G.R. No.

151085 August 20, 2008

Criminal Case No. 98-19083

JOEMAR ORTEGA, petitioner,

vs. That sometime in August, 1996, in the Municipality of XXX,

Province of YYY, Philippines, and within the jurisdiction of this
PEOPLE OF THE PHILIPPINES, respondent.
Honorable Court, the above-named accused, by means of
force, violence and intimidation, did then and there, (sic)
willfully, unlawfully and feloniously (sic) had carnal knowledge
DECISION of and/or sexual intercourse with the said AAA, a minor, then
about 6 years old, against her will.

NACHURA, J.:
CONTRARY TO LAW.7

Before this Court is a Petition1 for Review on Certiorari under

Rule 45 of the Rules of Civil Procedure seeking the reversal of Criminal Case No. 98-19084
the Court of Appeals (CA) Decision2 dated October 26, 2000
which affirmed in toto the Decision3 of the Regional Trial Court
(RTC) of Bacolod City, Branch 50, dated May 13, 1999,
That on or about the 1st day of December, 1996, in the
convicting petitioner Joemar Ortega4 (petitioner) of the crime
Municipality of XXX, Province of YYY, Philippines, and within
of Rape.
the jurisdiction of this Honorable Court, the above-named
accused, by means of force, violence and intimidation, did
then and there, (sic) willfully, unlawfully and feloniously (sic)
The Facts had carnal knowledge of and/or sexual intercourse with the
said AAA, a minor, then about 6 years old, against her will.

Petitioner, then about 14 years old,5 was charged with the

crime of Rape in two separate informations both dated April CONTRARY TO LAW.8
20, 1998, for allegedly raping AAA,6 then about eight (8) years
of age. The accusatory portions thereof respectively state:
Upon arraignment on September 10, 1998, petitioner pleaded petitioner inserted his penis into her vagina and she felt pain.
not guilty to the offense charged.9 Thus, trial on the merits In all of these instances, petitioner warned AAA not to tell her
ensued. In the course of the trial, two varying versions arose. parents, otherwise, he would spank her.14 AAA did not tell her
parents about her ordeal.

Version of the Prosecution

The third and last occasion happened in the evening of
December 1, 1996. Petitioner went to the house of AAA and
On February 27, 1990, AAA was born to spouses FFF and joined her and her siblings in watching a battery-powered
MMM.10 Among her siblings CCC, BBB, DDD, EEE and GGG, television. At that time, Luzviminda was conversing with MMM.
AAA is the only girl in the family. Before these disturbing While AAA's siblings were busy watching, petitioner called
events, AAA's family members were close friends of AAA to come to the room of CCC and BBB. AAA obeyed.
petitioner's family, aside from the fact that they were good While inside the said room which was lighted by a kerosene
neighbors. However, BBB caught petitioner raping his younger lamp, petitioner pulled AAA behind the door, removed his
sister AAA inside their own home. BBB then informed their pants and brief, removed AAA's shorts and panty, and in a
mother MMM who in turn asked AAA.11 There, AAA standing position inserted his penis into the vagina of AAA.15
confessed that petitioner raped her three (3) times on three (3) AAA described petitioner's penis as about five (5) inches long
different occasions. and the size of two (2) ballpens. She, likewise, narrated that
she saw pubic hair on the base of his penis.16

