impermissible pressure amounting to prior restraint on protected expression. Whether the threat is made
in an order, regulation, advisory or press release, the chilling effect is the same: the threat freezes radio and
television stations into deafening silence. Radio and television stations that have invested substantial sums in
capital equipment and market development suddenly face suspension or cancellation of their permits. The NTC
threat is thus real and potent.
In Burgos v. Chief of Staff,42 this Court ruled that the closure of the We Forum newspapers under a general warrant
"is in the nature of a previous restraint or censorship abhorrent to the freedom of the press guaranteed under the
fundamental law." The NTC warning to radio and television stations not to air the Garci Tapes or else their permits
will be suspended or cancelled has the same effect a prior restraint on constitutionally protected expression.
In the recent case of David v. Macapagal-Arroyo,43 this Court declared unconstitutional government threats to close
down mass media establishments that refused to comply with government prescribed "standards" on news reporting
following the declaration of a State of National Emergency by President Arroyo on 24 February 2006. The Court
described these threats in this manner:
Thereafter, a wave of warning[s] came from government officials. Presidential Chief of Staff Michael
Defensor was quoted as saying that such raid was "meant to show a 'strong presence,' to tell media outlets
not to connive or do anything that would help the rebels in bringing down this government." Director General
Lomibao further stated that "if they do not follow the standards and the standards are if they would
contribute to instability in the government, or if they do not subscribe to what is in General Order No. 5 and
Proc. No. 1017 we will recommend a 'takeover.'" National Telecommunications Commissioner Ronald
Solis urged television and radio networks to "cooperate" with the government for the duration of the
state of national emergency. He warned that his agency will not hesitate to recommend the closure
of any broadcast outfit that violates rules set out for media coverage during times when the national
security is threatened.44 (Emphasis supplied)
The Court struck down this "wave of warning[s]" as impermissible restraint on freedom of expression. The Court
ruled that "the imposition of standards on media or any form of prior restraint on the press, as well as the
warrantless search of the Tribune offices and whimsical seizure of its articles for publication and other materials, are
declared UNCONSTITUTIONAL."45
The history of press freedom has been a constant struggle against the censor whose weapon is the suspension or
cancellation of licenses to publish or broadcast. The NTC warning resurrects the weapon of the censor. The NTC
warning is a classic form of prior restraint on protected expression, which in the words of Near v. Minnesota is
"the essence of censorship."46 Long before the American Declaration of Independence in 1776, William Blackstone
had already written in his Commentaries on the Law of England, "The liberty of the press x x x consists in laying no
previous restraints upon publication x x x."47
Although couched in a press release and not in an administrative regulation, the NTC threat to suspend or cancel
permits remains real and effective, for without airwaves or frequencies, radio and television stations will fall silent
and die. The NTC press release does not seek to advance a legitimate regulatory objective, but to suppress through
coercion information on a matter of vital public concern.
9. Conclusion
In sum, the NTC press release constitutes an unconstitutional prior restraint on protected expression. There can be
no content-based prior restraint on protected expression. This rule has no exception.

I therefore vote to (1) grant the petition, (2) declare the NTC warning, embodied in its press release dated 11 June
2005, an unconstitutional prior restraint on protected expression, and (3) enjoin the NTC from enforcing the same.
ANTONIO T. CARPIO
Associate Justice

Footnotes
1

The taped conversations are referred to here as the "Garci Tapes."

Report of the Joint Committee on the Canvass of Votes for the Presidential and Vice-Presidential
Candidates in the May 10, 2004 Elections, dated 23 June 2004.
2

In their Comment to the petition, the NTC and respondent Gonzalez only mentioned Bunyes press
conference of 6 June 2005. However, respondents do not deny petitioners assertion that the 9 June 2005
press conference also took place.
3

On 7 June 2005, Atty. Alan Paguia, counsel of former President Joseph Ejercito Estrada, gave to a radio
station two tapes, including the Garci Tapes, which he claimed to be authentic. On 10 June 2005, Samuel
Ong, a high ranking official of the National Bureau of Investigation, presented to the media the alleged
"master tape" of the Garci Tapes.
4

The press release reads in its entirety:

NTC GIVES FAIR WARNING TO RADIO AND TELEVISION OWNERS/
OPERATORS TO OBSERVE ANTI-WIRE TAPPING LAW AND PERTINENT
NTC CIRCULARS ON PROGRAM STANDARDS
In view of the unusual situation the country is in today, The (sic) National Telecommunications
Commission (NTC) calls for sobriety among the operators and management of all radio and
television stations in the country and reminds them, especially all broadcasters, to be careful and
circumspect in the handling of news reportage, coverages [sic] of current affairs and discussion of
public issues, by strictly adhering to the pertinent laws of the country, the current program standards
embodied in radio and television codes and the existing circulars of the NTC.
The NTC said that now, more than ever, the profession of broadcasting demands a high sense of
responsibility and discerning judgment of fairness and honesty at all times among broadcasters
amidst all these rumors of unrest, destabilization attempts and controversies surrounding the alleged
wiretapping of President GMA (sic) telephone conversations.
Taking into consideration the countrys unusual situation, and in order not to unnecessarily aggravate
the same, the NTC warns all radio stations and television networks owners/operators that the
conditions of the authorizations and permits issued to them by Government like the Provisional
Authority and/or Certificate of Authority explicitly provides that said companies shall not use its
stations for the broadcasting or telecasting of false information or willful misrepresentation. Relative
thereto, it has come to the attention of the Commission that certain personalities are in possession of
alleged taped conversation which they claim, (sic) involve the President of the Philippines and a
Commissioner of the COMELEC regarding their supposed violation of election laws. These
personalities have admitted that the taped conversations are product of illegal wiretapping
operations.
Considering that these taped conversations have not been duly authenticated nor could it be said at
this time that the tapes contain an accurate or truthful representation of what was recorded therein,
(sic) it is the position of the Commission that the continuous airing or broadcast of the said taped
conversations by radio and television stations is a continuing violation of the Anti-Wiretapping Law
and the conditions of the Provisional Authority and/or Certificate of Authority issued to these radio
and television stations. If it has been (sic) subsequently established that the said tapes are false
and/or fraudulent after a prosecution or appropriate investigation, the concerned radio and television
companies are hereby warned that their broadcast/airing of such false information and/or willful
misrepresentation shall be just cause for the suspension, revocation and/or cancellation of the
licenses or authorizations issued to the said companies.

In addition to the above, the Commission reiterates the pertinent NTC circulars on program
standards to be observed by radio and television stations. NTC Memorandum Circular No. 111-12-85
explicitly states, among others, that "all radio broadcasting and television stations shall, during any
broadcast or telecast, cut off from the air the speech play, act or scene or other matters being
broadcast and/or telecast if the tendency thereof" is to disseminate false information or such other
willful misrepresentation, or to propose and/or incite treason, rebellion or sedition. The foregoing
directive had been reiterated in NTC Memorandum Circular No. 22-89 which, in addition thereto,
prohibited radio, broadcasting and television stations from using their stations to broadcast or
telecast any speech, language or scene disseminating false information or willful misrepresentation,
or inciting, encouraging or assisting in subversive or treasonable acts.
The Commission will not hesitate, after observing the requirements of due process, to apply with full
force the provisions of the said Circulars and their accompanying sanctions or erring radio and
television stations and their owners/operators.
6

The joint press statement reads (Rollo, pp. 62-63):

JOINT PRESS STATEMENT: THE NTC AND KBP
1. Call for sobriety, responsible journalism, and of law, and the radio and television Codes.
2. NTC respects and will not hinder freedom of the press and the right to information on matters of
public concern. KBP & its members have always been committed to the exercise of press freedom
with high sense of responsibility and discerning judgment of fairness and honesty.
3. NTC did not issue any MC [Memorandum Circular] or Order constituting a restraint of press
freedom or censorship. The NTC further denies and does not intend to limit or restrict the interview
of members of the opposition or free expression of views.
4. What is being asked by NTC is that the exercise of press freedom is done responsibly.
5. KBP has program standards that KBP members will observe in the treatment of news and public
affairs programs. These include verification of sources, non-airing of materials that would constitute
inciting to sedition and/or rebellion.
6. The KBP Codes also require that no false statement or willful misrepresentation is made in the
treatment of news or commentaries.
7. The supposed wiretapped tapes should be treated with sensitivity and handled responsibly giving
due consideration to the process being undertaken to verify and validate the authenticity and actual
content of the same.

David v. Macapagal-Arroyo, G.R. No. 1713396, 3 May 2006, 489 SCRA 160.

In Palko v. Connecticut, 302 U.S. 319 (1937), Justice Benjamin Cardozo wrote that freedom of expression
is "the matrix, the indispensable condition, of nearly every other form of freedom."
8

See dissenting opinion of Justice Oliver Wendell Holmes in United States v. Schwimmer, 279 U.S. 644
(1929).
9

10

Terminiello v. Chicago, 337 U.S. 1, 4 (1949).

11

Gonzales v. Kalaw-Katigbak, No. L-69500, 22 July 1985, 137 SCRA 717.

Pharmaceutical and Health Care Association of the Philippines v. Health Secretary Francisco T. Duque
III, G.R. No. 173034, 9 October 2007. Another fundamental ground for regulating false or misleading
advertisement is Section 11(2), Article XVI of the Constitution which states: "The advertising industry is
impressed with public interest, and shall be regulated by law for the protection of consumers and the
promotion of the general welfare."
12

13

Eastern Broadcasting Corporation v. Dans, No. L-59329, 19 July 1985, 137 SCRA 628.

14

Id.

15

512 U.S. 622, 640 (1994).

Bayan, Karapatan, Kilusang Magbubukid ng Pilipinas (KMP) v. Ermita, G.R. Nos. 169838, 169848 and
156881, 25 April 2006, 488 SCRA 2260.
16

17

Constitutional Law, Erwin Chemerinsky, pp. 902, 936 (2nd Edition).

18

Ruiz v. Gordon, 211 Phil. 411 (1983).

19

United States v. Grace, 461 U.S. 171 (1983).

Gonzalez v. Kalaw-Katigbak, see Note 11. The Court declared, "It is the opinion of this Court, therefore,
that to avoid an unconstitutional taint on its creation, the power of respondent Board is limited to the
classification of films."
20

Movie and Television Review and Classification Board v. ABS-CBN Broadcasting Corporation, G.R. No.
155282, 17 January 2005, 448 SCRA 5750.
21

A case may be made that only television programs akin to motion pictures, like tele-novelas, are subject to
the power of review and classification by a government review board, and such power cannot extend to
other pre-taped programs like political shows.
22

23

Constitutional Law, Chemerinsky, see Note 17, p. 903.

24

See Note 12.

Iglesia ni Cristo (INC) v. Court of Appeals, Board of Review for Motion Pictures and Television, G.R. No.
119673, 26 July 1996, 259 SCRA 529; New York Times v. United States, 403 U.S. 713 (1971).
25

26

Id.

27

Ayer Productions Pty. Ltd. v. Capulong, G.R. No. L-82380, 29 April 1988, 160 SCRA 861.

28

Social Weather Station, et al. v. COMELEC, 409 Phil. 571 (2001).

29

See Note 25.

VRS Publications, Inc. v. Islamic Dawah Council of the Philippines, Inc., 444 Phil. 230 (2003). In effect,
this makes "hate speech" against a religious or ethnic minority a protected expression.
30

In pornography or obscenity cases, the ancillary test is the contemporary community standards test
enunciated in Roth v. United States (354 U.S. 476 [1957]), which asks: whether to the average person,
applying contemporary community standards, the dominant theme of the material taken as a whole appeals
to prurient interest. See Gonzalez v. Kalaw-Katigbak, Note 11.
31

See notes 12 and 13. In false or misleading advertisement cases, no test was enunciated
inPharmaceutical and Health Care Association of the Philippines v. Health Secretary (see Note 12) although
the Concurring and Separate Opinion of Chief Justice Reynato S. Puno advocated the four-part analysis
inCentral Hudson Gas & Electric v. Public Service Commission (447 U.S. 557 [1980]), to wit: (1) the
advertisement must concern lawful activity and not be misleading; (2) the asserted governmental interest
must be substantial; (3) the state regulation directly advances the governmental interest asserted; and (4)
the restriction is no more extensive than is necessary to serve that interest.
32

Bayan v. Ermita, see Note 16. In the United States, the prevailing test is the Brandenburg standard
(Brandenburg v. Ohio, [395 U.S. 444 1969]) which refined the clear and present danger rule articulated
byJustice Oliver Wendell Holmes in Schenck v. United States (249 U.S. 47 [1919]) by limiting its application
to expressions where there is "imminent lawless action." See American Constitutional Law, Otis H. Stephen,
Jr. and John M. Scheb II, Vol. II, p. 133 (4th Edition).
33

34

Federal Communications Commission v. League of Women Voters, 468 U.S. 364 (1984).

35

Section 1, Republic Act No. 4200.

36

69 Phil. 635 (1940).

37

See Note 12.

Some commentators, including Prof. Robert Bork, argue that political expression is the only expression
protected by the Free Speech Clause. The U.S. Supreme Court has rejected this view. Constitutional Law,
Chemerinsky, see Note 17, p. 897.
38

39

See Commonwealth Act No. 616 and Article 117 of the Revised Penal Code.

See Bartnicki v. Vopper, 532 U.S. 514 (2001). In this case, the U.S. Supreme Court held that an antiwiretapping law violates the First Amendment if it prohibits disclosure of intercepted information that is of
significant public concern.
40

41

Section 7, Article III, Constitution.

42

218 Phil. 754 (1984).

43

See Note 7.

44

Id. at 268.

45

Id. at 275.

46

283 U.S. 697 (1931).

47

American Constitutional Law, Ralph A. Rossum and G. Alan Tass, vol. II, p. 183 (7th Edition).

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. 176389

December 14, 2010

ANTONIO LEJANO, Petitioner,

vs.
PEOPLE OF THE PHILIPPINES, Respondent.
x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. No. 176864
PEOPLE OF THE PHILIPPINES, Appellee,
vs.
HUBERT JEFFREY P. WEBB, ANTONIO LEJANO, MICHAEL A. GATCHALIAN, HOSPICIO FERNANDEZ,
MIGUEL RODRIGUEZ, PETER ESTRADA and GERARDO BIONG, Appellants.
DECISION
ABAD, J.:
Brief Background
On June 30, 1991 Estrellita Vizconde and her daughters Carmela, nineteen years old, and Jennifer, seven, were
brutally slain at their home in Paraaque City. Following an intense investigation, the police arrested a group of
suspects, some of whom gave detailed confessions. But the trial court smelled a frame-up and eventually ordered
them discharged. Thus, the identities of the real perpetrators remained a mystery especially to the public whose
interests were aroused by the gripping details of what everybody referred to as the Vizconde massacre.
Four years later in 1995, the National Bureau of Investigation or NBI announced that it had solved the crime. It
presented star-witness Jessica M. Alfaro, one of its informers, who claimed that she witnessed the crime. She
pointed to accused Hubert Jeffrey P. Webb, Antonio "Tony Boy" Lejano, Artemio "Dong" Ventura, Michael A.
Gatchalian, Hospicio "Pyke" Fernandez, Peter Estrada, Miguel "Ging" Rodriguez, and Joey Filart as the culprits.
She also tagged accused police officer, Gerardo Biong, as an accessory after the fact. Relying primarily on Alfaro's
testimony, on August 10, 1995 the public prosecutors filed an information for rape with homicide against Webb, et
al.1
The Regional Trial Court of Paraaque City, Branch 274, presided over by Judge Amelita G. Tolentino, tried only
seven of the accused since Artemio Ventura and Joey Filart remained at large. 2 The prosecution presented Alfaro as
its main witness with the others corroborating her testimony. These included the medico-legal officer who autopsied
the bodies of the victims, the security guards of Pitong Daan Subdivision, the former laundrywoman of the Webbs
household, police officer Biongs former girlfriend, and Lauro G. Vizconde, Estrellitas husband.
For their part, some of the accused testified, denying any part in the crime and saying they were elsewhere when it
took place. Webbs alibi appeared the strongest since he claimed that he was then across the ocean in the United
States of America. He presented the testimonies of witnesses as well as documentary and object evidence to prove
this. In addition, the defense presented witnesses to show Alfaro's bad reputation for truth and the incredible nature
of her testimony.
But impressed by Alfaros detailed narration of the crime and the events surrounding it, the trial court found a
credible witness in her. It noted her categorical, straightforward, spontaneous, and frank testimony, undamaged by
grueling cross-examinations. The trial court remained unfazed by significant discrepancies between Alfaros April 28
and May 22, 1995 affidavits, accepting her explanation that she at first wanted to protect her former boyfriend,
accused Estrada, and a relative, accused Gatchalian; that no lawyer assisted her; that she did not trust the
investigators who helped her prepare her first affidavit; and that she felt unsure if she would get the support and
security she needed once she disclosed all about the Vizconde killings.
In contrast, the trial court thought little of the denials and alibis that Webb, Lejano, Rodriguez, and Gatchalian set up
for their defense. They paled, according to the court, compared to Alfaros testimony that other witnesses and the
physical evidence corroborated. Thus, on January 4, 2000, after four years of arduous hearings, the trial court
rendered judgment, finding all the accused guilty as charged and imposing on Webb, Lejano, Gatchalian,
Fernandez, Estrada, and Rodriguez the penalty of reclusion perpetua and on Biong, an indeterminate prison term of
eleven years, four months, and one day to twelve years. The trial court also awarded damages to Lauro Vizconde. 3
On appeal, the Court of Appeals affirmed the trial courts decision, modifying the penalty imposed on Biong to six
years minimum and twelve years maximum and increasing the award of damages to Lauro Vizconde. 4 The appellate

court did not agree that the accused were tried by publicity or that the trial judge was biased. It found sufficient
evidence of conspiracy that rendered Rodriguez, Gatchalian, Fernandez, and Estrada equally guilty with those who
had a part in raping and killing Carmela and in executing her mother and sister.
On motion for reconsideration by the accused, the Court of Appeals' Special Division of five members voted three
against two to deny the motion,5 hence, the present appeal.
On April 20, 2010, as a result of its initial deliberation in this case, the Court issued a Resolution granting the request
of Webb to submit for DNA analysis the semen specimen taken from Carmelas cadaver, which specimen was then
believed still under the safekeeping of the NBI. The Court granted the request pursuant to section 4 of the Rule on
DNA Evidence6 to give the accused and the prosecution access to scientific evidence that they might want to avail
themselves of, leading to a correct decision in the case.
Unfortunately, on April 27, 2010 the NBI informed the Court that it no longer has custody of the specimen, the same
having been turned over to the trial court. The trial record shows, however, that the specimen was not among the
object evidence that the prosecution offered in evidence in the case.
This outcome prompted accused Webb to file an urgent motion to acquit on the ground that the governments failure
to preserve such vital evidence has resulted in the denial of his right to due process.
Issues Presented
Accused Webbs motion to acquit presents a threshold issue: whether or not the Court should acquit him outright,
given the governments failure to produce the semen specimen that the NBI found on Carmelas cadaver, thus
depriving him of evidence that would prove his innocence.
In the main, all the accused raise the central issue of whether or not Webb, acting in conspiracy with Lejano,
Gatchalian, Fernandez, Estrada, Rodriguez, Ventura, and Filart, raped and killed Carmela and put to death her
mother and sister. But, ultimately, the controlling issues are:
1. Whether or not Alfaros testimony as eyewitness, describing the crime and identifying Webb, Lejano,
Gatchalian, Fernandez, Estrada, Rodriguez, and two others as the persons who committed it, is entitled to
belief; and
2. Whether or not Webb presented sufficient evidence to prove his alibi and rebut Alfaros testimony that he
led the others in committing the crime.
The issue respecting accused Biong is whether or not he acted to cover up the crime after its commission.
The Right to Acquittal
Due to Loss of DNA Evidence
Webb claims, citing Brady v. Maryland,7 that he is entitled to outright acquittal on the ground of violation of his right
to due process given the States failure to produce on order of the Court either by negligence or willful suppression
the semen specimen taken from Carmela.
The medical evidence clearly established that Carmela was raped and, consistent with this, semen specimen was
found in her. It is true that Alfaro identified Webb in her testimony as Carmelas rapist and killer but serious
questions had been raised about her credibility. At the very least, there exists a possibility that Alfaro had lied. On
the other hand, the semen specimen taken from Carmela cannot possibly lie. It cannot be coached or allured by a
promise of reward or financial support. No two persons have the same DNA fingerprint, with the exception of
identical twins.8 If, on examination, the DNA of the subject specimen does not belong to Webb, then he did not rape
Carmela. It is that simple. Thus, the Court would have been able to determine that Alfaro committed perjury in
saying that he did.
Still, Webb is not entitled to acquittal for the failure of the State to produce the semen specimen at this late stage.
For one thing, the ruling in Brady v. Maryland9 that he cites has long be overtaken by the decision in Arizona v.
Youngblood,10 where the U.S. Supreme Court held that due process does not require the State to preserve the
semen specimen although it might be useful to the accused unless the latter is able to show bad faith on the part of
the prosecution or the police. Here, the State presented a medical expert who testified on the existence of the
specimen and Webb in fact sought to have the same subjected to DNA test.

