Professional Documents
Culture Documents
Salonga vs. Cruz Pano
Salonga vs. Cruz Pano
The petitioner invokes the constitutionally protected right to life and liberty
guaranteed by the due process clause, alleging that no prima facie case has been
established to warrant the filing of an information for subversion against him.
Petitioner asks this Court to prohibit and prevent the respondents from using the iron
arm of the law to harass, oppress, and persecute him, a member of the democratic
opposition in the Philippines.
A rash of bombings occurred in the Metro Manila area in the months of August,
September and October of 1980. On September 6, 1980, one Victor Burns Lovely, Jr.,
a Philippine-born American citizen from Los Angeles, California, almost killed himself
and injured his younger brother, Romeo, as a result of the explosion of a small bomb
inside his room at the YMCA building in Manila. Found in Lovely's possession by
police and military authorities were several pictures taken sometime in May, 1980 at
the birthday party of former Congressman Raul Daza held at the latter's residence in a
Los Angeles suburb. Petitioner Jovito R. Salonga and his wife were among those whose
likenesses appeared in the group pictures together with other guests, including Lovely.
As a result of the serious injuries he suffered, Lovely was brought by military and
police authorities to the AFP Medical Center (V. Luna Hospital) where he was placed in
the custody and detention of Col. Roman P. Madella, under the over-all direction of
General Fabian Ver, head of the National Intelligence and Security Authority (NISA).
Shortly afterwards, Mr. Lovely and his two brothers, Romeo and Baltazar Lovely were
charged with subversion, illegal possession of explosives, and damage to property.
On September 12, 1980, bombs once again exploded in Metro Manila including one
which resulted in the death of an American lady who was shopping at Rustan's
Supermarket in Makati and others which caused injuries to a number of persons.
On September 20, 1980, the President's anniversary television radio press conference
was broadcast. The younger brother of Victor Lovely, Romeo, was presented during the
conference. In his interview, Romeo stated that he had driven his elder brother, Victor,
to the petitioner's house in Greenhills on two occasions. The first time was on August
20, 1980. Romeo stated that Victor did not bring any bag with him on that day when
he went to the petitioner's residence and did not carry a bag when he left. The second
time was in the afternoon of August 31, 1980 when he brought Victor only to the gate
of the petitioner's house. Romeo did not enter the petitioner's residence. Neither did he
return that day to pick up his brother.
The next day, newspapers came out with almost Identical headlines stating in effect
that petitioner had been linked to the various bombings in Metro Manila.
Meanwhile, on September 25, 1980, Lovely was taken out of the hospital's intensive
care unit and transferred to the office of Col. Madella where he was held
incommunicado for some time.
On the night of October 4, 1980, more bombs were reported to have exploded at three
big hotels in Metro Manila, namely: Philippine Plaza, Century Park Sheraton and
Manila Peninsula. The bombs injured nine people. A meeting of the General Military
Council was called for October 6, 1980.
On October 19, 1980, minutes after the President had finished delivering his speech
before the International Conference of the American Society of Travel Agents at the
Philippine International Convention Center, a small bomb exploded. Within the next
twenty-four hours, arrest, search, and seizure orders (ASSOs) were issued against
persons who were apparently implicated by Victor Lovely in the series of bombings in
Metro Manila. One of them was herein petitioner. Victor Lovely offered himself to be a
"state witness" and in his letter to the President, he stated that he will reveal
everything he knows about the bombings.
On October 21, 1980, elements of the military went to the hospital room of the
petitioner at the Manila Medical Center where he was confined due to his recurrent
and chronic ailment of bronchial asthma and placed him under arrest. The arresting
officer showed the petitioner the ASSO form which however did not specify the charge
or charges against him. For some time, the petitioner's lawyers were not permitted to
visit him in his hospital room until this Court in the case of Ordoez v. Gen. Fabian
Ver, et al., (G.R. No. 55345, October 28, 1980) issued an order directing that the
petitioner's right to be visited by counsel be respected.
On November 2, 1980, the petitioner was transferred against his objections from his
hospital arrest to an isolation room without windows in an army prison camp at Fort
Bonifacio, Makati. The petitioner states that he was not informed why he was
transferred and detained, nor was he ever investigated or questioned by any military
or civil authority.
