FIRST DIVISION

[G.R. No. 175999. July 1, 2015.]

NELSON LAI y BILBAO, petitioner, vs. PEOPLE OF THE

PHILIPPINES, respondent.

DECISION

BERSAMIN, J : p

The accused assails the armance of his conviction for homicide

through the assailed decision promulgated on May 27, 2005 by the Court of
Appeals (CA). 1 The conviction had been handed down by Judge Fernando R.
Elumba of the Regional Trial Court, Branch 42, in Bacolod City (RTC) in
Criminal Case No. 17446 entitled People of the Philippines v. Nelson Lai y
Bilbao. 2
Antecedents
The Prosecution's version was summarized by the RTC as follows:
On December 16, 1995, at around 9 o'clock in the evening, the
victim Enrico Villanueva, Jr. together with his friends Burnie Fuentebella
(a prosecution witness), Butsoy Arenas, Ray Gustilo, Nonoy Martinez,
and Mark Anthony Merre, were seated inside the passenger jeepney
owned by the accused, Nelson Lai y Bilbao, which was parked at the
back of Pala-pala, Brgy. 6, corner North Capitol Road San Juan
Streets, Bacolod City, where they were waiting for a female friend of
theirs who was supposed to arrive at 9:30 o'clock of the same evening
per their agreement. While they were waiting for their friend to arrive,
the accused Nelson Lai y Bilbao suddenly approached the vehicle and
ordered all the persons who were seated inside (including the deceased
Enrico Villanueva, Jr.) to alight therefrom. After all of them have alighted
from the jeepney, the accused instantaneously grabbed the victim by
the latter's left arm and accused him (the deceased) of having stolen the
antenna of his (Lai's) vehicle. Denying that he was responsible for the
theft of the antenna, the victim was able to free himself from the hold of
the accused and ran away towards the direction of the house of
Christopher Padigos located at Purok Narra Bukid North, Brgy. 8,
Bacolod City, across the Pala-pala. Upon arriving at the house of
Christopher Padigos, the victim ran all the way to the second oor room
he shared with Jemuel V. Gepaya (a prosecution witness). Finding his
roommate inside the room, the victim conded to the former that
Nelson Lai had just accused him of stealing his (Lai's) car antenna and
that he (the deceased) was grabbed and hit by the accused at the neck
but that he (the victim) was able to retaliate by kicking the accused.
There the victim remained until about 11:00 o'clock of the same evening
when he left the house of Christopher Padigos to go to the dancehall
located at nearby Purok Azucena, Barangay 6, Bacolod City where a
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 benet dance was being held.
At around 11:00 o'clock of the same evening, both the accused
and the victim were inside the dancehall, the latter being seated on a
bench together with his friends while the former was dancing to the
tune of the cha-cha. After dancing the accused stood immediately in
front at about one and a half arms length (sic.) from where the victim
was seated. Thereafter, the accused stepped towards where the victim
was seated. As the accused was about to approach the victim, a
brownout suddenly occurred. Immediately after the lights went out, a
spark was seen and a gunshot rang out right in front where the victim
was seated. Suddenly, the victim fell down bloodied. Immediately
thereafter, the victim was rushed to the provincial hospital by his friends
led by Burnie Fuentebella, a prosecution witness, for treatment.
Similarly, Jemuel V. Gepaya, a cousin of the victim, also followed to the
hospital after hearing the news that the victim was shot.
Inside the Emergency Room of the Provincial Hospital, while the
victim lay (sic) bleeding from a gunshot wound in the neck and awaiting
medical attention, he was able to tell Burnie Fuentebella and Jemuel
Gepaya, both prosecution witnesses, that the accused Nelson Lai was
the one who shot him. Moreover, the victim likewise shouted the name
"Nelson Lai" when he was asked by PO3 Homer Vargas who shot him.
Likewise, when Enrico Villanueva, Sr., the father of the victim, arrived at
the Emergency Room and asked the victim who shot him, the latter
replied that it was "Nelson Lai". (parenthetical citations omitted) 3
In contrast, the CA summed up the Defense's own version in its assailed
decision, to wit:
Appellant Nelson Lai drives his own passenger jeep plying the
Banago-Libertad route. At around 8:30 o'clock in the evening of
December 16, 1995, appellant parked his jeepney at the back of his
house located at Purok Azucena, Barangay 6, Bacolod City. After resting
for a while, he went to the house of their Purok President, Ramero
Jarabelo, where he drank three bottles of beer. Thereafter, he went
home at around 9:00 o'clock, passing by the dancehall were (sic.) a
benet dance was being held as a thanksgiving party for the
Sangguniang Kabataan. There, he was invited by Merlyn Rojo, who acted
as emcee of the program, to open the rst dance. Appellant acceded
and danced the rst dance with Merlyn Rojo. After their dance, appellant
went home as he still had to work early the next morning.
When appellant arrived home, he noticed that eight (8) persons,
including the victim, were seated inside his jeepney. He approached
them and requested them not to stay inside his jeepney. Thereafter, all
of them went away without any untoward incident. When the accused
and his wife were about to have their late dinner at around 11:00
o'clock, a brownout occurred. About two seconds after the lights went
out; he heard a gunshot which he initially thought was merely a
recracker. Later, when he overheard that someone was shot at the
dancehall which was only 40 meters away from his house, he went out
to look for his two sons. Along the way, he met Daisy Panes, who,
together with her husband, were also on their way to the dancehall. ICHDca