For, another, when Webb raised the DNA issue, the rule governing DNA evidence did not yet exist, the country did
not yet have the technology for conducting the test, and no Philippine precedent had as yet recognized its
admissibility as evidence. Consequently, the idea of keeping the specimen secure even after the trial court rejected
the motion for DNA testing did not come up. Indeed, neither Webb nor his co-accused brought up the matter of
preserving the specimen in the meantime.
Parenthetically, after the trial court denied Webbs application for DNA testing, he allowed the proceeding to move
on when he had on at least two occasions gone up to the Court of Appeals or the Supreme Court to challenge
alleged arbitrary actions taken against him and the other accused. 11 They raised the DNA issue before the Court of
Appeals but merely as an error committed by the trial court in rendering its decision in the case. None of the
accused filed a motion with the appeals court to have the DNA test done pending adjudication of their appeal. This,
even when the Supreme Court had in the meantime passed the rules allowing such test. Considering the accuseds
lack of interest in having such test done, the State cannot be deemed put on reasonable notice that it would be
required to produce the semen specimen at some future time.
Now, to the merit of the case.
Alfaros Story
Based on the prosecutions version, culled from the decisions of the trial court and the Court of Appeals, on June 29,
1991 at around 8:30 in the evening, Jessica Alfaro drove her Mitsubishi Lancer, with boyfriend Peter Estrada as
passenger, to the Ayala Alabang Commercial Center parking lot to buy shabu from Artemio "Dong" Ventura. There,
Ventura introduced her to his friends: Hubert Jeffrey P. Webb, Antonio "Tony Boy" Lejano, Miguel "Ging" Rodriguez,
Hospicio "Pyke" Fernandez, Michael Gatchalian, and Joey Filart. Alfaro recalled frequently seeing them at a shabu
house in Paraaque in January 1991, except Ventura whom she had known earlier in December 1990.
As Alfaro smoked her shabu, Webb approached and requested her to relay a message for him to a girl, whom she
later identified as Carmela Vizconde. Alfaro agreed. After using up their shabu, the group drove to Carmelas house
at 80 Vinzons Street, Pitong Daan Subdivision, BF Homes, Paraaque City. Riding in her car, Alfaro and Estrada
trailed Filart and Rodriguez who rode a Mazda pick-up and Webb, Lejano, Ventura, Fernandez, and Gatchalian who
were on a Nissan Patrol car.
On reaching their destination, Alfaro parked her car on Vinzons Street, alighted, and approached Carmelas house.
Alfaro pressed the buzzer and a woman came out. Alfaro queried her about Carmela. Alfaro had met Carmela twice
before in January 1991. When Carmela came out, Alfaro gave her Webbs message that he was just around.
Carmela replied, however, that she could not go out yet since she had just arrived home. She told Alfaro to return
after twenty minutes. Alfaro relayed this to Webb who then told the group to drive back to the Ayala Alabang
Commercial Center.
The group had another shabu session at the parking lot. After sometime, they drove back but only Alfaro proceeded
to Vinzons Street where Carmela lived. The Nissan Patrol and the Mazda pick-up, with their passengers, parked
somewhere along Aguirre Avenue. Carmela was at their garden. She approached Alfaro on seeing her and told the
latter that she (Carmela) had to leave the house for a while. Carmela requested Alfaro to return before midnight and
she would leave the pedestrian gate, the iron grills that led to the kitchen, and the kitchen door unlocked. Carmela
also told Alfaro to blink her cars headlights twice when she approached the pedestrian gate so Carmela would know
that she had arrived.
Alfaro returned to her car but waited for Carmela to drive out of the house in her own car. Alfaro trailed Carmela up
to Aguirre Avenue where she dropped off a man whom Alfaro believed was Carmelas boyfriend. Alfaro looked for
her group, found them, and relayed Carmelas instructions to Webb. They then all went back to the Ayala Alabang
Commercial Center. At the parking lot, Alfaro told the group about her talk with Carmela. When she told Webb of
Carmelas male companion, Webbs mood changed for the rest of the evening ("bad trip").
Webb gave out free cocaine. They all used it and some shabu, too. After about 40 to 45 minutes, Webb decided that
it was time for them to leave. He said, "Pipilahan natin siya [Carmela] at ako ang mauuna." Lejano said, "Ako ang
susunod" and the others responded "Okay, okay." They all left the parking lot in a convoy of three vehicles and
drove into Pitong Daan Subdivision for the third time. They arrived at Carmelas house shortly before midnight.
Alfaro parked her car between Vizcondes house and the next. While waiting for the others to alight from their cars,
Fernandez approached Alfaro with a suggestion that they blow up the transformer near the Vizcondes residence to
cause a brownout ("Pasabugin kaya natin ang transformer na ito"). But Alfaro shrugged off the idea, telling
Fernandez, "Malakas lang ang tama mo." When Webb, Lejano, and Ventura were already before the house, Webb

told the others again that they would line up for Carmela but he would be the first. The others replied, "O sige, dito
lang kami, magbabantay lang kami."
Alfaro was the first to pass through the pedestrian gate that had been left open. Webb, Lejano, and Ventura followed
her. On entering the garage, Ventura using a chair mounted the hood of the Vizcondes Nissan Sentra and loosened
the electric bulb over it ("para daw walang ilaw"). The small group went through the open iron grill gate and passed
the dirty kitchen. Carmela opened the aluminum screen door of the kitchen for them. She and Webb looked each
other in the eyes for a moment and, together, headed for the dining area.
As she lost sight of Carmela and Webb, Alfaro decided to go out. Lejano asked her where she was going and she
replied that she was going out to smoke. As she eased her way out through the kitchen door, she saw Ventura
pulling out a kitchen drawer. Alfaro smoked a cigarette at the garden. After about twenty minutes, she was surprised
to hear a womans voice ask, "Sino yan?" Alfaro immediately walked out of the garden to her car. She found her
other companions milling around it. Estrada who sat in the car asked her, "Okay ba?"
After sitting in the car for about ten minutes, Alfaro returned to the Vizconde house, using the same route. The
interior of the house was dark but some light filtered in from outside. In the kitchen, Alfaro saw Ventura searching a
ladys bag that lay on the dining table. When she asked him what he was looking for, he said: "Ikaw na nga dito,
maghanap ka ng susi." She asked him what key he wanted and he replied: "Basta maghanap ka ng susi ng main
door pati na rin ng susi ng kotse." When she found a bunch of keys in the bag, she tried them on the main door but
none fitted the lock. She also did not find the car key.
Unable to open the main door, Alfaro returned to the kitchen. While she was at a spot leading to the dining area, she
heard a static noise (like a television that remained on after the station had signed off). Out of curiosity, she
approached the masters bedroom from where the noise came, opened the door a little, and peeked inside. The
unusual sound grew even louder. As she walked in, she saw Webb on top of Carmela while she lay with her back on
the floor. Two bloodied bodies lay on the bed. Lejano was at the foot of the bed about to wear his jacket. Carmela
was gagged, moaning, and in tears while Webb raped her, his bare buttocks exposed.
Webb gave Alfaro a meaningful look and she immediately left the room. She met Ventura at the dining area. He told
her, "Prepare an escape. Aalis na tayo." Shocked with what she saw, Alfaro rushed out of the house to the others
who were either sitting in her car or milling on the sidewalk. She entered her car and turned on the engine but she
did not know where to go. Webb, Lejano, and Ventura came out of the house just then. Webb suddenly picked up a
stone and threw it at the main door, breaking its glass frame.
As the three men approached the pedestrian gate, Webb told Ventura that he forgot his jacket in the house. But
Ventura told him that they could not get in anymore as the iron grills had already locked. They all rode in their cars
and drove away until they reached Aguirre Avenue. As they got near an old hotel at the Tropical Palace area, Alfaro
noticed the Nissan Patrol slow down. Someone threw something out of the car into the cogonal area.
The convoy of cars went to a large house with high walls, concrete fence, steel gate, and a long driveway at BF
Executive Village. They entered the compound and gathered at the lawn where the "blaming session" took place. It
was here that Alfaro and those who remained outside the Vizconde house learned of what happened. The first to be
killed was Carmelas mother, then Jennifer, and finally, Carmella. Ventura blamed Webb, telling him, "Bakit naman
pati yung bata?" Webb replied that the girl woke up and on seeing him molesting Carmela, she jumped on him, bit
his shoulders, and pulled his hair. Webb got mad, grabbed the girl, pushed her to the wall, and repeatedly stabbed
her. Lejano excused himself at this point to use the telephone in the house. Meanwhile, Webb called up someone on
his cellular phone.
At around 2:00 in the morning, accused Gerardo Biong arrived. Webb ordered him to go and clean up the Vizconde
house and said to him, "Pera lang ang katapat nyan." Biong answered, "Okay lang." Webb spoke to his companions
and told them, "We dont know each other. We havent seen each otherbaka maulit yan." Alfaro and Estrada left
and they drove to her fathers house.12
1. The quality of the witness
Was Alfaro an ordinary subdivision girl who showed up at the NBI after four years, bothered by her conscience or
egged on by relatives or friends to come forward and do what was right? No. She was, at the time she revealed her
story, working for the NBI as an "asset," a stool pigeon, one who earned her living by fraternizing with criminals so
she could squeal on them to her NBI handlers. She had to live a life of lies to get rewards that would pay for her
subsistence and vices.

According to Atty. Artemio Sacaguing, former head of the NBI Anti-Kidnapping, Hijacking, and Armed Robbery Task
Force (AKHAR) Section, Alfaro had been hanging around at the NBI since November or December 1994 as an
"asset." She supplied her handlers with information against drug pushers and other criminal elements. Some of this
information led to the capture of notorious drug pushers like Christopher Cruz Santos and Orlando Bacquir. Alfaros
tip led to the arrest of the leader of the "Martilyo gang" that killed a police officer. Because of her talent, the task
force gave her "very special treatment" and she became its "darling," allowed the privilege of spending nights in one
of the rooms at the NBI offices.
When Alfaro seemed unproductive for sometime, however, they teased her about it and she was piqued. One day,
she unexpectedly told Sacaguing that she knew someone who had the real story behind the Vizconde massacre.
Sacaguing showed interest. Alfaro promised to bring that someone to the NBI to tell his story. When this did not
happen and Sacaguing continued to press her, she told him that she might as well assume the role of her informant.
Sacaguing testified thus:
ATTY. ONGKIKO:
Q. Atty. Sacaguing, how did Jessica Alfaro become a witness in the Vizconde murder case? Will you tell the
Honorable Court?
xxxx
A. She told me. Your Honor, that she knew somebody who related to her the circumstances, I mean, the
details of the massacre of the Vizconde family. Thats what she told me, Your Honor.
ATTY. ONGKIKO:
Q. And what did you say?
xxxx
A. I was quite interested and I tried to persuade her to introduce to me that man and she promised that in
due time, she will bring to me the man, and together with her, we will try to convince him to act as a state
witness and help us in the solution of the case.
xxxx
Q. Atty. Sacaguing, were you able to interview this alleged witness?
WITNESS SACAGUING:
A. No, sir.
ATTY. ONGKIKO:
Q. Why not?
WITNESS SACAGUING:
A. Because Jessica Alfaro was never able to comply with her promise to bring the man to me. She told me
later that she could not and the man does not like to testify.
ATTY. ONGKIKO:
Q. All right, and what happened after that?
WITNESS SACAGUING:
A. She told me, "easy lang kayo, Sir," if I may quote, "easy lang Sir, huwag kayong"
COURT:
How was that?

WITNESS SACAGUING:
A. "Easy lang, Sir. Sir, relax lang, Sir, papapelan ko, papapelan ko na lang yan."
xxxx
ATTY. ONGKIKO:
Q. All right, and what was your reaction when Ms. Alfaro stated that "papapelan ko na lang yan?"
WITNESS SACAGUING:
A. I said, "hindi puwede yan, kasi hindi ka naman eye witness."
ATTY. ONGKIKO:
Q. And what was the reply of Ms. Alfaro?
WITNESS SACAGUING:
A. Hindi siya nakakibo, until she went away.
(TSN, May 28, 1996, pp. 49-50, 58, 77-79)
Quite significantly, Alfaro never refuted Sacaguings above testimony.
2. The suspicious details
But was it possible for Alfaro to lie with such abundant details some of which even tallied with the physical evidence
at the scene of the crime? No doubt, yes.
Firstly, the Vizconde massacre had been reported in the media with dizzying details. Everybody was talking about
what the police found at the crime scene and there were lots of speculations about them.
Secondly, the police had arrested some "akyat-bahay" group in Paraaque and charged them with the crime. The
police prepared the confessions of the men they apprehended and filled these up with details that the evidence of
the crime scene provided. Alfaros NBI handlers who were doing their own investigation knew of these details as
well. Since Alfaro hanged out at the NBI offices and practically lived there, it was not too difficult for her to hear of
these evidentiary details and gain access to the documents.
Not surprisingly, the confessions of some members of the Barroso "akyat bahay" gang, condemned by the Makati
RTC as fabricated by the police to pin the crime on them, shows how crime investigators could make a confession
ring true by matching some of its details with the physical evidence at the crime scene. Consider the following:
a. The Barroso gang members said that they got into Carmelas house by breaking the glass panel of the front door
using a stone wrapped in cloth to deaden the noise. Alfaro could not use this line since the core of her story was that
Webb was Carmelas boyfriend. Webb had no reason to smash her front door to get to see her.
Consequently, to explain the smashed door, Alfaro had to settle for claiming that, on the way out of the house, Webb
picked up some stone and, out of the blue, hurled it at the glass-paneled front door of the Vizconde residence. His
action really made no sense. From Alfaros narration, Webb appeared rational in his decisions. It was past midnight,
the house was dark, and they wanted to get away quickly to avoid detection. Hurling a stone at that glass door and
causing a tremendous noise was bizarre, like inviting the neighbors to come.
b. The crime scene showed that the house had been ransacked. The rejected confessions of the Barroso "akyatbahay" gang members said that they tried to rob the house. To explain this physical evidence, Alfaro claimed that at
one point Ventura was pulling a kitchen drawer, and at another point, going through a handbag on the dining table.
He said he was looking for the front-door key and the car key.
Again, this portion of Alfaros story appears tortured to accommodate the physical evidence of the ransacked house.
She never mentioned Ventura having taken some valuables with him when they left Carmelas house. And why
would Ventura rummage a bag on the table for the front-door key, spilling the contents, when they had already

gotten into the house. It is a story made to fit in with the crime scene although robbery was supposedly not the
reason Webb and his companions entered that house.
c. It is the same thing with the garage light. The police investigators found that the bulb had been loosened to turn
off the light. The confessions of the Barroso gang claimed that one of them climbed the parked cars hood to reach
up and darken that light. This made sense since they were going to rob the place and they needed time to work in
the dark trying to open the front door. Some passersby might look in and see what they were doing.
Alfaro had to adjust her testimony to take into account that darkened garage light. So she claimed that Ventura
climbed the cars hood, using a chair, to turn the light off. But, unlike the Barroso "akyat-bahay" gang, Webb and his
friends did not have anything to do in a darkened garage. They supposedly knew in advance that Carmela left the
doors to the kitchen open for them. It did not make sense for Ventura to risk standing on the cars hood and be seen
in such an awkward position instead of going straight into the house.
And, thirdly, Alfaro was the NBIs star witness, their badge of excellent investigative work. After claiming that they
had solved the crime of the decade, the NBI people had a stake in making her sound credible and, obviously, they
gave her all the preparations she needed for the job of becoming a fairly good substitute witness. She was their
"darling" of an asset. And this is not pure speculation. As pointed out above, Sacaguing of the NBI, a lawyer and a
ranking official, confirmed this to be a cold fact. Why the trial court and the Court of Appeals failed to see this is
mystifying.
lavvphil

At any rate, did Alfaro at least have a fine memory for faces that had a strong effect on her, given the
circumstances? Not likely. She named Miguel "Ging" Rodriguez as one of the culprits in the Vizconde killings. But
when the NBI found a certain Michael Rodriguez, a drug dependent from the Bicutan Rehabilitation Center, initially
suspected to be Alfaros Miguel Rodriguez and showed him to Alfaro at the NBI office, she ran berserk, slapping and
kicking Michael, exclaiming: "How can I forget your face. We just saw each other in a disco one month ago and you
told me then that you will kill me." As it turned out, he was not Miguel Rodriguez, the accused in this case. 13
Two possibilities exist: Michael was really the one Alfaro wanted to implicate to settle some score with him but it was
too late to change the name she already gave or she had myopic vision, tagging the wrong people for what they did
not do.
3. The quality of the testimony
There is another thing about a lying witness: her story lacks sense or suffers from inherent inconsistencies. An
understanding of the nature of things and the common behavior of people will help expose a lie. And it has an
abundant presence in this case.
One. In her desire to implicate Gatchalian, Fernandez, Estrada, Rodriguez, and Filart, who were supposed to be
Webbs co-principals in the crime, Alfaro made it a point to testify that Webb proposed twice to his friends the gangrape of Carmela who had hurt him. And twice, they (including, if one believes Alfaro, her own boyfriend Estrada)
agreed in a chorus to his proposal. But when they got to Carmelas house, only Webb, Lejano, Ventura, and Alfaro
entered the house.
Gatchalian, Fernandez, Estrada, and Rodriguez supposedly stayed around Alfaros car, which was parked on the
street between Carmelas house and the next. Some of these men sat on top of the cars lid while others milled on
the sidewalk, visible under the street light to anyone who cared to watch them, particularly to the people who were
having a drinking party in a nearby house. Obviously, the behavior of Webbs companions out on the street did not
figure in a planned gang-rape of Carmela.
Two. Ventura, Alfaros dope supplier, introduced her for the first time in her life to Webb and his friends in a parking
lot by a mall. So why would she agree to act as Webbs messenger, using her gas, to bring his message to Carmela
at her home. More inexplicably, what motivated Alfaro to stick it out the whole night with Webb and his friends?
They were practically strangers to her and her boyfriend Estrada. When it came to a point that Webb decided with
his friends to gang-rape Carmela, clearly, there was nothing in it for Alfaro. Yet, she stuck it out with them, as a
police asset would, hanging in there until she had a crime to report, only she was not yet an "asset" then. If, on the
other hand, Alfaro had been too soaked in drugs to think clearly and just followed along where the group took her,
how could she remember so much details that only a drug-free mind can?
Three. When Alfaro went to see Carmela at her house for the second time, Carmella told her that she still had to go
out and that Webb and his friends should come back around midnight. Alfaro returned to her car and waited for

Carmela to drive out in her own car. And she trailed her up to Aguirre Avenue where she supposedly dropped off a
man whom she thought was Carmelas boyfriend. Alfaros trailing Carmela to spy on her unfaithfulness to Webb did
not make sense since she was on limited errand. But, as a critical witness, Alfaro had to provide a reason for Webb
to freak out and decide to come with his friends and harm Carmela.
Four. According to Alfaro, when they returned to Carmelas house the third time around midnight, she led Webb,
Lejano, and Ventura through the pedestrian gate that Carmela had left open. Now, this is weird. Webb was the gang
leader who decided what they were going to do. He decided and his friends agreed with him to go to Carmelas
house and gang-rape her. Why would Alfaro, a woman, a stranger to Webb before that night, and obviously with no
role to play in the gang-rape of Carmela, lead him and the others into her house? It made no sense. It would only
make sense if Alfaro wanted to feign being a witness to something she did not see.
Five. Alfaro went out of the house to smoke at the garden. After about twenty minutes, a woman exclaimed, "Sino
yan?" On hearing this, Alfaro immediately walked out of the garden and went to her car. Apparently, she did this
because she knew they came on a sly. Someone other than Carmela became conscious of the presence of Webb
and others in the house. Alfaro walked away because, obviously, she did not want to get involved in a potential
confrontation. This was supposedly her frame of mind: fear of getting involved in what was not her business.
But if that were the case, how could she testify based on personal knowledge of what went on in the house? Alfaro
had to change that frame of mind to one of boldness and reckless curiosity. So that is what she next claimed. She
went back into the house to watch as Webb raped Carmela on the floor of the masters bedroom. He had apparently
stabbed to death Carmelas mom and her young sister whose bloodied bodies were sprawled on the bed. Now,
Alfaro testified that she got scared (another shift to fear) for she hurriedly got out of the house after Webb
supposedly gave her a meaningful look.
Alfaro quickly went to her car, not minding Gatchalian, Fernandez, Estrada, Rodriguez, and Filart who sat on the car
or milled on the sidewalk. She did not speak to them, even to Estrada, her boyfriend. She entered her car and
turned on the engine but she testified that she did not know where to go. This woman who a few minutes back led
Webb, Lejano, and Ventura into the house, knowing that they were decided to rape and harm Carmela, was
suddenly too shocked to know where to go! This emotional pendulum swing indicates a witness who was confused
with her own lies.
4. The supposed corroborations
Intending to provide corroboration to Alfaros testimony, the prosecution presented six additional witnesses:
Dr. Prospero A. Cabanayan, the NBI Medico-Legal Officer who autopsied the bodies of the victims, testified on the
stab wounds they sustained14 and the presence of semen in Carmelas genitalia,15 indicating that she had been
raped.
Normal E. White, Jr., was the security guard on duty at Pitong Daan Subdivision from 7 p.m. of June 29 to 7 a.m. of
June 30, 1991. He got a report on the morning of June 30 that something untoward happened at the Vizconde
residence. He went there and saw the dead bodies in the masters bedroom, the bag on the dining table, as well as
the loud noise emanating from a television set.16
White claimed that he noticed Gatchalian and his companions, none of whom he could identify, go in and out of
Pitong Daan Subdivision. He also saw them along Vinzons Street. Later, they entered Pitong Daan Subdivision in a
three-car convoy. White could not, however, describe the kind of vehicles they used or recall the time when he saw
the group in those two instances. And he did not notice anything suspicious about their coming and going.
But Whites testimony cannot be relied on. His initial claim turned out to be inaccurate. He actually saw Gatchalian
and his group enter the Pitong Daan Subdivision only once. They were not going in and out. Furthermore, Alfaro
testified that when the convoy of cars went back the second time in the direction of Carmelas house, she alone
entered the subdivision and passed the guardhouse without stopping. Yet, White who supposedly manned that
guardhouse did not notice her.
Surprisingly, White failed to note Biong, a police officer, entering or exiting the subdivision on the early morning of
June 30 when he supposedly "cleaned up" Vizconde residence on Webbs orders. What is more, White did not
notice Carmela arrive with her mom before Alfaros first visit that night. Carmela supposedly left with a male
companion in her car at around 10:30 p.m. but White did not notice it. He also did not notice Carmela reenter the
subdivision. White actually discredited Alfaros testimony about the movements of the persons involved.