Subsequently, on November 27, 1980, the petitioner was released for humanitarian
reasons from military custody and placed "under house arrest in the custody of Mrs.
Lydia Salonga" still without the benefit of any investigation or charges.
On December 10, 1980, the Judge Advocate General sent the petitioner a "Notice of
Preliminary Investigation" in People v. Benigno Aquino, Jr., et al. (which included
petitioner as a co-accused), stating that "the preliminary investigation of the above-
entitled case has been set at 2:30 o'clock p.m. on December 12, 1980" and that
petitioner was given ten (10) days from receipt of the charge sheet and the supporting
evidence within which to file his counter-evidence. The petitioner states that up to the
time martial law was lifted on January 17, 1981, and despite assurance to the
contrary, he has not received any copies of the charges against him nor any copies of
the so-called supporting evidence.
On February 9, 1981, the records of the case were turned over by the Judge Advocate
General's Office to the Ministry of Justice.
On February 24, 1981, the respondent City Fiscal filed a complaint accusing
petitioner, among others of having violated Republic Act No. 1700, as amended by P.D.
885 and Batas Pambansa Blg. 31 in relation to Article 142 of the Revised Penal Code.
The inquest court set the preliminary investigation for March 17, 1981.
On March 6, 1981, the petitioner was allowed to leave the country to attend a series of
church conferences and undergo comprehensive medical examinations of the heart,
stomach, liver, eye and ear including a possible removal of his left eye to save his right
eye. Petitioner Salonga almost died as one of the principal victims of the dastardly
bombing of a Liberal Party rally at Plaza Miranda on August 20, 1971. Since then, he
has suffered serious disabilities. The petitioner was riddled with shrapnel and pieces
still remain in various parts of his body. He has an AV fistula caused by a piece of
shrapnel lodged one millimeter from his aorta. The petitioner has limited use of his
one remaining hand and arms, is completely blind and physical in the left eye, and
has scar like formations in the remaining right eye. He is totally deaf in the right ear
and partially deaf in the left ear. The petitioner's physical ailments led him to seek
treatment abroad.
On or around March 26, 1981, the counsel for petitioner was furnished a copy of an
amended complaint signed by Gen. Prospero Olivas, dated March 12, 1981, charging
the petitioner, along with 39 other accused with the violation of R.A. 1700, as
amended by P.D. 885, Batas Pambansa Blg. 31 and P.D. 1736. Hearings for
preliminary investigation were conducted. The prosecution presented as its witnesses
Ambassador Armando Fernandez, the Consul General of the Philippines in Los
Angeles, California, Col. Balbino Diego, PSC/NISA Chief, Investigation and Legal Panel
of the Presidential Security Command and Victor Lovely himself.
On October 15, 1981, the counsel for petitioner filed a motion to dismiss the charges
against petitioner for failure of the prosecution to establish a prima facie case against
him.
On December 2, 1981, the respondent judge denied the motion. On January 4, 1982,
he issued a resolution ordering the filing of an information for violation of the Revised
Anti-Subversion Act, as amended, against forty (40) people, including herein
petitioner.
The resolutions of the respondent judge dated December 2, 1981 and January 4, 1982
are now the subject of the petition. It is the contention of the petitioner that no prima
facie case has been established by the prosecution to justify the filing of an
information against him. He states that to sanction his further prosecution despite the
lack of evidence against him would be to admit that no rule of law exists in the
Philippines today.
After a painstaking review of the records, this Court finds the evidence offered by the
prosecution utterly insufficient to establish a prima facie case against the petitioner.
We grant the petition.
However, before going into the merits of the case, we shall pass upon a procedural
issue raised by the respondents.
The respondents call for adherence to the consistent rule that the denial of a motion to
quash or to dismiss, being interlocutory in character, cannot be questioned by
certiorari; that since the question of dismissal will again be considered by the court
when it decides the case, the movant has a plain, speedy and adequate remedy in the
ordinary course of law; and that public interest dictates that criminal prosecutions
should not be enjoined.
