THIRD
DIVISION
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GLORIA PILAR S. AGUIRRE, Petitioner, - versus - SECRETARY OF THE DEPARTMENT OF JUSTICE, MICHELINA
S. AGUIRRE-OLONDRIZ, PEDRO B. AGUIRRE, DR. JUVIDO AGATEP and DR. MARISSA B.
PASCUAL, Respondents. |
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G. R. No. 170723 Present: YNARES-SANTIAGO,
Chairperson, AUSTRIA-MARTINEZ, CHICO-NAZARIO, and REYES, JJ. Promulgated: March
3, 2008 |
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CHICO-NAZARIO, J.:
In this petition for review on certiorari[1] under Rule 45 of the Rules of Court, as
amended, petitioner Gloria Pilar S. Aguirre (Gloria Aguirre) seeks the reversal of the 21 July 2005 Decision[2] and 5 December 2005 Resolution,[3] both
of the Court of Appeals in CA-G.R. SP No. 88370, entitled “Gloria Pilar S.
Aguirre v. Secretary of the Department of Justice, Michelina S.
Aguirre-Olondriz, Dr. Juvido Agatep, Dra. Marissa B. Pascual, Pedro B. Aguirre
and John and Jane Does.”
The Court
of Appeals found no grave abuse of discretion on the part of the Secretary of
the Department of Justice (DOJ) when the latter issued the twin resolutions
dated
The
Assistant City Prosecutor for the OCP of Quezon City recommended the dismissal
of the criminal complaint, docketed as I.S. No. 02-12466, for violation of
Articles 172 (Falsification by Private Individuals and Use of Falsified
Documents) and 262 (Mutilation), both of the Revised Penal Code, in relation to
Republic Act No. 7610, otherwise known as “Child
Abuse, Exploitation and Discrimination Act,” for insufficiency of evidence.
The case stemmed from a complaint filed by petitioner Gloria Aguirre
against respondents Pedro B. Aguirre (Pedro Aguirre), Michelina S.
Aguirre-Olondriz (Olondriz), Dr. Juvido Agatep (Dr. Agatep), Dr. Marissa B.
Pascual (Dr. Pascual) and several John/Jane Does for falsification, mutilation
and child abuse.
The antecedents of the present petition are:
Laureano “Larry” Aguirre[7] used
to be a charge of the Heart of Mary Villa, a child caring agency run by the Good
Shepherd Sisters and licensed by the Department of Social Work and Development
(DSWD). Sometime in 1978, respondent
Pedro Aguirre; the latter’s spouse, Lourdes S. Aguirre (Lourdes Aguirre); and
their four daughters, who included petitioner Gloria Aguirre and respondent
Olondriz, came to know Larry, who was then just over a year old. The Aguirres would have Larry spend a few days
at their home and then return him to the orphanage thereafter. In June 1980, Larry, then two years and nine
months of age, formally became the ward of respondent Pedro Aguirre and his spouse
Lourdes Aguirre by virtue of an Affidavit
of Consent to Legal Guardianship executed in their favor by Sister Mary
Concepta Bellosillo, Superior of the Heart of Mary Villa. On
As Larry was growing up, the Aguirre spouses and their children noticed
that his developmental milestones were remarkably delayed. His cognitive and physical growth did not
appear normal in that “at age 3 to 4 years, Larry could only crawl on his tummy
like a frog x x x;”[8]
he did not utter his first word until he was three years of age; did not speak
in sentences until his sixth year; and only learned to stand up and walk after he
turned five years old. At age six, the
Aguirre spouses first enrolled Larry at the Colegio de San Agustin,
In November of 2001, respondent Dr.
Agatep, a urologist/surgeon, was approached concerning the intention to have
Larry, then 24 years of age, vasectomized. Prior to performing the procedure on the
intended patient, respondent Dr. Agatep required that Larry be evaluated by a
psychiatrist in order to confirm and validate whether or not the former could
validly give his consent to the medical procedure on account of his mental
deficiency.
In view of the required psychiatric
clearance, Larry was brought to respondent Dr. Pascual, a psychiatrist, for
evaluation. In a psychiatric report
dated
[T]he responsibility
of decision making may be given to his parent or guardian.[11]
the full text of which reads –
PSYCHIATRY
REPORT
GENERAL DATA
LAUREANO AGUIRRE, 24 years old,
male, high school graduate of
CLINICAL SUMMARY
Larry was adopted at age 3 from an
orphanage and prenatal history is not known to the adoptive family except that
abortion was attempted. Developmental
milestones were noted to be delayed. He
started to walk and speak in single word at around age 5. He was enrolled in Colegio de San Agustin at
age 6 where he showed significant learning difficulties that he had to repeat 1st
and 4th grades. A consult was
done in 1989 when he was 11 years old.
Neurological findings and EEG results were not normal and he was given
Tecretol and Encephabol by his neurologist.
Psychological evaluation revealed mild to moderate mental retardation,
special education training was advised and thus, he was transferred to St. John
Marie Vianney. He finished his
elementary and secondary education in the said school. He was later enrolled in a vocational course at
Don Bosco which he was unable to continue.
There has been no reported behavioral problems in school and he gets
along relatively well with his teachers and some of his classmates.
Larry grew up with a very supportive
adoptive family. He is the youngest in
the family of four sisters. Currently,
his adoptive parents are already old and have medical problem and thus, they
could no longer monitor and take care of him like before. His adoptive mother has Bipolar Mood Disorder
and used to physically maltreat him. A
year ago, he had an episode of dizziness, vomiting and headaches after he was
hit by his adoptive mother. Consult was
done in
He is currently employed in the
company of his sister and given assignment to do some photocopying, usually in
the mornings. He enjoys playing billiards
and basketball with his nephews and, he spends most of his leisure time
watching TV and listening to music. He
could perform activities of daily living without assistance except that he
still needs supervision in taking a bath.