The first occasion happened sometime in August 1996. MMM

left her daughter AAA, then 6 years old and son BBB, then 10 This last incident was corroborated by BBB in his testimony.
years old, in the care of Luzviminda Ortega12 (Luzviminda), When BBB was about to drink water in their kitchen, as he was
mother of petitioner, for two (2) nights because MMM had to passing by his room, BBB was shocked to see petitioner and
stay in a hospital to attend to her other son who was sick.13 AAA both naked from their waist down in the act of sexual
During the first night at petitioner's residence, petitioner intercourse. BBB saw petitioner holding AAA and making a
entered the room where AAA slept together with Luzviminda pumping motion. Immediately, BBB told petitioner to stop; the
and her daughter. Petitioner woke AAA up and led her to the latter, in turn, hurriedly left. Thereafter, BBB reported the
sala. There petitioner raped AAA. The second occasion incident to his mother, MMM.17
occurred the following day, again at the petitioner's residence.
Observing that nobody was around, petitioner brought AAA to
their comfort room and raped her there. AAA testified that
MMM testified that when she asked AAA about what BBB saw, however, indicated in her certification that her findings required
AAA told her that petitioner inserted his fingers and his penis the confirmation of the Municipal Health Officer of the locality.
into her vagina. MMM learned that this was not the only
incident that petitioner molested AAA as there were two
previous occasions. MMM also learned that AAA did not report Subsequently, an amicable settlement22 was reached
her ordeal to them out of fear that petitioner would spank her. between the two families through the DAWN Foundation, an
MMM testified that when BBB reported the matter to her, organization that helps abused women and children. Part of
petitioner and Luzviminda already left her house. After waiting the settlement required petitioner to depart from their house to
for AAA's brothers to go to sleep, MMM, with a heavy heart, avoid contact with AAA.23 As such, petitioner stayed with a
examined AAA's vagina and she noticed that the same was certain priest in the locality. However, a few months later,
reddish and a whitish fluid was coming out from it. Spouses petitioner went home for brief visits and in order to bring his
FFF and MMM were not able to sleep that night. The following dirty clothes for laundry. At the sight of petitioner, AAA's father
morning, at about four o'clock, MMM called Luzviminda and FFF was infuriated and confrontations occurred. At this
petitioner to come to their house. MMM confronted Luzviminda instance, AAA's parents went to the National Bureau of
about what petitioner did to her daughter, and consequently, Investigation (NBI) which assisted them in filing the three (3)
she demanded that AAA should be brought to a doctor for counts of rape. However, the prosecutor's office only filed the
examination.18 two (2) instant cases.

MMM, together with Luzviminda, brought AAA to Dr. Lucifree Version of the Defense
Katalbas19 (Dr. Katalbas), the Rural Health Officer of the
locality who examined AAA and found no indication that she
was molested.20 Refusing to accept such findings, on Petitioner was born on August 8, 1983 to spouses Loreto
December 12, 1996, MMM went to Dr. Joy Ann Jocson (Dr. (Loreto) and Luzviminda Ortega.24 He is the second child of
Jocson), Medical Officer IV of the Bacolod City Health Office. three siblings ― an elder brother and a younger sister.
Dr. Jocson made an unofficial written report21 showing that Petitioner denied the accusations made against him. He
there were "abrasions on both right and left of the labia minora testified that: his parents and AAA's parents were good
and a small laceration at the posterior fourchette." She also friends; when MMM left AAA and her brothers to the care of
found that the minor injuries she saw on AAA's genitals were his mother, petitioner slept in a separate room together with
relatively fresh; and that such abrasions were superficial and BBB and CCC while AAA slept together with Luzviminda and
could disappear after a period of 3 to 4 days. Dr. Jocson, his younger sister; he never touched or raped AAA or showed
his private parts to her; petitioner did not threaten AAA in any
instance; he did not rape AAA in the former's comfort room, 1996, she slept with AAA and her youngest daughter in a
but he merely accompanied and helped AAA clean up as she separate room from petitioner; on December 1, 1996, she was
defecated and feared the toilet bowl; in the process of at AAA's house watching television and conversing with MMM,
washing, he may have accidentally touched AAA's anus; on while FFF and Loreto were having a drinking spree in the
December 1, 1996, petitioner together with his parents, went kitchen; from where they were seated, she could clearly see all
to AAA's house;25 they were dancing and playing together the children, including petitioner and AAA, playing and dancing
with all the other children at the time; while they were dancing, in the dining area; she did not hear any unusual cry or noise at
petitioner hugged and lifted AAA up in a playful act, at the the time; while they were conversing, BBB came to MMM
instance of which BBB ran and reported the matter to MMM, saying that petitioner and AAA were having sexual intercourse;
who at the time was with Luzviminda, saying that petitioner upon hearing such statement, Luzviminda and MMM
and AAA were having sexual intercourse;26 petitioner immediately stood up and looked for them, but both mothers
explained to MMM that they were only playing, and that he did not find anything unusual as all the children were playing
could not have done to AAA what he was accused of doing, as and dancing in the dining area; Luzviminda and MMM just
they were together with her brothers, and he treated AAA like laughed at BBB's statement; the parents of AAA, at that time,
a younger sister;27 BBB was lying; AAA's parents and his did not examine her in order to verify BBB's statement nor did
parents did not get angry at him nor did they quarrel with each they get angry at petitioner or at them; and they peacefully left
other; petitioner and his parents peacefully left AAA's house at AAA's house. However, the following day, MMM woke
about nine o'clock in the evening; however, at about four Luzviminda up, saying that FFF was spanking BBB with a belt
o'clock in the morning, petitioner and his parents were as AAA was pointing to BBB nor to petitioner as the one who
summoned by MMM to go to the latter's house; upon arriving molested her. At this instance, Luzviminda intervened, telling
there they saw BBB being maltreated by his father as AAA FFF not to spank BBB but instead, to bring AAA to a doctor for
pointed to BBB as the one who molested her; and MMM and examination. Luzviminda accompanied MMM to Dr. Katalbas
Luzviminda agreed to bring AAA to a doctor for who found no indication that AAA was molested. She also
examination.28 accompanied her to Dr. Jocson. After getting the results of the
examination conducted by Dr. Jocson, they went to the police
and at this instance only did Luzviminda learn that MMM
Luzviminda corroborated the testimony of her son. She accused petitioner of raping AAA. Petitioner vehemently
testified that: her son was a minor at the time of the incident; denied to Luzviminda that he raped AAA. Thereafter, MMM
CCC and BBB were the children of MMM in her first marriage, and Luzviminda went to their employer who recommended
while AAA and the rest of her siblings were of the second that they should seek advice from the Women's Center. At the
marriage; CCC and BBB are half-brothers of AAA; when MMM said Center, both agreed on an amicable settlement wherein
entrusted AAA and her brothers to her sometime in August of petitioner would stay away from AAA. Thus, petitioner stayed
with a certain priest in the locality for almost two (2) years. But maximum. The accused is condemned to pay the offended
almost every Saturday, petitioner would come home to visit his party AAA, the sum of P100,000.00 as indemnification for the
parents and to bring his dirty clothes for laundry. Every time two (2) rapes (sic).
petitioner came home, FFF bad-mouthed petitioner, calling
him a rapist. Confrontations occurred until an altercation
erupted wherein FFF allegedly slapped Luzviminda. Aggrieved, petitioner appealed the RTC Decision to the CA.30
Subsequently, AAA's parents filed the instant cases.29