The general rule is correctly stated. However, the respondents fail to appreciate or take
into account certain exceptions when a petition for certiorari is clearly warranted. The
case at bar is one such exception.
In the case of Mead v. Angel (115 SCRA 256) the same contentions were advanced by
the respondents to wit:
... Respondents advert to the rule that when a motion to quash filed by an accused in
a criminal case shall be denied, the remedy of the accused-movant is not to file a
petition for certiorari or mandamus or prohibition, the proper recourse being to go to
trial, without prejudice to his right to reiterate the grounds invoked in his motion to
quash if an adverse judgment is rendered against him, in the appeal that he may take
therefrom in the manner authorized by law. (Mill v. People, et al., 101 Phil.
599; Echarol v. Purisima, et al., 13 SCRA 309.)
On this argument, we ruled:
There is no disputing the validity and wisdom of the rule invoked by the respondents.
However, it is also recognized that, under certain situations, recourse to the
extraordinary legal remedies of certiorari, prohibition or mandamus to question the
denial of a motion to quash is considered proper in the interest of "more enlightened
and substantial justice", as was so declared in "Yap v. Lutero, G.R. No. L-12669, April
30, 1969."
In the light of the failure to show prima facie that the petitioner was probably guilty of
conspiring to commit the crime, the initial disregard of petitioner's constitutional
rights together with the massive and damaging publicity made against him, justifies
the favorable consideration of this petition by this Court. With former Senator Benigno
Aquino, Jr. now deceased, there are at least 38 other co-accused to be tried with the
petitioner. The prosecution must present proof beyond reasonable doubt against each
and every one of the 39 accused, most of whom have varying participations in the
charge for subversion. The prosecution's star witness Victor Lovely and the only
source of information with regard to the alleged link between the petitioner and the
series of terrorist bombings is now in the United States. There is reason to believe the
petitioner's citation of international news dispatches * that the prosecution may find it
difficult if not infeasible to bring him back to the Philippines to testify against the
petitioner. If Lovely refused to testify before an American federal grand jury how could
he possibly be made to testify when the charges against the respondent come up in
the course of the trial against the 39 accused. Considering the foregoing, we find it in
the interest of justice to resolve at this stage the issue of whether or not the
respondent judge gravely abused his discretion in issuing the questioned resolutions.
The respondents contend that the prosecution will introduce additional evidence
during the trial and if the evidence, by then, is not sufficient to prove the petitioner's
guilt, he would anyway be acquitted. Yes, but under the circumstances of this case, at
what cost not only to the petitioner but to the basic fabric of our criminal justice
system?
The records reveal that in finding a case against the petitioner, the respondent judge
relied only on the testimonies of Col. Balbino Diego and Victor Lovely. Ambassador
Armando Fernandez, when called upon to testify on subversive organizations in the
United States nowhere mentioned the petitioner as an organizer, officer or member of
the Movement for Free Philippines (MFP), or any of the organizations mentioned in the
complaint. Col. Diego, on the other hand, when asked what evidence he was able to
gather against the petitioner depended only on the statement of Lovely "that it was the
residence of ex-Senator Salonga where they met together with Renato Taada, one of
the brains of the bombing conspiracy ... and the fact that Sen. Salonga has been
meeting with several subversive personnel based in the U.S.A. was also revealed to me
by Victor Burns Lovely; 11 and on the group pictures taken at former Congressman
Raul Daza's birthday party. In concluding that a conspiracy exists to overthrow by
violent means the government of the Philippines in the United States, his only bases
were "documentary as well as physical and sworn statements that were referred to me
or taken by me personally," which of course negate personal knowledge on his part.
When asked by the court how he would categorize petitioner in any of the subversive
organizations, whether petitioner was an organizer, officer or a member, the witness
replied:
Such testimony, being based on affidavits of other persons and purely hearsay, can
hardly qualify as prima facie evidence of subversion. It should not have been given
credence by the court in the first place. Hearsay evidence, whether objected to or not, -
has no probative value as the affiant could not have been cross-examined on the facts
stated therein. (See People v. Labinia, 115 SCRA 223; People v. Valero, 112 SCRA
661). Moreover, as Victor Lovely, himself, was personally examined by the court, there
was no need for the testimony of Col. Diego. Thus, the inquest judge should have
confined his investigation to Victor Burns Lovely, the sole witness whose testimony
had apparently implicated petitioner in the bombings which eventually led to the filing
of the information.