He cannot prepare his own meal and never allowed to go out and run
errands alone. He does not have friends
and it is only his adoptive family whom he has significant relationships. He claims that he once had a girlfriend when
he was in high school who was more like a best friend to him. He never had sexual relations. He has learned to smoke and drink alcohol few
years ago through his cousins and the drivers.
There is no history of abuse of alcohol or any prohibited substances.
MEDICAL STATUS
EXAMINATION
The applicant was appropriately
dressed. He was cooperative and he had
intermittent eye contact. Speech was
spontaneous, soft, and relevant. He
responded to questions in single words or simple sentences. He was anxious specially at the start of the
interview, with full affect appropriate to mood and thought content. There was no apparent thought or perceptual
disturbance. No suicidal/homicidal
thoughts elicited. He was oriented to
time, place and person. He has intact
remote and recent memory. He could do
simple calculation. He could write his
name and read simple words. His human
figure was comparable to a 7-8 year old.
He demonstrated fair judgment and poor insight. He had fair impulse control.
PSYCHOLOGICAL TESTS
Psychological tests done on
SIGNIFICANT
LABORATORY EXAMS RESULTS
CT scan done
MRI done on
ASSESSMENT AND
RECOMMENDATION
Axis
I None
Axis
II Mental
Retardation, mild to moderate type
Axis
III None
Axis
IV None at present
Axis
V Current
GAF = 50-60
Larry’s
mental deficiency could be associated with possible perinatal insults, which is
consistent with the neuroimaging findings.
Mental retardation associated with neurological problems usually has
poorer prognosis. Larry is very much
dependent on his family for his needs, adaptive functioning, direction and in
making major life decisions. At his
capacity, he may never understand the nature, the foreseeable risks and
benefits, and consequences of the procedure (vasectomy) that his family wants
for his protection. Thus, the
responsibility of decision making may be given to his parent or guardian.
Marissa
B. Pascual, M.D.
Psychiatrist[12]
Considering the above recommendation, respondent Pedro Aguirre’s written
consent was deemed sufficient in order to proceed with the conduct of the
vasectomy. Hence, on
On 11 June 2002, petitioner Gloria Aguirre, respondent Pedro Aguirre’s
eldest child, instituted a criminal complaint for the violation of the Revised Penal
Code, particularly Articles 172 and 262, both in relation to Republic Act No.
7610 against respondents Pedro Aguirre, Olondriz, Dr. Agatep, Dr. Pascual and
several John/Jane Does before the Office of the City Prosecutor of Quezon City.
The Complaint Affidavit,[13]
docketed as I.S. No. 02-12466, contained the following allegations:
2. x
x x Dr. Agatep and Dra. Pascual were (sic) medical practitioners specializing
in urology and psychiatry respectively; while respondent Pedro B. Aguirre is my
father; Michelina S. Aguirre-Olondriz is my sister, and the victim Laureano
“Larry” Aguirre xxx is my common law brother. JOHN and JANE DOES were the
persons who, acting upon the apparent instructions of respondents Michelina
Aguirre-Olondriz and/or Pedro B. Aguirre, actually scouted, prospected,
facilitated, solicited and/or procured the medical services of respondents Dra.
Pascual and Dr. Agatep vis-à-vis the intended mutilation via bilateral
vasectomy of my common law brother Larry Aguirre subject hereof.
x x x x
4. Sometime
in March 2002, however, the Heart of Mary Villa of the Good Shepherd Sisters
was furnished a copy of respondent Dra. Pascual’s Psychiatry Report dated
x x x x
6. Based on the foregoing charade and false pretenses invariably committed by all of the respondents in conspiracy with each other, on 31 January 2002, my common law brother Larry Aguirre, although of legal age but conspiratorially caused to be declared by respondents to be “mentally deficient” and incompetent to give consent to his BILATERAL VASECTOMY, was then intentionally, unlawfully, maliciously, feloniously and/or criminally placed thereafter under surgery for MUTILATION VIA “BILATERAL VASECTOMY” x x x, EVEN WITHOUT ANY AUTHORIZATION ORDER from the GUARDIANSHIP COURT, nor personal consent of Larry Aguirre himself.
In addition to the above, the complaint included therein an allegation that –
v. x x x without a PRIOR medical
examination, professional interview of nor verification and consultation with
my mother, Lourdes Sabino-Aguirre, respondent Dra. Pascual baselessly,
fraudulently and with obvious intent to defame and malign her reputation and
honor, and worse, that of our Sabido family, falsely concluded and diagnosed,
via her falsified Psychiatry Report, that my mother Lourdes Sabido-Aguirre
purportedly suffers from “BIPOLAR MOOD DISORDER” x x x.
To answer petitioner Gloria Aguirre’s accusations against them,
respondents Pedro Aguirre, Olondriz, Dr. Agatep and Dr. Pascual submitted their
respective Counter-Affidavits.
In her defense,[14] respondent
Olondriz denied that she “prospected, scouted, facilitated, solicited and/or
procured any false statement, mutilated or abused” her common-law brother,
Larry Aguirre. Further, she countered that:
3. x
x x While I am aware and admit that Larry went through a vasectomy
procedure, there is nothing in the Complaint which explains how the vasectomy
amounts to a mutilation.
x
x x x
5. In
any case, as I did not perform the vasectomy, I can state with complete
confidence that I did not participate in any way in the alleged mutilation.
