RULE 112

1.

[G.R. No. 159747. June 15, 2004.]

SENATOR GREGORIO B. HONASAN II, petitioner, vs. THE
PANEL OF INVESTIGATING PROSECUTORS OF THE
DEPARTMENT OF JUSTICE (LEO DACERA, SUSAN F.
DACANAY, EDNA A. VALENZUELA AND SEBASTIAN F.
CAPONONG, JR.), CIDG-PNP-P/DIRECTOR EDUARDO
MATILLANO, AND THE HON. OMBUDSMAN SIMEON V.
MARCELO, respondents.
RESOLUTION
AUSTRIA-MARTINEZ, J :
p

Before the Court is the motion filed by petitioner to cite respondent DOJ Panel of
Investigating Prosecutors (respondent for brevity) in contempt of court for alleged
blatant disregard and defiance of the agreement of the parties with this Court to
maintain the status quo before the filing of their petition for certiorari under Rule
65 of the Rules of Court.
On September 22, 2003, petitioner filed a petition for certiorari with prayer for the
issuance of a temporary restraining order and writ of preliminary injunction
against respondents alleging grave abuse of discretion on the part of respondent
Panel for assuming jurisdiction to conduct the preliminary investigation on the
charge of coup detat against petitioner. Respondents filed their respective
comments and petitioner his reply thereto. An oral argument on the case was
held on November 18, 2003. Parties submitted their respective memoranda as
required by the Court. On April 13, 2004, the Court rendered a decision
dismissing the petition and upholding the concurrent jurisdiction of the
respondent to conduct the preliminary investigation. Petitioner received a copy of

the decision on April 22, 2004, thus he has until May 7, 2004 to file his motion for
reconsideration.
On April 23, 2004, respondent issued its assailed order as follows:
In the light of the ruling of the Supreme Court in G.R. No. 159747 dated
13 April 2004, confirming that this Investigating Panel has jurisdiction to
investigate the instant complaint against respondent Senator Gregorio B.
Honasan II, et al., and to afford respondent full opportunity to controvert
the allegations of the complaint and to adduce evidence;
Wherefore, in the interest of justice, respondent(s) thru counsel are
hereby given a final extension of up to 3 May 2004 within which to file
their counter-affidavit and controverting evidence furnishing with a copy
thereof complainant with proof of service thereof to this Panel.

Petitioner now comes before this Court with a motion to cite respondent in
contempt alleging that the issuance of the assailed order is in direct contravention
and flagrant violation of the agreement of the parties as stated in the Courts
Resolution dated November 18, 2003, which categorically provides:
Further, it was agreed that the Department of Justice, with the assurance
of the Chief State Prosecutor Jovencito R. Zuo, will maintain the
STATUS QUO before the filing of the petition.

Petitioner argues that he still has 15 days from receipt of the Courts decision
to file a motion for reconsideration, i.e., until May 7, 2004, and therefore, until
that period, the decision dated April 13, 2004 is not yet final and executory; he
intends to file a motion for reconsideration within the reglementary period; the
assailed order requiring him to submit his counter-affidavit is premature and
intended to pre-empt and render futile and nugatory any action of petitioner
with respect to the Courts decision dated April 13, 2004, subverting his right
to due process; the Courts decision dated April 13, 2004 has not lifted said
directives to the parties to maintain the status quo nor did the decision
automatically lift the status quo order; the submission of petitioners counteraffidavit would upset the status quosought to be maintained; with the assailed
order of the respondent panel requiring him to submit his counter-affidavit, the
latter has belittled, degraded, obstructed and impeded the administration of

justice and has wantonly defied the Courts authority; and the Panels order
only confirms his fear that his preliminary investigation and detention are
being railroaded.
In its Comment, respondent contends that: contempt of court presupposes a
contumacious attitude, a flouting or arrogant belligerence, a virtual defiance of
the court; no such attitude or intent is discernible from its assailed action in
proceeding with the preliminary investigation since the respondent issued the
assailed Order in good faith and in the conscientious implementation of the
Courts decision upholding the concurrent jurisdiction of the DOJ to investigate
the charges against petitioner for the crime of coup detat; it has no intention to
willfully disregard the authority of the Court since the assailed order was
promulgated in furtherance and in the exercise of their authority to conduct
preliminary investigation on charges against public officers and employees as
mandated by the Constitution and laws as confirmed by the Courts decision
dated April 13, 2004; the charges against petitioner was filed in August 2003 and
the preliminary investigation was pending since then because of the jurisdictional
issue raised before this Court which was decided on April 13, 2004; upon receipt
of such decision, respondent issued the assailed order with the objective of
resolving the investigation taking into account petitioners right to a speedy
disposition of the case against him; the subject order was not in any manner
effected to railroad petitioners arrest and detention but to serve his right to due
process by giving him all the opportunity to controvert the accusations against
him and to adduce evidence in his behalf; otherwise, the respondent could have
immediately filed the information against petitioner the moment he failed to
submit his counter-affidavit; as a manifestation of good faith, respondent desisted
from further proceeding with the investigation and deferred any action until after
the Courts decision on April 13, 2004; in contempt proceeding, intent, however,
goes to the gravamen of the offense, and the good faith or lack of it, of the
alleged contemnor should be considered; contempt partakes of the nature of a
criminal offense, and doubts should be resolved in favor of the person against
whom proceedings have been brought; and only in cases of clear and
contumacious refusal to obey should the power to punish for contempt of court be
exercised.
aIAEcD

We deny the motion to cite respondent Panel in contempt of court.

Contempt of court is defined as disobedience to the court by acting in opposition

to its authority, justice and dignity. It signifies not only a willful disregard or
disobedience of the courts orders, but such conduct as tends to bring the
authority of the court and administration of law into disrepute or in some manner
to impede the due administration of justice. 1 The power to punish for contempt of
court should be exercised on the preservative and not on the vindictive
principle. 2 Only occasionally should the court invoke its inherent power in order
to retain that respect without which the administration of justice may falter or fail.
Such power being drastic and extraordinary in its nature should not be resorted
to unless necessary in the interest of justice. 3
In compliance with the Courts Resolution dated November 18, 2003, respondent
had stopped from further proceeding with the preliminary investigation while the
case is pending before the court. Respondent issued its assailed order requiring
petitioner to submit his counter-affidavit after receipt of the Courts decision dated
April 13, 2004 upholding respondents authority to conduct the preliminary
investigation on the charge of coup detat against petitioner. Although the Courts
decision dated April 13, 2004 is not yet final as of the date of the issuance of the
said assailed order, the court finds no contemptuous intent on the part of
respondent to impede the administration of justice. As respondent has explained
in its Comment, the charges against petitioner was filed with the DOJ in August
2003 and since then, the preliminary investigation has been pending, thus with
the Courts decision upholding their jurisdiction, respondent issued the assailed
order taking into account petitioners right to a speedy disposition of his case.
Clearly, respondents intention is to give respondent all the opportunity to
controvert the accusation against him and to adduce evidence in his behalf. The
Court finds respondents explanation satisfactory and does not see the act of
respondent as contumacious, as herein earlier defined by the Court.
Petitioner asserts in his Motion that he received on April 22, 2004, a copy of the
Courts decision upholding respondents authority to conduct preliminary
investigation, and that he has until May 7, 2004 to file his motion for
reconsideration. However, verification with the Courts docket section reveals that
petitioner filed his motion for reconsideration only on June 8, 2004, or thirty days
late. The Courts decision dated April 13, 2004 has already attained finality as of

May 8, 2004. Hence, there is no longer any impediment for respondent to

proceed with the preliminary investigation and for petitioner to comply with the
respondents order to submit his counter-affidavit.
WHEREFORE, petitioners motion to cite respondent in contempt of court is
DENIED. Respondent is required to give petitioner a fresh period from receipt of
this Resolution to submit his counter-affidavit.
SO ORDERED.
|||

(Honasan II v. Panel of Investigating Prosecutors of the DOJ, G.R. No. 159747,

[June 15, 2004], 476 PHIL 127-134)

2.
[G.R. No. 197293. April 21, 2014.]
ALFREDO C. MENDOZA, petitioner, vs. PEOPLE OF THE
PHILIPPINES AND JUNO CARS, INC., respondents.
DECISION
LEONEN, J :
p

While the determination of probable cause to charge a person of a crime is the

sole function of the prosecutor, the trial court may, in the protection of one's
fundamental right to liberty, dismiss the case if, upon a personal assessment of
the evidence, it finds that the evidence does not establish probable cause.
This is a petition for review on certiorari 1 assailing the Court of Appeals'
decision 2 dated January 14, 2011, which reversed the Regional Trial Court's
dismissal of the complaint against petitioner Alfredo C. Mendoza for qualified
theft and estafa.

This case stems from a complaint-affidavit filed by Juno Cars, Inc. through its
representative, Raul C. Evangelista, on January 8, 2008 for qualified theft and
estafa against Alfredo. 3
In the complaint-affidavit, Juno Cars alleged that on June 2, 2007, it hired Alfredo
as Trade-In/Used Car Supervisor. On November 19, 2007, its Dealer/Operator,
Rolando Garcia, conducted a partial audit of the used cars and discovered that
five (5) cars had been sold and released by Alfredo without Rolando's or the
finance manager's permission. 4
The partial audit showed that the buyers of the five cars made payments, but
Alfredo failed to remit the payments totalling P886,000.00. It was further alleged
that while there were 20 cars under Alfredo's custody, only 18 were accounted
for. Further investigation revealed that Alfredo failed to turn over the files of a
2001 Hyundai Starex and a Honda City 1.5 LXI. Juno Cars alleged that taking
into account the unremitted amounts and the acquisition cost of the Honda City,
Alfredo pilfered a total amount of P1,046,000.00 to its prejudice and damage. 5
In his counter-affidavit, Alfredo raised, among others, Juno Cars' supposed failure
to prove ownership over the five (5) cars or its right to possess them with the
purported unremitted payments. Hence, it could not have suffered damage. 6
On March 4, 2008, Provincial Prosecutor Rey F. Delgado issued a
resolution 7 finding probable cause and recommending the filing of an information
against Alfredo for qualified theft and estafa.
Alfredo moved for reconsideration, but the motion was denied. 8 He then filed a
petition for review with the Department of Justice on May 16, 2008. 9
While Alfredo's motion for reconsideration was still pending before the Office of
the City Prosecutor of Mandaluyong, two informations for qualified theft 10 and
estafa 11 were filed before the Regional Trial Court, Branch 212, Mandaluyong
City. On March 31, 2008, Alfredo filed a motion for determination of probable
cause 12 before the trial court. On April 28, 2008, he also filed a motion to defer
arraignment.

Several clarificatory hearings were scheduled but were not conducted. 13 On

February 4, 2009, the parties agreed to submit all pending incidents, including
the clarificatory hearing, for resolution. 14
On March 3, 2009, the trial court, through Presiding Judge Rizalina Capco-Umali,
issued an order 15 dismissing the complaint, stating that:
After conducting an independent assessment of the evidence on record
which includes the assailed Resolution dated 04 March 2008, the court
holds that the evidence adduced does not support a finding of probable
cause for the offenses of qualified theft and estafa. . . . . 16

Juno Cars filed a motion for reconsideration, which the trial court denied on July
3, 2009. 17
CDAHIT

Juno Cars then filed a petition for certiorari with the Court of Appeals, arguing
that the trial court acted without or in excess of its jurisdiction and with grave
abuse of discretion when it dismissed the complaint. It argued that "the
determination of probable cause and the decision whether or not to file a criminal
case in court, rightfully belongs to the public prosecutor." 18
On January 14, 2011, the Court of Appeals rendered a decision, 19 reversed the
trial court, and reinstated the case. In its decision, the appellate court ruled that
the trial court acted without or in excess of its jurisdiction "in supplanting the
public prosecutor's findings of probable cause with her own findings of
insufficiency of evidence and lack of probable cause." 20
Aggrieved, Alfredo filed a petition for review under Rule 45 before this court. In
essence, he argued that the trial court was correct in finding that there was no
probable cause as shown by the evidence on record. He argued that "judicial
determination of probable cause is broader than [the] executive determination of
probable cause" 21and that "[i]t is not correct to say that the determination of
probable cause is exclusively vested on the prosecutor . . . ." 22
In its comment, 23 Juno Cars argued that Alfredo presented questions, issues,
and arguments that were a mere rehash of those already considered and passed
upon by the appellate court.

The Office of the Solicitor General, arguing for public respondent, stated in its
comment 24 that the appellate court correctly sustained the public prosecutor in
his findings of probable cause against Alfredo. Since there was no showing of
grave abuse of discretion on the part of Prosecutor Rey F. Delgado, the trial court
should respect his determination of probable cause.
In his reply, 25 Alfredo reiterated that "judicial determination of probable cause[,]
while not a superior faculty[,] covers a broader encompassing perspective in the
disposition of the issue on the existence of probable cause." 26 He argued that
the findings of the trial court should be accorded greater weight than the
appellate court's. It merely reviewed the findings of the trial court.
The primordial issue is whether the trial court may dismiss an information filed by
the prosecutor on the basis of its own independent finding of lack of probable
cause.
Time and again, this court has been confronted with the issue of the difference
between the determination of probable cause by the prosecutor on one hand and
the determination of probable cause by the judge on the other. We examine these
two concepts again.
Juno Cars filed a complaint against Alfredo for qualified theft 27 and estafa under
Article 315, fourth paragraph, no. 3 (c) 28 of the Revised Penal Code.Since
qualified theft is punishable by reclusion perpetua, a preliminary investigation
must first be conducted "to determine whether there is sufficient ground to
engender a well-founded belief that a crime has been committed and the
respondent is probably guilty thereof, and should be held for trial," in accordance
with Rule 112, Section 1 of the Rules on Criminal Procedure.
At this stage, the conduct of the preliminary investigation and the subsequent
determination of the existence of probable cause lie solely within the discretion of
the public prosecutor. 29 If upon evaluation of the evidence, the prosecutor finds
sufficient basis to find probable cause, he or she shall then cause the filing of the
information with the court.
Once the information has been filed, the judge shall then "personally evaluate the
resolution of the prosecutor and its supporting evidence" 30 to determine whether

there is probable cause to issue a warrant of arrest. At this stage,

a judicial determination of probable cause exists.
In People v. Castillo and Mejia, 31 this court has stated:
There are two kinds of determination of probable cause: executive and
judicial. The executive determination of probable cause is one made
during preliminary investigation. It is a function that properly pertains to
the public prosecutor who is given a broad discretion to determine
whether probable cause exists and to charge those whom he believes to
have committed the crime as defined by law and thus should be held for
trial. Otherwise stated, such official has the quasi-judicial authority to
determine whether or not a criminal case must be filed in court. Whether
or not that function has been correctly discharged by the public
prosecutor, i.e., whether or not he has made a correct ascertainment of
the existence of probable cause in a case, is a matter that the trial court
itself does not and may not be compelled to pass upon.
The judicial determination of probable cause, on the other hand, is one
made by the judge to ascertain whether a warrant of arrest should be
issued against the accused. The judge must satisfy himself that based
on the evidence submitted, there is necessity for placing the accused
under custody in order not to frustrate the ends of justice. If the judge
finds no probable cause, the judge cannot be forced to issue the arrest
warrant. 32

The difference is clear: The executive determination of probable cause concerns

itself with whether there is enough evidence to support an Information being filed.
The judicial determination of probable cause, on the other hand, determines
whether a warrant of arrest should be issued. In People v. Inting: 33
ESCacI

. . . Judges and Prosecutors alike should distinguish the preliminary

inquiry which determines probable cause for the issuance of a warrant of
arrest from the preliminary investigation proper which ascertains whether
the offender should be held for trial or released. Even if the two inquiries
are conducted in the course of one and the same proceeding, there
should be no confusion about the objectives. The determination of
probable cause for the warrant of arrest is made by the Judge. The
preliminary investigation proper whether or not there is

reasonable ground to believe that the accused is guilty of the

offense charged and, therefore, whether or not he should be
subjected to the expense, rigors and embarrassment of trial is
the function of the Prosecutor. 34 (Emphasis supplied)

While it is within the trial court's discretion to make an independent assessment

of the evidence on hand, it is only for the purpose of determining whether a
warrant of arrest should be issued. The judge does not act as an appellate court
of the prosecutor and has no capacity to review the prosecutor's determination of
probable cause; rather, the judge makes a determination of probable cause
independent of the prosecutor's finding.
People v. Court of Appeals and Jonathan Cerbo 35 discussed the rationale. In
that case, Jonathan Cerbo allegedly shot Rosalinda Dy in the presence of his
father, Billy Cerbo. An information for murder was filed against Jonathan Cerbo.
The daughter of Rosalinda Dy, as private complainant, executed a complaintaffidavit charging Billy Cerbo with conspiracy. The prosecutor then filed a motion
to amend the information, which was granted by the court. The information was
then amended to include Billy Cerbo as one of the accused, and a warrant of
arrest was issued against him.
Billy Cerbo filed a motion to quash the warrant arguing that it was issued without
probable cause. The trial court granted this motion, recalled the warrant, and
dismissed the case against him. The Court of Appeals affirmed this dismissal.
This court, however, reversed the Court of Appeals and ordered the
reinstatement of the amended information against Billy Cerbo, stating that:
In granting this petition, we are not prejudging the criminal case or the
guilt or innocence of Private Respondent Billy Cerbo. We are simply
saying that, as a general rule, if the information is valid on its face
and there is no showing of manifest error, grave abuse of discretion
or prejudice on the part of the public prosecutor, courts should not
dismiss it for 'want of evidence,' because evidentiary matters
should be presented and heard during the trial. The functions and
duties of both the trial court and the public prosecutor in "the proper
scheme of things" in our criminal justice system should be clearly
understood.

The rights of the people from what could sometimes be an "oppressive"

exercise of government prosecutorial powers do need to be protected
when circumstances so require. But just as we recognize this need, we
also acknowledge that the State must likewise be accorded due
process. Thus, when there is no showing of nefarious irregularity or
manifest error in the performance of a public prosecutor's duties, courts
ought to refrain from interfering with such lawfully and judicially
mandated duties.
In any case, if there was palpable error or grave abuse of discretion in
the public prosecutor's finding of probable cause, the accused can
appeal such finding to the justice secretary and move for the deferment
or suspension of the proceedings until such appeal is
resolved. 36 (Emphasis supplied)

In this case, the resolution dated March 4, 2008 of Prosecutor Rey F. Delgado
found that the facts and evidence were "sufficient to warrant the indictment of
[petitioner] . . . ." 37 There was nothing in his resolution which showed that he
issued it beyond the discretion granted to him by law and jurisprudence.
While the information filed by Prosecutor Delgado was valid, Judge Capco-Umali
still had the discretion to make her own finding of whether probable cause existed
to order the arrest of the accused and proceed with trial.
Jurisdiction over an accused is acquired when the warrant of arrest is served.
Absent this, the court cannot hold the accused for arraignment and trial.
Article III, Section 2 of the Constitution states:
The right of the people to be secure in their persons, houses, papers,
and effects against unreasonable searches and seizures of whatever
nature and for any purpose shall be inviolable, and no search warrant
or warrant of arrest shall issue except upon probable cause to be
determined personally by the judge after examination under oath or
affirmation of the complainant and the witnesses he may produce, and
particularly describing the place to be searched and the persons or
things to be seized.

The Constitution prohibits the issuance of search warrants or warrants of arrest

where the judge has not personally determined the existence of probable cause.

The phrase "upon probable cause to be determined personally by the judge after
examination under oath or affirmation of the complainant and the witnesses he
may produce" allows a determination of probable cause by the judge ex parte.
For this reason, Section 6, paragraph (a) of Rule 112 of the Rules on Criminal
Procedure mandates the judge to "immediately dismiss the case if the evidence
on record fails to establish probable cause." Section 6, paragraph (a) of Rule 112
reads:
Section 6. When warrant of arrest may issue. (a) By the Regional
Trial Court. Within ten (10) days from the filing of the complaint or
information, the judge shall personally evaluate the resolution of the
prosecutor and its supporting evidence. He may immediately dismiss
the case if the evidence on record clearly fails to establish probable
cause. If he finds probable cause, he shall issue a warrant of arrest, or
a commitment order if the accused has already been arrested pursuant
to a warrant issued by the judge who conducted the preliminary
investigation or when the complaint or information was filed pursuant to
section 7 of this Rule. In case of doubt on the existence of probable
cause, the judge may order the prosecutor to present additional
evidence within five (5) days from notice and the issue must be
resolved by the court within thirty (30) days from the filing of the
complaint of information.

In People v. Hon. Yadao: 38

Section 6, Rule 112 of the Rules of Court gives the trial court three
options upon the filing of the criminal information: (1) dismiss the case if
the evidence on record clearly failed to establish probable cause; (2)
issue a warrant of arrest if it finds probable cause; and (3) order the
prosecutor to present additional evidence within five days from notice in
case of doubt as to the existence of probable cause.
But the option to order the prosecutor to present additional evidence is
not mandatory. The court's first option under the above is for it to
"immediately dismiss the case if the evidence on record clearly
fails to establish probable cause." That is the situation here: the
evidence on record clearly fails to establish probable cause against the
respondents. 39 (Emphasis supplied)

It is also settled that "once a complaint or information is filed in court, any

disposition of the case, whether as to its dismissal or the conviction or the
acquittal of the accused, rests in the sound discretion of the court." 40
In this case, Judge Capco-Umali made an independent assessment of the
evidence on record and concluded that "the evidence adduced does not support
a finding of probable cause for the offenses of qualified theft and
estafa." 41 Specifically, she found that Juno Cars "failed to prove by competent
evidence" 42 that the vehicles alleged to have been pilfered by Alfredo were
lawfully possessed or owned by them, or that these vehicles were received by
Alfredo, to be able to substantiate the charge of qualified theft. She also found
that the complaint "[did] not state with particularity the exact value of the alleged
office files or their valuation purportedly have been removed, concealed or
destroyed by the accused," 43 which she found crucial to the prosecution of the
crime of estafa under Article 315, fourth paragraph, no. 3 (c) of the Revised
Penal Code.She also noted that:
. . . As a matter of fact, this court had even ordered that this case be set
for clarificatory hearing to clear out essential matters pertinent to the
offense charged and even directed the private complainant to bring
documents relative to the same/payment as well as affidavit of
witnesses/buyers with the end view of satisfying itself that indeed
probable cause exists to commit the present case which private
complainant failed to do. 44

Accordingly, with the present laws and jurisprudence on the matter, Judge
Capco-Umali correctly dismissed the case against Alfredo.
Although jurisprudence and procedural rules allow it, a judge must always
proceed with caution in dismissing cases due to lack of probable cause,
considering the preliminary nature of the evidence before it. It is only when he or
she finds that the evidence on hand absolutely fails to support a finding of
probable cause that he or she can dismiss the case. On the other hand, if a judge
finds probable cause, he or she must not hesitate to proceed with arraignment
and trial in order that justice may be served.
WHEREFORE, the petition is GRANTED. The decision dated January 14, 2011
of the Court of Appeals in CA-G.R. SP. No. 110774 is REVERSED and SET

ASIDE. Criminal Case Nos. MC08-11604-05 against Alfredo C. Mendoza

are DISMISSED.
SO ORDERED.
|||

(Mendoza v. People, G.R. No. 197293, [April 21, 2014])

3.
[G.R. No. 114266. December 4, 1996.]
PEOPLE OF THE PHILIPPINES, plaintiff, vs. ROGELIO
VILLANUEVA and MAMERTO DURANA, accused, MAMERTO
DURANA, accused-appellant.
The Solicitor General for plaintiff-appellee.
Valera Law Office and Associates for accused-appellant.
SYLLABUS
1. REMEDIAL LAW; CRIMINAL PROCEDURE; PRELIMINARY INVESTIGATION;
FAILURE OF ACCUSED TO INVOKE RIGHT TO PRELIMINARY
INVESTIGATION BEFORE OR AT THE TIME HE ENTERED HIS PLEA AT THE
ARRAIGNMENT CONSTITUTE WAIVER THEREOF. It is settled that the
absence of a preliminary investigation does not impair the validity of the
information or otherwise render the same defective; neither does it affect the
jurisdiction of the court over the case, nor does it constitute a ground for
quashing the information. If no preliminary investigation has been held, or if it is
flawed, the trial court may, on motion of the accused, order an investigation or
reinvestigation and hold the proceedings on the criminal case in abeyance. In this
case, accused-appellant failed to invoke such right to preliminary investigation
before or at the time he entered his plea at arraignment. He can no longer invoke
that right at this late stage of the proceedings.

2. ID.; EVIDENCE; FACTUAL FINDINGS OF THE TRIAL COURTS; POLICY OF

THE COURT. It is the policy of the Court, founded on reason and experience,
to sustain the factual findings of the trial court in criminal cases on the rational
assumption that it is in a better position to assess the evidence before it;
consequently, findings of the trial court are entitled to the highest degree of
respect and will not be disturbed on appeal in the absence of any showing that
the court overlooked, misunderstood or misapplied some facts or circumstances
of weight and substance which if considered would have affected the result of the
case. It is the trial court and not any court on appeal that can best ascertain the
credibility of witnesses.
3. ID.; ID.; CREDIBILITY OF WITNESSES; TESTIMONIES; INCONSISTENCIES
ON MINOR OR TRIVIAL MATTERS TEND TO STRENGTHEN RATHER THAN
WEAKEN CREDIBILITY. Discrepancies on minor matters do not impair the
essential integrity of the evidence for the prosecution as a whole nor reflect on
the honesty of the witness. The alleged inconsistencies on the testimony of Gloria
Meniano dwell on minor and trivial matters which only serve to strengthen than
weaken her credibility. The most honest witness may sometimes commit
mistakes but such honest lapses do not necessarily impair his credibility
especially when minor details are involved. Human memory may be temporarily
paralyzed by a startling event especially if the same involves a person close to
the witness.
4. CRIMINAL LAW; CIRCUMSTANCES WHICH AFFECT CRIMINAL LIABILITY;
CONSPIRACY; INFERRED FROM AND ESTABLISHED BY THE ACTS OF THE
ACCUSED THEMSELVES WHEN SAID ACTS POINT TO A JOINT PURPOSE
AND DESIGN, CONCERTED ACTION AND COMMUNITY OF PURPOSE;
CASE AT BAR. We hold that the trial court correctly found the existence of
conspiracy between the two accused in killing the deceased with the employment
of treachery. Conspiracy can be inferred from and established by the acts of the
accused themselves when said acts point to a joint purpose and design,
concerted action and community of interests. In the instant case, it was clearly
shown that while appellant purposely challenged the deceased to go out of his
house, his co-accused secretly hid among the plants outside of the house to
await Diosdado and when the latter finally appeared, the former suddenly and

without warning pounded upon the victim and hacked him to death. Indeed
Villanueva and Durana gave their victim no chance to defend himself nor even to
repel the assault on him considering the unexpected attack on his person to
ensure the accomplishment of their objective without risk to themselves.
5. ID.; ID.; ID.; LIABILITY OF CO-CONSPIRATORS. Conspiracy between
appellant and his co-accused having been established, the guilt or culpability of
one is imputable to both of them in equal degree although accused Rogelio
Villanueva still has to be apprehended and then tried before he can be declared
guilty as the evidence may warrant.
DECISION
BELLOSILLO, J :
p

DIOSDADO MENIANO was hacked dead for which ROGELIO VILLANUEVA and
MAMERTO DURANA were charged with murder. Villanueva however remained at
large so that only Durana was tried. Thereafter Durana was sentenced
to reclusion perpetua and ordered to indemnify the heirs of their victim in the
amount of P50,000.00. 1
On 12 November 1992, around ten-thirty in the evening, at Barangay Tagpuro,
Tacloban City, Diosdado Meniano and his wife Gloria were awakened by a loud
voice from outside their house challenging Diosdado to a fight. Gloria Meniano
readily recognized the voice as that of accused Mamerto Durana. 2 The
challenge was hurled a number of times by Durana. It was not heeded initially by
Diosdado until after Durana threatened to go up the house if the former would not
go down. Diosdado decided finally to go down but not without arming himself with
a short bolo. Gloria remained inside the house. She peeped through the bamboo
slats which served as external walls of their house. 3 Since the moon was bright
she was able to see Durana clearly as the intruder. 4 She also saw the accused
Rogelio Villanueva hiding near the San Francisco plants. 5 As soon as Diosdado
went out of his house he was immediately hacked by Villanueva. 6 Despite the

hacking, Durana continued challenging Diosdado to a fight. He even taunted the

victim, "You cannot bear a wound." 7 Villanueva and Durana then ran away.
Elenita Meniano, sister-in-law and neighbor of Diosdado, also witnessed the
hacking incident. She testified that on 12 November 1992 she and her husband
were awakened by the shouts of Mamerto Durana challenging Diosdado to a
fight; 8 that they watched the incident through the window and saw Diosdado
hacked by Villanueva after the former went down from his house; that after
Diosdado was slain, she saw Durana brandishing a bolo near the crime scene. 9
The body of Diosdado Meniano was examined by Dr. Angel A. Cordero, MedicoLegal Officer, Camp Kangleion, Palo, Leyte, who ascribed the cause of death to
"shock and hemorrhage due to hacking wounds of the right basal portion of the
skull, lacerating the spinal column." 10
The defense is alibi. Mamerto Durana claims that in the evening of 12 November
1992 he was in the store of a certain Rogelio Baganio some 30 meters from the
house of the deceased to buy cigarettes 11 and to fetch his children who were
watching television in the store. Baganio's store was about half a kilometer away
from his residence.
The defense of appellant was not sustained by the trial court.
In this appeal appellant contends that the court a quo erred (a) in failing to
consider the fact that he was not a party respondent during the preliminary
investigation of the case and (b) in giving credence to the testimony of Gloria
Meniano. 12
Accused-appellant argues that the instant case was filed in court for murder only
against the other accused, Rogelio Villanueva, on the basis of the resolution of
the prosecutor in I.S. No. 92-1524; that he was not made a respondent in the
investigation; that despite the sworn statements of witnesses Gloria Meniano and
Elenita Meniano who pointed to him as co-conspirator, he was not included in the
charge for murder because, according to the police, he would be used as a
witness against the accused Villanueva.
The argument is without merit. It is settled that the absence of a preliminary
investigation does not impair the validity of the information or otherwise render

the same defective; neither does it affect the jurisdiction of the court over the
case, nor does it constitute a ground for quashing the information. 13 If no
preliminary investigation has been held, or if it is flawed, the trial court may, on
motion of the accused, order an investigation or reinvestigation and hold the
proceedings on the criminal case in abeyance. 14 In this case, accused-appellant
failed to invoke such right to preliminary investigation before or at the time he
entered his plea at arraignment. 15 He can no longer invoke that right at this late
stage of the proceedings.
Appellant likewise cites what he believes are inconsistencies in the testimony of
prosecution witness Gloria Meniano which cast serious doubt on its truthfulness:
(a) her statement that when her husband was hacked appellant and his coaccused were still there 16 although she later testified that the other accused was
able to run away when her husband was felled after the attack, 17 and, (b) that
during the investigation Gloria informed the police authorities that her husband
went out of the house because appellant asked her for a stick of cigarette but in
court she swore that appellant challenged her husband to a fight. 18
It is the policy of the Court, founded on reason and experience, to sustain the
factual findings of the trial court in criminal cases on the rational assumption that
it is in a better position to assess the evidence before it; consequently, findings of
the trial court are entitled to the highest degree of respect and will not be
disturbed on appeal in the absence of any showing that the court overlooked,
misunderstood or misapplied some facts or circumstances of weight and
substance which if considered would have affected the result of the case. It is the
trial court and not any court on appeal that can best ascertain the credibility of
witnesses.
Discrepancies on minor matters do not impair the essential integrity of the
evidence for the prosecution as a whole nor reflect on the honesty of the
witness. 19 The alleged inconsistencies on the testimony of Gloria Meniano dwell
on minor and trivial matters which only serve to strengthen than weaken her
credibility. The most honest witness may sometimes commit mistakes but such
honest lapses do not necessarily impair his credibility especially when minor
details are involved. Human memory may be temporarily paralyzed by a startling
event especially if the same involves a person close to the witness.

Contrary to the allegations of the accused-appellant, there was no such

inconsistency in the testimony of Gloria Meniano concerning the former's
participation in the killing of her husband. To the questions of the trial court, the
witness clearly testified as to the existence of conspiracy between appellant and
his co-accused. Thus
Court:
Q. I will ask some clarificatory questions. The police would have not
known the incident if you did not give information to the police,
right?
A. Yes, sir.
Q. Now, here you said that Mamerto Durana was asking from your
husband a stick of cigarette. Did you say this to the police.
A. I did not say that to the police.
Q. Then how could the police state it here if not given that information by
you?
A. I was still confused at that time because of the death of my husband.
Q. Now, here in this excerpt of the blotter the person you identified to the
police who hacked your husband was not Rogelio Villanueva but
Mamerto Durana and apparently this is the information you gave
to the police?
A. No, sir, that is not what I told to (sic) the police.
Q. What did you tell to (sic) the police?
A. I told the policemen that it was Rogelio Villanueva who hacked my
husband.
Q. Why did you not tell the police that the accused here Mamerto Durana
was asking for a stick of cigarette from your husband that is the
reason why your husband went out of the house?
A. Maybe I was still confused at that time, I do not know.

Q. But even if you were confused the fact that the dead man here is your
husband you cannot be confused which one killed your husband
and what preceded?
A. I would not be confused on the person who killed my husband.
Q. The court feels that the situation is like this, that either you are telling
the truth or this complaint was only based on suspicion that it was
the two accused who conspired to kill your husband or maybe you
did not see the actual killing?
A. It is not only my suspicion because I saw that it was Rogelio
Villanueva who hacked my husband.
Q. So it is clear now that what you told the police was that Mamerto
Durana challenged your husband to a fight and not that Mamerto
Durana was asking for a stick of cigarette from your husband?
A. Yes, sir. 20

Gloria Meniano's testimony in court jibes with the sworn statement she executed
on 16 November 1992 before the police authorities. 21 This statement as well as
her testimony clearly points to the appellant as the person who challenged and
drew Diosdado Meniano out of his house so that the latter could be hacked
without warning by his co-accused. The inconsistency alleged by accusedappellant referred merely to a police investigation report stating that Meniano
allegedly told the police authorities that appellant asked for a cigarette stick from
the deceased prompting the latter to go out of his house. This cannot prevail over
the positive identification in court by the witnesses for the prosecution that
appellant was one of two culprits criminally responsible for the death of Diosdado
Meniano.
We hold that the trial court correctly found the existence of conspiracy between
the two accused in killing the deceased with the employment of treachery.
Conspiracy can be inferred from and established by the acts of the accused
themselves when said acts point to a joint purpose and design, concerted action
and community of interests. 22 In the instant case, it was clearly shown that while
appellant purposely challenged the deceased to go out of his house, his coaccused secretly hid among the plants outside of the house to await Diosdado

and when the latter finally appeared, the former suddenly and without warning
pounced upon the victim and hacked him to death. Indeed Villanueva and Durana
gave their victim no chance to defend himself nor even to repel the assault on
him considering the unexpected attack on his person to ensure the
accomplishment of their objective without risk to themselves. Conspiracy
between appellant and his co-accused having been established, the guilt or
culpability of one is imputable to both of them in equal degree 23 although
accused Rogelio Villanueva still has to be apprehended and then tried before he
can be declared guilty as the evidence may warrant.
The penalty for murder under Art. 248 of the Revised Penal Code is reclusion
temporal in its maximum period to death. There being no mitigating or
aggravating circumstances that attended the commission of the offense, the trial
court therefore correctly imposed the penalty of reclusion perpetua upon accused
Mamerto Durana.
WHEREFORE, the decision finding accused-appellant MAMERTO DURANA
guilty of murder and imposing upon him a prison term of reclusion perpetua, as
well as ordering him to indemnify the heirs of Diosdado Meniano in the amount of
P50,000.00 is AFFIRMED, with costs against accused-appellant.
SO ORDERED.
|||

(People v. Villanueva and Durana, G.R. No. 114266, [December 4, 1996], 333

PHIL 148-157)

4.
[G.R. No. 169042. October 5, 2011.]
ERDITO QUARTO, petitioner, vs. THE HONORABLE
OMBUDSMAN SIMEON MARCELO, CHIEF SPECIAL
PROSECUTOR DENNIS VILLA IGNACIO, LUISITO M. TABLAN,
RAUL B. BORILLO, and LUIS A. GAYYA, respondents.

DECISION
BRION, J :
p

Before the Court is a petition for certiorari and mandamus 1 filed by

Erdito Quarto (petitioner) assailing the Ombudsman's January 7, 2004 2 and
November 4, 2004 3 resolutions which granted Luisito M. Tablan, Raul B.
Borillo, and Luis A. Gayya (collectively, respondents) immunity from
prosecution, resulting in the respondents' exclusion from the criminal
informations filed before the Sandiganbayan. The petitioner seeks to nullify the
immunity granted to the respondents, and to compel the Ombudsman to
include them as accused in the informations for estafa through falsification of
public documents 4 and for violation of Section 3 (e), Republic Act (RA) No.
3019. 5
FACTUAL ANTECEDENTS
The petitioner is the Chief of the Central Equipment and Spare Parts
Division (CESPD), 6 Bureau of Equipment (BOE), Department of Public Works
and Highways(DPWH), Port Area, Manila. As CESPD Chief, he is also the
Head of the Special Inspectorate Team (SIT) of the DPWH. 7 The respondents
are members of the SIT. 8
On January 9, 2002, DPWH Secretary Simeon Datumanong created a
committee to investigate alleged anomalous transactions involving the repairs
and/or purchase of spare parts of DPWH service vehicles in 2001. 9 On
January 17, 2002, the committee designated the DPWH Internal Audit
Service (IAS) as its Technical Working Group to conduct the actual
investigation. 10
In the course of its investigation, the DPWH-IAS 11 learned that the
emergency repairs and/or purchase of spare parts of DPWH service vehicles
basically undergo the following documentary process:
I. Determination of repairs and/or spare parts needed

IHCacT

a. The end-user requesting repair brings the service vehicle

to the Motorpool Section, CESPD for initial inspection
and preparation of Job Order; and
b. Based on the Job Order, the SIT conducts a pre-repair
inspection (to determine the necessity of repair and
whether the repair is emergency in nature) and
prepares a Pre-Repair Inspection Report, with a
recommendation for its approval by the CESPD Chief.
II. Preparation and Approval of Requisition for Supplies and/or
Equipment with accompanying documents (Job Order and
Pre-Inspection Report)
a. The Procurement Section, Administrative Manpower
Management Service (AMMS) prepares the
Requisition for Supplies and Equipment (RSE), the
Canvass Quotation of three Suppliers, the Certificate
of Emergency Purchase, and the Certificate of Fair
Wear and Tear;
b. The end-user signs the RSE with the recommending
approval of the concerned head of office; and
c. The AMMS Director approves the RSE.
III. Repair of Vehicles
a. The end-user selects the repair shop/auto supply from
accredited establishments;
b. The selected repair shop/auto supply repairs the service
vehicle and issues the corresponding sales invoice
and/or official receipt;
c. The end-user accepts the repair and executes a Certificate
of Acceptance;
d. The SIT conducts a post-repair inspection (to check if the
vehicle was repaired and whether the repair

conformed to specifications) and prepares a PostRepair Inspection Report, with a recommendation for
its approval by the CESPD Chief. The Motorpool and
the end-user would prepare the Report of Waste
Materials also for the signature of the CESPD Chief;
and
SCaIcA

e. The Assets and Supply Management and Control Division

recommends payment of the expense/s incurred.
The processing of the payment of claims for reimbursement follows the above
process.
Based on this procedure, the DPWH-IAS discovered that from March to
December 2001, several emergency repairs and/or purchase of spare parts of
hundreds of DPWH service vehicles, which were approved and paid by the
government, did not actually take place, resulting in government losses of
approximately P143 million for this ten-month period alone. 12
Thus, Atty. Irene D. Ofilada of the DPWH-IAS filed before the Office of
the Ombudsman 13 a Complaint-Affidavit 14 and a Supplemental ComplaintAffidavit 15charging several high-ranking DPWH officials and employees
including the petitioner, the respondents, and other private individuals who
purportedly benefited from the anomalous transactions with Plunder,
Money Laundering, Malversation, and violations of RA No. 3019 and the
Administrative Code. 16
Atty. Ofilada imputed the following acts to the petitioner:
With dishonesty and grave misconduct, [the petitioner] . . . approved
four (4) job orders for [the] repairs [and/or] purchase of spare parts of
[the vehicle assigned to Atty. Ofilada,] noted the certificate of urgency of
said repairs [and/or] purchase[,] concurred with both the pre-repair
and post repair inspection reports thereon, participated in the
accomplishment of the supporting Requisition for Supplies and
Equipment (RSE) . . .[,] and participated in the approval of the
disbursement voucher authorizing payment of said repairs as necessary
and lawful [even if said vehicle was never referred to the Motorpool
Section, CESPD for repair].

The documents relating to [this vehicle] were filed within a period of one
month (between September to October 2001) [and] were used to
authorize the payment of said non existent ghost repairs to the damage
and prejudice of the [DPWH.] 17 (emphases ours)
DCcSHE

On the other hand, Atty. Ofilada charged the respondents with the following:
With dishonesty and grave misconduct, [respondents] as members of the
[SIT] . . . accomplished and signed Pre-Repair Inspection and Post
Repair Inspection Reports in support of the four job orders [and
made] it appear that the vehicle was inspected prior and after the
alleged repair [although they knew that the vehicle was never
turned over for inspection]. The accomplishment of the Pre-Repair
and Post-Repair Inspection Report[s] led to the preparation of the
Request for Supplies and Equipment which was the basis of the
preparation of the disbursement vouchers ultimately authorizing the
payment of the said repairs thru reimbursement scheme to the damage
and prejudice of the DPWH.
. . . the [P]re-[R]epair and [P]ost-[R]epair [I]nspection [R]eports of the
[SIT] . . . are fictitious and falsified as no actual inspection could have
transpired[.] 18 (emphasis ours)

The petitioner denied the allegations against him, claiming that he

merely relied on his subordinates when he signed the job orders and the
inspection reports. 19 In contrast, the respondents admitted the existence of
irregularities in the repairs and/or purchase of spare parts of DPWH service
vehicles, and offered to testify and to provide evidence against the DPWH
officials and employees involved in the anomaly in exchange for their immunity
from prosecution. The respondents submitted:
5.2 . . . since we assumed our duties as members of the SIT . . ., we
observed that [the] DPWH vehicles were being sent to the repair shop in
violation of the prescribed guidelines governing the emergency repair of
a service vehicle. In most instances, service vehicles are
immediately brought to a car repair shop of the end-user's choice
without bringing it first to the [Motorpool Section, CESPD, BOE] for
the preparation of the required job order by [Gayya] of the
Motorpool Section and the pre-repair inspection to be conducted by

the SIT. After the purported repairs are done, SIT members are
made to sign a post-repair inspection report which already includes
a typed-in recommendation for the payment of repairs, and the
signature of the Head of the [SIT] indicating his alleged
concurrence with the findings of the SIT despite the absence of an
actual inspection. The post-repair inspection report is accompanied by
the following attachments, to wit: a) a falsified job order signed by the
head of the [SIT] and the Chief of the Motorpool Section . . . [and] e) an
empty or falsified [p]re-repair inspection report[.]
5.3 Initially[,] we tried to curb the above anomalous practices being
perpetrated by suppliers and officials of the DPWH . . . [by making]
known [our] objections to the questionable job orders for the proposed
repairs of DPWH service vehicles[,] thus:
ECTSDa

a. On July 9, 1999, [Tablan] wrote the Head of the SIT a

memorandum . . . stating that the job orders for [several
identified vehicles] . . . violated the prohibition against
splitting of job orders . . . . [Tablan recommended for public
bidding the proposed repairs for the said vehicles].
b. In connection with the job orders involving [several identified
vehicles] . . . Tablan and Borillo wrote the Head of the SIT a
Memorandum . . . recommending that the whereabouts of
the end-user be verified, and the service vehicle be reinspected and/or disposed of.
c. Since the July 9, 1999 Memorandum was returned to . . .
Tablan without any action being undertaken by the SIT
Chief, [Tablan and Borillo] reiterated the recommendation
for the public bidding of the proposed repairs described
therein[.]
6. In our attempts to perform our sworn duties, however, we incurred the
displeasure of the suppliers, the head of [SIT] and other officials of the
DPWH who threatened various administrative sanctions against us if we
should not accede to their wishes. . . .
7. In addition to the foregoing, there are other factors which conspired to
prevent us from properly performing our duties. For one, the DPWH

processes an average of 3,000 repairs per calendar year. Given the

staggering number and extent of repairs, including the volume of
paperwork, it was practically impossible for [us] to implement the rules
which proved too tedious under the circumstance. As such, a "short-cut"
of the rules was necessary to accommodate the demands of the enduser, the suppliers, our superiors, and other executives of the
DPWH. . . .
8. The anomalous practices of the DPWH executives and suppliers in
the purported repair of DPWH service vehicles were indeed more
widespread and rampant in the year 2001. As a precautionary measure,
we took the initiative of photocopying these sets of falsified documents
as they were presented to us before we affixed our respective signatures
thereon. We grouped these documents into Sets A and B[.]
DIEAHc

xxx xxx xxx

11. . . . That the service vehicle . . . has not been actually inspected by
[Tablan and Borillo] is attested to by the pre and post repair inspection
reports initially bearing the signature of the head of the SIT as concurring
official without the required signatures of Borillo and Tablan. More
importantly, these DPWH officials did not bother, in a majority of cases,
to "cover their tracks" when they prepared and signed the pre and post
repair inspection reports on the same dates. Based on proper procedure,
a post repair inspection report is to be accomplished only after the
preparation and approval of the Job Order, pre-repair inspection report,
RSE, Cash Invoice and Acceptance by the end-user. In this case, the
RSE, Cash Invoice and Certificate of Acceptance are dated much later
than the post-repair inspection report. Since . . . there was no actual prerepair and post-repair inspection conducted, the foregoing sample
instances paved the way for the "ghost repairs" of DPWH service
vehicles, to the detriment and prejudice of the government.
12. Because of the anomalous transactions, the joke circulating around
the DPWH is that we are actually the directors of the DPWH since we
are the "last to sign," so to speak. That the signature[s] of the
[respondent] SIT members are merely pro forma is all the more
pronounced in a sample set consisting of a number of pre-repair
inspection reports for a particular month in 2001. The pre-repair

inspection reports of the service vehicles indicated therein are empty of

any findings and bear the signature of the head of the SIT as concurring
official. All the foregoing documents above detailed negate the
convenient excuse proffered by DPWH executives that they sign the
documents only after the SIT had inspected the service vehicle and
prepared the pre and post repair inspection reports.
xxx xxx xxx
14.1. . . the above examples are only a representative sampling of the
extent of the anomalous transactions involving DPWH service vehicles
which can be considered "ghost repairs." There are more instances
wherein [we] are willing to testify to in exchange for immunity from
prosecution. 20 (emphases ours)

After conducting preliminary investigation, the Ombudsman filed with

the Sandiganbayan 21 several informations charging a number of DPWH
officials and employees with plunder, 22 estafa through falsification of
official/commercial documents and violation of Section 3 (e), RA No. 3019. On
the other hand, the Ombudsman granted the respondents' request for
immunity in exchange for their testimonies and cooperation in the prosecution
of the cases filed.
The petitioner initially filed a certiorari petition with the Sandiganbayan,
questioning the Ombudsman's grant of immunity in the respondents' favor.
The Sandiganbayan, however, dismissed the petition for lack of jurisdiction
and advised the petitioner to instead question the Ombudsman's actions
before this Court. 23Hence, this present petition.
TSCIEa

THE PETITION
The petitioner argues that the Ombudsman should have included the
respondents in the informations since it was their inspection reports that
actually paved the way for the commission of the alleged irregularities. 24 The
petitioner asserts that the respondents' criminal complicity clearly appears
since "no repair could have started" and "no payment for repairs, ghost or
not," could have been made without the respondents' pre-repair and postrepair inspection reports. By excluding the respondents in the informations,

the Ombudsman is engaged in "selective prosecution" which is a clear case of

grave abuse of discretion.
The petitioner claims that before the Ombudsman may avail of the
respondents as state witnesses, they must be included first in the informations
filed with the court. Thereafter, the Ombudsman can ask the court for their
discharge so that they can be utilized as state witnesses under the conditions
laid down in Section 17, Rule 119 of the Rules of Court since the court has
the "sole province" to determine whether these conditions exist.
These conditions require, inter alia, that there should be "absolute
necessity" for the testimony of the proposed witness and that he/she should
not appear to be the "most guilty." The petitioner claims that the respondents
failed to comply with these conditions as the Ombudsman's "evidence," which
became the basis of the informations subsequently filed, shows that the
respondents' testimony is not absolutely necessary; in fact, the manner of the
respondents' participation proves that they are the "most guilty" in the
premises.
THE COMMENTS OF THE OMBUDSMAN AND THE RESPONDENTS
The Ombudsman counters that RA No. 6770 (the Ombudsman Act of
1989) expressly grants him the power to grant immunity from prosecution to
witnesses. Given this power, the Ombudsman asserts that Section 17, Rule
119 of the Rules of Court,which presupposes that the witness is originally
included in the information, is inapplicable to the present case since the
decision on whom to prosecute is an executive, not a judicial, prerogative. 25
The Ombudsman invokes this Court's policy of non-interference in the
Ombudsman's exercise of his discretion in matters involving his investigatory
and prosecutorial powers. 26 The petitioner's claim that the respondents are
the "most guilty" is a matter of defense which the petitioner may raise not in
this proceeding, but in the trial proper. 27
EICScD

On the other hand, the respondents submit that the Ombudsman has
ample discretion in determining who should be included in the information on
the basis of his finding of probable cause. The courts can only interfere in the

Ombudsman's exercise of his discretion in case of a clear showing of grave

abuse of discretion, which the petitioner failed to establish. 28
THE PETITIONER'S REPLY

29

While conceding that the Ombudsman has the power and the discretion
to grant immunity to the respondents, the petitioner asserts that this power
must be exercised within the confines of Section 17, Rule 119 of the Rules of
Court which requires, inter alia, that the proposed witness must not appear to
be the "most guilty." By ignoring this provision and extending immunity to the
respondents whose false reports ultimately led to the payment for supposed
repairs, and who are, thus, the "real culprits," 30 the Ombudsman gravely
abused his discretion a fatal defect correctible by certiorari.
Amplifying on the respondents' "guilt," the petitioner cites the DPWH's
decision in an administrative case which the Civil Service Commission
affirmed, finding the respondents guilty of dishonesty and grave misconduct
involving the same set of facts. 31
OUR RULING
We dismiss the petition on two grounds: first, the petitioner did not avail
of the remedies available to him before filing this present petition;
and, second,within the context of the Court's policy of non-interference with
the Ombudsman's exercise of his investigatory and prosecutory powers, the
petitioner failed to establish that the grant of immunity to the respondents was
attended by grave abuse of discretion.
I. The

petitioner
remedies
available
course of law

did
in

not
the

exhaust
ordinary

As extraordinary writs, both Sections 1 (certiorari) and 3 (mandamus),

Rule 65 of the Rules of Court require, as a pre-condition for these remedies,
that there be no other plain, speedy and adequate remedy in the ordinary
course of law. In the present case, the petitioner has not shown that he moved
for a reconsideration of the assailed resolutions based substantially on the
same grounds stated in this present petition. 32 Neither did the petitioner file a
motion for the inclusion of the respondents in the informations before filing the

present petition. 33 These are adequate remedies that the petitioner chose to
forego; he bypassed these remedies and proceeded to seek recourse through
the present petition. 34
aACEID

Similarly, the petitioner has not shown that he filed the present petition
with this Court within the sixty-day reglementary period 35 from notice of the
assailed Ombudsman's resolutions. He did not do so, of course, since he
initially and erroneously filed a certiorari petition with the Sandiganbayan. We
remind the petitioner that the remedy from the Ombudsman's orders or
resolutions in criminal cases is to file a petition for certiorari under Rule
65 36 with this Court. 37
The petition likewise fails even on the merits.
II. The respondents' exclusion in the
informations is grounded on the
Ombudsman's grant of immunity
Mandamus is the proper remedy to compel the performance of a
ministerial duty imposed by law upon the respondent. 38 In matters involving
the exercise of judgment and discretion, mandamus may only be resorted to,
to compel the respondent to take action; it cannot be used to direct the
manner or the particular way discretion is to be exercised. 39
In the exercise of his investigatory and prosecutorial powers, the
Ombudsman is generally no different from an ordinary prosecutor in
determining who must be charged. 40 He also enjoys the same latitude of
discretion in determining what constitutes sufficient evidence to support a
finding of probable cause (that must be established for the filing of an
information in court) 41 and the degree of participation of those involved or the
lack thereof. His findings and conclusions on these matters are not ordinarily
subject to review by the courts except when he gravely abuses his
discretion, 42 i.e., when his action amounts to an evasion of a positive duty or
a virtual refusal to perform a duty enjoined by law, or when he acts outside the
contemplation of law. 43
If,
on
the
basis
of
the
same
evidence,
the
Ombudsman arbitrarily excludes from an indictment some individuals while

impleading all others, the remedy ofmandamus lies 44 since he is duty-bound,

as a rule, to include in the information all persons who appear responsible for
the offense involved. 45
Citing the cases of Guiao v. Figueroa 46 and Castro, Jr., et al. v.
Castaeda and Liceralde, 47 the petitioner argues for the inclusion of the
respondents in the criminal informations, pointing out that the respondents
accomplished the inspection reports that allegedly set in motion the
documentary process in the repair of the DPWH vehicles; these reports led to
the payment by the government and the consequent losses.
cTIESa

In Guiao and Castro, we ruled that mandamus lies to compel a

prosecutor who refuses (i) to include in the information certain persons, whose
participation in the commission of a crime clearly appears, and (ii) to follow the
proper procedure for the discharge of these persons in order that they may be
utilized as prosecution witnesses.
These cited cases, however, did not take place in the same setting as
the present case as they were actions by the public prosecutor, not by the
Ombudsman. In the present case, the Ombudsman granted the respondents
immunity from prosecution pursuant to RA No. 6770 which specifically
empowers the Ombudsman to grant immunity "in any hearing, inquiry or
proceeding being conducted by the Ombudsman or under its authority, in the
performance or in the furtherance of its constitutional functions and statutory
objectives." The pertinent provision Section 17 of this law provides:
Sec. 17. Immunities. . . . .
Under such terms and conditions as it may determine, taking into
account the pertinent provisions of the Rules of Court, the
Ombudsman may grant immunity from criminal prosecution to any
person whose testimony or whose possession and production of
documents or other evidence may be necessary to determine the truth in
any hearing, inquiry or proceeding being conducted by the Ombudsman
or under its authority, in the performance or in the furtherance of its
constitutional functions and statutory objectives. The immunity granted
under this and the immediately preceding paragraph shall not exempt the

witness from criminal prosecution for perjury or false testimony nor shall
he be exempt from demotion or removal from office. [emphasis ours]

To briefly outline the rationale for this provision, among the most
important powers of the State is the power to compel testimony from its
residents; this power enables the government to secure vital information
necessary to carry out its myriad functions. 48 This power though is not
absolute. The constitutionally-enshrined right against compulsory selfincrimination is a leading exception. The state's power to compel testimony
and the production of a person's private books and papers run against a solid
constitutional wall when the person under compulsion is himself sought to be
penalized. In balancing between state interests and individual rights in this
situation, the principles of free government favor the individual to whom the
state must yield. 49
A state response to the constitutional exception to its vast powers,
especially in the field of ordinary criminal prosecution and in law enforcement
and administration, is the use of an immunity statute. 50 Immunity statutes
seek a rational accommodation between the imperatives of an individual's
constitutional right against self-incrimination 51 (considered the fount from
which all statutes granting immunity emanate) 52 and the legitimate
governmental interest in securing testimony. 53 By voluntarily offering to give
information on the commission of a crime and to testify against the culprits, a
person opens himself to investigation and prosecution if he himself had
participated in the criminal act. To secure his testimony without exposing him
to the risk of prosecution, the law recognizes that the witness can be given
immunity from prosecution. 54 In this manner, the state interest is satisfied
while respecting the individual's constitutional right against self-incrimination.
III. Nature of the power to grant
immunity
The power to grant immunity from prosecution is essentially a legislative
prerogative. 55 The exclusive power of Congress to define crimes and their
nature and to provide for their punishment concomitantly carries the power to
immunize certain persons from prosecution to facilitate the attainment of state
interests, among them, the solution and prosecution of crimes with high

political, social and economic impact. 56 In the exercise of this power,

Congress possesses broad discretion and can lay down the conditions and
the extent of the immunity to be granted. 57
Early on, legislations granting immunity from prosecution were
few. 58 However, their number escalated with the increase of the need to
secure vital information in the course and for purposes of prosecution. These
statutes 59 considered not only the importance of the testimony sought, but
also the unique character of some offenses and of some situations where the
criminal participants themselves are in the best position to give useful
testimony. 60 RA No. 6770 or the Ombudsman Act of 1989 was formulated
along these lines and reasoning with the vision of making the Ombudsman the
protector of the people against inept, abusive and corrupt government officers
and employees. 61 Congress saw it fit to grant the Ombudsman the power to
directly confer immunity to enable his office to effectively carry out its
constitutional and statutory mandate of ensuring effective accountability in the
public service. 62
IV. Considerations
immunity

in

the

grant

While the legislature is the source of the power to grant immunity,

authority to implement is lodged elsewhere. The authority to choose
individual to whom immunity would be granted is a constituent part of
process and is essentially an executive function. Mapa, Jr.
Sandiganbayan 63 is instructive on this point:
The decision to grant immunity from prosecution forms a constituent part
of the prosecution process. It is essentially a tactical decision to forego
prosecution of a person for government to achieve a higher objective. It
is a deliberate renunciation of the right of the State to prosecute all who
appear to be guilty of having committed a crime. Its justification lies in
the particular need of the State to obtain the conviction of the more guilty
criminals who, otherwise, will probably elude the long arm of the
law. Whether or not the delicate power should be exercised, who
should be extended the privilege, the timing of its grant, are
questions addressed solely to the sound judgment of the
prosecution. The power to prosecute includes the right to

of
the
the
the
v.

determine who shall be prosecuted and the corollary right to decide

whom not to prosecute. In reviewing the exercise of prosecutorial
discretion in these areas, the jurisdiction of the respondent court is
limited. For the business of a court of justice is to be an impartial
tribunal, and not to get involved with the success or failure of the
prosecution to prosecute. Every now and then, the prosecution may err
in the selection of its strategies, but such errors are not for neutral courts
to rectify, any more than courts should correct the blunders of the
defense. [emphasis ours]
aTCAcI

RA No. 6770 fully recognizes this prosecutory prerogative by

empowering the Ombudsman to grant immunity, subject to "such terms and
conditions" as he may determine. The only textual limitation imposed by law
on this authority is the need to take "into account the pertinent provisions of
the Rules of Court," i.e., Section 17, Rule 119 of the Rules of Court. 64 This
provision requires that:
(a) There is absolute necessity for the testimony of the accused whose
discharge is requested;
(b) There is no other direct evidence available for the proper prosecution
of the offense committed, except the testimony of said accused;
(c) The testimony of said accused can be substantially corroborated in its
material points;
(d) Said accused does not appear to be the most guilty; and
(e) Said accused has not at any time been convicted of any offense
involving moral turpitude.

