[G.R. No. 152989. September 4, 2002]

ROLDAN, JR. vs. HON. MADRONA, et al.

THIRD DIVISION

Gentlemen:

Quoted hereunder, for your information, is a resolution of this Court dated 04 SEPT 2002.

G.R. No. 152989 (Manuel Jorge Roldan, Jr. vs. Hon. Fortunito L. Madrona Pairing Judge, RTC Branch 12, Ormoc City and Hon. Alberto L. Conopio, City Prosecutor, Ormoc City, ATTY. FIEL MARMITA, OIC, DENR-CENRO, Albuera, Leyte.)

At bar is a petition for certiorari under Rule 65 of the 1997 Rules of Civil Procedure.

Herein petitioner is the owner of a parcel of land consisting of about 60,000 square meters covered by Transfer Certificate of Title No. TP-331 which he bought from a certain Ildefonso O. Maglasang.

On August 9, 2001, petitioner applied for a Private Land Timber Permit (PLTP) from the Department of Environment and Natural Resources for him to cut some trees for a proposed road and poultry farm in his property. He also paid all the fees required by the various government agencies.

While waiting for the permit to be issued, petitioner was allegedly informed by some employees from the Department of Environment and Natural Resources (DENR) that he could proceed with the cutting of trees even though his application was still awaiting approval.

Consequently, petitioner proceeded with the cutting of trees and bulldozing of the roadway. He used the cut logs as materials to build his chicken cages.

About three weeks later, representatives of the Community Environment and Natural Resources Office (CENRO) of the Department of Environment and Natural Resources and personnel from the Intelligence Service, Armed Forces of the Philippines (ISAFP) of Tacloban City raided petitioner’s place, allegedly without a search warrant. An inventory of the cut trees was conducted. The logs were not confiscated but were entrusted to a barangay kagawad since there was allegedly no search warrant at that time.

About two days later, the CENRO representatives came back with members of the media and ISAFP charging illegal logging but they failed to get the logs, again for alleged lack of search warrant.

Several days thereafter, the CENRO group and ISAFP returned, this time armed with a search warrant and proceeded to confiscate 872 pieces of sawn lumber/flitches (8,506 board feet) and three felled timber logs with a total market value of P235,454.68 at P27.00 per board foot.

Consequently, on September 21, 2001, a complaint for violation of Section 68 of PD 705 as amended was filed against herein petitioner by CENRO before the City Prosecutor of Ormoc City. Thereafter, the City Prosecutor issued a resolution dated November 16, 2001 finding probable cause to convict petitioner for violation of Section 68 of PD 705 as amended.

A motion for reconsideration proved futile for, as it turned out, the information had already been filed in court. Jurisdiction over the case was transferred to the regional trial court, also a public respondent in this case.

A warrant for the arrest of petitioner was then issued by the court a quo. In view thereof, herein petitioner filed with the trial court a motion for judicial determination of probable cause and the recall of his warrant of arrest.

After hearing the said motion, public respondent Judge Fortunito L. Madrona, in an order dated February 15, 2000 denied the motion but reduced the recommended bail of petitioner.

Hence, the instant petition.

Before us, petitioner raises the following issues: (1) whether the owner of a private land, the petitioner in this case, is criminally liable under Section 68 of PD 705 for cutting trees within his own property; (2) whether the owner of the private property is administratively liable under Sec. 14 of DENR Administrative Order No. 2000-21 despite the fact that he did not transport the logs out of his property and just used them for his own agricultural purposes therein and (3) whether the logs confiscated by the DENR should be returned to the petitioner considering that the same were not transported out and merely used for his own agricultural purposes.

As to the first issue, petitioner contends that he should not be held liable under Section 68 of PD 705 as amended since the timber that was cut and gathered came from his titled property.

He further asserts that the part of Section 68, PD 705 incorporating the provisions of Articles 309 and 310 of the Revised Penal Code regarding qualified theft should not be made to apply to his case since the aforestated articles of the penal code apply only to those who commit theft, which under the law is a crime committed when there is unlawful taking of a property belonging to another. He insists that both penal provisions should not be made to apply since he is the owner of the property and as owner he cannot be accused of stealing his own property. Petitioner concludes that Article 309 therefore applies only to other persons or strangers gathering timber from the titled property of another while Article 310 is inapplicable in his case since such pertains to theft of coconuts in a plantation.

At the outset, the Court notes that while petitioner continues to harp on the alleged questions of law present in this case, the petition at bar was filed via a petition for certiorari under Rule 65. Nothing is more settled than the rule that a writ of certiorari lies only where a court has acted without or in excess of jurisdiction or with grave abuse of discretion. The Court believes that none of the aforementioned circumstances is present in this case.