6. Neither
did I procure or solicit the services of the physician who performed the
vasectomy, Dr. Juvido Agatep x x x. It was my father, Pedro Aguirre, Larry’s guardian,
who obtained his services. I merely acted upon his instructions and accompanied
my brother to the physician, respondents Dra. Marissa B. Pascual x x x.
x x x x
10. Neither
does the Complaint explain in what manner the Complainant is authorized or has
any standing to declare that Larry’s consent was not obtained. Complainant is
not the guardian or relative of Larry. While she argues that Larry’s consent
should have been obtained the Complaint does not dispute the psychiatrist’s
findings about Larry’s inability to give consent.
x
x x x
13. x
x x the Complaint does not even state what alleged participation was falsified
or the portion of the psychiatric report that allegedly states that someone
participated when in fact that person did not so participate.
x
x x x
15. Again,
I had no participation in the preparation of the report of Dr. Pascual x x x.
x
x x x
17. x
x x the Complaint does not dispute that he (Larry) is mentally deficient or
incompetent to give consent.
x
x x x
19. x
x x I verified that the effect of a vasectomy operation was explained to him
(Larry) by both respondent doctors.
20. x
x x I accompanied Larry and obeyed my father on the belief that my father
continues to be the legal guardian of Larry. I know of no one else who asserts
to be his legal guardian x x x.[15]
Alleging the same statement of facts and defenses, respondent Pedro
Aguirre argues against his complicity in the crime of mutilation as charged and
asserts that:
5. In any case, as I did not perform the
vasectomy, I can state with complete confidence that I did not participate in
any way in the alleged mutilation.[16]
Nevertheless, he maintains that the vasectomy performed on Larry does not
in any way amount to mutilation, as the latter’s reproductive organ is still
completely intact.[17] In any case, respondent Pedro Aguirre explains
that the procedure performed is reversible through another procedure called
Vasovasostomy, to wit:
8. I understand that vasectomy is reversible through a procedure called
Vasovasostomy. I can also state with
confidence that the procedure enables men who have undergone a vasectomy to
sire a child. Hence, no permanent damage was caused by the
procedure.
Respondent Pedro Aguirre challenges
the charge of falsification in the complaint, to wit:
14. x x x I did not make it appear that any
person participated in any act or proceeding when that person did not in fact
participate x x x.
x x x x
16. x x x I had no participation in the preparation of the report of Dra. Pascual. She arrived at her report independently, using her own professional judgment x x x.
x x x x
31. What I cannot understand about Petita’s Complaint is how Larry is argued to be legally a child under the definition of one law but nonetheless and simultaneously argued to be capacitated to give his consent as fully as an adult.[18]
Respondent Pedro Aguirre further
clarifies that co-guardianship over Larry had been granted to himself and his
wife, Lourdes Aguirre, way back on
Just as the two preceding respondents did, respondent Dr. Agatep also
disputed the allegations of facts stated in the Complaint. Adopting the allegations of his co-respondents
insofar as they were material to the charges against him, he vehemently denied
failing to inform Larry of the intended procedure. In his counter-statement of
facts he averred that:
(b) x
x x I scheduled Larry for consultative interview x x x wherein I painstakingly
explained what vasectomy is and the consequences thereof; but finding signs of
mental deficiency, x x x I advised his relatives and his nurse who accompanied
him to have Larry examined by a psychiatrist who could properly determine
whether or not Larry x x x can really give his consent, thus I required them to
secure first a psychiatric evaluation and clearance prior to the contemplated
procedure.
(c) On
(d) x x
x I was likewise furnished a copy of an affidavit executed by Pedro Aguirre
stating that he was the legal guardian of Larry x x x Pedro Aguirre gave his
consent to vasectomize Larry x x x.
(e)
Only then, specifically
In defense against the charge of falsification and mutilation, respondent
Dr. Agatep argued that subject complaint should be dismissed for the following
reasons:
1. The
complainant has no legal personality to file this case. As mentioned above, she is only a common law
sister of Larry who has a legal guardian in the person of Pedro Aguirre, one of
the herein respondents x x x.
2. x x x [t]he allegations in the
complaint clearly centers on the condition of complainant’s mother, Lourdes
Aguirre, her reputation, and miserably fails to implicate the degree of
participation of herein respondent. x x x
x x x x
(b)
Falsification. x x x I strongly
aver that this felony does not apply to me since it clearly gives reference to
co-respondent, Dr. Marissa Pascual’s Psychiatry Report, dated
(c)
Mutilation. x x x Vasectomy does not in anyway equate to castration and
what is touched in vasectomy is not considered an organ in the context of law
and medicine, it is quite remote from the penis x x x.
(d) Child Abuse. x x x the complaint-affidavit is very vague in specifying the applicability of said law. It merely avers that Laureano “Larry” Aguirre is a child, and alleges his father, Pedro Aguirre, has parental authority over him x x x.[20]
Similarly, respondent Dr. Pascual denied the criminal charges of
falsification and mutilation imputed to her. She stands by the contents of the assailed
Psychiatric Report, justifying it thus:
x x x My opinion of Larry Aguirre’s
mental status was based on my own personal observations, his responses during
my interview of him, the results of the two (2) psychological tests conducted
by clinical psychologists, the results of laboratory tests, including a CT Scan
and MRI, and his personal and family history which I obtained from his sister,
Michelina Aguirre-Olondriz x x x.
5. x
x x the reference in my report concerning Mrs. Lourdes Aguirre is not a
statement of my opinion of Mrs. Aguirre’s mental status, x x x. Rather, it is part of the patient’s personal
and family history as conveyed to me by Mrs. Aguirre-Olondriz.
6. x
x x An expression of my opinion, especially of an expert opinion, cannot give
rise to a charge for falsification. A
contrary opinion by another expert only means that the experts differ, and does
not necessarily reflect on the truth or falsity of either opinion x x x.