This Rule is itself unique as, without detracting from the executive
nature of the power to prosecute and the power to grant immunity, it clarifies
that in cases already filed with the courts, 65 the prosecution merely makes a
proposal and initiates the process of granting immunity to an accused-witness
in order to utilize him as a witness against his co-accused. 66 As we explained
in Webb v. De Leon 67 in the context of the Witness Protection, Security and
Benefit Act:

The right to prosecute vests the prosecutor with 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 prosecutors. We thus hold that it is not constitutionally
impermissible for Congress to enact R.A. No. 6981vesting in the
Department of Justice the power to determine who can qualify as a
witness in the program and who shall be granted immunity from
prosecution. Section 9 of Rule 119 does not support the proposition that
the power to choose who shall be a state witness is an inherent judicial
prerogative. Under this provision, the court is given the power to
discharge a state witness only because it has already acquired
jurisdiction over the crime and the accused. The discharge of an
accused is part of the exercise of jurisdiction but is not a
recognition of an inherent judicial function. [emphasis ours]

Thus, it is the trial court that determines whether the prosecution's preliminary
assessment of the accused-witness' qualifications to be a state witness
satisfies the procedural norms. 68 This relationship is in reality a symbiotic one
as the trial court, by the very nature of its role in the administration of
justice, 69 largely exercises its prerogative based on the prosecutor's findings
and evaluation. On this point, the Court's pronouncement in the 1918 case
of United States v. Abanzado 70 is still very much relevant:
aDHCAE

A trial judge cannot be expected or required to inform himself with

absolute certainty at the very outset of the trial as to everything which
may be developed in the course of the trial in regard to the guilty
participation of the accused in the commission of the crime charged in
the complaint. If that were practicable or possible there would be little
need for the formality of a trial. He must rely in large part upon the
suggestions and the information furnished by the prosecuting officer in
coming to his conclusions as to the "necessity for the testimony of the
accused whose discharge is requested"; as to the availability or
nonavailability of other direct or corroborative evidence; as to which of
the accused is "most guilty," and the like.

Notably, this cited case also observes that the Rules-provided

guidelines are mere express declarations of the conditions which the courts
ought to have in mind in exercising their sound discretion in granting the
prosecution's motion for the discharge of an accused. 71 In other words, these
guidelines are necessarily implied in the discretion granted to the courts.
RA No. 6770 recognizes that these same principles should apply when
the Ombudsman directly grants immunity to a witness. The same
consideration to achieve the greater and higher purpose of securing the
conviction of the most guilty and the greatest number among the
accused 72 is involved whether the grant is secured by the public
prosecutor with active court intervention, or by the Ombudsman. If there is any
distinction at all between the public prosecutor and the Ombudsman in this
endeavor, it is in the specificity of and the higher priority given by law to the
Ombudsman's purpose and objective to focus on offenses committed by
public officers and employees to ensure accountability in the public service.
This accounts for the Ombudsman's unique power to grant immunity by itself
and even prior to the filing of information in court, a power that the public
prosecutor himself generally does not enjoy. 73
V. Extent of judicial review of a
bestowed immunity
An immunity statute does not, and cannot, rule out a review by this
Court of the Ombudsman's exercise of discretion. Like all other officials under
our constitutional scheme of government, all their acts must adhere to the
Constitution. 74 The parameters of our review, however, are narrow. In the first
place, what we review are executive acts of a constitutionally independent
Ombudsman. 75 Also, we undertake the review given the underlying reality
that this Court is not a trier of facts. Since the determination of the
requirements under Section 17, Rule 119 of the Rules of Court is highly
factual in nature, the Court must, thus, generally defer to the judgment of the
Ombudsman who is in a better position (than the Sandiganbayan or the
defense) to know the relative strength and/or weakness of the evidence
presently in his possession and the kind, tenor and source of testimony he
needs to enable him to prove his case. 76 It should not be forgotten, too, that

the grant of immunity effectively but conditionally results in the extinction of

the criminal liability the accused-witnesses might have incurred, as defined in
the terms of the grant. 77 This point is no less important as the grant directly
affects the individual and enforces his right against self-incrimination. These
dynamics should constantly remind us that we must tread softly, but not any
less critically, in our review of the Ombudsman's grant of immunity.
CTIDcA

From the point of view of the Court's own operations, we are

circumscribed by the nature of the review powers granted to us under the
Constitution and the Rules of Court. We rule on the basis of a petition
for certiorari under Rule 65 and address mainly the Ombudsman's exercise of
discretion. Our room for intervention only occurs when a clear and grave
abuse of the exercise of discretion is shown. Necessarily, this limitation
similarly reflects on the petitioner who comes to us on the allegation of grave
abuse of discretion; the petitioner himself is bound to clearly and
convincingly establish that the Ombudsman gravely abused his
discretion in granting immunity in order to fully establish his case. 78
As a last observation, we note the unique wording of the grant of the
power of immunity to the Ombudsman. It is not without significance that the
law encompassed (and appears to have pointedly not separated) the
consideration of Section 17, Rule 119 of the Rules of Court within the broader
context of "such terms and conditions as the Ombudsman may determine."
This deliberate statutory wording, to our mind, indicates the intent to define the
role of Section 17, Rule 119 in the Ombudsman's exercise of discretion. It
suggests a broad grant of discretion that allows the Ombudsman's
consideration of factors other than those outlined under Section 17, Rule 119;
the wording creates the opening for the invocation, when proper, of the
constitutional and statutory intents behind the establishment of the
Ombudsman.
Based on these considerations, we shall now proceed to determine
whether the petitioner has clearly and convincingly shown that the
Ombudsman gravely abused his discretion in granting immunity to the
respondents.

Va. Absolute necessity for

testimony of the respondents
Under the factual and legal situation before us, we find that the
petitioner miserably failed to clearly and convincingly establish that the
Ombudsman gravely abused his discretion in granting immunity to the
respondents. While he claims that both conditions (a) and (d) of Section 17,
Rule 119 of the Rules of Court are absent, we observe his utter lack of
argument addressing the "absolute necessity" of the respondents' testimony.
In fact, the petitioner simply concluded that the requirement of "absolute
necessity" does not exist based on the Ombudsman's "evidence," without
even attempting to explain how he arrived at this conclusion.
TEaADS

We note in this regard that the respondents' proposed testimony tends

to counteract the petitioner's personal defense of good faith (i.e., that he had
no actual participation and merely relied on his subordinates) in approving the
job orders and in his concurrence with the inspection reports. In their Joint
Counter-Affidavit, the respondents narrated the accused DPWH
officials/employees' flagrant disregard of the proper procedure and the
guidelines in the repair of DPWH service vehicles which culminated in losses
to the government. Particularly telling is the respondents' statement that a
number of pre-repair inspection reports for a particular month in 2001 bear the
petitioner's signature despite the fact that these reports are not supported by
findings from the respondents as SIT members. 79This kind of statement
cannot but impact on how the Ombudsman viewed the question of "absolute
necessity" of the respondents' testimony since this testimony meets the
defense of good faith head-on to prove the prosecution's allegations. Under
these circumstances, we cannot preempt, foreclose, nor replace with our own
the Ombudsman's position on this point as it is clearly not without basis.
Vb. The respondents do not appear
to be the "most guilty"
Similarly, far from concluding that the respondents are the "most guilty,"
we find that the circumstances surrounding the preparation of the inspection
reports can significantly lessen the degree of the respondents' criminal
complicity in defrauding the government. Again, this is a matter that the

Ombudsman, in the exercise of his discretion, could not have avoided when
he considered the grant of immunity to the respondents.
We note, too, that while the petitioner incessantly harped on the
respondents' role in the preparation of the inspection reports, yet, as head of
the SIT, he was eerily silent on the circumstances surrounding this
preparation, particularly on the respondents' explanation that they tried "to
curb the anomalous practices" 80 in the DPWH. We are aware, of course, that
the present petition merely questions the immunity granted to the respondents
and their consequent exclusion from the informations; it does not assail the
finding of probable cause against the petitioner himself. This current reality
may explain the petitioner's silence on the respondents' assertions; the
respondents' allegations, too, still have to be proven during the trial. However,
these considerations are not sufficient to save the petitioner from the necessity
of controverting the respondents' allegations, even for the limited purpose of
the present petition, since his counter-assertion on this basic ground (that the
respondents bear the most guilt) is essential and critical to the viability of his
petition.
In considering the respondents' possible degree of guilt, we are keenly
aware of their admission that they resorted to a "short-cut" 81 in the procedure
to be observed in the repairs and/or purchase of emergency parts of DPWH
service vehicles. To our mind, however, this admission does not necessarily
result in making the respondents the "most guilty" in the premises; not even a
semblance of being the "most guilty" can be deduced therefrom.
ECSHID

In sum, the character of the respondents' involvement vis- -vis the

crimes filed against the DPWH officials/employees, coupled with the
substance of the respondents' disclosures, compels this Court to take a dim
view of the position that the Ombudsman gravely abused his discretion in
granting immunity to the respondents. The better view is that the Ombudsman
simply saw the higher value of utilizing the respondents themselves as
witnesses instead of prosecuting them in order to fully establish and
strengthen its case against those mainly responsible for the criminal act, as
indicated by the available evidence.

VI. The respondents' administrative

liability has no bearing at all on
the immunity granted to the
respondents
The fact that the respondents had previously been found
administratively liable, based on the same set of facts, does not necessarily
make them the "most guilty." An administrative case is altogether different
from a criminal case, such that the disposition in the former does not
necessarily result in the same disposition for the latter, although both may
arise from the same set of facts. 82 The most that we can read from the finding
of liability is that the respondents have been found to be administratively guilty
by substantial evidence the quantum of proof required in an administrative
proceeding. The requirement of the Revised Rules of Criminal Procedure
(which RA No. 6770 adopted by reference) that the proposed witness should
not appear to be the "most guilty" is obviously in line with the character 83 and
purpose 84 of
a
criminal
proceeding,
and
the
much
stricter
standards 85 observed in these cases. They are standards entirely different
from those applicable in administrative proceedings.
VII. The policy of non-interference
with the Ombudsman's
investigatory and prosecutory
powers cautions a stay of judicial
hand
The Constitution and RA No. 6770 have endowed the Office of the
Ombudsman with a wide latitude of investigatory and prosecutory powers,
freed, to the extent possible within our governmental system and structure,
from legislative, executive, or judicial intervention, and insulated from outside
pressure and improper influence. 86 Consistent with this purpose and subject
to the command of paragraph 2, Section 1, Article VIII of the 1987
Constitution, 87 the Court reiterates its policy of non-interference with the
Ombudsman's exercise of his investigatory and prosecutory powers (among
them, the power to grant immunity to witnesses), 88 and respects the initiative
and independence inherent in the Ombudsman who, "beholden to no one,

acts as the champion of the people and the preserver of the integrity of the
public service." 89 Ocampo IV v. Ombudsman 90 best explains the reason
behind this policy:
The rule is based not only upon respect for the investigatory and
prosecutory powers granted by the Constitution to the Office of the
Ombudsman but upon practicality as well. Otherwise, the functions of
the courts will be grievously hampered by innumerable petitions
assailing the dismissal of investigatory proceedings conducted by the
Office of the Ombudsman with regard to complaints filed before it, in
much the same way that the courts would be extremely swamped if they
could be compelled to review the exercise of discretion on the part of the
fiscals or prosecuting attorneys each time they decide to file an
information in court or dismiss a complaint by a private complainant.
DCcIaE

Following this policy, we deem it neither appropriate nor advisable to interfere

with the Ombudsman's grant of immunity to the respondents, particularly in
this case, where the petitioner has not clearly and convincingly shown the
grave abuse of discretion that would call for our intervention.
WHEREFORE, the petition is hereby DISMISSED. Costs against the petitioner.
SO ORDERED.
|||

(Quarto v. Marcelo, G.R. No. 169042, [October 5, 2011], 674 PHIL 370-404)

5.
[G.R. No. 196842. October 9, 2013.]
ALFREDO ROMULO A. BUSUEGO, petitioner, vs. OFFICE OF
THE
OMBUDSMAN
(MINDANAO)
[and]
ROSA
S.
BUSUEGO, respondents.
DECISION

PEREZ, J :
p

Before us is a petition for certiorari seeking to annul and set aside the Resolution
of the Ombudsman dated 17 April 2009 1 and Order dated 11 October
2010, 2 which directed the filing of an Information for Concubinage under Article
334 of the Revised Penal Code against petitioner Alfredo Romulo A. Busuego
(Alfredo).
We chronicle the facts thus.
Private respondent Rosa S. Busuego (Rosa) filed a complaint for: (1)
Concubinage under Article 334 of the Revised Penal Code; (2) violation
of Republic Act No. 9262 (Anti-Violence Against Women and Their Children); and
(3) Grave Threats under Article 282 of the Revised Penal Code, before the Office
of the Ombudsman against her husband, Alfredo, with designation Chief of
Hospital, Davao Regional Hospital, Apokon, Tagum City.
In her complaint, Rosa painted a picture of a marriage in disarray.
She and Alfredo were married on 12 July 1975 at the Assumption Church, Davao
City. Their union was blessed with two (2) sons, Alfred and Robert, born in 1976
and 1978, respectively.
AHDcCT

Sometime in 1983, their marriage turned sour. At this time, Rosa unearthed
photographs of, and love letters addressed to Alfredo from, other women. Rosa
confronted Alfredo who claimed ignorance of the existence of these letters and
innocence of any wrongdoing.
Purportedly, Alfredo very rarely stayed at home to spend time with his family. He
would come home late at night on weekdays and head early to work the next day;
his weekends were spent with his friends, instead of with his family. Rosa
considered herself lucky if their family was able to spend a solid hour with
Alfredo.
Around this time, an opportunity to work as nurse in New York City, United States
of America (US) opened up for Rosa. Rosa informed Alfredo, who vehemently
opposed Rosa's plan to work abroad. Nonetheless, Rosa completed the

necessary requirements to work in the US and was scheduled to depart the

Philippines in March 1985.
Before leaving, Rosa took up the matter again with Alfredo, who remained
opposed to her working abroad. Furious with Rosa's pressing, Alfredo took his
loaded gun and pointed it at Rosa's right temple, threatening and taunting Rosa
to attempt to leave him and their family. Alfredo was only staved off because
Rosa's mother arrived at the couple's house. Alfredo left the house in a rage:
Rosa and her mother heard gun shots fired outside.
Because of that incident, Rosa acted up to her plan and left for the US. While in
the US, Rosa became homesick and was subsequently joined by her children
who were brought to the US by Alfredo. Rosa singularly reared them: Alfred, from
grade school to university, while Robert, upon finishing high school, went back to
Davao City to study medicine and lived with Alfredo.
During that time his entire family was in the US, Alfredo never sent financial
support. In fact, it was Rosa who would remit money to Alfredo from time to time,
believing that Alfredo had stopped womanizing. Rosa continued to spend her
annual vacation in Davao City.
CDHcaS

Sometime in 1997, Rosa learned that a certain Emy Sia (Sia) was living at their
conjugal home. When Rosa asked Alfredo, the latter explained that Sia was a
nurse working at the Regional Hospital in Tagum who was in a sorry plight as she
was allegedly being raped by Rosa's brother-in-law. To get her out of the
situation, Alfredo allowed Sia to live in their house and sleep in the maids'
quarters. At that time, Rosa gave Alfredo the benefit of the doubt.
In October 2005, Rosa finally learned of Alfredo's extra-marital relationships.
Robert, who was already living in Davao City, called Rosa to complain of
Alfredo's illicit affairs and shabby treatment of him. Rosa then rang up Alfredo
which, not surprisingly, resulted in an altercation.
Robert executed an affidavit, corroborating his mother's story and confirming his
father's illicit affairs:

1. In varying dates from July 1997 to January 1998, Robert found it

strange that Sia slept with his father in the conjugal
bedroom.
2. He did not inform his mother of that odd arrangement as he did
not want to bring trouble to their family.
3. Eventually, Sia herself confirmed to Robert that she was
Alfredo's mistress.
4. During this period of concubinage, Sia was hospitalized and
upon her discharge, she and Alfredo resumed their
cohabitation.
5. The relationship between Alfredo and Sia ended only when the
latter found another boyfriend.
6. His father next took up an affair with Julie de Leon (de Leon)
whom Robert met when de Leon fetched Alfredo on one
occasion when their vehicle broke down in the middle of the
road.
STECAc

7. Robert read various Short Message Service (SMS) exchanges

between Julie and Alfredo on Alfredo's mobile phone.
8. On 23, 24, 30 and 31 December 2004, de Leon stayed in Rosa's
and Alfredo's conjugal dwelling and stayed in the conjugal
room the entire nights thereof.
The househelpers, Melissa S. Diambangan and Liza S. Diambangan, likewise
executed a joint affidavit in support of Rosa's allegations:
1. They had seen Sia sleep and stay overnight with Alfredo in the
conjugal bedroom.
2. Sia herself, who called Alfredo "Papa," confirmed the two's
sexual relationship.

3. On 23, 24, 30 and 31 December 2004, de Leon stayed in the

conjugal dwelling and slept overnight with Alfredo in the
conjugal room.
As a result, Rosa and their other son Alfred forthwith flew to Davao City without
informing Alfredo of their impending return. Upon Rosa's return, she gathered
and consolidated information on her husband's sexual affairs.
Pursuant to her charges of violation of Republic Act No. 9262 and Grave Threats,
Rosa averred that during the course of their marriage, apart from the marital
infidelity, Alfredo physically and verbally abused her and her family. On one
occasion after Rosa confirmed the affairs, Alfredo threatened their family,
including other members of their household that he will gun them down should he
chance upon them in Tagum City. Lastly, on 22 March 2006, Alfredo purportedly
dismissed househelper Liza Diambangan and threatened her.
As expected, Alfredo, in his counter-affidavit, denied all accusations against him
and alleged that:
DAETcC

1. Rosa, despite his pleas for them to remain and raise their family
in the Philippines, chose to live in the US, separate from him.
2. Rosa's allegations that he had kept photographs of, and love
letters from, other women, were only made to create a cause
of action for the suit for Legal Separation which Rosa filed
sometime in 1998.
3. It was highly improbable that he committed acts of concubinage
with Sia and de Leon since from the time he became Chief of
Hospital of the Davao Regional Hospital in Tagum City, he
practically stayed all days of the work week in the hospital.
The instances he went home were few and far between, only
to check on the house and provide for household expenses.
4. When Robert returned to Davao City and lived with him, it
became more impossible for him to have shacked up with
Sia and de Leon in the conjugal dwelling.

5. With respect to his alleged relationship with Sia, without

admitting to anything, that Sia, for a time, may have lived in
his and Rosa's conjugal house, staying at the maids'
quarters. However, at no instance did he keep Sia as his
mistress in the conjugal dwelling.
6. As regards the dates of December 23, 24, 30 and 31, 2004
when he supposedly stayed with de Leon in the conjugal
room, Alfredo pointed out that said dates were busiest days
of the year in the hospital where his presence as Chief of
Hospital is most required.
7. By Rosa's own admission, she first learned of Alfredo's alleged
concubinage in 1997, and yet she still continued with her
yearly visits to Alfredo in Davao City. Those instances ought
to be construed as condonation of the concubinage.
CEDHTa

8. Significantly, the alleged concubines, Sia and de Leon, were not

impleaded along with Alfredo as party-respondents in the
complaint in violation of Article 344 of the Revised Penal
Code.
Alfredo made short shrift of Rosa's charges of violation of Republic Act No.
9262 and Grave Threats. He claimed that, at no time, did he threaten, the lives or,
to harm his wife, their family and members of their household. He only berated
the help for perpetrating gossip about his behavior and conduct.
In their subsequent exchange of responsive pleadings, Rosa maintained Alfredo's
culpability, and naturally, Alfredo claimed innocence.
In the course thereof, the procedural issue of Rosa's failure to implead Sia and
de Leon as respondents cropped up. Alfredo insisted that Rosa's complaint ought
to be dismissed for failure to implead his alleged concubines as respondents.
Specifically to dispose of that issue, the Ombudsman scheduled a clarificatory
hearing where both Rosa and Alfredo were represented by their respective
counsels:

. . . [Rosa] was apprised of the need to implead the two alleged

mistresses in the complaint for Concubinage pursuant to Article 344 of
the Revised Penal Code.Although [Alfredo] objected to the amendment
of the complaint, at this point in time, due to the alleged procedural
lapse committed by [Rosa], this Office explained to the parties that the
position of [Alfredo] would just prolong the conduct of the preliminary
investigation since [Rosa] can just re-file [her] complaint. The doctrine
of res judicata does not apply in the preliminary investigation [stage].
Hence, the counsel for [Rosa] was directed to submit to this Office the
addresses of the alleged mistresses so that they could be served with
the Order directing them to file their counter-affidavits.
HaDEIc

[Rosa] submitted an Ex-Parte Manifestation on the last known addresses

of Julie de Leon and Emy Sia. . . . . 3

On 24 June 2008, the Ombudsman issued a Joint Order 4 impleading Sia and de
Leon as party-respondents in the complaint for Concubinage and directing them
to submit their respective counter-affidavits within a period of time. Copies of the
Joint Order were mailed to Sia's and de Leon's last known addresses, as
provided by Rosa to the Ombudsman.
Sia and de Leon did not submit their respective counter-affidavits: a copy of the
Joint Order sent to Sia's last known address was returned to the Ombudsman
with the notation on the Registry Return Receipt No. 1624 "Return to Sender;
removed," while a copy thereof to de Leon was received on 3 September 2008 by
Ananias de Leon. 5
Apparently still opposed to the Ombudsman's ruling to simply amend the
complaint and implead therein Alfredo's alleged mistresses, Alfredo filed his
Comment to the 24 June 2008 Order with Motion to Dismiss and/or Refer the
charges to the Appropriate Provincial/City Prosecutor 6 praying for dismissal of
the complaint for: (1) failure to implead the two mistresses in violation of Article
344 of the Revised Penal Code; and in the alternative, (2) referral of the
complaint to the Office of the City Prosecutor as provided in OMB-DOJ Circular
No. 95-001.
Rosa filed a Reply to that latest pleading of Alfredo.

On 17 April 2009, the Ombudsman issued the herein assailed Resolution,

disposing of the procedural issues:
Before dwelling into the merits of the case, this Office finds an urgent
need to resolve the ancillary issues raised by [petitioner] Dr. Busuego on:
1.) the alleged legal infirmity of [Rosas's] initiatory pleading by resorting
to a procedural short cut which would result to the delay in the
disposition of this case; and 2.) the criminal charges imputed are not in
relation to office, hence, the Office of the Provincial/City Prosecutor shall
investigate and prosecute this case pursuant to OMB-DOJ Joint Circular
No. 95-001, Series of 1995.
TICDSc

On the first issue, this Office observed that [Busuego] had already
pointed out in his counter-Affidavit the alleged deficiency in the
complaint. [Rosa] also explained in her Reply that the names of the
mistresses were categorically mentioned in the complaint. She averred
that this Office is empowered to investigate and prosecute any act or
omission of a public official or employee to the exclusion of nongovernment employees. She stated that the inclusion of the alleged
concubines in the Information to be filed in court is a matter of
procedure, within the competence of the investigating prosecutor.
In order to clarify some matters, including the said issue, with the parties,
the clarificatory hearing was conducted. It was explained in the said
hearing the need to implead the alleged concubines in this case
pursuant to Article 344 of the Revised Penal Code and to obviate the
proceedings, [Rosa] was directed to submit the addresses of the alleged
concubines. [Busuego's] position that the said short cut procedure would
delay the proceedings is misplaced. If the case will be dismissed based
on procedural infirmity, [Rosa] could still amend [her] complaint and refile this case since the doctrine of res judicata does not apply in the
preliminary investigation stage of the proceedings.
On the second issue, the motion of [Busuego] to refer this case to the
Office of the City Prosecutor was belatedly filed. Record would show that
the motion praying for the referral of this case to the Office of the City
Prosecutor was filed on 17 July 2008, after the parties have already filed
all their pleadings and the case is now ripe for resolution. Further,

referral to the said office is not mandatory as cited in the said Joint
Circular. 7

In the same Resolution, the Ombudsman, ultimately, found probable cause to

indict only Alfredo and Sia of Concubinage and directed the filing of an
Information against them in the appropriate court:
WHEREFORE, in view of the foregoing, this Office finds a prima
facie case for violation of Article 334 of the Revised Penal
Code (concubinage) and that [petitioner] ALFREDO ROMULO
BUSUEGO y ABRIO, and EMY SIA, are probably guilty thereof.
TIADCc

Let the herewith Information be filed in the appropriate court.

The charges for: 1.) Concubinage against Alfredo Romulo Busuego y
Abrio and Julie de Leon; 2.) Grave Threats against Alfredo Romulo y
Abrio; and 3.) violation of RA 9262 (Anti-Violence Against Women and
Children Act), are hereby DISMISSED for lack of merit. 8

Alfredo filed a Partial Motion for Reconsideration excepting to the Ombudsman's

ruling on the automatic inclusion of Sia as respondent in the complaint and their
indictment for the crime of Concubinage. Alfredo is adamant that Rosa's
complaint should have, at the outset, impleaded his alleged concubines. Failing
such, the Ombudsman cannot resort to automatic inclusion of party-respondents,
erroneously finding him and Sia prima facie culpable for Concubinage. For good
measure, Alfredo pointed out that from Rosa's own allegations, she had
condoned or pardoned Alfredo's supposed concubinage. Alfredo likewise
submitted Liza S. Diambangan's affidavit, recanting her previous affidavit
corroborating Rosa's charges.
Nonetheless, the Ombudsman stood pat on its ruling, declared that the Partial
Motion for Reconsideration was filed out of time, and gave scant attention to Liza
S. Diambangan's affidavit of recantation:
WHEREFORE, all the foregoing considered, this instant Motion for
Reconsideration is hereby DENIED. The findings in the questioned
Resolution hereby remains undisturbed. Let the Information for
Concubinage be filed in the proper court against herein [Busuego]. 9

Alfredo now comes to us on petition for certiorari alleging grave abuse of

discretion in the Ombudsman's finding of probable cause to indict him and Sia for
Concubinage. Alfredo's badges of grave abuse of discretion are the following:
ScAHTI

1. The Ombudsman railroaded the inclusion of Sia and de Leon as

party-respondents in the complaint;
2. The Ombudsman did not refer the complaint to the Department
of Justice, considering that the offense of Concubinage is not
committed in relation to his office as Chief of Hospital;
3. The Ombudsman glossed over Rosa's condonation of Alfredo's
supposed Concubinage when she alleged in the complaint
that she had known of Alfredo's womanizing and believed
him to have changed his ways;
4. The Ombudsman did not take into consideration the affidavit of
recantation of Liza Diambangan; and
5. The Ombudsman found probable cause to indict Alfredo and Sia
for Concubinage.
We sustain the Ombudsman.
The Ombudsman has full discretionary authority in the determination of probable
cause during a preliminary investigation. 10 This is the reason why judicial review
of the resolution of the Ombudsman in the exercise of its power and duty to
investigate and prosecute felonies and/or offenses of public officers is limited to a
determination of whether there has been a grave abuse of discretion amounting
to lack or excess of jurisdiction. Courts are not empowered to substitute their
judgment for that of the Ombudsman. 11
By grave abuse of discretion is meant such capricious and whimsical exercise of
judgment tantamount to lack of jurisdiction. 12 The abuse of discretion must be so
patent and gross as to amount to an evasion of a positive duty or a virtual refusal
to perform a duty enjoined by law, or to act at all in contemplation of law, as
where the power is exercised in an arbitrary and despotic manner by reason of
passion or hostility. 13 In this regard, petitioner failed to demonstrate the
Ombudsman's abuse, much less grave abuse, of discretion.
HDAaIc

First. Alfredo insists that the Ombudsman's automatic inclusion, over his
vehement objections of Sia and de Leon as party-respondents, violates Article
344 of the Revised Penal Code and Section 5, Rule 110 of the Rules of
Court,which respectively provide:
Art. 344. Prosecution of the crimes of adultery, concubinage, seduction,
abduction, rape and acts of lasciviousness. The crimes of adultery
and concubinage shall not be prosecuted except upon a complaint filed
by the offended spouse.
The offended party cannot institute criminal prosecution without including
both the guilty parties, if they are both alive, nor, in any case, if he shall
have consented or pardoned the offenders.
Section 5. Who must prosecute criminal action. . . . .
The crimes of adultery and concubinage shall not be prosecuted except
upon a complaint filed by the offended spouse. The offended party
cannot institute criminal prosecution without including the guilty parties, if
both are alive, nor, in any case, if the offended party has consented to
the offense or pardoned the offenders.

We do not agree.
The submission of Alfredo is belied by the fact that the Ombudsman merely
followed the provisions of its Rules of Procedure. Thus:
Rule II
PROCEDURE IN CRIMINAL CASES
xxx xxx xxx
Section 2. Evaluation. Upon evaluating the complaint,
investigating officer shall recommend whether it may be:

the

a) dismissed outright for want of palpable merit;

b) referred to respondent for comment;
c) indorsed to the proper government office or agency which has
jurisdiction over the case;

d) forwarded to the appropriate office or official for fact-finding

investigation;
e) referred for administrative adjudication; or
f) subjected to a preliminary investigation.
xxx xxx xxx
Section 4. Procedure. The preliminary investigation of cases falling
under the jurisdiction of the Sandiganbayan and Regional Trial Courts
shall be conducted in the manner prescribed in Section 3, Rule 112 of
the Rules of Court,subject to the following provisions:
a) . . .
b) After such affidavits have been secured, the investigating officer
shall issue an order, attaching thereto a copy of the affidavits and other
supporting documents, directing the respondents to submit, within ten
(10) days from receipt thereof, his counter-affidavits and controverting
evidence with proof of service thereof on the complainant. The
complainant may file reply affidavits within ten (10) days after service of
the counter-affidavits.
c) If the respondents does not file a counter-affidavit, the investigating
officer may consider the comment filed by him, if any, as his answer to
the complaint. In any event, the respondent shall have access to the
evidence on record.
cAaDHT

d) No motion to dismiss shall be allowed except for lack of

jurisdiction. Neither may a motion for a bill of particulars be
entertained. If respondent desires any matter in the complainant's
affidavit to be clarified, the particularization thereof may be done
at the time of the clarificatory questioning in the manner provided
in paragraph (f) of this section.
e) If the respondents cannot be served with the order mentioned in
paragraph 6 hereof, or having been served, does not comply therewith,
the complaint shall be deemed submitted for resolution on the basis of
the evidence on the record.

f) If, after the filing of the requisite affidavits and their supporting
evidences, there are facts material to the case which the
investigating officer may need to be clarified on, he may conduct
a clarificatory hearing during which the parties shall be afforded
the opportunity to be present but without the right to examine or
cross-examine the witness being questioned. Where the
appearance of the parties or witnesses is impracticable, the
clarificatory questioning may be conducted in writing, whereby the
questions desired to be asked by the investigating officer or a party
shall be reduced into writing and served on the witness concerned who
shall be required to answer the same in writing and under oath.
g) Upon the termination of the preliminary investigation, the
investigating officer shall forward the records of the case together with
his resolution to the designated authorities for their appropriate action
thereon.
No information may be filed and no complaint may be dismissed without
the written authority or approval of the ombudsman in cases falling within
the jurisdiction of the Sandiganbyan, or of the proper Deputy
Ombudsman in all other cases. (Emphasis supplied).

Notably, Rosa's complaint contained not just the Concubinage charge, but other
charges: violation of Republic Act No. 9262 and Grave Threats. Upon the
Ombudsman's perusal, the complaint was supported by affidavits corroborating
Rosa's accusations. Thus, at that stage, the Ombudsman properly referred the
complaint to Alfredo for comment. Nonetheless, while the Ombudsman found no
reason for outright dismissal, it deemed it fit to hold a clarificatory hearing to
discuss the applicability of Article 344 of the Revised Penal Code, the issue
having been insisted upon by Alfredo.
Surely the procedural sequence of referral of the complaint to respondent for
comment and thereafter the holding of a clarificatory hearing is provided for in
paragraph b, Section 2 and paragraphs d and f, Section 4 of Rule II, which we
have at the outset underscored. Thus did the Ombudsman rule:
In order to clarify some matters, including the said issue, with the parties,
the clarificatory hearing was conducted. It was explained in the said
hearing the need to implead the alleged concubines in this case

pursuant to Article 344 of the Revised Penal Code and to obviate the
proceedings, [Rosa] was directed to submit the addresses of the alleged
concubines. [Busuego's] position that the said short cut procedure would
delay the proceedings is misplaced. If the case will be dismissed based
on procedural infirmity, [Rosa] could still amend [her] complaint and refile this case since the doctrine of res judicata does not apply in the
preliminary investigation stage of the proceedings. 14

The Ombudsman merely facilitated the amendment of the complaint to cure the
defect pointed out by Alfredo. We agree with the Ombudsman that it would be
superfluous to dismiss the complaint when amendment thereof is allowed by its
Rules of Procedure 15 and the Rules of Court. 16
HcACTE

Second. Alfredo claims that the Ombudsman should have referred Rosa's
complaint to the Department of Justice (DOJ), since the crime of Concubinage is
not committed in relation to his being a public officer. This is not a new argument.
The Ombudsman's primary jurisdiction, albeit concurrent with the DOJ, to
conduct preliminary investigation of crimes involving public officers, without
regard to its commission in relation to office, had long been settled in Sen.
Honasan II v. The Panel of Investigating Prosecutors of DOJ, 17 and affirmed in
subsequent cases:
[T]he Constitution, Section 15 of the Ombudsman Act of 1989 and
Section 4 of the Sandiganbayan Law, as amended, do not give to
the Ombudsman exclusive jurisdiction to investigate offenses
committed by public officers or employees. The authority of the
Ombudsman to investigate offenses involving public officers or
employees is concurrent with other government investigating
agencies such as provincial, city and state prosecutors. However,
the Ombudsman, in the exercise of its primary jurisdiction over
cases cognizable by the Sandiganbayan, may take over, at any
stage, from any investigating agency of the government, the
investigation of such cases.
In other words, respondent DOJ Panel is not precluded from conducting
any investigation of cases against public officers involving violations of
penal laws but if the cases fall under the exclusive jurisdiction of the

Sandiganbayan, the respondent Ombudsman may, in the exercise of its

primary jurisdiction take over at any stage.
Thus, with the jurisprudential declarations that the Ombudsman and the
DOJ have concurrent jurisdiction to conduct preliminary investigation, the
respective heads of said offices came up with OMB-DOJ Joint Circular
No. 95-001 for the proper guidelines of their respective prosecutors in
the conduct of their investigations, to wit:
OMB-DOJ JOINT CIRCULAR NO. 95-001
Series of 1995
ALL GRAFT INVESTIGATION/SPECIAL PROSECUTION OFFICERS
OF THE OFFICE OF THE OMBUDSMAN
TO:

ALL

REGIONAL STATE PROSECUTORS AND THEIR

ASSISTANTS, PROVINCIAL/CITY PROSECUTORS
AND THEIR ASSISTANTS, STATE PROSECUTORS
AND
PROSECUTING
ATTORNEYS
OF
THE
DEPARTMENT OF JUSTICE.

SUBJECT: HANDLING COMPLAINTS FILED AGAINST PUBLIC

OFFICERS AND EMPLOYEES, THE CONDUCT OF
PRELIMINARY INVESTIGATION, PREPARATION OF
RESOLUTIONS
AND
INFORMATIONS
AND
PROSECUTION OF CASES BY PROVINCIAL AND CITY
PROSECUTORS AND THEIR ASSISTANTS.
aESHDA

In a recent dialogue between the OFFICE OF THE OMBUDSMAN and

the DEPARTMENT OF JUSTICE, discussion centered around the latest
pronouncement of the SUPREME COURT on the extent to which the
OMBUDSMAN may call upon the government prosecutors for assistance
in the investigation and prosecution of criminal cases cognizable by his
office and the conditions under which he may do so. Also discussed
was Republic Act No. 7975 otherwise known as "AN ACT TO
STRENGTHEN
THE
FUNCTIONAL
AND
STRUCTURAL
ORGANIZATION OF THE SANDIGANBAYAN, AMENDING FOR THE
PURPOSE PRESIDENTIAL DECREE NO. 1606, AS AMENDED" and its
implications on the jurisdiction of the office of the Ombudsman on
criminal offenses committed by public officers and employees.

Concerns were expressed on unnecessary delays that could be caused

by discussions on jurisdiction between the OFFICE OF THE
OMBUDSMAN and the DEPARTMENT OF JUSTICE, and by procedural
conflicts in the filing of complaints against public officers and employees,
the conduct of preliminary investigations, the preparation of resolutions
and informations, and the prosecution of cases by provincial and city
prosecutors and their assistants as DEPUTIZED PROSECUTORS OF
THE OMBUDSMAN.
Recognizing the concerns, the OFFICE OF THE OMBUDSMAN and the
DEPARTMENT OF JUSTICE, in a series of consultations, have agreed
on the following guidelines to be observed in the investigation and
prosecution of cases against public officers and employees:
1. Preliminary investigation and prosecution of offenses committed by
public officers and employees IN RELATION TO OFFICE whether
cognizable by the SANDIGANBAYAN or the REGULAR COURTS, and
whether filed with the OFFICE OF THE OMBUDSMAN or with the
OFFICE OF THE PROVINCIAL/CITY PROSECUTOR shall be under
the control and supervision of the office of the OMBUDSMAN.
2. Unless the Ombudsman under its Constitutional mandate finds
reason to believe otherwise, offenses NOT IN RELATION TO OFFICE
and cognizable by the REGULAR COURTS shall be investigated and
prosecuted by the OFFICE OF THE PROVINCIAL/CITY
PROSECUTOR, which shall rule thereon with finality.
3. Preparation of criminal information shall be the responsibility of the
investigating officer who conducted the preliminary investigation.
Resolutions recommending prosecution together with the duly
accomplished criminal informations shall be forwarded to the
appropriate approving authority.
DcSACE

4. Considering that the OFFICE OF THE OMBUDSMAN has

jurisdiction over public officers and employees and for effective
monitoring of all investigations and prosecutions of cases involving
public officers
and
employees, the
OFFICE OF
THE
PROVINCIAL/CITY PROSECUTOR shall submit to the OFFICE OF
THE OMBUDSMAN a monthly list of complaints filed with their
respective offices against public officers and employees.

xxx xxx xxx

A close examination of the circular supports the view of the respondent
Ombudsman that it is just an internal agreement between the
Ombudsman and the DOJ.
Sections 2 and 4, Rule 112 of the Revised Rules on Criminal
Procedure on Preliminary Investigation, effective December 1, 2000, to
wit:
SEC.
2. Officers
investigations.

authorized

to

conduct

preliminary

The following may conduct preliminary investigations:

(a) Provincial or City Prosecutors and their assistants;
(b) Judges of the Municipal Trial Courts and Municipal Circuit Trial
Courts;
(c) National and Regional State Prosecutors; and
(d) Other officers as may be authorized by law.
Their authority to conduct preliminary investigation shall include
all crimes cognizable by the proper court in their respective
territorial jurisdictions.
SEC. 4. Resolution of investigating prosecutor and its review. If
the investigating prosecutor finds cause to hold the respondent for
trial, he shall prepare the resolution and information. He shall
certify under oath in the information that he, or as shown by the
record, an authorized officer, has personally examined the
complainant and his witnesses; that there is reasonable ground to
believe that a crime has been committed and that the accused is
probably guilty thereof; that the accused was informed of the
complaint and of the evidence submitted against him; and that he
was given an opportunity to submit controverting evidence.
Otherwise, he shall recommend the dismissal of the complaint.
AaITCS

Within five (5) days from his resolution, he shall forward the
record of the case to the provincial or city prosecutor or chief state
prosecutor, or to the Ombudsman or his deputy in cases of

offenses cognizable by the Sandiganbayan in the exercise of its

original jurisdiction. They shall act on the resolution within ten (10)
days from their receipt thereof and shall immediately inform the
parties of such action.
No complaint or information may be filed or dismissed by an
investigating prosecutor without the prior written authority or
approval of the provincial or city prosecutor or chief state
prosecutor or the Ombudsman or his deputy.
Where the investigating prosecutor recommends the dismissal of
the complaint but his recommendation is disapproved by the
provincial or city prosecutor or chief state prosecutor or the
Ombudsman or his deputy on the ground that a probable cause
exists, the latter may, by himself file the information against the
respondent, or direct another assistant prosecutor or state
prosecutor to do so without conducting another preliminary
investigation.
If upon petition by a proper party under such rules as the
Department of Justice may prescribe or motu proprio, the
Secretary of Justice reverses or modifies the resolution of the
provincial or city prosecutor or chief state prosecutor, he shall
direct the prosecutor concerned either to file the corresponding
information without conducting another preliminary investigation,
or to dismiss or move for dismissal of the complaint or information
with notice to the parties. The same Rule shall apply in
preliminary investigations conducted by the officers of the Office
of the Ombudsman.
confirm the authority of the DOJ prosecutors to conduct preliminary
investigation of criminal complaints filed with them for offenses
cognizable by the proper court within their respective territorial
jurisdictions, including those offenses which come within the original
jurisdiction of the Sandiganbayan; but with the qualification that in
offenses falling within the original jurisdiction of the Sandiganbayan,
the prosecutor shall, after their investigation, transmit the records and
their resolutions to the Ombudsman or his deputy for appropriate
action. Also, the prosecutor cannot dismiss the complaint without the

prior written authority of the Ombudsman or his deputy, nor can the
prosecutor file an Information with the Sandiganbayan without being
deputized by, and without prior written authority of the Ombudsman or
his deputy.
xxx xxx xxx
To reiterate for emphasis, the power to investigate or conduct preliminary
investigation on charges against any public officers or employees may be
exercised by an investigator or by any provincial or city prosecutor or
their assistants, either in their regular capacities or as deputized
Ombudsman prosecutors. The fact that all prosecutors are in effect
deputized Ombudsman prosecutors under the OMB-DOJ circular is a
mere superfluity. The DOJ Panel need not be authorized nor deputized
by the Ombudsman to conduct the preliminary investigation for
complaints filed with it because the DOJ's authority to act as the principal
law agency of the government and investigate the commission of crimes
under the Revised Penal Code is derived from the Revised
Administrative Code which had been held in theNatividad case [citation
omitted] as not being contrary to the Constitution. Thus, there is not even
a need to delegate the conduct of the preliminary investigation to an
agency which has the jurisdiction to do so in the first place. However, the
Ombudsman may assert its primary jurisdiction at any stage of the
investigation. (Emphasis supplied).
DSEaHT

In Honasan II, although Senator Gregorio "Gringo" Honasan was a public officer
who was charged with coup d'etat for the occupation of Oakwood on 27 July
2003, the preliminary investigation therefor was conducted by the DOJ. Honasan
questioned the jurisdiction of the DOJ to do so, proferring that it was the
Ombudsman which had jurisdiction since the imputed acts were committed in
relation to his public office. We clarified that the DOJ and the Ombudsman have
concurrent jurisdiction to investigate offenses involving public officers or
employees. Nonetheless, we pointed out that the Ombudsman, in the exercise of
its primary jurisdiction over cases cognizable by the Sandiganbayan, may take
over, at any stage, from any investigating agency of the government, the
investigation of such cases. Plainly, applying that ruling in this case, the
Ombudsman has primary jurisdiction, albeit concurrent with the DOJ, over
Rosa's complaint, and after choosing to exercise such jurisdiction, need

not defer to the dictates of a respondent in a complaint, such as Alfredo. In

other words, the Ombudsman may exercise jurisdiction to the exclusion of the
DOJ.
Third. Alfredo next argues that Rosa had pardoned his concubinage, having
admitted to knowing of his womanizing and yet continuing with their relationship
as demonstrated in Rosa's annual visits to him in Davao City.
We are not convinced.
Old jurisprudence has held that the cynosure in the question of whether the wife
condoned the concubinage lies in the wife's "line of conduct under the
assumption that [she] really believed [her husband] guilty of [concubinage]:"
Condonation is the forgiveness of a marital offense constituting a ground
for legal separation or, as stated in I Bouver's Law Dictionary, p. 585,
condonation is the 'conditional forgiveness or remission, by a husband or
wife of a matrimonial offense which the latter has committed.'
xxx xxx xxx
A detailed examination of the testimony of the plaintiff-husband,
especially those portions quoted above, clearly shows that there was a
condonation on the part of the husband for the supposed 'acts of rank
infidelity amounting to adultery' committed by defendant-wife. Admitting
for the sake of argument that the infidelities amounting to adultery were
committed by the defendant, a reconciliation was effected between her
and the plaintiff. The act of the latter in persuading her to come along
with him, and the fact that she went with him and consented to be
brought to the house of his cousin Pedro Bugayong and together they
slept there as husband and wife for one day and one night, and the
further fact that in the second night they again slept together in their
house likewise as husband and wife all these facts have no other
meaning in the opinion of this court than that a reconciliation between
them was effected and that there was a condonation of the wife by the
husband. The reconciliation occurred almost ten months after he came
to know of the acts of infidelity amounting to adultery.
In Shackleton vs. Shackleton, 48 N. J. Eq. 364; 21 Atl. 935, it has been
held that 'condonation is implied from sexual intercourse after knowledge

of the other infidelity. Such acts necessarily implied forgiveness. It is

entirely consonant with reason and justice that if the wife freely consents
to sexual intercourse after she has full knowledge of the husband's guilt,
her consent should operate as a pardon of his wrong.'
In Tiffany's Domestic and Family Relations, section 107 says:
'Condonation. Is the forgiveness of a marital offense constituting a
ground for divorce and bars the right to a divorce. But it is on the
condition, implied by the law when not express, that the wrongdoer shall
not again commit the offense; and also that he shall thereafter treat the
other spouse with conjugal kindness. A breach of the condition will revive
the original offense as a ground for divorce. Condonation may be
express or implied.'
It has been held in a long line of decisions of the various supreme courts
of the different states of the U.S. that 'a single voluntary act of sexual
intercourse by the innocent spouse after discovery of the offense is
ordinarily sufficient to constitute condonation, especially as against the
husband'. (27 Corpus Juris Secundum, section 61 and cases cited
therein).
In the lights of the facts testified to by the plaintiff-husband, of the legal
provisions above quoted, and of the various decisions above-cited, the
inevitable conclusion is that the present action is untenable.
Although no acts of infidelity might have been committed by the wife, We
agree with the trial judge that the conduct of the plaintiff-husband above
narrated despite his belief that his wife was unfaithful, deprives him, as
alleged the offended spouse, of any action for legal separation against
the offending wife, because his said conduct comes within the restriction
of Article 100 of the Civil Code.
EcAHDT

The only general rule in American jurisprudence is that any cohabitation

with the guilty party, after the commission of the offense, and with the
knowledge or belief on the part of the injured party of its commission, will
amount to conclusive evidence of condonation; but this presumption may
be rebutted by evidence (60 L. J. Prob. 73).18

Although the foregoing speaks of condonation of concubinage as a ground for

legal separation, the holding therein applies with equal force in a prosecution for

concubinage as a felony. Indeed, Rosa's admission was that she believed her
husband had stopped womanizing, not that she had knowledge of Alfredo's
specific acts of concubinage with Sia and de Leon, specifically keeping them in
the conjugal dwelling. This admission set against the specific acts of
concubinage listed in Article 334 19of the Revised Penal Code does not amount
to condonation. Their continued cohabitation as husband and wife construed
from Rosa's annual visits to Davao City is not acquiescence to Alfredo's relations
with his concubines. On that score, we have succinctly held:
We can find nothing in the record which can be construed as pardon or
condonation. It is true that the offended party has to a considerable
extent been patient with her husband's shortcomings, but that seems to
have been due to his promises of improvement; nowhere does it appear
that she has consented to her husband's immorality or that she has
acquiesced in his relations with his concubine. 20

Fourth. Alfredo next grasps at Liza S. Diambangan's affidavit of recantation to

eliminate his probable culpability for concubinage.
Again, we are not swayed by Alfredo's asseverations.
We have generally looked with disfavor upon retraction of testimonies previously
given in court. Affidavits of recantation are unreliable and deserve scant
consideration. The asserted motives for the repudiation are commonly held
suspect, and the veracity of the statements made in the affidavit of repudiation
are frequently and deservedly subject to serious doubt. 21
EcDSTI

In Firaza v. People, we intoned:

Merely because a witness says that what he had declared is false and
that what he now says is true, is not sufficient ground for concluding that
the previous testimony is false. No such reasoning has ever crystallized
into a rule of credibility. The rule is that a witness may be impeached by
a previous contradictory statement . . . not that a previous statement is
presumed to be false merely because a witness now says that the same
is not true. The jurisprudence of this Court has always been
otherwise,i.e., that contradictory testimony given subsequently does not
necessarily discredit the previous testimony if the contradictions are
satisfactorily explained. [Citations omitted].