At the dancehall, someone told appellant that his son, Windel, was
the one who carried the victim to the hospital. So appellant went home
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 and proceeded to eat his dinner. At around 11:45 o'clock of the same
evening, while appellant was already resting, three policemen came to
his house and told him that the victim mentioned his name as the one
who shot him. Believing that he has done nothing wrong, appellant
volunteered to go with the policemen. Appellant claims that when they
arrived at the police station, he even asked that a paran test be
conducted on him, the result of which was negative. 4
Judgment of the RTC
In its judgment dated August 22, 2001, 5 the RTC, through Judge
Elumba, disposed as follows:
WHEREFORE, premises considered, this Court nds the accused
NELSON LAI y BILBAO guilty beyond reasonable doubt of the crime of
Homicide dened and penalized under Article 249 of the Revised Penal
Code of the Philippines, as amended, and, in the absence of neither
mitigating nor aggravating circumstances which may be considered in
the imposition of the penalty thereof, this Court hereby sentences the
said accused to suer the indeterminate penalty of imprisonment of
eight (8) years and one (1) day of prision mayor as minimum to
fourteen (14) years, 8 months and one (1) day of reclusion temporal as
maximum and orders the accused to indemnify the heirs of the victim
Enrico Villanueva, Jr. in the amount of Fifty thousand (P50,000.00)
Pesos only without subsidiary imprisonment in case of insolvency as
well as to suer the accessory penalty provided for by law and to pay
the costs.
SO ORDERED. 6

Decision of the CA
On appeal, the petitioner raised the following errors, to wit:
[T]hat the lower court:
1. ERRED in giving full credence to the alleged dying declaration of
Enrico Villanueva, Jr.;
2. ERRED in considering the alleged earlier untoward incident between
accused and the group of Enrico Villanueva, Jr. as sucient to
motivate the former to kill the latter;
3. ERRED in discarding en (sic) toto the defense of alibi and the negative
result of the paran test conducted on the accused;
4. ERRED in failing to see that the entire evidence presented by both the
prosecution and defense engender a reasonable doubt which
should be resolved in favor of the accused;
5. ERRED as accused was deprived of due process when this
case was decided by the honorable presiding judge who
acted as the public prosecutor in this case before he was
appointed to the bench;
6. ERRED when it completely disregarded appellant's motion for
reconsideration below with nary a look into any issue raised
therein; and cDHAES

7. ERRED when it denied appellant's motion for new trial. 7

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 On May 27, 2005, the CA promulgated its decision, 8 disposing:
WHEREFORE, the assailed Decision of the Regional Trial Court of
Bacolod City, Branch 42, in Criminal Case No. 17446 is hereby
AFFIRMED in toto.
SO ORDERED. 9