Be that as it may, although this Court at the outset had pointed out that herein petitioner adopted the wrong remedy and committed certain technical violations of the Rules on Civil Procedure which necessitate its outright dismissal, nevertheless, in the interest of substantial justice and in view of the novelty of the question of law involved, the Court in the exercise of its judicial discretion shall treat this petition as having been filed under Rule 45.

The fundamental question of law we seek to resolve in this case is: may a person who cuts trees for his own use within his property without the necessary permit from the DENR and without transporting the same outside said property, be criminally charged for violating PD 705?

Section 68 of PD 705, as amended by E.O. 277, otherwise known as the Revised Forestry Code of the Philippines provides:

SEC. 68. Cutting, Gathering and/or collecting Timber, or Other Forest Products Without License.- Any person who shall cut, gather, collect, remove timber or other forest products from any forest land, or timber from alienable or disposable public land, or from private land, without any authority, or possess timber or other forest products without the legal documents as required under existing forest laws and regulations, shall be punished with the penalties imposed under Articles 309 and 310 of the Revised Penal Code: Provided, That in case of partnerships, associations, or corporations, the officers who ordered the cutting, gathering, collection or possession shall be liable, and if such officers are aliens, they shall, in addition to the penalty, be deported without further proceedings on the part of the Commission on Immigration and Deportation.

The Court shall further order the confiscation in favor of the government of the timber or any forest products cut, gathered, collected, removed, or possessed, as well as the machinery, equipment, implements and tools illegally used in the area where the timber or forest products are found. (Emphasis supplied)

Herein petitioner argues that even if the phrase pertaining to Articles 309 and 310 of the penal code was only meant to prescribe the imposable penalty, since the cut trees were from his private land, his penalty should not be equated with that imposable on those who commit theft inasmuch as theft and qualified theft involve the unlawful taking of a property belonging to another.

The argument of petitioner is specious. Under Section 68, PD 705 as amended by E.O. 277, it is clear that the violators of the said law are not declared as being guilty of qualified theft. Articles 309 and 310 of the Revised Penal Code were referred to only for the purpose of determining the imposable penalties and not to define acts which constitute qualified theft.

Moreover, petitioner’s argument that the provisions of the law regarding qualified theft should not be applied to him since he is the owner of the property is devoid of merit. It must be stressed that petitioner is not being charged for qualified theft but for violation of Section 68, PD 705 hence his ownership of the land is of no moment. The said law does not even distinguish whether or not the person who commits the punishable acts under the aforementioned law is the owner of the property, for what is material in determining the culpability of a person is whether or not the person or entity involved or charged with its violation possesses the required permit, license or authorization from DENR at the time he or it cuts, gathers or collects timber or other forest products.

As to his assertion that his penalty for cutting trees in his own land should not be equated with that for qualified theft, suffice it to say that the judiciary is never concerned with the wisdom of the law. Whether or not the legislature was correct in imposing on violators of PD 705 a penalty equal to that imposable on those guilty of qualified theft is a question beyond the power of this Court to resolve. It is a settled rule that the fundamental duty of the Court is to apply the law regardless of who may be affected, even if the law is harsh - dura lex sed lex. The remedy is elsewhere – clemency from the executive or an amendment of the law by the legislature.

We come now to the second issue posed by herein petitioner on whether the owner of a private property is administratively liable under Section 14 of DENR Administrative Order No. 2000-21 despite the fact that he did not transport the logs out of his property and used them for his own agricultural purposes.

Section 14 of Administrative Order No. 2000-21, the “Revised Guidelines in the Issuance of Private Land Timber Permit/Special Private Land Timber Permit,” provides:

SEC. 14. Penal Provisions. - Any log/timber or finished-wood products covered by these regulations which are transported without the prescribed documents shall be considered illegal and, therefore, subject to confiscation in favor of the government and shall be disposed in accordance with laws, rules and regulations governing the matter.

DENR Officials found issuing defective certificate of origin and other transport documents required in this Order shall be subject to suspension without prejudice to the imposition of other penalties as may be warranted by extant Civil Service Laws, rules and regulations.

The rule is clear. The aforementioned administrative order considers the mere act of transporting any wood product or timber without the prescribed documents as an offense which is subject to the penalties provided for by law. As to the defense of petitioner that he never transported the logs out of his property, suffice it to say that such is a factual issue which this Court under Rule 45 cannot determine. We are limited to resolving questions of law.

On the issue of whether the logs confiscated by the DENR should be returned to petitioner, any pronouncement thereon at this point would be premature as the guilt of the petitioner has not been legally established. The records of the case indicate that trial on the merits is still in progress. Hence, this Court is not in a position to speculate on or prescribe the courses of action or remedies the petitioner may avail of under the aforementioned law. Well-entrenched is the rule that this Court is not duty bound to render advisory opinions.

WHEREFORE, the petition is DENIED for lack of merit.

Very truly yours,

(Sgd.) JULIETA Y. CARREON

Clerk of Court