Lovely's account of the petitioner's involvement with the former's bombing mission is
found in his sworn statement made before Col. Diego and Lt. Col. Madella and taken
on October 17, 1980 at the AFP Medical Center. Lovely was not presented as a
prosecution or state witness but only as a defense witness for his two younger
brothers, Romeo and Baltazar, who were both included in the complaint but who were
later dropped from the information. Victor Lovely was examined by his counsel and
cross-examined by the fiscal. In the process, he Identified the statement which he
made before Col. Diego and Lt. Col. Madella. After Lovely's testimony, the prosecution
made a manifestation before the court that it was adopting Lovely as a prosecution
witness.
A. Yes, at first he told me to check-in at Manila Hotel or the Plaza Hotel where
somebody would come to contact me and give the materials needed in the execution of
my mission. I thought this was not safe so I disagreed with him. Mr. Psinakis changed
the plan and instead told me to visit the residence of Ex-Sen. Jovito Salonga as often
as I can and someone will meet me there to give the materials I needed to accomplish
my mission
A. Yes, I arrived in Manila on August 20, 1980 and stayed at the residence of Mr.
Johnny Chua, husband of my business partner, then I went to the Hospital where I
visited my mother and checked-in at Room 303 of the YMCA at Concepcion Street,
Manila.
38. Q. Did you visit the residence of former Senator Jovito Salonga as directed by
Psinakis?
A. I visited Sen. Salonga's place three (3) times, the first visit was August 20 or 21, and
the last was 4:00 P.M. of August 31, 1980. In addition to these visits, I TALKED to him
on the phone about three or four times. On my first visit, I told him "I am expecting an
attache case from somebody which will be delivered to your house," for which Sen.
Salonga replied "Wala namang nagpunta dito at wala namang attache case para sa
iyo." However, if your attache case arrives, I'll just call you." I gave him my number.
On my second visit, Salonga said, "I'll be very busy so just come back on the 31st of
August at 4 P.M." On that date, I was with friends at Batulao Resort and had to hurry
back to be at Salonga's place for the appointment. I arrived at Salonga's place at
exactly 4 P.M.
A. I was ushered to the sala by Mrs. Salonga and after five minutes, Sen. Salonga
joined me in the sala. Sen. Salonga informed me that somebody will be coming to give
me the attache case but did not tell me the name.
40. Q. Are there any subject matters you discuss while waiting for that somebody to
deliver your materials?
A. Yes, Salonga asked if Sen. Aquino and I have met, I explained to him the efforts of
Raul Daza in setting up that meeting but I have previous business commitments at
Norfolk, Virginia. I told him, however, that through the efforts of Raul Daza, I was able
to talk with Ninoy Aquino in the airport telephone booth in San Francisco. He also
asked about Raul Daza, Steve Psinakis and the latest opposition group activities but it
seems he is well informed.
41. Q. How long did you wait until that somebody arrived?
A. This man arrived and I was greatly surprised to see Atty. Renato Taada Jovy
Salonga was the one who met him and as I observed parang nasa sariling bahay si
Taada nung dumating. They talked for five (5) minutes in very low tones so I did not
hear what they talked about. After their whispering conversations, Sen. Salonga left
and at this time Atty. "Nits" Taada told me "Nasa akin ang kailangan mo, nasa
kotse."
A. When Sen. Salonga came back, we asked to be permitted to leave and I rode in Atty.
"Nits" Taadas old Pontiac car colored dirty brown and proceeded to Broadway
Centrum where before I alighted, Atty. Taada handed me a "Puma" bag containing all
the materials I needed.
A. Ten (10) pieces of Westclox pocket watch with screw and wirings, ten (10) pieces
electrical blasting caps 4" length, ten (10) pieces non-electrical blasting caps 1 "
length, nine (9) pieces volts dry cell battery, two (2) improvised electrical testers. ten
(10) plastic packs of high explosive about 1 pound weight each.