Ruling of the Court

In this appeal, the petitioner continues to assail the conviction, but the
Court has immediately noted that the right to due process of the petitioner
had been denied to him by Judge Elumba, the trial judge, by not disqualifying
himself from sitting on and trying Criminal Case No. 17446 despite having
participated in the trial as the public prosecutor. Thus, it is necessary for the
Court to rst determine if the non-disqualication of Judge Elumba prejudiced
the petitioner's right to a fair and impartial trial.
As the records indicate, Judge Elumba had been assigned on March 23,
1998 as the public prosecutor in Branch 42 of the RTC in Negros Occidental to
replace the previous public prosecutor, 10 but became the Presiding Judge of
Branch 42 on April 27, 2000. 11 Branch 42 was the trial court hearing and
ultimately deciding Criminal Case No. 17446 against the petitioner. As such,
Judge Elumba should have disqualied himself from having anything to do
with the case once he became the trial judge because he was compulsorily
disqualied. The petitioner pointed to the need for Judge Elumba's
disqualication in his Motion for Reconsideration, 12 but the latter ignored his
concerns upon the excuse that he had appeared in Criminal Case No. 17446
only after the Prosecution had rested its case. Judge Elumba argued that he
did not personally prosecute the case, and that, at any rate, the petitioner
should have sought his disqualication prior to the rendition of the judgment
of conviction. 13
On appeal, the petitioner focused the CA's attention to the denial of due
process to him by the non-disqualication of Judge Elumba, but the CA upheld
Judge Elumba's justications, stating:
As to the fth assigned error, appellant claims that he was denied
due process because the judge who rendered the assailed decision was
also, at one time, the public prosecutor of the instant case. First, the
record of this case shows that when the judge, who was then a public
prosecutor, entered his appearance, the prosecution had already long
rested its case, more specically, he appeared therein only when the
last witness for the defense was presented, not to mention the fact that
it was a private prosecutor who cross-examined the last witness, Merlyn
Rojo. Thus, it cannot be said that the presiding judge personally
prosecuted the instant case, nor supervised the prosecution thereof
when the same was still pending. Second, settled is the rule that a
petition to disqualify a judge must be led before rendition of judgment
by the judge. Having failed to move for the disqualication of the judge,
appellant cannot thereafter, upon a judgment unfavorable to his cause,
take a total turn about (sic.) and say that he was denied due process.
'One surely cannot have his cake and eat it too.' 14
It is not disputed that the constitutional right to due process of law
cannot be denied to any accused. The Constitution has expressly ordained that
"no person shall be deprived of life, liberty or property without due process of
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 "no person shall be deprived of life, liberty or property without due process of
law." 15 An essential part of the right is to be aorded a just and fair trial
before his conviction for any crime. Any violation of the right cannot be
condoned, for the impartiality of the judge who sits on and hears a case, and
decides it is an indispensable requisite of procedural due process. 16 The Court
has said:
This Court has repeatedly and consistently demanded 'the cold
neutrality of an impartial judge' as the indispensable imperative of due
process. To bolster that requirement, we have held that the judge must
not only be impartial but must also appear to be impartial as an added
assurance to the parties that his decision will be just. The litigants are
entitled to no less than that. They should be sure that when their rights
are violated they can go to a judge who shall give them justice. They
must trust the judge, otherwise they will not go to him at all. They must
believe in his sense of fairness, otherwise they will not seek his
judgment. Without such condence, there would be no point in invoking
his action for the justice they expect.
Due process is intended to insure that condence by requiring
compliance with what Justice Frankfurter calls the rudiments of fair play.
Fair play calls for equal justice. There cannot be equal justice where a
suitor approaches a court already committed to the other party and
with a judgment already made and waiting only to be formalized after
the litigants shall have undergone the charade of a formal hearing.
Judicial (and also extra-judicial) proceedings are not orchestrated plays
in which the parties are supposed to make the motions and reach the
denouement according to a prepared script. There is no writer to
foreordain the ending. The judge will reach his conclusions only after all
the evidence is in and all the arguments are led, on the basis of the
established facts and the pertinent law. 17
The adoption of rules governing the disqualication of the judges from
hearing and deciding cases should there be any cause that diminishes or
negates their impartiality is a rm means of ensuring their impartiality as
judges. In particular, Section 1, Rule 137 of the Rules of Court embodies the
rule on self-disqualication by a sitting judge, viz.: ASEcHI