Indeed, it is a dangerous rule to set aside a testimony which has been

solemnly taken before a court of justice in an open and free trial and
under conditions precisely sought to discourage and forestall falsehood
simply because one of the witnesses who had given the testimony later
on changed his mind. Such a rule will make solemn trials a mockery and
place the investigation of the truth at the mercy of unscrupulous
witnesses. Unless there be special circumstances which, coupled with
the retraction of the witness, really raise doubt as to the truth of the
testimony given by him at the trial and accepted by the trial judge, and
only if such testimony is essential to the judgment of conviction, or its
elimination would lead the trial judge to a different conclusion, an
acquittal of the accused based on such a retraction would not be
justified. 22

In this case, Liza S. Diambangan's testimony merely corroborates the still

standing story of Robert and Melissa Diambangan, the other helper in the
Busuego household. Clearly, the two's consistent story may still be the basis of
the Ombudsman's finding of a prima facie case of concubinage against Alfredo
and Sia.
Finally. Despite his vigorous arguments, Alfredo claims that there is simply no
basis for indicting him and Sia for concubinage.
Article 334 of the Revised Penal Code lists three (3) specific acts of concubinage
by a husband: (1) keeping a mistress in the conjugal dwelling; (2) sexual
intercourse, under scandalous circumstances, with a woman who is not his wife;
and (3) cohabiting with [a woman who is not his wife] in any other place.
The Ombudsman found a prima facie case against Alfredo and Sia based on the
testimony of Robert, Melissa S. Diambangan and Liza S. Diambangan that
Alfredo had kept Sia in the conjugal dwelling where Sia even stayed at the
conjugal room. We completely agree with the Ombudsman's disquisition:
. . . . It is ingrained in human behavior that a child has love, respect and
loyalty to his family and [would] strive to keep the family harmonious and
united. This is the very reason why [Robert] did not inform his mother
about his father's infidelities during the time when his father was keeping
his mistress at the conjugal dwelling. A son would never turn against his

father by fabricating such a serious story which will cause his home to
crumble, if such is not true. His natural instinct is to protect his home,
which he did when he kept silent for a long time. What broke the camel's
back was the abusive treatment he allegedly suffered and the thought
that things would change for the better if his mom would intervene.
The story of [Robert] in his Affidavit was reinforced by the two house
helpers Melissa S. Diambangan and Liza S. Diambangan, who were
employed by the family. Melissa was with the Busuego family in their
conjugal home in 1997. She left the family in 2005 but returned in 2006.
Liza started working with the family in 2002. Melissa revealed that it was
Emy Sia who recruited her to work with the Busuego family. They both
attested to the fact that [Alfredo] and Emy Sia slept together in the
bedroom of [Alfredo] but Emy Sia would sleep in the maid's quarter when
[Rosa and Alfred] came home for a visit in 1997. They recalled that Emy
Sia calls [Alfredo] "papa". They narrated that Emy Sia would even
confide to them some private matters relating to [her] sexual [proclivities
with Alfredo]. 23
TEcADS

We further note that the presence of Sia at the Busuego household and
her interim residence thereat was not disputed nor explained. Alfredo just
cavalierly declares that Sia may have stayed in the conjugal dwelling, but never
as his mistress, and Sia supposedly slept in the maids' quarters.
While such a claim is not necessarily preposterous, we hold that such is a matter
of defense which Alfredo should raise in court given that Rosa's complaint and its
accompanying affidavits have created a prima facie case for Concubinage
against Alfredo and Sia.
WHEREFORE, the petition is DISMISSED. The Resolutions of the Ombudsman
dated 17 April 2009 and 11 October 2010 are AFFIRMED.
SO ORDERED.
|||

(Busuego v. Office of the Ombudsman, G.R. No. 196842, [October 9, 2013])

6.

[G.R. No. 199082. September 18, 2012.]

JOSE MIGUEL T. ARROYO, petitioner, vs. DEPARTMENT OF
JUSTICE; COMMISSION ON ELECTIONS; HON. LEILA DE
LIMA, in her capacity as Secretary of the Department of
Justice; HON. SIXTO BRILLANTES, JR., in his capacity as
Chairperson of the Commission on Elections; and the JOINT
DOJ-COMELEC PRELIMINARY INVESTIGATION COMMITTEE
and FACT-FINDING TEAM, respondents.
[G.R. No. 199085. September 18, 2012.]
BENJAMIN S. ABALOS, SR., petitioner, vs. HON. LEILA DE
LIMA, in her capacity as Secretary of Justice; HON. SIXTO S.
BRILLANTES, JR., in his capacity as COMELEC Chairperson;
RENE V. SARMIENTO, LUCENITO N. TAGLE, ARMANDO V.
VELASCO, ELIAS R. YUSOPH, CHRISTIAN ROBERT S. LIM
AND AUGUSTO C. LAGMAN, in their capacity as COMELEC
COMMISSIONERS; CLARO A. ARELLANO, GEORGE C. DEE,
JACINTO G. ANG, ROMEO B. FORTES AND MICHAEL D.
VILLARET, in their capacity as CHAIRPERSON AND
MEMBERS, RESPECTIVELY, OF THE JOINT DOJ-COMELEC
PRELIMINARY INVESTIGATION COMMITTEE ON THE 2004
AND 2007 ELECTION FRAUD, respondents.
[G.R. No. 199118. September 18, 2012.]
GLORIA MACAPAGAL-ARROYO, petitioner, vs. COMMISSION
ON ELECTIONS, represented by Chairperson Sixto S.
Brillantes, Jr., DEPARTMENT OF JUSTICE, represented by
Secretary Leila M. De Lima, JOINT DOJ-COMELEC
PRELIMINARY INVESTIGATION COMMITTEE, SENATOR
AQUILINO M. PIMENTEL III, and DOJ-COMELEC FACT
FINDING TEAM, respondents.

DECISION
PERALTA, J :
p

The Court is vested with the constitutional mandate to resolve justiciable

controversies by applying the rule of law with due deference to the right to due
process, irrespective of the standing in society of the parties involved. It is an
assurance that in this jurisdiction, the wheels of justice turn unimpeded by public
opinion or clamor, but only for the ultimate end of giving each and every member
of society his just due without distinction.
Before the Court are three (3) consolidated petitions and supplemental petitions
for Certiorari and Prohibition under Rule 65 of the Rules of Court filed by Jose
Miguel T. Arroyo (Mike Arroyo) in G.R. No. 199082, Benjamin S. Abalos, Sr.
(Abalos) in G.R. No. 199085 and Gloria Macapagal-Arroyo (GMA) in G.R. No.
199118 assailing the following: (1) Commission on Elections (Comelec)
Resolution No. 9266 "In the Matter of the Commission on Elections and
Department of Justice Joint Investigation on the Alleged Election Offenses
Committed during the 2004 and 2007 Elections Pursuant to Law" 1 dated August
2, 2011; (2) Joint Order No. 001-2011 (Joint Order) "Creating and Constituting a
Joint DOJ-Comelec Preliminary Investigation Committee [Joint Committee] and
Fact-Finding Team on the 2004 and 2007 National Elections Electoral Fraud and
Manipulation Cases" 2 dated August 15, 2011; (3) Rules of Procedure on the
Conduct of Preliminary Investigation on the Alleged Election Fraud in the 2004
and 2007 National Elections (Joint Committee Rules of Procedure) 3 dated
August 23, 2011; and (4) Initial Report of the Fact-Finding Team dated October
20, 2011. 4The consolidated petitions and supplemental petitions likewise assail
the validity of the proceedings undertaken pursuant to the aforesaid
issuances.
EaISDC

The Antecedents
Acting on the discovery of alleged new evidence and the surfacing of new
witnesses indicating the occurrence of massive electoral fraud and manipulation
of election results in the 2004 and 2007 National Elections, on August 2, 2011,
the Comelec issued Resolution No. 9266 approving the creation of a committee

jointly with the Department of Justice (DOJ), which shall conduct preliminary
investigation on the alleged election offenses and anomalies committed during
the 2004 and 2007 elections. 5
On August 4, 2011, the Secretary of Justice issued Department Order No.
640 6 naming three (3) of its prosecutors to the Joint Committee.
On August 15, 2011, the Comelec and the DOJ issued Joint Order No. 001-2011
creating and constituting a Joint Committee and Fact-Finding Team on the 2004
and 2007 National Elections electoral fraud and manipulation cases. The Joint
Committee and the Fact-Finding Team are composed of officials from the DOJ
and the Comelec. Section 2 of the Joint Order lays down the mandate of the Joint
Committee, to wit:
Section 2. Mandate. The Committee shall conduct the necessary
preliminary investigation on the basis of the evidence gathered and the
charges recommended by the Fact-Finding Team created and referred to
in Section 4 hereof. Resolutions finding probable cause for election
offenses, defined and penalized under the Omnibus Election Code and
other election laws shall be approved by the Comelec in accordance with
the Comelec Rules of Procedure. For other offenses, or those not
covered by the Omnibus Election Code and other election laws, the
corresponding criminal information may be filed directly with the
appropriate courts. 7

The Fact-Finding Team, 8 on the other hand, was created for the purpose of
gathering real, documentary, and testimonial evidence which can be utilized in
the preliminary investigation to be conducted by the Joint Committee. Its specific
duties and functions as enumerated in Section 4 of the Joint Order are as
follows:
cSEDTC

a) Gather and document reports, intelligence information, and

investigative leads from official as well as unofficial sources and
informants;
b) Conduct interviews, record testimonies, take affidavits of witnesses,
and collate material and relevant documentary evidence, such as,
but not limited to, election documents used in the 2004 and 2007
national elections. For security reasons, or to protect the identities

of informants, the Fact-Finding Team may conduct interviews or

document testimonies discreetly;
c) Assess and evaluate affidavits already executed and other
documentary evidence submitted or may be submitted to the
Fact-Finding Team and/or Committee;
d) Identify the offenders, their offenses and the manner of their
commission, individually or in conspiracy, and the provisions of
election and general criminal laws violated, establish evidence for
individual criminal and administrative liability and prosecution, and
prepare the necessary documentation, such as complaints and
charge sheets for the initiation of preliminary investigation
proceedings against said individuals to be conducted by the
Committee;
e) Regularly submit to the Committee, the Secretary of Justice and the
Chairman of the Comelec periodic reports and recommendations,
supported by real, testimonial and documentary evidence, which
may then serve as the Committee's basis for immediately
commencing appropriate preliminary investigation proceedings,
as provided under Section 6 of this Joint Order; and
f) Upon the termination of its investigation, make a full and final report to
the Committee, the Secretary of Justice, and the Chairman of the
Comelec. 9

Pursuant to Section 7 10 of the Joint Order, on August 23, 2011, the Joint
Committee promulgated its Rules of Procedure.
The members of the Fact-Finding Team unanimously agreed that the subject of
the Initial Report would be the electoral fraud and manipulation of election results
allegedly committed during the May 14, 2007 elections. Thus, in its Initial
Report 11 dated October 20, 2011, the Fact-Finding Team concluded that
manipulation of the results in the May 14, 2007 senatorial elections in the
provinces of North and South Cotabato and Maguindanao were indeed
perpetrated. 12 The Fact-Finding Team recommended that petitioner Abalos and
ten (10) others 13 be subjected to preliminary investigation for electoral sabotage
for conspiring to manipulate the election results in North and South Cotabato.

Twenty-six (26) 14 persons, including petitioners GMA and Abalos, were likewise
recommended for preliminary investigation for electoral sabotage for
manipulating the election results in Maguindanao. 15 Several persons were also
recommended to be charged administratively, while others, 16including petitioner
Mike Arroyo, were recommended to be subjected to further investigation. 17 The
case resulting from the investigation of the Fact-Finding Team was docketed as
DOJ-Comelec Case No. 001-2011.
TCDHaE

Meanwhile, on October 17, 2011, Senator Aquilino Pimentel III (Senator

Pimentel) filed a Complaint-Affidavit 18 for Electoral Sabotage against petitioners
and twelve others 19 and several John Does and Jane Does. The case was
docketed as DOJ-Comelec Case No. 002-2011.
On October 24, 2011, the Joint Committee issued two subpoenas against
petitioners in DOJ-Comelec Case Nos. 001-2011 and 002-2011. 20 On November
3, 2011, petitioners, through counsel, appeared before the Joint
Committee. 21 On that preliminary hearing, the Joint Committee consolidated the
two DOJ-Comelec cases. Respondents therein were likewise ordered to submit
their Counter-Affidavits by November 14, 2011. 22
Thereafter, petitioners filed before the Court separate Petitions for Certiorari and
Prohibition with Prayer for the Issuance of a Temporary Restraining Order (TRO)
and/or Writ of Preliminary Injunction assailing the creation of the Joint
Panel. 23 The petitions were eventually consolidated.
On November 14, 2011, petitioner Mike Arroyo filed a Motion to Defer
Proceedings 24 before the Joint Committee, in view of the pendency of his
petition before the Court. On the same day, petitioner GMA filed before the Joint
Committee an Omnibus Motion Ad Cautelam 25 to require Senator Pimentel to
furnish her with documents referred to in his complaint-affidavit and for the
production of election documents as basis for the charge of electoral sabotage.
GMA contended that for the crime of electoral sabotage to be established, there
is a need to present election documents allegedly tampered which resulted in the
increase or decrease in the number of votes of local and national
candidates. 26 GMA prayed that she be allowed to file her counter-affidavit within
ten (10) days from receipt of the requested documents. 27Petitioner Abalos, for

his part, filed a Motion to Suspend Proceedings (Ex Abundante Ad

Cautelam), 28 in view of the pendency of his petition brought before the Court.
SECAHa

In an Order 29 dated November 15, 2011, the Joint Committee denied the
aforesaid motions of petitioners. GMA subsequently filed a motion for
reconsideration. 30
On November 16, 2011, the Joint Committee promulgated a Joint Resolution
which was later indorsed to the Comelec. 31 On November 18, 2011, after
conducting
a
special
session,
the
Comelec en
banc issued
a
Resolution 32 approving and adopting the Joint Resolution subject to
modifications. The dispositive portion of the Comelec Resolution reads:
WHEREFORE, premises considered, the Resolution of the Joint DOJCOMELEC Preliminary Investigation Committee in DOJ-COMELEC
Case No. 001-2011 and DOJ-COMELEC Case No. 002-2011, upon the
recommendation of the COMELEC's own representatives in the
Committee, is hereby APPROVED and ADOPTED, subject to the
following MODIFICATIONS:
1. That
information/s
for
the
crime
of ELECTORAL
SABOTAGE under Section 42 (b) of R.A. 9369,
amending Section 27 (b) of R.A. 6646, be filed
againstGLORIA MACAPAGAL-ARROYO, BENJAMIN
ABALOS, SR., LINTANG H. BEDOL, DATU ANDAL
AMPATUAN, SR. and PETER REYES;
2. That the charges against MICHAEL C. ABAS, NICODEMO
FERRER, REUBEN BASIAO, JAIME PAZ and NORIE K.
UNAS be subjected to further investigation;
3. That the charges against JOSE MIGUEL T. ARROYO, BONG
SERRANO, ALBERTO AGRA, ANDREI BON TAGUM,
GABBY CLAUDIO, ROMY DAYDAY, JEREMY JAVIER,
JOHN DOE a.k.a BUTCH, be DISMISSED for insufficiency
of evidence to establish probable cause;
ITSCED

4. That the recommendation that ESTELITA B. ORBASE, ELIZA

A. GASMIN, ELSA Z. ATINEN, SALIAO S. AMBA,
MAGSAYSAY B. MOHAMAD, SALONGA K. EDZELA,

RAGAH D. AYUNAN, SUSAN U. CANANBAN, RUSSAM

H. MABANG, ASUNCION CORAZON P. RENIEDO,
NENA A. ALID, MA. SUSAN L. ALBANO, ROHAIDA T.
KHALID, ARAW M. CAO, JEEHAN S. NUR, ALICE A.
LIM, NORIJEAN P. HANGKAL, CHRISTINA ROAN M.
DALOPE, and MACEDA L. ABO be administratively
charged be subjected to further review by this Commission
to determine the appropriate charge/s that may be filed
against them;
5. That the findings of lack of probable cause against LILIAN S.
SUAN-RADAM and YOGIE
G.
MARTIRIZAR be REJECTED by reason of the pendency
of their respective cases before the Regional Trial Court of
Pasay (Branch 114) and this Commission for the same
offense under consideration.
In the higher interest of justice and by reason of manifest attempts to
frustrate the government's right to prosecute and to obtain speedy
disposition of the present case pending before the Commission, the Law
Department and/or any COMELEC legal officers as may be authorized
by
this
Commission
is
hereby ORDERED toIMMEDIATELY
PREPARE and FILE the necessary Information/s before the appropriate
court/s.
SO ORDERED. 33 (Emphasis supplied.)

On even date, pursuant to the above Resolution, the Comelec's Law Department
filed with the Regional Trial Court (RTC), Pasay City, an Information against
petitioner GMA, Governor Andal Ampatuan, Sr., and Atty. Lintang H. Bedol, for
violation of Section 42 (b) (3) of Republic Act (R.A.) No. 9369, amending Section
27 (b) of R.A. No. 6646, docketed as Criminal Case No. RPSY-11-04432CR. 34 The case was raffled to Branch 112 and the corresponding Warrant of
Arrest was issued which was served on GMA on the same day. 35
On November 18, 2011, petitioner GMA filed with the RTC an Urgent Omnibus
Motion Ad Cautelam 36 with leave to allow the Joint Committee to resolve the
motion for reconsideration filed by GMA, to defer issuance of a warrant of arrest
and a Hold Departure Order, and to proceed to judicial determination of probable

cause. She, likewise, filed with the Comelec a Motion to Vacate Ad

Cautelam 37 praying that its Resolution be vacated for being null and void. The
RTC nonetheless issued a warrant for her arrest which was duly served. GMA
thereafter filed a Motion for Bail which was granted.
HDTISa

Issues
In G.R. No. 199082, petitioner Arroyo relies on the following grounds:
A. THE CREATION OF THE JOINT COMMITTEE VIA THE JOINT
ORDER IS AT WAR WITH THE DUE PROCESS AND EQUAL
PROTECTION CLAUSE OF THE CONSTITUTION, HAVING
BEEN CREATED WITH THE SOLE END IN VIEW OF
INVESTIGATING AND PROSECUTING CERTAIN PERSONS
AND INCIDENTS ONLY, SPECIFICALLY THOSE INVOLVING
THE 2004 AND 2007 ELECTIONS TO THE EXCLUSION OF
OTHERS, IN VIOLATION OF THE DOCTRINE IN BIRAOGO V.
TRUTH COMMISSION AND COMPANION CASE.
B. NO LAW OR RULE AUTHORIZES THE JOINT COMMITTEE TO
CONDUCT PRELIMINARY INVESTIGATION.
C. THE CREATION OF THE JOINT COMMITTEE, WHICH FUSES THE
COMMISSION ON ELECTIONS A CONSTITUTIONALLY
INDEPENDENT BODY WITH THE DEPARTMENT OF
JUSTICE A POLITICAL AGENT OF THE EXECUTIVE
DEMOLISHES THE INDEPENDENCE OF THE COMMISSION
ON ELECTIONS AS PROVIDED IN ARTICLE IX (A), SECTIONS
1 AND 2 AND IX (C) OF THE CONSTITUTION.
D. IN VIEW OF THE NUMEROUS AND PERSISTENT PUBLIC
PRONOUNCEMENTS
OF
THE
PRESIDENT,
HIS
SPOKESPERSONS, THE HEADS OF THE DOJ AND THE
COMELEC, AND MEMBERS OF THE JOINT COMMITTEE THAT
CASES SHOULD BE FILED AGAINST PETITIONER AND HIS
FAMILY AND ALLEGED ASSOCIATES BY THE END OF 2011,
THE PROCEEDINGS THEREOF SHOULD BE ENJOINED FOR
BEING
PERSECUTORY,
PURSUANT
TO ALLADO
V.
DIOKNO AND RELATED CASES.
AICEDc

E. THE CREATION AND CONSTITUTION OF THE JOINT COMMITTEE

TRAMPLES UPON PETITIONER'S RIGHT TO A FAIR
PROCEEDING BY AN INDEPENDENT AND IMPARTIAL
TRIBUNAL.
F. THE COMELEC, AND SUBSEQUENTLY, THE RTC OF PASAY CITY,
HAVE ASSUMED JURISDICTION OVER THE SUBJECT
MATTER SOUGHT TO BE INVESTIGATED BY THE JOINT
COMMITTEE, TO THE EXCLUSION OF ANY BODY, INCLUDING
THE JOINT COMMITTEE. 38

In G.R. No. 199085, petitioner Abalos raises the following issues:

I.
DOES JOINT ORDER NO. 001-2011, CREATING THE JOINT DOJCOMELEC
FACT-FINDING
TEAM
AND
PRELIMINARY
INVESTIGATION
COMMITTEE
VIOLATE
PETITIONER'S
CONSTITUTIONAL RIGHT TO EQUAL PROTECTION OF THE LAW?
II.
DID THE CONDUCT AND PROCEEDINGS OF THE JOINT DOJCOMELEC
FACT-FINDING
TEAM
AND
PRELIMINARY
INVESTIGATION
COMMITTEE
VIOLATE
PETITIONER'S
CONSTITUTIONAL RIGHT TO DUE PROCESS OF LAW?
III.
DID THE DOJ AND COMELEC VIOLATE THE PRINCIPLE OF
SEPARATION OF POWERS BY CREATING THE JOINT DOJCOMELEC
FACT-FINDING
TEAM
AND
PRELIMINARY
INVESTIGATION COMMITTEE WHICH ENCROACHED UPON THE
POWERS OF THE LEGISLATURE AND THE REGIONAL TRIAL
COURT?
DACTSH

IV.
DOES THE JOINT DOJ-COMELEC FACT-FINDING TEAM AND
PRELIMINARY INVESTIGATION COMMITTEE HAVE THE POWER
AND LEGAL AUTHORITY TO CONDUCT A PRELIMINARY

INVESTIGATION OF THE SAME ELECTORAL SABOTAGE CASES

WHICH THE COMELEC HAD ALREADY TAKEN COGNIZANCE OF? 39

In G.R. No. 199118, petitioner GMA anchors her petition on the following
grounds:
I. THE

EXECUTIVE DEPARTMENT, THROUGH

THE DOJ,
OSTENSIBLY ACTING "JOINTLY" WITH THE COMELEC, HAS
ACTED BEYOND THE LIMITS OF THE CONSTITUTION, IN
THAT IT HAS COMPROMISED THE INDEPENDENCE OF THE
COMELEC.

II. THE
COMELEC
HAS
EFFECTIVELY
ABDICATED
ITS
CONSTITUTIONAL MANDATE "TO INVESTIGATE AND, WHERE
APPROPRIATE, PROSECUTE CASES OF VIOLATIONS OF
ELECTION LAWS, INCLUDING ACTS OR OMISSIONS
CONSTITUTING ELECTION FRAUDS, OFFENSES, AND
MALPRACTICES" (ARTICLE IX-C, SECTION 2[6], 1987
CONSTITUTION OF THE REPUBLIC OF THE PHILIPPINES) IN
FAVOR OF THE EXECUTIVE DEPARTMENT, ACTING
THROUGH RESPONDENT JUSTICE SECRETARY DE LIMA.
III. DOJ-COMELEC JOINT ORDER NO. 001-2011 AND THE JOINT
COMMITTEE RULES HAVE NOT BEEN PUBLISHED
PURSUANT TO TAADA V. TUVERA, G.R. No. L-63915 (29
DECEMBER 1986). AFTER ALL, AS THE HONORABLE COURT
LIKEWISE DECLARED IN REPUBLIC V. PILIPINAS SHELL
PETROLEUM CORPORATION, G.R. No. 173918(08 APRIL
2008), (SIC) 40

We deferred the resolution of petitioners' Motion for the Issuance of a TRO and,
instead, required the respondents to comment on the petitions. 41 We likewise
scheduled the consolidated cases for oral argument for which the parties were
directed to limit their respective discussions to the following issues:
DCaEAS

I. Whether or not Joint Order No. 001-2011 "Creating and Constituting

a Joint DOJ-COMELEC Preliminary Investigation Committee and FactFinding Team on the 2004 and 2007 National Elections Electoral Fraud
and Manipulation Cases" is constitutional in light of the following:

A. The due process clause of the 1987 Constitution

B. The equal protection clause of the 1987 Constitution
C. The principle of separation of powers
D. The independence of the COMELEC as a constitutional body
II. Whether or not the COMELEC has jurisdiction under the law to
conduct preliminary investigation jointly with the DOJ.
A. Whether or not due process was observed by the Joint DOJCOMELEC
Fact-Finding
Team
and
Preliminary
Investigation Committee, and the COMELEC in the
conduct of the preliminary investigation and approval of the
Joint Panel's Resolution. 42

The Court, thereafter, required the parties to submit their respective

Memoranda. 43
The Court's Ruling
Procedural Issues
Respondents claim that Mike Arroyo's petition is moot and that of GMA is moot
and academic. They explain that the Mike Arroyo petition presents no actual
controversy that necessitates the exercise by the Court of its power of judicial
review, considering that he was not among those indicted for electoral sabotage
in the 2007 national elections as the Comelec dismissed the case against him for
insufficiency of evidence. 44 Anent the 2004 national elections, the Fact-Finding
Team is yet to complete its investigation so Mike Arroyo's apprehensions are
merely speculative and anticipatory. 45 As to the GMA petition, respondents aver
that any judgment of the Court will have no practical legal effect because an
Information has already been filed against her in Branch 112, RTC of Pasay
City. 46 With the filing of the Information, the RTC has already acquired
jurisdiction over the case, including all issues relating to the constitutionality or
legality of her preliminary investigation. 47 Respondents also claim that the issues
relating to the constitutionality and validity of the conduct of the preliminary
investigation of GMA are best left to the trial court, considering that it involves
questions of fact. 48 Respondents add that considering that the RTC has

concurrent jurisdiction to determine a constitutional issue, it will be practical for

the Court to allow the RTC to determine the constitutional issues in this case. 49
We do not agree.

aACHDS

Mootness
It cannot be gainsaid that for a court to exercise its power of adjudication, there
must be an actual case or controversy, that is, one which involves a conflict of
legal rights, an assertion of opposite legal claims susceptible of judicial
resolution. 50 The case must not be moot or academic or based on extra-legal or
other similar considerations not cognizable by a court of justice. 51
A case becomes moot and academic when it ceases to present a justiciable
controversy so that a declaration on the issue would be of no practical use or
value. 52However, a case should not be dismissed simply because one of the
issues raised therein had become moot and academic by the onset of a
supervening event, whether intended or incidental, if there are other causes
which need to be resolved after trial. 53
Here, the consolidated cases are not rendered moot and academic by the
promulgation of the Joint Resolution by the Joint Committee and the approval
thereof by the Comelec. It must be recalled that the main issues in the three
petitions before us are the constitutionality and legality of the creation of the Joint
Committee and the Fact-Finding Team as well as the proceedings undertaken
pursuant thereto. The assailed Joint Order specifically provides that the Joint
Committee was created for purposes of investigating the alleged massive
electoral fraud during the 2004 and 2007 national elections. However, in the FactFinding Team's Initial Report, the team specifically agreed that the report would
focus on the irregularities during the 2007 elections. Also, in its November 18,
2011 Resolution, the Comelec, while directing the filing of information against
petitioners Abalos and GMA, ordered that further investigations be conducted
against the other respondents therein. Apparently, the Fact-Finding Team's and
Joint Committee's respective mandates have not been fulfilled and they are,
therefore, bound to continue discharging their duties set forth in the assailed Joint
Order. Moreover, petitioners question the validity of the proceedings undertaken
by the Fact-Finding Team and the Joint Committee leading to the filing of

information, on constitutional grounds. We are not, therefore, barred from

deciding on the petitions simply by the occurrence of the supervening events of
filing an information and dismissal of the charges.
Jurisdiction
over
the
conduct of the preliminary investigation

validity

of

the

This is not the first time that the Court is confronted with the issue of jurisdiction
to conduct preliminary investigation and at the same time with the propriety of the
conduct of preliminary investigation. In Cojuangco, Jr. v. Presidential Commission
on Good Government [PCGG], 54 the Court resolved two issues, namely: (1)
whether or not the PCGG has the power to conduct a preliminary investigation of
the anti-graft and corruption cases filed by the Solicitor General against Eduardo
Cojuangco, Jr. and other respondents for the alleged misuse of coconut levy
funds; and (2) on the assumption that it has jurisdiction to conduct such a
preliminary investigation, whether or not its conduct constitutes a violation of
petitioner's right to due process and equal protection of the law. 55 The Court
decided these issues notwithstanding the fact that Informations had already been
filed with the trial court.
aEcDTC

In Allado v. Diokno,56 in a petition for certiorari assailing the propriety of the

issuance of a warrant of arrest, the Court could not ignore the undue haste in the
filing of the information and the inordinate interest of the government in filing the
same. Thus, this Court took time to determine whether or not there was, indeed,
probable cause to warrant the filing of information. This, notwithstanding the fact
that information had been filed and a warrant of arrest had been issued.
Petitioners therein came directly to this Court and sought relief to rectify the
injustice that they suffered.
Hierarchy of courts
Neither can the petitions be dismissed solely because of violation of the principle
of hierarchy of courts. This principle requires that recourse must first be made to
the lower-ranked court exercising concurrent jurisdiction with a higher
court. 57 The Supreme Court has original jurisdiction over petitions
for certiorari, prohibition,mandamus, quo warranto, and habeas corpus. While this
jurisdiction is shared with the Court of Appeals and the RTC, a direct invocation

of this Court's jurisdiction is allowed when there are special and important
reasons therefor, clearly and especially set out in the petition, as in the present
case. 58 In the consolidated petitions, petitioners invoke exemption from the
observance of the rule on hierarchy of courts in keeping with the Court's duty to
determine whether or not the other branches of government have kept
themselves within the limits of the Constitution and the laws, and that they have
not abused the discretion given to them. 59
It is noteworthy that the consolidated petitions assail the constitutionality of
issuances and resolutions of the DOJ and the Comelec. The general rule is that
this Court shall exercise only appellate jurisdiction over cases involving the
constitutionality of a statute, treaty or regulation. However, such rule is subject to
exception, that is, in circumstances where the Court believes that resolving the
issue of constitutionality of a law or regulation at the first instance is of paramount
importance and immediately affects the social, economic, and moral well-being of
the people. 60 This case falls within the exception. An expeditious resolution of
the issues raised in the petitions is necessary. Besides, the Court has entertained
a direct resort to the Court without the requisite motion for reconsideration filed
below or without exhaustion of administrative remedies where there is an urgent
necessity for the resolution of the question and any further delay would prejudice
the interests of the government or of the petitioners and when there is an alleged
violation of due process, as in the present case. 61 We apply the same relaxation
of the Rules in the present case and, thus, entertain direct resort to this Court.
Substantive Issues
Bases
for
the
Fact-Finding Team and Joint Committee

Creation

of

the

Section 2, Article IX-C of the 1987 Constitution enumerates the powers and
functions of the Comelec. Paragraph (6) thereof vests in the Comelec the power
to:
(6) File, upon a verified complaint, or on its own initiative, petitions in
court for inclusion or exclusion of voters; investigate and, where
appropriate, prosecute cases of violations of election laws, including
acts or omissions constituting election frauds, offenses, and
malpractices.
IHCSET

This was an important innovation introduced by the 1987 Constitution,

because the above-quoted provision was not in the 1935 and
1973 Constitutions. 62
The grant to the Comelec of the power to investigate and prosecute election
offenses as an adjunct to the enforcement and administration of all election laws
is intended to enable the Comelec to effectively insure to the people the free,
orderly, and honest conduct of elections. The failure of the Comelec to exercise
this power could result in the frustration of the true will of the people and make a
mere idle ceremony of the sacred right and duty of every qualified citizen to
vote. 63
The constitutional grant of prosecutorial power in the Comelec was reflected in
Section 265 of Batas Pambansa Blg. 881, otherwise known as the Omnibus
Election Code, to wit:
Section 265. Prosecution. The Commission shall, through its duly
authorized legal officers, have the exclusive power to conduct
preliminary investigation of all election offenses punishable under this
Code, and to prosecute the same. The Commission may avail of the
assistance of other prosecuting arms of the government:Provided,
however, That in the event that the Commission fails to act on any
complaint within four months from his filing, the complainant may file the
complaint with the office of the fiscal [public prosecutor], or with the
Ministry [Department] of Justice for proper investigation and prosecution,
if warranted.

Under the above provision of law, the power to conduct preliminary investigation
is vested exclusively with the Comelec. The latter, however, was given by the
same provision of law the authority to avail itself of the assistance of other
prosecuting arms of the government. 64 Thus, under Section 2, 65 Rule 34 of the
Comelec Rules of Procedure, provincial and city prosecutors and their assistants
are given continuing authority as deputies to conduct preliminary investigation of
complaints involving election offenses under election laws and to prosecute the
same. The complaints may be filed directly with them or may be indorsed to them
by the petitioner or its duly authorized representatives. 66

Thus, under the Omnibus Election Code, while the exclusive jurisdiction to
conduct preliminary investigation had been lodged with the Comelec, the
prosecutors had been conducting preliminary investigations pursuant to the
continuing delegated authority given by the Comelec. The reason for this
delegation of authority has been explained in Commission on Elections v.
Espaol: 67
The deputation of the Provincial and City Prosecutors is necessitated by
the need for prompt investigation and dispensation of election cases as
an indispensable part of the task of securing fine, orderly, honest,
peaceful and credible elections. Enfeebled by lack of funds and the
magnitude of its workload, the petitioner does not have a sufficient
number of legal officers to conduct such investigation and to prosecute
such cases. 68

Moreover, as we acknowledged in People v. Basilla, 69 the prompt and fair

investigation and prosecution of election offenses committed before or in the
course of nationwide elections would simply not be possible without the
assistance of provincial and city fiscals [prosecutors] and their assistants and
staff members, and of the state prosecutors of the DOJ. 70
Section 265 of the Omnibus Election Code was amended by Section 43 of R.A.
No. 9369, 71 which reads:
aScIAC

Section 43. Section 265 of Batas Pambansa Blg. 881 is hereby

amended to read as follows:
SEC. 265. Prosecution. The Commission shall, through its duly
authorized legal officers, have the power, concurrent with the
other prosecuting arms of the government, to conduct
preliminary investigation of all election offenses punishable under
this Code, and to prosecute the same. 72

As clearly set forth above, instead of a mere delegated authority, the other
prosecuting arms of the government, such as the DOJ, now exercise concurrent
jurisdiction with the Comelec to conduct preliminary investigation of all election
offenses and to prosecute the same.

It is, therefore, not only the power but the duty of both the Comelec and the DOJ
to perform any act necessary to ensure the prompt and fair investigation and
prosecution of election offenses. Pursuant to the above constitutional and
statutory provisions, and as will be explained further below, we find no
impediment for the Comelec and the DOJ to create the Joint Committee and
Fact-Finding Team for the purpose of conducting a thorough investigation of the
alleged massive electoral fraud and the manipulation of election results in the
2004 and 2007 national elections relating in particular to the presidential and
senatorial elections. 73
Constitutionality of Joint-Order No. 001-2011
A. Equal Protection Clause
Petitioners claim that the creation of the Joint Committee and Fact-Finding Team
is in violation of the equal protection clause of the Constitution because its sole
purpose is the investigation and prosecution of certain persons and incidents.
They argue that there is no substantial distinction between the allegations of
massive electoral fraud in 2004 and 2007, on the one hand, and previous and
subsequent national elections, on the other hand; and no substantial distinction
between petitioners and the other persons or public officials who might have
been involved in previous election offenses. They insist that the Joint Panel was
created to target only the Arroyo Administration as well as public officials linked to
the Arroyo Administration. To bolster their claim, petitioners explain that Joint
Order No. 001-2011 is similar to Executive Order No. 1 (creating the Philippine
Truth Commission) which this Court had already nullified for being violative of the
equal protection clause.
Respondents, however, refute the above contentions and argue that the wide
array of the possible election offenses and broad spectrum of individuals who
may have committed them, if any, immediately negate the assertion that the
assailed orders are aimed only at the officials of the Arroyo Administration.
We agree with the respondents.
The equal protection clause is enshrined in Section 1, Article III of the
Constitution which reads:

Section 1. No person shall be deprived of life, liberty, or property without

due process of law, nor shall any person be denied the equal
protection of the laws.74

The concept of equal protection has been laid down in Biraogo v. Philippine Truth
Commission of 2010: 75
One of the basic principles on which this government was founded is that
of the equality of right which is embodied in Section 1, Article III of
the 1987 Constitution. The equal protection of the laws is embraced in
the concept of due process, as every unfair discrimination offends the
requirements of justice and fair play. It has been embodied in a separate
clause, however, to provide for a more specific guaranty against any form
of undue favoritism or hostility from the government. Arbitrariness in
general may be challenged on the basis of the due process clause. But if
the particular act assailed partakes of an unwarranted partiality or
prejudice, the sharper weapon to cut it down is the equal protection
clause.
cEaTHD

According to a long line of decisions, equal protection simply requires

that all persons or things similarly situated should be treated alike, both
as to rights conferred and responsibilities imposed. It requires public
bodies and institutions to treat similarly-situated individuals in a similar
manner. The purpose of the equal protection clause is to secure every
person within a state's jurisdiction against intentional and arbitrary
discrimination, whether occasioned by the express terms of a statute or
by its improper execution through the state's duly-constituted authorities.
In other words, the concept of equal justice under the law requires the
state to govern impartially, and it may not draw distinctions between
individuals solely on differences that are irrelevant to a legitimate
governmental objective. 76

Unlike the matter addressed by the Court's ruling in Biraogo v. Philippine Truth
Commission of 2010, Joint Order No. 001-2011 cannot be nullified on the ground
that it singles out the officials of the Arroyo Administration and, therefore, it
infringes the equal protection clause. The Philippine Truth Commission of 2010
was expressly created for the purpose of investigating alleged graft and
corruption during the Arroyo Administration since Executive Order No.

1 77 specifically referred to the "previous administration"; while the Joint

Committee was created for the purpose of conducting preliminary investigation of
election offenses during the 2004 and 2007 elections. While GMA and Mike
Arroyo were among those subjected to preliminary investigation, not all
respondents therein were linked to GMA as there were public officers who were
investigated upon in connection with their acts in the performance of their official
duties. Private individuals were also subjected to the investigation by the Joint
Committee.
The equal protection guarantee exists to prevent undue favor or privilege. It is
intended to eliminate discrimination and oppression based on inequality.
Recognizing the existence of real differences among men, it does not demand
absolute equality. It merely requires that all persons under like circumstances and
conditions shall be treated alike both as to privileges conferred and liabilities
enforced. 78
We once held that the Office of the Ombudsman is granted virtually plenary
investigatory powers by the Constitution and by law and thus may, for every
particular investigation, whether commenced by complaint or on its own initiative,
decide how best to pursue each investigation. Since the Office of the
Ombudsman is granted such latitude, its varying treatment of similarly situated
investigations cannot by itself be considered a violation of any of the parties'
rights to the equal protection of the laws. 79 This same doctrine should likewise
apply in the present case.
acITSD

Thus, as the constitutional body granted with the broad power of enforcing and
administering all laws and regulations relative to the conduct of an election,
plebiscite, initiative, referendum and recall, 80 and tasked to ensure free, orderly,
honest, peaceful, and credible elections, 81 the Comelec has the authority to
determine how best to perform such constitutional mandate. Pursuant to this
authority, the Comelec issues various resolutions prior to every local or national
elections setting forth the guidelines to be observed in the conduct of the
elections. This shows that every election is distinct and requires different
guidelines in order to ensure that the rules are updated to respond to existing
circumstances.

Moreover, as has been practiced in the past, complaints for violations of election
laws may be filed either with the Comelec or with the DOJ. The Comelec may
even initiate, motu proprio, complaints for election offenses. 82 Pursuant to law
and the Comelec's own Rules, investigations may be conducted either by the
Comelec itself through its law department or through the prosecutors of the DOJ.
These varying procedures and treatment do not, however, mean that
respondents are not treated alike. Thus, petitioners' insistence of infringement of
their constitutional right to equal protection of the law is misplaced.
B. Due Process
Petitioners claim that the Joint Panel does not possess the required cold
neutrality of an impartial judge because it is all at once the evidence-gatherer,
prosecutor and judge. They explain that since the Fact-Finding Team has found
probable cause to subject them to preliminary investigation, it is impossible for
the Joint Committee to arrive at an opposite conclusion. Petitioners likewise
express doubts of any possibility that the Joint Committee will be fair and
impartial to them as Secretary De Lima and Chairman Brillantes had repeatedly
expressed prejudgment against petitioners through their statements captured by
the media.
For their part, respondents contend that petitioners failed to present proof that the
President of the Philippines, Secretary of Justice, and Chairman of the Comelec
actually made the statements allegedly prejudging their case and in the context in
which they interpreted them. They likewise contend that assuming that said
statements were made, there was no showing that Secretary De Lima had tried
to intervene in the investigation to influence its outcome nor was it proven that the
Joint Committee itself had prejudged the case. Lastly, they point out that Joint
Order No. 001-2011 created two bodies, the Fact-Finding Team and the Joint
Committee, with their respective mandates. Hence, they cannot be considered as
one.
DaAISH

We find for respondents.

It is settled that the conduct of preliminary investigation is, like court proceedings,
subject to the requirements of both substantive and procedural due
process. 83Preliminary investigation is considered as a judicial proceeding

wherein the prosecutor or investigating officer, by the nature of his functions, acts
as a quasi-judicial officer. 84 The authority of a prosecutor or investigating officer
duly empowered to preside over or to conduct a preliminary investigation is no
less than that of a municipal judge or even an RTC Judge. 85 Thus, as
emphasized by the Court in Ladlad v. Velasco: 86
. . . We cannot emphasize too strongly that prosecutors should not
allow, and should avoid, giving the impression that their noble office is
being used or prostituted, wittingly or unwittingly, for political ends, or
other purposes alien to, or subversive of, the basic and fundamental
objective of serving the interest of justice evenhandedly, without fear or
favor to any and all litigants alike, whether rich or poor, weak or strong,
powerless or mighty. Only by strict adherence to the established
procedure may public's perception of the impartiality of the prosecutor
be enhanced. 87

In this case, as correctly pointed out by respondents, there was no showing that
the statements claimed to have prejudged the case against petitioners were
made by Secretary De Lima and Chairman Brillantes or were in the prejudicial
context in which petitioners claimed the statements were made. A reading of the
statements allegedly made by them reveals that they were just responding to
hypothetical questions in the event that probable cause would eventually be
found by the Joint Committee.
More importantly, there was no proof or even an allegation that the Joint
Committee itself, tasked to conduct the requisite preliminary investigation against
petitioners, made biased statements that would convey to the public that the
members were favoring a particular party. Neither did the petitioners show that
the President of the Philippines, the Secretary of Justice or the Chairman of the
Comelec intervened in the conduct of the preliminary investigation or exerted
undue pressure on their subordinates to tailor their decision with their public
declarations and adhere to a pre-determined result. 88 Moreover, insofar as the
Comelec is concerned, it must be emphasized that the constitutional body is
collegial. The act of the head of a collegial body cannot be considered as that of
the entire body itself. 89 In equating the alleged bias of the above-named officials
with that of the Joint Committee, there would be no arm of the government
credible enough to conduct a preliminary investigation. 90

It must also be emphasized that Joint Order No. 001-2011 created two bodies,
namely: (1) the Fact-Finding Team tasked to gather real, documentary and
testimonial evidence which can be utilized in the preliminary investigation to be
conducted by the Joint Committee; and (2) the Joint Committee mandated to
conduct preliminary investigation. It is, therefore, inaccurate to say that there is
only one body which acted as evidence-gatherer, prosecutor and judge.
cITAaD

C. Separation of powers
Petitioners claim that the Joint Panel is a new public office as shown by its
composition, the creation of its own Rules of Procedure, and the source of
funding for its operation. It is their position that the power of the DOJ to
investigate the commission of crimes and the Comelec's constitutional mandate
to investigate and prosecute violations of election laws do not include the power
to create a new public office in the guise of a joint committee. Thus, in creating
the Joint Panel, the DOJ and the Comelec encroached upon the power of the
Legislature to create public office.
Respondents dispute this and contend that the Joint Committee and Fact-Finding
Team are not new public offices, but merely collaborations between two existing
government agencies sharing concurrent jurisdiction. This is shown by the fact
that the members of the Joint Panel are existing officers of the DOJ and the
Comelec who exercise duties and functions that are already vested in them.
Again, we agree with respondents.
As clearly explained above, the Comelec is granted the power to investigate, and
where appropriate, prosecute cases of election offenses. This is necessary in
ensuring free, orderly, honest, peaceful and credible elections. On the other
hand, the DOJ is mandated to administer the criminal justice system in
accordance with the accepted processes thereof consisting in the investigation of
the crimes, prosecution of offenders and administration of the correctional
system. 91 It is specifically empowered to "investigate the commission of crimes,
prosecute offenders and administer the probation and correction system." 92 Also,
the provincial or city prosecutors and their assistants, as well as the national and
regional state prosecutors, are specifically named as the officers authorized to
conduct preliminary investigation. 93 Recently, the Comelec, through its duly

authorized legal offices, is given the power, concurrent with the other prosecuting
arms of the government such as the DOJ, to conduct preliminary investigation of
all election offenses. 94
Undoubtedly, it is the Constitution, statutes, and the Rules of Court and not the
assailed Joint Order which give the DOJ and the Comelec the power to conduct
preliminary investigation. No new power is given to them by virtue of the assailed
order. As to the members of the Joint Committee and Fact-Finding Team, they
perform such functions that they already perform by virtue of their current
positions as prosecutors of the DOJ and legal officers of the Comelec. Thus, in
no way can we consider the Joint Committee as a new public office.
caADSE

D. Independence of the Comelec

Petitioners claim that in creating the Joint Panel, the Comelec has effectively
abdicated its constitutional mandate to investigate and, where appropriate, to
prosecute cases of violation of election laws including acts or omissions
constituting election frauds, offenses, and malpractices in favor of the Executive
Department acting through the DOJ Secretary. Under the set-up, the Comelec
personnel is placed under the supervision and control of the DOJ. The
chairperson is a DOJ official. Thus, the Comelec has willingly surrendered its
independence to the DOJ and has acceded to share its exercise of judgment and
discretion with the Executive Branch.
We do not agree.
Section 1, 95 Article IX-A of the 1987 Constitution expressly describes all the
Constitutional Commissions as independent. Although essentially executive in
nature, they are not under the control of the President of the Philippines in the
discharge of their respective functions. 96 The Constitution envisions a truly
independent Comelec committed to ensure free, orderly, honest, peaceful, and
credible elections and to serve as the guardian of the people's sacred right of
suffrage the citizenry's vital weapon in effecting a peaceful change of
government and in achieving and promoting political stability. 97
Prior to the amendment of Section 265 of the Omnibus Election Code, the
Comelec had the exclusive authority to investigate and prosecute election
offenses. In the discharge of this exclusive power, the Comelec was given the

right to avail and, in fact, availed of the assistance of other prosecuting arms of
the government such as the prosecutors of the DOJ. By virtue of this continuing
authority, the state prosecutors and the provincial or city prosecutors were
authorized to receive the complaint for election offense and delegate the conduct
of investigation to any of their assistants. The investigating prosecutor, in turn,
would make a recommendation either to dismiss the complaint or to file the
information. This recommendation is subject to the approval of the state,
provincial or city prosecutor, who himself may file the information with the proper
court if he finds sufficient cause to do so, subject, however, to the accused's right
to appeal to the Comelec. 98
Moreover, during the past national and local elections, the Comelec issued
Resolutions 99 requesting the Secretary of Justice to assign prosecutors as
members of Special Task Forces to assist the Comelec in the investigation and
prosecution of election offenses. These Special Task Forces were created
because of the need for additional lawyers to handle the investigation and
prosecution of election offenses.
Clearly, the Comelec recognizes the need to delegate to the prosecutors the
power to conduct preliminary investigation. Otherwise, the prompt resolution of
alleged election offenses will not be attained. This delegation of power, otherwise
known as deputation, has long been recognized and, in fact, been utilized as an
effective means of disposing of various election offense cases. Apparently, as
mere deputies, the prosecutors played a vital role in the conduct of preliminary
investigation, in the resolution of complaints filed before them, and in the filing of
the informations with the proper court.
As pointed out by the Court in Barangay Association for National Advancement
and Transparency (BANAT) Party-List v. Commission on Elections, 100 the grant
of exclusive power to investigate and prosecute cases of election offenses to the
Comelec was not by virtue of the Constitution but by the Omnibus Election
Code which was eventually amended by Section 43 of R.A. 9369. Thus, the DOJ
now conducts preliminary investigation of election offenses concurrently with the
Comelec and no longer as mere deputies. If the prosecutors had been allowed to
conduct preliminary investigation and file the necessary information by virtue only
of a delegated authority, they now have better grounds to perform such function

by virtue of the statutory grant of authority. If deputation was justified because of

lack of funds and legal officers to ensure prompt and fair investigation and
prosecution of election offenses, the same justification should be cited to justify
the grant to the other prosecuting arms of the government of such concurrent
jurisdiction.
CITDES

In view of the foregoing disquisition, we find no impediment for the creation of a

Joint Committee. While the composition of the Joint Committee and Fact-Finding
Team is dominated by DOJ officials, it does not necessarily follow that the
Comelec is inferior. Under the Joint Order, resolutions of the Joint Committee
finding probable cause for election offenses shall still be approved by the
Comelec in accordance with the Comelec Rules of Procedure. This shows that
the Comelec, though it acts jointly with the DOJ, remains in control of the
proceedings. In no way can we say that the Comelec has thereby abdicated its
independence to the executive department.
The text and intent of the constitutional provision granting the Comelec the
authority to investigate and prosecute election offenses is to give the Comelec all
the necessary and incidental powers for it to achieve the objective of holding free,
orderly, honest, peaceful, and credible elections. 101 The Comelec should be
allowed considerable latitude in devising means and methods that will insure the
accomplishment of the great objective for which it was created. 102 We may not
agree fully with its choice of means, but unless these are clearly illegal or
constitute gross abuse of discretion, this Court should not interfere. 103 Thus,
Comelec Resolution No. 9266, approving the creation of the Joint Committee and
Fact-Finding Team, should be viewed not as an abdication of the constitutional
body's independence but as a means to fulfill its duty of ensuring the prompt
investigation and prosecution of election offenses as an adjunct of its mandate of
ensuring a free, orderly, honest, peaceful and credible elections.
Although it belongs to the executive department, as the agency tasked to
investigate crimes, prosecute offenders, and administer the correctional system,
the DOJ is likewise not barred from acting jointly with the Comelec. It must be
emphasized that the DOJ and the Comelec exercise concurrent jurisdiction in
conducting preliminary investigation of election offenses. The doctrine of
concurrent jurisdiction means equal jurisdiction to deal with the same subject

matter. 104 Contrary to the contention of the petitioners, there is no prohibition on

simultaneous exercise of power between two coordinate bodies. What is
prohibited is the situation where one files a complaint against a respondent
initially with one office (such as the Comelec) for preliminary investigation which
was immediately acted upon by said office and the re-filing of substantially the
same complaint with another office (such as the DOJ). The subsequent
assumption of jurisdiction by the second office over the cases filed will not be
allowed. Indeed, it is a settled rule that the body or agency that first takes
cognizance of the complaint shall exercise jurisdiction to the exclusion of the
others. 105As cogently held by the Court in Department of Justice v. Hon.
Liwag: 106
To allow the same complaint to be filed successively before two or more
investigative bodies would promote multiplicity of proceedings. It would
also cause undue difficulties to the respondent who would have to
appear and defend his position before every agency or body where the
same complaint was filed. This would lead hapless litigants at a loss as
to where to appear and plead their cause or defense.
HESIcT