However, in his interview with Mr. Ronnie Nathanielz which was aired on Channel 4
on November 8, 1980 and which was also offered as evidence by the accused, Lovely
gave a different story which negates the above testimony insofar as the petitioner's
participation was concerned:
Q. Who were the people that you contacted in Manila and for what purpose?
A. Before I left for the Philippines, Mr. Psinakis told me to check in at the Manila Hotel
or the Plaza Hotel, and somebody would just deliver the materials I would need. I
disapproved of this, and I told him I would prefer a place that is familiar to me or who
is close to me. Mr. Psinakis suggested the residence of Sen. Salonga.
And so, I arrived in Manila on August 20, 1980, 1 made a call to Sen. Salonga, but he
was out. The next day I made a call again. I was able to contact him. I made an
appointment t see him. I went to Sen. Salonga's house the following day. I asked
Sen. Salonga if someone had given him an attache case for me. He said nobody.
Afterwards, I made three calls to Sen. Salonga. Sen. Salonga told me "call me again on
the 31st of August. I did not call him, I just went to his house on the 31st of August at 4
P.M. A few minutes after my arrival Atty. Renato Taada arrived. When he had a chance
to be near me, he (Atty. Tanada) whispered to me that he had the attache case and the
materials I needed in his car. These materials were given to me by Atty. Tanada When I
alighted at the Broadway Centrum. (Emphasis supplied)
During the cross-examination, counsel for petitioner asked Lovely about the so-called
destabilization plan which the latter mentioned in his sworn statement:
Q. You mentioned in your statement taken on October 17, 1980, marked Exhibit "G"
about the so-called destabilization plan of Aquino. When you attended the birthday
party of Raul Daza wherein Jovito Salonga was also present, was this destabilization
plan as alleged by you already formulated?
WITNESS:
A. Not to my knowledge.
COURT TO WITNESS:
Q. Were you told that Mr. Salonga would be present in the party.
A. Only political discussion, your Honor. (TSN, July 8, 1981, pp. 69-84).
Counsel for petitioner also asked Lovely whether in view of the latter's awareness of
the physical condition of petitioner, he really implicated petitioner in any of the
bombings that occurred in Metro Manila. The fiscal objected without stating any
ground. In sustaining the objection, the Court said:
Sustained . . . The use of the word 'implicate' might expand the role of Mr. Salonga. In
other words, you are widening the avenue of Mr. Salonga's role beyond the
participation stated in the testimony of this witness about Mr. Salonga, at least, as far
as the evidence is concerned, I supposed, is only being in the house of Mr. Salonga
which was used as the contact point. He never mentions Mr. Salonga about the
bombings. Now these words had to be put in the mouth of this witness. That would be
unfair to Mr. Salonga. (TSN. July 8, 1981, p. 67)
COURT:
As the Court said earlier, the parts or portions affecting Salonga only refers to the
witness coming to Manila already then the matter of . . . I have gone over the
statement and there is no mention of Salonga insofar as activities in the United States
is concerned. I don't know why it concerns this cross-examination.
ATTY. YAP:
Because according to him, it was in pursuance of the plan that he came to Manila.
COURT:
According to him it was Aquino, Daza, and Psinakis who asked him to come here, but
Salonga was introduced only when he (Lovely) came here. Now, the tendency of the
question is also to connect Salonga to the activities in the United States. It seems to be
the thrust of the questions.
COURT:
In other words, the point of the Court as of the time when you asked him question, the
focus on Salonga was only from the time when he met Salonga at Greenhills. It was
the first time that the name of Salonga came up. There was no mention of Salonga in
the formulation of the destabilization plan as affirmed by him. But you are bringing
this up although you are only cross-examining for Salonga as if his (Lovely's) activities
in the United States affected Salonga. (TSN. July 8, 1981, pp. 73-74).
Apparently, the respondent judge wanted to put things in proper perspective by
limiting the petitioner's alleged "participation" in the bombing mission only to the fact
that petitioner's house was used as a "contact point" between Lovely and Taada,
which was all that Lovely really stated in his testimony.