Section 1. Disqualication of judges. No judge or judicial ocer

shall sit in any case in which he, or his wife or child, is pecuniarily
interested as heir, legatee, creditor or otherwise, or in which he is
related to either party within the sixth degree of consanguinity or
anity, or to counsel within the fourth degree, computed according to
the rules of the civil law, or in which he has been executor,
administrator, guardian, trustee or counsel, or in which he has presided
in any inferior court when his ruling or decision is the subject of review,
without the written consent of all parties in interest, signed by them and
entered upon the record.
A judge may, in the exercise of his sound discretion, disqualify
himself from sitting in a case, for just or valid reasons other than those
mentioned above.
Section 1 of Rule 137, supra, contemplates two kinds of self-
disqualication. The rst paragraph enumerates the instances when the judge
is prohibited and disqualied from sitting on and deciding a case. 18 The
prohibition is compulsory simply because the judge is conclusively presumed
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 to be incapable of impartiality. 19 The second paragraph speaks of voluntary
inhibition; whether or not the judge can sit in and try the case is left to his
discretion, depending on the existence of just and valid reasons not included in
the rst paragraph, but in exercising the discretion, he must rely only on his
conscience. 20
Reprising Section 1 of Rule 137 is Section 5, Canon 3 of the New Code of
Judicial Conduct for the Philippine Judiciary, 21 which pertinently demands the
disqualication of a judge who has previously served as a lawyer of any of the
parties, to wit:
Section 5. Judges shall disqualify themselves from participating in
any proceedings in which they are unable to decide the matter
impartially or in which it may appear to a reasonable observer that they
are unable to decide the matter impartially. Such proceedings include,
but are not limited to instances where:
xxx xxx xxx
(d) The judge served as executor, administrator, guardian, trustee
or lawyer in the case or matter in controversy, or a former associate of
the judge served as counsel during their association, or the judge or
lawyer was a material witness therein; . . . .
Given the foregoing, the CA's justications directly contravened the
letter and spirit of Section 1 of Rule 137, supra, and Section 5 of Canon 3 of
the New Code of Judicial Conduct for the Philippine Judiciary, supra. The words
counsel in the rst paragraph of Section 1 of Rule 137, supra, and lawyer in
Section 5 of Canon 3, supra, are understood in their general acceptation
because their usage by the rules has not been made subject of any
qualications or distinctions. As such, the mere appearance of his name as the
public prosecutor in the records of Criminal Case No. 17446 suced to
disqualify Judge Elumba from sitting on and deciding the case. Having
represented the State in the prosecution of the petitioner, he could not
sincerely claim neutrality or impartiality as the trial judge who would
continue to hear the case. Hence, he should have removed himself from being
the trial judge in Criminal Case No. 17446.
To be clear, that Judge Elumba's prior participation as the public
prosecutor was passive, or that he entered his appearance as the public
prosecutor long after the Prosecution had rested its case against the petitioner
did not really matter. The evil sought to be prevented by the rules on
disqualication had no relation whatsoever with the judge's degree of
participation in the case before becoming the judge. He must be reminded that
the same compulsory disqualication that applied to him could similarly be
demanded of the private prosecutor or the defense lawyer, if either of them
should be appointed as the trial judge hearing the case. The purpose of this
stricture is to ensure that the proceedings in court that would aect the life,
liberty and property of the petitioner as the accused should be conducted and
determined by a judge who was wholly free, disinterested, impartial and
independent. As the Court has amplied in Garcia v. De la Pea: 22
The rule on compulsory disqualication of a judge to hear a case
where, as in the instant case, the respondent judge is related to either
party within the sixth degree of consanguinity or anity rests on the
salutary principle that no judge should preside in a case in which he is
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 not wholly free, disinterested, impartial and independent. A judge has
both the duty of rendering a just decision and the duty of
doing it in a manner completely free from suspicion as to its
fairness and as to his integrity. The law conclusively presumes
that a judge cannot objectively or impartially sit in such a case
and, for that reason, prohibits him and strikes at his authority
to hear and decide it, in the absence of written consent of all
parties concerned. The purpose is to preserve the people's faith and
condence in the courts of justice. 23 (Emphasis supplied)
Moreover, to say that Judge Elumba did not personally prosecute or
supervise the prosecution of Criminal Case No. 17446 is to ignore that all
criminal actions were prosecuted under the direction and control of the public
prosecutor. That a private prosecutor had appeared in the case was of no
consequence, for such private prosecutor still came under the direct control
and supervision of the public prosecutor. In this connection, we note that it
was only on May 1, 2002, or two years after Judge Elumba's appointment in
the Judiciary, when Section 5, 24 Rule 110 of the Rules of Court, was amended
by A.M. No. 02-2-07-SC in order to expressly authorize the intervention of the
private prosecutor to prosecute a criminal case in case of heavy work load or
lack of the public prosecutor, provided that the private prosecutor was
authorized in writing for the purpose by the Chief of the Prosecution Oce or
the Regional State Prosecutor. Even so, the records do not indicate that the
private prosecutor who appeared in Criminal Case No. 17446 had been duly
authorized in writing by the Chief of the Prosecution Oce or the Regional
State Prosecutor to prosecute the case by himself.
We have also observed that the CA appeared too eager to sustain the
refusal of Judge Elumba to disqualify himself as the trial judge. Such
overeagerness was uncharacteristic of the CA as an appellate court in a
criminal case whose unmistakable duty was to thoroughly sift and scrutinize
the records of the trial court to search for errors that would reverse or modify
the judgment in favor of the accused. Had it done its duty, it would have
quickly noticed a hard indication existing in the trial records of Criminal Case
No. 17446 exposing Judge Elumba to have actually taken an active
participation in the trial. The indication was in the form of the Motion to
Present Rebuttal Evidence that then Public Prosecutor Elumba had led on
January 25, 2000, the text of which is reproduced herein: ITAaHc