There is yet another undesirable consequence. There is the distinct

possibility that the two bodies exercising jurisdiction at the same time
would come up with conflicting resolutions regarding the guilt of the
respondents.
Finally, the second investigation would entail an unnecessary
expenditure of public funds, and the use of valuable and limited
resources of Government, in a duplication of proceedings already started
with the Ombudsman. 107

None of these problems would likely arise in the present case. The Comelec
and the DOJ themselves agreed that they would exercise their concurrent
jurisdiction jointly. Although the preliminary investigation was conducted on the
basis of two complaints the initial report of the Fact-Finding Team and the
complaint of Senator Pimentel both complaints were filed with the Joint
Committee. Consequently, the complaints were filed with and the preliminary
investigation was conducted by only one investigative body. Thus, we find no
reason to disallow the exercise of concurrent jurisdiction jointly by those given
such authority. This is especially true in this case given the magnitude of the

crimes allegedly committed by petitioners. The joint preliminary investigation

also serves to maximize the resources and manpower of both the Comelec
and the DOJ for the prompt disposition of the cases.
Citing the principle of concurrent jurisdiction, petitioners insist that the
investigation conducted by the Comelec involving Radam and Martirizar bars the
creation of the Joint Committee for purposes of conducting another preliminary
investigation. In short, they claim that the exercise by the Comelec of its
jurisdiction to investigate excludes other bodies such as the DOJ and the Joint
Committee from taking cognizance of the case. Petitioners add that the
investigation should have been conducted also by the Comelec as the 2007
cases of Radam and Martirizar include several John Does and Jane Does.
We do not agree.
While the Comelec conducted the preliminary investigation against Radam,
Martirizar and other unidentified persons, it only pertains to election offenses
allegedly committed in North and South Cotabato. On the other hand, the
preliminary investigation conducted by the Joint Committee (involving GMA)
pertains to election offenses supposedly committed in Maguindanao. More
importantly, considering the broad power of the Comelec to choose the means of
fulfilling its duty of ensuring the prompt investigation and prosecution of election
offenses as discussed earlier, there is nothing wrong if the Comelec chooses to
work jointly with the DOJ in the conduct of said investigation. To reiterate, in no
way can we consider this as an act abdicating the independence of the
Comelec.
CAcDTI

Publication Requirement
In the conduct of preliminary investigation, the DOJ is governed by the Rules of
Court, while the Comelec is governed by the 1993 Comelec Rules of Procedure.
There is, therefore, no need to promulgate new Rules as may be complementary
to the DOJ and Comelec Rules.
As earlier discussed, considering that Joint Order No. 001-2011 only enables the
Comelec and the DOJ to exercise powers which are already vested in them
by the Constitution and other existing laws, it need not be published for it to be
valid and effective. A close examination of the Joint Committee's Rules of

Procedure, however, would show that its provisions affect the public. Specifically,
the following provisions of the Rules either restrict the rights of or provide
remedies to the affected parties, to wit: (1) Section 1 provides that "the Joint
Committee will no longer entertain complaints from the public as soon as the
Fact-Finding Team submits its final report, except for such complaints involving
offenses mentioned in the Fact-Finding Team's Final Report"; (2) Section 2 states
that "the Joint Committee shall not entertain a Motion to Dismiss"; and (3)
Section 5 provides that a Motion for Reconsideration may be availed of by the
aggrieved parties against the Joint Committee's Resolution. Consequently,
publication of the Rules is necessary.
The publication requirement covers not only statutes but administrative
regulations and issuances, as clearly outlined in Taada v. Tuvera: 108
We hold therefore that all statutes, including those of local application
and private laws, shall be published as a condition for their effectivity,
which shall begin fifteen days after publication unless a different
effectivity date is fixed by the legislature.
Covered by this rule are presidential decrees and executive orders
promulgated by the President in the exercise of legislative powers
whenever the same are validly delegated by the legislature or, at
present, directly conferred by the Constitution. Administrative rules and
regulations must also be published if their purpose is to enforce or
implement existing law pursuant also to a valid delegation.
cCSHET

Interpretative regulations and those merely internal in nature, that is,

regulating only the personnel of the administrative agency and not the
public, need not be published. Neither is publication required of the so
called letters of instructions issued by administrative superiors
concerning the rules or guidelines to be followed by their subordinates in
the performance of their duties. 109

As opposed to Honasan II v. The Panel of Investigating Prosecutors of the

Department of Justice, 110 where the Court held that OMB-DOJ Joint Circular No.
95-001 is only an internal arrangement between the DOJ and the Office of the
Ombudsman outlining the authority and responsibilities among prosecutors of
both offices in the conduct of preliminary investigation, the assailed Joint

Committee's Rules of Procedure regulate not only the prosecutors of the DOJ
and the Comelec but also the conduct and rights of persons, or the public in
general. The publication requirement should, therefore, not be ignored.
Publication is a necessary component of procedural due process to give
as wide publicity as possible so that all persons having an interest in the
proceedings may be notified thereof. 111 The requirement of publication is
intended to satisfy the basic requirements of due process. It is imperative for it
will be the height of injustice to punish or otherwise burden a citizen for the
transgressions of a law or rule of which he had no notice whatsoever. 112
Nevertheless, even if the Joint Committee's Rules of Procedure is ineffective for
lack of publication, the proceedings undertaken by the Joint Committee are not
rendered null and void for that reason, because the preliminary investigation was
conducted by the Joint Committee pursuant to the procedures laid down in Rule
112 of the Rules on Criminal Procedure and the 1993 Comelec Rules of
Procedure.
Validity
of
Preliminary Investigation

the

Conduct

of

In her Supplemental Petition, 113 GMA outlines the incidents that took place after
the filing of the instant petition, specifically the issuance by the Joint Committee
of the Joint Resolution, the approval with modification of such resolution by the
Comelec and the filing of information and the issuance of a warrant of arrest by
the RTC. With these supervening events, GMA further assails the validity of the
proceedings that took place based on the following additional grounds: (1) the
undue and unbelievable haste attending the Joint Committee's conduct of the
preliminary investigation, its resolution of the case, and its referral to and
approval by the Comelec, taken in conjunction with the statements from the
Office of the President, demonstrate a deliberate and reprehensible pattern of
abuse of inalienable rights and a blatant disregard of the envisioned integrity and
independence of the Comelec; (2) as it stands, the creation of the Joint
Committee was for the singular purpose of railroading the proceedings in the
prosecution of the petitioner and in flagrant violation of her right to due process
and equal protection of the laws; (3) the proceedings of the Joint Committee
cannot be considered impartial and fair, considering that respondents have acted

as law enforcers, who conducted the criminal investigation, gathered evidence

and thereafter ordered the filing of complaints, and at the same time authorized
preliminary investigation based on the complaints they caused to be filed; (4) the
Comelec became an instrument of oppression when it hastily approved the
resolution of the Joint Committee even if two of its members were in no position
to cast their votes as they admitted to not having yet read the voluminous records
of the cases; and (5) flagrant and repeated violations of her right to due process
at every stage of the proceedings demonstrate a deliberate attempt to single out
petitioner through the creation of the Joint Committee. 114
In their Supplement to the Consolidated Comment, 115 respondents accuse
petitioners of violating the rule against forum shopping. They contend that in filing
the Supplemental Petition before the Court, the Urgent Omnibus Motion Ad
Cautelam with the RTC, and the Motion to Vacate Ad Cautelam with the
Comelec, GMA raises the common issue of whether or not the proceedings
before the Joint Committee and the Comelec are null and void for violating the
Constitution. Respondents likewise claim that the issues raised in the
supplemental petition are factual which is beyond the power of this Court to
decide.
TIDaCE

We cannot dismiss the cases before us on the ground of forum shopping.

Forum shopping is the act of a party against whom an adverse judgment has
been rendered in one forum, of seeking another and possibly favorable opinion in
another forum other than by appeal or the special civil action
of certiorari. 116 There can also be forum shopping when a party institutes two or
more suits in different courts, either simultaneously or successively, in order to
ask the courts to rule on the same and related causes and/or to grant the same
or substantially the same reliefs on the supposition that one or the other court
would make a favorable disposition or increase a party's chances of obtaining a
favorable decision or action. 117
Indeed, petitioner GMA filed a Supplemental Petition before the Court, an Urgent
Omnibus Motion Ad Cautelam before the RTC, and a Motion to Vacate Ad
Cautelambefore the Comelec, emphasizing the unbelievable haste committed by
the Joint Committee and the Comelec in disposing of the cases before them.

However, a plain reading of the allegations in GMA's motion before the RTC
would show that GMA raised the issue of undue haste in issuing the Joint
Resolution only in support of her prayer for the trial court to hold in abeyance the
issuance of the warrant of arrest, considering that her motion for reconsideration
of the denial of her motion to be furnished copies of documents was not yet acted
upon by the Joint Committee. If at all the constitutional issue of violation of due
process was raised, it was merely incidental. More importantly, GMA raised in her
motion with the RTC the finding of probable cause as she sought the judicial
determination of probable cause which is not an issue in the petitions before us.
GMA's ultimate prayer is actually for the court to defer the issuance of the warrant
of arrest. Clearly, the reliefs sought in the RTC are different from the reliefs
sought in this case. Thus, there is no forum shopping.
With respect to the Motion to Vacate Ad Cautelam filed with the Comelec, while
the issues raised therein are substantially similar to the issues in the
supplemental petition which, therefore, strictly speaking, warrants outright
dismissal on the ground of forum shopping, we cannot do so in this case in light
of the due process issues raised by GMA. 118 It is worthy to note that the main
issues in the present petitions are the constitutionality of the creation of the Joint
Panel and the validity of the proceedings undertaken pursuant thereto for alleged
violation of the constitutional right to due process. In questioning the propriety of
the conduct of the preliminary investigation in her Supplemental Petition, GMA
only raises her continuing objection to the exercise of jurisdiction of the Joint
Committee and the Comelec. There is, therefore, no impediment for the Court to
rule on the validity of the conduct of preliminary investigation.
In Uy v. Office of the Ombudsman, 119 the Court explained the nature of
preliminary investigation, to wit:
TaISEH

A preliminary investigation is held before an accused is placed on trial to

secure the innocent against hasty, malicious, and oppressive
prosecution; to protect him from an open and public accusation of a
crime, as well as from the trouble, expenses, and anxiety of a public trial.
It is also intended to protect the state from having to conduct useless and
expensive trials. While the right is statutory rather than constitutional, it is
a component of due process in administering criminal justice. The right
to have a preliminary investigation conducted before being bound for trial

and before being exposed to the risk of incarceration and penalty is not a
mere formal or technical right; it is a substantive right. To deny the
accused's claim to a preliminary investigation is to deprive him of the full
measure of his right to due process. 120

A preliminary investigation is the crucial sieve in the criminal justice system which
spells for an individual the difference between months if not years of agonizing
trial and possibly jail term, on the one hand, and peace of mind and liberty, on the
other hand. Thus, we have characterized the right to a preliminary investigation
as not a mere formal or technical right but a substantive one, forming part of due
process in criminal justice. 121
In a preliminary investigation, the Rules of Court guarantee the petitioners basic
due process rights such as the right to be furnished a copy of the complaint, the
affidavits, and other supporting documents, and the right to submit counteraffidavits, and other supporting documents in her defense. 122 Admittedly, GMA
received the notice requiring her to submit her counter-affidavit. Yet, she did not
comply, allegedly because she could not prepare her counter-affidavit. She
claimed that she was not furnished by Senator Pimentel pertinent documents that
she needed to adequately prepare her counter-affidavit.
In her Omnibus Motion Ad Cautelam 123 to require Senator Pimentel to furnish
her with documents referred to in his complaint-affidavit and for production of
election documents as basis for the charge of electoral sabotage, GMA prayed
that the Joint Committee issue an Order directing the Fact-Finding Team and
Senator Pimentel to furnish her with copies of the following documents:
a. Complaint-affidavit and other relevant documents of Senator Aquilino
Pimentel III filed before the Commission on Elections against
Attys. Lilia Suan-Radam and Yogie Martirizar, as well as the
Informations filed in the Regional Trial Court of Pasay City, Branch
114 in Criminal Case Nos. R-PSU-11-03190-CR to R-PSU-1103200-CR.
b. Records in the petitions filed by complainant Pimentel before the
National Board of Canvassers, specifically in NBC Case Nos. 07162, 07-168, 07-157, 07-159, 07-161 and 07-163.
TaEIAS

c. Documents which served as basis in the allegations of "Significant

findings specific to the protested municipalities in the Province of
Maguindanao."
d. Documents which served as basis in the allegations of "Significant
findings specific to the protested municipalities in the Province of
Lanao del Norte."
e. Documents which served as basis in the allegations of "Significant
findings specific to the protested municipalities in the Province of
Shariff Kabunsuan."
f. Documents which served as basis in the allegations of "Significant
findings specific to the protested municipalities in the Province of
Lanao del Sur."
g. Documents which served as basis in the allegations of "Significant
findings specific to the protested municipalities in the Province of
Sulu."
h. Documents which served as basis in the allegations of "Significant
findings specific to the protested municipalities in the Province of
Basilan."
i. Documents which served as basis in the allegations of "Significant
findings specific to the protested municipalities in the Province of
Sultan Kudarat." 124

GMA likewise requested the production of election documents used in the

Provinces of South and North Cotabato and Maguindanao. 125
The Joint Committee, however, denied GMA's motion which carried with it the
denial to extend the filing of her counter-affidavit. Consequently, the cases were
submitted for resolution sans GMA's and the other petitioners' counter-affidavits.
This, according to GMA, violates her right to due process of law.
EHDCAI

We do not agree.
GMA's insistence of her right to be furnished the above-enumerated documents
is based on Section 3 (b), Rule 112 of the Rules on Criminal Procedure, which
reads:

(b) . . .
The respondent shall have the right to examine the evidence submitted
by the complainant which he may not have been furnished and to
copy them at his expense. If the evidence is voluminous, the
complainant may be required to specify those which he intends to
present against the respondent, and these shall be made available for
examination or copying by the respondent at his expense,
Objects as evidence need not be furnished a party but shall be made
available for examination, copying or photographing at the expense of
the requesting party. 126

Section 6 (a), Rule 34 of the Comelec Rules of Procedure also grants the
respondent such right of examination, to wit:
Sec. 6. Conduct of preliminary investigation. (a) If on the basis of the
complaint, affidavits and other supporting evidence, the investigating
officer finds no ground to continue with the inquiry, he shall recommend
the dismissal of the complaint and shall follow the procedure prescribed
in Sec. 8 (c) of this Rule. Otherwise, he shall issue a subpoena to the
respondent, attaching thereto a copy of the complaint, affidavits and
other supporting documents giving said respondent ten (10) days from
receipt within which to submit counter-affidavits and other supporting
documents. The respondent shall have the right to examine all other
evidence submitted by the complainant. 127

Clearly from the above-quoted provisions, the subpoena issued against

respondent [therein] should be accompanied by a copy of the complaint and the
supporting affidavits and documents. GMA also has the right to examine
documents but such right of examination is limited only to the documents or
evidence submitted by the complainants (Senator Pimentel and the Fact-Finding
Team) which she may not have been furnished and to copy them at her
expense.
AEDCHc

While it is true that Senator Pimentel referred to certain election documents

which served as bases in the allegations of significant findings specific to the
protested municipalities involved, there were no annexes or attachments to the
complaint filed. 128 As stated in the Joint Committee's Order dated November 15,

2011 denying GMA's Omnibus Motion Ad Cautelam, Senator Pimentel was

ordered to furnish petitioners with all the supporting evidence. 129 However,
Senator Pimentel manifested that he was adopting all the affidavits attached to
the Fact-Finding Team's Initial Report. 130 Therefore, when GMA was furnished
with the documents attached to the Initial Report, she was already granted the
right to examine as guaranteed by the Comelec Rules of Procedure and the
Rules on Criminal Procedure. Those were the only documents submitted by the
complainants to the Committee. If there are other documents that were referred
to in Senator Pimentel's complaint but were not submitted to the Joint Committee,
the latter considered those documents unnecessary at that point (without
foreclosing the relevance of other evidence that may later be presented during
the trial) 131 as the evidence submitted before it were considered adequate to find
probable cause against her. 132 Anyway, the failure of the complainant to submit
documents supporting his allegations in the complaint may only weaken his
claims and eventually works for the benefit of the respondent as these merely are
allegations unsupported by independent evidence.
We must, however, emphasize at this point that during the preliminary
investigation, the complainants are not obliged to prove their cause beyond
reasonable doubt. It would be unfair to expect them to present the entire
evidence needed to secure the conviction of the accused prior to the filing of
information. 133 A preliminary investigation is not the occasion for the full and
exhaustive display of the parties' respective evidence but the presentation only of
such evidence as may engender a well-grounded belief that an offense has been
committed and that the accused is probably guilty thereof and should be held for
trial. 134 Precisely there is a trial to allow the reception of evidence for the
prosecution in support of the charge. 135
With the denial of GMA's motion to be furnished with and examine the documents
referred to in Senator Pimentel's complaint, GMA's motion to extend the filing of
her counter-affidavit and countervailing evidence was consequently denied.
Indeed, considering the nature of the crime for which GMA was subjected to
preliminary investigation and the documents attached to the complaint, it is
incumbent upon the Joint Committee to afford her ample time to examine the
documents submitted to [the Joint Committee] in order that she would be able to

prepare her counter-affidavit. She cannot, however, insist to examine documents

not in the possession and custody of the Joint Committee nor submitted by the
complainants. Otherwise, it might cause undue and unnecessary delay in the
disposition of the cases. This undue delay might result in the violation of the right
to a speedy disposition of cases as enshrined in Section 16, Article III of the
Constitution which states that "all persons shall have the right to a speedy
disposition of their cases before all judicial, quasi-judicial, or administrative
bodies." The constitutional right to speedy disposition of cases is not limited to
the accused in criminal proceedings but extends to all parties in all cases,
including civil and administrative cases, and in all proceedings, including judicial
and quasi-judicial hearings. 136 Any party to a case has the right to demand on all
officials tasked with the administration of justice to expedite its
disposition. 137Society has a particular interest in bringing swift prosecutions, and
the society's representatives are the ones who should protect that interest. 138
Even assuming for the sake of argument that the denial of GMA's motion to be
furnished with and examine the documents referred to in Senator Pimentel's
complaint carried with it the denial to extend the filing of her counter-affidavit and
other countervailing evidence rendering the preliminary investigation irregular,
such irregularity would not divest the RTC of jurisdiction over the case and would
not nullify the warrant of arrest issued in connection therewith, considering that
Informations had already been filed against petitioners, except Mike Arroyo. This
would only compel us to suspend the proceedings in the RTC and remand the
case to the Joint Committee so that GMA could submit her counter-affidavit and
other countervailing evidence if she still opts to. However, to do so would hold
back the progress of the case which is anathema to the accused's right to speedy
disposition of cases.
DAEaTS

It is well settled that the absence [or irregularity] of preliminary investigation does
not affect the court's jurisdiction over the case. Nor does it impair the validity of
the criminal information or render it defective. Dismissal is not the
remedy. 139 Neither is it a ground to quash the information or nullify the order of
arrest issued against the accused or justify the release of the accused from
detention. 140 The proper course of action that should be taken is to hold in

abeyance the proceedings upon such information and to remand the case for the
conduct of preliminary investigation. 141
In the landmark cases of Cojuangco, Jr. v. Presidential Commission on Good
Government [PCGG] 142 and Allado v. Diokno, 143 we dismissed the criminal
cases and set aside the informations and warrants of arrest. In Cojuangco, we
dismissed the criminal case because the information was filed by the PCGG
which we declared to be unauthorized to conduct the preliminary investigation
and, consequently, file the information as it did not possess the cold neutrality of
an impartial judge. In Allado, we set aside the warrant of arrest issued against
petitioners therein and enjoined the trial court from proceeding further for lack of
probable cause. For one, there was serious doubt on the reported death of the
victim in that case since the corpus delicti had not been established nor had his
remains been recovered; and based on the evidence submitted, there was
nothing to incriminate petitioners therein. In this case, we cannot reach the same
conclusion because the Information filed before the RTC of Pasay City was filed
by the Comelec en banc which had the authority to file the information for
electoral sabotage and because the presence or absence of probable cause is
not an issue herein. As can be gleaned from their assignment of errors/issues,
petitioners did not question the finding of probable cause in any of their
supplemental petitions. It was only in GMA's memorandum where she belatedly
included a discussion on the "insufficiency" of the evidence supporting the finding
of probable cause for the filing of the Information for electoral sabotage against
her. 144 A closer look at her arguments, however, would show that they were
included only to highlight the necessity of examining the election documents
GMA requested to see before she could file her counter-affidavit. At any rate,
since GMA failed to submit her counter-affidavit and other countervailing
evidence within the period required by the Joint Committee, we cannot excuse
her from non-compliance.
There might have been overzealousness on the part of the Joint Committee in
terminating the investigation, endorsing the Joint Resolution to the Comelec for
approval, and in filing the information in court. However, speed in the conduct of
proceedings by a judicial or quasi-judicial officer cannot per se be instantly
attributed to an injudicious performance of functions. 145 The orderly

administration of justice remains the paramount consideration with particular

regard to the peculiar circumstances of each case. 146 To be sure, petitioners
were given the opportunity to present countervailing evidence. Instead of
complying with the Joint Committee's directive, several motions were filed but
were denied by the Joint Committee. Consequently, petitioners' right to submit
counter-affidavit and countervailing evidence was forfeited. Taking into account
the constitutional right to speedy disposition of cases and following the
procedures set forth in the Rules on Criminal Procedure and the Comelec Rules
of Procedure, the Joint Committee finally reached its conclusion and referred the
case to the Comelec. The latter, in turn, performed its task and filed the
information in court. Indeed, petitioners were given the opportunity to be heard.
They even actively participated in the proceedings and in fact filed several
motions before the Joint Committee. Consistent with the constitutional mandate
of speedy disposition of cases, unnecessary delays should be avoided.
AIaDcH

Finally, we take judicial notice that on February 23, 2012, GMA was already
arraigned and entered a plea of "not guilty" to the charge against her and
thereafter filed a Motion for Bail which has been granted. Considering that the
constitutionality of the creation of the Joint Panel is sustained, the actions of the
Joint Committee and Fact-Finding Team are valid and effective. As the
information was filed by the Commission authorized to do so, its validity is
sustained. Thus, we consider said entry of plea and the Petition for Bail waiver on
the part of GMA of her right to submit counter-affidavit and countervailing
evidence before the Joint Committee, and recognition of the validity of the
information against her. Her act indicates that she opts to avail of judicial
remedies instead of the executive remedy of going back to the Joint Committee
for the submission of the counter-affidavit and countervailing evidence. Besides,
as discussed earlier, the absence [or irregularity] of preliminary investigation does
not affect the court's jurisdiction over the case nor does it impair the validity of the
criminal information or render it defective.
It must be stressed, however, that this supervening event does not render the
cases before the Court moot and academic as the main issues raised by
petitioners are the constitutionality of the creation of the Joint Committee and the

Fact-Finding Team and the validity of the proceedings undertaken pursuant to

their respective mandates.
The Court notes that the Joint Committee and the Comelec have not disposed of
the cases of the other respondents subjects of the preliminary investigation as
some of them were subjected to further investigation. In order to remove the
cloud of doubt that pervades that petitioners are being singled out, it is to the best
interest of all the parties concerned that the Joint Committee and the Comelec
terminate the proceedings as to the other respondents therein and not make a
piecemeal disposition of the cases.
IcESaA

A peripheral issue which nonetheless deserves our attention is the question

about the credibility of the Comelec brought about by the alleged professional
relationship between Comelec Chairman Brillantes on one hand and the
complainant Senator Pimentel and Fernando Poe, Jr. (FPJ), GMA's rival in the
2004 elections, on the other hand; and by the other Commissioners' 147 reasons
for their partial inhibition. To be sure, Chairman Brillantes' relationship with FPJ
and Senator Pimentel is not one of the grounds for the mandatory disqualification
of a Commissioner. At its most expansive, it may be considered a ground for
voluntary inhibition which is indeed discretionary as the same was primarily a
matter of conscience and sound discretion on the part of the Commissioner judge
based on his or her rational and logical assessment of the case. 148 Bare
allegations of bias and prejudice are not enough in the absence of clear and
convincing evidence to overcome the presumption that a judge will undertake his
noble role to dispense justice according to law and evidence without fear or
favor. 149 It being discretionary and since Commissioner Brillantes was in the best
position to determine whether or not there was a need to inhibit from the case, his
decision to participate in the proceedings, in view of higher interest of justice,
equity and public interest, should be respected. While a party has the right to
seek the inhibition or disqualification of a judge (or prosecutor or Commissioner)
who does not appear to be wholly free, disinterested, impartial, and independent
in handling the case, this right must be weighed with his duty to decide cases
without fear of repression. 150
Indeed, in Javier v. Comelec, 151 the Court set aside the Comelec's decision
against Javier when it was disclosed that one of the Commissioners who had

decided the case was a law partner of Javier's opponent and who had refused to
excuse himself from hearing the case. Javier, however, is not applicable in this
case. First, the cited case involves the Comelec's exercise of its adjudicatory
function as it was called upon to resolve the propriety of the proclamation of the
winner in the May 1984 elections for Batasang Pambansa of Antique. Clearly, the
grounds for inhibition/disqualification were applicable. Second, the case arose at
the time where the purity of suffrage has been defiled and the popular will
scorned through the confabulation of those in authority. 152 In other words, the
controversy arose at the time when the public confidence in the Comelec was
practically nil because of its transparent bias in favor of the
administration. 153 Lastly, in determining the propriety of the decision rendered by
the Comelec, the Court took into consideration not only the relationship (being
former partners in the law firm) between private respondents therein, Arturo F.
Pacificador, and then Comelec Commissioner Jaime Opinion (Commissioner
Opinion) but also the general attitude of the Comelec toward the party in power at
that time. Moreover, the questioned Comelec decision was rendered only by a
division of the Comelec. The Court thus concluded in Javier that Commissioner
Opinion's refusal to inhibit himself divested the Comelec's Second Division of the
necessary vote for the questioned decision and rendered the proceedings null
and void. 154
On the contrary, the present case involves only the conduct of preliminary
investigation and the questioned resolution is an act of the Comelec En
Banc where all the Commissioners participated and more than a majority (even if
Chairman Brillantes is excluded) voted in favor of the assailed Comelec
resolution. Unlike in 1986, public confidence in the Comelec remains. The
Commissioners have already taken their positions in light of the claim of "bias
and partiality" and the causes of their partial inhibition. Their positions should be
respected confident that in doing so, they had the end in view of ensuring that the
credibility of the Commission is not seriously affected.
To recapitulate, we find and so hold that petitioners failed to establish any
constitutional or legal impediment to the creation of the Joint DOJ-Comelec
Preliminary Investigation Committee and Fact-Finding Team.

First, while GMA and Mike Arroyo were among those subjected to preliminary
investigation, not all respondents therein were linked to GMA; thus, Joint Order
No. 001-2011 does not violate the equal protection clause of the Constitution.
Second, the due process clause is likewise not infringed upon by the alleged
prejudgment of the case as petitioners failed to prove that the Joint Panel itself
showed such bias and partiality against them. Neither was it shown that the
Justice Secretary herself actually intervened in the conduct of the preliminary
investigation. More importantly, considering that the Comelec is a collegial body,
the perceived prejudgment of Chairman Brillantes as head of the Comelec cannot
be considered an act of the body itself.
CaHAcT

Third, the assailed Joint Order did not create new offices because the Joint
Committee and Fact-Finding Team perform functions that they already perform by
virtue of the Constitution, the statutes, and the Rules of Court.
Fourth, in acting jointly with the DOJ, the Comelec cannot be considered to have
abdicated its independence in favor of the executive branch of government.
Resolution No. 9266 was validly issued by the Comelec as a means to fulfill its
duty of ensuring the prompt investigation and prosecution of election offenses as
an adjunct of its mandate of ensuring a free, orderly, honest, peaceful, and
credible elections. The role of the DOJ in the conduct of preliminary investigation
of election offenses has long been recognized by the Comelec because of its
lack of funds and legal officers to conduct investigations and to prosecute such
cases on its own. This is especially true after R.A. No. 9369 vested in the
Comelec and the DOJ the concurrent jurisdiction to conduct preliminary
investigation of all election offenses. While we uphold the validity of Comelec
Resolution No. 9266 and Joint Order No. 001-2011, we declare the Joint
Committee's Rules of Procedure infirm for failure to comply with the publication
requirement. Consequently, Rule 112 of the Rules on Criminal Procedure and the
1993 Comelec Rules of Procedure govern.
Fifth, petitioners were given the opportunity to be heard. They were furnished a
copy of the complaint, the affidavits, and other supporting documents submitted
to the Joint Committee and they were required to submit their counter-affidavit
and countervailing evidence. As to petitioners Mike Arroyo and Abalos, the

pendency of the cases before the Court does not automatically suspend the
proceedings before the Joint Committee nor excuse them from their failure to file
the required counter-affidavits. With the foregoing disquisitions, we find no reason
to nullify the proceedings undertaken by the Joint Committee and the Comelec in
the electoral sabotage cases against petitioners.
WHEREFORE, premises considered, the petitions and supplemental petitions
are DISMISSED. Comelec Resolution No. 9266 dated August 2, 2011, Joint
Order No. 001-2011 dated August 15, 2011, and the Fact-Finding Team's Initial
Report dated October 20, 2011, are declared VALID. However, the Rules of
Procedure on the Conduct of Preliminary Investigation on the Alleged Election
Fraud in the 2004 and 2007 National Elections is declared INEFFECTIVE for lack
of publication.
cAaETS

In view of the constitutionality of the Joint Panel and the proceedings having been
conducted in accordance with Rule 112 of the Rules on Criminal Procedure and
Rule 34 of the Comelec Rules of Procedure, the conduct of the preliminary
investigation is hereby declared VALID.
Let the proceedings in the Regional Trial Court of Pasay City, Branch 112, where
the criminal cases for electoral sabotage against petitioners GMA and Abalos are
pending, proceed with dispatch.
SO ORDERED.
Velasco, Jr., Bersamin, Del Castillo, Perez, Mendoza, Reyes and PerlasBernabe, JJ., concur.
Sereno, C.J., I concur, except for the part where J. Carpio dissents.
Carpio, J., see separate concurring & dissenting opinion.
Leonardo-de Castro, J., I join the dissenting and concurring opinion of Justice
Brion.
Brion, J., see my dissenting & concurring opinion.
Abad, J., I join Justice A. D. Brion in his dissent.
Villarama, Jr., J., is on official leave.

Separate Opinions
BRION, J., dissenting and concurring:
The Boiling Frog
Place a frog in boiling water, and
it will jump out to save itself;
But place it in cold water
and slowly apply heat,
and the frog will boil to death. 1
I open this Dissenting and Concurring Opinion with the tale of the metaphorical
"boiling frog" to warn the Court and the readers about the deeper implications of
this case a case that involves a major breach of the Philippine
Constitution where the frog stands for the independence of the
Commission on Elections (COMELEC).
As one American article on the metaphor puts it, 2 "[I]f people become acclimated
to some policy or state of affairs over a sufficient period of time, they come to
accept the policy or state of affairs as normal. . . The Boiling Frog Syndrome
explains how the American public has come to accept breaches of Constitutional
government that would have provoked armed resistance a hundred years ago.
The public has grown accustomed to these breaches, and to the federal
government conducting myriad activities that are nowhere authorized by the
Constitution and accepts them as normal." 3
In the Philippine setting, the various Philippine Constitutions have expressly
guaranteed independence to the Judiciary, to the Office of the Ombudsman, and
to the Constitutional Commissions, one of which is the COMELEC. The
independence is mainly against the intrusion of the Executive, 4 the government
department that implements the laws passed by the Legislature and that
administered and controlled the conduct of elections in the past. 5 The Judiciary
has so far fully and zealously guarded the role of these institutions and their
independence in the constitutional scheme, but the nation cannot rest on this
record and must ever be vigilant.

While gross and patent violations of the guarantee of independence will not sit
well with, and will not be accepted by, the people, particularly in this age of
information and awareness, ways other than the gross and the patent, exist to
subvert the constitutional guarantee of independence. The way is through small,
gradual andincremental changes boiling the frog that people will not
notice, but which, over time, will slowly and surely result in the subjugation of the
independent institutions that the framers of the Constitution established to ensure
balance and stability in a democratic state where the separation of powers
among the three branches of government, and checks and balances, are the
dominant rules.
AEIHCS

This is what the present case is all about a subtle change that people
will hardly notice except upon close and critical study, and until they look
around them for other subtle changes in other areas of governance, all of
them put into place with the best professed intentions but tending to
subvert the structures that the framers of the Constitution very carefully
and thoughtfully established. Unless utmost vigilance is observed and
subtle subverting changes are immediately resisted, the people may never
fully know how their cherished democratic institutions will come to naught;
through slow and gradual weakening, these democratic institutions like
the frog will end up dead. Sadly, this process of gradualism is what the
Court allows in the present case.
It is in this context that I filed this Dissent from the majority's conclusion
that COMELEC Resolution No. 9266 and Joint Order No. 001-2011 are valid
and constitutional, although I ultimately concur with the majority's
resulting conclusion, based on non-constitutional grounds, that the
petitions should be dismissed. I maintain that these assailed issuances are
fatally defective and should be struck down for violating the constitutionally
guaranteed independence ofCOMELEC.
In its rulings, the majority held that the petitioners failed to establish any
constitutional or legal impediment to the creation of the Joint Department of
Justice
(DOJ)-COMELEC
Preliminary
Investigation
Committee (Joint
Committee) and the Fact-Finding Team. It likewise held that the petitioners'
issues relating to equal protection, due process, separation of powers,

requirement of publication, and bias on the part of COMELEC Chairman Sixto

Brillantes are unmeritorious. 6 The fountainhead of all these issues, however, is
the validity of the creation of, and the exercise of their defined functions by, the
DOJ-COMELEC committees; the issues the majority ruled upon all spring from
the validity of this creation. On this point, I completely disagree with the majority
and its ruling that the COMELEC did not abdicate its functions and independence
in its joint efforts with the DOJ.
I submit that in the Resolutions creating the committees and providing for
the exercise of their power to conduct fact-finding and preliminary
investigation in the present case, the COMELEC unlawfully ceded its
decisional independence by sharing it with the DOJ an agency under the
supervision, control and influence of the President of the Philippines.
The discussions below fully explain the reasons for my conclusion.

DcCHTa

I. The Independence of the COMELEC

a. Historical Roots
The establishment of the COMELEC traces its roots to an amendment of
the 1935 Constitution in 1940, prompted by dissatisfaction with the manner
elections were conducted then in the country. 7 Prior to this development, the
supervision of elections was previously undertaken by the Department of Interior,
pursuant to Section 2, Commonwealth Act No. 357 of the First National
Assembly. The proposal to amend the Constitution was subsequently embodied
in Resolution No. 73, Article III of the Second National Assembly, adopted on
April 11, 1940, and was later approved on December 2, 1940 as Article X of
the 1935 Constitution: 8
The administrative control of elections now exercised by the Secretary
of Interior is what is sought to be transferred to the Commission on
Elections by the proposed constitutional amendment now under
discussion. The courts and the existing Electoral Commission
(electoral tribunal) retain their original powers over contested
elections. 9

This development was described as "a landmark event in Philippine political

history" 10 that put in place a "novel electoral device designed to have the entire
charge of the electoral process of the nation." 11 A legal commentator noted:
The proposition was to entrust the conduct of our elections to an
independent entity whose sole work is to administer and enforce the
laws on elections, protect the purity of the ballot and safeguard the free
exercise of the right of suffrage. The Commission on Elections was
really existing before 1940 as a creation of a statute passed by the
National Assembly; but it necessitated a constitutional amendment
to place it outside the influence of political parties and the control
of the legislative, executive and judicial departments of the
government. It was intended to be an independent administrative
tribunal, co-equal with other departments of the government in
respect to the powers vested in it. 12 [emphasis and underscoring
supplied]

Nine years later, the COMELEC's independence was tested in Nacionalista Party
v. Bautista, 13 where the Court dealt with the question of whether the designation,
by then President Elpidio Quirino, of Solicitor General Felix Angelo Bautista as
Acting Member of the COMELEC pending the appointment of a permanent
member to fill the vacancy caused by the retirement of Commissioner Francisco
Enage was unlawful and unconstitutional. The Court ruled that the designation
was repugnant to the Constitution which guarantees the independence of the
COMELEC, and said:
Under the Constitution, the Commission on Elections is an independent
body or institution (Article X of the Constitution), just as the General
Auditing Office is an independent office (Article XI of the Constitution).
Whatever may be the nature of the functions of the Commission on
Elections, the fact is that the framers of the Constitution wanted it to
be independent from the other departments of the Government. . . .
By the very nature of their functions, the members of the Commission on
Elections must be independent. They must be made to feel that they are
secured in the tenure of their office and entitled to fixed emoluments
during their incumbency (economic security), so as to make them
impartial in the performance of their functions their powers and duties.

They are not allowed to do certain things, such as to engage in the

practice of a profession; to intervene, directly or indirectly, in the
management or control of any private enterprise; or to be financially
interested in any contract with the Government or any subdivision or
instrumentality thereof (sec. 3, Article X, of the Constitution). These
safeguards are all conducive or tend to create or bring about a condition
or state of mind that will lead the members of the Commission to perform
with impartiality their great and important task and functions. That
independence and impartiality may be shaken and destroyed by a
designation of a person or officer to act temporarily in the
Commission on Elections. And, although Commonwealth Act No.
588 provides that such temporary designation "shall in no case continue
beyond the date of the adjournment of the regular session of the
National Assembly (Congress) following such designation," still such limit
to the designation does not remove the cause for the impairment of the
independence of one designated in a temporary capacity to the
Commission on Elections. It would be more in keeping with the
intent, purpose and aim of the framers of the Constitution to
appoint a permanent Commissioner than to designate one to act
temporarily. Moreover, the permanent office of the respondent may
not, from the strict legal point of view, be incompatible with the
temporary one to which he has been designated, tested by the
nature and character of the functions he has to perform in both
offices, but in a broad sense there is an incompatibility, because
his duties and functions as Solicitor General require that all his
time be devoted to their efficient performance. Nothing short of that is
required and expected of him. 14 [emphasis ours]
aDTSHc

Thus, as early as 1949, this Court has started to guard with zeal the COMELEC's
independence, never losing sight of the crucial reality that its "independence
[is] the principal justification for its creation." 15 The people's protectionist
policy towards the COMELEC has likewise never since wavered and, in fact,
has prevailed even after two amendments of our Constitution in 1973 and
1987 an enduring policy highlighted by then Associate Justice Reynato Puno
in his concurring opinion inAtty. Macalintal v. COMELEC: 16

The Commission on Elections (COMELEC) is a constitutional

body exclusively charged with the enforcement and administration of
"all laws and regulations relative to the conduct of an election, plebiscite,
initiative, referendum, and recall," and is invested with the power to
decide all questions affecting elections save those involving the right to
vote.
Given its important role in preserving the sanctity of the right of suffrage,
the COMELEC was purposely constituted as a body separate from
the
executive,
legislative,
and
judicial
branches
of
government. Originally, the power to enforce our election laws was
vested with the President and exercised through the Department of the
Interior. According to Dean Sinco, however, the view ultimately
emerged that an independent body could better protect the right of
suffrage of our people. Hence, the enforcement of our election laws,
while an executive power, was transferred to the COMELEC.
The shift to a modified parliamentary system with the adoption of
the 1973 Constitution did not alter the character of COMELEC as an
independent body. Indeed, a "definite tendency to enhance and
invigorate the role of the Commission on Elections as the independent
constitutional body charged with the safeguarding of free, peaceful and
honest
elections"
has
been
observed.
The 1973
Constitution broadened the power of the COMELEC by making it
the sole judge of all election contests relating to the election, returns
and qualifications of members of the national legislature and elective
provincial and city officials. Thus, the COMELEC was given judicial
power aside from its traditional administrative and executive functions.
The trend towards strengthening the COMELEC continued with
the 1987 Constitution. Today, the COMELEC enforces and administers
all laws and regulationsrelative to the conduct of elections, plebiscites,
initiatives, referenda and recalls. Election contests involving regional,
provincial and city elective officials are under its exclusive original
jurisdiction
while
all
contests
involving
elective
municipal
and barangay officials are under its appellate jurisdiction. 17 (citations
omitted)

At present, the 1987 Constitution (as has been the case since the amendment of
the 1935 Constitution) now provides that the COMELEC, like all other
Constitutional Commissions, shall be independent. It provides that:
Section
1. The
Constitutional
Commissions,
which
shall
be independent, are the Civil Service Commission, the Commission
on Elections, and the Commission on Audit. [emphasis ours]

The unbending doctrine laid down by the Court in Nationalista Party was
reiterated in Brillantes, Jr. v. Yorac, 18 a 1990 case where no less than the
present respondent COMELEC Chairman Brillantes challenged then President
Corazon C. Aquino's designation of Associate Commissioner Haydee Yorac as
Acting Chairman of the COMELEC, in place of Chairman Hilario Davide.
In ruling that the Constitutional Commissions, labeled as "independent" under the
Constitution, are not under the control of the President even if they discharge
functions that are executive in nature, the Court again vigorously denied
"Presidential interference" in these constitutional bodies and held:
Article IX-A, Section 1, of the Constitution expressly describes all the
Constitutional Commissions as "independent." Although essentially
executive in nature, they are not under the control of the President of the
Philippines in the discharge of their respective functions. Each of these
Commissions conducts its own proceedings under the applicable laws
and its own rules and in the exercise of its own discretion. Its decisions,
orders and rulings are subject only to review on certiorari by this Court
as provided by the Constitution in Article IX-A, Section 7.
The choice of a temporary chairman in the absence of the regular
chairman comes under that discretion. That discretion cannot be
exercised for it, even with its consent, by the President of the Philippines.
xxx xxx xxx
The lack of a statutory rule covering the situation at bar is no justification
for the President of the Philippines to fill the void by extending the
temporary designation in favor of the respondent. This is still a
government of laws and not of men. The problem allegedly sought to be
corrected, if it existed at all, did not call for presidential action. The
situation could have been handled by the members of the Commission

on Elections themselves without the participation of the President,

however well-meaning.
xxx xxx xxx
The Court has not the slightest doubt that the President of the
Philippines was moved only by the best of motives when she issued the
challenged designation. But while conceding her goodwill, we cannot
sustain her act because it conflicts with the Constitution. Hence, even as
this Court revoked the designation in the Bautista case, so too must it
annul the designation in the case at bar. 19

In 2003, Atty. Macalintal v. Commission on Elections 20 provided yet another

opportunity for the Court to demonstrate how it ardently guards the independence
of the COMELEC against unwarranted intrusions.
TCEaDI

This time, the stakes were higher as Mme. Justice Austria-Martinez, writing for
the majority, remarked: "Under . . . [the] situation, the Court is left with no option
but to withdraw . . . its usual reticence in declaring a provision of law
unconstitutional." 21 The Court ruled that Congress, a co-equal branch of
government, had no power to review the rules promulgated by the COMELEC for
the implementation of Republic Act (RA) No. 9189 or The Overseas Absentee
Voting Act of 2003, since it "trample[s] upon the constitutional mandate of
independence of the COMELEC." 22 Thus, the Court invalidated Section 25 (2)
of RA No. 9189 and held:
The ambit of legislative power under Article VI of the Constitution is
circumscribed by other constitutional provisions. One such
provision is Section 1 of Article IX-A of the 1987
Constitution ordaining that constitutional commissions such as the
COMELEC shall be "independent."
Interpreting Section 1, Article X of the 1935 Constitution providing that
there shall be an independent COMELEC, the Court has held that
"[w]hatever may be the nature of the functions of the Commission on
Elections, the fact is that the framers of the Constitution wanted it to be
independent from the other departments of the Government." In an
earlier case, the Court elucidated:

The Commission on Elections is a constitutional body. It is

intended to play a distinct and important part in our scheme of
government. In the discharge of its functions, it should not be
hampered with restrictions that would be fully warranted in the
case of a less responsible organization. The Commission may err,
so may this court also. It should be allowed considerable latitude
in devising means and methods that will [e]nsure the
accomplishment of the great objective for which it was created
free, orderly and honest elections. We may not agree fully with its
choice of means, but unless these are clearly illegal or constitute
gross abuse of discretion, this court should not interfere. Politics is
a practical matter, and political questions must be dealt with
realistically not from the standpoint of pure theory. The
Commission on Elections, because of its fact-finding facilities, its
contacts with political strategists, and its knowledge derived from
actual experience in dealing with political controversies, is in a
peculiarly advantageous position to decide complex political
questions. (italics supplied)
The Court has no general powers of supervision over COMELEC
which is an independent body "except those specifically granted by the
Constitution," that is, to review its decisions, orders and rulings. In the
same vein, it is not correct to hold that because of its recognized
extensive legislative power to enact election laws, Congress may
intrude into the independence of the COMELEC by exercising
supervisory powers over its rule-making authority.
By virtue of Section 19 of R.A. No. 9189, Congress has empowered the
COMELEC to "issue the necessary rules and regulations to effectively
implement the provisions of this Act within sixty days from the effectivity
of this Act." This provision of law follows the usual procedure in drafting
rules and regulations to implement a law the legislature grants an
administrative agency the authority to craft the rules and regulations
implementing the law it has enacted, in recognition of the administrative
expertise of that agency in its particular field of operation. Once a law is
enacted and approved, the legislative function is deemed accomplished
and complete. The legislative function may spring back to Congress
relative to the same law only if that body deems it proper to review,

amend and revise the law, but certainly not to approve, review,
revise and amend the IRR of the COMELEC.
By vesting itself with the powers to approve, review, amend, and
revise the IRR for The Overseas Absentee Voting Act of 2003,
Congress went beyond the scope of its constitutional authority.
Congress trampled upon the constitutional mandate of
independence of the COMELEC. Under such a situation, the Court
is left with no option but to withdraw from its usual reticence in
declaring a provision of law unconstitutional.
EAcTDH

The second sentence of the first paragraph of Section 19 stating that

"[t]he Implementing Rules and Regulations shall be submitted to the
Joint Congressional Oversight Committee created by virtue of this Act for
prior approval," and the second sentence of the second paragraph of
Section 25 stating that "[i]t shall review, revise, amend and approve the
Implementing Rules and Regulations promulgated by the Commission,"
whereby Congress, in both provisions, arrogates unto itself a function not
specifically vested by the Constitution, should be stricken out of the
subject statute for constitutional infirmity. Both provisions brazenly violate
the mandate on the independence of the COMELEC.
Similarly, the phrase, "subject to the approval of the Congressional
Oversight Committee" in the first sentence of Section 17.1 which
empowers the Commission to authorize voting by mail in not more than
three countries for the May, 2004 elections; and the phrase, "only upon
review and approval of the Joint Congressional Oversight Committee"
found in the second paragraph of the same section are unconstitutional
as they require review and approval of voting by mail in any country after
the 2004 elections. Congress may not confer upon itself the authority to
approve or disapprove the countries wherein voting by mail shall be
allowed, as determined by the COMELEC pursuant to the conditions
provided for in Section 17.1 of R.A. No. 9189. Otherwise, Congress
would overstep the bounds of its constitutional mandate and intrude into
the independence of the COMELEC. 23 [citations omitted, emphases
ours]

Thus, from the perspective of history, any ruling from this Court as
the ponencia now makes allowing the COMELEC to share its decisional

independence with the Executive would be a first as well as a major

retrogressive jurisprudential development. It is a turning back of the
jurisprudential clock that started ticking in favor of the COMELEC's
independence in 1940 or 72 years ago.
b. The COMELEC's
Election Offenses

Power

to

Investigate

and

Prosecute

At the core of the present controversy is the COMELEC's exercise of its power to
investigate and prosecute election offenses under Section 2, Article IX (C) of
the 1987 Constitution. It states that the COMELEC shall exercise the following
power and function:
(6) File, upon a verified complaint, or on its own initiative, petitions in
court for inclusion or exclusion of voters; investigate and, where
appropriate, prosecute cases of violations of election laws,
including acts or omissions constituting election frauds, offences
and malpractices. [emphasis supplied]

In Barangay Association for National Advancement and Transparency (BANAT)

Party-List v. Commission on Elections, 24 the Court traced the legislative history
of the COMELEC's power to investigate and prosecute election offenses, and
concluded that the grant of such power was not exclusive:
TaCSAD

Section 2(6), Article IX-C of the Constitution vests in the COMELEC the
power to "investigate and, where appropriate, prosecute cases of
violations of election laws, including acts or omissions constituting
election frauds, offenses, and malpractices." This was an important
innovation introduced by the Constitution because this provision
was not in the 1935 or 1973 Constitutions. The phrase "[w]here
appropriate" leaves to the legislature the power to determine the
kind of election offenses that the COMELEC shall prosecute
exclusively or concurrently with other prosecuting arms of the
government.
The grant of the "exclusive power" to the COMELEC can be found in
Section 265 of BP 881 [Omnibus Election Code], which provides:

Sec. 265. Prosecution. The Commission shall, through its duly

authorized legal officers, have the exclusive power to conduct
preliminary investigation of all election offenses punishable under
this Code, and to prosecute the same. The Commission may avail
of the assistance of other prosecuting arms of the
government: Provided, however, That in the event that the
Commission fails to act on any complaint within four months from
his filing, the complainant may file the complaint with the office of
the fiscal or with the Ministry of Justice for proper investigation
and prosecution, if warranted. (Emphasis supplied)
This was also an innovation introduced by BP 881. The history of
election laws shows that prior to BP 881, no such "exclusive
power" was ever bestowed on the COMELEC.
We also note that while Section 265 of BP 881 vests in the COMELEC
the "exclusive power" to conduct preliminary investigations and
prosecute election offenses, it likewise authorizes the COMELEC to
avail itself of the assistance of other prosecuting arms of the
government. In the 1993 COMELEC Rules of Procedure, the authority
of the COMELEC was subsequently qualified and explained. The 1993
COMELEC Rules of Procedure provides:
Rule 34 Prosecution of Election Offenses
Sec. 1. Authority of the Commission to Prosecute Election
Offenses. The Commission shall have the exclusive
power to conduct preliminary investigation of all
election offenses punishable under the election laws
and to prosecute the same, except as may otherwise
be provided by law. 25 (citations omitted, emphases
ours)

As outlined in that case, Section 265 of Batas Pambansa Blg. 881 (BP 881) of
the Omnibus Election Code granted the COMELEC the exclusive power to
conduct preliminary investigations and prosecute election offenses. Looking then
at the practical limitations arising from such broad grant of power, Congress also
empowered the COMELEC to avail of the assistance of the prosecuting arms of
the government.
SEDIaH

Under the 1993 COMELEC Rules of Procedure, the Chief State Prosecutor, all
Provincial and City Fiscals, and/or their respective assistants were given
continuing authority, as deputies of the COMELEC, to conduct preliminary
investigation of complaints involving election offenses under election laws that
may be filed directly with them, or that may be indorsed to them by the
COMELEC or its duly authorized representatives and to prosecute the same. 26
Under the same Rules, the Chief State Prosecutor, Provincial Fiscal or City Fiscal
were authorized to receive complaints for election offenses and after which the
investigation may be delegated to any of their assistants. 27 After the
investigation, the investigating officer shall issue either a recommendation to
dismiss the complaint or a resolution to file the case in the proper courts; this
recommendation, however, was subject to the approval by the Chief State
Prosecutor, Provincial or City Fiscal, and who shall also likewise approve the
information prepared and immediately cause its filing with the proper
court. 28 The Rule also provide that resolution of the Chief State Prosecutor or
the Provincial or City Fiscal, could be appealed with the COMELEC within ten
(10) days from receipt of the resolution, provided that the same does not divest
the COMELEC of its power to motu proprio review, revise, modify or reverse the
resolution of the Chief State Prosecutor and/or provincial/city prosecutors. 29
In the recent case of Dio v. Olivarez, 30 the Court had the occasion to expound
on the nature and consequences of the delegated authority of the Chief State
Prosecutor, Provincial or City Fiscal and their assistants to conduct preliminary
investigations and to prosecute election offenses, as follows:
From the foregoing, it is clear that the Chief State Prosecutor, all
Provincial and City Fiscals, and/or their respective assistants have been
given continuing authority, as deputies of the Commission, to conduct a
preliminary investigation of complaints involving election offenses under
the election laws and to prosecute the same. Such authority may be
revoked or withdrawn anytime by the COMELEC, either expressly or
impliedly, when in its judgment such revocation or withdrawal is
necessary to protect the integrity of the process to promote the common
good, or where it believes that successful prosecution of the case can be
done by the COMELEC.Moreover, being mere deputies or agents of
the COMELEC, provincial or city prosecutors deputized by the