However, in the questioned resolution dated December 2, 1981, the respondent judge
suddenly included the "activities" of petitioner in the United States as his basis for
denying the motion to dismiss:
On the activities of Salonga in the United States, the witness, Lovely, in one of his
statements declared: 'To the best of my recollection he mentioned of some kind of
violent struggle in the Philippines being most likely should reforms be not instituted
by President Marcos immediately.
It is therefore clear that the prosecution's evidence has established facts and
circumstances sufficient for a finding that excludes a Motion to Dismiss by respondent
Salonga. The Movement for Free Philippines is undoubtedly a force born on foreign soil
it appears to rely on the resources of foreign entities, and is being (sic) on gaining
ascendancy in the Philippines with the use of force and for that purpose it has linked
itself with even communist organizations to achieve its end. It appears to rely on aliens
for its supporters and financiers.
The jump from the "contact point" theory to the conclusion of involvement in
subversive activities in the United States is not only inexplicable but without
foundation.
The respondents admit that no evidence was presented directly linking petitioner
Salonga to actual acts of violence or terrorism. There is no proof of his direct
participation in any overt acts of subversion. However, he is tagged as a leader of
subversive organizations for two reasons-
(2) Because "he mentioned some kind of violent struggle in the Philippines being most
likely should reforms be not instituted by President Marcos immediately."
The "contact point" theory or what the petitioner calls the guilt by visit or guilt by
association" theory is too tenuous a basis to conclude that Senator Salonga was a
leader or mastermind of the bombing incidents. To indict a person simply because
some plotters, masquerading as visitors, have somehow met in his house or office
would be to establish a dangerous precedent. The right of citizens to be secure against
abuse of governmental processes in criminal prosecutions would be seriously
undermined.
The presence of Lovely in a group picture taken at Mr. Raul Daza's birthday party in
Los Angeles where Senator Salonga was a guest is not proof of conspiracy. As stated
by the petitioner, in his many years in the turbulent world of politics, he has posed
with all kinds of people in various groups and various places and could not possibly
vouch for their conduct. Commenting on the matter, newspaper columnist Teodoro
Valencia stated that Filipinos love to pose with important visitors and the picture
proves nothing.
It is likewise probable that a national figure and former politician of Senator Salonga's
stature can expect guests and visitors of all kinds to be visiting his home or office. If a
rebel or subversive happens to pose with the petitioner for a group picture at a
birthday party abroad, or even visit him with others in his home, the petitioner does
not thereby become a rebel or subversive, much less a leader of a subversive group.
More credible and stronger evidence is necessary for an indictment. Nonetheless, even
if we discount the flaws in Lovely's testimony and dismiss the refutations and
arguments of the petitioner, the prosecution evidence is still inadequate to establish a
prima facie finding.
The prosecution has not come up with even a single iota of evidence which could
positively link the petitioner to any proscribed activities of the Movement for Free
Philippines or any subversive organization mentioned in the complaint. Lovely had
already testified that during the party of former Congressman Raul Daza which was
alleged to have been attended by a number of members of the MFP, no political action
was taken but only political discussion. Furthermore, the alleged opinion of the
petitioner about the likelihood of a violent struggle here in the Philippines if reforms
are not instituted, assuming that he really stated the same, is nothing but a legitimate
exercise of freedom of thought and expression. No man deserves punishment for his
thoughts. Cogitationis poenam memo meretur. And as the late Justice Oliver W. Holmes
stated in the case of U.S. v. Schwimmer, 279 U.S. 644, " ... if there is any principle of
the Constitution that more imperatively calls for attachment than any other it is the
principle of free thought not free thought for those who agree with us but freedom for
the thought that we hate."