Further, while Alfaro testified that it was the Mazda pick-up driven by Filart that led the three-vehicle convoy,17White
claimed it was the Nissan Patrol with Gatchalian on it that led the convoy since he would not have let the convoy in
without ascertaining that Gatchalian, a resident, was in it. Security guard White did not, therefore, provide
corroboration to Alfaros testimony.
1avvphi1

Justo Cabanacan, the security supervisor at Pitong Daan Subdivision testified that he saw Webb around the last
week of May or the first week of June 1991 to prove his presence in the Philippines when he claimed to be in the
United States. He was manning the guard house at the entrance of the subdivision of Pitong Daan when he flagged
down a car driven by Webb. Webb said that he would see Lilet Sy. Cabanacan asked him for an ID but he pointed to
his United BF Homes sticker and said that he resided there. Cabanacan replied, however, that Pitong Daan had a
local sticker.
Cabanacan testified that, at this point, Webb introduced himself as the son of Congressman Webb. Still, the
supervisor insisted on seeing his ID. Webb grudgingly gave it and after seeing the picture and the name on it,
Cabanacan returned the same and allowed Webb to pass without being logged in as their Standard Operating
Procedure required.18
But Cabanacan's testimony could not be relied on. Although it was not common for a security guard to challenge a
Congressmans son with such vehemence, Cabanacan did not log the incident on the guardhouse book. Nor did he,
contrary to prescribed procedure, record the visitors entry into the subdivision. It did not make sense that
Cabanacan was strict in the matter of seeing Webbs ID but not in recording the visit.
Mila Gaviola used to work as laundry woman for the Webbs at their house at BF Homes Executive Village. She
testified that she saw Webb at his parents house on the morning of June 30, 1991 when she got the dirty clothes
from the room that he and two brothers occupied at about 4.a.m. She saw him again pacing the floor at 9 a.m. At
about 1 p.m., Webb left the house in t-shirt and shorts, passing through a secret door near the maids quarters on
the way out. Finally, she saw Webb at 4 p.m. of the same day.19
On cross-examination, however, Gaviola could not say what distinguished June 30, 1991 from the other days she
was on service at the Webb household as to enable her to distinctly remember, four years later, what one of the
Webb boys did and at what time. She could not remember any of the details that happened in the household on the
other days. She proved to have a selective photographic memory and this only damaged her testimony.
Gaviola tried to corroborate Alfaro's testimony by claiming that on June 30, 1991 she noticed bloodstains on Webb's
t-shirt.20 She did not call the attention of anybody in the household about it when it would have been a point of
concern that Webb may have been hurt, hence the blood.
Besides, Victoria Ventoso, the Webbs' housemaid from March 1989 to May 1992, and Sgt. Miguel Muoz, the
Webbs' security aide in 1991, testified that Gaviola worked for the Webbs only from January 1991 to April 1991.
Ventoso further testified that it was not Gaviola's duty to collect the clothes from the 2nd floor bedrooms, this being
the work of the housemaid charged with cleaning the rooms.
What is more, it was most unlikely for a laundrywoman who had been there for only four months to collect, as she
claimed, the laundry from the rooms of her employers and their grown up children at four in the morning while they
were asleep.
And it did not make sense, if Alfaros testimony were to be believed that Webb, who was so careful and clever that
he called Biong to go to the Vizconde residence at 2 a.m. to clean up the evidence against him and his group, would
bring his bloodied shirt home and put it in the hamper for laundrywoman Gaviola to collect and wash at 4 a.m. as
was her supposed habit.
Lolita De Birrer was accused Biongs girlfriend around the time the Vizconde massacre took place. Birrer testified
that she was with Biong playing mahjong from the evening of June 29, 1991 to the early morning of June 30, when
Biong got a call at around 2 a.m. This prompted him, according to De Birrer, to leave and go to BF. Someone sitting
at the backseat of a taxi picked him up. When Biong returned at 7 a.m. he washed off what looked like dried blood
from his fingernails. And he threw away a foul-smelling handkerchief. She also saw Biong take out a knife with
aluminum cover from his drawer and hid it in his steel cabinet. 21
The security guard at Pitong Daan did not notice any police investigator flashing a badge to get into the village
although Biong supposedly came in at the unholy hour of two in the morning. His departure before 7 a.m. also
remained unnoticed by the subdivision guards. Besides, if he had cleaned up the crime scene shortly after midnight,
what was the point of his returning there on the following morning to dispose of some of the evidence in the

presence of other police investigators and on-lookers? In fact, why would he steal valuable items from the Vizconde
residence on his return there hours later if he had the opportunity to do it earlier?
At most, Birrers testimony only established Biongs theft of certain items from the Vizconde residence and gross
neglect for failing to maintain the sanctity of the crime scene by moving around and altering the effects of the crime.
Birrers testimony failed to connect Biong's acts to Webb and the other accused.
Lauro Vizconde testified about how deeply he was affected by the loss of her wife and two daughters. Carmella
spoke to him of a rejected suitor she called "Bagyo," because he was a Paraaque politicians son. Unfortunately,
Lauro did not appear curious enough to insist on finding out who the rejected fellow was. Besides, his testimony
contradicts that of Alfaro who testified that Carmela and Webb had an on-going relation. Indeed, if Alfaro were to be
believed, Carmela wanted Webb to come to her house around midnight. She even left the kitchen door open so he
could enter the house.
5. The missing corroboration
There is something truly remarkable about this case: the prosecutions core theory that Carmela and Webb had
been sweethearts, that she had been unfaithful to him, and that it was for this reason that Webb brought his friends
to her house to gang-rape her is totally uncorroborated!
For instance, normally, if Webb, a Congressmans son, courted the young Carmela, that would be news among her
circle of friends if not around town. But, here, none of her friends or even those who knew either of them came
forward to affirm this. And if Webb hanged around with her, trying to win her favors, he would surely be seen with
her. And this would all the more be so if they had become sweethearts, a relation that Alfaro tried to project with her
testimony.
But, except for Alfaro, the NBI asset, no one among Carmelas friends or her friends friends would testify ever
hearing of such relationship or ever seeing them together in some popular hangouts in Paraaque or Makati.
Alfaros claim of a five-hour drama is like an alien page, rudely and unconnectedly inserted into Webb and
Carmelas life stories or like a piece of jigsaw puzzle trimmed to fit into the shape on the board but does not belong
because it clashes with the surrounding pieces. It has neither antecedent nor concomitant support in the verifiable
facts of their personal histories. It is quite unreal.
What is more, Alfaro testified that she saw Carmela drive out of her house with a male passenger, Mr. X, whom
Alfaro thought the way it looked was also Carmelas lover. This was the all-important reason Webb supposedly had
for wanting to harm her. Again, none of Carmelas relatives, friends, or people who knew her ever testified about the
existence of Mr.X in her life. Nobody has come forward to testify having ever seen him with Carmela. And despite
the gruesome news about her death and how Mr. X had played a role in it, he never presented himself like anyone
who had lost a special friend normally would. Obviously, Mr. X did not exist, a mere ghost of the imagination of
Alfaro, the woman who made a living informing on criminals.
Webbs U.S. Alibi
Among the accused, Webb presented the strongest alibi.
a. The travel preparations
Webb claims that in 1991 his parents, Senator Freddie Webb and his wife, Elizabeth, sent their son to the United
States (U.S.) to learn the value of independence, hard work, and money.22 Gloria Webb, his aunt, accompanied him.
Rajah Tours booked their flight to San Francisco via United Airlines. Josefina Nolasco of Rajah Tours confirmed that
Webb and his aunt used their plane tickets.
Webb told his friends, including his neighbor, Jennifer Claire Cabrera, and his basketball buddy, Joselito Orendain
Escobar, of his travel plans. He even invited them to his despedida party on March 8, 1991 at Faces Disco along
Makati Ave.23 On March 8,1991, the eve of his departure, he took girlfriend Milagros Castillo to a dinner at
Bunchums at the Makati Cinema Square. His basketball buddy Rafael Jose with Tina Calma, a blind date arranged
by Webb, joined them. They afterwards went to Faces Disco for Webb's despedida party. Among those present
were his friends Paulo Santos and Jay Ortega.24
b. The two immigration checks

The following day, March 9, 1991, Webb left for San Francisco, California, with his Aunt Gloria on board United
Airlines Flight 808.25 Before boarding his plane, Webb passed through the Philippine Immigration booth at the airport
to have his passport cleared and stamped. Immigration Officer, Ferdinand Sampol checked Webbs visa, stamped,
and initialed his passport, and let him pass through.26 He was listed on the United Airlines Flights Passenger
Manifest.27
On arrival at San Francisco, Webb went through the U.S. Immigration where his entry into that country was
recorded. Thus, the U.S. Immigration Naturalization Service, checking with its Non-immigrant Information System,
confirmed Webb's entry into the U.S. on March 9, 1991. Webb presented at the trial the INS Certification issued by
the U.S. Immigration and Naturalization Service,28 the computer-generated print-out of the US-INS indicating Webb's
entry on March 9, 1991,29 and the US-INS Certification dated August 31, 1995, authenticated by the Philippine
Department of Foreign Affairs, correcting an earlier August 10, 1995 Certification. 30
c. Details of U.S. sojourn
In San Francisco, Webb and his aunt Gloria were met by the latters daughter, Maria Teresa Keame, who brought
them to Glorias house in Daly City, California. During his stay with his aunt, Webb met Christopher Paul Legaspi
Esguerra, Glorias grandson. In April 1991, Webb, Christopher, and a certain Daphne Domingo watched the concert
of Deelite Band in San Francisco.31 In the same month, Dorothy Wheelock and her family invited Webb to Lake
Tahoe to return the Webbs hospitality when she was in the Philippines. 32
In May 1991, on invitation of another aunt, Susan Brottman, Webb moved to Anaheim Hills, California. 33 During his
stay there, he occupied himself with playing basketball once or twice a week with Steven Keeler 34 and working at his
cousin-in-laws pest control company.35 Webb presented the companys logbook showing the tasks he
performed,36 his paycheck,37 his ID, and other employment papers. On June 14, 1991 he applied for a driver's
license38 and wrote three letters to his friend Jennifer Cabrera.39
On June 28, 1991, Webbs parents visited him at Anaheim and stayed with the Brottmans. On the same day, his
father introduced Honesto Aragon to his son when he came to visit. 40 On the following day, June 29, Webb, in the
company of his father and Aragon went to Riverside, California, to look for a car. They bought an MR2 Toyota
car.41 Later that day, a visitor at the Brottmans, Louis Whittacker, saw Webb looking at the plates of his new car.42 To
prove the purchase, Webb presented the Public Records of California Department of Motor Vehicle 43 and a car plate
"LEW WEBB."44 In using the car in the U.S., Webb even received traffic citations. 45
On June 30, 1991 Webb, again accompanied by his father and Aragon, 46 bought a bicycle at Orange Cycle
Center.47 The Center issued Webb a receipt dated June 30, 1991.48 On July 4, 1991, Independence Day, the Webbs,
the Brottmans, and the Vaca family had a lakeside picnic.49
Webb stayed with the Brottmans until mid July and rented a place for less than a month. On August 4, 1991 he left
for Longwood, Florida, to stay with the spouses Jack and Sonja Rodriguez. 50 There, he met Armando Rodriguez with
whom he spent time, playing basketball on weekends, watching movies, and playing billiards. 51 In November 1991,
Webb met performing artist Gary Valenciano, a friend of Jack Rodriguez, who was invited for a dinner at the
Rodriguezs house.52 He left the Rodriguezs home in August 1992, returned to Anaheim and stayed with his aunt
Imelda Pagaspas. He stayed there until he left for the Philippines on October 26, 1992.
d. The second immigration checks
As with his trip going to the U.S., Webb also went through both the U.S. and Philippine immigrations on his return
trip. Thus, his departure from the U.S. was confirmed by the same certifications that confirmed his
entry.53 Furthermore, a Diplomatic Note of the U.S. Department of State with enclosed letter from Acting Director
Debora A. Farmer of the Records Operations, Office of Records of the US-INS stated that the Certification dated
August 31, 1995 is a true and accurate statement. And when he boarded his plane, the Passenger Manifest of
Philippine Airlines Flight No. 103,54 certified by Agnes Tabuena55 confirmed his return trip.
When he arrived in Manila, Webb again went through the Philippine Immigration. In fact, the arrival stamp and initial
on his passport indicated his return to Manila on October 27, 1992. This was authenticated by Carmelita Alipio, the
immigration officer who processed Webbs reentry.56 Upon his return, in October 1992, Paolo Santos, Joselito
Erondain Escobar, and Rafael Jose once again saw Webb playing basketball at the BF's Phase III basketball court.
e. Alibi versus positive identification

The trial court and the Court of Appeals are one in rejecting as weak Webbs alibi. Their reason is uniform: Webbs
alibi cannot stand against Alfaros positive identification of him as the rapist and killer of Carmela and, apparently,
the killer as well of her mother and younger sister. Because of this, to the lower courts, Webbs denial and alibi were
fabricated.
But not all denials and alibis should be regarded as fabricated. Indeed, if the accused is truly innocent, he can have
no other defense but denial and alibi. So how can such accused penetrate a mind that has been made cynical by
the rule drilled into his head that a defense of alibi is a hangmans noose in the face of a witness positively swearing,
"I saw him do it."? Most judges believe that such assertion automatically dooms an alibi which is so easy to
fabricate. This quick stereotype thinking, however, is distressing. For how else can the truth that the accused is
really innocent have any chance of prevailing over such a stone-cast tenet?
There is only one way. A judge must keep an open mind. He must guard against slipping into hasty conclusion, often
arising from a desire to quickly finish the job of deciding a case. A positive declaration from a witness that he saw
the accused commit the crime should not automatically cancel out the accuseds claim that he did not do it. A lying
witness can make as positive an identification as a truthful witness can. The lying witness can also say as
forthrightly and unequivocally, "He did it!" without blinking an eye.
Rather, to be acceptable, the positive identification must meet at least two criteria:
First, the positive identification of the offender must come from a credible witness. She is credible who can be
trusted to tell the truth, usually based on past experiences with her. Her word has, to one who knows her, its weight
in gold.
And second, the witness story of what she personally saw must be believable, not inherently contrived. A witness
who testifies about something she never saw runs into inconsistencies and makes bewildering claims.
Here, as already fully discussed above, Alfaro and her testimony fail to meet the above criteria.
She did not show up at the NBI as a spontaneous witness bothered by her conscience. She had been hanging
around that agency for sometime as a stool pigeon, one paid for mixing up with criminals and squealing on them.
Police assets are often criminals themselves. She was the prosecutions worst possible choice for a witness.
Indeed, her superior testified that she volunteered to play the role of a witness in the Vizconde killings when she
could not produce a man she promised to the NBI.
And, although her testimony included details, Alfaro had prior access to the details that the investigators knew of the
case. She took advantage of her familiarity with these details to include in her testimony the clearly incompatible act
of Webb hurling a stone at the front door glass frames even when they were trying to slip away quietlyjust so she
can accommodate this crime scene feature. She also had Ventura rummaging a bag on the dining table for a front
door key that nobody needed just to explain the physical evidence of that bag and its scattered contents. And she
had Ventura climbing the cars hood, risking being seen in such an awkward position, when they did not need to
darken the garage to force open the front doorjust so to explain the darkened light and foot prints on the car hood.
Further, her testimony was inherently incredible. Her story that Gatchalian, Fernandez, Estrada, Rodriguez, and
Filart agreed to take their turns raping Carmela is incongruent with their indifference, exemplified by remaining
outside the house, milling under a street light, visible to neighbors and passersby, and showing no interest in the
developments inside the house, like if it was their turn to rape Carmela. Alfaros story that she agreed to serve as
Webbs messenger to Carmela, using up her gas, and staying with him till the bizarre end when they were
practically strangers, also taxes incredulity.
To provide basis for Webbs outrage, Alfaro said that she followed Carmela to the main road to watch her let off a
lover on Aguirre Avenue. And, inexplicably, although Alfaro had only played the role of messenger, she claimed
leading Webb, Lejano, and Ventura into the house to gang-rape Carmella, as if Alfaro was establishing a reason for
later on testifying on personal knowledge. Her swing from an emotion of fear when a woman woke up to their
presence in the house and of absolute courage when she nonetheless returned to become the lone witness to a
grim scene is also quite inexplicable.
Ultimately, Alfaros quality as a witness and her inconsistent, if not inherently unbelievable, testimony cannot be the
positive identification that jurisprudence acknowledges as sufficient to jettison a denial and an alibi.
f. A documented alibi