7. x
x x I never stated that I examined Mrs. Aguirre, because I never did x x x.
8. I
had no participation in the surgery performed on Larry Aguirre except to render
an opinion on his capacity to give informed consent to the vasectomy x x x.
9. Without admitting the merits of the complaint, I submit that complainants are not the proper persons to subscribe to the same as they are not the offended party, peace officer or other public officer charged with the enforcement of the law violated x x x.[21]
The Assistant City Prosecutor held that the circumstances attendant to
the case did not amount to the crime of falsification. He held that –
[T]he claim of the complainant that the
Psychiatric Report was falsified, because consent was not given by Larry
Aguirre to the vasectomy and/or he was not consulted on said operation does not
constitute falsification. It would have been different if it was stated in the
report that consent was obtained from Larry Aguirre or that it was written
therein that he was consulted on the vasectomy, because that would mean that it
was made to appear in the report that Larry Aguirre participated in the act or
proceeding by giving his consent or was consulted on the matter when in truth
and in fact, he did not participate. Or if not, the entry would have been an
untruthful statement. But that is not the case. Precisely (sic) the report was
made to determine whether Larry Aguirre could give his consent to his intended
vasectomy. Be that as it may, the matter of Larry’s consent having obtained or
not may nor be an issue after all, because complainant’s (sic) herself alleged
that Larry’s mental condition is that of a child, who can not give consent.
Based on the foregoing consideration, no falsification can be established under
the circumstances.[22]
Even the statement in the Psychiatric Report of respondent Dr. Pascual
that Lourdes Aguirre had Bipolar Mood Disorder cannot be considered
falsification since –
The report did not state that Lourdes Aguirre
was in fact personally interviewed by respondent Dr. Pascual and that the
latter concluded that Lourdes Aguirre has Bipolar Mood Disorder. The report
merely quoted other sources of information with respect to the condition of
Lourdes Aguirre, in the same manner that the fact that Lourdes Aguirre was
physically abusing Larry Aguirre was also not of Dra. Pascual personal
knowledge. But the fact that Dra. Pascual cited finding, which is not of her
own personal knowledge in her report does not mean that she committed
falsification in the process. Her sources may be wrong and may affect the
veracity of her report, but for as long as she has not alleged therein that she
personally diagnosed Lourdes Aguirre, which allegation would not then be true,
she cannot be charged of falsification. Therefore, it goes without saying that
if the author of the report is not guilty, then with more reason the other
respondents are not liable.[23]
Respecting the charge of mutilation, the Assistant City Prosecutor also held
that the facts alleged did not amount to the crime of mutilation as defined and
penalized under Article 262 of the Revised Penal Code, i.e., “[t]he vasectomy operation did not in any way deprived (sic)
Larry of his reproductive organ, which is still very much part of his physical
self.” He ratiocinated that:
While the operation renders him the inability
(sic) to procreate, the operation is reversible and therefore, cannot be the
permanent damage contemplated under Article 262 of the Revised Penal Code.[24]
The Assistant City Prosecutor,[25] in a
Resolution[26]
dated
WHEREFORE, it is recommended that the
above-entitled case be dismissed for insufficiency of evidence.[27]
On
In a Resolution dated
Under Section 12, in relation to Section 7,
of Department Circular No. 70 dated
We carefully examined the petition and its
attachments and found no error that would justify a reversal of the assailed
resolution which is in accord with the law and evidenced (sic) on the matter.[29]
Petitioner Gloria Aguirre’s Motion for Reconsideration was likewise
denied with finality by the DOJ in another Resolution dated
Resolute in her belief, petitioner Gloria Aguirre went to the Court of
Appeals by means of a Petition for Certiorari,
Prohibition and Mandamus under Rule 65
of the Rules of Court, as amended.
On
The fallo of the assailed
decision reads:
WHEREFORE,
premises considered, the present petition is hereby DENIED DUE COURSE and
accordingly DISMISSED for lack of merit. Consequently, the assailed Resolutions
dated
Petitioner Gloria Aguirre’s motion for reconsideration proved futile as it
was denied by the appellate court in a Resolution dated
Hence, the present petition filed under Rule 45 of the Rules of Court, as
amended, premised on the following arguments:
I.
THE COURT OF APPEALS COMMITTED SERIOUS, GRAVE AND REVERSIBLE ERRORS OF
LAW WHEN IT CONCLUDED, BASED PURPORTEDLY
ON THE INTERNET WHICH RUNS AMUCK WITH OUR SYSTEM OF THE RULE OF LAW AND
THE EVIDENCE ON RECORD, THAT BILATERAL VASECTOMY IS PURPORTEDLY 100% REVERSIBLE
BY A FUTURE MEDICAL PROCEDURE HENCE NOT AMOUNTING TO MUTILATION, X X X; AND
x x x x
II.
WORSE, THE COURT OF APPEALS COMMITTED GRAVE, SERIOUS AND REVERSIBLE
ERRORS OF LAW WHEN IT REFUSED TO DIRECT THE INDICTMENT OF THE PRIVATE
RESPONDENTS FOR MUTILATION AND FALSIFICATION DESPITE THE EXISTENCE OF
SUFFICIENT PROBABLE CAUSE THEREFOR X X X.[31]
The foregoing issues notwithstanding, the more proper issue for this
Court’s consideration is, given the facts of the case, whether or not the Court
of Appeals erred in ruling that the DOJ did not commit grave abuse of
discretion amounting to lack or excess of jurisdiction when the latter affirmed
the public prosecutor’s finding of lack of probable cause for respondents Pedro
Aguirre, Olondriz, Dr. Agatep and Dr. Pascual to stand trial for the criminal
complaints of falsification and mutilation in relation to Republic Act No. 7610.