We have adopted the concept that freedom of expression is a "preferred" right and,
therefore, stands on a higher level than substantive economic or other liberties. The
primacy, the high estate accorded freedom of expression is a fundamental postulate of
our constitutional system. (Gonzales v. Commission on Elections, 29 SCRA 835). As
explained by Justice Cardozo in Palko v. Connecticut(302 U.S. 319) this must be so
because the lessons of history, both political and legal, illustrate that freedom of
thought and speech is the indispensable condition of nearly every other form of
freedom. Protection is especially mandated for political discussions. This Court is
particularly concerned when allegations are made that restraints have been imposed
upon mere criticisms of government and public officials. Political discussion is
essential to the ascertainment of political truth. It cannot be the basis of criminal
indictments.
The United States Supreme Court in Noto v. United States (367 U.S. 290) distinguished
between the abstract teaching of the moral propriety or even moral necessity for a
resort to force and violence and speech which would prepare a group for violent action
and steel it to such action. In Watts v. United States (394 U.S. 705), the American
court distinguished between criminal threats and constitutionally protected speech.
It stated:
We do not believe that the kind of political hyperbole indulged in by petitioner fits
within that statutory term. For we must interpret the language Congress chose against
the background of a profound national commitment to the principle that debate on
public issues should be uninhibited, robust, and wide open and that it may well
include vehement, caustic, and sometimes unpleasantly sharp attacks on government
and public officials. New York Times Co. v. Sullivan (376 U.S. 254). The language of
the political arena, like the language used in labor disputed is often vituperative
abusive, and inexact. We agree with petitioner that his only offense was a kind of very
crude offensive method of stating a political opposition to the President.
In the case before us, there is no teaching of the moral propriety of a resort to violence,
much less an advocacy of force or a conspiracy to organize the use of force against the
duly constituted authorities. The alleged remark about the likelihood of violent
struggle unless reforms are instituted is not a threat against the government. Nor is it
even the uninhibited, robust, caustic, or unpleasantly sharp attack which is protected
by the guarantee of free speech. Parenthetically, the American case of Brandenburg v.
Ohio (395 U.S. 444) states that the constitutional guarantees of free speech and free
press do not permit a State to forbid or proscribe advocacy of the use of force or of law
violation except where such advocacy is directed to inciting or producing imminent
lawless action and is likely to incite or produce such action. The words which
petitioner allegedly used according to the best recollections of Mr. Lovely are light
years away from such type of proscribed advocacy.
Political discussion even among those opposed to the present administration is within
the protective clause of freedom of speech and expression. The same cannot be
construed as subversive activities per se or as evidence of membership in a subversive
organization. Under Presidential Decree No. 885, Section 3, paragraph 6, political
discussion will only constitute, prima facie evidence of membership in a subversive
organization if such discussion amounts to:
(6) Conferring with officers or other members of such association or organizationin
furtherance of any plan or enterprise thereof.
As stated earlier, the prosecution has failed to produce evidence that would establish
any link between petitioner and any subversive organization. Even if we lend credence
to Lovely's testimony that a political discussion took place at Daza's birthday party, no
proof whatsoever was adduced that such discussion was in furtherance of any plan to
overthrow the government through illegal means. The alleged opinion that violent
struggle is likely unless reforms are instituted by no means shows either advocacy of
or incitement to violence or furtherance of the objectives of a subversive organization.
Lovely also declared that he had nothing to do with the bombing on August 22, 1980,
which was the only bombing incident that occurred after his arrival in Manila on
August 20, and before the YMCA explosion on September 6, 1980. (See TSN, pp. 63-
63, July 8, 1981). He further testified that:
WITNESS:
Actually, it was not my intention to do some kind of bombing against the government.
My bombing mission was directed against the particular family (referring to the
Cabarrus family [TSN, p. 11, July 9, 1981] [Rollo, p. 10].
COURT:
Q. Did you suspect any relation between Cabarrus and Jovito Salonga, why did you
implicate Jovito Salonga?
It should be noted that after Lovely's testimony, the prosecution manifested to the
court that it was adopting him as a prosecution witness. Therefore, the prosecution
became irreversively bound by Lovely's disclaimers on the witness stand, that it was
not his intention "to do some kind of bombing against the government" and that he
"did not try to implicate Salonga", especially since Lovely is the sole witness adopted
by the prosecution who could supposedly establish the link between the petitioner and
the bombing incidents.