Taking into consideration the age of petitioner and upon

The RTC's Ruling posting of the corresponding bail bond for his provisional
liberty in the amount of P40,000.00, the RTC ordered the
petitioner's release pending appeal.31
On May 13, 1999, the RTC held that petitioner's defenses of
denial cannot prevail over the positive identification of
petitioner as the perpetrator of the crime by AAA and BBB, The CA's Ruling
who testified with honesty and credibility. Moreover, the RTC
opined that it could not perceive any motive for AAA's family to
impute a serious crime of Rape to petitioner, considering the On October 26, 2000, the CA affirmed in toto the ruling of the
close relations of both families. Thus, the RTC disposed of this RTC, holding that the petitioner's defense of denial could not
case in this wise: prevail over the positive identification of the petitioner by the
victim AAA and her brother BBB, which were categorical,
consistent and without any showing of ill motive. The CA also
FOR ALL THE FOREGOING, the Court finds the accused held that the respective medical examinations conducted by
Joemar Ortega Y Felisario GUILTY beyond reasonable doubt the two doctors were irrelevant, as it is established that the
as Principal by Direct Participation of the crime of RAPE as slightest penetration of the lips of the female organ
charged in Criminal Cases Nos. 98-19083 and 98-19084 and consummates rape; thus, hymenal laceration is not an element
there being no aggravating or mitigating circumstance, he is of rape. Moreover, the CA opined that petitioner acted with
sentenced to suffer the penalty of Two (2) Reclusion Temporal discernment as shown by his covert acts. Finally, the CA
in its medium period. Applying the Indeterminate Sentence accorded great weight and respect to the factual findings of
Law, the accused shall be imprisoned for each case for a the RTC, particularly in the evaluation of the testimonies of
period of Six (6) years and One (1) day of Prision Mayor, as witnesses.
minimum, to Fifteen (15) years of Reclusion Temporal, as
 IN FACT COMMITTED AND IS CAPABLE OF COMMITTING
THE ALLEGED RAPE WITHIN THE RESIDENCE OF THE
Petitioner filed his Motion for Reconsideration32 of the
VICTIM WHERE SEVERAL OF THE ALLEGED VICTIM'S
assailed Decision which the CA denied in its Resolution33
FAMILY MEMBERS AND THEIR RESPECTIVE MOTHERS
dated November 7, 2001.
WERE PRESENT IS IMPROBABLE AND CONTRARY TO
HUMAN EXPERIENCE.

Hence, this Petition based on the following grounds:

IV.

I.
THE HONORABLE APPELLATE COURT ERRED IN
UPHOLDING THE FACTS SET FORTH BY THE ALLEGED
THE HONORABLE COURT OF APPEALS HAS VICTIM REGARDING THE CIRCUMSTANCES ATTENDING
OVERLOOKED CERTAIN FACTS OF SUBSTANCE AND THE COMMISSION OF RAPE SOMETIME IN AUGUST
VALUE WHICH IF CONSIDERED MIGHT AFFECT THE 1996.34
RESULT OF THE CASE.