In ruling that the DOJ did not commit grave abuse of
discretion amounting to lack or excess of jurisdiction, the Court of Appeals
explained that:
Evidently, the controversy lies in the permanency of
sterilization as a result of a vasectomy operation, and the chances of
restoring fertility with a reversal surgery x x x.
We sustain the DOJ in ruling that the bilateral vasectomy
performed on Larry does not constitute mutilation even if intentionally and
purposely done to prevent him from siring a child.
x x x x
Sterilization is to be
distinguished from castration: in the latter act the reproductive capacity is
permanently removed or damaged.[32]
It then concluded that:
The matter of legal liability, other than criminal, which
private respondents may have incurred for the alleged absence of a valid
consent to the vasectomy performed on Larry, is certainly beyond the province
of this certiorari petition. Out task is confined to the issue of whether or
not the Secretary of Justice and the Office of the City Prosecutor of Quezon
City committed grave abuse of discretion in their determining the existence or
absence of probable cause for filing criminal cases for falsification and mutilation under
Articles 172 (2) and 262 of the Revised Penal Code.[33]
Petitioner Gloria Aguirre, however, contends that the Court of Appeals and
the DOJ failed to appreciate several important facts: 1) that bilateral
vasectomy conducted on petitioner’s brother, Larry Aguirre, was admitted[34]; 2) that
the procedure caused the perpetual destruction of Larry’s reproductive organs
of generation or conception;[35] 3)
that the bilateral vasectomy was intentional and deliberate to deprive Larry forever
of his reproductive organ and his capacity to procreate; and 4) that
respondents, “in conspiracy with one another, made not only one but two (2)
untruthful statements, and not mere inaccuracies when they made it appear in
the psychiatry report”[36] that a)
Larry’s consent was obtained or at the very least that the latter was informed
of the intended vasectomy; and b) that Lourdes Aguirre was likewise interviewed
and evaluated. Paradoxically, however, petitioner Gloria Aguirre does not in
any way state that she, instead of respondent Pedro Aguirre, has guardianship
over the person of Larry. She only insists that respondents should have
obtained Larry’s consent prior to the conduct of the bilateral vasectomy.
In contrast, the Office of the Solicitor General (OSG), for public
respondent DOJ, argues that “the conduct of preliminary investigation to
determine the existence of probable cause for the purpose of filing (an) information
is the function of the public prosecutor.”[37] More
importantly, “the element[s] of castration or mutilation of an organ necessary
for generation is completely absent as he was not deprived of any organ
necessary for reproduction, much less the destruction of such organ.”[38]
Likewise, in support of the decision of the Court of Appeals, respondents
Pedro Aguirre and Olondriz assert that, fundamentally, petitioner Gloria
Aguirre has no standing to file the complaint, as she has not shown any injury
to her person or asserted any relationship with Larry other than being his
“common law sister”; further, that she cannot prosecute the present case, as
she has not been authorized by law to file said complaint, not being the
offended party, a peace officer or a public officer charged with the
enforcement of the law. Accordingly,
respondents Pedro Aguirre and Olondriz posit that they, together with the other
respondents Dr. Agatep and Dr. Pascual, may not be charged with, prosecuted for
and ultimately convicted of: 1) “mutilation x x x since the bilateral vasectomy
conducted on Larry does not involve castration or amputation of an organ
necessary for reproduction as the twin elements of the crime of mutilation x x
x are absent”[39];
and 2) “falsification x x x since the acts allegedly constituting falsification
involve matters of medical opinion and not matters of fact,”[40] and
that petitioner Gloria Aguirre failed to prove damage to herself or to any
other person.
Respondent Dr. Agatep, in the same vein, stresses that vasectomy is not
mutilation. He elucidates that vasectomy is merely the “excision of the vas
deferens, the duct in testis which transport semen”[41]; that
it is the penis and the testis that make up the male reproductive organ and not
the vas deferens; and additionally argues that for the crime of mutilation to
be accomplished, Article 262 of the Revised Penal Code necessitates that there
be intentional total or partial deprivation of some essential organ for
reproduction. Tubes, seminal ducts, vas
deferens or prostatic urethra not being organs, respondent Dr. Agatep concludes,
therefore, that vasectomy does not correspond to mutilation.
Anent the charge of falsification of a private document, respondent Dr.
Agatep asseverates that he never took part in disclosing any information, data
or facts as contained in the contentious Psychiatric Report.
For her part, respondent Dr. Pascual insists that the assailed Psychiatry
Report was the result of her independent exercise of professional judgment.
“Rightly or wrongly, (she) diagnosed Larry Aguirre to be incapable of giving
consent, based on interviews made by the psychiatrist on Larry Aguirre and
persons who interacted with him.”[42] And supposing that said report is flawed, it is,
at most, an erroneous medical diagnosis.
The petition has no merit.
Probable cause has been defined as the existence of such facts and
circumstances as would excite belief in a reasonable mind, acting on the facts
within the knowledge of the prosecutor, that the person charged was guilty of
the crime for which he was prosecuted.[43] The term does not mean “actual and positive
cause” nor does it import absolute certainty.[44] It is merely based on opinion and reasonable
belief;[45] that
is, the belief that the act or omission complained of constitutes the offense
charged. A finding of probable cause
merely binds over the suspect to stand trial.
It is not a pronouncement of guilt.[46]
The executive department of the government is accountable for the
prosecution of crimes, its principal obligation being the faithful execution of
the laws of the land. A necessary
component of the power to execute the laws is the right to prosecute their
violators,[47]
the responsibility of which is thrust upon the DOJ. Hence, the determination of whether or not
probable cause exists to warrant the prosecution in court of an accused is
consigned and entrusted to the DOJ. And
by the nature of his office, a public prosecutor is under no compulsion to file
a particular criminal information where he is not convinced that he has
evidence to prop up the averments thereof, or that the evidence at hand points
to a different conclusion.