Comelec are expected to act in accord with and not contrary to or

in derogation of its resolutions, directives or orders of the Comelec
in relation to election cases that such prosecutors are deputized to
investigate and prosecute. Being mere deputies, provincial and city
prosecutors, acting on behalf of the COMELEC, must proceed
within the lawful scope of their delegated authority. 31 [citations
omitted, emphasis ours]

In 2007, Congress enacted RA No. 9369, amending BP 881, among others,

on the authority to preliminarily investigate and prosecute. Section 43 of RA
No. 9369, amending Section 265 of BP 881, provides:
SEC. 43. Section 265 of Batas Pambansa Blg. 881 is hereby amended
to read as follow[s]:
ADEaHT

"SEC. 265. Prosecution. The Commission shall, through its duly

authorized legal officers, have the power, concurrent with the other
prosecuting arms of the government, to conduct preliminary
investigation of all election offenses punishable under this Code, and
prosecute the same." [emphases and underscoring ours]

In 2009, the petitioner and the COMELEC in BANAT v. Commission on

Election 32 questioned the constitutionality of Section 43 of RA No. 9369. They
argued that the Constitution vests in the COMELEC the exclusive power to
investigate and prosecute cases of violations of election laws. They also alleged
that Section 43 of RA No. 9369is unconstitutional because it gives the other
prosecuting arms of the government concurrent power with the COMELEC to
investigate and prosecute election offenses.
In ruling that Section 2, Article IX (C) of the Constitution did not give the
COMELEC the exclusive power to investigate and prosecute cases of violations
of election laws and, consequently, that Section 43 of RA No. 9369 is
constitutional, the Court held:
We do not agree with petitioner and the COMELEC that the
Constitution gave the COMELEC the "exclusive power" to investigate
and prosecute cases of violations of election laws.
xxx xxx xxx

It is clear that the grant of the "exclusive power" to investigate and

prosecute election offenses to the COMELEC was not by virtue of the
Constitution but by BP 881, a legislative enactment. If the intention of the
framers of the Constitution were to give the COMELEC the "exclusive
power" to investigate and prosecute election offenses, the framers would
have expressly so stated in the Constitution. They did not.
In People v. Basilla, we acknowledged that without the assistance of
provincial and city fiscals and their assistants and staff members, and of
the state prosecutors of the Department of Justice, the prompt and fair
investigation and prosecution of election offenses committed before or in
the course of nationwide elections would simply not be possible.
In COMELEC v. Espaol, we also stated that enfeebled by lack of funds
and the magnitude of its workload, the COMELEC did not have a
sufficient number of legal officers to conduct such investigation and to
prosecute such cases. The prompt investigation, prosecution, and
disposition of election offenses constitute an indispensable part of the
task of securing free, orderly, honest, peaceful, and credible elections.
Thus, given the plenary power of the legislature to amend or repeal laws,
if Congress passes a law amending Section 265 of BP 881, such law
does not violate the Constitution. 33 [citations omitted; italics
supplied]
AaIDCS

Thus, as the law now stands, the COMELEC has concurrent jurisdiction
with other prosecuting arms of the government, such as the DOJ, to
conduct preliminary investigation of all election offenses punishable under
the Omnibus Election Code, and to prosecute these offenses.
c. The COMELEC and the Supreme Court
Separately from the COMELEC's power to investigate and prosecute election
offenses (but still pursuant to its terms) is the recognition by the Court that the
COMELEC exercises considerable latitude and the widest discretion in adopting
its chosen means and methods of discharging its tasks, particularly in its broad
power "to enforce and administer all laws and regulations relative to the conduct
of an election, plebiscite, initiative, referendum and recall." 34 In the recent case
of Bedol v. Commission on Elections, 35 the Court characterized the COMELEC's
power to conduct investigations and prosecute elections offenses as "adjunct to

its constitutional duty to enforce and administer all election laws." 36 For this
reason, the Court concluded that the aforementioned power "should be construed
broadly," 37 i.e., "to give the COMELEC all the necessary and incidental powers
for it to achieve the objective of holding free, orderly, honest, peaceful, and
credible elections." 38
In this regard, I agree with the majority that the COMELEC must be given
considerable latitude in the fulfillment of its duty of ensuring the prompt
investigation and prosecution of election offenses. I duly acknowledge that
the COMELEC exercises considerable latitude and the widest discretion in
adopting its chosen means and methods of discharging its tasks, particularly its
broad power "to enforce and administer all laws and regulations relative to the
conduct of an election, plebiscite, initiative, referendum and recall." 39 An
expansive view of the powers of the COMELEC has already been emphasized by
the Court as early as 1941 (under the 1935 Constitution) in Sumulong, President
of the Pagkakaisa ng Bayan v. Commission on Elections, 40 where the Court
held:
The Commission on Elections is a constitutional body. It is intended to
play a distinct and important part in our scheme of government. In the
discharge of its functions, it should not be hampered with restrictions that
would be fully warranted in the case of a less responsible organization.
The Commission may err, so may this court also. It should be allowed
considerable latitude in devising means and methods that will
[e]nsure the accomplishment of the great objective for which it was
created free, orderly and honest elections. We may not agree
fully with its choice of means, but unless these are clearly illegal or
constitute gross abuse of discretion, this court should not
interfere. Politics is a practical matter, and political questions must be
dealt with realistically not from the standpoint of pure theory. The
Commission on Elections, because of its fact-finding facilities, its
contacts with political strategists, and its knowledge derived from actual
experience in dealing with political controversies, is in a peculiarly
advantageous
position
to
decide
complex
political
questions. 41 [emphasis ours]
aHIEcS

To place this view in constitutional perspective, the independence granted to the

COMELEC is as broad as that granted to the Office of the Ombudsman, another
constitutional entity engaged in the investigation and prosecution of offenses, this
time with respect to those committed by public officers and employees in the
performance of their duties. We have uniformly held that this Court shall fully
respect the Office of the Ombudsman's independence in the performance of its
functions, save only where it commits grave abuse of discretion; 42 in this
eventuality it becomes the duty of this Court to intervene pursuant to Section 1,
Article VIII of the Constitution.
As it has been with the Ombudsman, so should independence in investigative
and prosecutory functions be with the COMELEC and its authority to investigate
and prosecute election offenses. In the same manner, the broad discretion
granted has its limits. Lest it be forgotten, in addition to its power to guard
against grave abuse of discretion mentioned above, this Court, as the last resort
tasked to guard the Constitution and our laws through interpretation and
adjudication of justiciable controversies, possesses oversight powers to ensure
conformity with the Constitution the ultimate instrument that safeguards and
regulates our electoral processes and policies and which underlies all these laws
and the COMELEC's regulations. 43
CDESIA

In other words, while the Court acknowledges that the COMELEC "reigns
supreme" in determining the means and methods by which it acts in the
investigation and prosecution of election offenses, it cannot abdicate its duty to
intervene when the COMELEC acts outside the contemplation of the
Constitution and of the law, 44 such as when it sheds off its independence
contrary to the Constitution by sharing its decision-making with the DOJ.
In the context of the present case, this constitutional safeguard gives rise
to the question: Did the COMELEC gravely abuse its discretion in issuing
COMELEC Resolution No. 9266 and Joint Order No. 001-2011? My answer is
a resounding yes.
II. COMELEC
Resolution
No.
Order No. 001-2011 Examined

9266

and

Joint

COMELEC Resolution No. 9266 is merely a preparatory resolution reflecting the

COMELEC en banc's approval of the creation of a committee with the DOJ to
conduct preliminary investigation on the alleged election offenses and anomalies
committed during the 2004 and 2007 elections. 45
Joint Order No. 001-2011, on the other hand, creates two committees or teams to
investigate and conduct preliminary investigation on the 2004 and 2007 National
Elections Electoral Fraud and Manipulation case the Fact-Finding Team and
the Joint DOJ-COMELEC Preliminary Investigation Committee (Joint
Committee). 46
Under Section 5 of the Joint Order, the Fact-Finding Team shall be chaired by
an Assistant Secretary of the DOJ, and shall have six members: two (2) from
the National Bureau of Investigation (NBI); two (2) from the DOJ and two (2) from
the COMELEC. Thus, effectively, the COMELEC has ceded primacy in factfinding functions to the Executive, given the composition of this team as the NBI
is an executive investigation agency under the DOJ.
Under Section 4 of the Joint Order, the Fact-Finding Team is tasked to:
1) Gather and document reports, intelligence information and
investigative leads from official as well as unofficial sources and
informants;
DTIcSH

2) Conduct interviews, record testimonies, take affidavits of witnesses

and collate material and relevant documentary evidence, such as,
but not limited to, election documents used in the 2004 and 2007
national elections. For security reasons, or to protect the identities
of informants, the Fact-Finding Team may conduct interviews, or
document testimonies discreetly;
3) Assess and evaluate affidavits already executed and other
documentary evidence submitted or may be submitted to the
Fact-Finding Team and/or the Committee;
4) Identify the offenders, their offenses and the manner of their
commission, individually or in conspiracy, and the provisions of
election and general criminal laws violated, establish evidence for
individual criminal and administrative liability and prosecution, and

prepare the necessary documentation such as complaints and

charge sheets for the initiation of preliminary investigation
proceedings against said individuals to be conducted by the
Committee;
5) Regularly submit to the Committee, the Secretary of Justice and
the Chairman of the COMELEC periodic reports and
recommendations, supported by real, testimonial and
documentary evidence, which may then serve as the
Committee's basis for immediately commencing appropriate
preliminary investigation proceedings, as provided for under
Section 6 of this Joint Order; and [emphases supplied]
6) Upon the termination of its investigation, make a full and final report to
the Committee, the Secretary of Justice, and the Chairman of the
COMELEC. 47

The Fact-Finding Team shall be under the supervision of the Secretary of the
DOJ and the Chairman of the COMELEC or, in the latter's absence, a Senior
Commissioner of the COMELEC. Under the Joint Order, the Fact-Finding Team
shall have a Secretariat to provide it with legal, technical and administrative
assistance.The Fact-Finding Team shall also have an office to be provided
by either the DOJ or the COMELEC. 48
cHaADC

Section 1 of the Joint Order provides that the Joint Committee is composed of
three (3) officials coming from the DOJ and two (2) officials from the COMELEC.
Prosecutor General Claro A. Arellano from the DOJ was designated as
Chairperson, to be assisted by the following members: 49
1) Provincial Prosecutor George C. Dee, DOJ
2) City Prosecutor Jacinto G. Ang, DOJ
3) Director IV Ferdinand T. Rafanan, COMELEC
4) Atty. Michael D. Villaret, COMELEC

Section 2 of the Joint Order sets the mandate of the Joint Committee which is to
"conduct the necessary preliminary investigation on the basis of the evidence
gathered and the charges recommended by the Fact-Finding Team." Resolutions
finding probable cause for election offenses, defined and penalized under BP

881 and other election laws, shall be approved by the COMELEC in accordance
with the COMELEC Rules of Procedure. 50
The procedure by which the resolutions finding probable cause is to be reviewed
and/or approved by the COMELEC is clearly set forth in Sections 3, 4 and 5 of
the Rules of Procedure on the Conduct of Preliminary Investigation on the
Alleged Election Fraud in the 2004 and 2007 Elections. Sections 3, 4 and 5 of the
Rules state:
Section 3. Resolution of the Committee. If the Committee finds cause
to hold respondent for trial, it shall prepare the resolution and
information. The Committee shall certify under oath in the information
that it, or as shown by the record, has personally examined the
complainant and the witnesses, that there is reasonable ground to
believe that a crime has been committed and that the accused is
probably guilty thereof, that the accused was informed of the complaint
and of the evidence submitted against him; and that he was given the
opportunity to submit controverting evidence. Otherwise, the Committee
shall recommend the dismissal of the complaint.
AHDacC

Section 4. Approval of the Resolution. Resolutions of the

Committee relating to election offenses, defined and penalized
under the Omnibus Election Code, and other election laws shall be
approved by the COMELEC in accordance with the Comelec Rules of
Procedure.
For other offenses, or those not covered by the Omnibus Election
Code and other election laws, resolutions of the Committee shall be
approved by the Prosecutor General except in cases cognizable by the
Sandiganbayan, where the same shall be approved by the Ombudsman.
Section 5. Motion for Reconsideration. Motions for Reconsideration
on resolutions of the Committee involving violations of [the] Omnibus
Election Code and other election laws shall be resolved by the
COMELEC in accordance with its Rules.
For other cases not covered by the Omnibus Election Code, the Motion
for Reconsideration shall be resolved by the Committee in accordance
with the Rules of Criminal Procedure. 51 (emphasis ours)

Finally, Section 9 of the Joint Order provides for the budget and financial support
for the operation of the Joint Committee and the Fact-Finding Team which shall
be sourced from funds of the DOJ and the COMELEC, as may be requested from
the Office of the President. 52
a. The
Unconstitutional
the Existing Legal Framework

Distortion

of

Section 2, Article IX (C) of the Constitution specifically vests in the COMELEC

the plenary power to "investigate and, where appropriate, prosecute cases of
violations of election laws, including acts or omissions constituting election
frauds, offenses and malpractices." To discharge its duty effectively, the
Constitution endowed the COMELEC with special features which elevate it
above other investigative and prosecutorial agencies of the government.
cEAIHa

First and foremost, it extended independence to the COMELEC and insulated

it from intrusion by outside influences, political pressures and partisan
politics. In Atty. Macalintal v. COMELEC, 53 already cited above, then Associate
Justice Puno enumerated these safeguards to protect the independence of the
COMELEC, viz.:
Several safeguards have been put in place to protect the
independence of the COMELEC from unwarranted encroachment
by the other branches of government. While the President appoints
the Commissioners with the concurrence of the Commission on
Appointments, the Commissioners are not accountable to the
President in the discharge of their functions. They have a fixed
tenure and are removable only by impeachment. To ensure that not all
Commissioners are appointed by the same President at any one time, a
staggered system of appointment was devised. Thus, of the
Commissioners first appointed, three shall hold office for seven years,
three for five years, and the last three for three years. Reappointment
and temporary designation or appointment is prohibited. In case of
vacancy, the appointee shall only serve the unexpired term of the
predecessor. The COMELEC is likewise granted the power to
promulgate its own rules of procedure, and to appoint its own officials
and employees in accordance with Civil Service laws.

The COMELEC exercises quasi-judicial powers but it is not part of

the judiciary. This Court has no general power of supervision over the
Commission on Elections except those specifically granted by the
Constitution. As such, the Rules of Court are not applicable to the
Commission on Elections. In addition, the decisions of the COMELEC
are reviewable only by petition for certiorari on grounds of grave
abuse of discretion[.] 54 [emphasis ours, citations omitted]

Under the Constitution, the Executive is tasked with the enforcement of the laws
that the Legislature shall pass. In the administration of justice, the Executive has
the authority to investigate and prosecute crimes through the DOJ, constituted in
accordance with the Administrative Code. 55 Under our current laws, the DOJ has
general jurisdiction to conduct preliminary investigation of cases involving
violations of the Revised Penal Code. 56
TDCaSE

With respect to the power to conduct preliminary investigation and to prosecute

election offenses, Congress has mandated under Section 42 of RA No. 9369 that
the COMELEC shall have the power concurrent with the other prosecuting arms
of the government, to conduct preliminary investigation of all election offenses
punishable under the Omnibus Election Code, and to prosecute these
offenses. Concurrent jurisdiction has been defined as "equal jurisdiction to
deal with the same subject matter." 57
Thus, under the present legal framework, the COMELEC and the DOJ, and its
prosecuting arms, have equal jurisdiction to conduct preliminary investigation and
prosecute election offenses. Effectively, this means that the DOJ and its
prosecuting arms can already conduct preliminary investigations and prosecute
election offenses not merely as deputies, but independently of the COMELEC.
This concurrent jurisdiction mandated under Section 42 of RA No.
9369 must, however, be read together with and cannot be divorced from the
provisions of the Constitution guaranteeing the COMELEC's independence
as a Constitutional Commission, in particular, Sections 1, 2, 3, 4, 5 and 6 of
Article IX (A) of the 1987 Constitution. This constitutional guaranty of
independence cannot be taken lightly as it goes into the very purpose for which
the COMELEC was established as an independent Constitutional Commission.

To briefly recall and reiterate statutory and jurisprudential history, the COMELEC
was deliberately constituted as a separate and independent body from the other
branches of government in order to ensure the integrity of our electoral
processes; it occupies a distinct place in our scheme of government as the
constitutional body charged with the administration of our election laws. For this
reason, the Constitution and our laws unselfishly granted it powers and
independence in the exercise of its powers and the discharge of its
responsibilities. 58
The independence of the COMELEC is a core constitutional principle that is
shared and is closely similar to the judicial independence that the Judiciary
enjoys because they are both expressly and textually guaranteed by
our Constitution. Judicial independence has been characterized as "a concept
that expresses the ideal state of the judicial branch of government; it
encompasses the idea that individual judges and the judicial branch as a whole
should work free of ideological influence." 59
The general concept of "judicial independence" can be "broken down into two
distinct
concepts: decisional
independence and institutional, or
branch,independence." Decisional independence "refers to a judge's ability
to render decisions free from political or popular influence based solely on
the individual facts and applicable law." On the other hand, institutional
independence "describes the separation of the judicial branch from the executive
and legislative branches of government." 60 "Decisional independence is
the sine qua non of judicial independence." 61
In the exercise of the COMELEC's power to investigate and prosecute election
offenses, the "independence" that the Constitution guarantees the COMELEC
should be understood in the context of the same "decisional independence" that
the Judiciary enjoys since both bodies ascertain facts and apply the laws to these
facts as part of their mandated duties.
cHITCS

In concrete terms, the "decisional independence" that the COMELEC should

ideally have in the exercise of its power to investigate and prosecute
election offenses, requires the capacity to exercise these functions
according to its own discretion and independent consideration of the facts,

the evidence and the applicable law, "free from attempts by the legislative
or executive branches or even the public to influence the outcome of . . .
[the] case." 62 And even if the power to investigate and prosecute election
offences, upon determination of the existence of probable cause, are executive
and not judicial functions, the rationale behind the constitutional independence of
the Judiciary and the COMELEC is geared towards the same objective of depoliticization of these institutions which are and should remain as non-political
spheres of government.
Tested under these considerations, the result cannot but be the unavoidable
conclusion that what exists under Joint Order No. 001-2011 and the Rules of
Procedureon the Conduct of Preliminary Investigation on the Alleged Election
Fraud in the 2004 and 2007 National Elections is not a scheme whereby the
COMELEC exercises its power to conduct preliminary investigation and to
prosecute elections offenses independently of other branches of
government but a shared responsibility between the COMELEC and the
Executive Branch through the DOJ.
This is the incremental change at issue in the present case, whose adoption
weakens the independence of the COMELEC, opening it to further incremental
changes on the basis of the ruling in this case. Under the ponencia's ruling
allowing a shared responsibility, the independence of the COMELEC ends up
a boiled frog; we effectively go back to the country's situation before 1940
with elections subject to intrusion by the Executive.
Significantly, the Solicitor General admitted during the oral arguments that the
reports and or recommendations of the Fact-Finding Team and Joint Committee
were a shared responsibility between the DOJ and the COMELEC
members, viz.:
aDcHIC

JUSTICE BRION:
With that agreement perhaps we have laid down the basis for the
constitutional hierarchy in this case. So that here we recognize
that the Bill of Rights is very important, the due process clause is
very important as against the police power of the State,
particularly in criminal prosecutions. Okay. Let me go now to a

very, very small point. The investigating team that was created by
the COMELEC-DOJ resolution, can you tell me how it operates?
SOLGEN CADIZ:
Your Honor, there are two (2) bodies created, collaborative effort most of
them. One is the fact-finding team and the other one is the
preliminary investigation committee.
JUSTICE BRION:
In the fact-finding team, what is the composition?
SOLGEN CADIZ:
DOJ, COMELEC and NBI.
JUSTICE BRION:
Two (2) members each?
SOLGEN CADIZ:
That is my recollection also, your Honor.

aCTADI

xxx xxx xxx

JUSTICE BRION:
So effectively the DOJ has four (4) representatives in that investigating
team, right?
SOLGEN CADIZ:
If that is the perspective, Your Honor, but the NBI of course, has a vastly
different function from the prosecutors of the DOJ.
JUSTICE BRION:
Who has supervision over this investigation team?
SOLGEN CADIZ:
Your Honor, it is a collaborative effort. There is no one head of this panel.
Likewise, as regards the preliminary investigation team which was
collaborative effort.

xxx xxx xxx

JUSTICE BRION:
What do the rules say? My question is as simple as that. Who has
supervision over the investigating team?
SOLGEN CADIZ:
The Preliminary Investigation Committee, Your Honor, the Fact-Finding
Team.
cCaATD

xxx xxx xxx

SOLGEN CADIZ:
Your Honor, it's here. Both the Secretary of Justice and the
COMELEC Chairman as I previously stated.
xxx xxx xxx
JUSTICE BRION:
And I heard from you before that the decision here was unanimous
among the members. They have no problem.
SOLGEN CADIZ:
In fact, Your Honor, the resolution of the COMELEC en banc says that it
gave great weight to the assent of the two COMELEC
representatives in the preliminary investigation team.
JUSTICE BRION:
Of the preliminary investigation, we are not there yet. We are only in the
fact-finding team.
SOLGEN CADIZ:
There was no dissension, Your Honor.
xxx xxx xxx
JUSTICE BRION:

They were unanimous. They agreed, they consulted with one another
and they agreed as their decision on what to send to their
superiors, right?
THIcCA

xxx xxx xxx

SOLGEN CADIZ:
There was a report to the preliminary investigation committee . . .
JUSTICE BRION:
So the report was unanimous?
SOLGEN CADIZ:
Yes, Your Honor.
JUSTICE BRION:
So this was a shared report?
JUSTICE BRION:
Okay. A shared understanding between the COMELEC and the DOJ.
SOLGEN CADIZ:
But maintaining their own identities, your Honor.
JUSTICE BRION:
Now, let's go to the preliminary investigation team. What was the
membership?
SOLGEN CADIZ:
Three (3) from DOJ and two (2) from COMELEC.
JUSTICE BRION:
Three (3) from DOJ and two (2) from COMELEC. They also came out
with their recommendations, right?
IAEcaH

SOLGEN CADIZ:
Yes, Your Honor.

JUSTICE BRION:
Were they also unanimous?
SOLGEN CADIZ:
Yes, Your Honor.
JUSTICE BRION:
So again this was a shared decision between the DOJ members
and the COMELEC members, right?
SOLGEN CADIZ:
Yes, your Honor.
JUSTICE BRION:
Okay. Thank you very much for that admission . . . 63 [emphasis
supplied]

To point out the obvious, the Fact-Finding Team, on the one hand, is composed
of five members from the DOJ and two members from the COMELEC. This team
is, in fact, chaired by a DOJ Assistant Secretary. Worse, the Fact-Finding
Team is under the supervision of the Secretary of DOJ and the Chairman of
the COMELEC or, in the latter's absence, a Senior Commissioner of the
COMELEC.
EDISTc

On the other hand, the Joint DOJ-COMELEC Preliminary Investigation

Committee is composed of three (3) officials coming from the DOJ and two
(2) officials from the COMELEC. Prosecutor General Claro A. Arellano from
the DOJ is also designated as Chairperson of the Committee. Not to be
forgotten also is that budget and financial support for the operation of the
Committee and the Fact-Finding Team shall be sourced from funds of the DOJ
and the COMELEC, as may be requested from the Office of the President.
This, again, is a perfect example of an incremental change that the Executive can
exploit.
What appears to be the arrangement in this case is a novel one, whereby the
COMELEC supposedly an independent Constitutional body has
been fused with the prosecutorial arm of the Executive branch in order to

conduct preliminary investigation and prosecute election offenses in the 2004 and
2007 National Elections. To my mind, this fusion or shared responsibility
between the COMELEC and the DOJ completely negates the COMELEC's
"decisional independence" so jealously guarded by the framers of
our Constitution who intended it to be insulated from any form of political
pressure.
To illustrate, Justice Presbitero J. Velasco raised during the oral arguments the
prejudicial effects (to the COMELEC's decisional independence) of the joint
supervision by the DOJ and the COMELEC over the composite Fact-Finding
Team and the Preliminary Investigation Committee, viz.:
JUSTICE VELASCO:
Counsel, would you agree that it was actually DOJ and COMELEC that
initially acted as complainant in this case?
ATTY. DULAY:
No, Your Honor, that is not our understanding, Your Honor.
JUSTICE VELASCO:
What

precipitated the creation of the Preliminary Investigating

Committee and the fact-finding team under Joint Order No. 0012011?
DCSTAH

ATTY. DULAY:
Well, if you were to take it, Your Honor, based on their Joint Circular, it
would be due to the recent discovery of new evidence and the
surfacing of new witnesses, Your Honor.
JUSTICE VELASCO:
Correct. So motu proprio, they initiated the investigation into possible
breach of election laws because of this new evidence discovered
and the surfacing of new witnesses, is that correct?
ATTY. DULAY:
Yes, Your Honor.
xxx xxx xxx

JUSTICE VELASCO:
Okay. So initially DOJ and COMELEC were the complainants in this
election matter. Now, the fact finding committee under Section
4 of Joint Order 001-2011 is under the supervision of the
Secretary of Justice and COMELEC Chairman, correct?
ATTY. DULAY:
Yes, Your Honor.
JUSTICE VELASCO:
What does it mean, what does it mean if these two heads of two
powerful branches of government have supervision over the
activities of the fact-finding team? What can it do?
ATTY. DULAY:
Well, Your Honor our contention is that the merger of the powers of
the . . . an independent constitutional commission and an
executive department, the executive branch, Your Honor, is a
violation of the principle of separation of powers, Your Honor.
Because while the law may provide that each body or entity the
COMELEC or the DOJ have concurrent jurisdiction over election
offenses, this does not mean that this can be exercised jointly,
Your Honor. And what we are really objecting, Your Honor, is the
fact that when they join, it is now a . . . it constitutes a violation of
that principle of separation of powers, Your Honor.
DTaSIc

JUSTICE VELASCO:
Okay, as two branches or one department and a constitutional body
supervising the fact finding, so under the Joint Order 001-2011 it
can give instructions to the fact-finding team as to how to go
about in performing its functions under Section 4 of said
joint order, is that correct?
ATTY. DULAY:
Yes, Your Honor.
JUSTICE VELASCO:

So they can issue instruction and orders to the fact-finding team in

gathering reports, conducting interviews, assessing
affidavits and the other functions of the fact-finding team,
okay?
ATTY. DULAY:
Yes, Your Honor.
JUSTICE VELASCO:
And Preliminary Investigation Committee is composed of representatives
from the same, DOJ and COMELEC also, correct?
ATTY. DULAY:
Yes, Your Honor.
JUSTICE VELASCO:
Now the reports of the fact finding team are submitted also to the
Secretary of Justice and Chairman of COMELEC, is that
correct?
cSICHD

ATTY. DULAY:
Yes, under the order, Your Honor.
JUSTICE VELASCO:
Okay. So in short the investigation, the investigator actually is also the
complainant in this electoral matter? What's your view on that?
ATTY. DULAY:
Yes, Your Honor, and the judge also, Your Honor, because the same
body. That's why our contention, Your Honor, is that the factfinding team and the Preliminary Investigation Committee, is
one and the same creature, Your Honor. They are both created
by . . . jointly by the COMELEC and the DOJ.
JUSTICE VELASCO:
And the resolutions of the Preliminary Investigation Committee will have
to be submitted first to whom?

ATTY. DULAY:
If it is an election offense, Your Honor, to the COMELEC, if it is a nonelection offense to the Department of Justice, Your Honor.
JUSTICE VELASCO:
So the resolution of the criminal complaint will have to be done by
one of the agencies over which has supervision and control
over two members of the Preliminary Investigation
Committee, is that correct?
ATTY. DULAY:
Yes, Your Honor. If, your Honor please, the supervision of the
Secretary of Justice and the COMELEC Chairman refers to
the fact-finding team as well as to the Preliminary
Investigation Committee which are composed . . . it's a
composite team, really, Your Honor, as far as the fact finding
team, there's the DOJ, there's the NBI, they are the two
representatives from the COMELEC. So if we were to take the
line that they would be under the supervision of one of the other
heads, then it would be a head of an executive department
supervising the work of a representative from an
independent constitutional commission and vice versa, Your
Honor. So there is in that sense a diminution, Your Honor, of the
power and authority of the COMELEC which it should have in the
first place exercised solely or singularly in the same way that the
DOJ under its concurrent jurisdiction could have exercised
separately, Your Honor. 64[emphasis supplied]
cSTDIC

Given that the membership of the composite Fact-Finding Team and Preliminary
Investigation Committee is numerically tilted in favor of the DOJ, plus the fact
that a member of the DOJ exercises supervision over the representatives of
the COMELEC, it cannot be discounted that the latter runs the risk of being
pressured into bending their analyses of the evidence to reach results (a finding
of probable cause, in this case) more pleasing or tailor-fitted to the outcomes
desired by their DOJ supervisors who belong to the majority. In this situation, the
COMELEC's independent consideration of the facts, evidence and applicable law

with respect to the complaints for electoral sabotage filed against the
respondents cannot but be severely compromised. The following exchanges
during the oral arguments are also very instructive:
ASSOCIATE JUSTICE ABAD:
Now here, the Election Code grants the COMELEC and the other
prosecution arms of the government concurrent authority to
conduct preliminary investigation of election offenses, is that
correct?
SOLICITOR GENERAL CADIZ:
Yes, Your Honor.
ASSOCIATE JUSTICE ABAD:
But your theory is that, given their concurrent authority they can conduct
preliminary investigation of election offenses.
SOLICITOR GENERAL CADIZ:
That was COMELEC and DOJ decided in this particular matter, Your
Honor.
xxx xxx xxx
ASSOCIATE JUSTICE ABAD:
No, I'm asking you if you adopt that position or not, that they concurrently
conduct a joint investigation, concurrent?
SEHTIc

SOLICITOR GENERAL CADIZ:

Yes, Your Honor.
ASSOCIATE JUSTICE ABAD:
Alright. Now, the prosecution arm of the government are under the
Secretary of Justice, do you agree?
SOLICITOR GENERAL CADIZ:
Yes, Your Honor.
ASSOCIATE JUSTICE ABAD:

And the Secretary of Justice is the alter ego of the President, do you
agree?
SOLICITOR GENERAL CADIZ:
I think that is true.
ASSOCIATE JUSTICE ABAD:
The President is essentially a politician belonging to a political party, will
you agree?
SOLICITOR GENERAL CADIZ:
He is the President of the people, Your Honor.
ASSOCIATE JUSTICE ABAD:
Oh yes.

AEIHaS

xxx xxx xxx

ASSOCIATE JUSTICE ABAD:
As a matter of fact, he is also the titular President of the Liberal Party, is
that correct?
SOLICITOR GENERAL CADIZ:
Yes, but he is the President of a hundred million Filipinos.
xxx xxx xxx
ASSOCIATE JUSTICE ABAD:
Has the COMELEC which is an independent constitutional body any
business doing work assigned to it by law hand-in-hand with an
agency under the direct control of a politician?
SOLICITOR GENERAL CADIZ:
I think that's a wrong premise, Your Honor.
ASSOCIATE JUSTICE ABAD:
Explain to me. Where is the error in my premise?
xxx xxx xxx

TaCDAH

SOLICITOR GENERAL CADIZ:

Thank you very much, Your Honor. Thank you very much, thank you,
Your Honor. COMELEC and DOJ they decided to have a FactFinding Team and the Preliminary Investigating Committee. The
Fact-Finding Team is composed of COMELEC personnel, DOJ
personnel, and NBI personnel. The Preliminary Investigating
Committee is composed to COMELEC people and DOJ
personnel. Your Honor, they have, the Fact-Finding Team, made a
report, submitted it both to COMELEC, to the Secretary of Justice,
and to the Preliminary Investigating Committee. The Preliminary
Investigating Committee had a unanimous finding and they made
a report to the COMELEC En Banc. It is the COMELEC En
Banc, Your Honor, which had the final say on the findings of
Preliminary Investigating Committee. So, I think, Your Honor, the
premise is wrong, that the independent of the COMELEC has
been compromised in this particular matter because, in fact, the
COMELECEn Banc, Your Honor did not adopt in toto the findings
of the Preliminary Investigating Committee. And Your Honor, there
is a dimension here that not only election offenses are being
investigated but also common crimes under the Revised Penal
Code. So, in the collaboration between DOJ and the COMELEC,
what was sought to be made, or what was sought to be achieved
was efficiency, and what was sought to be avoided was
redundancy, Your Honor. And again, if I may reiterate, Your Honor
please, to your question about compromising the independence of
the COMELEC, I respectfully beg to disagree with that premise,
Your Honor, because at the end of the day it was the
COMELEC En Banc who decided to file an Information or to have
a Resolution asking the Law Department to file an information
against the three (3) accused in this case Gloria MacapagalArroyo, Lintang Bedol, and former Governor Zaldy Ampatuan, Sr.
ASSOCIATE JUSTICE ABAD:
Acting on the findings of a Committee
representatives of the DOJ, is that correct?
SOLICITOR GENERAL CADIZ:

dominated

by

There was a unanimity, Your Honor.

ASSOCIATE JUSTICE ABAD:
Yes, yes. Well, the Committee dominated . . . .
SOLICITOR GENERAL CADIZ:
I think the numbers are . . . . .
ASSOCIATE JUSTICE ABAD:
3-2.
SOLICITOR GENERAL CADIZ:
3-2?

EHCaDS

ASSOCIATE JUSTICE ABAD:

Yes.
SOLICITOR GENERAL CADIZ:
There was no dissention, there was a unanimity in finding and at the end
of the day there were only recommendatory to the COMELEC En
Banc.
ASSOCIATE JUSTICE ABAD:
Well, that is true but the COMELEC did not make an investigation. It
was not the one that denied the respondents the right to ask
for time to file counter-affidavit. These rulings were made by
that Committee dominated by representatives of the
DOJ. Anyway, you just answered it, although not exactly to my
satisfaction but you answered it. Do you know if under
the Election Code, tell me if I'm exceeded my time already, do you
know if under the Election Code, the COMELEC must directly
conduct the preliminary investigation of election offenses? Does it
have to conduct directly by itself preliminary investigation of
election offenses, the COMELEC?
SOLICITOR GENERAL CADIZ:
The Law Department can do that, Your Honor.

STaAcC

ASSOCIATE JUSTICE ABAD:

Well, so I will read to you Section 43 of Republic Act 9369, it says that,
and I quote, "That the COMELEC shall, through it's duly
authorized legal officers, have the power concurrent with the
other prosecuting arms of the government, to conduct
preliminary investigation of all election offenses." Now, since
the law specifically provides that the COMELEC is to exercise its
power to conduct preliminary investigation through its legal
officers, by what authority did the COMELEC delegate that power
to a joint committee dominated by strangers to its organization?
SOLICITOR GENERAL CADIZ:
Your Honor, the power of the COMELEC to investigate and prosecute
election related offenses is not exclusive. It is concurrent with
prosecuting arms of the government, that is the Department of
Justice. In other words, Your Honor, the Department of Justice
under the amended law has the power to investigate and
prosecute election related offenses likewise, so there was no
undue delegation as premises in your question, Your Honor, but
this is a concurrent jurisdiction with the DOJ.
ASSOCIATE JUSTICE ABAD:
So, that's what made the COMELEC disregard what the law says, "shall"
which is, as you say, you know in law "shall" means a command,
"Shall, through its duly authorized legal officers, have the power to
conduct preliminary investigation of all election offenses." At any
rate, I think, you've have answered.
SOLICITOR GENERAL CADIZ:
It is not exclusive, Your Honor.
ASSOCIATE JUSTICE ABAD:
You've given your answer.
SOLICITOR GENERAL CADIZ:
It is not exclusive, Your Honor, the law states its power.

ASSOCIATE JUSTICE ABAD:

No, the method is exclusive. The power to investigate is not exclusive,
if the law expressly says "through its fully authorized legal officers"
precisely because this is inconsonance with the policy laid
down by the Constitution that the COMELEC shall enjoy
autonomy, independent of any branch of government. It
should not be working with the political branch of the
government to conduct its investigation. It should try to
maintain its independence. At any rate, I understand that . . .
Can I continue Chief? 65 [emphasis supplied]
TcSHaD

Considering the terms of the COMELEC-DOJ resolutions and exchanges and

admissions from no less than the Solicitor General, the resulting arrangement
involving as it does a joint or shared responsibility between the DOJ and
the COMELEC cannot but be an arrangement that the Constitution and
the law cannot allow, however practical the arrangement may be from the
standpoint of efficiency. To put it bluntly, the joint or shared arrangement
directly goes against the rationale that justifies the grant of independence to the
COMELEC to insulate it, particularly its role in the country's electoral exercise,
from political pressures and partisan politics.
As a qualification to the above views, I acknowledge as the Court did
in People v. Hon. Basilla 66 that "the prompt and fair investigation and
prosecution of election offenses committed before or in the course of nationwide
elections would simply not be possible without the assistance of provincial and
city fiscals and their assistants and staff members, and of the state prosecutors of
the [DOJ]." 67 That the practice of delegation of authority by the
COMELEC, otherwise known as deputation, has long been upheld by this Court
is not without significance, as it is the only means by which its
constitutionally guaranteed independence can remain unfettered.
In other words, the only arrangement constitutionally possible, given the
independence of the COMELEC and despite Section 42 of RA 9369, is for the
DOJ to be a mere deputy or delegate of the COMELEC and not a co-equal
partner in the investigation and prosecution of election offenses
WHENEVER THE COMELEC ITSELF DIRECTLY ACTS. While the COMELEC

and the DOJ have equal jurisdiction to investigate and prosecute election
offenses (subject to the rule that the body or agency that first takes cognizance of
the complaint shall exercise jurisdiction to the exclusion of the others), 68 the
COMELEC whenever it directly acts in the fact-finding and preliminary
investigation of elections offences can still work with the DOJ and seek its
assistance without violating its constitutionally guaranteed independence, but it
can only do so as the principal in a principal-delegate relationship with the
DOJ where the latter acts as the delegate.
cAEaSC

This arrangement preserves the COMELEC's independence as "being mere

deputies or agents of the COMELEC, provincial or city prosecutors deputized . . .
are expected to act in accord with and not contrary to or in derogation of its
resolutions, directives or orders . . . in relation to election cases that such
prosecutors are deputized to investigate and prosecute. Being mere deputies,
provincial and city prosecutors, acting on behalf of the COMELEC, [shall also]
proceed within the lawful scope of their delegated authority." 69
III. The Consequences of Unconstitutionality
In the usual course, the unconstitutionality of the process undertaken in
conducting the preliminary investigation would result in its nullity and the absence
of the necessary preliminary investigation that a criminal information requires.
Three important considerations taken together, however, frustrate the petitioners'
bid to achieve this result so that the petitions ultimately have to be dismissed.
First, separate from the COMELEC's decisional independence, it also has the
attribute of institutional independence, rendered necessary by its key role in
safeguarding our electoral processes; the Constitution's general grant of
independence entitles it not only to the discretion to act as its own wisdom may
dictate, butthe independence to act on its own separately and without
interference from the other branches of the government.
Thus, these other branches of government, including the Judiciary, cannot
interfere with COMELEC decisions made in the performance of its duties, save
only if the COMELEC abuses the exercise of its discretion 70 a very high
threshold of review from the Court's point of view. Any such review must start
from the premise that the COMELEC is an independent body whose official

actions carry the presumption of legality, and any doubt on whether the
COMELEC acted within its constitutionally allowable sphere should be
resolved in its favor.
In the context of the present case, the petitioners' allegations and evidence on
the infirmity of the COMELEC's determination of probable cause should clearly
be established; where the petitioners' case does not rise above the level of doubt
as in this case the petition should fail.
IESTcD

Second and taking off from where the first above consideration ended, Section 2
of Joint Order No. 001-2011 grants the COMELEC the final say in determining
whether probable cause exists. Section 2 reads:
Section 2. Mandate. The Committee shall conduct the necessary
preliminary investigation on the basis of the evidence gathered and the
charges recommended by the Fact-Finding Team create and referred to
in Section 4 hereof. Resolutions finding probable cause for election
offenses, defined and penalized under the Omnibus Election Code and
other election laws shall be approved by the COMELEC in accordance
with the COMELEC Rules of Procedure. For other offenses, or those not
covered by the Omnibus Election Code and other election laws, the
corresponding criminal information may be filed directly with the
appropriate courts.

While the fact-finding and the preliminary investigation stages, as envisioned in

the various COMELEC-DOJ instruments, may have resulted in a constitutionally
impermissible arrangement between the COMELEC and the DOJ, Section 2 of
Joint Order No. 001-2011 shows that it is the COMELEC that must still solely act
and its actions can be constitutionally valid if made in a process that is free from
any attendant participation by the Executive.
From the petitioners' perspective, while the disputed resolutions involved a factfinding and a preliminary investigation phases that are constitutionally
objectionable,the petitioners still have to show that indeed the COMELEC
had left the matter of determining probable cause ultimately to the FactFinding Team and the Joint Committee. It is on this point that the petitioners'
case is sadly deficient. In contrast with this deficiency, the records show that the

COMELEC did indeed meet, on its own, to determine probable cause based on
the evidence presented by its own representatives.
Third, since the corresponding informations have already been filed in
court, claims of absence of, or irregularity in, the preliminary investigation are
matters which appropriately pertain to the lower court in the exercise of its
jurisdiction. 71 After the lower court has effectively assumed jurisdiction, what is
left for this Court to act upon is solely the issue of the constitutionality of the
creation and operation of the Fact-Finding Team and the Joint Committee for
being violative of the COMELEC's independence. Other constitutional issues
(equal protection, due process, and separation of powers) simply arose as
incidents of the shared COMELEC-DOJ efforts, and need not be discussed after
the determination of the unconstitutionality of the shared COMELEC-DOJ
arrangements for violation of the COMELEC's independence.
In sum, while the DOJ-COMELEC arrangements compromised the COMELEC's
independence, the filing of the informations in court, upon the COMELEC's own
determination of probable cause, effectively limited not only the prosecution's
discretion (for example, on whether to proceed or not), but also the Court's
jurisdiction to pass upon the entire plaint of the petitioners. Crespo v. Judge
Mogul 72 teaches us that
SCEDAI

The filing of a complaint or information in Court initiates a criminal

action. The Court thereby acquires jurisdiction over the case, which
is the authority to hear and determine the case. . . . .
xxx xxx xxx
The rule therefore in this jurisdiction is that once a complaint or
information is filed in Court any disposition of the case as its dismissal or
the conviction or acquittal of the accused rests in the sound discretion of
the Court. Although the fiscal retains the direction and control of the
prosecution of criminal cases even while the case is already in Court he
cannot impose his opinion on the trial court. The Court is the best and
sole judge on what to do with the case before it. The determination of
the case is within its exclusive jurisdiction and competence.
[emphases ours, citations omitted]

To reiterate, except for the resolution of the issue of the constitutionality of

creating a Joint Committee and a Fact-Finding Team and of the incidental
issues bearing on this constitutional interpretation matters which only this
Court may authoritatively determine 73 this Court should now refrain from
making any pronouncement relative to the disposition of the criminal cases
now before the lower court.
Based on these considerations particularly, on the lack of a factual showing
that the COMELEC did not determine the existence of probable cause by itself
and relied solely on its unconstitutional arrangements with the DOJ I support
the dismissal of the petitions save for the ruling that the shared COMELECDOJ investigatory and prosecutory arrangements, as envisioned in the
disputed resolutions, are unconstitutional.
Lest this opinion be misconstrued and for greater emphasis, while I ultimately
sustain the COMELEC's finding of probable cause based on the collective
considerations stated above, the constitutionally objectionable arrangement of a
shared responsibility between the COMELEC and the DOJ was not necessarily
saved by the existence of Section 2 of Joint Order No. 001-2011. I sustain the
COMELEC's finding of probable cause under the unique facts and developments
in this case, based on the institutional independence the COMELEC is entitled to;
the lack of proof that the COMELEC did not act independently; and the adduced
fact that the COMELEC did indeed meet to consider the findings presented to it
by its representatives. I make this conclusion without prejudice to proof of other
facts that, although bearing on the COMELEC's independence but are not here
decided, may yet be submitted by the petitioners before the trial court if they are
appropriate for that court's consideration on the issues properly raised.
DTIaCS

For greater certainty for the COMELEC in its future actions in enforcing and
administering election-related laws, let me advise that what I highlighted
regarding the nature and breadth of the constitutionally guaranteed
independence of the COMELEC should always be seriously considered as
guiding lights.
For the Court en banc's consideration.
CARPIO, J., concurring and dissenting:

I concur with the ponencia in its conclusion that (1) there is no violation of the
Due Process and Equal Protection Clause in the creation, composition, and
proceedings of the Joint Department of Justice (DOJ) Commission on
Elections (COMELEC) Preliminary Investigation Committee (Committee) and the
Fact-Finding Team; (2) petitioner Gloria Macapagal-Arroyo (Macapagal-Arroyo) in
G.R. No. 199118 was not denied opportunity to be heard in the course of the
Committee's preliminary investigation proceedings; and (3) the preliminary
investigation against petitioners, which followed Rule 112 of the Rules on
Criminal Procedure and Rule 34 of the COMELEC Rules of Procedure, is valid.
Petitioners' attack against the impartiality of the Committee and the Fact-Finding
Team because of their composition and source of funding is negated by (1) the
express statutory authority for the DOJ and the COMELEC to
conduct concurrently preliminary investigations on election-related offenses, (2)
the separate funding for the Committee and Fact-Finding Team's personnel, and
(3) the failure of petitioners to rebut the presumption of regularity in the
performance of official functions. Similarly, the equal protection attack against
Joint Order 001-2011 for its alleged under inclusivity fails as jurisprudence is
clear that under inclusivity of classification, by itself, does not offend the Equal
Protection Clause. 1
Nor is there merit in petitioner Macapagal-Arroyo's claim that the Committee's
denial of her request for time to file her counter-affidavit and for copies of
documents relating to the complaint of Aquilino Pimentel III (Pimentel) and the
Fact-Finding's partial investigation report robbed her of opportunity to be heard.
Petitioner Macapagal-Arroyo was furnished with all the documents the Committee
had in its possession. Further, the documents relating to Pimentel's
complaint, 2 all based on an election protest he filed with the Senate Electoral
Tribunal, 3 are not indispensable for petitioner Macapagal-Arroyo to prepare her
counter-affidavit to answer the charge that she acted as principal by conspiracy,
not by direct participation, to commit electoral sabotage in Maguindanao in the
2007 elections.
aCHcIE

I am, however, unable to join the ponencia in its conclusion that the rules of
procedure adopted by the Committee (Committee Rules) must be published.

Section 7 of the Joint Order provides that the "Committee shall meet and craft its
rules of procedure as may be complementary to the respective rules of DOJ
and COMELEC . . . ." Section 2 of the Committee Rules provides that the
"preliminary investigation shall be conducted in the following manner as may be
complementaryto Rule 112 of the Rules on Criminal Procedure and Rule 34 of
the COMELEC Rules of Procedure." This means that the Committee Rules will
apply only if they complement Rule 112 or Rule 34. If the Committee Rules do
not complement Rule 112 or Rule 34 because the Committee Rules conflict with
Rule 112 or Rule 34, the Committee Rules will not apply and what will apply will
either be Rule 112 or Rule 34. Clearly, the Committee Rules do not amend or
revoke Rule 112 or Rule 34, butonly complement Rule 112 or Rule 34 if
possible. "Complementary" means an addition so as to complete or
perfect. 4 The Committee Rules apply only to the extent that they "may be
complementary to" Rule 112 or Rule 34. In short, despite the adoption of the
Committee Rules, Rule 112 of the Rules on Criminal Procedure and Rule 34 of
the COMELEC Rules of Procedure indisputably remain in full force and effect.
Assuming, for the sake of argument, that the Committee Rules amend Rule 112
and Rule 34, the lack of publication of the Committee Rules renders them void,
as correctly claimed by petitioners. In such a case, Rule 112 and Rule 34 remain
in full force and effect unaffected by the void Committee Rules. The preliminary
investigation in the present case was conducted in accordance with Rule 112 and
Rule 34. Petitioners do not claim that any of their rights under Rule 112 or Rule
34 was violated because of the adoption of the Committee Rules. In short,
petitioners cannot impugn the validity of the preliminary investigation because of
the adoption of the Committee Rules, whether the adoption was void or not.
As shown in the matrix drawn by public respondents in their Comment, 5 of the
ten paragraphs in Section 2 (Procedure) of the Committee Rules, only
one paragraph is not found in Rule 112 of the Rules on Criminal Procedure and
this relates to an internal procedure on the treatment of referrals by other
government
agencies
or
the
Fact-Finding
Team
to
the
Committee. 6 In Honasan II v. Panel of Prosecutors of the DOJ, 7 the Court
quoted and adopted the following argument of the Ombudsman:

OMB-DOJ Joint Circular No. 95-001 is merely an internal

circular between the DOJ and the Office of the Ombudsman, outlining
authority and responsibilities among prosecutors of the DOJ and of the
Office of the Ombudsman in the conduct of preliminary
investigation. OMB-DOJ Joint Circular No. 95-001 DOES NOT
regulate the conduct of persons or the public, in general.
CEIHcT

Accordingly, there is no merit to petitioner's submission that OMB-DOJ

Joint Circular No. 95-001 has to be published. (Emphasis supplied)

In addition, Section 3 of the Committee Rules (Resolution of the Committee) is a

substantial reproduction of the first paragraph of Section 4 of Rule 112, save for
language replacing "investigating prosecutor" with "Committee." Section 4 of the
Committee Rules (Approval of Resolution), while not appearing in Rule 112, is
aninternal automatic review mechanism (for the COMELEC en banc to review
the Committee's findings) not affecting petitioners' rights. 8 Thus, save for
ancillary internal rules, the Committee Rules merely reiterate the procedure
embodied in Rule 112.
Nevertheless, the ponencia finds publication (and filing of the Committee Rules
with the U.P. Law Center) 9 "necessary" because three provisions of the
Committee Rules "either restrict the rights or provide remedies to the affected
parties," namely:
(1) Section 1 [which] provides that "the Joint Committee will no longer
entertain complaints from the public as soon as the Fact-Finding Team
submits its final Report, except for such complaints involving offenses
mentioned in the Fact-Finding Team's Final Report"; (2) Section 2
[which] states that the "Joint Committee shall not entertain a Motion to
Dismiss"; and (3) Section 5 [which] provides that a Motion for
Reconsideration may be availed of by the aggrieved parties against the
Joint Committee's Resolution. 10

None of these provisions justify placing the Committee Rules within the ambit
of Taada v. Tuvera. 11
Section 1 of the Committee Rules allows the Committee, after the submission by
the Fact-Finding Team of its Final Report, to entertain complaints mentioned in
the Final Report and disallows the Committee to entertain complaints unrelated

to the offenses mentioned in the Final Report. This is still part of the fact-finding
stage and the Committee has the discretion to require the Fact-Finding Team to
take into account new complaints relating to offenses mentioned in the Final
Report. At this stage, there is still no preliminary investigation. Section 1
refers solely to the fact-finding stage, not the preliminary investigation. Thus,
Section 1 cannot in any way amend, revoke or even clarify Rule 112 or Rule 34
which governs the preliminary investigation and not the fact-finding stage.
Section 1 is merely an internal rule governing the fact-finding stage. To repeat,
Section 1 does not have the force and effect of law that affects and binds the
public in relation to the preliminary investigation. In short, there is no need to
publish Section 1 because it deals solely with fact-finding, not with the preliminary
investigation.
In barring acceptance of new complaints after the submission of the Fact-Finding
Team's Final Report to the Committee, save for complaints on offenses covered
in the Final Report, Section 1 merely states a commonsensical rule founded on
logic. If the Final Report is with the Committee, it makes no sense to re-open the
investigation for the Fact-Finding Team to investigate offenses wholly unrelated
to the Final Report. For such new offenses, the Fact-Finding Team will have to
open a new investigation. On the other hand, it makes eminent sense for the
Fact-Finding Team to re-open investigation (and thus revise its Final Report) if
the new complaints "involv[e] offenses mentioned in the Fact-Finding Team's
Final Report," allowing the Fact-Finding Team to submit as thorough and
comprehensive a Report as possible on the offenses subject of the Final Report.
Far from "restrict[ing] the rights" of the "affected parties," Section 1 favors the
petitioners by letting the Fact-Finding Team parse as much evidence available,
some of which may be exculpatory, even after the Final Report has been
submitted to the Committee, provided they relate to offenses subject of the Final
Report.
On Section 2 and Section 5 of the Committee Rules, these provisions merely
reiterate extant rules found in the Rules of Court and relevant administrative
rules, duly published and filed with the U.P. Law Center. Thus, Section 2's
proscription against the filing of a motion to dismiss is already provided in Section
3 (c) of Rule 112 which states that "[t]he respondent shall not be allowed to file a

motion to dismiss in lieu of a counter-affidavit." 12 Similarly, the right to seek

reconsideration from an adverse Committee Resolution under Section 5, again
favoring petitioners, has long been recognized and practiced in the preliminary
investigations undertaken by the DOJ. 13DOJ Order No. 223, dated 1 August
1993, as amended by DOJ Department Circular No. 70, dated 1 September
2000, grants to the aggrieved party the right to file "one motion for
reconsideration" and reckons the period for the filing of appeal to the DOJ
Secretary from the receipt of the order denying reconsideration. 14
Taada v. Tuvera requires publication of administrative rules that have the force
and effect of law and the Revised Administrative Code requires the filing of such
rules with the U.P. Law Center as facets of the constitutional guarantee of
procedural due process, to prevent surprise and prejudice to the public who are
legally presumed to know the law. 15 As the Committee Rules merely
complement and even reiterate Rule 112 of the Rules on Criminal Procedure, I do
not see how their non-publication and non-filing caused surprise or prejudice to
petitioners. Petitioners' claim of denial of due process would carry persuasive
weight if the Committee Rules amended, superseded or revoked existing
applicable procedural rules or contained original rules found nowhere in the
corpus of procedural rules of the COMELEC or in the Rules of Court, rendering
publication and filing imperative. 16 Significantly, petitioner Macapagal-Arroyo
encountered no trouble in availing of Rule 112 to file a motion with the Committee
praying for several reliefs. 17
Lastly, the complementary nature of the Committee Rules necessarily means that
the proceedings of the Committee would have continued and no prejudice would
have been caused to petitioners even if the Committee Rules were non-existent.
The procedure provided in Rule 112 of the Rules on Criminal Procedure and Rule
34 of the COMELEC Rules of Procedure would have ipso facto applied since the
Committee Rules merely reiterate Rule 112 and Rule 34. The ponencia concedes
as much when it refused to invalidate the Committee's proceedings, observing
that "the preliminary investigation was conducted by the Joint Committee
pursuant to the procedures laid down in Rule 112 of the Rules on Criminal
Procedure and the 1993 COMELEC Rules of Procedure." 18
Accordingly, I vote to DISMISS the petitions.