Petitioner argues that, while it is true that the factual findings of

II. the CA are conclusive on this Court, we are not prevented
from overturning such findings if the CA had manifestly
overlooked certain facts of substance and value which if
THE HONORABLE COURT OF APPEALS COMMITTED considered might affect the result of the case. Petitioner
GRAVE ERROR WHEN IT FAILED TO APPRECIATE THE stresses that from the testimonies of AAA and BBB, it can be
MEDICAL FINDINGS OF DR. LUCIFREE KATALBAS. deduced that penetration was achieved; thus, AAA felt pain.
Petitioner contends that assuming the allegations of AAA are
true that petitioner inserted his fingers and his penis into her
III. vagina, certainly such acts would leave certain abrasions,
wounds and/or lacerations on the genitalia of AAA, taking into
consideration her age at the time and the alleged size of
THE FINDINGS OF THE LOWER COURT, AFFIRMED BY petitioner's penis. However, such allegation is completely
THE APPELLATE COURT, THAT PETITIONER-APPELLANT belied by the medical report of Dr. Katalbas who, one day after
the alleged rape, conducted a medical examination on AAA On the other hand, respondent People of the Philippines
and found that there were no signs or indications that AAA through the Office of the Solicitor General (OSG) contends
was raped or molested. Petitioner submits that the CA that: the arguments raised by the petitioner are mere
committed a grave error when it disregarded such medical reiterations of his disquisitions before the CA; the RTC, as
report since it disproves the allegation of the existence of rape affirmed by the CA, did not rely on the testimonies of both
and, consequently, the prosecution failed to prove its case; doctors since despite the absence of abrasions, rape is
thus, the presumption of innocence in favor of the petitioner consummated even with the slightest penetration of the lips of
subsists. Moreover, petitioner opines that like AAA, petitioner the female organ; what is relevant in this case is the reliable
is also a child of the barrio who is innocent, unsophisticated testimony of AAA that petitioner raped her in August and
and lacks sexual experience. As such, it is incredible and December of 1996; even in the absence of force, rape was
contrary to human reason that a 13- year-old boy would committed considering AAA's age at that time; as such, AAA
commit such act in the very dwelling of AAA, whose reaction to did not have any ill motive in accusing petitioner; and it is
pain, at the age of six, could not be controlled or subdued. established that the crime of rape could be committed even in
Petitioner claims that poverty was MMM's motive in filing the the presence of other people nearby. Moreover, the OSG
instant case, as she wanted to extort money from the parents relies on the doctrine that the evaluation made by a trial court
of the petitioner. Petitioner points out that the medical report of is accorded the highest respect as it had the opportunity to
Dr. Jocson indicated that the abrasions that were inflicted on observe directly the demeanor of a witness and to determine
the genitalia of AAA were relatively fresh and the same could whether said witness was telling the truth or not. Lastly, the
disappear within a period of 3 to 4 days. Considering that Dr. OSG claims that petitioner acted with discernment when he
Jocson conducted the medical examination on December 12, committed the said crime, as manifested in his covert acts.36
1996, or after the lapse of eleven (11) days after the alleged
incident of rape, and that AAA's parents only filed the instant
case after almost a year, in order to deter Luzviminda from However, Republic Act (R.A.) No. 9344,37 or the Juvenile
filing a case of slander by deed against FFF, it is not Justice and Welfare Act of 2006, was enacted into law on April
inconceivable that MMM inflicted said abrasions on AAA to 28, 2006 and it took effect on May 20, 2006.38 The law
prove their case and to depart from the initial confession of establishes a comprehensive system to manage children in
AAA that it was actually BBB who raped her. Finally, petitioner conflict with the law39 (CICL) and children at risk40 with child-
submits that AAA and BBB were merely coached by MMM to appropriate procedures and comprehensive programs and
fabricate these stories.35 services such as prevention, intervention, diversion,
rehabilitation, re-integration and after-care programs geared
towards their development. In order to ensure its
implementation, the law, particularly Section 841 thereof, has
created the Juvenile Justice and Welfare Council (JJWC) and youth rehabilitation center shall likewise be released, unless it
vested it with certain duties and functions42 such as the is contrary to the best interest of the child.
formulation of policies and strategies to prevent juvenile
delinquency and to enhance the administration of juvenile
justice as well as the treatment and rehabilitation of the CICL. SECTION 65. Children Detained Pending Trial. — If the child
The law also is detained pending trial, the Family Court shall also determine
whether or not continued detention is necessary and, if not,
determine appropriate alternatives for detention. If detention is
provides for the immediate dismissal of cases of CICL, necessary and he/she is detained with adults, the court shall
specifically Sections 64, 65, 66, 67 and 68 of R.A. No. 9344's immediately order the transfer of the child to a youth detention
Transitory Provisions.43 home.