Put simply, public prosecutors under the DOJ have a wide range of
discretion, the discretion of whether, what and whom to charge, the exercise of
which depends on a smorgasbord of factors which are best appreciated by
(public) prosecutors.[48] And this Court has consistently adhered to the
policy of non-interference in the conduct of preliminary investigations, and to
leave to the investigating prosecutor sufficient latitude of discretion in the
determination of what constitutes sufficient evidence as will establish probable
cause for the filing of an information against the supposed offender.[49]
But this is not to discount the possibility of the commission of abuses
on the part of the prosecutor. It is
entirely possible that the investigating prosecutor may erroneously exercise
the discretion lodged in him by law. This, however, does not render his act
amenable to correction and annulment by the extraordinary remedy of certiorari, absent any showing of grave
abuse of discretion amounting to excess of jurisdiction.[50]
Prescinding from the above, the court’s duty in an appropriate case,
therefore, is confined to a determination of whether the assailed executive
determination of probable cause was done without or in excess of jurisdiction
resulting from a grave abuse of discretion. For courts of law to grant the extraordinary
writ of certiorari, so as to justify
the reversal of the finding of whether or not there exists probable cause to
file an information, the one seeking the writ must be able to establish that
the investigating prosecutor exercised his power in an arbitrary and despotic
manner by reason of passion or personal hostility, and it must be patent and
gross as would amount to an evasion or to a unilateral refusal to perform the
duty enjoined or to act in contemplation of law. Grave abuse of discretion is not enough.[51] Excess of jurisdiction signifies that he had
jurisdiction over the case but has transcended the same or acted without
authority.[52]
Applying the foregoing disquisition to the present petition, the reasons
of the Assistant City Prosecutor in dismissing the criminal complaints for
falsification and mutilation, as affirmed by the DOJ, is determinative of
whether or not he committed grave abuse of discretion amounting to lack or
excess of jurisdiction.
In ruling the way he did – that no probable cause for falsification and mutilation
exists - the Assistant City Prosecutor deliberated on the factual and legal
milieu of the case. He found that there
was no sufficient evidence to establish a prima
facie case for the crimes complained of as defined and punished under Articles
172, paragraph 2, and 262 of the Revised Penal Code in relation to Republic Act
No. 7610, respectively. Concerning
the crime of falsification of a private document, the Assistant City Prosecutor
reasoned that the circumstances attendant to the case did not amount to the
crime complained of, that is, the lack of consent by Larry Aguirre before he
was vasectomized; or the fact that the latter was not consulted. The lack of the two preceding attendant facts
do not in any way amount to falsification, absent the contention that it was
made to appear in the assailed report that said consent was obtained. That would have been an untruthful statement.
Neither does the fact that the Psychiatric Report state that Lourdes Aguirre
has Bipolar Mood Disorder by the same token amount to falsification because
said report does not put forward that such finding arose after an examination
of the concerned patient. Apropos the charge of mutilation, he
reasoned that though the vasectomy rendered Larry unable to procreate, it was
not the permanent damage contemplated under the pertinent provision of the
penal code.
We agree. Grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of the DOJ and the Assistant City Prosecutor was not
shown in the present case.
In the present petition, respondents Pedro Aguirre, Olondriz, Dr. Agatep
and Dr. Pascual are charged with violating Articles 172 and 262 of the Revised Penal
Code, in relation to Republic Act No. 7610. Article 172, paragraph 2 of the Revised Penal Code,
defines the crime of falsification of a private document, viz –
Art. 172. Falsification by private individuals and use of falsified documents. – The penalty of prision correccional in its medium and maximum periods and a fine of not more than 5,000 pesos shall be imposed upon:
x x x x
2. Any person who, to the damage of a third party, or with the intent to cause such damage, shall in any private document commit any of the acts of falsification enumerated in the next preceding article.
Petitioner Gloria Aguirre
charges respondents with falsification of a private document for conspiring
with one another in keeping Larry “in the dark about the foregoing (vasectomy)
as the same was concealed from him by the respondents x x x,”[53] as
well as for falsely concluding and diagnosing Lourdes Aguirre to be suffering
from Bipolar Mood Disorder.
A scrutiny, however, of Article 171 of the Revised Penal Code which
defines the acts constitutive of falsification, that is –
Art. 171. x x x shall falsify a document by
committing any of the following acts:
1. Counterfeiting
or imitating any handwriting, signature, or rubric;
2. Causing
it to appear that persons have participated in any act or proceeding when they
did not in fact so participate;
3. Attributing
to persons who have participated in an act or proceeding statements other than
those in fact made by them;
4. Making
untruthful statements in a narration of facts;
5. Altering
true dates;
6. Making
any alteration or intercalation in a genuine document which changes its
meaning;
7. Issuing
in an authenticated form a document purporting to be a copy of an original
document when no such original exists, or including in such copy a statement
contrary to, or different from, that of the genuine original; or
8. Intercalating any instrument or note relative to the issuance thereof in a protocol, registry, or official book.
vis-à-vis the much criticized Psychiatric Report, shows that the acts complained
of do not in any manner, by whatever stretch of the imagination, fall under any
of the eight (8) enumerated acts constituting the offense of falsification.