MENDOZA, J., concurring:

I am in agreement with the ponencia that the arraignment of petitioner Gloria
Macapagal Arroyo (GMA), on her very own motion, is tantamount to her
submission to the jurisdiction of the trial court. The entry of her plea of not guilty
to the crime of electoral sabotage can only be deemed as a waiver of her right to
question the alleged irregularities committed during the preliminary investigation
conducted by the Joint DOJ-COMELEC Preliminary Investigation Committee,
headed by the Prosecutor General (Joint Committee) and/or Comelec.
Consequently, her own actions rendered the issues on probable cause and on
the validity of the preliminary investigation as moot and academic.
This mootness, however, does not impinge on the issue of the constitutionality of
the Comelec's "sharing" of its jurisdiction with another body, for this is an entirely
different matter resting on a sundry of arguments involving not just the rules on
criminal procedure, but the Constitution itself. Nevertheless, this very issue has
been rendered likewise moot when the Comelec En Banc itself ruled that there
was probable cause.
At any rate, in this separate opinion, I shall only dwell on the subject of due
process. I find it proper to put on record my views in relation to the rights afforded
a respondent in preparation of his defense during a preliminary
investigation, specially considering the gravity of the offense charged. Had this
case been resolved prior to the arraignment of GMA, I would have voted for a
remand of the case to the Comelec, not the Joint Committee, to enable the
petitioner to submit her counter-affidavit, if only to set things right before the trial
court could properly act on the case. Although moot because of petitioner's
arraignment and valid entry of plea, I am of the view that there was undue
haste in the conduct of the preliminary investigation in violation of her right to due
process.
HACaSc

The purpose of a preliminary investigation is the appropriate guidepost in this

issue. The proceeding involves the reception of evidence showing that, more
likely than not, a respondent could have committed the offense charged and,
thus, should be held for trial. This underlines the State's right to prosecute the
persons responsible and jumpstart the grinding of the wheels of justice. But the

same is by no means absolute and does not in any manner grant the
investigating officer the license to deprive a respondent of his rights.
The office of a prosecutor does not involve an automatic function to hold persons
charged with a crime for trial. Taking the cudgels for justice on behalf of the State
is not tantamount to a mechanical act of prosecuting persons and bringing them
within the jurisdiction of court. Prosecutors are bound to a concomitant
duty not to prosecute when after investigation they have become convinced that
the evidence available is not enough to establish probable cause. This is why, in
order to arrive at a conclusion, the prosecutors must be able to make an objective
assessment of the conflicting versions brought before them, affording both
parties to prove their respective positions. Hence, the fiscal is not bound to
accept the opinion of the complainant in a criminal case as to whether or not
a prima facie case exists. Vested with authority and discretion to determine
whether there is sufficient evidence to justify the filing of a corresponding
information and having control of the prosecution of a criminal case, the fiscal
cannot be subjected to dictation from the offended party 1 or any other party for
that matter. Emphatically, the right to the oft-repeated preliminary investigation
has been intended to protect the accused from hasty, malicious and oppressive
prosecution. 2 In fact, the right to this proceeding, absent an express provision of
law, cannot be denied. Its omission is a grave irregularity which nullifies the
proceedings because it runs counter to the right to due process enshrined in the
Bill of Rights. 3
Although a preliminary investigation is not a trial and is not intended to usurp the
function of the trial court, it is not a casual affair. 4 The right to a preliminary
investigation is not a mere formal or technical right but a substantive one, forming
part of due process in criminal justice. 5 The prosecutor conducting the same
investigates or inquires into the facts concerning the commission of a crime to
determine whether or not an Information should be filed against a respondent. A
preliminary investigation is in effect a realistic appraisal of the merits of the case.
Sufficient proof of the guilt of the accused must be adduced so that when the
case is tried, the trial court may not be bound, as a matter of law, to order an
acquittal. 6 A preliminary investigation has been called a judicial inquiry; it is a
judicial proceeding. An act becomes a judicial proceeding when there is an

opportunity to be heard and for the production of, and weighing of, evidence, and
a decision is rendered thereon. 7
Granting that the formation of the Joint Committee was valid, as applied to this
case, the petitioner should have been given ample opportunity to prepare her
defense by allowing her to examine documents purportedly showing the
circumstance of how the offense charged was committed. The outright denial of
petitioner's OmnibusMotion Ad Cautelam, praying that she be furnished with
copies of pertinent documents and, at the same time, requesting for an extension
of time to file her counter-affidavit, was nothing less of a violation of her right to
due process. I cannot discount the fact that the cases were submitted for
resolution without her affidavit and those of the other petitioners. Others may
perceive these requests as dilatory tactics which might unduly delay the progress
of the investigation, but I cannot share this conviction for being unfounded and
speculative. It cannot be gainsaid that the right to file a counter-affidavit in a
preliminary investigation is a crucial facet of due process. That right is
guaranteed under the due process clause. This not only protects a respondent
from the vast government machinery under the powers of which he is subdued,
but more importantly, it also provides the prosecutor the opportunity to arrive at a
fair and unprejudiced conclusion of the case.
The petitioner did not forfeit her right to submit her counter-affidavit when she
insisted to be furnished with documents referred to in the complaint. In the normal
course of things, this insistence is a naturally expected reaction to the situation.
It is likewise important to note that in his complaint, Senator Pimentel adopted all
the affidavits attached to the Fact-Finding Team's Initial Report, which he claimed
were unavailable to him. The reference to documents in a complaint, whether
attached thereto or not, can influence the mind of the prosecutor. These
documents were cited in the complaint precisely to convince the prosecutor of the
guilt of petitioner. As far as my logical mind can comprehend, I think it is nothing
short of fairness to give the petitioner to opportunity to persuade the prosecutor
otherwise. This chance can only be realized by giving her the opportunity to
examine the documents and to submit her counter-affidavit.
IDESTH

Granting arguendo that GMA is not entitled to the adopted but unattached
documents, this does not entail the automatic action of the Joint Committee to
proceed and rule on probable cause sans the counter-affidavit. Whether or not
the unfurnished documents were relevant in the line of defense to be relied on by
petitioner, the Joint Committee, in all prudence expected from a body of
esteemed membership, should have given the petitioner reasonable time to
submit her counter-affidavit after the denial of her Omnibus Motion Ad Cautelam.
Lamentably, the eagerness to file the complaint in court, at the soonest possible
time, prevailed over this path of caution.
Since a preliminary investigation is designed to screen cases for trial, only
evidence presented must be considered. While even raw information may justify
the initiation of an investigation, the stage of preliminary investigation can be held
only after sufficient evidence has been gathered and evaluated warranting the
eventual prosecution of the case in court. 8 The fact that evidentiary issues can
be better threshed out during the trial cannot justify deprivation of a respondent's
right to refute allegations thrown at him during the preliminary investigation.
Neither will an extension of a few days to enable him to submit his counteraffidavit mock the constitutional right to speedy disposition of cases because the
very reason for granting such extension holds greater significance than the latter
right.
Next, although the Comelec's vital function of guarding the people's right to
suffrage is recognized by the Court, I cannot carelessly shun the chronology of
events which preceded the filing of this case.
From the denial of petitioner's Omnibus Motion Ad Cautelam on November 15,
2011, it took the Joint Committee only a day or on November 16, 2011, to issue a
Joint Resolution recommending the filing of Information against the
respondents. 9 The said issuance was later indorsed to the Comelec, which
hastily stamped its imprimatur on it two days after, or on the morning of
November 18, 2011, despite the voluminous record. In the Comelec proceeding
that morning of November 18, 2011, one Commissioner took no part in the vote
because he could not decide on the merits of the case as he had yet to read in
full the resolution of the Joint Committee.
AIcECS

Wasting no time, on the same day, at 11:22 o'clock in the morning, the Comelec's
Law Department filed an Information with the RTC Pasay City. The trial court,
after a few hours from receipt of the Information, proceeded to issue the warrant
of arrest.
Due process demands that the Comelec should have given the petitioner the
opportunity to submit her counter-affidavit. And if its resolution would be adverse,
as was the case, she should have been given time to file a motion for
reconsideration before the Comelec. True, under Rule 13 of the Comelec Rules
of Procedure, a motion for reconsideration of an en banc ruling, resolution, order
or decision is generally proscribed. In "election offenses cases," 10 however, such
motions are allowed.
This display of alacrity, at the very least, caused nagging thoughts in my mind
considering that allegations of bias and partiality on the part of the Chairman of
the Comelec 11 have plagued this issue way before it had come to a conclusion.
Stripped-off of the media-mileage received by this case, rest evades my mind at
the thought of how the situation was handled. True, "speed in the conduct of
proceedings by a judicial or quasi-judicial officer cannot per se be attributed to
injudicious performance of functions." 12 When other factors, however, are taken
into account, like claims of failure to review records by a commissioner due to the
very short time given due to the conduct of the proceedings in whirlwind fashion,
this swiftness garners a negative nuance that unfortunately affects the neutral
facade which a judicial and quasi-judicial body must maintain. This earns my
reluctance to fully concur with the ponencia.
Lest it be misunderstood, this separate position is not a brief for the petitioner,
whose fate is up for the trial court to decide. Rather it is a statement on my belief
that the Bill of Rights enshrined in our Constitution, particularly the right to due
process, 13 should be held sacred and inviolable.
|||

(Arroyo v. Department of Justice, G.R. No. 199082, 199085, 199118,

[September 18, 2012], 695 PHIL 302-429)

[G.R. No. 176033. March 11, 2015.]

FELILIBETH
AGUINALDO
and
BENJAMIN
PEREZ, petitioners, vs. REYNALDO P. VENTUS and JOJO B.
JOSON, respondents.
DECISION
PERALTA, J :
p

Before the Court is a Petition for Review on Certiorari under Rule 45 of the Rules
of Court, seeking to nullify and set aside the Decision 1 dated August 11, 2006 of
the Court of Appeals (CA) and its December 4, 2006 Resolution 2 in CA-G.R. SP
No. 92094. The CA dismissed for lack of merit the Petition for Certiorari under
Rule 65 filed by petitioners Felilibeth Aguinaldo and Benjamin Perez, praying for
the following reliefs: (1) the issuance of a Writ of Preliminary Injunction and/or
Temporary Restraining Order to enjoin the public respondent Judge Felixberto T.
Olalia from implementing the Orders dated May 16, 2005 and August 23, 2005;
(2) the issuance of a Writ ofCertiorari to annul the said Orders, and (3) the
dismissal of the estafa case against them for having been prematurely filed and
for lack of cause of action.
The procedural antecedents are as follows:
On December 2, 2002, private respondents Reynaldo P. Ventus and Jojo B.
Joson filed a Complaint-Affidavit 3 for estafa against petitioners Aguinaldo and
Perez before the Office of the City Prosecutor (OCP) of Manila. Claiming to be
business partners in financing casino players, private respondents alleged that
sometime in March and April 2002, petitioners connived in convincing them to
part with their Two Hundred Sixty Thousand (P260,000.00) Pesos in
consideration of a pledge of two motor vehicles which the latter had
misrepresented to be owned by Aguinaldo, but turned out to be owned by one
Levita De Castro, manager/operator of LEDC Rent-A-Car.

On January 15, 2003, Perez filed his Counter-Affidavit, 4 denying the accusation
against him, and claiming that his only participation in the transaction between
private respondents and Aguinaldo was limited to having initially introduced them
to each other.
On January 22, 2003, private respondents filed their Reply-Affidavit, 5 asserting
that Perez was the one who showed them photocopies of the registration paper
of the motor vehicles in the name of Aguinaldo, as well as the one who personally
took them out from the rent-a-car company.
On January 29, 2003, Perez filed his Rejoinder-Affidavit, 6 stating that neither
original nor photocopies of the registration was required by private respondents to
be submitted to them because from the very start, they were informed by
Aguinaldo that she merely leased the vehicles from LEDC Rent-a-Car.
On February 25, 2003, Assistant City Prosecutor (ACP) Renato F. Gonzaga
issued a Resolution 7 recommending both petitioners to be indicted in court for
estafa under Article 315, paragraph (2) of the Revised Penal Code (RPC). He
also noted that Aguinaldo failed to appear and to submit any controverting
evidence despite the subpoena.
On July 16, 2003, an Information 8 (I.S. No. 02L-51569) charging petitioners with
the crime of estafa under Article 315, paragraph 2 (a) of the RPC was filed with
the Regional Trial Court of Manila. Docketed as Criminal Case No. 03-216182,
entitled "People of the Philippines v. Felilibeth Aguinaldo and Benjamin
Perez," the case was raffled to the public respondent.
On July 31, 2003, Perez was arrested, so he filed an Urgent Motion for Reduction
of Bail to be Posted in Cash, which the public respondent granted in an Order of
even date. 9
TIHCcA

On the same day, petitioners filed through counsel a Very Urgent Motion to Recall
or Quash Warrants of Arrest, 10 alleging that the Resolution dated February 25,
2003 has not yet attained finality, and that they intended to file a motion for
reconsideration.
On August 4, 2003, petitioners jointly filed with the OCP of Manila their "Motion
for Reconsideration and Motion for the Withdrawal of the Information Prematurely

Filed with the Regional Trial Court, Branch 8, City of Manila." 11 Citing the
Counter-Affidavit and Rejoinder-Affidavit of Perez, Aguinaldo asserted, among
others, that no deceit or false pretenses was committed because private
respondents were fully aware that she does not own the pledged motor vehicles.
On August 6, 2003, the public respondent issued an Order 12 granting the motion
for withdrawal of information, and directing the recall of the arrest warrant only
insofar as Aguinaldo was concerned, pending resolution of her motion for
reconsideration with the OCP.
On August 9, 2003, petitioners filed an Urgent Motion for Cancellation of
Arraignment, pending resolution of their motion for reconsideration filed with the
OCP of Manila. Upon the prosecution's motion, 13 the public respondent ordered
the proceedings to be deferred until the resolution of petitioners' motion for
reconsideration.14
On December 23, 2003, the public respondent ordered the case archived
pending resolution of petitioners' motion for reconsideration with the OCP of
Manila. 15
On January 16, 2004, the OCP of Manila, through ACP Antonio M. Israel, filed a
Motion to Set Case for Trial, 16 considering that petitioners' motions for
reconsideration and for withdrawal of the information have already been denied
for lack of merit.
On February 27, 2004, petitioners filed with the Department of Justice (DOJ) a
petition for review 17 in I.S. No. 02L-51569 for estafa, entitled "Benjamin Perez
and Felilibeth Aguinaldo v. Reynaldo P. Ventus and Jojo B. Joson."
Acting on the prosecution's recommendation for the denial of petitioners' motions
for reconsideration and withdrawal of the information, and its motion to set the
case for trial, the public respondent issued an Order 18 dated March 15, 2004
directing the issuance of a warrant of arrest against Aguinaldo and the setting of
the case for arraignment.
On March 26, 2004, petitioners filed an Urgent Motion to Cancel Arraignment and
Suspend Further Proceedings, 19 until their petition for review before the DOJ is

resolved with finality. Petitioners reiterated the same prayer in their Urgent Motion
for Reconsideration 20 of the Order dated March 15, 2004.
On April 16, 2004, the public respondent granted petitioners' urgent motion to
cancel arraignment and suspend proceedings, and motion for reconsideration. 21
On June 23, 2004, Levita De Castro, through the Law Firm of Lapea and
Associates, filed a Motion to Reinstate Case and to Issue Warrant of
Arrest. 22 De Castro alleged that she was the private complainant in the estafa
case that had been ordered archived. Petitioners filed an Opposition with Motion
to Expunge, 23 alleging that De Castro is not a party to the said case, which is in
active file, awaiting the resolution of their petition for review before the DOJ.
On October 15, 2004, De Castro filed a Manifestation 24 informing the public
respondent that the DOJ had already promulgated a Resolution dated September
6, 2004 denying petitioners' petition for review in I.S. Nos. 02G-29349 & 02G28820 for estafa, entitled "Levita De Castro v. Felilibeth Aguinaldo." 25
On May 16, 2005, the public respondent issued an Order granting the Motion to
Reinstate Case and to Issue Warrant of Arrest, thus:
Pending with this Court are (1) Motion to Reinstate Case and to Issue
Warrant of Arrest against accused Aguinaldo filed by private prosecutor
with conformity of the public prosecutor. . . .
It appears from the records that:
(1) the warrant of arrest issued against accused Aguinaldo was
recalled pending resolution of the Petition for Review filed with the
DOJ; . . .
(2) the Petition for Review was subsequently dismissed . . .
(3) accused Aguinaldo has not yet posted bail bond.

aSIHcT

In view of the foregoing, (the) Motion to Reinstate Case and to Issue

Warrant of Arrest is GRANTED. Let this case be REINSTATED and let
warrant of arrest be issued against accused Aguinaldo.
xxx xxx xxx
SO ORDERED. 26

On May 30, 2005, petitioners filed a Motion for Reconsideration with Motion to
Quash Warrant of Arrest. 27
On August 23, 2005, the public respondent issued an Order denying petitioners'
Motion for Reconsideration with Motion to Quash Warrant of Arrest, and setting
petitioners' arraignment, as the Revised Rules on Criminal Procedure (or Rules
of Court) allows only a 60-day period of suspension of arraignment.
Citing Crespo v. Mogul, 28 he also ruled that the issuance of the warrant of arrest
is best left to the discretion of the trial court. He also noted that records do not
show that the DOJ has resolved the petition for review, although photocopies
were presented by De Castro.
Aggrieved, petitioners filed with the CA a Petition for Certiorari under Rule 65 of
the Rules of Court, attributing grave abuse of discretion amounting to lack or
excess of jurisdiction on the part of the public respondent in issuing the Orders
dated May 16, 2005 and August 23, 2005. On August 11, 2006, the CA
dismissed the petition for lack of merit. Petitioners filed a motion for
reconsideration, but the CA denied it in a Resolution 29 dated December 4, 2006.
Hence, this instant petition for review oncertiorari.
Petitioners raise the following issues:
I.
THE HONORABLE COURT OF APPEALS FAILED TO APPRECIATE
THAT THE MOTION TO REINSTATE THE CASE AND ISSUE A
WARRANT OF ARREST WAS FILED BY ONE LEVITA DE CASTRO
WHO IS NOT A PARTY TO CRIMINAL CASE NO. 03-21[6]182.
II.
A PROCEDURAL TECHNICALITY THAT THE SUSPENSION
ALLOWED FOR ARRAIGNMENT IS ALREADY BEYOND THE 60-DAY
PERIOD MAY BE RELAXED IN THE INTEREST OF AN ORDERLY AND
SPEEDY ADMINISTRATION OF JUSTICE.
III.

THE PRELIMINARY INVESTIGATION ON THE I.S. NO. 02L-51569

(CRIMINAL CASE NO. 03-21[6]182) BY THE OFFICE OF THE CITY
PROSECUTOR OF MANILA HAS NOT YET BEEN COMPLETED. 30

On the first issue, petitioners argue that the public respondent erred in issuing the
Order dated May 16, 2005 reinstating the case and issuing an arrest warrant
against Aguinaldo. They point out that the Motion to Reinstate the Case and to
Issue a Warrant of Arrest against Aguinaldo was filed by De Castro who is not a
party in Criminal Case No. 03-216182, entitled "People of the Philippines v.
Felilibeth Aguinaldo and Benjamin Perez," instead of private complainants
Reynaldo P. Ventus and Jojo B. Joson. They also assert that said motion was
erroneously granted based on the purported denial of their petition for review by
the DOJ, despite a Certification showing that their actual petition in I.S. Number
02L-51569, entitled "Reynaldo Ventus, et al. v. Felilibeth Aguinaldo," has not yet
been resolved and is still pending with the DOJ.
On the second issue, petitioners argue that the provision of Section 11, Rule 116
of the Rules of Court limiting the suspension for arraignment to only sixty (60)
days is merely directory; thus, it cannot deprive petitioners of their procedural
right to due process, as their petition for review has not yet been resolved by the
DOJ.
On the third issue, petitioners take exception that even before they could receive
a copy of the DOJ resolution denying their petition for review, and thus move for
its reconsideration, the Information in Criminal Case No. 03-216182 had already
been filed with the RTC on July 16, 2003. They contend that such precipitate
filing of the Information and issuance of a warrant of arrest put petitioners at the
risk of incarceration without the preliminary investigation having been completed
because they were not afforded their right to file a motion for reconsideration of
the DOJ resolution. In support of their contention, they raise the following
arguments: that the right to preliminary investigation is a substantive, not merely
a procedural right; that an Information filed without affording the respondent his
right to file a motion for reconsideration of an adverse resolution, is fatally
premature; and, that a denial of a complete preliminary investigation deprives the
accused of the full measure of his right to due process and infringes on his
constitutional right to liberty.

The petition is denied for lack of merit.

EAISDH

On the first issue, petitioners are correct in pointing out that the Motion to
Reinstate the Case and Issue a Warrant of Arrest 31 was filed by one Levita De
Castro who is not a party to Criminal Case No. 03-216182. Records show that De
Castro is not even a private complainant, but a mere witness for being the owner
of the vehicles allegedly used by petitioners in defrauding and convincing private
respondents to part with their P260,000.00. Thus, the public respondent should
have granted petitioners' motion to expunge, and treated De Castro's motion as a
mere scrap of paper with no legal effect, as it was filed by one who is not a party
to that case.
Petitioners are also correct in noting that De Castro's motion was granted based
on the purported dismissal of their petition for review with the DOJ. In reinstating
the case and issuing the arrest warrant against Aguinaldo, the public respondent
erroneously relied on the DOJ Resolution dated September 6, 2004 dismissing
the petition for review in a different case, i.e., I.S. Nos. 02G-29349 & 02G-28820,
entitled "Levita De Castro v. Felilibeth Aguinaldo, for two (2) counts of estafa." As
correctly noted by petitioners, however, their petition for review with the DOJ is
still pending resolution. In particular, Assistant Chief State Prosecutor Miguel F.
Guido, Jr. certified that based on available records of the Office of the Chief State
Prosecutor, their petition for review filed in I.S. Number 02L-51569,
entitled "Reynaldo Ventus, et al. v. Felilibeth Aguinaldo" for estafa, is still pending
resolution as of May 27, 2005. 32 It bears stressing that their petition stemmed
from Criminal Case No. 03-216812, entitled "People of the Philippines v.
Felilibeth Aguinaldo and Benjamin Perez" wherein the public respondent issued
the interlocutory orders assailed before the CA, and now before the Court.
On the second issue, the Court disagrees with petitioners' contention that the
provision of Section 11 (c), 33 Rule 116 of the Rules of Court limiting the
suspension for arraignment to only sixty (60) days is merely directory; thus, the
estafa case against them cannot proceed until the DOJ resolves their petition for
review with finality.
In Samson v. Judge Daway, 34 the Court explained that while the pendency of a
petition for review is a ground for suspension of the arraignment, the aforecited

provision limits the deferment of the arraignment to a period of 60 days reckoned

from the filing of the petition with the reviewing office. It follows, therefore, that
after the expiration of said period, the trial court is bound to arraign the accused
or to deny the motion to defer arraignment. 35
In Dio v. Olivarez, 36 the Court held that it did not sanction an indefinite
suspension of the proceedings in the trial court. Its reliance on the reviewing
authority, the Justice Secretary, to decide the appeal at the soonest possible time
was anchored on the rule provided under Department Memorandum Order No.
12, dated 3 July 2000, which mandates that the period for the disposition of
appeals or petitions for review shall be seventy-five (75) days. 37
In Heirs of Feraren v. Court of Appeals, 38 the Court ruled that in a long line of
decisions, it has repeatedly held that while rules of procedure are liberally
construed, the provisions on reglementary periods are strictly applied,
indispensable as they are to the prevention of needless delays, and are
necessary to the orderly and speedy discharge of judicial business. After all,
rules of procedure do not exist for the convenience of the litigants, and they are
not to be trifled with lightly or overlooked by the mere expedience of invoking
"substantial justice." Relaxation or suspension of procedural rules, or the
exemption of a case from their operation, is warranted only by compelling
reasons or when the purpose of justice requires it. 39
Consistent with the foregoing jurisprudence, and there being no such reasons
shown to warrant relaxation of procedural rules in this case, the CA correctly
ruled, thus:
In the case at bar, the petitioners' petition for review was filed with the
Secretary of Justice on February 27, 2004. As early as April 16, 2004,
upon the petitioners' motion, the arraignment of the petitioners herein
was ordered deferred by the public respondent. We believe that the
period of one year and one month from April 16, 2004 to May 16, 2005
when the public respondent ordered the issuance of a warrant for the
arrest of petitioner Aguinaldo, was more than ample time to give the
petitioners the opportunity to obtain a resolution of their petition for
review from the DOJ. The petitioners though submitted a Certification
from the DOJ dated May 30, 2005 stating that their petition for review is

pending resolution by the Department as of May 27, 2005. However,

such delay in the resolution does not extend the period of 60 days
prescribed under the afore-quoted Section 11(c), Rule 116 of the
Revised Rules on Criminal Procedure. Besides, the petitioners may be
faulted for the delay in the resolution of their petition. According to their
counsel, she received the letter dated April 15, 2004 from the DOJ
requiring her to submit the pertinent pleadings relative to petitioners'
petition for review; admittedly, however, the same was complied with only
on October 15, 2004. We therefore find that the trial court did not commit
grave abuse of discretion in issuing the assailed orders. 40

On the third issue, the Court is likewise unconvinced by petitioners' argument that
the precipitate filing of the Information and the issuance of a warrant of arrest put
petitioners at the risk of incarceration without the preliminary investigation having
been completed because they were not afforded their right to file a motion for
reconsideration of the DOJ resolution.
While they are correct in stating that the right to preliminary investigation is a
substantive, not merely a procedural right, petitioners are wrong in arguing that
the Information filed, without affording the respondent his right to file a motion for
reconsideration of an adverse DOJ resolution, is fatally premature. In support of
their argument, petitioners cite Sales v. Sandiganbayan 41 wherein it was held
that since filing of a motion for reconsideration is an integral part of the
preliminary investigation proper, an Information filed without first affording the
accused his right to a motion for reconsideration, is tantamount to a denial of the
right itself to a preliminary investigation.
cTCADI

The Court finds petitioners' reliance on Sales 42 as misplaced. A closer look into
said case would reveal that the accused therein was denied his right to move for
a reconsideration or a reinvestigation of an adverse resolution in a preliminary
investigation under the Rules of Procedure of the Ombudsman before the filing of
an Information. In contrast, petitioners in this case were afforded their right to
move for reconsideration of the adverse resolution in a preliminary investigation
when they filed their "Motion for Reconsideration and Motion for the Withdrawal
of Information Prematurely Filed with the Regional Trial Court, Branch 8, City of
Manila," 43pursuant to Section 3 of the 2000 National Prosecution Service (NPS
Rule on Appeal) 44 and Section 56 of the Manual for Prosecutors. 45

With the Information for estafa against petitioners having been filed on July 16,
2003, the public respondent cannot be faulted with grave abuse of discretion in
issuing the August 23, 2005 Order denying their motion to quash warrant of
arrest, and setting their arraignment, pending the final resolution of their petition
for review by the DOJ. The Court believes that the period of almost one (1) year
and seven (7) months from the time petitioners filed their petition for review with
the DOJ on February 27, 2004 to September 14, 2005 46 when the trial court
finally set their arraignment, was more than ample time to give petitioners the
opportunity to obtain a resolution of their petition. In fact, the public respondent
had been very liberal with petitioners in applying Section 11 (c), Rule 116 of the
Rules of Court which limits the suspension of arraignment to a 60-day period
from the filing of such petition. Indeed, with more than eleven (11) years having
elapsed from the filing of the petition for review and petitioners have yet to be
arraigned, it is now high time for the continuation of the trial on the merits in the
criminal case below, as the 60-day period counted from the filing of the petition
for review with the DOJ had long lapsed.
On whether petitioners were accorded their right to a complete preliminary
investigation as part of their right to due process, the Court rules in the
affirmative. Having submitted his Counter-Affidavit and Rejoinder-Affidavit to the
OCP of Manila before the filing of Information for estafa, Perez cannot be heard
to decry that his right to preliminary investigation was not completed. For her part,
while Aguinaldo was not personally informed of any notice of preliminary
investigation prior to the filing of the Information, she was nonetheless given
opportunity to be heard during such investigation. In petitioners' motion for
reconsideration 47 of the February 25, 2003 Resolution of ACP Gonzaga,
Aguinaldo relied mostly on the Counter-Affidavit and Rejoinder-Affidavit of Perez
to assail the recommendation of the prosecutor to indict her for estafa. Since the
filing of such motion for reconsideration was held to be consistent with the
principle of due process and allowed under Section 56 of the Manual for
Prosecutors, 48 she cannot complain denial of her right to preliminary
investigation.
Both petitioners cannot, therefore, claim denial of their right to a complete
preliminary investigation as part of their right to due process. After all, "[d]ue

process simply demands an opportunity to be heard. Due process is satisfied

when the parties are afforded a fair and reasonable opportunity to explain their
respective sides of the controversy. Where an opportunity to be heard either
through oral arguments or through pleadings is accorded, there is no denial of
procedural due process." 49
In fine, the Court holds that public respondent erred in issuing the May 16, 2005
Order granting the Motion to Reinstate Case and to Issue Warrant of Arrest, as it
was filed by one who is not a party to the case, and it was based on the DOJ's
dismissal of a petition for review in a different case. Nevertheless, the Court
upholds the CA ruling that the public respondent committed no grave abuse of
discretion when he issued the August 23, 2005 Order denying petitioners' motion
to quash warrant of arrest, and setting their arraignment, despite the pendency of
their petition for review with the DOJ. For one, the public respondent had been
very liberal in applying Section 11 (c), Rule 116 of the Rules of Court which
allows suspension of arraignment for a period of 60 days only. For another,
records show that petitioners were given opportunity to be heard during the
preliminary investigation of their estafa case.
Considering that this case had been held in abeyance long enough without
petitioners having been arraigned, the Court directs the remand of this case to
the trial court for trial on the merits with strict observance of Circular No. 3898 dated August 11, 1998, or the "Implementing the Provisions of Republic Act
No. 8493, entitled 'An Act to Ensure a Speedy Trial of All Criminal Cases Before
the Sandiganbayan, Regional Trial Court, Metropolitan Trial Court, Municipal Trial
Court in Cities, Municipal Trial Court and Municipal Circuit Trial Court,
Appropriating Funds Therefor, and for Other Purposes.'" In this regard, suffice it
to state that petitioners cannot invoke violation of their right to speedy trial
because Section 9 (3) of Circular No. 38-98 excludes in computing the time within
which trial must commence the delay resulting from extraordinary remedies
against interlocutory orders, such as their petitions before the CA and the Court.
Finally, in order to avoid delay in the proceedings, judges are reminded that the
pendency of a motion for reconsideration, motion for reinvestigation, or petition
for review is not a cause for the quashal of a warrant of arrest previously issued
because the quashal of a warrant of arrest may only take place upon the finding

that no probable cause exists. Moreover, judges should take note of the
following:
HaIESC

1. If there is a pending motion for reconsideration or motion for

reinvestigation of the resolution of the public prosecutor, the
court may suspend the proceedings upon motion by the
parties. However, the court should set the arraignment of the
accused and direct the public prosecutor to submit the
resolution disposing of the motion on or before the period
fixed by the court, which in no instance could be more than
the period fixed by the court counted from the granting of the
motion to suspend arraignment, otherwise the court will
proceed with the arraignment as scheduled and without
further delay.
2. If there is a pending petition for review before the DOJ, the court
may suspend the proceedings upon motion by the parties.
However, the court should set the arraignment of the
accused and direct the DOJ to submit the resolution
disposing of the petition on or before the period fixed by the
Rules which, in no instance, could be more than sixty (60)
days from the filing of the Petition for Review before the DOJ,
otherwise, the court will proceed with the arraignment as
scheduled and without further delay.
WHEREFORE, premises considered, the petition is DENIED. The Decision dated
August 11, 2006 of the Court of Appeals and its Resolution dated December 4,
2006 in CA-G.R. SP No. 92094, are AFFIRMED. Considering that the
proceedings in this criminal case had been held in abeyance long enough, let the
records of this case be remanded to the trial court which is hereby DIRECTED to
try the case on the merits with dispatch in accordance with the Court's Circular
No. 38-98 dated August 11, 1998.
SO ORDERED.
|||

(Aguinaldo v. Ventus, G.R. No. 176033, [March 11, 2015])

8.
[G.R. No. 101837. February 11, 1992.]
ROLITO GO y TAMBUNTING, petitioner, vs. THE COURT OF
APPEALS; THE HON. BENJAMIN V. PELAYO, Presiding Judge,
Branch 168, Regional Trial Court, NCJR Pasig, M.M.; and
PEOPLE OF THE PHILIPPINES, respondents.
SYLLABUS
1. REMEDIAL LAW; CRIMINAL PROCEDURE; WARRANTLESS ARREST
UNDER SEC. 5, RULE 113, NOT APPLICABLE IN CASE AT BAR. We do not
believe that the warrantless "arrest" or detention of petitioner in the instant case
falls within the terms of Section 5 of Rule 113 of the 1985 Rules on Criminal
Procedure which provides as follows: "Sec. 5. Arrest without warrant; when
lawful. A peace officer or a private person may, without a warrant, arrest a
person: (a) When, in his presence, the person to be arrested has committed, is
actually committing, or is attempting to commit an offense; (b) When an offense
has in fact just been committed, and he has personal knowledge of facts
indicating that the person to be arrested has committed it; and (c) When the
person to be arrested is a prisoner who has escaped from a penal establishment
or place where he is serving final judgment or temporarily confined while his case
is pending, or has escaped while being transferred from one confinement to
another. In cases falling under paragraphs (a) and (b) hereof, the person arrested
without a warrant shall be forthwith delivered to the nearest police station or jail,
and he shall be proceeded against in accordance with Rule 112, Section 7."
Petitioner's "arrest" took place six (6) days after the shooting of Maguan. The
arresting officers obviously were not present, within the meaning of Section 5(a),
at the time petitioner had allegedly shot Maguan. Neither could the "arrest"
effected six (6) days after the shooting be reasonably regarded as effected "when
[the shooting had] in fact just been committed" within the meaning of Section 5
(b). Moreover, none of the "arresting" officers had any "personal knowledge" of

facts indicating that petitioner was the gunman who had shot Maguan. The
information upon which the police acted had been derived from statements made
by alleged eyewitnesses to the shooting -- one stated that petitioner was the
gunman; another was able to take down the alleged gunman's car's plate number
which turned out to be registered in petitioner's wife's name. That information did
not, however, constitute "personal knowledge." It is thus clear to the Court that
there was no lawful warrantless arrest of petitioner within the meaning of Section
5 of Rule 113.
2. ID.; ID.; ID.; ACCUSED ENTITLED TO A PRELIMINARY INVESTIGATION
WITHOUT ANY CONDITIONS. Petitioner was not arrested at all. When he
walked into the San Juan Police Station, accompanied by two (2) lawyers, he in
fact placed himself at the disposal of the police authorities. He did not state that
he was "surrendering" himself, in all probability to avoid the implication he was
admitting that he had slain Eldon Maguan or that he was otherwise guilty of a
crime. When the police filed a complaint for frustrated homicide with the
Prosecutor, the latter should have immediately scheduled a preliminary
investigation to determine whether there was probable cause for charging
petitioner in court for the killing of Eldon Maguan. Instead, as noted earlier, the
Prosecutor proceeded under the erroneous supposition that Section 7 of Rule
112 was applicable and required petitioner to waive the provisions of Article 125
of the Revised Penal Code as a condition for carrying out a preliminary
investigation. This was substantive error, for petitioner was entitled to a
preliminary investigation and that right should have been accorded him without
any conditions. Moreover, since petitioner had not been arrested, with or without
a warrant, he was also entitled to be released forthwith subject only to his
appearing at the preliminary investigation.
3. ID.; ID.; ID.; RIGHT TO PRELIMINARY INVESTIGATION; NO WAIVER
THEREOF MADE IN CASE AT BAR. Turning to the second issue of whether
or not petitioner had waived his right to preliminary investigation, we note that
petitioner had from the very beginning demanded that a preliminary investigation
be conducted. As earlier pointed out, on the same day that the information for
murder was filed with the Regional Trial Court, petitioner filed with the Prosecutor
an omnibus motion for immediate release and preliminary investigation. The

Solicitor General contends that that omnibus motion should have been filed with
the trial court and not with the Prosecutor, and that petitioner should accordingly
be held to have waived his right to preliminary investigation. We do not believe
that waiver of petitioner's statutory right to preliminary investigation may be
predicated on such a slim basis. The preliminary investigation was to be
conducted by the Prosecutor, not by the Regional Trial Court. It is true that at the
time of filing of petitioner's omnibus motion, the information for murder had
already been filed with the Regional Trial Court: it is not clear from the record
whether petitioner was aware of this fact at the time his omnibus motion was
actually filed with the Prosecutor. Nonetheless, since petitioner in his omnibus
motion was asking for preliminary investigation and not for a re-investigation and
since the Prosecutor himself did file with the trial court, on the 5th day after filing
the information for murder, a motion for leave to conduct preliminary investigation
(attaching to his motion a copy of petitioner's omnibus motion), we conclude that
petitioner's omnibus motion was in effect filed with the trial court. What was
crystal clear was that petitioner did ask for a preliminary investigation on the very
day that the information was filed without such preliminary investigation, and that
the trial court was five (5) days later apprised of the desire of the petitioner for
such preliminary investigation. Finally, the trial court did in fact grant the
Prosecutor's prayer for leave to conduct preliminary investigation. Thus, even on
the (mistaken) supposition apparently made by the Prosecutor that Section 7 of
Rule 112 of the Revised Court was applicable, the 5-day reglementary period in
Section 7, Rule 112 must be held to have been substantially complied with. We
believe and so hold that petitioner did not waive his right to a preliminary
investigation. The rule is that the right to preliminary investigation is waived when
the accused fails to invoke it before or at the time of entering a plea at
arraignment. In the instant case, petitioner Go had vigorously insisted on his right
to preliminary investigation before his arraignment. We do not believe that by
posting bail, petitioner had waived his right to preliminary investigation. Petitioner
Go asked for release on recognizance or on bail and for preliminary investigation
in one omnibus motion. He had thus claimed his right to preliminary
investigation before respondent Judge approved the cash bond posted by
petitioner and ordered his release on 12 July 1991. Accordingly, we cannot
reasonably imply waiver of preliminary investigation on the part of petitioner. In

fact, when the Prosecutor filed a motion in court asking for leave to conduct
preliminary investigation, he clearly if impliedly recognized that petitioner's claim
to preliminary investigation was a legitimate one.
4. ID.; ID.; ID.; ID.; A SUBSTANTIVE RIGHT AND A COMPONENT PART OF
DUE PROCESS. While the right to a preliminary investigation is statutory
rather than constitutional in its fundament, since it has in fact been established by
statute, it is a component part of due process in criminal justice. The right to have
a preliminary investigation conducted before being bound over to trial for a
criminal offense and hence formally at risk of incarceration or some other penalty,
is not a mere formal or technical right; it is a substantive right. The accused in a
criminal trial is inevitably exposed to prolonged anxiety, aggravation, humiliation,
not to speak of expense; the right to an opportunity to avoid a process painful to
any one save, perhaps, to hardened criminals, is a valuable right. To deny
petitioner's claim to a preliminary investigation would be to deprive him of the full
measure of his right to due process.
5. ID.; ID.; FAILURE TO ACCORD PRELIMINARY INVESTIGATION DOES NOT
IMPAIR VALIDITY OF INFORMATION FILED. Contrary to petitioner's
contention the failure to accord preliminary investigation, while constituting a
denial of the appropriate and full measure of the statutory process of criminal
justice, did not impair the validity of the information for murder nor affect the
jurisdiction of the trial court.
6. ID.; ID.; ACCUSED ENTITLED TO PRELIMINARY INVESTIGATION EVEN
THOUGH TRIAL ON THE MERITS HAS ALREADY BEGAN. We consider that
petitioner remains entitled to a preliminary investigation although trial on the
merits has already began. Trial on the merits should be suspended or held in
abeyance and a preliminary investigation forthwith accorded to petitioner. The
constitutional point is that petitioner was not accorded what he was entitled to by
way of procedural due process. Petitioner was forced to undergo arraignment and
literally pushed to trial without preliminary investigation, with extraordinary haste,
to the applause from the audience that filled the courtroom. If he submitted to
arraignment and trial, petitioner did so "kicking and screaming," in a manner of
speaking. During the proceedings held before the trial court on 23 August 1991,
the date set for arraignment of petitioner, and just before arraignment, counsel

made very clear petitioner's vigorous protest and objection to the arraignment
precisely because of the denial of preliminary investigation.
7. ID.; ID.; ACCUSED ENTITLED TO BE RELEASED ON BAIL AS A MATTER
OF RIGHT. In respect of the matter of bail, petitioner remains entitled to be
released on bail as a matter of right. Should the evidence already of record
concerning petitioner's guilt be, in the reasonable belief of the Prosecutor, strong,
the Prosecutor may move in the trial court for cancellation of petitioner's bail. It
would then be up to the trial court, after a careful and objective assessment of the
evidence on record, to grant or deny the motion for cancellation of bail. It must
also be recalled that the Prosecutor had actually agreed that petitioner was
entitled to bail. This was equivalent to an acknowledgment on the part of the
Prosecutor that the evidence of guilt then in his hands was not strong.
Accordingly, we consider that the 17 July 1991 order of respondent Judge
recalling his own order granting bail and requiring petitioner to surrender himself
within forty-eight (48) hours from notice, was plainly arbitrary considering that no
evidence at all and certainly no new or additional evidence had been
submitted to respondent Judge that could have justified the recall of his order
issued just five (5) days before.

8. ID.; ID.; RELIANCE ON THE CASE OF UMIL v. RAMOS, MISPLACED;

OFFENSE COMMITTED NOT CONSIDERED A "CONTINUING CRIME." The
reliance of both petitioner and the Solicitor General upon Umil v. Ramos (G.R.
No. 81567, promulgated 3 October 1991) is, in the circumstances of this case,
misplaced. In Umil v. Ramos, by an eight-to-six vote, the Court sustained the
legality of the warrantless arrests of petitioners made from one (1) to fourteen
(14) days after the actual commission of the offenses, upon the ground that such
offenses constituted "continuing crimes." Those offenses were subversion,
membership in an outlawed organization like the New Peoples Army, etc. In the
instant case, the offense for which petitioner was arrested was murder, an
offense which was obviously commenced and completed at one definite location
in time and space. No one had pretended that the fatal shooting of Maguan was a
"continuing crime."

9. CONSTITUTIONAL LAW; STATE SHOULD REAFFIRM ITS OBLIGATION TO

RESPECT THE RIGHTS AND LIBERTIES OF ITS CONSTITUENTS; TO
ACCORD AN ACCUSED HIS RIGHT TO A PRELIMINARY INVESTIGATION
AND TO BAIL IN CASE AT BAR, NOT AN IDLE CEREMONY. To reach any
other conclusion here, that is, to hold that petitioner's rights to a preliminary
investigation and to bail were effectively obliterated by evidence subsequently
admitted into the record would be to legitimize the deprivation of due process and
to permit the Government to benefit from its own wrong or culpable omission and
effectively to dilute important rights of accused persons well-nigh to the vanishing
point. It may be that to require the State to accord petitioner his rights to a
preliminary investigation and to bail at this point, couldturn out ultimately to be
largely a ceremonial exercise. But the Court is not compelled to speculate. And,
in any case, it would not be idle ceremony; rather it would be a celebration by the
State of the rights and liberties of its own people and a re-affirmation of its
obligation and determination to respect those rights and liberties.
CRUZ, J., concurring:
1. REMEDIAL LAW; CRIMINAL PROCEDURE; STATUTORY RIGHTS OF
ACCUSED TO PROCEDURAL DUE PROCESS VITIATED IN CASE AT BAR.
Petitioner had from the start demanded a preliminary investigation and that his
counsel has reluctantly participated in the trial only because the court threatened
to replace him with a counselde oficio if he did not. Under these circumstances, I
am convinced that there was no waiver. The petitioner was virtually compelled to
go to trial. Such compulsion and the unjustified denial of a clear statutory right of
the petitioner vitiated the proceedings as violative of procedural due process.
GUTIERREZ, JR., J., concurring:
1. JUDICIAL ETHICS; COURTS; IMPORTANCE OF FOLLOWING THE RULES
EMPHASIZED. The need for a trial court to follow the Rules and to be fair,
impartial, and persistent in getting the true facts of a case is present in all cases
but it is particularly important if the accused is indigent; more so, if he is one of
those unfortunates who seem to spend more time behind bars than outside.
Unlike the accused in this case who enjoys the assistance of competent counsel,
a poor defendant convicted by wide and unfavorable media coverage may be

presumed guilty before trial and be unable to defend himself properly. Hence, the
importance of the court always following the Rules.
GRIO-AQUINO, J., dissenting:
1. REMEDIAL LAW; CRIMINAL PROCEDURE; PRELIMINARY INVESTIGATION,
NO LONGER NEEDED; RETURN OF CASE TO THE PROSECUTOR,
SUPEREROGATORY. I do not believe that there is still need to conduct a
preliminary investigation the sole purpose of which would be to ascertain if there
is sufficient ground to believe that a crime was committed (which the petitioner
does not dispute) and that he (the petitioner) is probably guilty thereof (which the
prosecutor, by filing the information against him, presumably believed to be so).
In the present stage of the presentation of the prosecution's evidence, to return
the case to the Prosecutor to conduct a preliminary investigation under Rule 112
of the 1985 Rules on Criminal Procedure would be supererogatory.
2. ID.; ID.; RIGHT TO PRELIMINARY INVESTIGATION, NOT A
CONSTITUTIONAL RIGHT. It should be remembered that as important as is
the right of the accused to a preliminary investigation, it is not a constitutional
right. Its absence is not a ground to quash the information
(Doromal vs. Sandiganbayan, 177 SCRA 354). It does not affect the court's
jurisdiction, nor impair the validity of the information (Rodis vs. Sandiganbayan,
166 SCRA 618), nor constitute an infringement of the right of the accused to
confront witnesses (Bustos vs. Lucero, 81 Phil. 640).
3. ID.; ID.; HEARING OF APPLICATION FOR BAIL; SHOULD NOT BE
SUSPENDED AND SHOULD NOT BE SUBORDINATED TO THE
PRELIMINARY INVESTIGATION OF THE CHARGE. The court's hearing of
the application for bail should not be subordinated to the preliminary investigation
of the charge. The hearing should not be suspended, but should be allowed to
proceed for it will accomplish a double purpose. The parties will have an
opportunity to show not only: (a) whether or not there is probable cause to believe
that the petitioner killed Eldon Maguan, but more importantly (b) whether or not
the evidence of his guilt is strong. The judge's determination that the evidence of
his guilt is strong would naturally foreclose the need for a preliminary
investigation to ascertain the probability of his guilt. The bail hearing may not be
suspended because upon the filing of an application for bail by one accused of a

capital offense, "the judge is under a legal obligation to receive evidence with the
view of determining whether evidence of guilt is so strong as to warrant denial of
bond."
4. ID.; ID.; ABOLITION OF DEATH PENALTY DID NOT MAKE THE RIGHT TO
BAIL ABSOLUTE; ACCUSED MAY NOT BE RELEASED PENDING HEARING
OF PETITION FOR BAIL. The abolition of the death penalty did not make the
right to bail absolute, for persons charged with offenses punishable by reclusion
perpetua, when evidence of guilt is strong, are not bailable (Sec. 3, Art. III, 1987
Constitution). In People vs. Dacudao, 170 SCRA 489, we called down the trial
court for having granted the motion for bail in a murder case without any hearing
and without giving the prosecution an opportunity to comment or file objections
thereto. Similarly, this Court held inPeople vs. Bocar, 27 SCRA 512: ". . . due
process also demands that in the matter of bail the prosecution should be
afforded full opportunity to present proof of the guilt of the accused. Thus, if it
were true that the prosecution in this case was deprived of the right to present its
evidence against the bail petition, or that the order granting such petition was
issued upon incomplete evidence, then the issuance of the order would really
constitute abuse of discretion that would call for the remedy of certiorari." The
petitioner may not be released pending the hearing of his petition for bail for it
would be incongruous to grant bail to one who is not in the custody of the law
(Feliciano vs. Pasicolan, 2 SCRA 888).
5. ID.; ID.; TERM "ARREST," CONSTRUED. Arrest is the taking of a person
into custody in order that he may be bound to answer for the commission of an
offense (Sec. 1, Rule 113, Rules of Court). An arrest is made by an actual
restraint of the person to be arrested, or by his submission to the custody of the
person making the arrest (Sec. 2, Rule 113, Rules of Court). When Go walked
into the San Juan Police Station on July 8, 1991, and placed himself at the
disposal of the police authorities who clamped him in jail after he was identified
by an eyewitness as the person who shot Maguan, he was actually and
effectively arrested. His filing of a petition to be released on bail was a waiver of
any irregularity attending his arrest and estops him from questioning its validity
(Callanta vs. Villanueva, 77 SCRA 377; Bagcal vs.Villaraza, 120 SCRA 525).

DECISION
FELICIANO, J :
p

According to the findings of the San Juan Police in their Investigation Report, 1 on
2 July 1991, Eldon Maguan was driving his car along Wilson St., San Juan, Metro
Manila, heading towards P. Guevarra St. Petitioner entered Wilson St., where it is
a one-way street and started travelling in the opposite or "wrong" direction. At the
corner of Wilson and J. Abad Santos Sts., petitioner's and Maguan's cars nearly
bumped each other. Petitioner alighted from his car, walked over and shot
Maguan inside his car. Petitioner then boarded his car and left the scene. A
security guard at a nearby restaurant was able to take down petitioner's car plate
number. The police arrived shortly thereafter at the scene of the shooting and
there retrieved an empty shell and one round of live ammunition for a 9mm
caliber pistol. Verification at the Land Transportation Office showed that the car
was registered to one Elsa Ang Go.
The following day, the police returned to the scene of the shooting to find out
where the suspect had come from; they were informed that petitioner had dined
at Cravings Bake Shop shortly before the shooting. The police obtained a
facsimile or impression of the credit card used by petitioner from the cashier of
the bake shop. The security guard of the bake shop was shown a picture of
petitioner and he positively identified him as the same person who had shot
Maguan. Having established that the assailant was probably the petitioner, the
police launched a manhunt for petitioner.
On 8 July 1991, petitioner presented himself before the San Juan Police Station
to verify news reports that he was being hunted by the police; he was
accompanied by two (2) lawyers. The police forthwith detained him. An
eyewitness to the shooting, who was at the police station at that time, positively
identified petitioner as the gunman. That same day, the police promptly filed a
complaint for frustrated homicide 2 against petitioner with the Office of the
Provincial Prosecutor of Rizal. First Assistant Provincial Prosecutor Dennis Villa
Ignacio ("Prosecutor") informed petitioner, in the Presence of his lawyers, that he
could avail himself of his right to preliminary investigation but that he must first

sign a waiver of the provisions of Article 125 of the Revised Penal Code.
Petitioner refused to execute any such waiver.