To establish alibi, the accused must prove by positive, clear, and satisfactory evidence 57 that (a) he was present at
another place at the time of the perpetration of the crime, and (b) that it was physically impossible for him to be at
the scene of the crime.58
The courts below held that, despite his evidence, Webb was actually in Paraaque when the Vizconde killings took
place; he was not in the U.S. from March 9, 1991 to October 27, 1992; and if he did leave on March 9, 1991, he
actually returned before June 29, 1991, committed the crime, erased the fact of his return to the Philippines from the
records of the U.S. and Philippine Immigrations, smuggled himself out of the Philippines and into the U.S., and
returned the normal way on October 27, 1992. But this ruling practically makes the death of Webb and his passage
into the next life the only acceptable alibi in the Philippines. Courts must abandon this unjust and inhuman
paradigm.
If one is cynical about the Philippine system, he could probably claim that Webb, with his fathers connections, can
arrange for the local immigration to put a March 9, 1991 departure stamp on his passport and an October 27, 1992
arrival stamp on the same. But this is pure speculation since there had been no indication that such arrangement
was made. Besides, how could Webb fix a foreign airlines passenger manifest, officially filed in the Philippines and
at the airport in the U.S. that had his name on them? How could Webb fix with the U.S. Immigrations record system
those two dates in its record of his travels as well as the dates when he supposedly departed in secret from the U.S.
to commit the crime in the Philippines and then return there? No one has come up with a logical and plausible
answer to these questions.
The Court of Appeals rejected the evidence of Webbs passport since he did not leave the original to be attached to
the record. But, while the best evidence of a document is the original, this means that the same is exhibited in court
for the adverse party to examine and for the judge to see. As Court of Appeals Justice Tagle said in his dissent, 59 the
practice when a party does not want to leave an important document with the trial court is to have a photocopy of it
marked as exhibit and stipulated among the parties as a faithful reproduction of the original. Stipulations in the
course of trial are binding on the parties and on the court.
The U.S. Immigration certification and the computer print-out of Webbs arrival in and departure from that country
were authenticated by no less than the Office of the U.S. Attorney General and the State Department. Still the Court
of Appeals refused to accept these documents for the reason that Webb failed to present in court the immigration
official who prepared the same. But this was unnecessary. Webbs passport is a document issued by the Philippine
government, which under international practice, is the official record of travels of the citizen to whom it is issued. The
entries in that passport are presumed true.60
The U.S. Immigration certification and computer print-out, the official certifications of which have been authenticated
by the Philippine Department of Foreign Affairs, merely validated the arrival and departure stamps of the U.S.
Immigration office on Webbs passport. They have the same evidentiary value. The officers who issued these
certifications need not be presented in court to testify on them. Their trustworthiness arises from the sense of official
duty and the penalty attached to a breached duty, in the routine and disinterested origin of such statement and in the
publicity of the record.61
The Court of Appeals of course makes capital of the fact that an earlier certification from the U.S. Immigration office
said that it had no record of Webb entering the U.S. But that erroneous first certification was amply explained by the
U.S. Government and Court of Appeals Justice Tagle stated it in his dissenting opinion, thus:
While it is true that an earlier Certification was issued by the U.S. INS on August 16, 1995 finding "no evidence of
lawful admission of Webb," this was already clarified and deemed erroneous by no less than the US INS Officials.
As explained by witness Leo Herrera-Lim, Consul and Second Secretary of the Philippine Embassy in Washington
D.C., said Certification did not pass through proper diplomatic channels and was obtained in violation of the rules on
protocol and standard procedure governing such request.
The initial request was merely initiated by BID Commissioner Verceles who directly communicated with the
Philippine Consulate in San Francisco, USA, bypassing the Secretary of Foreign Affairs which is the proper protocol
procedure. Mr. Steven Bucher, the acting Chief of the Records Services Board of US-INS Washington D.C. in his
letter addressed to Philip Antweiler, Philippine Desk Officer, State Department, declared the earlier Certification as
incorrect and erroneous as it was "not exhaustive and did not reflect all available information." Also, Richard L. Huff,
Co-Director of the Office of Information and privacy, US Department of Justice, in response to the appeal raised by
Consul General Teresita V. Marzan, explained that "the INS normally does not maintain records on individuals who
are entering the country as visitors rather than as immigrants: and that a notation concerning the entry of a visitor
may be made at the Nonimmigrant Information system. Since appellant Webb entered the U.S. on a mere tourist

visa, obviously, the initial search could not have produced the desired result inasmuch as the data base that was
looked into contained entries of the names of IMMIGRANTS and not that of NON-IMMIGRANT visitors of the U.S.. 62
The trial court and the Court of Appeals expressed marked cynicism over the accuracy of travel documents like the
passport as well as the domestic and foreign records of departures and arrivals from airports. They claim that it
would not have been impossible for Webb to secretly return to the Philippines after he supposedly left it on March 9,
1991, commit the crime, go back to the U.S., and openly return to the Philippines again on October 26, 1992. Travel
between the U.S. and the Philippines, said the lower courts took only about twelve to fourteen hours.
If the Court were to subscribe to this extremely skeptical view, it might as well tear the rules of evidence out of the
law books and regard suspicions, surmises, or speculations as reasons for impeaching evidence. It is not that
official records, which carry the presumption of truth of what they state, are immune to attack. They are not. That
presumption can be overcome by evidence. Here, however, the prosecution did not bother to present evidence to
impeach the entries in Webbs passport and the certifications of the Philippine and U.S. immigration services
regarding his travel to the U.S. and back. The prosecutions rebuttal evidence is the fear of the unknown that it
planted in the lower courts minds.
7. Effect of Webbs alibi to others
Webbs documented alibi altogether impeaches Alfaro's testimony, not only with respect to him, but also with respect
to Lejano, Estrada, Fernandez, Gatchalian, Rodriguez, and Biong. For, if the Court accepts the proposition that
Webb was in the U.S. when the crime took place, Alfaros testimony will not hold together. Webbs participation is
the anchor of Alfaros story. Without it, the evidence against the others must necessarily fall.
CONCLUSION
In our criminal justice system, what is important is, not whether the court entertains doubts about the innocence of
the accused since an open mind is willing to explore all possibilities, but whether it entertains a reasonable, lingering
doubt as to his guilt. For, it would be a serious mistake to send an innocent man to jail where such kind of doubt
hangs on to ones inner being, like a piece of meat lodged immovable between teeth.
Will the Court send the accused to spend the rest of their lives in prison on the testimony of an NBI asset who
proposed to her handlers that she take the role of the witness to the Vizconde massacre that she could not
produce?
WHEREFORE, the Court REVERSES and SETS ASIDE the Decision dated December 15, 2005 and Resolution
dated January 26, 2007 of the Court of Appeals in CA-G.R. CR-H.C. 00336 and ACQUITS accused-appellants
Hubert Jeffrey P. Webb, Antonio Lejano, Michael A. Gatchalian, Hospicio Fernandez, Miguel Rodriguez, Peter
Estrada and Gerardo Biong of the crimes of which they were charged for failure of the prosecution to prove their
guilt beyond reasonable doubt. They are ordered immediately RELEASED from detention unless they are confined
for another lawful cause.
Let a copy of this Decision be furnished the Director, Bureau of Corrections, Muntinlupa City for immediate
implementation. The Director of the Bureau of Corrections is DIRECTED to report the action he has taken to this
Court within five days from receipt of this Decision.
SO ORDERED.
ROBERTO A. ABAD
Associate Justice
WE CONCUR:

Republic of the Philippines

SUPREME COURT
Manila
SPECIAL SECOND DIVISION
G.R. No. 172607

April 16, 2009

PEOPLE OF THE PHILIPPINES, Appelle,

vs.
RUFINO UMANITO, Appellant.
RESOLUTION
TINGA, J.:
In our Resolution dated 26 October 2007, this Court resolved, for the very first time, to apply the then recently
promulgated New Rules on DNA Evidence (DNA Rules)1 in a case pending before us this case. We remanded the
case to the RTC for reception of DNA evidence in accordance with the terms of said Resolution, and in light of the
fact that the impending exercise would be the first application of the procedure, directed Deputy Court Administrator
Reuben Dela Cruz to: (a) monitor the manner in which the court a quo carries out the DNA Rules; and (b) assess
and submit periodic reports on the implementation of the DNA Rules in the case to the Court.
To recall, the instant case involved a charge of rape. The accused Rufino Umanito (Umanito) was found by the
Regional Trial Court (RTC) of Bauang, La Union, Branch 67 guilty beyond reasonable doubt of the crime of rape.
Umanito was sentenced to suffer the penalty of reclusion perpetua and ordered to indemnify the private complainant
in the sum of P50,000.00. On appeal, the Court of Appeals offered the judgment of the trial court. Umanito appealed
the decision of the appellate court to this court.
In its 2007 Resolution, the Court acknowledged "many incongruent assertions of the prosecution and the
defense."2 At the same time, the alleged 1989 rape of the private complainant, AAA, had resulted in her pregnancy
and the birth of a child, a girl hereinafter identified as "BBB." In view of that fact, a well as the defense of alibi raised
by Umanito, the Court deemed uncovering of whether or not Umanito is the father of BBB greatly determinative of
the resolution of the appeal. The Court then observed:
x x x With the advance in genetics and the availability of new technology, it can now be determined with reasonable
certainty whether appellant is the father of AAA's child. If he is not, his acquittal may be ordained. We have
pronounced that if it can be conclusively determined that the accused did not sire the alleged victim's child, this may
cast the shadow of reasonable doubt and allow his acquittal on this basis. If he is found not to be the father, the
finding will at least weigh heavily in the ultimate decision in this case. Thus, we are directing appellant, AAA and her
child to submit themselves to deoxyribonucleic acid (DNA) testing under the aegis of the New Rule on DNA
Evidence (the Rules), which took effect on 15 October 2007, subject to guidelines prescribed herein. 3
The RTC of Bauang, La Union, Branch 67, presided by Judge Ferdinand A. Fe, upon receiving the Resolution of the
Court on 9 November 2007, set the case for hearing on 27 November 2007 4 to ascertain the feasibility of DNA
testing with due regard to the standards set in Sections 4(a), (b), (c) and (e) of the DNA Rules. Both AAA and BBB
(now 17 years old) testified during the hearing. They also manifested their willingness to undergo DNA examination
to determine whether Umanito is the father of BBB.5
A hearing was conducted on 5 December 2007, where the public prosecutor and the counsel for Umanito
manifested their concurrence to the selection of the National Bureau of Investigation (NBI) as the institution that
would conduct the DNA testing. The RTC issued an Order on even date directing that biological samples be taken
from AAA, BBB and Umanito on 9 January 2008 at the courtroom. The Order likewise enjoined the NBI as follows:
In order to protect the integrity of the biological samples, the [NBI] is enjoined to strictly follow the measures laid
down by the Honorable Supreme Court in the instant case to wit:

Moreover, the court a quo must ensure that the proper chain of custody in the handling of the samples submitted by
the parties is adequately borne in the records, i.e.; that the samples are collected by a neutral third party; that the
tested parties are appropriately identified at their sample collection appointments; that the samples are protected
with tamper tape at the collection site; that all persons in possession thereof at each stage of testing thoroughly
inspected the samples for tampering and explained his role in the custody of the samples and the acts he performed
in relation thereto.
The DNA test result shall be simultaneously disclosed to the parties in Court. The [NBI] is, therefore, enjoined not to
disclose to the parties in advance the DNA test results.
The [NBI] is further enjoined to observe the confidentiality of the DNA profiles and all results or other information
obtained from DNA testing and is hereby ordered to preserve the evidence until such time as the accused has been
acquitted or served his sentence.6
Present at the hearing held on 9 January 2008 were AAA, BBB, counsel for Umanito, and two representatives from
the NBI. The RTC had previously received a letter from the Officer-in-Charge of the New Bilibid Prisons informing
the trial court that Umanito would not be able to attend the hearing without an authority coming from the Supreme
Court.7 The parties manifested in court their willingness to the taking of the DNA sample from the accused at his
detention center at the New Bilibid Prisons on 8 February 2008. 8 The prosecution then presented on the witness
stand NBI forensic chemist Mary Ann Aranas, who testified on her qualifications as an expert witness in the field of
DNA testing. No objections were posed to her qualifications by the defense. Aranas was accompanied by a
laboratory technician of the NBI DNA laboratory who was to assist in the extraction of DNA.
DNA samples were thus extracted from AAA and BBB in the presence of Judge Fe, the prosecutor, the counsel for
the defense, and DCA De la Cruz. On 8 February 2008, DNA samples were extracted from Umanito at the New
Bilibid Prisons by NBI chemist Aranas, as witnessed by Judge Fe, the prosecutor, the defense counsel, DCA De la
Cruz, and other personnel of the Court and the New Bilibid Prisons.9
The RTC ordered the NBI to submit the result of the DNA examination within thirty (30) days after the extraction of
biological samples of Umanito, and directed its duly authorized representatives to attend a hearing on the
admissibility of such DNA evidence scheduled for 10 March 2008. The events of the 28 March 2008 hearing, as well
as the subsequent hearing on 29 April 2008, were recounted in the Report dated 19 May 2008 submitted by Judge
Fe. We quote therefrom with approval:
2. That as previously scheduled in the order of the trial court on 09 January 2008, the case was set for hearing on
the admissibility of the result of the DNA testing.
At the hearing, Provincial Prosecutor Maria Nenita A. Opiana, presented Mary Ann T. Aranas, a Forensic Chemist of
the National Bureau of Investigation who testified on the examination she conducted, outlining the procedure she
adopted and the result thereof. She further declared that using the Powerplex 16 System, Deoxyribonuncleic acid
analysis on the Buccal Swabs and Blood stained on FTA paper taken from [AAA], [BBB], and Rufino Umanito y
Millares, to determine whether or not Rufino Umanito y Millares is the biological father of [BBB], showed that there is
a Complete Match in all of the fifteen (15) loci tested between the alleles of Rufino Umanito y Milalres and [BBB];
That based on the above findings, there is a 99.9999% probability of paternity that Rufino Umanito y Millares is the
biological father of [BBB] (Exhibits "A" and series and "B" and series).
After the cross-examination of the witness by the defense counsel, the Public Prosecutor offered in evidence
Exhibits "A" and sub-markings, referring to the Report of the Chemistry Division of the National Bureau of
Investigation, Manila on the DNA analysis to determine whether or not Rufino Umanito y Millares is the biological
father of [BBB] and Exhibit "B" and sub-markings, referring to the enlarged version of the table of Exhibit "A," to
establish that on the DNA examination conducted on [AAA], [BBB] and the accused Rufino Umanito for the purpose
of establishing paternity, the result is 99.9999% probable. Highly probable.
The defense did not interpose any objection, hence, the exhibits were admitted.
1. That considering that under Section 9, A.M. No. 06-11-5-SC, if the value of the Probability of Paternity is 99.9% or
higher, there shall be a disputable presumption of paternity, the instant case was set for reception of evidence for
the accused on April 29, 2008 to controvert the presumption that he is the biological father of [BBB].
During the hearing on April 29, 2008, the accused who was in court manifested through his counsel that he will not
present evidence to dispute the findings of the Forensic Chemistry Division of the National Bureau of Investigation.
The DNA samples were collected by the forensic chemist of the National Bureau of Investigation whose
qualifications as an expert was properly established adopting the following procedure:
a) The subject sources were asked to gargle and to fill out the reference sample form. Thereafter, the
chemists informed them that buccal swabs will be taken from their mouth and five (5) droplets of blood will
also be taken from the ring finger of their inactive hand;

b) Pictures of the subject sources were taken by the NBI Chemist;

c) Buccal swabs were taken from the subject sources three (3) times;
d) Subject sources were made to sign three (3) pieces of paper to serve as label of the three buccal swabs
placed inside two (2) separate envelopes that bear their names;
e) Blood samples were taken from the ring finger of the left hand of the subject sources;
f) Subject sources were made to sign the FTA card of their blood samples.
The buccal swabs and the FTA cards were placed in a brown envelope for air drying for at least one hour.
g) Finger prints of the subject sources were taken for additional identification;
h) The subject sources were made to sign their finger prints.
i) Atty. Ramon J. Gomez, Deputy Court Administrator Reuben dela Cruz and Prosecutor Maria Nenita A.
Oplana, in that order, were made to sign as witnesses to the reference sample forms and the finger prints of
the subject sources.
j) After one hour of air drying, the Buccal Swabs and the FTA papers were placed inside a white envelope
and sealed with a tape by the NBI Chemists;
k) The witnesses, Atty. Ramon J. Gomez, Deputy Court Administrator Reuben dela Cruz, Prosecutor Maria
Nenita A. Opiana including the NBI Chemist, affixed their signatures on the sealed white envelope;
l) The subjects sources were made to sign and affix their finger prints on the sealed white envelope;
m) The chemists affixed their signatures on the sealed envelope and placed it in a separate brown envelope;
n) The subjects sources were made to affix their finger prints on their identification places and reference
forms.
The same procedure was adopted by the Forensic Chemists of the NBI in the taking of DNA samples from the
accused, Rufino Umanito at the New Bilibid Prison in the afternoon of February 8, 2008.
Mary Ann Aranas, the expert witness testified that at the NBI the sealed envelope was presented to Ms. Demelen
dela Cruz, the supervisor of the Forensic Chemistry Division to witness that the envelope containing the DNA
specimens was sealed as it reached the NBI. Photographs of the envelope in sealed form were taken prior to the
conduct of examination.
With the procedure adopted by the Forensic Chemist of the NBI, who is an expert and whose integrity and
dedication to her work is beyond reproach the manner how the biological samples were collected, how they were
handled and the chain of custody thereof were properly established the court is convinced that there is no possibility
of contamination of the DNA samples taken from the parties.
At the Forensic Laboratory of the National Bureau of Investigation, the envelopes containing the DNA samples were
opened and the specimens were subjected to sampling, extraction, amplification and analysis. Duplicate analysis
were made. The Forensic Chemist, Mary Ann Aranas caused the examination of the blood samples and the buccal
swabs were separately processed by Mrs. Demelen dela Cruz.
In order to arrive at a DNA profile, the forensic chemists adopted the following procedure: (1) Sampling which is the
cutting of a portion from the media (swabs and FTA paper); (2) then subjected the cut portions for extraction to
release the DNA; (3) After the DNA was released into the solution, it was further processed using the formarine
chain reaction to amplify the DNA samples for analysis of using the Powerplex 16 System, which allows the analysis
of 16 portions of the DNA samples. The Powerplex 16 System are reagent kits for forensic purposes; (3) After the
target, DNA is multiplied, the amplified products are analyzed using the genetic analyzer. The Powerplex 16 System
has 16 markers at the same time. It is highly reliable as it has already been validated for forensic use. It has also
another function which is to determine the gender of the DNA being examined.
Mary Ann Aranas, the Forensic Chemist, in her testimony explained that the DNA found in all cells of a human being
come in pairs except the mature red blood cells. These cells are rolled up into minute bodies called "chromosomes,"
which contain the DNA of a person. A human has 23 pairs of chromosomes. For each pair of chromosome, one was
found to have originated from the mother, the other must have came from the father. Using the Powerplex 16
System Results, the variable portions of the DNA called "loci," which were used as the basis for DNA analysis or
typing showed the following: under "loci" D3S1358, the genotype of the locus of [AAA] is 15, 16, the genotype of
[BBB] is 15, 16, one of the pair of alleles must have originated and the others from the father. The color for the allele

of the mother is red while the father is blue. On matching the allele which came from the mother was first
determined [AAA], has alleles of 15 or 16 but in the geno type of [BBB], 15 was colored blue because that is the
only allele which contain the genotype of the accused Rufino Umanito, the 16 originated from the mother, [AAA]. In
this marker [BBB] has a genotype of 15, 16, 16 is from the mother and 15 is from the father.
The whole process involved the determination which of those alleles originated from the mother and the rest would
entail looking on the genotype or the profile of the father to determine if they matched with those of the child.
In the analysis of the 16 loci by the Forensic Chemists, amel on the 13th row was not included because this is the
marker that determines the gender of the source of the loci. The pair XX represents a female and XY for a male.
Rufino Umanito has XY amel and [BBB] and [AAA] have XX amel. For matching paternity purposes only 15 loci
were examined. Of the 15 loci, there was a complete match between the alleles of the loci of [BBB] and Rufino
(Exhibits "A" and "B").
To ensure reliable results, the Standard Operating Procedure of the Forensic Chemistry Division of the NBI in
paternity cases is to use buccal swabs taken from the parties and blood as a back up source.
The said Standard Operating Procedure was adopted in the instant case.
As earlier mentioned, DNA samples consisted of buccal swabs and blood samples taken from the parties by the
forensic chemists who adopted reliable techniques and procedure in collecting and handling them to avoid
contamination. The method that was used to secure the samples were safe and reliable. The samples were taken
and handled by an expert, whose qualifications, integrity and dedication to her work is unquestionable, hence, the
possibility of substitution or manipulation is very remote.
The procedure adopted by the DNA section, Forensic Chemistry Division of the National Bureau of Investigation in
analyzing the samples was in accordance with the standards used in modern technology. The comparative analysis
of DNA prints of the accused Rufino Umanito and his alleged child is a simple process called parentage analysis
which was made easier with the use of a DNA machine called Genetic Analyzer. To ensure a reliable result, the NBI
secured two (2) DNA types of samples from the parties, the buccal swabs as primary source and blood as
secondary source. Both sources were separately processed and examined and thereafter a comparative analysis
was conducted which yielded the same result.
The National Bureau of Investigation DNA Section, Forensic Division is an accredited DNA testing laboratory in the
country which maintains a multimillion DNA analysis equipment for its scientific criminal investigation unit. It is
manned by qualified laboratory chemists and technicians who are experts in the field, like Mary Ann Aranas, the
expert witness in the instant case, who is a licensed chemists, has undergone training on the aspects of Forensic
Chemistry fro two (2) years before she was hired as forensic chemists of the NBI and has been continuously
attending training seminars, and workshops which are field related and who has handled more than 200 cases
involving DNA extraction or collection or profiling.
The accused did not object to the admission of Exhibits "A" and "B" inclusive of their sub-markings. He did not also
present evidence to controvert the results of the DNA analysis.
Section 6. A.M. No. 06-11-5-SC provides that: "If the value of the Probability of Paternity is 99.9% or higher, there
shall be a disputable presumption of paternity.
DNA analysis conducted by the National Bureau of Investigation Forensic Division on the buccal swabs and blood
stained on FTA paper taken from [AAA], [BBB] and Rufino Umanito y MillAres for DNA analysis to determine
whether or not Rufino Umanito y Millares is the biological father of [BBB] gave the following result:
"FINDINGS:

Deoxyribonuncleic acid analysis using the

Powerplex 16 System conducted on the
above-mentioned, specimens gave the
following profiles;
xxx
xxx

There is a COMPLETE MATCH in all the fifteen (15) loci tested between the alleles of Rufino Umanito y Millares and
[BBB].
REMARKS:

Based on the above findings, there is a

99.9999% Probability of Paternity that
Rufino Umanito y Millares is the biological
Father of [BBB]"

Disputable presumptions are satisfactory if uncontradicted but may be contradicted and overcome by other
evidence (Rule 131, Section 3, Rules of Court).
The disputable presumption that was established as a result of the DNA testing was not contradicted and overcome
by other evidence considering that the accused did not object to the admission of the results of the DNA testing
(Exhibits "A" and "B" inclusive of sub-markings) nor presented evidence to rebut the same.
WHEREFORE, premises considered, the trial court rules that based on the result of the DNA analysis conducted by
the National Bureau of Investigation, Forensic Division, RUFINO UMANITO y MILLARES is the biological father of
[BBB].10
Umanitos defense of alibi, together with his specific assertion that while he had courted AAA they were not
sweethearts, lead to a general theory on his part that he did not engage in sexual relations with the complainant.
The DNA testing has evinced a contrary conclusion, and that as testified to by AAA, Umanito had fathered the child
she gave birth to on 5 April 1990, nine months after the day she said she was raped by Umanito.
Still, Umanito filed a Motion to Withdraw Appeal dated 16 February 2009. By filing such motion, Umanito is deemed
to have acceded to the rulings of the RTC and the Court of Appeals finding him guilty of the crime of rape, and
sentencing him to suffer the penalty of reclusion perpetua and the indemnification of the private complainant in the
sum of P50,000.00. Given that the results of the Court-ordered DNA testing conforms with the conclusions of the
lower courts, and that no cause is presented for us to deviate from the penalties imposed below, the Court sees no
reason to deny Umanitos Motion to Withdraw Appeal. Consequently, the assailed Decision of the Court of Appeals
dated 15 February 2006 would otherwise be deemed final if the appeal is not withdrawn.
1avvphi1

WHEREFORE, the Motion to Withdraw Appeal dated 16 February 2009 is GRANTED. The instant case is now
CLOSED and TERMINATED.
SO ORDERED.
DANTE O. TINGA
Associate Justice
WE CONCUR:

Republic of the Philippines

SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 148220

June 15, 2005

ROSENDO HERRERA, petitioner,

vs.
ROSENDO ALBA, minor, represented by his mother ARMI A. ALBA, and HON. NIMFA CUESTA-VILCHES,
Presiding Judge, Branch 48, Regional Trial Court, Manila, respondents.
DECISION
CARPIO, J.:
The Case
This is a petition for review1 to set aside the Decision2 dated 29 November 2000 of the Court of Appeals ("appellate
court") in CA-G.R. SP No. 59766. The appellate court affirmed two Orders 3 issued by Branch 48 of the Regional
Trial Court of Manila ("trial court") in SP No. 98-88759. The Order dated 3 February 2000 directed Rosendo Herrera
("petitioner") to submit to deoxyribonucleic acid ("DNA") paternity testing, while the Order dated 8 June 2000 denied
petitioners motion for reconsideration.
The Facts
On 14 May 1998, then thirteen-year-old Rosendo Alba ("respondent"), represented by his mother Armi Alba, filed
before the trial court a petition for compulsory recognition, support and damages against petitioner. On 7 August
1998, petitioner filed his answer with counterclaim where he denied that he is the biological father of respondent.
Petitioner also denied physical contact with respondents mother.
Respondent filed a motion to direct the taking of DNA paternity testing to abbreviate the proceedings. To support the
motion, respondent presented the testimony of Saturnina C. Halos, Ph.D. When she testified, Dr. Halos was an
Associate Professor at De La Salle University where she taught Cell Biology. She was also head of the University of
the Philippines Natural Sciences Research Institute ("UP-NSRI"), a DNA analysis laboratory. She was a former
professor at the University of the Philippines in Diliman, Quezon City, where she developed the Molecular Biology
Program and taught Molecular Biology. In her testimony, Dr. Halos described the process for DNA paternity testing
and asserted that the test had an accuracy rate of 99.9999% in establishing paternity.4
Petitioner opposed DNA paternity testing and contended that it has not gained acceptability. Petitioner further
argued that DNA paternity testing violates his right against self-incrimination.
The Ruling of the Trial Court
In an Order dated 3 February 2000, the trial court granted respondents motion to conduct DNA paternity testing on
petitioner, respondent and Armi Alba. Thus:
In view of the foregoing, the motion of the petitioner is GRANTED and the relevant individuals, namely: the
petitioner, the minor child, and respondent are directed to undergo DNA paternity testing in a laboratory of their
common choice within a period of thirty (30) days from receipt of the Order, and to submit the results thereof within a

period of ninety (90) days from completion. The parties are further reminded of the hearing set on 24 February 2000
for the reception of other evidence in support of the petition.
IT IS SO ORDERED.5 (Emphasis in the original)
Petitioner filed a motion for reconsideration of the 3 February 2000 Order. He asserted that "under the present
circumstances, the DNA test [he] is compelled to take would be inconclusive, irrelevant and the coercive process to
obtain the requisite specimen, unconstitutional."
In an Order dated 8 June 2000, the trial court denied petitioners motion for reconsideration. 6
On 18 July 2000, petitioner filed before the appellate court a petition for certiorari under Rule 65 of the 1997 Rules of
Civil Procedure. He asserted that the trial court rendered the Orders dated 3 February 2000 and 8 June 2000 "in
excess of, or without jurisdiction and/or with grave abuse of discretion amounting to lack or excess of jurisdiction."
Petitioner further contended that there is "no appeal nor any [other] plain, adequate and speedy remedy in the
ordinary course of law." Petitioner maintained his previous objections to the taking of DNA paternity testing. He
submitted the following grounds to support his objection:
1. Public respondent misread and misapplied the ruling in Lim vs. Court of Appeals (270 SCRA 2).
2. Public respondent ruled to accept DNA test without considering the limitations on, and conditions
precedent for the admissibility of DNA testing and ignoring the serious constraints affecting the reliability of
the test as admitted by private respondents "expert" witness.
3. Subject Orders lack legal and factual support, with public respondent relying on scientific findings and
conclusions unfit for judicial notice and unsupported by experts in the field and scientific treatises.
4. Under the present circumstances the DNA testing petitioner [is] compelled to take will be inconclusive,
irrelevant and the coercive process to obtain the requisite specimen from the petitioner, unconstitutional. 7
The Ruling of the Court of Appeals
On 29 November 2000, the appellate court issued a decision denying the petition and affirming the questioned
Orders of the trial court. The appellate court stated that petitioner merely desires to correct the trial courts
evaluation of evidence. Thus, appeal is an available remedy for an error of judgment that the court may commit in
the exercise of its jurisdiction. The appellate court also stated that the proposed DNA paternity testing does not
violate his right against self-incrimination because the right applies only to testimonial compulsion. Finally, the
appellate court pointed out that petitioner can still refute a possible adverse result of the DNA paternity testing. The
dispositive portion of the appellate courts decision reads:
WHEREFORE, foregoing premises considered, the Petition is hereby DENIED DUE COURSE, and ordered
dismissed, and the challenged orders of the Trial Court AFFIRMED, with costs to Petitioner.
SO ORDERED.8
Petitioner moved for reconsideration, which the appellate court denied in its Resolution dated 23 May 2001. 9
Issues
Petitioner raises the issue of whether a DNA test is a valid probative tool in this jurisdiction to determine filiation.
Petitioner asks for the conditions under which DNA technology may be integrated into our judicial system and the
prerequisites for the admissibility of DNA test results in a paternity suit. 10
Petitioner further submits that the appellate court gravely abused its discretion when it authorized the trial court "to
embark in [sic] a new procedure xxx to determine filiation despite the absence of legislation to ensure its reliability
and integrity, want of official recognition as made clear in Lim vs. Court of Appeals and the presence of technical
and legal constraints in respect of [sic] its implementation." 11 Petitioner maintains that the proposed DNA paternity
testing violates his right against self-incrimination.12
The Ruling of the Court
The petition has no merit.

Before discussing the issues on DNA paternity testing, we deem it appropriate to give an overview of a paternity suit
and apply it to the facts of this case. We shall consider the requirements of the Family Code and of the Rules of
Evidence to establish paternity and filiation.
An Overview of the Paternity and Filiation Suit
Filiation proceedings are usually filed not just to adjudicate paternity but also to secure a legal right associated with
paternity, such as citizenship,13 support (as in the present case), or inheritance. The burden of proving paternity is on
the person who alleges that the putative father is the biological father of the child. There are four significant
procedural aspects of a traditional paternity action which parties have to face: a prima facie case, affirmative
defenses, presumption of legitimacy, and physical resemblance between the putative father and child. 14
A prima facie case exists if a woman declares that she had sexual relations with the putative father. In our
jurisdiction, corroborative proof is required to carry the burden forward and shift it to the putative father.15
There are two affirmative defenses available to the putative father. The putative father may show incapability of
sexual relations with the mother, because of either physical absence or impotency.16 The putative father may also
show that the mother had sexual relations with other men at the time of conception.
A child born to a husband and wife during a valid marriage is presumed legitimate. 17 The childs legitimacy may be
impugned only under the strict standards provided by law.18
Finally, physical resemblance between the putative father and child may be offered as part of evidence of paternity.
Resemblance is a trial technique unique to a paternity proceeding. However, although likeness is a function of
heredity, there is no mathematical formula that could quantify how much a child must or must not look like his
biological father.19 This kind of evidence appeals to the emotions of the trier of fact.
In the present case, the trial court encountered three of the four aspects. Armi Alba, respondents mother, put
forward a prima facie case when she asserted that petitioner is respondents biological father. Aware that her
assertion is not enough to convince the trial court, she offered corroborative proof in the form of letters and pictures.
Petitioner, on the other hand, denied Armi Albas assertion. He denied ever having sexual relations with Armi Alba
and stated that respondent is Armi Albas child with another man. Armi Alba countered petitioners denial by
submitting pictures of respondent and petitioner side by side, to show how much they resemble each other.
Paternity and filiation disputes can easily become credibility contests. We now look to the law, rules, and governing
jurisprudence to help us determine what evidence of incriminating acts on paternity and filiation are allowed in this
jurisdiction.
Laws, Rules, and Jurisprudence Establishing Filiation
The relevant provisions of the Family Code provide as follows:
ART. 175. Illegitimate children may establish their illegitimate filiation in the same way and on the same evidence as
legitimate children.
xxx
ART. 172. The filiation of legitimate children is established by any of the following:
(1) The record of birth appearing in the civil register or a final judgment; or
(2) An admission of legitimate filiation in a public document or a private handwritten instrument and signed
by the parent concerned.
In the absence of the foregoing evidence, the legitimate filiation shall be proved by:
(1) The open and continuous possession of the status of a legitimate child; or
(2) Any other means allowed by the Rules of Court and special laws.
The Rules on Evidence include provisions on pedigree. The relevant sections of Rule 130 provide:

SEC. 39. Act or declaration about pedigree.The act or declaration of a person deceased, or unable to testify, in
respect to the pedigree of another person related to him by birth or marriage, may be received in evidence where it
occurred before the controversy, and the relationship between the two persons is shown by evidence other than
such act or declaration. The word "pedigree" includes relationship, family genealogy, birth, marriage, death, the
dates when and the places where these facts occurred, and the names of the relatives. It embraces also facts of
family history intimately connected with pedigree.
SEC. 40. Family reputation or tradition regarding pedigree.The reputation or tradition existing in a family previous
to the controversy, in respect to the pedigree of any one of its members, may be received in evidence if the witness
testifying thereon be also a member of the family, either by consanguinity or affinity. Entries in family bibles or other
family books or charts, engraving on rings, family portraits and the like, may be received as evidence of pedigree.
This Courts rulings further specify what incriminating acts are acceptable as evidence to establish filiation. In Pe
Lim v. CA,20 a case petitioner often cites, we stated that the issue of paternity still has to be resolved by such
conventional evidence as the relevant incriminating verbal and written acts by the putative father. Under Article 278
of the New Civil Code, voluntary recognition by a parent shall be made in the record of birth, a will, a statement
before a court of record, or in any authentic writing. To be effective, the claim of filiation must be made by the
putative father himself and the writing must be the writing of the putative father.21 A notarial agreement to support a
child whose filiation is admitted by the putative father was considered acceptable evidence. 22 Letters to the mother
vowing to be a good father to the child and pictures of the putative father cuddling the child on various occasions,
together with the certificate of live birth, proved filiation.23 However, a student permanent record, a written consent to
a fathers operation, or a marriage contract where the putative father gave consent, cannot be taken as authentic
writing.24 Standing alone, neither a certificate of baptism25 nor family pictures26 are sufficient to establish filiation.
So far, the laws, rules, and jurisprudence seemingly limit evidence of paternity and filiation to incriminating acts
alone. However, advances in science show that sources of evidence of paternity and filiation need not be limited to
incriminating acts. There is now almost universal scientific agreement that blood grouping tests are conclusive on
non-paternity, although inconclusive on paternity.27
In Co Tao v. Court of Appeals,28 the result of the blood grouping test showed that the putative father was a
"possible father" of the child. Paternity was imputed to the putative father after the possibility of paternity was proven
on presentation during trial of facts and circumstances other than the results of the blood grouping test.
In Jao v. Court of Appeals,29 the child, the mother, and the putative father agreed to submit themselves to a blood
grouping test. The National Bureau of Investigation ("NBI") conducted the test, which indicated that the child could
not have been the possible offspring of the mother and the putative father. We held that the result of the blood
grouping test was conclusive on the non-paternity of the putative father.
The present case asks us to go one step further. We are now asked whether DNA analysis may be admitted as
evidence to prove paternity.
DNA Analysis as Evidence
DNA is the fundamental building block of a persons entire genetic make-up. DNA is found in all human cells and is
the same in every cell of the same person. Genetic identity is unique. Hence, a persons DNA profile can determine
his identity.30
DNA analysis is a procedure in which DNA extracted from a biological sample obtained from an individual is
examined. The DNA is processed to generate a pattern, or a DNA profile, for the individual from whom the sample is
taken. This DNA profile is unique for each person, except for identical twins. 31 We quote relevant portions of the trial
courts 3 February 2000 Order with approval:
Everyone is born with a distinct genetic blueprint called DNA (deoxyribonucleic acid). It is exclusive to an
individual (except in the rare occurrence of identical twins that share a single, fertilized egg), and DNA is unchanging
throughout life. Being a component of every cell in the human body, the DNA of an individuals blood is the very DNA
in his or her skin cells, hair follicles, muscles, semen, samples from buccal swabs, saliva, or other body parts.
The chemical structure of DNA has four bases. They are known as A (adenine), G (guanine), C (cystosine)
and T(thymine). The order in which the four bases appear in an individuals DNA determines his or her physical
makeup. And since DNA is a double-stranded molecule, it is composed of two specific paired bases, A-T or TAand G-C or C-G. These are called "genes."

Every gene has a certain number of the above base pairs distributed in a particular sequence. This gives a person
his or her genetic code. Somewhere in the DNA framework, nonetheless, are sections that differ. They are known
as "polymorphic loci," which are the areas analyzed in DNA typing (profiling, tests, fingerprinting, or analysis/DNA
fingerprinting/genetic tests or fingerprinting). In other words, DNA typing simply means determining the "polymorphic
loci."
How is DNA typing performed? From a DNA sample obtained or extracted, a molecular biologist may proceed to
analyze it in several ways. There are five (5) techniques to conduct DNA typing. They are: the RFLP (restriction
fragment length polymorphism); "reverse dot blot" or HLA DQ a/Pm loci which was used in 287 cases that were
admitted as evidence by 37 courts in the U.S. as of November 1994; mtDNA process; VNTR (variable number
tandem repeats); and the most recent which is known as the PCR-([polymerase] chain reaction) based STR (short
tandem repeats) method which, as of 1996, was availed of by most forensic laboratories in the world. PCR is the
process of replicating or copying DNA in an evidence sample a million times through repeated cycling of a reaction
involving the so-called DNA polymerize enzyme. STR, on the other hand, takes measurements in 13 separate
places and can match two (2) samples with a reported theoretical error rate of less than one (1) in a trillion.
Just like in fingerprint analysis, in DNA typing, "matches" are determined. To illustrate, when DNA or fingerprint tests
are done to identify a suspect in a criminal case, the evidence collected from the crime scene is compared with
the "known" print. If a substantial amount of the identifying features are the same, the DNA or fingerprint is deemed
to be a match. But then, even if only one feature of the DNA or fingerprint is different, it is deemed not to have
come from the suspect.
As earlier stated, certain regions of human DNA show variations between people. In each of these regions, a person
possesses two genetic types called "allele", one inherited from each parent. In [a] paternity test, the forensic
scientist looks at a number of these variable regions in an individual to produce a DNA profile. Comparing next the
DNA profiles of the mother and child, it is possible to determine which half of the childs DNA was inherited from the
mother. The other half must have been inherited from the biological father. The alleged fathers profile is then
examined to ascertain whether he has the DNA types in his profile, which match the paternal types in the child. If the
mans DNA types do not match that of the child, the man is excluded as the father. If the DNA types match, then he
is not excluded as the father.32 (Emphasis in the original)
Although the term "DNA testing" was mentioned in the 1995 case of People v. Teehankee, Jr.,33 it was only in the
2001 case of Tijing v. Court of Appeals34 that more than a passing mention was given to DNA analysis.
InTijing, we issued a writ of habeas corpus against respondent who abducted petitioners youngest son. Testimonial
and documentary evidence and physical resemblance were used to establish parentage. However, we observed
that:
Parentage will still be resolved using conventional methods unless we adopt the modern and scientific ways
available. Fortunately, we have now the facility and expertise in using DNA test for identification and parentage
testing. The University of the Philippines Natural Science Research Institute (UP-NSRI) DNA Analysis Laboratory
has now the capability to conduct DNA typing using short tandem repeat (STR) analysis. xxx For it was said, that
courts should apply the results of science when completely obtained in aid of situations presented, since to reject
said result is to deny progress. Though it is not necessary in this case to resort to DNA testing, in [the] future it
would be useful to all concerned in the prompt resolution of parentage and identity issues.
Admissibility of DNA Analysis as Evidence
The 2002 case of People v. Vallejo35 discussed DNA analysis as evidence. This may be considered a 180 degree
turn from the Courts wary attitude towards DNA testing in the 1997 Pe Lim case,36 where we stated that "DNA,
being a relatively new science, xxx has not yet been accorded official recognition by our courts." In Vallejo, the DNA
profile from the vaginal swabs taken from the rape victim matched the accuseds DNA profile. We affirmed the
accuseds conviction of rape with homicide and sentenced him to death. We declared:
In assessing the probative value of DNA evidence, therefore, courts should consider, among other things, the
following data: how the samples were collected, how they were handled, the possibility of contamination of the
samples, the procedure followed in analyzing the samples, whether the proper standards and procedures were
followed in conducting the tests, and the qualification of the analyst who conducted the tests. 37
Vallejo discussed the probative value, not admissibility, of DNA evidence. By 2002, there was no longer any
question on the validity of the use of DNA analysis as evidence. The Court moved from the issue of according
"official recognition" to DNA analysis as evidence to the issue of observance of procedures in conducting DNA
analysis.