In order to
properly address the issue presented by petitioner Gloria Aguirre, it is
necessary that we discuss the elements of the crime of falsification of private
document under the Revised Penal Code, a crime which all the respondents have been accused of
perpetrating. The elements of said crime
under paragraph 2 of Article 172 of our penal code are as follows: 1) that the
offender committed any acts of falsification, except those in par. 7,
enumerated in Article 171; 2) that the falsification was committed in any
private document; and 3) that the falsification caused damage to a third party
or at least the falsification was committed with intent to cause such damage.
Under Article 171, paragraph 2, a person may commit falsification of a private
document by causing it to appear in a document that a person or persons
participated in an act or proceeding, when such person or persons did not in
fact so participate in the act or proceeding. On the other hand, falsification under par. 3
of the same article is perpetrated by a person or persons who, participating in
an act or proceeding, made statements in that act or proceeding and the
offender, in making a document, attributed to such person or persons statements
other than those in fact made by such
person or persons. And the crime defined
under paragraph 4 thereof is committed when 1) the offender makes in a document
statements in a narration of facts; 2) he has a legal obligation to disclose
the truth of the facts narrated by him; 3) the facts narrated by the offender
are absolutely false; and 4) the perversion of truth in the narration of facts
was made with the wrongful intent of injuring a third person.
Applying
the above-stated elements of the crime to the case at bar, in order that
respondent Dr. Pascual, and the rest acting in conspiracy with her, to have
committed the crime of falsification under par. 3 and 4 of Article 171 of the Revised
Penal Code, it is essential that that there be prima facie evidence to show that she had caused it to appear that
Larry gave his consent to be vasectomized or at the very least, that the
proposed medical procedure was explained to Larry. But in the assailed report, no such thing was
done. Lest it be forgotten, the reason for having Larry psychiatrically
evaluated was precisely to ascertain whether or not he can validly consent with
impunity to the proposed vasectomy, and not to obtain his consent to it or to oblige
respondent Dr. Pascual to explain to him what the import of the medical
procedure was. Further, that Larry’s
consent to be vasectomized was not obtained by the psychiatrist was of no
moment, because nowhere is it stated in said report that such assent was obtained.
At any rate, petitioner Gloria Aguirre
contradicts her very own allegations when she persists in the contention that
Larry has the mental age of a child; hence, he was legally incapable of validly
consenting to the procedure.
In the matter
of the supposed incorrect diagnosis of Lourdes Aguirre, with regard to
paragraph 2 of Article 171 of the Revised Penal Code, we quote with approval
the succinct statements of the Assistant City Prosecutor:
[T]he fact that Dra. Pascual cited finding, which
is not of her own personal knowledge in her report does not mean that she
committed falsification in the process. Her sources may be wrong and may affect
the veracity of her report, but for as long as she has not alleged therein that
she personally diagnosed Lourdes Aguirre, which allegation would not then be
true, she cannot be charged of falsification. Therefore, it goes without saying
that if the author of the report is not guilty, then with more reason the other
respondents are not liable.[54]
As to the charge of mutilation, Art. 262 of the Revised Penal Code
defines the crime as –
Art. 262. Mutilation. – The penalty of reclusion temporal to reclusion
perpetua shall be imposed upon any person who shall intentionally mutilate
another by depriving him, either totally or partially, of some essential organ
for reproduction.
Any other intentional mutilation shall be
punished by prision mayor in its
medium and maximum periods.
A straightforward scrutiny of the above provision shows that the elements[55] of
mutilation under the first paragraph of Art. 262 of the Revised Penal Code to
be 1) that there be a castration,
that is, mutilation of organs necessary for generation; and 2) that the
mutilation is caused purposely and deliberately, that is, to deprive the
offended party of some essential organ for reproduction. According to the
public prosecutor, the facts alleged did not amount to the crime of mutilation
as defined and penalized above, i.e.,
“[t]he vasectomy operation did not in any way deprived (sic) Larry of his
reproductive organ, which is still very much part of his physical self.” Petitioner
Gloria Aguirre, however, would want this Court to make a ruling that bilateral
vasectomy constitutes the crime of mutilation.
This we cannot do, for such an interpretation would be contrary to the
intentions of the framers of our penal code.
A fitting riposte to the issue at hand lies in United States v. Esparcia,[56]
in which this Court had the occasion to shed light on the implication of
the term mutilation. Therein we said
that:
The sole point which it is desirable to
discuss is whether or not the crime committed is that defined and penalized by
article 414 of the Penal Code. The English translation of this article reads:
"Any person who shall intentionally castrate another shall suffer a
penalty ranging from reclusion temporal to reclusion perpetua." The Spanish
text, which should govern, uses the word "castrare," inadequately
translated into English as "castrate." The word "capar,"
which is synonymous of "castrar," is defined in the Royal Academic
Dictionary as the destruction of the organs of generation or conception.
Clearly it is the intention of the law to punish any person who shall
intentionally deprived another of any organ necessary for reproduction. An
applicable construction is that of Viada in the following language:
"At the head of these crimes, according
to their order of gravity, is the mutilation known by the name of 'castration'
which consists of the amputation of whatever organ is necessary for generation.
The law could not fail to punish with the utmost severity such a crime, which,
although not destroying life, deprives a person of the means to transmit it.
But bear in mind that according to this article in order for 'castration' to exist,
it is indispensable that the 'castration' be made purposely. The law does not
look only to the result but also to the intention of the act. Consequently, if by reason of an injury or
attack, a person is deprived of the organs of generation, the act, although
voluntary, not being intentional to that end, it would not come under the
provisions of this article, but under No. 2 of article 431." (Viada,
Codigo Penal, vol. 3, p. 70. See to same effect, 4 Groizard, Codigo Penal, p.
525.)
Thus, the question is, does vasectomy deprive a man, totally or
partially, of some essential organ of reproduction? We answer in the negative.