On 9 July 1991, while the complaint was still with the Prosecutor, and before an
information could be filed in court, the victim, Eldon Maguan, died of his gunshot
wound(s).
prcd

Accordingly, on 11 July 1991, the Prosecutor, instead of filing an information for

frustrated homicide, filed an information for murder 3 before the Regional Trial
Court. No bail was recommended. At the bottom of the information, the
Prosecutor certified that no preliminary investigation had been conducted
because the accused did not execute and sign a waiver of the provisions of
Article 125 of the Revised Penal Code.
In the afternoon of the same day, 11 July 1991, counsel for petitioner filed with
the prosecutor an omnibus motion for immediate release and proper preliminary
investigation, 4 alleging that the warrantless arrest of petitioner was unlawful and
that no preliminary investigation had been conducted before the information was
filed. Petitioner also prayed that he be released on recognizance or on bail.
Provincial Prosecutor Mauro Castro, acting on the omnibus motion, wrote on the
last page of the motion itself that he interposed no objection to petitioner being
granted provisional liberty on a cash bond of P100,000.00.
On 12 July 1991, petitioner filed an urgent ex-parte motion for special raffle 5 in
order to expedite action on the Prosecutor's bail recommendation. The case was
raffled to the sala of respondent Judge, who, on the same date, approved the
cash bond 6 posted by petitioner and ordered his release. 7 Petitioner was in fact
released that same day.
On 16 July 1991, the Prosecutor filed with the Regional Trial Court a motion for
leave to conduct preliminary investigation 8 and prayed that in the meantime all
proceedings in the court be suspended. He stated that petitioner had filed before
the Office of the Provincial Prosecutor of Rizal an omnibus motion for immediate
release and preliminary investigation, which motion had been granted by
Provincial Prosecutor Mauro Castro, who also agreed to recommend cash bail of

P100,000.00. The Prosecutor attached to the motion for leave a copy of

petitioner's omnibus motion of 11 July 1991.
Also on 16 July 1991, the trial court issued an Order 9 granting leave to conduct
preliminary investigation and cancelling the arraignment set for 15 August 1991
until after the prosecution shall have concluded its preliminary investigation.
On 17 July 1991, however, respondent Judge motu proprio issued an
Order, 10 embodying the following: (1) the 12 July 1991 Order which granted bail
was recalled; petitioner was given 48 hours from receipt of the Order to surrender
himself; (2) the 16 July 1991 Order which granted leave to the prosecutor to
conduct preliminary investigation was recalled and cancelled; (3) petitioner's
omnibus motion for immediate release and preliminary investigation dated 11
July 1991 was treated as a petition for bail and set for hearing on 23 July 1991.
On 19 July 1991, petitioner filed a petition for certiorari, prohibition and
mandamus before the Supreme Court assailing the 17 July 1991 Order,
contending that the information was null and void because no preliminary
investigation had been previously conducted, in violation of his right to due
process. Petitioner also moved for suspension of all proceedings in the case
pending resolution by the Supreme Court of his petition; this motion was,
however, denied by respondent Judge.
LLphil

On 23 July 1991, petitioner surrendered to the police.

By a Resolution dated 24 July 1991, this Court remanded the petition
for certiorari, prohibition and mandamus to the Court of Appeals.
On 16 August 1991, respondent Judge issued an order in open court setting the
arraignment of petitioner on 23 August 1991.
On 19 August 1991, petitioner filed with the Court of Appeals a motion to restrain
his arraignment.
On 23 August 1991, respondent judge issued a Commitment Order directing the
Provincial Warden of Rizal to admit petitioner into his custody at the Rizal
Provincial Jail. On the same date, petitioner was arraigned. In view, however, of
his refusal to enter a plea, the trial court entered for him a plea of not guilty. The
trial court then set the criminal case for continuous hearings on 19, 24 and 26

September; on 2, 3, 11 and 17 October; and on 7, 8, 14, 15, 21 and 22

November 1991. 11
On 27 August 1991, petitioner filed a petition for habeas corpus 12 in the Court of
Appeals. He alleged that in view of public respondents' failure to join issues in the
petition for certiorari earlier filed by him, after the lapse of more than a month,
thus prolonging his detention, he was entitled to be released on habeas corpus.
On 30 August 1991, the Court of Appeals issued the writ of habeas
corpus. 13 The petition for certiorari, prohibition and mandamus, on the one hand,
and the petition for habeas corpus, upon the other, were subsequently
consolidated in the Court of Appeals.
The Court of Appeals, on 2 September 1991, issued a resolution denying
petitioner's motion to restrain his arraignment on the ground that motion had
become moot and academic.
On 19 September 1991, trial of the criminal case commenced and the
prosecution presented its first witness.
On 23 September 1991, the Court of Appeals rendered a consolidated
decision 14 dismissing the two (2) petitions, on the following grounds:
a. Petitioner's warrantless arrest was valid because the offense for which
he was arrested and charged had been "freshly committed." His identity
had been established through investigation. At the time he showed up at
the police station, there had been an existing manhunt for him. During
the confrontation at the San Juan Police Station, one witness positively
identified petitioner as the culprit.
b. Petitioner's act of posting bail constituted waiver of any irregularity
attending his arrest. He waived his right to preliminary investigation by
not invoking it properly and seasonably under the Rules.
c. The trial court did not abuse its discretion when it issued the 17 July
1991 Order because the trial court had the inherent power to amend and
control its processes so as to make them conformable to law and justice.
d. Since there was a valid information for murder against petitioner and a
valid commitment order (issued by the trial judge after petitioner

surrendered to the authorities whereby petitioner was given to the

custody of the Provincial Warden), the petition for habeas corpus could
not be granted.

On 3 October 1991, the prosecution presented three (3) more witnesses at the
trial. Counsel for petitioner also filed a "Withdrawal of Appearance" 15 with the
trial court, with petitioner's conformity.
On 4 October 1991, the present petition for Review on Certiorari was filed. On 14
October 1991, the Court issued a Resolution directing respondent Judge to held
in abeyance the hearing of the criminal case below until further orders from this
Court.
In this Petition for Review, two (2) principal issues need to be addressed: first,
whether or not a lawful warrantless arrest had been effected by the San Juan
Police in respect of petitioner Go; and second, whether petitioner had effectively
waived his right to preliminary investigation. We consider these issues seriatim.

LLphil

In respect of the first issue, the Solicitor General argues that under the facts of
the case, petitioner had been validly arrested without warrant. Since petitioner's
identity as the gunman who had shot Eldon Maguan on 2 July 1991 had been
sufficiently established by police work, petitioner was validly arrested six (6) days
later at the San Juan Police Station. The Solicitor General invokes Nazareno v.
Station Commander, etc., et al., 16 one of the seven (7) cases consolidated
with In the Matter of the Petition for Habeas Corpus of Roberto Umil, etc. v.
Ramos et al., 17 where a majority of the Court upheld a warrantless arrest as
valid although effected fourteen (14) days after the killing in connection with
which Nazareno had been arrested. Accordingly, in the view of the Solicitor
General, the provisions of Section 7, Rule 112 of the Rules of Court were
applicable and because petitioner had declined to waive the provisions of Article
125 of the Revised Penal Code, the Prosecutor was legally justified in filing the
information for murder even without preliminary investigation.
On the other hand, petitioner argues that he was not lawfully arrested without
warrant because he went to the police station six (6) days after the shooting
which he had allegedly perpetrated. Thus, petitioner argues, the crime had not
been "just committed" at the time that he was arrested. Moreover, none of the

police officers who arrested him had been an eyewitness to the shooting of
Maguan and accordingly none had the "personal knowledge" required for the
lawfulness of a warrantless arrest. Since there had been no lawful warrantless
arrest, Section 7, Rule 112 of the Rules of Court which establishes the only
exception to the right to preliminary investigation, could not apply in respect of
petitioner.
The reliance of both petitioner and the Solicitor General upon Umil v. Ramos is, in
the circumstances of this case, misplaced. In Umil v. Ramos, by an eight-to-six
vote, the Court sustained the legality of the warrantless arrests of petitioners
made from one (1) to fourteen (14) days after the actual commission of the
offenses, upon the ground that such offenses constituted "continuing crimes."
Those offenses were subversion, membership in an outlawed organization like
the New Peoples Army, etc. In the instant case, the offense for which petitioner
was arrested was murder, an offense which was obviously commenced and
completed at one definite location in time and space. No one had pretended that
the fatal shooting of Maguan was a "continuing crime."
Secondly, we do not believe that the warrantless "arrest" or detention of petitioner
in the instant case falls within the terms of Section 5 of Rule 113 of the 1985
Rules on Criminal Procedure which provides as follows:

"Sec. 5. Arrest without warrant; when lawful. A peace officer or a

private person may, without a warrant, arrest a person:
(a) When, in his presence, the person to be created has committed, is
actually committing, or is attempting to commit an offense;
(b) When an offense has in fact just been committed, and he has
personal knowledge of facts indicating that the person to be arrested has
committed it; and
(c) When the person to be arrested is a prisoner who has escaped from
a penal establishment or place where he is serving final judgment or
temporarily confined while his case is pending, or has escaped while
being transferred from one confinement to another.

In cases falling under paragraphs (a) and (b) hereof, the person arrested
without a warrant shall be forthwith delivered to the nearest police station
or jail, and he shall be proceeded against in accordance with Rule 112,
Section 7."

Petitioner's "arrest" took place six (6) days after the shooting of Maguan. The
"arresting" officers obviously were not present, within the meaning of Section
5(a), at the time petitioner had allegedly shot Maguan. Neither could the
"arrest" effected six (6) days after the shooting be reasonably regarded as
effected "when [the shooting had] in fact just been committed" within the
meaning of Section 5 (b). Moreover, none of the "arresting" officers had any
"personal knowledge" of facts indicating that petitioner was the gunman who
had shot Maguan. The information upon which the police acted had been
derived from statements made by alleged eyewitnesses to the shooting one
stated that petitioner was the gunman; another was able to take down the
alleged gunman's car's plate number which turned out to be registered in
petitioner's wife's name. That information did not, however, constitute
"personal knowledge." 18
It is thus clear to the Court that there was no lawful warrantless arrest of
petitioner within the meaning of Section 5 of Rule 113. It is clear too that Section
7 of Rule 112, which provides:
"Sec. 7. When accused lawfully arrested without warrant. When a
person is lawfully arrested without a warrant for an offense cognizable by
the Regional Trial Court the complaint or information may be filed by the
offended party, peace officer or fiscal without a preliminary investigation
having been first conducted, on the basis of the affidavit of the offended
party or arresting office or person.
However, before the filing of such complaint or information, the person
arrested may ask for a preliminary investigation by a proper officer in
accordance with this Rule, but he must sign a waiver of the provisions of
Article 125 of the Revised Penal Code, as amended, with the assistance
of a lawyer and in case of non-availability of a lawyer, a responsible
person of his choice. Notwithstanding such waiver, he may apply for
bail as provided in the corresponding rule and the investigation must be
terminated within fifteen (15) days from its inception.
Cdpr

If the case has been filed in court without a preliminary investigation

having been first conducted, the accused may within five (5) days from
the time he learns of the filing of the information, ask for a preliminary
investigation with the same right to adduce evidence in his favor in the
manner prescribed in this Rule." (Underscoring supplied).

is also not applicable. Indeed, petitioner was not arrested at all. When he
walked into the San Juan Police Station, accompanied by two (2) lawyers, he
in fact placed himself at the disposal of the police authorities. He did not state
that he was "surrendering" himself, in all probability to avoid the implication he
was admitting that he had slain Eldon Maguan or that he was otherwise guilty
of a crime. When the police filed a complaint for frustrated homicide with the
Prosecutor, the latter should have immediately scheduled a preliminary
investigation to determine whether there was probable cause for charging
petitioner in court for the killing of Eldon Maguan. Instead, as noted earlier, the
Prosecutor proceeded under the erroneous supposition that Section 7 of Rule
112 was applicable and required petitioner to waive the provisions of Article
125 of the Revised Penal Code as a condition for carrying out a preliminary
investigation. This was substantive error, for petitioner was entitled to a
preliminary investigation and that right should have been accorded him
without any conditions. Moreover, since petitioner had not been arrested; with
or without a warrant, he was also entitled to be released forthwith subject only
to his appearing at the preliminary investigation.
Turning to the second issue of whether or not petitioner had waived his right to
preliminary investigation, we note that petitioner had from the very beginning
demanded that a preliminary investigation be conducted. As earlier pointed out,
on the same day that the information for murder was filed with the Regional Trial
Court. Petitioner filed with the prosecutor an omnibus motion for immediate
release and preliminary investigation. The Solicitor General contends that
omnibus motion should have been filed with the trial court and not with the
Prosecutor, and that petitioner should accordingly be held to have waived his
right to preliminary investigation. We do not believe that waiver of petitioner's
statutory right to preliminary investigation may be predicated on such a slim
basis. The preliminary investigation was to be conducted by the Prosecutor, not
by the Regional Trial Court. It is true that at the time of filing of petitioner's

omnibus motion, the information for murder had already been filed with the
Regional Trial Court; it is not clear from the record whether petitioner was aware
of this fact at the time his omnibus motion was actually filed with the Prosecutor.
In Crespo v. Mogul, 19 this Court held:
"The preliminary investigation conducted by the fiscal for the purpose of
determining whether a prima facie case exists warranting the prosecution
of the accused is terminated upon the filing of the information in the
proper court. In turn, as above stated, the filing of said information sets
in motion the criminal action against the accused in Court. Should the
fiscal find it proper to conduct a reinvestigation of the case, at such
stage, the permission of the Court must be secured. After such
reinvestigation the finding and recommendations of the fiscal should be
submitted to the Court for appropriate action. While it is true that the
fiscal has the quasi judicial discretion to determine whether or not a
criminal case should be filed in court or not, once the case had already
been brought to Court whatever disposition the fiscal may feel should be
proper in the case thereafter should be addressed for the consideration
of the Court. The only qualification is that the action of the Court must
not impair the substantial rights of the accused, or the right of the People
to due process of law.
xxx xxx xxx
The rule therefore in this jurisdiction is that once a complaint or
information is filed in Court any disposition of the case [such] as its
dismissal or the conviction or acquittal of the accused rests in the sound
discretion of the Court. Although the fiscal retains the direction and
control of the prosecution of criminal cases even while the case is
already in Court he cannot impose his opinion on the trial court. The
Court is the best and sole judge on what to do with the case before
it. . . ." 20 (Citations omitted, underscoring supplied).

Nonetheless, since petitioner in his omnibus motion was asking for preliminary
investigation and not for a reinvestigation (Crespo v. Mogul involved a reinvestigation), and since the Prosecutor himself did file with the trial court, on
the 5th day after filing the information for murder, a motion for leave to conduct
preliminary investigation (attaching to his motion a copy of petitioner's
omnibus motion), we conclude that petitioner's omnibus motion was in effect

filed with the trial court. What was crystal clear was that petitioner did ask for a
preliminary investigation on the very day that the information was filed without
such preliminary investigation, and that the trial court was five (5) days later
apprised of the desire of the petitioner for such preliminary investigation.
Finally, the trial court did in factgrant the Prosecutor's prayer for leave to
conduct preliminary investigation. Thus, even on the (mistaken) supposition
apparently made by the Prosecutor that Section 7 of Rule 112 of the Revised
Court was applicable, the 5-day reglementary period in Section 7, Rule 112
must be held to have been substantially complied with.
LexLib

We believe and so hold that petitioner did not waive his right to a preliminary
investigation. While that right is statutory rather than constitutional in its
fundament, since it has in fact been established by statute, it is a component part
of due process in criminal justice. 20 The right to have a preliminary investigation
conducted before being bound over to trial for a criminal offense and hence
formally at risk of incarceration or some other penalty, is not a mere formal or
technical right; it is asubstantive right. The accused in a criminal trial is inevitably
exposed to prolonged anxiety, aggravation, humiliation, not to speak of expense;
the right to an opportunity to avoid a process painful to any one save, perhaps, to
hardened criminals, is a valuable right. To deny petitioner's claim to a preliminary
investigation would be to deprive him of the full measure of his right to due
process.
The question may be raised whether petitioner still retains his right to a
preliminary investigation in the instant case considering that he was already
arraigned on 23 August 1991. The rule is that the right to preliminary investigation
is waived when the accused fails to invoke it before or at the time of entering a
plea at arraignment. 21In the instant case, petitioner Go had vigorously insisted
on his right to preliminary investigation before his arraignment. At the time of his
arraignment, petitioner was already before the Court of Appeals on certiorari,
prohibition and mandamus precisely asking for a preliminary investigation before
being forced to stand trial.

Again, in the circumstances of this case, we do not believe that by posting bail,
petitioner had waived his right to preliminary investigation. In People v.

Selfaison, 22 we did hold that appellants there had waived their right to
preliminary investigation because immediately after their arrest, they filed bail and
proceeded to trial "without previously claiming that they did not have the benefit
of a preliminary investigation." 23 In the instant case, petitioner Go asked for
release on recognizance or on bail and for preliminary investigation in one
omnibus motion. He had thus claimed his right to preliminary
investigation before respondent Judge approved the cash bond posted by
petitioner and ordered his release on 12 July 1991. Accordingly, we cannot
reasonably imply waiver of preliminary investigation on the part of petitioner. In
fact, when the Prosecutor filed a motion in court asking for leave to conduct
preliminary investigation, he clearly if impliedly recognized that petitioner's claim
to preliminary investigation was a legitimate one.
We would clarify, however, that contrary to petitioner's contention the failure to
accord preliminary investigation, while constituting a denial of the appropriate and
full measure of the statutory process of criminal justice, did not impair the validity
of the information for murder nor affect the jurisdiction of the trial court. 24
It must also be recalled that the Prosecutor had actually agreed that petitioner
was entitled to bail. This was equivalent to an acknowledgment on the part of the
prosecutor that the evidence of guilt then in his hands was not strong.
Accordingly, we consider that the 17 July 1991 order of respondent Judge
recalling his own order granting bail and requiring petitioner to surrender himself
within forty-eight (48) hours from notice, was plainly arbitrary considering that no
evidence at all and certainly no new or additional evidence had been
submitted to respondent Judge that could have justified the recall of his order
issued just five (5) days before. It follows that petitioner was entitled to be
released on bail as a matter of right.
The final question which the Court must face is this: how does the fact that, in the
instant case, trial on the merits has already commenced, the Prosecutor having
already presented four (4) witnesses, impact upon, firstly, petitioner's right to a
preliminary investigation and secondly, petitioner's right to be released on bail?
Does he continue to be entitled to have a preliminary investigation conducted in
respect of the charge against him? Does petitioner remain entitled to be released
on bail?

Turning first to the matter of preliminary investigation, we consider that petitioner

remains entitled to a preliminary investigation although trial on the merits has
already began. Trial on the merits should be suspended or held in abeyance and
a preliminary investigation forthwith accorded to petitioner. 25 It is true that the
prosecutor might, in view of the evidence that he may at this time have on hand,
conclude that probable cause exists; upon the other hand, the Prosecutor
conceivably could reach the conclusion that the evidence on hand does not
warrant a finding of probable cause. In any event, the constitutional point is that
petitioner was notaccorded what he was entitled to by way of procedural due
process. 26 Petitioner was forced to undergo arraignment and literally pushed to
trial without preliminary investigation, with extraordinary haste, to the applause
from the audience that filled the courtroom. If he submitted to arraignment and
trial, petitioner did so "kicking and screaming," in a manner of speaking. During
the proceedings held before the trial court on 23 August 1991, the date set for
arraignment of petitioner, and just before arraignment, counsel made very clear
petitioner's vigorous protest and objection to the arraignment precisely because
of the denial of preliminary investigation. 27 So energetic and determined were
petitioner's counsel's protest and objection that an obviously angered court and
prosecutor dared him to withdraw or walkout, promising to replace him with
counsel de oficio. During the trial, just before the prosecution called its first
witness, petitioner through counsel once again reiterated his objection to going to
trial without preliminary investigation; petitioner's counsel made or record his
"continuing objection." 28 Petitioner had promptly gone to the appellate court
on certiorari and prohibition to challenge the lawfulness of the procedure he was
being forced to undergo and the lawfulness of his detention. 29 If he did not
walkout on the trial, and if he cross-examined the Prosecution's witnesses, it was
because he was extremely loath to be represented by counsel de oficioselected
by the trial judge, and to run the risk of being held to have waived also his right to
use what is frequently the only test of truth in the judicial process.
In respect of the matter of bail, we similarly believe and so hold that petitioner
remains entitled to be released on bail as a matter of right. Should the evidence
already of record concerning petitioner's guilt be, in the reasonable belief of the
Prosecutor, strong, the Prosecutor may move in the trial court for cancellation of
petitioner's bail. It would then be up to the trial court, after a careful and objective

assessment of the evidence on record, to grant or deny the motion for

cancellation of bail.
To reach any other conclusion here, that is, to hold that petitioner's rights to a
preliminary investigation and to bail were effectively obliterated by evidence
subsequently admitted into the record would be to legitimize the deprivation of
due process and to permit the Government to benefit from its own wrong or
culpable omission and effectively to dilute important rights of accused persons
well-nigh to the vanishing point. It may be that to require the State to accord
petitioner his rights to a preliminary investigation and to bail at this
point, could turn out ultimately to be largely a ceremonial exercise. But the Court
is not compelled to speculate. And, in any case, it would not be idle ceremony;
rather it would be a celebration by the State of the rights and liberties of its own
people and a re-affirmation of its obligation and determination to respect those
rights and liberties.
ACCORDINGLY, the Court Resolved to GRANT the Petition for Review on
Certiorari. The Order of the trial court dated 17 July 1991 is hereby SET ASIDE
and NULLIFIED, and the Decision of the Court of Appeals dated 23 September
1991 hereby REVERSED.
The Office of the Provincial Prosecutor is hereby ORDERED to conduct forthwith
a preliminary investigation of the charge of murder against petitioner Go, and to
complete such preliminary investigation within a period of fifteen (15) days from
commencement thereof. The trial on the merits of the criminal case in the
Regional Trial Court shall be SUSPENDED to await the conclusion of the
preliminary investigation.
Meantime, petitioner is hereby ORDERED released forthwith upon posting of a
cash bail bond of One Hundred Thousand Pesos (P100,000.00). This release
shall be without prejudice to any lawful order that the trial court may issue, should
the Office of the Provincial Prosecutor move for cancellation of bail at the
conclusion of the preliminary investigation.
No pronouncement as to costs. This Decision is immediately executory.
SO ORDERED.

Narvasa, C.J., Bidin, Medialdea, Romero and Nocon, JJ., concur.

Separate Opinions
CRUZ, J., concurring:
I was one of the members of the Court who initially felt that the petitioner had
waived the right to preliminary investigation because he freely participated in his
trial and his counsel even cross-examined the prosecution witnesses. A closer
study of the record, however, particularly of the transcript of the proceedings
footnoted in theponencia, reveals that he had from the start demanded a
preliminary investigation and that his counsel had reluctantly participated in the
trial only because the court threatened to replace him with a counsel de oficio if
he did not. Under these circumstances, I am convinced that there was no waiver.
The petitioner was virtually compelled to go to trial. Such compulsion and the
unjustified denial of a clear statutory right of the petitioner vitiated the
proceedings as violative of procedural due process.
It is true that the ruling we lay down here will take the case back to square one,
so to speak, but that is not the petitioner's fault. He had a right to insist that the
procedure prescribed by the Rules of Court be strictly observed. The delay
entailed by the procedural lapse and the attendant expense imposed on the
Government and the defendant must be laid at the door of the trial judge for his
precipitate and illegal action.
It appears that the trial court has been moved by a desire to cater to public
opinion to the detriment of the impartial administration of justice. The petitioner as
portrayed by the media is not exactly a popular person. Nevertheless, the trial
court should not have been influenced by this irrelevant consideration,
remembering instead that its only guide was the mandate of the law.
GUTIERREZ, JR., J., concurring:
I concur in the majority decision penned by Mr. Justice Florentino P. Feliciano but
am at a loss for reasons why an experienced Judge should insist on proceeding
to trial in a sensational murder case without a preliminary investigation inspite of

the vigorous and continued objection and reservation of rights of the accused and
notwithstanding the recommendations of the Prosecutor that those rights must be
respected. If the Court had faithfully followed the Rules, trial would have
proceeded smoothly and if the accused is really guilty, then he may have been
convicted by now. As it is, the case has to go back to square one.
LexLib

I agree with Justice Isagani Cruz "that the trial court has (apparently) been
moved by a desire to cater to public opinion to the detriment of the impartial
administration of justice." Mass media has its duty to fearlessly but faithfully
inform the public about events and persons. However, when a case has received
wide and sensational publicity, the trial court should be doubly careful not only to
be fair and impartial but also to give the appearance of complete objectivity in its
handling of the case.

The need for a trial court to follow the Rules and to be fair, impartial, and
persistent in getting the true facts of a case is present in all cases but it is
particularly important if the accused is indigent; more so, if he is one of those
unfortunates who seem to spend more time behind bars than outside. Unlike the
accused in this case who enjoys the assistance of competent counsel, a poor
defendant convicted by wide and unfavorable media coverage may be presumed
guilty before trial and be unable to defend himself properly. Hence, the
importance of the court always following the Rules.
While concurring with Justice Feliciano's ponencia, I am constrained to add the
foregoing observations because I feel they form an integral part of the Court's
decision.
GRIO-AQUINO, J., dissenting:
I regret that I cannot agree with the majority opinion in this case. At this point,
after four (4) prosecution witnesses have already testified, among them an
eyewitness who identified the accused as the gunman who shoot Eldon Maguan
inside his car in cold blood, and a security guard who identified the plate number
of the gunman's car, I do not believe that there is still need to conduct a
preliminary investigation the sole purpose of which would be to ascertain if there

is sufficient ground to believe that a crime was committed (which the petitioner
does not dispute) and that he (the petitioner) is probably guilty thereof (which the
prosecutor, by filing the information against him, presumably believed to be so).
In the present stage of the presentation of the prosecution's evidence, to return
the case to the prosecutor to conduct a preliminary investigation under Rule 112
of the 1985 Rules on Criminal Procedure would be supererogatory.
This case did not suffer from a lack of previous investigation. Diligent police work,
with ample media coverage, led to the identification of the suspect who, seven (7)
days after the shooting, appeared at the San Juan police station to verify news
reports that he was the object of a police manhunt. Upon entering the station, he
was positively identified as the gunman by an eyewitness who was being
interrogated by the police to ferret more clues and details about the crime. The
police thereupon arrested the petitioner and on the same day, July 8, 1991,
promptly filed with the Provincial Prosecutor of Rizal, a complaint for frustrated
homicide against him. As the victim died the next day, July 9, 1991, before an
information could be filed, the First Assistant Prosecutor, instead of filing an
information for frustrated homicide, filed an information for murder on July 11,
1991 in the Regional Trial Court, with no bail recommended.
However, the Provincial Prosecutor, acting on the petitioner's omnibus motion for
preliminary investigation and release on bail (which was erroneously filed with his
office instead of the court), recommended a cash bond of P100,000 for his
release, and submitted the omnibus motion to the trial court for resolution.
Respondent Judge Benjamin Pelayo must have realized his impetuosity shortly
after he had issued: (a) his order of July 12, 1991 approving the petitioner's cash
bail bond without a hearing, and (b) his order of July 16, 1991 granting the
Prosecutor leave to conduct a preliminary investigation, for he motu
proprio issued on July 17, 1991 another order rescinding his previous orders and
setting for hearing the petitioner's application for bail.
The cases cited in page 15 of the majority opinion in support of the view that the
trial of the case should be suspended and that the prosecutor should now
conduct a preliminary investigation, are not on all fours with this case. In Doromal
vs. Sandiganbayan, 177 SCRA 354 and People vs. Monton, 23 SCRA 1024, the

trial of the criminal case had not yet commenced because motions to quash the
information were filed by the accused. Lozada vs. Hernandez, 92 Phil. 1053; U.S.
vs. Banzuela, 31 Phil. 565;San Diego vs. Hernandez, 24 SCRA 110 and People
vs. Oandasan, 25 SCRA 277 are also inapplicable because in those cases
preliminary investigations had in fact been conducted before the informations
were filed in court.
cdll

It should be remembered that as important as is the right of the accused to a

preliminary investigation, it is not a constitutional right. Its absence is not a
ground to quash the information (Doromal vs. Sandiganbayan, 177 SCRA 354). It
does not affect the Court's jurisdiction, nor impair the validity of the information
(Rodis vs. Sandiganbayan, 166 SCRA 618), nor constitute an infringement of the
right of the accused to confront witnesses (Bustos vs. Lucero, 81 Phil. 640).
The petitioner's motion for a preliminary investigation is not more important that
his application for release on bail, just as the conduct of such preliminary
investigation is not more important than the hearing of the application for bail.
The court's hearing of the application for bail should not be subordinated to the
preliminary investigation of the charge. The hearing should not be suspended,
but should be allowed to proceed for it will accomplish a double purpose. The
parties will have an opportunity to show not only: (a) whether or not there is
probable cause to believe that the petitioner killed Eldon Maguan, but more
importantly (b) whether or not the evidence of his guilt is strong. The judge's
determination that the evidence of his guilt is strong would naturally foreclose the
need for a preliminary investigation to ascertain the probability of his guilt.
The bail hearing may not be suspended because upon the filing of an application
for bail by one accused of a capital offense, "the judge is under a legal
obligation to receive evidence with the view of determining whether evidence of
guilt is so strong as to warrant denial of bond." (Payao vs. Lesaca, 63 Phil.
210; Hadhirul Tahil vs. Eisma, 64 SCRA 378; Peralta vs. Ramos and Provincial
Fiscal of Isabela, 71 Phil. 271; Padilla vs. Enrile, 121 SCRA 472; Ilagan vs.
Ponce Enrile, 139 SCRA 349; People vs. Albofera, 152 SCRA 123.).
The abolition of the death penalty did not make the right to bail absolute, for
persons charged with offenses punishable by reclusion perpetua, when evidence

of guilt is strong, are not bailable (Sec. 3, Art. III, 1987 Constitution). In People
vs. Dacudao, 170 SCRA 489, we called down the trial court for having granted
the motion for bail in a murder case without any hearing and without giving the
prosecution an opportunity to comment or file objections thereto.
LLphil

Similarly, this Court held in People vs. Bocar, 27 SCRA 512:

". . . due process also demands that in the matter of bail the prosecution
should be afforded full opportunity to present proof of the guilt of the
accused. Thus, if it were true that the prosecution in this case was
deprived of the right to present its evidence against the bail petition, or
that the order granting such petition was issued upon incomplete
evidence, then the issuance of the order would really constitute abuse of
discretion that would call for the remedy of certiorari." (Emphasis
supplied.).

The petitioner may not be released pending the hearing of his petition for bail for
it would be incongruous to grant bail to one who is not in the custody of the law
(Feliciano vs. Pasicolan, 2 SCRA 888).
I respectfully take exception to the statements in the ponencia that the "petitioner
was not arrested at all" (p. 12) and that "petitioner had not been arrested, with or
without a warrant" (p. 130). Arrest is the taking of a person into custody in order
that he may be bound to answer for the commission of an offense (Sec. 1, Rule
113, Rules of Court). An arrest is made by an actual restraint of the person to be
arrested, or by his submission to the custody of the person making the arrest
(Sec. 2, Rule 113, Rules of Court). When Go walked into the San Juan Police
Station on July 8, 1991, and placed himself at the disposal of the police
authorities who clamped him in jail after he was identified by an eyewitnesses as
the person who shot Maguan, he was actually and effectively arrested. His filing
of a petition to be released on bail was a waiver of any irregularity attending his
arrest and stops him from questioning its validity (Callanta vs. Villanueva, 77
SCRA 377; Bagcal vs. Villaraza, 120 SCRA 525).
I, vote to dismiss the petition and affirm the trial court's order of July 17, 1991.
Melencio-Herrera, Paras, Padilla, Davide, Jr. and Regalado, JJ., concur.
|||

(Go y Tambunting v. Court of Appeals, G.R. No. 101837, [February 11, 1992])

9.
[G.R. No. 108431. July 14, 2000.]
OSCAR G. RARO, petitioner, vs. THE HONORABLE
SANDIGANBAYAN (Second Division), THE HONORABLE
OMBUDSMAN and PEOPLE OF THE
PHILIPPINES, respondents.
Agrava Lucero Roxas & Martinez for petitioner.
The Solicitor General for respondents.
SYNOPSIS
Petitioner Oscar G. Raro, a lawyer, was the Corporate Secretary of the Philippine
Charity Sweepstakes Office (PCSO). As such, petitioner was the Acting Manager
of the Special Projects Department that was in charge of the experimental Small
Town Lottery (STL), which under PCSO Resolution No. 118, dated April 1987,
was to be operated in certain areas of the country. In a complaint filed with the
Tanodbayan in Manila on May 20, 1988, Luis ("Bing") F. Abao, Provincial
Manager of the experimental STL in Daet, Camarines Norte, alleged that
petitioner, in his capacity as PCSO Corporate Secretary "personally and directly
intervened in the operation of said lottery to his financial benefit and advantage."
On July 2, 1992, an information dated May 19, 1992 was filed with the
Sandiganbayan, accusing petitioner with violation of Section 3 (b) of Republic Act
No. 3019. On October 12, 1992, petitioner filed with the Sandiganbayan, a motion
to quash the information, on the ground that the court did not acquire jurisdiction
in view of violation of accused's constitutional rights during the preliminary
investigation. Petitioner alleged further that there was a "jurally and
constitutionally defective determination of probable cause" as the complainant
and his witnesses were never personally examined by any of the officers at the
Office of the Ombudsman and the Special Prosecutor. Brushing aside said

allegations as mere speculations, the Sandiganbayan found no reason to depart

from its earlier conclusion that there was no compelling justification to disturb the
prosecution's finding of a probable cause. Hence, the instant petition to enjoin
respondents Sandiganbayan, the Ombudsman and the People of the Philippines
from proceeding with Criminal Case No. 17800.
The Supreme Court affirmed the assailed resolutions of the Sandiganbayan. The
Court ruled that the Sandiganbayan did not violate petitioner's right to due
process of law by its failure to personally examine the complainant before it
issued the warrant of arrest. In a preliminary examination for the issuance of a
warrant of arrest, a court is not required to review in detail the evidence submitted
during the preliminary investigation. What is required is that the judge "personally
evaluates the report and supporting documents submitted by the prosecution in
determining probable cause." In the absence of evidence that the Sandiganbayan
did not personally evaluate the necessary records of the case, the presumption of
regularity in the conduct of its official business shall stand. Neither did the Court
find any factual support to petitioner's claim that the 4-year delay in the
completion of the preliminary investigation is unexplained. The record clearly
showed that the Ombudsman exerted utmost effort to determine the veracity of
Abao's allegations against petitioner. The length of time it took before the
conclusion of the preliminary investigation may only be attributed to the
adherence of the Ombudsman and the NBI to the rules of procedure and the
rudiments of fair play. The Sandiganbayan was directed by the Court to proceed
with deliberate dispatch in the disposition of Criminal Case No. 17800.
SYLLABUS
1. REMEDIAL LAW; SPECIAL CIVIL ACTIONS; CERTIORARI AND
PROHIBITION; NOT THE PROPER REMEDY TO ASSAIL DENIAL OF A
MOTION TO QUASH AN INFORMATION. It is settled that a special civil action
for certiorari and prohibition is not the proper remedy to assail the denial of a
motion to quash an information. This is succinctly underscored in Quion
v. Sandiganbayan as follows: "The special civil action of certiorari or prohibition is
not the proper remedy against interlocutory orders such as those assailed in
these proceedings; i.e., an order denying a motion to quash the information, and

one declaring the accused to have waived his right to present evidence and
considering the case submitted for decision. As pointed out by the Office of the
Solicitor General (citing Nierras v. Dacuycuy, 181 SCRA 1 [1990]), and Acharon
v. Purisima, et al., 13 SCRA 309; People v. Madaluyo, 1 SCRA 990), the
established rule is that when such an adverse interlocutory order is rendered, the
remedy is not to resort forthwith to certiorari or prohibition, but to continue with
the case in due course and, when an unfavorable verdict is handed down to take
an appeal in the manner authorized by law. It is only where there are special
circumstances clearly demonstrating the inadequacy of an appeal that the special
civil action of certiorari or prohibition may exceptionally be allowed. The Court
has been cited to no such special circumstances in the cases at bar." In the case
at bar, there is no showing of such special circumstances. The jurisdiction of the
Ombudsman over the complaint is not even questioned by petitioner as his
motion to quash the information is based on the allegedly "highly anomalous
preliminary investigation" that amounted to a denial of his rights to due process
and to speedy disposition of the charge against him. However, an incomplete
preliminary investigation or the absence thereof may not warrant the quashal of
an information. In such cases, the proper procedure is for the Sandiganbayan to
hold in abeyance any further proceedings conducted and to remand the case to
the Ombudsman for preliminary investigation or completion thereof. However,
granting arguendo that the preliminary investigation was sham and highly
anomalous in this case, that defect was cured when the above procedure was in
fact observed by the Sandiganbayan. Hence, on the issue alone of the propriety
of the remedy sought by petitioner, the instant petition for certiorari and
prohibition must fail. However, in the interest of justice, we shall resolve the issue
of whether or not the Ombudsman conducted the preliminary investigation
erroneously and irregularly.
SCaTAc

2. CONSTITUTIONAL LAW; ACCOUNTABILITY OF PUBLIC OFFICERS;

OFFICE OF THE OMBUDSMAN; NO FORM OR MANNER IS REQUIRED IN
FILING A COMPLAINT BEFORE SAID OFFICE; ISSUE OF SUFFICIENCY IN
THE FORM OF THE COMPLAINT IN CASE AT BAR WAS RENDERED MOOT
AND ACADEMIC BY PETITIONER'S FILING OF A COUNTER-AFFIDAVIT
WHEREIN HE CONTROVERTED ALLEGATIONS IN THE COMPLAINT.
Article XI, Section 12 of the 1987 Constitution, which was in force and effect

when Abao filed the complaint against petitioner, provides: "Sec. 12. The
Ombudsman and his Deputies, as protectors of the people, shall act promptly
on complaints filed in any form or manner against public officials or employees of
the Government, or any subdivision, agency or instrumentality thereof, including
government-owned or controlled corporations, and shall, in appropriate cases,
notify the complainants of the action taken and the result thereof." The mandate
to act promptly oncomplaints filed in any form or manner against officers or
employees of the Government is restated in Section 13 of Republic Act No. 6770
("The Ombudsman Act of 1989"), approved into law on November 17, 1989. The
same authority to act on complaints "in any form, either verbal or in writing," is
also reiterated in Rule 1, Section 3 of the Rules of Procedure of the Office of the
Ombudsman, which is embodied in Administrative Order No. 07 dated April 10,
1990, issued pursuant to the rule-making power of the Ombudsman under
Section 13 (8) of the 1987 Constitution and Sections 18, 23 and 27 of "The
Ombudsman Act of 1989." In accordance with the foregoing constitutional and
statutory provisions, this Court, in Diaz v. Sandiganbayan, held valid charges that
were not made in writing or under oath. This Court found as sufficient basis the
Solicitor General's sworn testimony at the joint fact-finding investigation
conducted by the Senate Blue Ribbon Committee and the Ombudsman for the
latter to conduct an investigation. On the other hand, in Olivas v. Office of the
Ombudsman, where the complaint against petitioner was initiated by anonymous
letters, this Court held that the PCGG, to whom the letters were addressed and
who became the complainant in the proceedings, should have reduced the
evidence it had gathered into affidavits. The submission of affidavits, provided for
in Rule II, Section 4 (a) of Administrative Order No. 07, is also required by due
process in adversary proceedings. However, the submission of affidavits is not
mandatory and jurisdictional. Rule 1, Section 3 of the same administrative order
merely states that it is "preferable" that the complaint "be in writing and under
oath" for its speedier disposition. Clearly in consonance with the provision that
the complaint may be in any form, the Ombudsman Rules of Procedure does not
require that the complaint be subscribed only before the Ombudsman or his duly
authorized representative. In any event, the issue of the sufficiency in form of the
complaint was rendered moot and academic by petitioner's filing of a counteraffidavit wherein he controverted the allegations in the complaint.

3. ID.; ID.; ID.; BY REFERRING COMPLAINT TO THE NATIONAL BUREAU OF

INVESTIGATION, THE OMBUDSMAN DID NOT THEREBY DELEGATE
CONDUCT OF THE PRELIMINARY INVESTIGATION OF THE CASE TO THAT
INVESTIGATIVE BUREAU; WHAT WAS DELEGATED WAS ONLY THE FACTFINDING FUNCTION, PREPARATORY TO PRELIMINARY INVESTIGATION
STILL TO BE CONDUCTED BY THE OMBUDSMAN. The referral of the
complaint to the NBI does not mean that the Ombudsman abdicated its
constitutional and statutory duty to conduct preliminary investigations. By
referring Abao's complaint to the NBI, the Ombudsman did not thereby delegate
the conduct of the preliminary investigation of the case to that investigative
bureau. What was delegated was only the fact-finding function, preparatory to the
preliminary investigation still to be conducted by the Ombudsman. Notably, under
Rule II, Section 2 (d) of Administrative Order No. 07, the investigating officer has
the option to forward the complaint to the appropriate office or official for factfinding investigation. While Administrative Order No. 07 took effect in mid-1990 or
after the complaint in this case was referred to the NBI, the inclusion of that
constitutionally sanctioned practice in the Ombudsman Rules of Procedure lends
validity to the Ombudsman's action in this case. Under the circumstances of this
case, the Ombudsman's failure to personally administer oath to the complainant
does not mean that the Ombudsman did not personally determine the existence
of probable cause to warrant the filing of an information.

4. ID.; ID.; ID.; LENGTH OF TIME IT TOOK BEFORE CONCLUSION OF

PRELIMINARY INVESTIGATION MAY ONLY BE ATTRIBUTED TO
ADHERENCE OF THE OMBUDSMAN AND THE NBI OF THE RULES OF
PROCEDURE AND RUDIMENTS OF FAIR PLAY. Neither is there factual
support to petitioner's claim that the 4-year delay in the completion of the
preliminary investigation is unexplained. The record clearly shows that the
Ombudsman exerted utmost effort to determine the veracity of Abao's
allegations against petitioner. That it took the NBI almost two years to complete
its report on the matter does not mean that petitioner's right to speedy disposition
of the charge was brushed aside. If delay may be imputed in the proceedings, the
same should be reckoned only from October 25, 1991 when petitioner filed his

counter-affidavit. Thirty-six (36) days thereafter or on November 29, 1991, GIO II

Caraos issued the Resolution recommending the filing of the information. Further
delay, if indeed it could be called one, was caused by the review of GIO II Caraos'
recommendation by her superiors. Some seven and a half months later, or on
June 11, 1992, the information was filed with the Sandiganbayan. There is thus
no reason to conclude that the Ombudsman ran roughshod over the petitioner's
right to a speedy preliminary investigation. In the determination of whether or not
that right has been violated, the factors that may be considered and weighed are
"the length of delay, the reasons for such delay, the assertion or failure to assert
such right by the accused, and the prejudice caused by the delay." The length of
time it took before the conclusion of the preliminary investigation may only be
attributed to the adherence of the Ombudsman and the NBI to the rules of
procedure and the rudiments of fair play. The allegations of Abao's complaint
had to be verified; the Ombudsman did not believe the same hook, line and
sinker. Recently, the Court held that while the Rules of Court provides a ten-day
period from submission of the case within which an investigating officer must
come out with a resolution, that period of time is merely directory.
DcCHTa

5. ID.; RIGHT TO DUE PROCESS OF LAW; NOT VIOLATED BY

SANDIGANBAYAN BY ITS FAILURE TO PERSONALLY EXAMINE
COMPLAINANT BEFORE IT ISSUED WARRANT OF ARREST; IN A
PRELIMINARY INVESTIGATION FOR ISSUANCE OF A WARRANT OF
ARREST, A COURT IS NOT REQUIRED TO REVIEW IN DETAIL THE
EVIDENCE SUBMITTED DURING PRELIMINARY INVESTIGATION. Neither
did the Sandiganbayan violate petitioner's right to due process of law by its failure
to personally examine the complainant before it issued the warrant of arrest. In
a preliminary examination for the issuance of a warrant of arrest, a court is not
required to review in detail the evidence submitted during the preliminary
investigation. What is required is that the judge "personally evaluates the report
and supporting documents submitted by the prosecution in determining probable
cause." In the absence of evidence that the Sandiganbayan did not personally
evaluate the necessary records of the case, the presumption of regularity in the
conduct of its official business shall stand.

DECISION
YNARES-SANTIAGO, J :
p

The issue in this special civil action of certiorari and prohibition is whether or not
the Sandiganbayan gravely abused its discretion in denying a motion to quash an
information on the ground that the preliminary investigation allegedly violated the
right of the accused to due process of law.
Petitioner Oscar G. Raro, a lawyer, was the Corporate Secretary of the Philippine
Charity Sweepstakes Office (PCSO). As such, petitioner was the Acting Manager
of the Special Projects Department that was in charge of the experimental Small
Town Lottery (STL), which under PCSO Resolution No. 118, dated April 1987,
was to be operated in certain areas of the country. On July 30, 1987, the PCSO,
through Atty. Reynaldo E. Ilagan of the Special Projects Department, authorized
Elmec Trading and Management Corporation (ELMEC) to operate the STL in the
province of Camarines Norte. ELMEC in turn employed Luis ("Bing") F. Abao, a
resident of Daet, Camarines Norte, as Provincial Manager of the experimental
STL in said province. 1 Abao allegedly invested P100,000.00 in the STL
operation in that province.
In a complaint that he filed with the Tanodbayan in Manila on May 20, 1988,
Abao alleged that petitioner, in his capacity as PCSO Corporate Secretary,
"personally and directly intervened in the operation of said lottery to his financial
benefit and advantage" by committing the following acts:
(1) Causing the employment of members of his family in the
experimental STL project that was under his supervision, in violation of
Section 3 (d) of the Anti-Graft Law;
AcEIHC

(2) Deciding on the dismissal of certain lottery employees and in bad

faith driving Abao "to sever from the management of lottery" which at
that time was grossing about P250,000.00 daily under a "profit-sharing"
agreement, thus causing Abao "damage and injury" in the amount of
P1,300,000.00, in violation of Section 3 (e) of the Anti-Graft Law; and

(3) Regularly demanding from Abao amounts totaling more than

P100,000.00 as his share in the experimental lottery, in violation of
Section 3 (h) of the Anti-Graft Law.

Abao maintained further that petitioner got mad at him when he gave petitioner
a check instead of cash, which petitioner later used to accuse Abao of issuing a
bouncing check notwithstanding that the check was not encashed. Abao added
that petitioner was not only dishonest but displayed such dishonesty. 2 The
complaint filed by Abao's counsel was verified and subscribed before a notary
public, 3 and docketed in the Office of the Ombudsman as OSP-88-01263.
Overall Ombudsman Jose G. Colayco, on July 1, 1988, endorsed the complaint
to the National Bureau of Investigation (NBI). 4 On May 11, 1989, NBI-LED
Officer-in-Charge Gerarda G. Galang submitted a report stating that the
investigation conducted by NBI Senior Agent Salvador A. Duka yielded the
following findings:
(a) On the charge of employment of relatives, Abao charged that
petitioner asked him to appoint his (petitioner's) brother as station
manager of the lottery in Labo, Camarines Norte. Likewise according to
Abao, petitioner imposed on him the appointment of petitioner's sister,
Marissa Raro-Remigio as the STL provincial cashier. Per the joint
affidavit of Yoly Malubay, Ruben Galeon, Rosalio Poblete and Francisco
Villaluz, petitioner's brother named Antonio, the lottery station manager,
signed payrolls, vouchers and other pertinent papers using the name
Joel Remigio, Marissa's husband. In 1988, Antonio Raro was appointed
Assistant Provincial Operations Manager of the STL in Camarines Norte.
On the other hand, Marissa Raro-Remigio claimed that it was ELMEC
that offered her the position of treasurer of the STL and that on January
27, 1988, ELMEC terminated the employment of Abao and the
employees he had hired. However, the circumstances surrounding
ELMEC's employment of petitioner's brother and sister were not verified
from the owners of ELMEC.
(b) With respect to the charge that petitioner demanded from Abao the
total amount of P100,000.00, no receipt was shown to prove petitioner's
having in fact received that sum although Ruidera and Galeon, in their
affidavits, confirmed that said amount was given to petitioner and to Atty.

Ilagan. Since the sworn statements of Ilagan and Cordez and those of
Fernando Carrascoso and Rustico Manalo, who allegedly received 25%
of the proceeds of the STL, had not yet been taken, there were certain
aspects of the charge that should be considered. Hence, "no definite
conclusion could be made" thereon.
AaHDSI

(c) The subject of dismissal of employees was not yet covered by the
investigation.

With these findings, Galang recommended that further investigation be

conducted and that a copy of the "evaluation comment" be furnished the
Ombudsman with the information "that further investigation (was) still being
conducted on some aspects of the case." 5 Accordingly, NBI Director J. Antonio
M. Carpio endorsed on May 11, 1989 the "evaluation comment" and the NBI
agent's report to the Ombudsman. 6
On July 12, 1989, NBI Agent Duka submitted a Disposition Form stating that per
the joint affidavit of Yolly Manubay, Ruben Galeon, Rosario Poblete and
Francisco Villaluz, petitioner's brother, Antonio Raro signed "numerous vouchers,
payrolls and other papers" in the name of Joel Remigio. The sworn statement of
Teddy Aguirre and xerox copies of vouchers supported this. However, the original
copies of the vouchers could not be secured on account of the cessation of
operation of the STL in Camarines Norte since July 1988. Neither could the
sworn statement of Antonio Raro be secured. Thus, NBI Agent Duka
recommended that further investigation be conducted in coordination with
LUCSO in Lucena City. 7
Ombudsman Graft Investigation Officer II (GIO II) Theresa Medialdea-Caraos
submitted to Ombudsman Conrado Vasquez a Memorandum dated March 15,
1990, with the following recommendation:
"RECOMMENDED ACTION: The initial report of the NBI points only to
the anomalies allegedly committed by the respondent's brother, Antonio.
The appointment of his sister which was supposedly imposed on the
complainant is not supported by evidence other than the mere allegation
of the latter.
The misdeeds committed by respondent were not based on acts as
presented by NBI.

It is therefore recommended that further investigation by NBI be

conducted in order to determine the veracity of the charges."