The said Transitory Provisions expressly provide: SECTION 66. Inventory of "Locked-up" and Detained Children
in Conflict with the Law. — The PNP, the BJMP and the
BUCOR are hereby directed to submit to the JJWC, within
Title VIII ninety (90) days from the effectivity of this Act, an inventory of
all children in conflict with the law under their custody.
Transitory Provisions

SECTION 67. Children Who Reach the Age of Eighteen (18)

SECTION 64. Children in Conflict with the Law Fifteen (15) Years Pending Diversion and Court Proceedings. — If a child
Years Old and Below. — Upon effectivity of this Act, cases of reaches the age of eighteen (18) years pending diversion and
children fifteen (15) years old and below at the time of the court proceedings, the appropriate diversion authority in
commission of the crime shall immediately be dismissed and consultation with the local social welfare and development
the child shall be referred to the appropriate local social officer or the Family Court in consultation with the Social
welfare and development officer. Such officer, upon thorough Services and Counseling Division (SSCD) of the Supreme
assessment of the child, shall determine whether to release Court, as the case may be, shall determine the appropriate
the child to the custody of his/her parents, or refer the child to disposition. In case the appropriate court executes the
prevention programs, as provided under this Act. Those with judgment of conviction, and unless the child in conflict with the
suspended sentences and undergoing rehabilitation at the law has already availed of probation under Presidential Decree
No. 603 or other similar laws, the child may apply for probation affirmed by the CA, did not doubt AAA's credibility, and found
if qualified under the provisions of the Probation Law. no ill motive for her to charge petitioner of the heinous crime of
rape and to positively identify him as the malefactor. Both
courts also accorded respect to BBB's testimony that he saw
SECTION 68. Children Who Have Been Convicted and are petitioner having sexual intercourse with his younger sister.
Serving Sentences. — Persons who have been convicted and While petitioner asserts that AAA's poverty is enough motive
are serving sentence at the time of the effectivity of this Act, for the imputation of the crime, we discard such assertion for
and who were below the age of eighteen (18) years at the time no mother or father like MMM and FFF would stoop so low as
of the commission of the offense for which they were convicted to subject their daughter to the tribulations and the
and are serving sentence, shall likewise benefit from the embarrassment of a public trial knowing that such a traumatic
retroactive application of this Act. They shall be entitled to experience would damage their daughter's psyche and mar
appropriate dispositions provided under this Act and their her life if the charge is not true.45 We find petitioner's claim
sentences shall be adjusted accordingly. They shall be that MMM inflicted the abrasions found by Dr. Jocson in the
immediately released if they are so qualified under this Act or genitalia of AAA, in order to extort money from petitioner’s
other applicable laws. parents, highly incredible. Lastly, it must be noted that in most
cases of rape committed against young girls like AAA who was
only 6 years old then, total penetration of the victim's organ is
Ostensibly, the only issue that requires resolution in this case improbable due to the small vaginal opening. Thus, it has been
is whether or not petitioner is guilty beyond reasonable doubt held that actual penetration of the victim's organ or rupture of
of the crime of rape as found by both the RTC and the CA. the hymen is not required.46 Therefore, it is not necessary for
However, with the advent of R.A. No. 9344 while petitioner's conviction that the petitioner succeeded in having full
case is pending before this Court, a new issue arises, namely, penetration, because the slightest touching of the lips of the
whether the pertinent provisions of R.A. No. 9344 apply to female organ or of the labia of the pudendum constitutes
petitioner's case, considering that at the time he committed the rape.47
alleged rape, he was merely 13 years old.