In the male sterilization procedure of vasectomy, the tubular passage,
called the vas deferens, through which the sperm (cells) are transported from
the testicle to the urethra where they combine with the seminal fluid to form
the ejaculant, is divided and the cut ends merely tied.[57] That part, which is cut, that is, the vas deferens,
is merely a passageway that is part of the duct system of the male reproductive
organs. The vas deferens is not an organ,
i.e., a highly organized unit of
structure, having a defined function in a multicellular organism and consisting
of a range of tissues.[58] Be that as it may, even assuming arguendo that the tubular passage can be
considered an organ, the cutting of the vas deferens does not divest or deny a
man of any essential organ of reproduction for the simple reason that it does
not entail the taking away of a part or portion of the male reproductive
system. The cut ends, after they have
been tied, are then dropped back into the incision.[59]
Though undeniably, vasectomy denies a man his power of reproduction, such
procedure does not deprive him, “either totally or partially, of some essential
organ for reproduction.” Notably, the
ordinary usage of the term “mutilation”
is the deprivation of a limb or essential part (of the body),[60] with
the operative expression being “deprivation.”
In the same manner, the word “castration” is defined as the removal of
the testies or ovaries.[61] Such being the case in this present petition, the
bilateral vasectomy done on Larry could not have amounted to the crime of
mutilation as defined and punished under Article 262, paragraph 1, of the Revised
Penal Code. And no criminal culpability could
be foisted on to respondent Dr. Agatep, the urologist who performed the
procedure, much less the other respondents. Thus, we find sufficient evidence
to explain why the Assistant City Prosecutor and the DOJ ruled the way they did.
Verily, We agree with the Court of
Appeals that the writ of certiorari
is unavailing; hence, should not be issued.
It is once more apropos to
pointedly apply the Court’s general policy of non-interference in the conduct
of preliminary investigations. As it has
been oft said, the Supreme Court cannot order the prosecution of a person
against whom the prosecutor does not find sufficient evidence to support at
least a prima facie case.[62] The courts try and absolve or convict the
accused but, as a rule, have no part in the initial decision to prosecute him.[63] The possible exception to this rule is where
there is an unmistakable showing of a grave abuse of discretion amounting to
lack or excess of jurisdiction that will justify judicial intrusion into the precincts
of the executive. But that is not the
case herein.
WHEREFORE, premises considered, the instant petition is DENIED for lack of
merit. The assailed
SO ORDERED.
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MINITA V. CHICO-NAZARIOAssociate Justice |
WE
CONCUR:
Chairperson
MA. ALICIA AUSTRIA-MARTINEZ
Associate Justice |
RENATO C. CORONAAssociate Justice |
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RUBEN T. REYES Associate
Justice |
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ATTESTATION
I attest that the conclusions in the above
Decision were reached in consultation before the case was assigned to the
writer of the opinion of the Court’s Division.
CONSUELO
YNARES-SANTIAGO
Associate Justice
Chairperson, Third Division
Pursuant to Article VIII,
Section 13 of the Constitution, and the Division Chairman’s Attestation, it is
hereby certified that the conclusions in the above Decision were reached in
consultation before the case was assigned to the writer of the opinion of the
Court’s Division.
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REYNATO S. PUNO
Chief Justice |
* Justice Renato C. Corona was
designated to sit as additional member replacing Justice Antonio Eduardo B.
Nachura per Raffle dated
[1] Rollo, pp. 39-89.
[2] Penned by Court of Appeals
Associate Justice Martin S. Villarama, Jr. with Associate Justices Rosmari D.
Carandang and Lucenito N. Tagle, concurring; Annex “A” of the Petition; id. at
90-108.
[3] Annex “A-1”; id. at 110.
[4]
[5]
[6] Annex “B” of the Petition; id. at
161-163.
[7] Originally named as Jose Miguel
Garcia.
[8] Report of Neuropsychological
Evaluation conducted by Lourdes K. Ledesma, Ph.D.; rollo, pp. 299-304.
[9] Conducted
by Dr. Ma. Teresa Gustilo-Villasor, a clinical psychologist.
[10]
[11]
[12]
[13]
[14]
[15]
[16]
[17]
[18]
[19]
[20]
[21]
[22]
[23]
[24]
[25] Gibson T. Araula, Jr.
[26] Rollo,
pp. 161-163.
[27]
[28]
[29]
[30]
[31]
[32]
[33]
[34]
[35]
[36]
[37]
[38]
[39]
[40]
[41]
[42]
[43] R.R.
Paredes v. Calilung, G.R. No. 156055,
[44]
[45]
[46] Webb
v. Hon. De
[47] R.R.
Paredes v. Calilung, supra note 43 at 394.
[48] Webb
v. Hon. De
[49] Andres
v. Cuevas, G.R. No. 150869,
[50] D.M.
Consuji, Inc. v. Esguerra, 328 Phil. 1168, 1185 (1996).
[51] R.R.
Paredes v. Calilung, supra note 43 at 397.
[52] Sarigumba
v. Sandiganbayan, G.R. Nos. 154239-41,
[53] Rollo,
pp. 235-243.
[54]
[55] Reyes, The Revised Penal Code, Book
Two (13th ed.), p. 457.
[56] 36 Phil. 840, 840-841 (1917).
[57] Solis, Legal Medicine (1987 ed.), p. 623.
[58] Clugston, Dictionary of Science (1998 ed.), p. 558.
[59] Schwartz, Shires, Spencer, Storer, Principle of Surgery, Vol. Two (4th ed.), pp. 1729-1730.
[60] Webster’s Third New International
Dictionary (1993 ed.), p. 1493.
[61]
[62] Sanchez
v. Demetriou, G.R. Nos. 111771-77,
[63]