In 2004, there were two other cases that had a significant impact on jurisprudence on DNA testing: People v.
Yatar38 and In re: The Writ of Habeas Corpus for Reynaldo de Villa.39 In Yatar, a match existed between the DNA
profile of the semen found in the victim and the DNA profile of the blood sample given by appellant in open court.
The Court, following Vallejos footsteps, affirmed the conviction of appellant because the physical evidence,
corroborated by circumstantial evidence, showed appellant guilty of rape with homicide. In De Villa, the convictpetitioner presented DNA test results to prove that he is not the father of the child conceived at the time of
commission of the rape. The Court ruled that a difference between the DNA profile of the convict-petitioner and the
DNA profile of the victims child does not preclude the convict-petitioners commission of rape.
In the present case, the various pleadings filed by petitioner and respondent refer to two United States cases to
support their respective positions on the admissibility of DNA analysis as evidence: Frye v. U.S.40 and Daubert v.
Merrell Dow Pharmaceuticals.41 In Frye v. U.S., the trial court convicted Frye of murder. Frye appealed his
conviction to the Supreme Court of the District of Columbia. During trial, Fryes counsel offered an expert witness to
testify on the result of a systolic blood pressure deception test42 made on defendant. The state Supreme Court
affirmed Fryes conviction and ruled that "the systolic blood pressure deception test has not yet gained such
standing and scientific recognition among physiological and psychological authorities as would justify the courts in
admitting expert testimony deduced from the discovery, development, and experiments thus far made."
The Fryestandard of general acceptance states as follows:
Just when a scientific principle or discovery crosses the line between the experimental and demonstrable stages is
difficult to define. Somewhere in this twilight zone the evidential force of the principle must be recognized, and while
courts will go a long way in admitting expert testimony deduced from a well recognized scientific principle or
discovery, the thing from which the deduction is made must be sufficiently established to have gained general
acceptance in the particular field in which it belongs.
In 1989, State v. Schwartz43 modified the Frye standard. Schwartz was charged with stabbing and murder.
Bloodstained articles and blood samples of the accused and the victim were submitted for DNA testing to a
government facility and a private facility. The prosecution introduced the private testing facilitys results over
Schwartzs objection. One of the issues brought before the state Supreme Court included the admissibility of DNA
test results in a criminal proceeding. The state Supreme Court concluded that:
While we agree with the trial court that forensic DNA typing has gained general acceptance in the scientific
community, we hold that admissibility of specific test results in a particular case hinges on the laboratorys
compliance with appropriate standards and controls, and the availability of their testing data and results. 44
In 1993, Daubert v. Merrell Dow Pharmaceuticals, Inc.45 further modified the FryeSchwartz standard.Daubert was a product liability case where both the trial and appellate courts denied the
admissibility of an experts testimony because it failed to meet the Frye standard of "general acceptance." The
United States Supreme Court ruled that in federal trials, the Federal Rules of Evidence have superseded
the Frye standard. Rule 401 defines relevant evidence, while Rule 402 provides the foundation for admissibility of
evidence. Thus:
Rule 401. "Relevant evidence" is defined as that which has any "tendency to make the existence of any fact that is
of consequence to the determination of the action more probable or less probable than it would be without the
evidence.
Rule 402. All relevant evidence is admissible, except as otherwise provided by the Constitution of the United States,
by Act of Congress, by these rules, or by other rules prescribed by the Supreme Court pursuant to statutory
authority. Evidence which is not relevant is not admissible.
Rule 702 of the Federal Rules of Evidence governing expert testimony provides:
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to
determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education,
may testify thereto in the form of an opinion or otherwise.
Daubert cautions that departure from the Frye standard of general acceptance does not mean that the Federal
Rules do not place limits on the admissibility of scientific evidence. Rather, the judge must ensure that the
testimonys reasoning or method is scientifically valid and is relevant to the issue. Admissibility would depend on
factors such as (1) whether the theory or technique can be or has been tested; (2) whether the theory or technique
has been subjected to peer review and publication; (3) the known or potential rate of error; (4) the existence and

maintenance of standards controlling the techniques operation; and (5) whether the theory or technique is generally
accepted in the scientific community.
Another product liability case, Kumho Tires Co. v. Carmichael,46 further modified the Daubert standard. This led to
the amendment of Rule 702 in 2000 and which now reads as follows:
If scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to
determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education,
may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data,
(2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles
and methods reliably to the facts of the case.
We now determine the applicability in this jurisdiction of these American cases. Obviously, neither the FryeSchwartz standard nor the Daubert-Kumho standard is controlling in the Philippines.47 At best, American
jurisprudence merely has a persuasive effect on our decisions. Here, evidence is admissible when it is relevant to
the fact in issue and is not otherwise excluded by statute or the Rules of Court. 48 Evidence is relevant when it has
such a relation to the fact in issue as to induce belief in its existence or non-existence. 49 Section 49 of Rule 130,
which governs the admissibility of expert testimony, provides as follows:
The opinion of a witness on a matter requiring special knowledge, skill, experience or training which he is shown to
possess may be received in evidence.
This Rule does not pose any legal obstacle to the admissibility of DNA analysis as evidence. Indeed, even evidence
on collateral matters is allowed "when it tends in any reasonable degree to establish the probability or improbability
of the fact in issue."50
Indeed, it would have been convenient to merely refer petitioner to our decisions in Tijing, Vallejo and Yatar to
illustrate that DNA analysis is admissible as evidence. In our jurisdiction, the restrictive tests for admissibility
established by Frye-Schwartz and Daubert-Kumho go into the weight of the evidence.
Probative Value of DNA Analysis as Evidence
Despite our relatively liberal rules on admissibility, trial courts should be cautious in giving credence to DNA analysis
as evidence. We reiterate our statement in Vallejo:
In assessing the probative value of DNA evidence, therefore, courts should consider, among other things, the
following data: how the samples were collected, how they were handled, the possibility of contamination of the
samples, the procedure followed in analyzing the samples, whether the proper standards and procedures were
followed in conducting the tests, and the qualification of the analyst who conducted the tests. 51]
We also repeat the trial courts explanation of DNA analysis used in paternity cases:
In [a] paternity test, the forensic scientist looks at a number of these variable regions in an individual to produce a
DNA profile. Comparing next the DNA profiles of the mother and child, it is possible to determine which half of the
childs DNA was inherited from the mother. The other half must have been inherited from the biological father. The
alleged fathers profile is then examined to ascertain whether he has the DNA types in his profile, which match the
paternal types in the child. If the mans DNA types do not match that of the child, the man is excludedas the father.
If the DNA types match, then he is not excluded as the father.52
It is not enough to state that the childs DNA profile matches that of the putative father. A complete match between
the DNA profile of the child and the DNA profile of the putative father does not necessarily establish paternity. For
this reason, following the highest standard adopted in an American jurisdiction, 53 trial courts should require at least
99.9% as a minimum value of the Probability of Paternity ("W") prior to a paternity inclusion. W is a numerical
estimate for the likelihood of paternity of a putative father compared to the probability of a random match of two
unrelated individuals. An appropriate reference population database, such as the Philippine population database, is
required to compute for W. Due to the probabilistic nature of paternity inclusions, W will never equal to 100%.
However, the accuracy of W estimates is higher when the putative father, mother and child are subjected to DNA
analysis compared to those conducted between the putative father and child alone. 54
DNA analysis that excludes the putative father from paternity should be conclusive proof of non-paternity. If the
value of W is less than 99.9%, the results of the DNA analysis should be considered as corroborative evidence. If

the value of W is 99.9% or higher, then there is refutable presumption of paternity.55 This refutable presumption of
paternity should be subjected to the Vallejo standards.
Right Against Self-Incrimination
Section 17, Article 3 of the 1987 Constitution provides that "no person shall be compelled to be a witness against
himself." Petitioner asserts that obtaining samples from him for DNA testing violates his right against selfincrimination. Petitioner ignores our earlier pronouncements that the privilege is applicable only to testimonial
evidence. Again, we quote relevant portions of the trial courts 3 February 2000 Order with approval:
Obtaining DNA samples from an accused in a criminal case or from the respondent in a paternity case, contrary to
the belief of respondent in this action, will not violate the right against self-incrimination. This privilege applies only to
evidence that is "communicative" in essence taken under duress (People vs. Olvis, 154 SCRA 513, 1987). The
Supreme Court has ruled that the right against self-incrimination is just a prohibition on the use of physical or moral
compulsion to extort communication (testimonial evidence) from a defendant, not an exclusion of evidence taken
from his body when it may be material. As such, a defendant can be required to submit to a test to extract virus from
his body (as cited in People vs. Olvis, Supra); the substance emitting from the body of the accused was received as
evidence for acts of lasciviousness (US vs. Tan Teng, 23 Phil. 145); morphine forced out of the mouth was received
as proof (US vs. Ong Siu Hong, 36 Phil. 735); an order by the judge for the witness to put on pair of pants for size
was allowed (People vs. Otadora, 86 Phil. 244); and the court can compel a woman accused of adultery to submit
for pregnancy test (Villaflor vs. Summers, 41 Phil. 62), since the gist of the privilege is the restriction on "testimonial
compulsion."56
The policy of the Family Code to liberalize the rule on the investigation of the paternity and filiation of children,
especially of illegitimate children, is without prejudice to the right of the putative parent to claim his or her own
defenses.57 Where the evidence to aid this investigation is obtainable through the facilities of modern science and
technology, such evidence should be considered subject to the limits established by the law, rules, and
jurisprudence.
WHEREFORE, we DISMISS the petition. We AFFIRM the Decision of the Court of Appeals dated 29 November
2000 in CA-G.R. SP No. 59766. We also AFFIRM the Orders dated 3 February 2000 and 8 June 2000 issued by
Branch 48 of the Regional Trial Court of Manila in Civil Case No. SP-98-88759.
SO ORDERED.
Davide, Jr., C.J., (Chairman), Quisumbing, Ynares-Santiago, and Azcuna, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 190710

June 6, 2011

JESSE U. LUCAS, Petitioner,

vs.
JESUS S. LUCAS, Respondent.
DECISION
NACHURA, J.:
Is a prima facie showing necessary before a court can issue a DNA testing order? In this petition for review on
certiorari, we address this question to guide the Bench and the Bar in dealing with a relatively new evidentiary tool.
Assailed in this petition are the Court of Appeals (CA) Decision1 dated September 25, 2009 and Resolution dated
December 17, 2009.
The antecedents of the case are, as follows:
On July 26, 2007, petitioner, Jesse U. Lucas, filed a Petition to Establish Illegitimate Filiation (with Motion for the
Submission of Parties to DNA Testing)2 before the Regional Trial Court (RTC), Branch 72, Valenzuela City. Petitioner
narrated that, sometime in 1967, his mother, Elsie Uy (Elsie), migrated to Manila from Davao and stayed with a
certain "Ate Belen (Belen)" who worked in a prominent nightspot in Manila. Elsie would oftentimes accompany Belen
to work. On one occasion, Elsie got acquainted with respondent, Jesus S. Lucas, at Belens workplace, and an
intimate relationship developed between the two. Elsie eventually got pregnant and, on March 11, 1969, she gave
birth to petitioner, Jesse U. Lucas. The name of petitioners father was not stated in petitioners certificate of live
birth. However, Elsie later on told petitioner that his father is respondent. On August 1, 1969, petitioner was baptized
at San Isidro Parish, Taft Avenue, Pasay City. Respondent allegedly extended financial support to Elsie and
petitioner for a period of about two years. When the relationship of Elsie and respondent ended, Elsie refused to
accept respondents offer of support and decided to raise petitioner on her own. While petitioner was growing up,
Elsie made several attempts to introduce petitioner to respondent, but all attempts were in vain.
Attached to the petition were the following: (a) petitioners certificate of live birth; (b) petitioners baptismal certificate;
(c) petitioners college diploma, showing that he graduated from Saint Louis University in Baguio City with a degree
in Psychology; (d) his Certificate of Graduation from the same school; (e) Certificate of Recognition from the
University of the Philippines, College of Music; and (f) clippings of several articles from different newspapers about
petitioner, as a musical prodigy.
Respondent was not served with a copy of the petition. Nonetheless, respondent learned of the petition to establish
filiation. His counsel therefore went to the trial court on August 29, 2007 and obtained a copy of the petition.
Petitioner filed with the RTC a Very Urgent Motion to Try and Hear the Case. Hence, on September 3, 2007, the
RTC, finding the petition to be sufficient in form and substance, issued the Order 3 setting the case for hearing and
urging anyone who has any objection to the petition to file his opposition. The court also directed that the Order be
published once a week for three consecutive weeks in any newspaper of general circulation in the Philippines, and
that the Solicitor General be furnished with copies of the Order and the petition in order that he may appear and
represent the State in the case.
On September 4, 2007, unaware of the issuance of the September 3, 2007 Order, respondent filed a Special
Appearance and Comment. He manifested inter alia that: (1) he did not receive the summons and a copy of the
petition; (2) the petition was adversarial in nature and therefore summons should be served on him as respondent;
(3) should the court agree that summons was required, he was waiving service of summons and making a voluntary
appearance; and (4) notice by publication of the petition and the hearing was improper because of the confidentiality
of the subject matter.4
On September 14, 2007, respondent also filed a Manifestation and Comment on Petitioners Very Urgent Motion to
Try and Hear the Case. Respondent reiterated that the petition for recognition is adversarial in nature; hence, he
should be served with summons.
After learning of the September 3, 2007 Order, respondent filed a motion for reconsideration. 5 Respondent averred
that the petition was not in due form and substance because petitioner could not have personally known the matters
that were alleged therein. He argued that DNA testing cannot be had on the basis of a mere allegation pointing to
respondent as petitioners father. Moreover, jurisprudence is still unsettled on the acceptability of DNA evidence.
On July 30, 2008, the RTC, acting on respondents motion for reconsideration, issued an Order 6 dismissing the
case. The court remarked that, based on the case of Herrera v. Alba, 7 there are four significant procedural aspects

of a traditional paternity action which the parties have to face: a prima facie case, affirmative defenses, presumption
of legitimacy, and physical resemblance between the putative father and the child. The court opined that petitioner
must first establish these four procedural aspects before he can present evidence of paternity and filiation, which
may include incriminating acts or scientific evidence like blood group test and DNA test results. The court observed
that the petition did not show that these procedural aspects were present. Petitioner failed to establish a prima facie
case considering that (a) his mother did not personally declare that she had sexual relations with respondent, and
petitioners statement as to what his mother told him about his father was clearly hearsay; (b) the certificate of live
birth was not signed by respondent; and (c) although petitioner used the surname of respondent, there was no
allegation that he was treated as the child of respondent by the latter or his family. The court opined that, having
failed to establish a prima facie case, respondent had no obligation to present any affirmative defenses. The
dispositive portion of the said Order therefore reads:
WHEREFORE, for failure of the petitioner to establish compliance with the four procedural aspects of a traditional
paternity action in his petition, his motion for the submission of parties to DNA testing to establish paternity and
filiation is hereby denied. This case is DISMISSED without prejudice.
SO ORDERED.8
Petitioner seasonably filed a motion for reconsideration to the Order dated July 30, 2008, which the RTC resolved in
his favor. Thus, on October 20, 2008, it issued the Order 9 setting aside the courts previous order, thus:
WHEREFORE, in view of the foregoing, the Order dated July 30, 2008 is hereby reconsidered and set aside.
Let the Petition (with Motion for the Submission of Parties to DNA Testing) be set for hearing on January 22, 2009 at
8:30 in the morning.
xxxx
SO ORDERED.10
This time, the RTC held that the ruling on the grounds relied upon by petitioner for filing the petition is premature
considering that a full-blown trial has not yet taken place. The court stressed that the petition was sufficient in form
and substance. It was verified, it included a certification against forum shopping, and it contained a plain, concise,
and direct statement of the ultimate facts on which petitioner relies on for his claim, in accordance with Section 1,
Rule 8 of the Rules of Court. The court remarked that the allegation that the statements in the petition were not of
petitioners personal knowledge is a matter of evidence. The court also dismissed respondents arguments that
there is no basis for the taking of DNA test, and that jurisprudence is still unsettled on the acceptability of DNA
evidence. It noted that the new Rule on DNA Evidence11 allows the conduct of DNA testing, whether at the courts
instance or upon application of any person who has legal interest in the matter in litigation.
Respondent filed a Motion for Reconsideration of Order dated October 20, 2008 and for Dismissal of
Petition,12reiterating that (a) the petition was not in due form and substance as no defendant was named in the title,
and all the basic allegations were hearsay; and (b) there was no prima facie case, which made the petition
susceptible to dismissal.
The RTC denied the motion in the Order dated January 19, 2009, and rescheduled the hearing. 13
Aggrieved, respondent filed a petition for certiorari with the CA, questioning the Orders dated October 20, 2008 and
January 19, 2009.
On September 25, 2009, the CA decided the petition for certiorari in favor of respondent, thus:
WHEREFORE, the instant petition for certiorari is hereby GRANTED for being meritorious. The assailed Orders
dated October 20, 2008 and January 19, 2009 both issued by the Regional Trial Court, Branch 172 of Valenzuela
City in SP. Proceeding Case No. 30-V-07 are REVERSED and SET ASIDE. Accordingly, the case docketed as SP.
Proceeding Case No. 30-V-07 is DISMISSED.14
The CA held that the RTC did not acquire jurisdiction over the person of respondent, as no summons had been
served on him. Respondents special appearance could not be considered as voluntary appearance because it was
filed only for the purpose of questioning the jurisdiction of the court over respondent. Although respondent likewise
questioned the courts jurisdiction over the subject matter of the petition, the same is not equivalent to a waiver of
his right to object to the jurisdiction of the court over his person.

The CA remarked that petitioner filed the petition to establish illegitimate filiation, specifically seeking a DNA testing
order to abbreviate the proceedings. It noted that petitioner failed to show that the four significant procedural
aspects of a traditional paternity action had been met. The CA further held that a DNA testing should not be allowed
when the petitioner has failed to establish a prima facie case, thus:
While the tenor [of Section 4, Rule on DNA Evidence] appears to be absolute, the rule could not really have been
intended to trample on the substantive rights of the parties. It could have not meant to be an instrument to promote
disorder, harassment, or extortion. It could have not been intended to legalize unwarranted expedition to fish for
evidence. Such will be the situation in this particular case if a court may at any time order the taking of a DNA test. If
the DNA test in compulsory recognition cases is immediately available to the petitioner/complainant without
requiring first the presentation of corroborative proof, then a dire and absurd rule would result. Such will encourage
and promote harassment and extortion.
xxxx
At the risk of being repetitious, the Court would like to stress that it sees the danger of allowing an absolute DNA
testing to a compulsory recognition test even if the plaintiff/petitioner failed to establish prima facie proof. x x x If at
anytime, motu proprio and without pre-conditions, the court can indeed order the taking of DNA test in compulsory
recognition cases, then the prominent and well-to-do members of our society will be easy prey for opportunists and
extortionists. For no cause at all, or even for [sic] casual sexual indiscretions in their younger years could be used as
a means to harass them. Unscrupulous women, unsure of the paternity of their children may just be taking the
chances-just in case-by pointing to a sexual partner in a long past one-time encounter. Indeed an absolute and
unconditional taking of DNA test for compulsory recognition case opens wide the opportunities for extortionist to
prey on victims who have no stomach for scandal.15
Petitioner moved for reconsideration. On December 17, 2009, the CA denied the motion for lack of merit. 16
In this petition for review on certiorari, petitioner raises the following issues:
I.
WHETHER OR NOT THE COURT OF APPEALS ERRED WHEN IT RESOLVED THE ISSUE OF LACK OF
JURISDICTION OVER THE PERSON OF HEREIN RESPONDENT ALBEIT THE SAME WAS NEVER
RAISED IN THE PETITION FOR CERTIORARI.
I.A
WHETHER OR NOT THE COURT OF APPEALS ERRED WHEN IT RULED THAT JURISDICTION
WAS NOT ACQUIRED OVER THE PERSON OF THE RESPONDENT.
I.B
WHETHER OR NOT THE COURT OF APPEALS ERRED WHEN IT FAILED TO REALIZE THAT
THE RESPONDENT HAD ALREADY SUBMITTED VOLUNTARILY TO THE JURISDICTION OF
THE COURT A QUO.
I.C
WHETHER OR NOT THE COURT OF APPEALS ERRED WHEN IT ESSENTIALLY RULED THAT
THE TITLE OF A PLEADING, RATHER THAN ITS BODY, IS CONTROLLING.
II.
WHETHER OR NOT THE COURT OF APPEALS ERRED WHEN IT ORDERED THE DISMISSAL OF THE
PETITION BY REASON OF THE MOTION (FILED BY THE PETITIONER BEFORE THE COURT A QUO)
FOR THE CONDUCT OF DNA TESTING.
II.A
WHETHER OR NOT THE COURT OF APPEALS ERRED WHEN IT ESSENTIALLY RULED THAT DNA
TESTING CAN ONLY BE ORDERED AFTER THE PETITIONER ESTABLISHES PRIMA FACIE PROOF OF
FILIATION.