However, for one who acts by virtue of any of the exempting

In sum, we are convinced that petitioner committed the crime circumstances, although he commits a crime, by the complete
of rape against AAA. In a prosecution for rape, the absence of any of the conditions which constitute free will or
complainant's candor is the single most important factor. If the voluntariness of the act, no criminal liability arises.48
complainant's testimony meets the test of credibility, the Therefore, while there is a crime committed, no criminal liability
accused can be convicted solely on that basis.44 The RTC, as attaches. Thus, in Guevarra v. Almodovar,49 we held:
 petitioner may avail himself of the provisions of Section 3851
of R.A. No. 9344 providing for automatic suspension of
[I]t is worthy to note the basic reason behind the enactment of
sentence if finally found guilty. Lastly, the OSG argued that
the exempting circumstances embodied in Article 12 of the
while it is a recognized principle that laws favorable to the
RPC; the complete absence of intelligence, freedom of action,
accused may be given retroactive application, such principle
or intent, or on the absence of negligence on the part of the
does not apply if the law itself provides for conditions for its
accused. In expounding on intelligence as the second element
application.
of dolus, Albert has stated:

We are not persuaded.

"The second element of dolus is intelligence; without this
power, necessary to determine the morality of human acts to
distinguish a licit from an illicit act, no crime can exist, and
Section 6 of R.A. No. 9344 clearly and explicitly provides:
because . . . the infant (has) no intelligence, the law exempts
(him) from criminal liability."

SECTION 6. Minimum Age of Criminal Responsibility. — A

child fifteen (15) years of age or under at the time of the
It is for this reason, therefore, why minors nine years of age
commission of the offense shall be exempt from criminal
and below are not capable of performing a criminal act.
liability. However, the child shall be subjected to an
intervention program pursuant to Section 20 of this Act.

In its Comment50 dated April 24, 2008, the OSG posited that
petitioner is no longer covered by the provisions of Section 64
A child above fifteen (15) years but below eighteen (18) years
of R.A. No. 9344 since as early as 1999, petitioner was
of age shall likewise be exempt from criminal liability and be
convicted by the RTC and the conviction was affirmed by the
subjected to an intervention program, unless he/she has acted
CA in 2001. R.A. No. 9344 was passed into law in 2006, and
with discernment, in which case, such child shall be subjected
with the petitioner now approximately 25 years old, he no
to the appropriate proceedings in accordance with this Act.
longer qualifies as a child as defined by R.A. No. 9344.
Moreover, the OSG claimed that the retroactive effect of
Section 64 of R.A. No. 9344 is applicable only if the child-
accused is still below 18 years old as explained under
Sections 67 and 68 thereof. The OSG also asserted that
The exemption from criminal liability herein established does time of the publication of such laws, a final sentence has been
not include exemption from civil liability, which shall be pronounced and the convict is serving the same.
enforced in accordance with existing laws.

We also have extant jurisprudence that the principle has been

Likewise, Section 64 of the law categorically provides that given expanded application in certain instances involving
cases of children 15 years old and below, at the time of the special laws.54 R.A. No. 9344 should be no exception.
commission of the crime, shall immediately be dismissed and
the child shall be referred to the appropriate local social
welfare and development officer (LSWDO). What is controlling, In fact, the legislative intent for R.A. No. 9344's retroactivity is
therefore, with respect to the exemption from criminal liability even patent from the deliberations on the bill in the Senate,
of the CICL, is not the CICL's age at the time of the quoted as follows:
promulgation of judgment but the CICL's age at the time of the
commission of the offense. In short, by virtue of R.A. No. 9344,
the age of criminal irresponsibility has been raised from 9 to 15 Sections 67-69 On Transitory Provisions
years old.52

Senator Santiago. In Sections 67 to 69 on Transitory

Given this precise statutory declaration, it is imperative that Provisions, pages 34 to 35, may I humbly propose that we
this Court accord retroactive application to the aforequoted should insert, after Sections 67 to 69, the following provision:
provisions of R.A. No. 9344 pursuant to the well-entrenched
principle in criminal law - favorabilia sunt amplianda adiosa
restrigenda. Penal laws which are favorable to the accused ALL CHILDREN WHO DO NOT HAVE CRIMINAL LIABILITY
are given retroactive effect.53 This principle is embodied in UNDER THIS LAW PENDING THE CREATION OF THE
Article 22 of the Revised Penal Code, which provides: OFFICE OF JUVENILE WELFARE AND RESTORATION
(OJWR) AND THE LOCAL COUNCIL FOR THE
PROTECTION OF CHILDREN (LCPC) WITHIN A YEAR,
Art. 22. Retroactive effect of penal laws. — Penal laws shall SHALL BE IMMEDIATELY TRANSFERRED TO DSWD
have a retroactive effect insofar as they favor the persons INSTITUTIONS, AND DSWD SHALL UNDERTAKE
guilty of a felony, who is not a habitual criminal, as this term is DIVERSION PROGRAMS FOR THEM, PRIORITIZING THE
defined in Rule 5 of Article 62 of this Code, although at the
YOUNGER CHILDREN BELOW 15 YEARS OF AGE AND
THE LIGHTER OFFENSES.
Senator Santiago. Yes, that is correct. But there will have to be
a process of sifting before that. That is why I was proposing
that they should be given to the DSWD, which will conduct the
The only question will be: Will the DSWD have enough
sifting process, except that apparently, the DSWD does not
facilities for these adult offenders?
have the physical facilities.