The respondent court should have taken these factors into consideration before
concluding that a prima facie case exists against the petitioner. Evidence must not
only proceed from the mouth of a credible witness but it must be credible in itself such
as the common experience and observation of mankind can approve as probable under
the circumstances. (People v. Dayad, 56 SCRA 439). In the case at bar, the
prosecution cannot even present a credible version of the petitioner's role in the
bombings even if it ignores the subsequent disclaimers of Lovely and without relying
on mere affidavits including those made by Lovely during his detention.
The resolution dated January 4, 1982 suffers from the same defect. In this resolution,
Lovely's previous declarations about the bombings as part of the alleged
destabilization plan and the people behind the same were accorded such credibility by
the respondent judge as if they had already been proved beyond reasonable doubt.
The Court had already deliberated on this case, a consensus on the Court's judgment
had been arrived at, and a draft ponencia was circulating for concurrences and
separate opinions, if any, when on January 18, 1985, respondent Judge Rodolfo Ortiz
granted the motion of respondent City Fiscal Sergio Apostol to drop the subversion
case against the petitioner. Pursuant to instructions of the Minister of Justice, the
prosecution restudied its evidence and decided to seek the exclusion of petitioner
Jovito Salonga as one of the accused in the information filed under the questioned
resolution.
We were constrained by this action of the prosecution and the respondent Judge to
withdraw the draft ponencia from circulating for concurrences and signatures and to
place it once again in the Court's crowded agenda for further deliberations.
Insofar as the absence of a prima facie case to warrant the filing of subversion charges
is concerned, this decision has been rendered moot and academic by the action of the
prosecution.
Respondent Fiscal Sergio Apostol correctly points out, however, that he is not
precluded from filing new charges for the same acts because the petitioner has not
been arraigned and double jeopardy does not apply. in that sense, the case is not
completely academic.
Recent developments in this case serve to focus attention on a not too well known
aspect of the Supreme Court's functions.
The setting aside or declaring void, in proper cases, of intrusions of State authority
into areas reserved by the Bill of Rights for the individual as constitutionally protected
spheres where even the awesome powers of Government may not enter at will is not
the totality of the Court's functions.
The Court also has the duty to formulate guiding and controlling constitutional
principles, precepts, doctrines, or rules. It has the symbolic function of educating
bench and bar on the extent of protection given by constitutional guarantees.
In dela Camara v. Enage (41 SCRA 1), the petitioner who questioned a P1,195,200.00
bail bond as excessive and, therefore, constitutionally void, escaped from the
provincial jail while his petition was pending. The petition became moot because of his
escape but we nonetheless rendered a decision and stated:
The fact that the case is moot and academic should not preclude this Tribunal from
setting forth in language clear and unmistakable, the obligation of fidelity on the part
of lower court judges to the unequivocal command of the Constitution that excessive
bail shall not be required.
In Gonzales v. Marcos (65 SCRA 624) whether or not the Cultural Center of the
Philippines could validly be created through an executive order was mooted by
Presidential Decree No. 15, the Center's new charter pursuant to the President's
legislative powers under martial law. Stan, this Court discussed the constitutional
mandate on the preservation and development of Filipino culture for national Identity.
(Article XV, Section 9, Paragraph 2 of the Constitution).
In the habeas corpus case of Aquino, Jr., v. Enrile, 59 SCRA 183), during the pendency
of the case, 26 petitioners were released from custody and one withdrew his petition.
The sole remaining petitioner was facing charges of murder, subversion, and illegal
possession of firearms. The fact that the petition was moot and academic did not
prevent this Court in the exercise of its symbolic function from promulgating one of
the most voluminous decisions ever printed in the Reports.
In this case, the respondents agree with our earlier finding that the prosecution
evidence miserably fails to establish a prima facie case against the petitioner, either as
a co-conspirator of a destabilization plan to overthrow the government or as an officer
or leader of any subversive organization. They have taken the initiative of dropping the
charges against the petitioner. We reiterate the rule, however, that this Court will not
validate the filing of an information based on the kind of evidence against the
petitioner found in the records.
WHEREFORE, the petition is DISMISSED for having become moot and academic.
SO ORDERED.