III.
WHETHER OR NOT THE COURT OF APPEALS ERRED WITH ITS MISPLACED RELIANCE ON THE
CASE OF HERRERA VS. ALBA,
ESPECIALLY AS REGARDS THE FOUR SIGNIFICANT PROCEDURAL ASPECTS OF A TRADITIONAL
PATERNITY ACTION.17
Petitioner contends that respondent never raised as issue in his petition for certiorari the courts lack of jurisdiction
over his person. Hence, the CA had no legal basis to discuss the same, because issues not raised are deemed
waived or abandoned. At any rate, respondent had already voluntarily submitted to the jurisdiction of the trial court
by his filing of several motions asking for affirmative relief, such as the (a) Motion for Reconsideration of the Order
dated September 3, 2007; (b) Ex Parte Motion to Resolve Motion for Reconsideration of the Order dated November
6, 2007; and (c) Motion for Reconsideration of the Order dated October 20, 2008 and for Dismissal of Petition.
Petitioner points out that respondent even expressly admitted that he has waived his right to summons in his
Manifestation and Comment on Petitioners Very Urgent Motion to Try and Hear the Case. Hence, the issue is
already moot and academic.
Petitioner argues that the case was adversarial in nature. Although the caption of the petition does not state
respondents name, the body of the petition clearly indicates his name and his known address. He maintains that the
body of the petition is controlling and not the caption.
Finally, petitioner asserts that the motion for DNA testing should not be a reason for the dismissal of the petition
since it is not a legal ground for the dismissal of cases. If the CA entertained any doubt as to the propriety of DNA
testing, it should have simply denied the motion. 18 Petitioner points out that Section 4 of the Rule on DNA Evidence
does not require that there must be a prior proof of filiation before DNA testing can be ordered. He adds that the CA
erroneously relied on the four significant procedural aspects of a paternity case, as enunciated in Herrera v.
Alba.19 Petitioner avers that these procedural aspects are not applicable at this point of the proceedings because
they are matters of evidence that should be taken up during the trial. 20
In his Comment, respondent supports the CAs ruling on most issues raised in the petition for certiorari and merely
reiterates his previous arguments. However, on the issue of lack of jurisdiction, respondent counters that, contrary to
petitioners assertion, he raised the issue before the CA in relation to his claim that the petition was not in due form
and substance. Respondent denies that he waived his right to the service of summons. He insists that the alleged
waiver and voluntary appearance was conditional upon a finding by the court that summons is indeed required. He
avers that the assertion of affirmative defenses, aside from lack of jurisdiction over the person of the defendant,
cannot be considered as waiver of the defense of lack of jurisdiction over such person.
The petition is meritorious.
Primarily, we emphasize that the assailed Orders of the trial court were orders denying respondents motion to
dismiss the petition for illegitimate filiation. An order denying a motion to dismiss is an interlocutory order which
neither terminates nor finally disposes of a case, as it leaves something to be done by the court before the case is
finally decided on the merits. As such, the general rule is that the denial of a motion to dismiss cannot be questioned
in a special civil action for certiorari, which is a remedy designed to correct errors of jurisdiction and not errors of
judgment. Neither can a denial of a motion to dismiss be the subject of an appeal unless and until a final judgment
or order is rendered. In a number of cases, the court has granted the extraordinary remedy of certiorari on the denial
of the motion to dismiss but only when it has been tainted with grave abuse of discretion amounting to lack or
excess of jurisdiction.21 In the present case, we discern no grave abuse of discretion on the part of the trial court in
denying the motion to dismiss.
The grounds for dismissal relied upon by respondent were (a) the courts lack of jurisdiction over his person due to
the absence of summons, and (b) defect in the form and substance of the petition to establish illegitimate filiation,
which is equivalent to failure to state a cause of action.
We need not belabor the issues on whether lack of jurisdiction was raised before the CA, whether the court acquired
jurisdiction over the person of respondent, or whether respondent waived his right to the service of summons. We
find that the primordial issue here is actually whether it was necessary, in the first place, to serve summons on
respondent for the court to acquire jurisdiction over the case. In other words, was the service of summons
jurisdictional? The answer to this question depends on the nature of petitioners action, that is, whether it is an
action in personam, in rem, or quasi in rem.

An action in personam is lodged against a person based on personal liability; an action in rem is directed against the
thing itself instead of the person; while an action quasi in rem names a person as defendant, but its object is to
subject that person's interest in a property to a corresponding lien or obligation. A petition directed against the
"thing" itself or the res, which concerns the status of a person, like a petition for adoption, annulment of marriage, or
correction of entries in the birth certificate, is an action in rem.22
In an action in personam, jurisdiction over the person of the defendant is necessary for the court to validly try and
decide the case. In a proceeding in rem or quasi in rem, jurisdiction over the person of the defendant is not a
prerequisite to confer jurisdiction on the court, provided that the latter has jurisdiction over the res. Jurisdiction over
the res is acquired either (a) by the seizure of the property under legal process, whereby it is brought into actual
custody of the law, or (b) as a result of the institution of legal proceedings, in which the power of the court is
recognized and made effective. 23
The herein petition to establish illegitimate filiation is an action in rem. By the simple filing of the petition to establish
illegitimate filiation before the RTC, which undoubtedly had jurisdiction over the subject matter of the petition, the
latter thereby acquired jurisdiction over the case. An in rem proceeding is validated essentially through publication.
Publication is notice to the whole world that the proceeding has for its object to bar indefinitely all who might be
minded to make an objection of any sort to the right sought to be established. 24 Through publication, all interested
parties are deemed notified of the petition.
If at all, service of summons or notice is made to the defendant, it is not for the purpose of vesting the court with
jurisdiction, but merely for satisfying the due process requirements.25 This is but proper in order to afford the person
concerned the opportunity to protect his interest if he so chooses.26 Hence, failure to serve summons will not deprive
the court of its jurisdiction to try and decide the case. In such a case, the lack of summons may be excused where it
is determined that the adverse party had, in fact, the opportunity to file his opposition, as in this case. We find that
the due process requirement with respect to respondent has been satisfied, considering that he has participated in
the proceedings in this case and he has the opportunity to file his opposition to the petition to establish filiation.
To address respondents contention that the petition should have been adversarial in form, we further hold that the
herein petition to establish filiation was sufficient in form. It was indeed adversarial in nature despite its caption
which lacked the name of a defendant, the failure to implead respondent as defendant, and the non-service of
summons upon respondent. A proceeding is adversarial where the party seeking relief has given legal warning to
the other party and afforded the latter an opportunity to contest it. 27 In this petitionclassified as an action in rem
the notice requirement for an adversarial proceeding was likewise satisfied by the publication of the petition and the
giving of notice to the Solicitor General, as directed by the trial court.
The petition to establish filiation is sufficient in substance. It satisfies Section 1, Rule 8 of the Rules of Court, which
requires the complaint to contain a plain, concise, and direct statement of the ultimate facts upon which the plaintiff
bases his claim. A fact is essential if it cannot be stricken out without leaving the statement of the cause of action
inadequate.28 A complaint states a cause of action when it contains the following elements: (1) the legal right of
plaintiff, (2) the correlative obligation of the defendant, and (3) the act or omission of the defendant in violation of
said legal right.29
The petition sufficiently states the ultimate facts relied upon by petitioner to establish his filiation to respondent.
Respondent, however, contends that the allegations in the petition were hearsay as they were not of petitioners
personal knowledge. Such matter is clearly a matter of evidence that cannot be determined at this point but only
during the trial when petitioner presents his evidence.
In a motion to dismiss a complaint based on lack of cause of action, the question submitted to the court for
determination is the sufficiency of the allegations made in the complaint to constitute a cause of action and not
whether those allegations of fact are true, for said motion must hypothetically admit the truth of the facts alleged in
the complaint.30
The inquiry is confined to the four corners of the complaint, and no other.31 The test of the sufficiency of the facts
alleged in the complaint is whether or not, admitting the facts alleged, the court could render a valid judgment upon
the same in accordance with the prayer of the complaint.32
If the allegations of the complaint are sufficient in form and substance but their veracity and correctness are
assailed, it is incumbent upon the court to deny the motion to dismiss and require the defendant to answer and go to
trial to prove his defense. The veracity of the assertions of the parties can be ascertained at the trial of the case on
the merits.33

The statement in Herrera v. Alba34 that there are four significant procedural aspects in a traditional paternity case
which parties have to face has been widely misunderstood and misapplied in this case. A party is confronted by
these so-called procedural aspects during trial, when the parties have presented their respective evidence. They are
matters of evidence that cannot be determined at this initial stage of the proceedings, when only the petition to
establish filiation has been filed. The CAs observation that petitioner failed to establish a prima facie casethe first
procedural aspect in a paternity caseis therefore misplaced. A prima facie case is built by a partys evidence and
not by mere allegations in the initiatory pleading.
Clearly then, it was also not the opportune time to discuss the lack of a prima facie case vis--vis the motion for
DNA testing since no evidence has, as yet, been presented by petitioner. More essentially, it is premature to discuss
whether, under the circumstances, a DNA testing order is warranted considering that no such order has yet been
issued by the trial court. In fact, the latter has just set the said case for hearing.
At any rate, the CAs view that it would be dangerous to allow a DNA testing without corroborative proof is well taken
and deserves the Courts attention. In light of this observation, we find that there is a need to supplement the Rule
on DNA Evidence to aid the courts in resolving motions for DNA testing order, particularly in paternity and other
filiation cases. We, thus, address the question of whether a prima facie showing is necessary before a court can
issue a DNA testing order.
The Rule on DNA Evidence was enacted to guide the Bench and the Bar for the introduction and use of DNA
evidence in the judicial system. It provides the "prescribed parameters on the requisite elements for reliability and
validity (i.e., the proper procedures, protocols, necessary laboratory reports, etc.), the possible sources of error, the
available objections to the admission of DNA test results as evidence as well as the probative value of DNA
evidence." It seeks "to ensure that the evidence gathered, using various methods of DNA analysis, is utilized
effectively and properly, [and] shall not be misused and/or abused and, more importantly, shall continue to ensure
that DNA analysis serves justice and protects, rather than prejudice the public." 35
Not surprisingly, Section 4 of the Rule on DNA Evidence merely provides for conditions that are aimed to safeguard
the accuracy and integrity of the DNA testing. Section 4 states:
SEC. 4. Application for DNA Testing Order. The appropriate court may, at any time, either motu proprio or on
application of any person who has a legal interest in the matter in litigation, order a DNA testing. Such order shall
issue after due hearing and notice to the parties upon a showing of the following:
(a) A biological sample exists that is relevant to the case;
(b) The biological sample: (i) was not previously subjected to the type of DNA testing now requested; or (ii)
was previously subjected to DNA testing, but the results may require confirmation for good reasons;
(c) The DNA testing uses a scientifically valid technique;
(d) The DNA testing has the scientific potential to produce new information that is relevant to the proper
resolution of the case; and
(e) The existence of other factors, if any, which the court may consider as potentially affecting the accuracy
or integrity of the DNA testing.
This Rule shall not preclude a DNA testing, without need of a prior court order, at the behest of any party, including
law enforcement agencies, before a suit or proceeding is commenced.
This does not mean, however, that a DNA testing order will be issued as a matter of right if, during the hearing, the
said conditions are established.
In some states, to warrant the issuance of the DNA testing order, there must be a show cause hearing wherein the
applicant must first present sufficient evidence to establish a prima facie case or a reasonable possibility of paternity
or "good cause" for the holding of the test. 36 In these states, a court order for blood testing is considered a "search,"
which, under their Constitutions (as in ours), must be preceded by a finding of probable cause in order to be valid.
Hence, the requirement of a prima facie case, or reasonable possibility, was imposed in civil actions as a
counterpart of a finding of probable cause. The Supreme Court of Louisiana eloquently explained
Although a paternity action is civil, not criminal, the constitutional prohibition against unreasonable searches and
seizures is still applicable, and a proper showing of sufficient justification under the particular factual circumstances

of the case must be made before a court may order a compulsory blood test. Courts in various jurisdictions have
differed regarding the kind of procedures which are required, but those jurisdictions have almost universally found
that a preliminary showing must be made before a court can constitutionally order compulsory blood testing in
paternity cases. We agree, and find that, as a preliminary matter, before the court may issue an order for
compulsory blood testing, the moving party must show that there is a reasonable possibility of paternity. As
explained hereafter, in cases in which paternity is contested and a party to the action refuses to voluntarily undergo
a blood test, a show cause hearing must be held in which the court can determine whether there is sufficient
evidence to establish a prima facie case which warrants issuance of a court order for blood testing. 37
1avvphi1

The same condition precedent should be applied in our jurisdiction to protect the putative father from mere
harassment suits. Thus, during the hearing on the motion for DNA testing, the petitioner must present prima facie
evidence or establish a reasonable possibility of paternity.
Notwithstanding these, it should be stressed that the issuance of a DNA testing order remains discretionary upon
the court. The court may, for example, consider whether there is absolute necessity for the DNA testing. If there is
already preponderance of evidence to establish paternity and the DNA test result would only be corroborative, the
court may, in its discretion, disallow a DNA testing.
WHEREFORE, premises considered, the petition is GRANTED. The Court of Appeals Decision dated September
25, 2009 and Resolution dated December 17, 2009 are REVERSED and SET ASIDE. The Orders dated October
20, 2008 and January 19, 2009 of the Regional Trial Court of Valenzuela City are AFFIRMED.
SO ORDERED.
ANTONIO EDUARDO B. NACHURA
Associate Justice
WE CONCUR:
Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 170491

April 4, 2007

NATIONAL POWER CORPORATION, Petitioner,

vs.
HON. RAMON G. CODILLA, JR., Presiding Judge, RTC of Cebu, Br. 19, BANGPAI SHIPPING COMPANY, and
WALLEM SHIPPING, INCORPORATED, Respondents.
DECISION
CHICO-NAZARIO, J.:
Before Us is a Petition for Review on Certiorari under Rule 45 of the Rules of Civil Procedure, assailing the
Decision1 of the Court of Appeals in CA-G.R. CEB-SP No. 00848, dated 9 November 2005, which dismissed the
Petition for Certiorari filed by the National Power Corporation seeking to set aside the Order 2 issued by the Regional
Trial Court (RTC) of Cebu, Branch 19 dated 16 November 2004, denying admission and excluding from the records
plaintiffs (herein petitioner) Exhibits "A", "C", "D", "E", "H" and its sub-markings, "I", "J", and its sub-markings, "K",
"L", "M" and its sub-markings, "N" and its sub-markings, "O", "P" and its sub-markings, "Q" and its sub-markings, "R"
and "S" and its sub-markings.
On 20 April 1996, M/V Dibena Win, a vessel of foreign registry owned and operated by private respondent Bangpai
Shipping, Co., allegedly bumped and damaged petitioners Power Barge 209 which was then moored at the Cebu
International Port. Thus, on 26 April 1996, petitioner filed before the Cebu RTC a complaint for damages against
private respondent Bangpai Shipping Co., for the alleged damages caused on petitioners power barges.
Thereafter, petitioner filed an Amended Complaint dated 8 July 1996 impleading herein private respondent Wallem
Shipping, Inc., as additional defendant, contending that the latter is a ship agent of Bangpai Shipping Co. On 18
September 1996, Wallem Shipping, Inc. filed a Motion to Dismiss which was subsequently denied by public

respondent Judge in an Order dated 20 October 1998. Bangpai Shipping Co. likewise filed a Motion to Dismiss
which was also denied by public respondent Judge in an Order issued on 24 January 2003.
Petitioner, after adducing evidence during the trial of the case, filed a formal offer of evidence before the lower court
on 2 February 2004 consisting of Exhibits "A" to "V" together with the sub-marked portions thereof. Consequently,
private respondents Bangpai Shipping Co. and Wallem Shipping, Inc. filed their respective objections to petitioners
formal offer of evidence.
On 16 November 2004, public respondent judge issued the assailed order denying the admission and excluding
from the records petitioners Exhibits "A", "C", "D", "E", "H" and its sub-markings, "I", "J" and its sub-markings, "K",
"L", "M" and its sub-markings, "N" and its sub-markings, "O", "P" and its sub-markings, "Q" and its sub-markings, "R"
and "S" and its sub-markings. According to the court a quo:
The Court finds merit in the objections raised and the motion to strike out filed respectively by the defendants. The
record shows that the plaintiff has been given every opportunity to present the originals of the Xerox or photocopies
of the documents it offered. It never produced the originals. The plaintiff attempted to justify the admission of the
photocopies by contending that "the photocopies offered are equivalent to the original of the document" on the basis
of the Electronic Evidence (Comment to Defendant Wallem Philippines Objections and Motion to Strike). But as
rightly pointed out in defendant Wallems Reply to the Comment of Plaintiff, the Xerox copies do not constitute the
electronic evidence defined in Section 1 of Rule 2 of the Rules on Electronic Evidence as follows:
"(h) "Electronic document" refers to information or the representation of information, data, figures, symbols or other
models of written expression, described or however represented, by which a right is established or an obligation
extinguished, or by which a fact may be proved and affirmed, which is received, recorded, transmitted, stored,
processed, retrieved or produced electronically. It includes digitally signed documents and any printout, readable by
sight or other means which accurately reflects the electronic data message or electronic document. For the purpose
of these Rules, the term "electronic document" may be used interchangeably with "electronic data message".
The information in those Xerox or photocopies was not received, recorded, retrieved or produced electronically.
Moreover, such electronic evidence must be authenticated (Sections 1 and 2, Rule 5, Rules on Electronic
Evidence), which the plaintiff failed to do. Finally, the required Affidavit to prove the admissibility and evidentiary
weight of the alleged electronic evidence (Sec. 1, Rule 9, Ibid) was not executed, much less presented in evidence.
The Xerox or photocopies offered should, therefore, be stricken off the record. Aside from their being not properly
identified by any competent witness, the loss of the principals thereof was not established by any competent proof.
xxxx
WHEREFORE, plaintiffs Exhibits "A", "C", "D", "E", "H" and its sub-markings, "I", "J", and its sub-markings, "K", "L",
"M" and its sub-markings, "N" and its sub-markings, "O", "P" and its sub-markings, "Q" and its sub-markings, and
"R" are hereby DENIED admission and excluded from the records. However, these excluded evidence should be
attached to the records of this case to enable the appellate court to pass upon them should an appeal be taken from
the decision on the merits to be rendered upon the termination of the trial of this case.
Exhibits "S" and its sub-markings are also DENIED admission for lack of proper identification since the witness who
brought these pictures expressly admitted that he was not present when the photos were taken and had not
knowledge when the same where taken.3
Upon denial of petitioners Motion for Reconsideration in an Order dated 20 April 2005, petitioner filed a Petition
for Certiorari under Rule 65 of the Rules of Civil Procedure before the Court of Appeals maintaining that public
respondent Judge acted with grave abuse of discretion amounting to lack or excess of jurisdiction in denying the
admission of its Exhibits "A", "C", "D", "E", "H" and its sub-markings, "I", "J" and its sub-markings, "K", "L", "M" and
its sub-markings, "N" and its sub-markings, "O", "P" and its sub-markings, "Q" and its sub-markings, "R", and "S"
and its sub-markings.
On 9 November 2005, the appellate court issued a Decision dismissing petitioners petition for certiorari, the
pertinent portions of which elucidate:
After a judicious scrutiny of the record of the case on hand, together with the rules and jurisprudence which are
applicable in the premises, we have come up with a finding that the petition for certiorari filed in this case is not
meritorious.