MOTION TO PRESENT REBUTTAL EVIDENCE

xxx xxx xxx
That the records of the above-entitled case would show that the
accused rested his case on October 29, 1999;
That, however, after going over the records of the case,
the prosecution feels that there is a need to present rebuttal
evidence. (Emphasis supplied)
WHEREFORE, PREMISES CONSIDERED, it is most respectfully
prayed of this Honorable Court that the prosecution be allowed to
present rebuttal evidence to refute the evidence presented by the
accused.
(Sgd.)
FERNANDO R. ELUMBA
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 Trial Prosecutor 25

The text of the motion disclosed that then Public Prosecutor Elumba had
come to the conclusion that "there is a need to present rebuttal evidence"
after his having gone over the records of the case. Clearly, he had formed an
opinion that was absolutely adverse to the interest of the petitioner.
The CA's reliance on Lao v. Court of Appeals 26 was inappropriate. In Lao,
the Court opined and declared that the petition to disqualify the trial judge
must be led prior to the rendition of judgment. 27 But the supposed
disqualication of the judge in Lao was premised on bias as perceived by a
party. 28 We should point out that perceived bias was a ground covered by the
second paragraph of Section 1 of Rule 37, supra, and would justify only the
voluntary inhibition of the judge. In contrast, Judge Elumba's situation rested
on a ground for mandatory disqualication because it emanated from the
conclusive presumption of his bias. 29 Such a ground should have been
forthwith acknowledged upon Judge Elumba's assumption of the judgeship in
Branch 42, or, at the latest, upon the ground being raised to his attention,
regardless of the stage of the case.
Under the circumstances, Judge Elumba, despite his protestations to the
contrary, could not be expected to render impartial, independent and objective
judgment on the criminal case of the petitioner. His non-disqualication
resulted in the denial of the petitioner's right to due process as the accused. To
restore the right to the petitioner, the proceedings held against him before
Judge Elumba and his ensuing conviction have to be nullied and set aside,
and Criminal Case No. 17446 should be remanded to the RTC for a partial new
trial to remove any of the prejudicial consequences of the violation of the
right to due process. The case shall be raed to a Judge who is not otherwise
disqualied like Judge Elumba under Section 1, Rule 137 of the Rules of Court.
For, as we said in Pimentel v. Salanga: 30
This is not to say that all avenues of relief are closed to a party
properly aggrieved. If a litigant is denied a fair and impartial trial, induced
by the judge's bias or prejudice, we will not hesitate to order a new trial,
if necessary, in the interest of justice. Such was the view taken by this
Court in Dais vs. Torres, 57 Phil. 897, 902-904. In that case, we found
that the ling of charges by a party against a judge generated
'resentment' or the judge's part that led to his "bias or prejudice, which
is reected in the decision." We there discoursed on the 'principle of
impartiality, disinterestedness, and fairness on the part of the judge'
which 'is as old as the history of courts.' We followed this with the