Senator Pangilinan, Mr. President, according to the CWC, the

Senator Pangilinan. Mr. President, conceptually, we have no
DSWD does not have the capability at the moment. It will take
argument. We will now have to just craft it to ensure that the
time to develop the capacity.
input raised earlier by the good Senator is included and the
capacity of the DSWD to be able to absorb these individuals.
Likewise, the issue should also be incorporated in the
Senator Santiago. Well, we can say that they shall be amendment.
transferred whenever the facilities are ready.

The President. Just a question from the Chair. The moment

Senator Pangilinan. Yes. Mr. President, just a clarification. this law becomes effective, all those children in conflict with
When we speak here of children who do not have criminal the law, who were convicted in the present Penal Code, for
liability under this law, we are referring here to those who example, who will now not be subject to incarceration under
currently have criminal liability, but because of the retroactive this law, will be immediately released. Is that the
effect of this measure, will now be exempt. It is quite understanding?
confusing.

Senator Pangilinan. Yes, Mr. President.

Senator Santiago. That is correct.

Senator Santiago. They would immediately fall under . . . .

Senator Pangilinan. In other words, they should be released
either to their parents or through a diversion program, Mr.
President. That is my understanding.
Senator Pangilinan. The diversion requirements, Mr.
President.
The President. All right. Is there any objection? [Silence] There
being none, the Santiago amendment is accepted.55

Senator Santiago. Yes.

xxxx

The President. But since the facilities are not yet available,
what will happen to them?
PIMENTEL AMENDMENTS

Senator Santiago. Well, depending on their age, which has not

xxxx
yet been settled . . . . . provides, for example, for conferencing
family mediation, negotiation, apologies, censure, et cetera.
These methodologies will apply. They do not necessarily have
to remain in detention. Senator Pimentel.

Senator Pangilinan. Yes, that is correct, Mr. President. But it xxxx

will still require some sort of infrastructure, meaning,
manpower. The personnel from the DSWD will have to
address the counseling. So, there must be a transition in terms Now, considering that laws are normally prospective, Mr.
of building the capacity and absorbing those who will benefit President, in their application, I would like to suggest to the
from this measure. Sponsor if he could incorporate some kind of a transitory
provision that would make this law apply also to those who
might already have been convicted but are awaiting, let us
The President. Therefore, that should be specifically provided say, execution of their penalties as adults when, in fact, they
for as an amendment. are juveniles.

Senator Pangilinan. That is correct, Mr. President. Senator Pangilinan. Yes, Mr. President. We do have a
provision under the Transitory Provisions wherein we address
the issue raised by the good Senator, specifically, Section 67.
For example, "Upon effectivity of this Act, cases of children
The President. In other words, even after final conviction if, in
fifteen (15) years old and below at the time of the commission
fact, the offender is able to prove that at the time of the
of the crime shall immediately be dismissed and the child shall
commission of the offense he is a minor under this law, he
be referred to the appropriate local social welfare and
should be given the benefit of the law.
development officer." So that would be giving retroactive
effect.

Senator Pimentel. Yes, Mr. President. That is correct.

Senator Pimentel. Of cases that are still to be prosecuted.

Senator Pangilinan. Yes, Mr. President. We accept that

proposed amendment.56
Senator Pangilinan. Yes.

The Court is bound to enforce this legislative intent, which is

Senator Pimentel. What about those that have already been
the dominant factor in interpreting a statute. Significantly, this
prosecuted? I was trying to cite the instance of juvenile
Court has declared in a number of cases, that intent is the soul
offenders erroneously convicted as adults awaiting execution.
of the law, viz.:

Senator Pangilinan. Mr. President, we are willing to include

The intent of a statute is the law. If a statute is valid it is to
that as an additional amendment, subject to style.
have effect according to the purpose and intent of the
lawmaker. The intent is the vital part, the essence of the law,
and the primary rule of construction is to ascertain and give
Senator Pimentel. I would certainly appreciate that because
effect to the intent. The intention of the legislature in enacting
that is a reality that we have to address, otherwise injustice will
a law is the law itself, and must be enforced when ascertained,
really be . . .
although it may not be consistent with the strict letter of the
statute. Courts will not follow the letter of a statute when it
leads away from the true intent and purpose of the legislature
Senator Pangilinan. Yes, Mr. President, we would also include and to conclusions inconsistent with the general purpose of
that as a separate provision. the act. Intent is the spirit which gives life to
 that petitioner and/or his parents are liable to pay AAA
P100,000.00 as civil indemnity. This award is in the nature of
a legislative enactment. In construing statutes the proper
actual or compensatory damages, and is mandatory upon a
course is to start out and follow the true intent of the legislature
conviction for rape.
and to adopt that sense which harmonizes best with the
context and promotes in the fullest manner the apparent policy
and objects of the legislature.57
The RTC, however, erred in not separately awarding moral
damages, distinct from the civil indemnity awarded to the rape
victim. AAA is entitled to moral damages in the amount of
Moreover, penal laws are construed liberally in favor of the
P50,000.00 for each count of rape, pursuant to Article 2219 of
accused.58 In this case, the plain meaning of R.A. No. 9344's
the Civil Code, without the necessity of additional pleading or
unambiguous language, coupled with clear lawmakers' intent,
proof other than the fact of rape. Moral damages are granted
is most favorable to herein petitioner. No other interpretation is
in recognition of the victim's injury necessarily resulting from
justified, for the simple language of the new law itself
the odious crime of rape.59
demonstrates the legislative intent to favor the CICL.

A final note. While we regret the delay, we take consolation in

It bears stressing that the petitioner was only 13 years old at
the fact that a law intended to protect our children from the
the time of the commission of the alleged rape. This was duly
harshness of life and to alleviate, if not cure, the ills of the
proven by the certificate of live birth, by petitioner's own
growing number of CICL and children at risk in our country,
testimony, and by the testimony of his mother. Furthermore,
has been enacted by Congress. However, it has not escaped
petitioner’s age was never assailed in any of the proceedings
us that major concerns have been raised on the effects of the
before the RTC and the CA. Indubitably, petitioner, at the time
law. It is worth mentioning that in the Rationale for the
of the commission of the crime, was below 15 years of age.
Proposed Rule on Children Charged under R.A. No. 9165, or
Under R.A. No. 9344, he is exempted from criminal liability.
the Comprehensive Dangerous Drugs Act of 2002, it was
found that:

However, while the law exempts petitioner from criminal

liability for the two (2) counts of rape committed against AAA,
The passage of Republic Act No. 9344 or the Juvenile Justice
Section 6 thereof expressly provides that there is no
and Welfare Act of 2006 raising the age of criminal
concomitant exemption from civil liability. Accordingly, this
irresponsibility from 9 years old to 15 years old has
Court sustains the ruling of the RTC, duly affirmed by the CA,
compounded the problem of employment of children in the
drug trade several times over. Law enforcement authorities, to the local social welfare and development officer of the
Barangay Kagawads and the police, most particularly, locality for the appropriate intervention program. Nevertheless,
complain that drug syndicates have become more aggressive the petitioner is hereby ordered to pay private complainant
in using children 15 years old or below as couriers or foot AAA, civil indemnity in the amount of One Hundred Thousand
soldiers in the drug trade. They claim that Republic Act No. Pesos (P100,000.00) and moral damages in the amount of
9344 has rendered them ineffective in the faithful discharge of One Hundred Thousand Pesos (P100,000.00). No costs.
their duties in that they are proscribed from taking into custody
children 15 years old or below who openly flaunt possession,
use and delivery or distribution of illicit drugs, simply because Let a copy of this Decision be furnished the two Houses of
their age exempts them from criminal liability under the new Congress and the Juvenile Justice and Welfare Council
law. 60 (JJWC).

The Court is fully cognizant that our decision in the instant SO ORDERED.
case effectively exonerates petitioner of rape, a heinous crime
committed against AAA who was only a child at the tender age
of six (6) when she was raped by the petitioner, and one who
deserves the law’s greater protection. However, this
consequence is inevitable because of the language of R.A.
No. 9344, the wisdom of which is not subject to review by this
Court.61 Any perception that the result reached herein
appears unjust or unwise should be addressed to Congress.
Indeed, the Court has no discretion to give statutes a meaning
detached from the manifest intendment and language of the
law. Our task is constitutionally confined only to applying the
law and jurisprudence to the proven facts, and we have done
so in this case.62

WHEREFORE, in view of the foregoing, Criminal Case Nos.

98-19083 and 98-19084 filed against petitioner Joemar F.
Ortega are hereby DISMISSED. Petitioner is hereby referred