It appears that there is no sufficient showing by the petitioner that the respondent judge acted with grave abuse of
discretion in issuing the assailed orders in Civil Case No. CEB-18662. As what our jurisprudence tells us, grave
abuse of discretion is meant such capricious and whimsical exercise of judgment as would be equivalent to lack of
jurisdiction x x x.
In the case at bench, what has been shown to the contrary by the totality of the record on hand is that the
respondent judge acted correctly and within the pale of his sound discretion in issuing the assailed order, dated
November 16, 2004, in Civil Case No. CEB-18662.
Indeed, it appears that the pieces of petitioners documentary evidence which were denied admission by the
respondent judge were not properly identified by any competent witness. As pointed out by the respondent Bangpai
Shipping Company in its comment on the petition filed in this case which reproduces some excerpts of the
testimonies in the court a quo of Atty. Marianito De Los Santos, Engr. Nestor Enriquez, Jr. and Mr. Rodulfo I.
Pagaling, the said witnesses did not have personal knowledge of and participation in the preparation and making of
the pieces of documentary evidence denied admission by respondent judge x x x. In other words, there was lack of
proper identification of said pieces of documentary evidence. x x x.
Then another ground for denying admission of petitioners Exhibits A, C, D, E, H, I, J, K, L, M, N, O, P, Q, R, and S
by the respondent judge is that said pieces of documentary evidence were merely photocopies of purported
documents or papers. There is no gainsaying the fact that the respondent judge acted within the pale of his
discretion when he denied admission of said documentary evidence. Section 3 of Rule 130 of the Rules of Court of
the Philippines is very explicit in providing that, when the subject of inquiry are the contents of documents, no
evidence shall be admissible other than the original documents themselves, except in certain cases specifically so
enumerated therein, and the petitioner has not shown that the non-presentation or non-production of its original
documentary pieces of evidence falls under such exceptions. As aptly pointed out by the respondent judge in the
order issued by him on November 16, 2004:
"x x x The record shows that the plaintiff (petitioner herein) has been given every opportunity to present the originals
of the Xerox or photocopies of the documents it offered. It never produced said originals."
So, the petitioner has only itself to blame for the respondent judges denial of admission of its aforementioned
documentary evidence.
Of course, the petitioner tries to contend that the photocopies of documents offered by it are equivalent to the
original documents that it sought to offer in evidence, based on the Rules on Electronic Evidence which were in
force and effect since August 1, 2001. However, such a contention is devoid of merit. The pieces of documentary
evidence offered by the petitioner in Civil Case CEB-18662 which were denied admission by the respondent judge
do not actually constitute as electronic evidence as defined in the Rules on Electronic Evidence. The informations
therein were not received, retrieved or produced electronically. The petitioner has not adequately established that its
documentary evidence were electronic evidence. it has not properly authenticated such evidence as electronic
documents, assuming arguendo that they are. Lastly, the petitioner has not properly established by affidavit
pursuant to Rule 9 of the Rules on Electronic Evidence the admissibility and evidentiary weight of said documentary
evidence.
Thus, by any legal yardstick, it is manifest that the respondent judge did not commit grave abuse of discretion in
denying admission of the aforementioned documentary evidence of petitioner.
But even if it be granted just for the sake of argument that the respondent judge committed an error in denying the
aforementioned documentary evidence of the petitioner, still the petition for certiorari filed in this case must fail.
Such error would at most be only an error of law and not an error of jurisdiction. In Lee vs. People, 393 SCRA 397,
the Supreme Court of the Philippines said that certiorari will not lie in case of an error of law. x x x.
WHEREFORE, in view of the foregoing premises, judgment is hereby rendered by us DISMISSING the petition filed
in this case and AFFIRMING the assailed orders issued by respondent judge in Civil Case No. CEB-18662. 4
Aggrieved by the aforequoted decision, petitioner filed the instant petition.
The focal point of this entire controversy is petitioners obstinate contention that the photocopies it offered as formal
evidence before the trial court are the functional equivalent of their original based on its inimitable interpretation of
the Rules on Electronic Evidence.

Petitioner insists that, contrary to the rulings of both the trial court and the appellate court, the photocopies it
presented as documentary evidence actually constitute electronic evidence based on its own premise that an
"electronic document" as defined under Section 1(h), Rule 2 of the Rules on Electronic Evidence is not limited to
information that is received, recorded, retrieved or produced electronically. Rather, petitioner maintains that an
"electronic document" can also refer to other modes of written expression that is produced electronically, such as
photocopies, as included in the sections catch-all proviso: "any print-out or output, readable by sight or other
means".
We do not agree.
In order to shed light to the issue of whether or not the photocopies are indeed electronic documents as
contemplated in Republic Act No. 8792 or the Implementing Rules and Regulations of the Electronic Commerce Act,
as well as the Rules on Electronic Evidence, we shall enumerate the following documents offered as evidence by
the petitioner, to wit:
1. Exhibit "A" is a photocopy of a letter manually signed by a certain Jose C. Troyo, with "RECEIVED"
stamped thereon, together with a handwritten date;
2. Exhibit "C" is a photocopy of a list of estimated cost of damages of petitioners power barges 207 and 209
prepared by Hopewell Mobile Power Systems Corporation and manually signed by Messrs. Rex Malaluan
and Virgilio Asprer;
3. Exhibit "D" is a photocopy of a letter manually signed by a certain Nestor G. Enriquez, Jr., with
"RECEIVED" stamped thereon, together with a handwritten notation of the date it was received;
4. Exhibit "E" is a photocopy of a Standard Marine Protest Form which was filled up and accomplished by
Rex Joel C. Malaluan in his own handwriting and signed by him. Portions of the Jurat were handwritten, and
manually signed by the Notary Public;
5. Exhibit "H" is a photocopy of a letter manually signed by Mr. Nestor G. Enriquez, Jr. with "RECEIVED"
stamped thereon, together with a handwritten notation of the date it was received;
6. Exhibit "I" is a photocopy of a computation of the estimated energy loss allegedly suffered by petitioner
which was manually signed by Mr. Nestor G. Enriquez, Jr.;
7. Exhibit "J" is a photocopy of a letter containing the breakdown of the cost estimate, manually signed by
Mr. Nestor G. Enriquez, Jr., with "RECEIVED" stamped thereon, together with a handwritten notation of the
date it was received, and other handwritten notations;
8. Exhibit "K" is a photocopy of the Subpoena Duces Tecum Ad Testificandum written using a manual
typewriter, signed manually by Atty. Ofelia Polo-De Los Reyes, with a handwritten notation when it was
received by the party;
9. Exhibit "L" is a photocopy of a portion of the electricity supply and operation and maintenance agreement
between petitioner and Hopewell, containing handwritten notations and every page containing three
unidentified manually placed signatures;
10. Exhibit "M" is a photocopy of the Notice of Termination with attachments addressed to Rex Joel C.
Malaluan, manually signed by Jaime S. Patinio, with a handwritten notation of the date it was received. The
sub-markings also contain manual signatures and/or handwritten notations;
11. Exhibit "N" is a photocopy of a letter of termination with attachments addressed to VIrgilio Asprer and
manually signed by Jaime S. Patino. The sub-markings contain manual signatures and/or handwritten
notations;
12. Exhibit "O" is the same photocopied document marked as Annex C;
13. Exhibit "P" is a photocopy of an incident report manually signed by Messrs. Malaluan and Bautista and
by the Notary Public, with other handwritten notations;
14. Exhibit "Q" is a photocopy of a letter manually signed by Virgilio Asprer and by a Notary Public, together
with other handwritten notations.

On the other hand, an "electronic document" refers to information or the representation of information, data, figures,
symbols or other models of written expression, described or however represented, by which a right is established or
an obligation extinguished, or by which a fact may be proved and affirmed, which is received, recorded, transmitted,
stored, processed, retrieved or produced electronically.5 It includes digitally signed documents and any printout,
readable by sight or other means which accurately reflects the electronic data message or electronic document. 6
The rules use the word "information" to define an electronic document received, recorded, transmitted, stored,
processed, retrieved or produced electronically. This would suggest that an electronic document is relevant only in
terms of the information contained therein, similar to any other document which is presented in evidence as proof of
its contents.7 However, what differentiates an electronic document from a paper-based document is the manner by
which the information is processed; clearly, the information contained in an electronic document is received,
recorded, transmitted, stored, processed, retrieved or produced electronically.
A perusal of the information contained in the photocopies submitted by petitioner will reveal that not all of the
contents therein, such as the signatures of the persons who purportedly signed the documents, may be recorded or
produced electronically. By no stretch of the imagination can a persons signature affixed manually be considered as
information electronically received, recorded, transmitted, stored, processed, retrieved or produced. Hence, the
argument of petitioner that since these paper printouts were produced through an electronic process, then these
photocopies are electronic documents as defined in the Rules on Electronic Evidence is obviously an erroneous, if
not preposterous, interpretation of the law. Having thus declared that the offered photocopies are not tantamount to
electronic documents, it is consequential that the same may not be considered as the functional equivalent of their
original as decreed in the law.
Furthermore, no error can be ascribed to the court a quo in denying admission and excluding from the records
petitioners Exhibits "A", "C", "D", "E", "H" and its sub-markings, "I", "J" and its sub-markings, "K", "L", "M" and its
sub-markings, "N" and its sub-markings, "O", "P" and its sub-markings, "Q" and its sub-markings, and "R". The trial
court was correct in rejecting these photocopies as they violate the best evidence rule and are therefore of no
probative value being incompetent pieces of evidence. Before the onset of liberal rules of discovery, and modern
technique of electronic copying, the best evidence rule was designed to guard against incomplete or fraudulent
proof and the introduction of altered copies and the withholding of the originals. 8 But the modern justification for the
rule has expanded from the prevention of fraud to a recognition that writings occupy a central position in the
law.9 The importance of the precise terms of writings in the world of legal relations, the fallibility of the human
memory as reliable evidence of the terms, and the hazards of inaccurate or incomplete duplicate are the concerns
addressed by the best evidence rule.10
Moreover, as mandated under Section 2, Rule 130 of the Rules of Court:
"SECTION 2. Original writing must be produced; exceptions. There can be no evidence of a writing the contents
of which is the subject of inquiry, other than the original writing itself, except in the following cases:
(a) When the original has been lost, destroyed, or cannot be produced in court;
(b) When the original is in the possession of the party against whom the evidence is offered, and the latter
fails to produce it after reasonable notice;
(c) When the original is a record or other document in the custody of a public officer;
(d) When the original has been recorded in an existing record a certified copy of which is made evidence by
law;
(e) When the original consists of numerous accounts or other documents which cannot be examined in court
without great loss of time and the fact sought to be established from them is only the general result of the
whole."
When the original document has been lost or destroyed, or cannot be produced in court, the offeror, upon proof of its
execution or existence and the cause of its unavailability without bad faith on his part, may prove its contents by a
copy, or by a recital of its contents in some authentic document, or by the testimony of witnesses in the order
stated.11 The offeror of secondary evidence is burdened to prove the predicates thereof: (a) the loss or destruction of
the original without bad faith on the part of the proponent/offeror which can be shown by circumstantial evidence of
routine practices of destruction of documents;12 (b) the proponent must prove by a fair preponderance of evidence
as to raise a reasonable inference of the loss or destruction of the original copy; and (c) it must be shown that a
diligent and bona fide but unsuccessful search has been made for the document in the proper place or

places.13 However, in the case at bar, though petitioner insisted in offering the photocopies as documentary
evidence, it failed to establish that such offer was made in accordance with the exceptions as enumerated under the
abovequoted rule. Accordingly, we find no error in the Order of the court a quo denying admissibility of the
photocopies offered by petitioner as documentary evidence.
Finally, it perplexes this Court why petitioner continued to obdurately disregard the opportunities given by the trial
court for it to present the originals of the photocopies it presented yet comes before us now praying that it be
allowed to present the originals of the exhibits that were denied admission or in case the same are lost, to lay the
predicate for the admission of secondary evidence. Had petitioner presented the originals of the documents to the
court instead of the photocopies it obstinately offered as evidence, or at the very least laid the predicate for the
admission of said photocopies, this controversy would not have unnecessarily been brought before the appellate
court and finally to this Court for adjudication. Had it not been for petitioners intransigence, the merits of petitioners
complaint for damages would have been decided upon by the trial court long ago. As aptly articulated by the Court
of Appeals, petitioner has only itself to blame for the respondent judges denial of admission of its aforementioned
documentary evidence and consequently, the denial of its prayer to be given another opportunity to present the
originals of the documents that were denied admission nor to lay the predicate for the admission of secondary
evidence in case the same has been lost.
WHEREFORE, premises considered, the instant petition is hereby DENIED. The Decision of the Court of Appeals in
CA-G.R. CEB-SP No. 00848, dated 9 November 2005 is hereby AFFIRMED. Costs against petitioner.
SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 204894

March 10, 2014

PEOPLE OF THE PHILIPPINES, Appellee,

vs.
NOEL ENOJAS y HINGPIT, ARNOLD GOMEZ y FABREGAS, FERNANDO SANTOS y DELANTAR, and ROGER
JALANDONI y ARI, Appellants.
DECISION
ABAD, J.:
On September 4, 2006 the City Prosecutor of Las Pias charged appellants Noel Enojas y Hingpit (Enojas), Arnold
Gomez y Fabregas (Gomez), Fernando Santos y Delantar (Santos), and Roger Jalandoni y Ari (Jalandoni) with
murder before the Las Pifias Regional Trial Court (RTC) in Criminal Case 06-0854.
1

PO2 Eduardo Gregorio, Jr. (P02 Gregorio) testified that at around 10:30 in the evening of August 29, 2006, he and
P02 Francisco Pangilinan (PO2 Pangilinan) were patrolling the vicinity of Toyota Alabang and SM Southmall when
they spotted a taxi that was suspiciously parked in front of the Aguila Auto Glass shop near the intersection of BF
Almanza and Alabang-Zapote Roads. The officers approached the taxi and asked the driver, later identified as
accused Enojas, for his documents. The latter complied but, having entertained doubts regarding the veracity of
documents shown them, they asked him to come with them to the police station in their mobile car for further
questioning.
2

Accused Enojas voluntarily went with the police officers and left his taxi behind. On reaching the 7-11 convenience
store on the Zapote-Alabang Road, however, they stopped and PO2 Pangilinan went down to relieve himself there.
As he approached the stores door, however, he came upon two suspected robbers and shot it out with them. PO2
Pangilinan shot one suspect dead and hit the other who still managed to escape. But someone fired at PO2
Pangilinan causing his death.
On hearing the shots, PO2 Gregorio came around and fired at an armed man whom he saw running towards Pilar
Village. He saw another man, who came from the Jollibbee outlet, run towards Alabang-Zapote Road while firing his
gun at PO2 Gregorio. The latter returned fire but the men were able to take a taxi and escape. PO2 Gregorio
radioed for help and for an ambulance. On returning to his mobile car, he realized that accused Enojas, the taxi
driver they had with them had fled.
P/Insp. Ferjen Torred (Torred), the Chief of Investigation Division of the Las Pias Police, testified that he and PO2
Teoson Rosarito (PO2 Rosarito) immediately responded to PO2 Gregorios urgent call. Suspecting that accused
Enojas, the taxi driver who fled, was involved in the attempted robbery, they searched the abandoned taxi and found
a mobile phone that Enojas apparently left behind. P/Ins. Torred instructed PO3 Joel Cambi (PO3 Cambi) to monitor
its incoming messages.
3

The police later ascertained that the suspect whom PO2 Pangilinan had killed was someone named Reynaldo
Mendoza who was armed with a .38 caliber revolver. The police found spent 9 mm and M-16 rifle shells at the crime
scene. Follow-up operations at nearby provinces resulted in finding the dead body of one of the suspects, Alex
Angeles, at the Metro South Medical Center along Molino, Bacoor, Cavite.
4

PO3 Cambi and PO2 Rosarito testified that they monitored the messages in accused Enojas mobile phone and,
posing as Enojas, communicated with the other accused. The police then conducted an entrapment operation that
resulted in the arrest of accused Santos and Jalandoni. Subsequently, the police were also able to capture accused
Enojas and Gomez. The prosecution presented the transcripts of the mobile phone text messages between Enojas
and some of his co-accused.
5

The victims father, Ricardo Pangilinan, testified that his son was at the time of his death 28 years old, unmarried,
and was receiving police pay of P8,000.00 to P10,000.00 per month. Ricardo spent P99,999 for burial
expense,P16,000.00 for the interment services, and P50,000.00 for purchase of the cemetery lot.
6

Manifesting in open court that they did not want to adduce any evidence or testify in the case, the accused opted to
instead file a trial memorandum on March 10, 2008 for their defense. They pointed out that they were entitled to an
acquittal since they were all illegally arrested and since the evidence of the text messages were inadmissible, not
having been properly identified.
7

On June 2, 2008 the RTC rendered judgment, finding all the accused guilty of murder qualified by evident
premeditation and use of armed men with the special aggravating circumstance of use of unlicensed firearms. It
thus sentenced them to suffer the penalty of reclusion perpetua, without the possibility of parole and to indemnify the
heirs of PO2 Pangilinan with P165,999.00 as actual damages, P50,000.00 as moral damages, P25,000.00 as
exemplary damages, and P2,080,000.00 as compensation for loss of earning capacity.
8

Upon review in CA-G.R. CR-H.C. 03377, on June 14, 2012 the Court of Appeals (CA) dismissed the appeal and
affirmed in toto the conviction of the accused. The CA, however, found the absence of evident premeditation since
the prosecution failed to prove that the several accused planned the crime before committing it. The accused
appealed from the CA to this Court.
9

10

The defense points out that the prosecution failed to present direct evidence that the accused Enojas, Gomez,
Santos, or Jalandoni took part in shooting PO2 Pangilinan dead. This may be true but the prosecution could prove
their liability by circumstantial evidence that meets the evidentiary standard of proof beyond reasonable doubt. It has
been held that circumstantial evidence is sufficient for conviction if: 1) there is more than one circumstance; 2) the
facts from which the inferences are derived are proven; and 3) the combination of all the circumstances is such as
to produce a conviction beyond reasonable doubt.
11

12

Here the totality of the circumstantial evidence the prosecution presented sufficiently provides basis for the
conviction of all the accused. Thus:
1. PO2 Gregorio positively identified accused Enojas as the driver of the taxicab suspiciously parked in front
of the Aguila Auto Glass shop. The officers were bringing him with them to the police station because of the
questionable documents he showed upon query. Subsequent inspection of the taxicab yielded Enojas
mobile phone that contained messages which led to the entrapment and capture of the other accused who
were also taxicab drivers.
2. Enojas fled during the commotion rather than remain in the cab to go to the police station where he was
about to be taken for questioning, tending to show that he had something to hide. He certainly did not go to
the police afterwards to clear up the matter and claim his taxi.
3. PO2 Gregorio positively identified accused Gomez as one of the men he saw running away from the
scene of the shooting.
4. The text messages identified "Kua Justin" as one of those who engaged PO2 Pangilinan in the shootout;
the messages also referred to "Kua Justin" as the one who was hit in such shootout and later died in a
hospital in Bacoor, Cavite. These messages linked the other accused.
5. During the follow-up operations, the police investigators succeeded in entrapping accused Santos,
Jalandoni, Enojas, and Gomez, who were all named in the text messages.
6. The text messages sent to the phone recovered from the taxi driven by Enojas clearly made references to
the 7-11 shootout and to the wounding of "Kua Justin," one of the gunmen, and his subsequent death.
7. The context of the messages showed that the accused were members of an organized group of taxicab
drivers engaged in illegal activities.
8. Upon the arrest of the accused, they were found in possession of mobile phones with call numbers that
corresponded to the senders of the messages received on the mobile phone that accused Enojas left in his
taxicab.
13

The Court must, however, disagree with the CAs ruling that the aggravating circumstances of a) aid of armed men
and b) use of unlicensed firearms qualified the killing of PO2 Pangilinan to murder. In "aid of armed men," the men
act as accomplices only. They must not be acting in the commission of the crime under the same purpose as the
principal accused, otherwise they are to be regarded as co-principals or co-conspirators. The use of unlicensed
firearm, on the other hand, is a special aggravating circumstance that is not among the circumstances mentioned in
Article 248 of the Revised Penal Code as qualifying a homicide to murder. Consequently, the accused in this case
14

may be held liable only for homicide, aggravated by the use of unlicensed firearms, a circumstance alleged in the
information.
As to the admissibility of the text messages, the RTC admitted them in conformity with the Courts earlier Resolution
applying the Rules on Electronic Evidence to criminal actions. Text messages are to be proved by the testimony of
a person who was a party to the same or has personal knowledge of them. Here, PO3 Cambi, posing as the
accused Enojas, exchanged text messages with the other accused in order to identify and entrap them. As the
recipient of those messages sent from and to the mobile phone in his possession, PO3 Cambi had personal
knowledge of such messages and was competent to testify on them.
15

16

The accused lament that they were arrested without a valid warrant of arrest. But, assuming that this was so, it
cannot be a ground for acquitting them of the crime charged but for rejecting any evidence that may have been
taken from them after an unauthorized search as an incident of an unlawful arrest, a point that is not in issue here.
At any rate, a crime had been committedthe killing of PO2 Pangilinanand the investigating police officers had
personal knowledge of facts indicating that the persons they were to arrest had committed it. The text messages to
and from the mobile phone left at the scene by accused Enojas provided strong leads on the participation and
identities of the accused. Indeed, the police caught them in an entrapment using this knowledge.
1wphi1

17

The award of damages by the courts below has to be modified to conform to current jurisprudence.

18

WHEREFORE, the Court MODIFIES the Court of Appeals Decision of June 14, 2012 in CA-G.R. CR-HC 03377. The
Court instead FINDS accused-appellants Noel Enojas y Hingpit, Arnold Gomez y Fabregas, Fernando Santos y
Delantar, and Roger Jalandoni y Ari GUILTY of the lesser crime of HOMICIDE with the special aggravating
circumstance of use of unlicensed firearms. Applying the Indeterminate Sentence Law, the Court SENTENCES each
of them to 12 years of prision mayor, as minimum, to 20 years of reclusion temporal, as maximum. The Court also
MODIFIES the award of exemplary damages by increasing it to P30,000.00, with an additionalP50,000.00 for civil
indemnity.
SO ORDERED.