pronouncement that, upon the circumstances obtaining, we did not feel
assured that the trial judge's nding were not inuenced by bias or
prejudice. Accordingly, we set aside the judgment and directed a new
trial. 31
WHEREFORE, the Court ANNULS and SETS ASIDE the decision
promulgated on May 27, 2005 by the Court of Appeals and the judgment
rendered on August 22, 2001 by the Regional Trial Court; REMANDS Criminal
Case No. 17446 entitled People of the Philippines v. Nelson Lai y Bilbao to the
Regional Trial Court in Bacolod City with instructions to the Executive Judge of
the Regional Trial Court to assign it to any Regional Trial Judge not disqualied
under Section 1 of Rule 137 of the Rules of Court; and INSTRUCTS the new
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 trial judge to resume the trial in Criminal Case No. 17446 starting from the
stage just prior to the assumption of Judge Fernando R. Elumba as the trial
judge, and to hear and decide Criminal Case No. 17446 with reasonable
dispatch.
No pronouncement on costs of suit.
SO ORDERED.
Sereno, C.J., Leonardo-de Castro, Perez and Perlas-Bernabe, JJ., concur.
Footnotes
1. Rollo, pp. 359-369; penned by Associate Justice Ramon M. Bato, Jr. and
concurred in by Associate Justice Mercedes Gozo-Dadole (retired) and
Associate Justice Pampio A. Abarintos (retired).

2. Id. at 107-122.

3. Id. at 108-110.

4. Id. at 361-362.

5. Id. at 107-122.

6. Id. at 122.

7. Id. at 364 (bold underscoring is supplied for emphasis).

8. Supra, note 1.

9. Rollo, p. 369.

10. Records, p. 141.

11. Id. at 187.

12. Id. at 224-269, 264-266.

13. Id. at 307.

14. Rollo, p. 368.

15. CONSTITUTION, Article III, Sec. 1.

16. Mateo, Jr. v. Villaluz, G.R. Nos. L-34756-59, March 31, 1973, 50 SCRA 18, 23.

17. Javier v. Commission on Elections, G.R. Nos. L-68379-81, September 22, 1986,
144 SCRA 194, 206-207.

18. Pagoda Philippines, Inc. v. Universal Canning, Inc., G.R. No. 160966, October 11,
2005, 472 SCRA 355, 360-361.

19. Garcia v. De la Pea, A.M. No. MTJ-92-687, February 09, 1994, 229 SCRA 766,
774.

20. Pagoda Philippines, Inc. v. Universal Canning, Inc., supra note 18, at 361.

21. Eective June 1, 2004.

22. Supra note 19.

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 23. Id. at 773-774.

24. Section 5. Who must prosecute criminal action. All criminal actions either
commenced by complaint or by information shall be prosecuted under the
direction and control of a public prosecutor. In case of heavy work schedule
of the public prosecutor or in the event of lack of public prosecutors, the
private prosecutor may be authorized in writing by the Chief of the
Prosecution Oce or the Regional State Prosecutor to prosecute the case
subject to the approval of the court. Once so authorized to prosecute the
criminal action, the private prosecutor shall continue to prosecute the case
up to end of the trial even in the absence of a public prosecutor, unless the
authority is revoked or otherwise withdrawn.

25. Records, p. 185.

26. G.R. No. 109205, April 18, 1997, 271 SCRA 477.

27. Id. at 487.

28. Id. at 486.

29. Garcia v. De la Pea, supra note 19.

30. G.R. No. L-27934, September 18, 1967, 21 SCRA 160.

31. Id. at 166.

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