The Memorandum was recommended for approval by Acting Director

Gualberto J. de la Llana and approved on March 22, 1990 by Ombudsman
Vasquez. 8
On September 19, 1990, the NBI recommended the prosecution of petitioner
based on Abao's complaint. 9 Thus, on May 14, 1991, GIO II Caraos formally
directed petitioner to file his counter-affidavit and controverting evidence to the
complaint of May 6, 1988, with a warning that his failure "to do so shall be
construed as a waiver of his right to be heard and the preliminary investigation
shall proceed accordingly." 10 On petitioner's motion, the Ombudsman granted
him until September 7, 1991 within which to file his counter-affidavit. On
September 7, 1991, petitioner sought another extension within which to file his
counter-affidavit. 11

Petitioner filed his counter-affidavit on October 25, 1991. 12 He asserted that he

removed some employees from the lottery to avoid undue injury to the
government. He denied that he hired or caused to be hired his brother and sister
in the "experimental lottery research" as they maintained their affairs without his
interference. He also denied demanding or receiving any amount from Abao or
from the lottery operator as it was impossible for him to demand bribe money in
the form of a check. He claimed that Abao's complaint was a desperate effort to
malign him. 13
On November 29, 1991, GIO II Caraos issued a Resolution stating that:
"Evaluating the complaint, as well as the controverting evidence
presented by the respondent, we find prima facie case against herein
respondent for Violation of R.A. 3019.
"At the outset, it must be stressed that in a preliminary investigation, it is
not required that all reasonable doubts on the accused's guilt must be
removed; what is required only is that evidence be sufficient to establish
probable cause that the accused committed the offense charged.
Moreover, as between the positive assertions of complainant Abao and

the mere denials of the respondent, the former deserves more credence
as it is acknowledged that the same has greater evidentiary value than
the latter. Probable cause has been established by the clear and positive
testimonies of the complainant and his witnesses pointing to the herein
respondent as responsible for various acts relative to the operation of the
lottery in Violation of the Anti-Graft law specifically Sec. 3 (a), (b), (c), (h)
and (k). Such finding is duly supported by the recommendation of the
NBI report which also recommended the filing of proper criminal charge
against the respondent.
"Furthermore, most of the allegations of the respondents as contained in
his counter-affidavit are matters of defense which can be best ventilated
in court during trial. In fact, the other allegations of respondents which
are mere insinuations as to the motive of the complainant in filing the
case, only deserve scant consideration.
DcCEHI

"Wherefore, all legal premises considered, let an information be filed

before the proper court against respondent Raro.
"SO RESOLVED." 14

Director Cesar T. Palana recommended approval of the above Resolution on

December 5, 1991. 15 However, on January 27, 1992, Assistant Ombudsman
Abelardo L. Aportadera, Jr., who reviewed the Resolution, recommended its
disapproval and the dismissal of the complaint, on the ground that the NBI report
was "based merely on testimonial evidence" that "would not suffice to establish
a prima facie case" against herein petitioner. He averred that more than oral
evidence should support the charge of extortion and that petitioner's witnesses
had amply clarified the charge of nepotism. 16
On June 11, 1992, Special Prosecution Officer 1 (SPO 1) Wendell E. BarrerasSulit, after reviewing the Resolution of GIO II Caraos, issued a Memorandum
finding that said Resolution "did not fully discuss the evidence that would support
the particular charges recommended to be filed" against petitioner. After
analyzing each of the charges, SPO 1 Barreras-Sulit concluded that petitioner
should only be charged with violation of Section 3(b) of R.A. 3019 as there
was prima facie case that petitioner received the total amount of P116,000.00 on

four different occasions. Attached to the Memorandum was the information

charging petitioner with violation of Section 3 (b) of Republic Act No. 3019. 17
SPO 1 Barreras-Sulit's Memorandum was approved by Deputy Special
Prosecutor Jose De G. Ferrer, Special Prosecutor Aniano A. Desierto and
Ombudsman Vasquez. 18Hence, on July 2, 1992, an information dated May 19,
1992 prepared by SPO 1 Barreras-Sulit was filed with the
Sandiganbayan, 19 accusing petitioner with violation of Section 3 (b) of Republic
Act No. 3019 committed as follows:
"That on or about the period from October, 1987 to January 1988, in
Daet, Camarines Norte, Manila and Quezon City, Philippines, and within
the jurisdiction of this Honorable Court, the above named accused, a
public officer being then the Corporate Secretary and Acting Department
Manager of the Special Projects Department of the Philippine Charity
Sweepstakes Office (PCSO), San Marcelino, Malate, Metro Manila,
tasked to monitor and oversee the Small Town Lottery Experimental
Project of the PCSO in certain areas including Camarines Norte, taking
advantage of his said public position and while in the performance of his
official duties as such, did then and there, wilfully, unlawfully and
criminally demand and receive on four different occasions the amount
totalling to ONE HUNDRED SIXTEEN THOUSAND SEVEN HUNDRED
NINETY-NINE PESOS and NINETY-NINE CENTAVOS (P116,799.99),
Philippine Currency, from Mr. Luis "Bing" F. Abao, Provincial Manager
of the STL operations in Camarines Norte, as his share in the net
proceeds of the said STL which was not authorized under the law but
which amount was given to and received by him in his capacity as
overseer and monitoring arm of the PCSO in the Small Town Lottery
operation in Camarines Norte.
"CONTRARY TO LAW."

On July 6, 1992, the Sandiganbayan issued an order for petitioner's arrest and
fixed bail in the amount of P12,000.00. 20 On the same day, petitioner applied for
bail before the Regional Trial Court of Cabanatuan City, Branch 26, 21 which
forthwith approved the application. 22 On July 8, 1992, petitioner filed with the
Sandiganbayan a manifestation and motion for the lifting of the order of

arrest. 23 Accordingly, the Sandiganbayan recalled its order of arrest the following
day. 24
Petitioner subsequently filed with the Sandiganbayan a motion for the
reinvestigation of the Resolution of the Ombudsman dated 11 June
1992, 25 alleging that:
1. The "prejudicial and indecent delay in the preliminary investigation"
violated his rights to due process of law and to speedy disposition of the
case because while the complaint was filed on May 20, 1988, the
information against him was filed more than four (4) years later.
2. Despite the delay in filing the information, hastiness attended the
proceedings in that he was not furnished a copy of the resolution on
which the information was based. Moreover, the information was dated
May 19, 1992 or even before the resolution that gave rise to it was
finished on June 11, 1992. There was a need for a reinvestigation to
protect him from hasty, malicious and oppressive prosecution.
3. The resolution of June 11, 1992 was a "picture of legal and factual
infirmities." While no evidence supported the complaint other than the
reports of NBI Agents Duka and Lasala and the affidavits dated June 30,
1988 of Rene Ruidera and Ben Galeon, these bases for the information
were "worthless pieces of documents." Moreover, he was not furnished a
copy of the NBI report showing that he received P116,000.00 from the
proceeds of the STL operation, and the NBI never conducted a
reinvestigation as required by NBI Director Carpio.
4. The complaint was based solely on the affidavit of Abao and those of
Ruidera and Galeon who were mere hearsay witnesses. The allegations
in the complaint were facts to be established (factum probandum)
requiring further evidentiary facts (factum probans). The only source of
the charges, therefore, were the bare assertions of Abao who was not a
credible witness. He was "consumed by vengeance," because petitioner
had him audited for "unexplained disposition" of STL funds during
Abao's campaign for mayor of Daet. Hence, to get back at petitioner,
Abao circulated "fabrications and fairy tale" against him even before the
Sandiganbayan.
caHIAS

After hearing, the Sandiganbayan granted the petitioner's motion for

reinvestigation in a Resolution dated July 28, 1992, and ordered the defense to
file a motion for reconsideration and/or reinvestigation with the Office of the
Ombudsman within ten (10) days from July 29, 1992, and the prosecution to
conduct such reinvestigation and to terminate it on or before August 31, 1992.
Likewise, the Sandiganbayan required the prosecution to furnish petitioner a copy
of the NBI Report of September 18, 1990, and reset the arraignment to
September 8, 1992 at 8:30 a.m. The Sandiganbayan's directives were based on
the following findings:
"We have gone over the grounds and arguments alleged in accused's
aforesaid motion and We do not subscribe to the claim that there was
prejudicial and indecent delay in the preliminary investigation,
considering that the initial complaint filed by complainant Luis F. Abalo
(sic) on May 20, 1988 had been referred to the National Bureau of
Investigation on July 1, 1988 and the report of the latter agency was only
submitted on September 18, 1990. Thereafter, Graft Investigator II
Theresa M. Caraos conducted a preliminary investigation, wherein
accused submitted his counter-affidavit denying the charges levelled
against him, culminating in the issuance of a resolution dated November
29, 1991, recommending the filing of the proper information with this
Court.
"The Caraos' (sic) resolution was reviewed by proper officials in the
Office of the Ombudsman, the latest of which was made by Special
Prosecution Officer 1 Wendell E. Barreras-Sulit, who adopted the
recommendation for the filing only of a charge under Section 3(b) of R.A.
3019 in her resolution of June 11, 1992. However, the information, as
prepared by Atty. Barreras-Sulit, is dated May 19, 1992 and approved by
Ombudsman Conrado M. Vasquez on June 25, 1992 and filed with this
Court on July 2, 1992. On this score, We find nothing irregular with
respect to the afore-cited dates, despite the contention of the accused
that there was "hastiness despite delay." Moreover, the doctrines
enunciated in Tatad (159 SCRA 70) are not entirely on all fours with the
situation depicted in the case at bar, having been modified
inLecaroz (G.R. Nos. 918223-35, promulgated June 7, 1990)
and Gonzales (199 SCRA 298).

"On the other hand, there appears to be some semblance of validity to

accused's other grounds, to wit, that he was not furnished a copy of the
NBI report during the preliminary investigation, hence, he was not able to
refute the allegations contained therein and (2) (sic) that he was not
furnished a copy of the resolution upon which the information was based
before the filing thereof, thus, he was deprived of his right to file a motion
for reconsideration. Under Administrative Order No. 09, issued by the
Ombudsman on October 15, 1991, which amended Rule II, Section 7
of Rep. Act No. 6770 (sic), a respondent has five (5) days from receipt of
the resolution finding aprima facie case against him within which to file a
motion for reconsideration. Likewise, under Section 7 of Rule
II, supra, he may move for a reinvestigation based on errors or
irregularities during the preliminary investigation or on newly-discovered
evidence." 26

Petitioner filed with the Sandiganbayan a motion for extension of time to file his
motion for reinvestigation, 27 which was granted on August 13, 1992. 28
On August 12, 1992, complainant Abao wrote a letter addressed to Special
Prosecution Officer III (SPO III) Roger Berbano, Sr. of the Sandiganbayan,
alleging that:
(1) Petitioner was not able to refute the charges against him of violation
of Section 3 (a), (b), (c), (h) and (k) of Republic Act No. 3019 "except to
discredit the truth about the P116,000.00 he demanded and got from
me";
(2) Petitioner admitted in a press conference the existence of a check in
the amount of P51,799.00 but his claim that it bounced was not true
because the check with Atty. Reynaldo Ilagan as payee was in his
(Abao's) possession;
(3) The "bribe money" was good to the "exact centavo" because it was
25% of the daily gross earnings of the lottery;
(4) He was not a dismissed employee of ELMEC because he financed
and managed the STL operation "upon the prodding of PCSO through

Atty. Raro" and he received commissions and percentages as late as

March 1988 as shown by vouchers signed by Marissa Raro-Remigio;

caCSDT

(5) His candidacy for mayor in the January 18, 1988 elections was never
affected by allegations of mismanagement; he stayed as the general
manager of ELMEC until March 1988; and
(6) The findings of Senator Maceda of the Senate Committee on Games
and Amusement that the operation of the STL was the source of
corruption and "milking cow of corrupt PCSO officials" and hence, its
discontinuance upon the order of the President, was the "best evidence
of corruption" perpetrated by petitioner.

On August 14, 1992, SPO III Berbano issued an Order stating that the grounds
and issues raised in petitioner's motion for reinvestigation were "clearly matters of
defense to be ventilated during the trial of the case on the merits." Hence, he
recommended the denial of the motion for reinvestigation, which recommendation
was approved by the Ombudsman, Conrado M. Vasquez, on August 26, 1992. 29
In the meantime, on August 18, 1992, petitioner filed with the Office of the
Ombudsman a motion for the reconsideration of the Ombudsman's Resolution of
June 11, 1992. He asserted that SPO 1 Barreras-Sulit based her Resolution on
the NBI Report of September 18, 1990 and the affidavits dated June 30, 1988 of
Rene Ruidera and Ben Galeon, all of which had no evidentiary value because
they are hearsay and basically based on information furnished them by Abao.
According to petitioner, the said Report was incomplete and inconclusive
because the findings therein needed further investigation. Reiterating his
arguments that factum probans is required during a preliminary investigation and
that Abao is not a credible witness, petitioner contended that he should be
spared from the trouble, expense and anxiety as well as the stigma resulting from
an open and public accusation of a crime. 30
Subsequently, petitioner also filed with the Tanodbayan a "Motion for a Last
Review" of the Special Prosecutor's Order of August 14, 1992. He alleged that
the Office of the Special Prosecutor (OSP) failed to take into consideration the
very motion for reconsideration that should have been the subject of that Order.
He contended that the OSP might not have been aware of the motions he filed for
extension of time within which to file the motion for reconsideration, and the

OSP's preparation of the Order of August 14, 1992 before it received the motion
for reconsideration constituted a gross procedural defect. Petitioner further
asserted that "the minimum requirement for a meaningful determination of
'probable cause' should take into consideration the strength of the evidence of
the accused and the inherent baselessness of the complainant's." He thus prayed
that the Resolution of June 11, 1992 recommending the filing of an information
against him be reversed, the complaint dismissed, and the information filed with
the Sandiganbayan withdrawn. 31
The scheduled arraignment of petitioner on September 8, 1992 was cancelled
considering that the reinvestigation ordered by the Sandiganbayan had "not yet
been terminated." The Sandiganbayan granted SPO III Berbano a twenty-day
extension within which to resolve the motion for reconsideration, and reset the
arraignment for October 2, 1992. 32
On September 24, 1992, SPO III Berbano denied petitioner's motion for
reconsideration and the motion for a last review, upon a finding that the
November 21, 1991 Resolution of GIO II Caraos and the Memorandum of SPO 1
Barreras-Sulit, both of which bore the imprimatur of the Ombudsman, "simply
signify that there exists aprima facie case or probable cause" against petitioner.
Hence, he reiterated that the issues raised were evidentiary in nature and should
be resolved by the Sandiganbayan. 33
Petitioner did not appear at his arraignment on October 2, 1992. Hence, upon
motion of the prosecution, a warrant for his arrest was issued. However,
petitioner's counsel arrived late and undertook to bring the proper medical
certificate showing that petitioner was ill. The Sandiganbayan reset the
arraignment for October 12, 1992. 34 Later, petitioner sought the reconsideration
of the Order for his arrest on the ground that he was then suffering from viral
influenza and submitted a medical certificate to that effect. 35 The Sandiganbayan
considered that incident closed and terminated, and directed that the arraignment
should proceed on October 12, 1992.36
On that date, petitioner filed with the Sandiganbayan a motion to quash the
information, 37 on the ground that the court did not acquire jurisdiction in view of
violations of accused's constitutional rights during the preliminary investigation.

He argued that the determination of probable cause by the prosecuting officer

does not preclude the courts from demanding further proof thereon.
Citing Brocka v. Enrile 38 where this Court held that a sham and hastily
conducted preliminary investigation may be lawfully enjoined, petitioner pointed
out the following as indicia of the "falsity and hastiness" of the proceedings before
the Ombudsman:
1. While the Resolution recommending the filing of an information was
issued on June 11, 1992, the information was already prepared on May
19, 1992 thereby showing that said Resolution was no more than a
formality. For petitioner, the situation was akin to "birth preced(ing)
pregnancy."
2. SPO III Berbano denied the motion for reconsideration in his Order of
August 14, 1992 or four (4) days before he filed the motion for
reconsideration on August 18, 1992 thereby showing that the
prosecutors were "hell-bent and determined, come high or low waters,
reason or no reason, to proceed" with their determination to prosecute
him. That procedure also made a mockery of the Sandiganbayan's
Resolution of July 28, 1992 directing the Ombudsman to conduct a
reinvestigation of the case.
3. At the hearing on September 8, 1992, SPO III Berbano confided to his
counsel, Atty. Tomas Z. Roxas, Jr., that on August 14, 1992, Abao had
sent him a letter with the admonition that Berbano should not be like
petitioner's U.P. fraternity brothers who would cover up petitioner's
corrupt and foul deeds. Berbano was pressured by said letter as
indicated by his denial on August 14, 1992 "of the motion for
reconsideration yet to be filed on 18 August 1992." After all, Berbano
was aspiring for the Bench and it was not a "far-flung conclusion" that a
favorable consideration of said motion for reconsideration "may prompt
Abao to accuse him of partiality, Berbano being the UP fraternity
brother of the accused." Berbano in fact admitted to Roxas that he was
being pressured to deny petitioner's motion for reconsideration.
4. Because the crime charged was for violation of Section 3(b)
of Republic Act No. 3019, Abao should be charged as the briber. Abao
never applied for immunity from prosecution because his "testimony"
was uncorroborated on material points. Moreover, while petitioner was

deprived information on what was happening with the case, Abao was
regularly furnished with progress reports thereon. Abao publicized such
reports in Camarines Norte in clear violation of P.D. No. 749 mandating
that proceedings in preliminary investigations shall be strictly confidential
to protect the reputation of the official involved.

Petitioner alleged further that there was a "jurally and constitutionally defective
determination of probable cause" as the complainant and his witnesses were
never personally examined by any of the officers at the Offices of the
Ombudsman and the Special Prosecutor. Neither was the complaint ever sworn
to before them. He argued once again on the failure of the NBI to conduct a
reinvestigation of the case and the hearsay nature of the affidavits of Ruidera and
Galeon.
On November 19, 1992, SPO III Berbano filed an opposition to the motion to
quash, arguing that all the pleadings filed by petitioner were duly considered, as
shown by the Orders of August 14, 1992 and September 24, 1992, both of which
were approved by his superiors, including the Ombudsman. While Atty. Roxas "is
himself a Fraternity Brod of the Alpha Phi Beta Fraternity of UP," Berbano denied
that he was ever pressured into denying petitioner's motion for reconsideration.
Furthermore, Berbano averred that petitioner's ground for the motion to
quash, i.e., that the Sandiganbayan never acquired jurisdiction over an
information that was the result of a highly anomalous preliminary investigation,
may only be "inferred" from Section 3 (b) of Rule 117 of the 1985 Rules on
Criminal Procedure requiring the court to have jurisdiction over the offense
charged or over the person of the accused. By filing a motion to quash, petitioner
was deemed to have admitted the allegations in the information and hence, there
was "only one way clear under the circumstances," and that was to proceed with
the trial of the case. 39

The Sandiganbayan 40 denied the motion to quash for lack of merit. It found "no
persuasive reason to depart from its earlier holding" in the Resolution of July 28,
1992 "that there was no indecent delay in the manner by which the preliminary
investigation was held." It ruled that the long period of time that the preliminary
investigation took was not meant to persecute petitioner. Neither was there clear

and convincing proof that SPO III Berbano succumbed to pressure and
considered petitioner's pleadings with partiality. The Sandiganbayan stressed that
its authority to determine probable cause "is limited only for the purpose of
issuing a warrant of arrest, and not for the purpose of justifying the filing or nonfiling of the Information." It found "no compelling justification to disturb the
findings made by the prosecution of the existence of probable cause that caused
it to file" the information, and that the objections raised by accused-movant on
this point involve matters which could be best passed upon by this Court during
trial on the merits. Thus, the Sandiganbayan set petitioner's arraignment on
November 23, 1992. 41
Petitioner's counsel once again moved for the resetting of the scheduled
arraignment on the ground that he was filing a motion for the reconsideration of
the Resolution denying his motion to quash. The Sandiganbayan gave him fifteen
(15) days within which to file the motion for reconsideration and the prosecution
ten (10) days from receipt of said motion within which to comment. Meanwhile,
the arraignment was reset to January 11, 1993. 42
Petitioner's motion for reconsideration was filed on December 8, 1992. He
reiterated therein that the preliminary investigation conducted was "sham and
attended by irregularities amounting to violation of the very purpose for which
preliminary investigation was instituted in our statute books." He emphasized that
SPO III Berbano was indeed pressured into denying his motions because of his
application for judgeship. He claimed that the Sandiganbayan erred when it ruled
that the "court's power to examine the conclusions drawn by the prosecutor after
the preliminary investigation is only for the purpose of determining the existence
of just and proper cause to issue a warrant of arrest." Relying on the ruling
in Salonga v. Cruz Pao 43 wherein this Court reviewed the prosecution's findings
of a prima facie case against Salonga, petitioner averred that it is infinitely more
important than conventional adherence to general rules of criminal procedure to
respect the citizen's right to be free not only from arbitrary arrest and punishment
but also from unwarranted and vexatious prosecution.
The prosecution did not file a comment or opposition to the motion for
reconsideration. On January 5, 1993, the Sandiganbayan issued a Resolution
denying said motion for lack of merit and setting petitioner's arraignment on

January 11, 1993. The Sandiganbayan held that petitioner's allegations that the
preliminary investigation was sham and that SPO III Berbano was partial are not
supported by competent proof. Brushing aside said allegations as mere
speculations, the Sandiganbayan found no reason to depart from its earlier
conclusion that there was no compelling justification to disturb the prosecution's
finding of a probable cause. 44
Hence, the instant petition for certiorari and prohibition with application for the
issuance of a temporary restraining order to enjoin respondents Sandiganbayan,
the Ombudsman and the People of the Philippines from proceeding with Criminal
Case No. 17800. On February 4, 1993, this Court denied the prayer for
temporary restraining order and required respondents to comment on the
petition. 45 Petitioner's arraignment proceeded on February 19, 1993, where he
entered a plea of not guilty to the crime charged. 46 On September 21, 1993,
after respondents filed their comment and petitioner his reply thereto, this Court
gave due course to the instant petition and required the parties to file their
respective memoranda. 47 Meanwhile, the Sandiganbayan suspended
proceedings in Criminal Case No. 17800 on account of the pendency of the
instant petition. 48
Petitioner alleges in this petition for certiorari and prohibition that: (a) the
determination of "probable cause" in Criminal Case No. 17800 was
constitutionally defective because the Ombudsman, before filing the information,
and the Sandiganbayan, before issuing the warrant of arrest, failed to examine
the complainant under oath; (b) the preliminary investigation was hasty,
malicious, persecutory and based on inadmissible evidence thereby violating his
right to due process of law, and (c) the unexplained 4-year delay in resolving the
preliminary investigation, coupled with the favorable consideration of the
complaint albeit manifestly false and politically motivated, violated his
constitutional rights to speedy trial and to due process of law. 49
At the outset, it is settled that a special civil action for certiorari and prohibition is
not the proper remedy to assail the denial of a motion to quash an information.
This is succinctly underscored in Quion v. Sandiganbayan as follows:
"The special civil action of certiorari or prohibition is not the proper
remedy against interlocutory orders such as those assailed in these

proceedings; i.e., an order denying a motion to quash the information,

and one declaring the accused to have waived his right to present
evidence and considering the case submitted for decision. As pointed
out by the Office of the Solicitor General (citing Nierras v. Dacuycuy, 181
SCRA 1 [1990]), and Acharon v. Purisima, et al., 13 SCRA 309; People
v. Madaluyo, 1 SCRA 1990), the established rule is that when such an
adverse interlocutory order is rendered, the remedy is not to resort
forthwith to certiorari or prohibition, but to continue with the case in due
course and, when an unfavorable verdict is handed down to take an
appeal in the manner authorized by law. It is only where there are special
circumstances clearly demonstrating the inadequacy of an appeal that
the special civil action of certiorari or prohibition may exceptionally be
allowed. The Court has been cited to no such special circumstances in
the cases at bar." 50

In the case at bar, there is no showing of such special circumstances. The

jurisdiction of the Ombudsman over the complaint is not even questioned by
petitioner 51 as his motion to quash the information is based on the allegedly
"highly anomalous preliminary investigation" that amounted to a denial of his
rights to due process and to speedy disposition of the charge against him.
However, an incomplete preliminary investigation 52 or the absence
thereof 53 may not warrant the quashal of an information. In such cases, the
proper procedure is for the Sandiganbayan to hold in abeyance any further
proceedings conducted and to remand the case to the Ombudsman for
preliminary investigation or completion thereof. However, granting arguendo that
the preliminary investigation was sham and highly anomalous in this case, that
defect was cured when the above procedure was in fact observed by the
Sandiganbayan. Hence, on the issue alone of the propriety of the remedy sought
by petitioner, the instant petition for certiorari and prohibition must fail. However,
in the interest of justice, we shall resolve the issue of whether or not the
Ombudsman conducted the preliminary investigation erroneously and irregularly.
Petitioner contends that both the Ombudsman and the Sandiganbayan failed to
examine the complainant personally to determine the existence of probable
cause that would warrant the filing of an information against him and,
consequently, the issuance of a warrant of arrest. He rues the fact that the

complaint filed by Abao against him was subscribed to before an ordinary notary
public and that the sworn statements of witnesses against him were sworn to
before a provincial fiscal, not deputized by the Ombudsman, but acting merely as
an officer authorized to administer oaths. 54
Article XI, Section 12 of the 1987 Constitution, which was in force and effect
when Abao filed the complaint against petitioner, provides:
"Sec. 12. The Ombudsman and his Deputies, as protectors of the
people, shall act promptly on complaints filed in any form or
manner against public officials or employees of the Government, or any
subdivision, agency or instrumentality thereof, including governmentowned or controlled corporations, and shall, in appropriate cases, notify
the complainants of the action taken and the result thereof." (Italics
supplied.)
IEaCDH

The mandate to act promptly on complaints filed in any form or manner against
officers or employees of the Government is restated in Section 13 of Republic Act
No. 6770 ("The Ombudsman Act of 1989"), approved into law on November 17,
1989. The same authority to act on complaints "in any form, either verbal or in
writing," is also reiterated in Rule 1, Section 3 of the Rules of Procedure of the
Office of the Ombudsman, which is embodied in Administrative Order No.
07 dated April 10, 1990, issued pursuant to the rule-making power of the
Ombudsman under Section 13 (8) of the 1987 Constitution and Sections 18, 23
and 27 of "The Ombudsman Act of 1989."
In accordance with the foregoing constitutional and statutory provisions, this
Court, in Diaz v. Sandiganbayan, 55 held valid charges that were not made in
writing or under oath. This Court found as sufficient basis the Solicitor General's
sworn testimony at the joint fact-finding investigation conducted by the Senate
Blue Ribbon Committee and the Ombudsman for the latter to conduct an
investigation. On the other hand, in Olivas v. Office of the Ombudsman, 56 where
the complaint against petitioner was initiated by anonymous letters, this Court
held that the PCGG, to whom the letters were addressed and who became the
complainant in the proceedings, should have reduced the evidence it had
gathered into affidavits. The submission of affidavits, provided for in Rule II,
Section 4 (a) of Administrative Order No. 07, is also required by due process in

adversary proceedings. 57 However, the submission of affidavits is not mandatory

and jurisdictional. Rule 1, Section 3 of the same administrative order merely
states that it is " preferable" that the complaint "be in writing and under oath" for
its speedier disposition. Clearly in consonance with the provision that the
complaint may be in any form, the Ombudsman Rules of Procedure does not
require that the complaint be subscribed only before the Ombudsman or his duly
authorized representative. In any event, the issue of the sufficiency in form of the
complaint was rendered moot and academic by petitioner's filing of a counteraffidavit wherein he controverted the allegations in the complaint. 58

The referral of the complaint to the NBI does not mean that the Ombudsman
abdicated its constitutional and statutory duty to conduct preliminary
investigations. Article XI, Section 13 of the 1987 Constitution vests in the
Ombudsman the powers, functions and duties to:
"(2) Direct, upon complaint or at its own instance, any public official or
employee of the Government, or any subdivision, agency or
instrumentality thereof, as well as of any government-owned or
controlled corporation with original charter, to perform and expedite any
act or duty required by law, or to stop, prevent, and correct any abuse or
impropriety in the performance of duties.
(3) Direct the officer concerned to take appropriate action against a
public official or employee at fault, and recommend his removal,
suspension, demotion, fine, censure, or prosecution, and ensure
compliance therewith." (Italics supplied.)

Thus, by referring Abano's complaint to the NBI, the Ombudsman did not thereby
delegate the conduct of the preliminary investigation of the case to that
investigative bureau. What was delegated was only the fact-finding function,
preparatory to the preliminary investigation still to be conducted by the
Ombudsman. 59 Notably, under Rule II, Section 2 (d) of Administrative Order No.
07, the investigating officer has the option to forward the complaint to the
appropriate office or official for fact-finding investigation. While Administrative
Order No. 07 took effect in mid-1990 60 or after the complaint in this case was
referred to the NBI, the inclusion of that constitutionally sanctioned practice in the

Ombudsman Rules of Procedure lends validity to the Ombudsman's action in this

case.
Under the circumstances of this case, the Ombudsman's failure to personally
administer oath to the complainant does not mean that the Ombudsman did not
personally determine the existence of probable cause to warrant the filing of an
information.
Neither did the Sandiganbayan violate petitioner's right to due process of law by
its failure to personally examine the complainant before it issued the warrant of
arrest. In a preliminary examination for the issuance of a warrant of arrest, a court
is not required to review in detail the evidence submitted during the preliminary
investigation. What is required is that the judge "personally evaluates the report
and supporting documents submitted by the prosecution in determining probable
cause." 61 In the absence of evidence that the Sandiganbayan did not personally
evaluate the necessary records of the case, the presumption of regularity in the
conduct of its official business shall stand.
At this juncture, it is apropos to state once again the nature of a preliminary
investigation. In Cruz, Jr. v. People, the Court said:
"It must be stressed that a preliminary investigation is merely
inquisitorial, and it is often the only means of discovering the persons
who may be reasonably charged with a crime, to enable the prosecutor
to prepare his complaint or information. It is not a trial of the case on the
merits and has no purpose except that of determining whether a crime
has been committed and whether there is probable cause to believe that
the accused is guilty thereof, and it does not place the persons against
whom it is taken in jeopardy.
"The established rule is that a preliminary investigation is not the
occasion for the full and exhaustive display of the parties' evidence; it is
for the presentation of such evidence only as may engender a wellgrounded belief that an offense has been committed and that the
accused is probably guilty thereof.
xxx xxx xxx

"The main function of the government prosecutor during the preliminary

investigation is merely to determine the existence of probable cause, and
to file the corresponding information if he finds it to be so. And, probable
cause has been defined as the existence of such facts and
circumstances as would excite the 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." 62

In determining probable cause, an inquiry into the sufficiency of evidence to

warrant conviction is not required. It is enough that it is believed that the act or
omission complained of constitutes the offense charged. The trial of a case is
conducted precisely for the reception of evidence of the prosecution in support of
the charge. 63 In the performance of his task to determine probable cause, the
Ombudsman's discretion is paramount. Thus, in Camanag v. Guerrero, this Court
said:
". . . .(S)uffice it to state that this Court has adopted a policy of noninterference in the conduct of preliminary investigations, and leaves to
the investigating prosecutor sufficient latitude of discretion in the exercise
of determination of what constitutes sufficient evidence as will establish
'probable cause' for filing of information against the supposed
offender." 64

Neither is there merit in petitioner's contention that the preliminary investigation

conducted by the Ombudsman was "hasty, malicious and persecutory" and that it
was based on inadmissible evidence.
Petitioner emphasizes the fact that while the Resolution recommending the filing
of the information was issued on June 11, 1992, the information was already
prepared almost a month earlier on May 19, 1992. 65 This may show oversight in
the handling of the documents pertinent to this case considering that the date of
the information should have been corrected to conform to the date of the
resolution where its filing was approved by the prosecutor's superiors. However,
such faux pas did not violate petitioner's substantive rights. The error in the date
of the information did not affect its validity, especially since the recommendation
to file it was with the imprimatur of the Ombudsman himself.

With respect to the denial by SPO III Berbano of the motion for reinvestigation on
August 14, 1992 or prior to petitioner's filing of his motion for reconsideration on
August 18, 1992, the record shows that petitioner filed two motions for extension
of time to file the motion for reinvestigation without the knowledge of SPO III
Berbano. What the latter resolved on August 14, 1992 was petitioner's motion for
reinvestigation before the Sandiganbayan. Likewise, petitioner's allegation that
SPO III Berbano was not an impartial prosecutor cannot be given credence for
lack of sufficient proof thereon. SPO III Berbano is presumed to have issued the
Resolution denying the motion for reinvestigation in the regular performance of
his duties.
Neither is there factual support to petitioner's claim that the 4-year delay in the
completion of the preliminary investigation is unexplained. The record clearly
shows that the Ombudsman exerted utmost effort to determine the veracity of
Abao's allegations against petitioner. That it took the NBI almost two years to
complete its report on the matter does not mean that petitioner's right to speedy
disposition of the charge was brushed aside. If delay may be imputed in the
proceedings, the same should be reckoned only from October 25, 1991 when
petitioner filed his counter-affidavit. 66 Thirty-six (36) days thereafter or on
November 29, 1991, GIO II Caraos issued the Resolution recommending the
filing of the information. Further delay, if indeed it could be called one, was
caused by the review of GIO II Caraos' recommendation by her superiors. Some
seven and a half months later, or on June 11, 1992, the information was filed with
the Sandiganbayan. There is thus no reason to conclude that the Ombudsman
ran roughshod over the petitioner's right to a speedy preliminary investigation. In
the determination of whether or not that right has been violated, the factors that
may be considered and weighed are "the length of delay, the reasons for such
delay, the assertion or failure to assert such right by the accused, and the
prejudice caused by the delay." 67
The length of time it took before the conclusion of the preliminary investigation
may only be attributed to the adherence of the Ombudsman and the NBI to the
rules of procedure and the rudiments of fair play. The allegations of Abao's
complaint had to be verified; the Ombudsman did not believe the same hook, line
and sinker. Recently, the Court held that while the Rules of Court provides a ten-

day period from submission of the case within which an investigating officer must
come out with a resolution, that period of time is merely directory. Thus:
"The Court is not unmindful of the duty of the Ombudsman under
the Constitution and Republic Act No. 6770 to act promptly on
Complaints brought before him. But such duty should not be mistaken
with a hasty resolution of cases at the expense of thoroughness and
correctness. Judicial notice should be taken of the fact that the nature of
the Office of the Ombudsman encourages individuals who clamor for
efficient government service to freely lodge their Complaints against
wrongdoings of government personnel, thus resulting in a steady stream
of cases reaching the Office of the Ombudsman." 68

Finally, there is no ground to give credence to petitioner's claim that the

complainant should be charged as a briber on account of his admission that he
gave petitioner some sum of money; or that evidence presented during the
preliminary investigation, specifically the affidavits of witnesses, were hearsay
and inadmissible. As we stated earlier, this Court cannot supplant the
Ombudsman's discretion in the determination of what crime to charge an
accused.
All told, this Court finds no reason to reverse the assailed Resolutions of the
Sandiganbayan. Petitioner's insinuation that he was subjected to the proceedings
before the Ombudsman and the Sandiganbayan for politically motivated reasons,
has not been established with sufficient evidence. In the absence of any
imputation that public respondents were impelled by ill-motive in filing the case
against him, it is presumed that there is no such motive and that public
respondents merely filed the case to correct a public wrong. 69

WHEREFORE, the instant petition for certiorari and prohibition is DISMISSED for
lack of merit. The assailed Resolutions of the Sandiganbayan are hereby
AFFIRMED. The Sandiganbayan is DIRECTED to proceed with deliberate
dispatch in the disposition of Criminal Case No. 17800.
SO ORDERED.

Davide, Jr., C.J., Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban,
Quisumbing, Purisima, Pardo, Buena, Gonzaga-Reyes and De Leon, Jr.,
JJ., concur.
|||

(Raro v. Sandiganbayan, G.R. No. 108431, [July 14, 2000], 390 PHIL 917-949)

10.
[G.R. No. 85468. September 7, 1989.]
QUINTIN S. DOROMAL, petitioner, vs. SANDIGANBAYAN,
OMBUDSMAN AND SPECIAL PROSECUTOR, respondents.
SYLLABUS
1. REMEDIAL LAW; CRIMINAL PROCEDURE; PRELIMINARY INVESTIGATION;
WHEN A SECOND PRELIMINARY INVESTIGATION IS PROPER. A new
preliminary investigation of the charge against the petitioner is in order not only
because the first was a nullity ("a dead limb on the judicial tree which should be
lopped off and wholly disregarded" Anuran vs. Aquino, 38 Phil. 29) but also
because the accused demands it as his right. Moreover, the charge against him
had been changed, as directed by the Ombudsman.
2. ID.; ID.; ID.; WHEN THE CHARGE HAS BEEN CHANGED; RIGHT OF THE
ACCUSED IS SUBSTANTIAL. The petitioner's right to a preliminary
investigation of the new charge is secured to him by the following provisions of
Rule 112 of the 1985 Rules on Criminal Procedure. That right of the accused is
"a substantial one." Its denial over his opposition is a "prejudicial error, in that it
subjects the accused to the loss of life, liberty, or property without due process of
law" (U.S. vs. Marfori, 35 Phil. 666).
3. ID.; ID.; ID.; ACCUSED ALONE MAY WAIVE THE RIGHT. The Solicitor
General's argument that the right to a preliminary investigation may be waived
and was in fact waived by the petitioner, impliedly admits that the right exists.

Since the right belongs to the accused, he alone may waive it. If he demands it,
the State may not withhold it.
4. ID.; ID.; ID.; ABSENCE OF, IS NOT A GROUND TO QUASH THE
COMPLAINT; CASE MUST BE REMANDED FOR PRELIMINARY
INVESTIGATION. As the absence of a preliminary investigation is not a
ground to quash the complaint or information (Sec. 3, Rule 117, Rules of Court),
the proceedings upon such information in the Sandiganbayan should be held in
abeyance and the case should be remanded to the office of the Ombudsman for
him or the Special Prosecutor to conduct a preliminary investigation. Thus did We
rule in Luciano vs. Mariano, 40 SCRA 187, 201; Ilagan vs. Enrile, 139 SCRA 349
and more recently in Sanciangco, Jr. vs. People, 149 SCRA 1, 3-4.
5. CRIMINAL LAW; ANTI-GRAFT AND CORRUPT PRACTICES ACT;
PRESENCE OF A SIGNED DOCUMENT, NOT A SINE QUA NON FOR THE
PETITIONER TO BE CHARGED. The Sandiganbayan in its order of August
19, 1988 correctly observed that "the presence of a signed document bearing the
signature of accused Doromal as part of the application to bid . . . . is not a sine
qua non" (Annex O, p. 179. Rollo), for, the Ombudsman indicated in his
Memorandum/Clearance to the Special Prosecutor, that the petitioner "can
rightfully be charged . . . with having participated in a business which act is
absolutely prohibited by Section 13 of Article VII of the Constitution" because "the
DITC remained a family corporation in which Doromal has at least
an indirect interest." (pp. 107-108, Rollo)
6. CONSTITUTIONAL LAW; EXECUTIVE DEPARTMENT; PARTICIPATION OF
PUBLIC OFFICIALS IN ANY BUSINESS; BAN IS SIMILAR TO THE
PROHIBITION IN THE CIVIL SERVICE LAW. Section 13, Article VII of
the 1987 Constitution provides that "the President, Vice-President, the members
of the Cabinet and their deputies or assistants shall not . . . during (their) tenure, .
. . directly or indirectly . . . participate in any business." The constitutional ban is
similar to the prohibition in the Civil Service Law (PD No. 807, Sec. 36, subpar.
24) that "pursuit of private business . . . without the permission required by Civil
Service Rules and Regulations" shall be a ground for disciplinary action against
any officer or employee in the civil service.

7. ID.; ID.; ID.; VIOLATION OF PROHIBITION COMMANDS SUSPENSION

FROM OFFICE; LEAVE OF ABSENCE IS NOT A BAR TO PREVENTIVE
SUSPENSION. Since the petitioner is an incumbent public official charged in a
valid information with an offense punishable under the Constitution and the laws
(RA 3019 and PD 807), the law's command that he "shall be suspended from
office" pendente lite must be obeyed. His approved leave of absence is not a bar
to his preventive suspension for as indicated by the Solicitor General, an
approved leave, whether it be for a fixed or indefinite period, may be cancelled or
shortened at will by the incumbent.
8. ID.; CIVIL SERVICE; PREVENTIVE SUSPENSION; MAXIMUM PERIOD IS 90
DAYS. As we held in Layno, Sr. vs. Sandiganbayan, 136 SCRA 536 (1985), a
preventive suspension for an indefinite period of time, such as one that would last
until the case against the incumbent official shall have been finally terminated,
would "outrun the bounds of reason and result in sheer oppression" and a denial
of due process. The petitioner herein is no less entitled to similar protection.
Since his preventive suspension has exceeded the reasonable maximum period
of ninety (90) days provided in Section 42 of the Civil Service Decree of the
Philippines (P.D. 807), it should now be lifted.
DECISION
GRIO-AQUINO, J :
p

Brought up for review before this Court is the order dated August 19, 1988 of the
Sandiganbayan denying petitioner's motion to quash the information against him
in Criminal Case No. 12893, entitled "People of the Philippines vs. Hon. Quintin
S. Doromal," and the Sandiganbayan's order suspending him from office during
the pendency of the case.
In October 1987, Special Prosecution Officer II, Dionisio A. Caoili, conducted a
preliminary investigation of the charge against the petitioner, Quintin S. Doromal,
a former Commissioner of the Presidential Commission on Good Government
(PCGG), for violation of the Anti-Graft and Corrupt Practices Act (RA 3019), Sec.

3(h), in connection with his shareholdings and position as president and director
of the Doromal International Trading Corporation (DITC) which submitted bids to
supply P61 million worth of electronic, electrical, automotive, mechanical and
airconditioning equipment to the Department of Education, Culture and Sports (or
DECS) and the National Manpower and Youth Council (or NMYC).
On January 25, 1988, with the approval of Special Prosecutor Raul Gonzales,
Caoili filed in the Sandiganbayan an information against the petitioner (Criminal
Case No. 12766) alleging:
"That in or about the period from April 28, 1986 to October 16, 1987, in
Metro Manila, Philippines and within the Jurisdiction of this Honorable
Court, the above-named accused, a public officer, being then
Commissioner of the Presidential Commission on Good Government, did
then and there wilfully and unlawfully have direct or indirect financial
interest in the Doromal International Trading Corporation, an entity which
transacted or entered into a business transaction or contract with the
Department of Education, Culture and Sports and the National
Manpower and Youth Council, both agencies of the government which
business, contracts or transactions he is prohibited by law and the
constitution from having any interest." (pp. 246-247, Rollo; emphasis
supplied.)

The petitioner filed a petition for certiorari and prohibition in this Court
questioning the jurisdiction of the "Tanodbayan" to file the information without the
approval of the Ombudsman after the effectivity of the 1987 Constitution (G.R.
No. 81766, entitled "Doromal vs. Sandiganbayan")
On June 30, 1988, this Court annulled the information in accordance with its
decision in the consolidated cases of Zaldivar vs. Sandiganbayan, G.R. Nos.
79690-707 and Zaldivar vs. Gonzales, G.R. No. 80578, April 27, 1988 (160
SCRA 843), where it ruled that:
". . . the incumbent Tanodbayan (called Special Prosecutor under
the 1987 Constitution and who is supposed to retain powers and duties
NOT GIVEN to the Ombudsman) is clearly without authority to conduct
preliminary investigations and to direct the filing of criminal cases with
the Sandiganbayan, except upon orders of the Ombudsman. This right to

do so was lost effective February 2, 1987. From that time, he has been
divested of such authority."

Upon the annulment of the information against the petitioner, the Special
Prosecutor sought clearance from the Ombudsman to refile it.
In a Memorandum dated July 8, 1988, the Ombudsman, Honorable Conrado
Vasquez, granted clearance but advised that "some changes be made in the
information previously filed." (p. 107, Rollo.)
Complying with that Memorandum, a new information, duly approved by the
Ombudsman, was filed in the Sandiganbayan (Criminal Case No. 12893),
alleging that:
". . . , the above-named accused [Doromal], a public officer, being then a
Commissioner of the Presidential Commission on Good
Government, did then and there wilfully and unlawfully, participate in a
business through the Doromal International Trading Corporation, a family
corporation of which he is the President, and which company
participated in the biddings conducted by the Department of Education,
Culture and Sports and the National Manpower & Youth Council, which
act or participation is prohibited by law and the constitution." (p.
68, Rollo; emphasis supplied.)

On July 25, 1988, petitioner filed a "Motion to Quash" the information for being:
(a) invalid because there had been no preliminary investigation; and
(b) defective because the facts alleged do not constitute the offense charged
(Annex C).
The Sandiganbayan denied the motion to quash in its orders dated July 25, 1988
and August 19, 1988 (Annexes D, N and O, pp. 81, 173 & 179, Rollo).
On August 22, 1988, the Special Prosecutor filed a "Motion to Suspend Accused
Pendente Lite" pursuant to Section 13 of the Anti-Graft and Corrupt Practices
Act (R.A. 3019). Over the petitioner's objection (because the President had
earlier approved his application for indefinite leave of absence as PCGG
commissioner "effective immediately and until final decision of the courts in your
case" [Annex S-1, p. 189, Rollo]), the Sandiganbayan on September 5, 1988

ordered his suspension pendente lite from his position as PCGG Commissioner
and from any other office he may be holding (Annex T). His motion for
reconsideration of that order was also denied by the Court (Annex Y). Hence, this
petition for certiorari and prohibition alleging that the Sandiganbayan gravely
abused its discretion: (1) in denying the petitioner's motion to quash the
information in Criminal Case No. 12893; and, (2) in suspending the petitioner
from office despite the President's having previously approved his indefinite leave
of absence "until final decision" in this case.

The petitioner contends that as the preliminary investigation that was conducted
prior to the filing of the original information in Criminal Case No. 12766 was
nullified by this Court, another preliminary investigation should have been
conducted before the new information in Criminal Case No. 12893 was filed
against him. The denial of his right to such investigation allegedly violates his
right to due process and constitutes a ground to quash the information.
On the other hand, the public respondent argues that another preliminary
investigation is unnecessary because both old and new informations involve the
same subject matter a violation of Section 3 (H) of R.A. No. 3019 (the AntiGraft and Corrupt Practices Act) in relation to Section 13, Article VII of the 1987
Constitution. Moreover, the petitioner allegedly waived the second preliminary
investigation by his failure to comply with the Court's Order dated August 12,
1988 directing him to submit a statement of new or additional facts, duly
supported by photo copies of documents which he would present should a new
preliminary investigation be ordered (Annex H, p. 94, Rollo).
The petition is meritorious. A new preliminary investigation of the charge against
the petitioner is in order not only because the first was a nullity ("a dead limb on
the judicial tree which should be lopped off and wholly disregarded" Anuran
vs. Aquino, 38 Phil. 29) but also because the accused demands it as his right.
Moreover, the charge against him had been changed, as directed by the
Ombudsman.
LLjur

Thus, while the first information in Criminal Case No. 12766 charge that the DITC

"entered into a business transaction or contract with the Department of

Education, Culture and Sports and the National Manpower and Youth
Council, . . . which business, contracts or transactions he [petitioner] is
prohibited by law and the constitution from having any interest." (p.
70, Rollo.)

the new information in Criminal Case No. 12883 alleges that the petitioner:
"unlawfully participate[d] in a business through the Doromal International
Trading Corporation, a family corporation of which he is the President,
and which company participated in the biddings conducted by the
Department of Education, Culture and Sports and the National
Manpower & Youth Council, which act or participation is prohibited by
law and the constitution." (p. 68, Rollo.)

The petitioner's right to a preliminary investigation of the new charge is secured

to him by the following provisions of Rule 112 of the 1985 Rules on Criminal
Procedure:
"SECTION 3. Procedure. . . . no complaint or information for an offense
cognizable by the Regional Trial Court shall be filed without a
preliminary investigation having been first conducted. . . ."
"SECTION 7. When accused lawfully arrested without warrant. When
a person is lawfully arrested without a warrant for an offense cognizable
by the Regional Trial Court, the complaint or information may be filed by
the offended party, peace officer or fiscal without a preliminary
investigation having been first conducted; on the basis of the affidavit of
the offended party or arresting officer or person.
"However, before the filing of such complaint or information, the person
arrested may ask for a preliminary investigation by a proper officer in
accordance with this Rules . . .
"If the case has been filed in court without a preliminary investigation
having been first conducted, the accused may within five (5) days from
the time he learns of the filing of the information, ask for a preliminary
investigation with the same right to adduce evidence in his favor in the
manner prescribed in this Rule."

That right of the accused is "a substantial one." Its denial over his opposition
is a "prejudicial error, in that it subjects the accused to the loss of life, liberty,
or property without due process of law" (U.S. vs. Marfori, 35 Phil. 666).
The need to conduct a new preliminary investigation when the defendant
demands it and the allegations of the complaint have been amended, has been
more than once affirmed by this Court:
cdrep

"III. (a) . . ., the Court finds that since the information for alleged violation
of the Anti-Graft Law was filed without any previous notice to petitioners
and due preliminary investigation thereof, and despite the dismissal of
the original charge for falsification as being 'without any factual or legal
basis,' petitioners are entitled to a new preliminary investigation for the
graft charge, with all the rights to which they are entitled under section 1
of Republic Act No. 5180, approved September 8, 1967, as invoked by
them anew from respondent court, viz, the submittal of the testimonies in
affidavit form of the complainant and his witnesses duly sworn to before
the investigating fiscal, and the right of accused, through counsel, to
cross-examine them and to adduce evidence in their defense. In line with
the settled doctrine as restated in People vs. Abejuela (38 SCRA 324),
respondent court shall hold in abeyance all proceedings in the case
before it until after the outcome of such new preliminary investigation.
(Luciano vs. Mariano, 40 SCRA 187, 201; emphasis ours).
"The right of the accused not to be brought to trial except when
remanded therefor as a result of a preliminary examination before a
committing magistrate, it has been held is a substantial one. Its denial
over the objections of the accused is prejudicial error in that it subjects
the accused to the loss of life, liberty or property without due process of
law. (Conde vs. Judge of Court of First Instance of Tayabas, 45 Phil.
173, 176.).
"The absence of a preliminary investigation if it is not waived may
amount to a denial of due process. (San Diego vs. Hernandez, 24 SCRA
110, 114.)
"In this jurisdiction, the preliminary investigation in criminal cases is not a
creation of the Constitution; its origin is statutory and it exists and the
right thereto can be invoked when so established and granted by

law. (Mariano Marcos, et al. vs. Roman A. Cruz, 68 Phil. 96; emphasis
supplied.)"

The Solicitor General's argument that the right to a preliminary investigation may
be waived and was in fact waived by the petitioner, impliedly admits that the right
exists. Since the right belongs to the accused, he alone may waive it. If he
demands it, the State may not withhold it.
However, as the absence of a preliminary investigation is not a ground to quash
the complaint or information (Sec. 3, Rule 117, Rules of Court), the proceedings
upon such information in the Sandiganbayan should be held in abeyance and the
case should be remanded to the office of the Ombudsman for him or the Special
Prosecutor to conduct a preliminary investigation. Thus did We rule in Luciano vs.
Mariano, 40 SCRA 187, 201; Ilagan vs. Enrile, 139 SCRA 349 and more recently
in Sanciangco, Jr. vs. People, 149 SCRA 1, 3-4:
"The absence of preliminary investigation does not affect the court's
jurisdiction over the case. Nor do they impair the validity of the
information or otherwise render it defective; but, if there were no
preliminary investigations and the defendants, before entering their plea,
invite the attention of the court to their absence, the court, instead of
dismissing the information should conduct such investigation, order the
fiscal to conduct it or remand the case to the inferior court so that the
preliminary investigation may be conducted. (See People vs. Gomez,
117 SCRA 72, 77-78; citing People vs. Casiano, 1 SCRA 478). In this
case, the Tanodbayan has the duty to conduct the said investigation."

There is no merit in petitioner's insistence that the information should be quashed

because the Special Prosecutor admitted in the Sandiganbayan that he does not
possess any document signed and/or submitted to the DECS by the petitioner
after he became a PCGG Commissioner (p. 49, Rollo). That admission allegedly
belies the averment in the information that the petitioner "participated" in the
business of the DITC in which he is prohibited by the Constitution or by law from
having any interest. (Sec. 3-h, RA No. 3019).
The Sandiganbayan in its order of August 19, 1988 correctly observed that "the
presence of a signed document bearing the signature of accused Doromal as
part of the application to bid . . . . is not a sine qua non" (Annex O, p. 179. Rollo),

for, the Ombudsman indicated in his Memorandum/Clearance to the Special

Prosecutor, that the petitioner "can rightfully be charged . . . with having
participated in a business which act is absolutely prohibited by Section 13 of
Article VII of the Constitution" because "the DITC remained a family corporation
in which Doromal has at least an indirect interest." (pp. 107-108, Rollo)
Section 13, Article VII of the 1987 Constitution provides that "the President, VicePresident, the members of the Cabinet and their deputies or assistants shall not .
. . during (their) tenure, . . . directly or indirectly . . . participate in any business."
The constitutional ban is similar to the prohibition in the Civil Service Law (PD
No. 807, Sec. 36, subpar. 24) that "pursuit of private business . . . without the
permission required by Civil Service Rules and Regulations" shall be a ground for
disciplinary action against any officer or employee in the civil service.
On the suspension of the petitioner from office, Section 13 of the Anti-Graft and
Corrupt Practices Act (RA 3019) provides:
"SECTION 13. Suspension and loss of benefits. Any public officer
against whom any criminal prosecution under a valid information under
this Act or under the provisions of the Revised Penal Code on bribery is
pending in court, shall be suspended from office. Should he be convicted
by final judgment, he shall lose all retirement or gratuity benefits under
any law, but if he is acquitted, he shall be entitled to reinstatement and to
the salaries and benefits which he failed to receive during suspension,
unless in the meantime administrative proceedings have been filed
against him."

Since the petitioner is an incumbent public official charged in a valid information

with an offense punishable under the Constitution and the laws (RA 3019 and PD
807), the law's command that he "shall be suspended from office" pendente
lite must be obeyed. His approved leave of absence is not a bar to his preventive
suspension for as indicated by the Solicitor General, an approved leave, whether
it be for a fixed or indefinite period, may be cancelled or shortened at will by the
incumbent.
LLpr

Nevertheless, as we held in Layno, Sr. vs. Sandiganbayan, 136 SCRA 536

(1985), a preventive suspension for an indefinite period of time, such as one that
would last until the case against the incumbent official shall have been finally
terminated, would "outrun the bounds of reason and result in sheer oppression"
and a denial of due process.
In the case of Garcia vs. The Executive Secretary, 6 SCRA 1 (1962), this Court
ordered the immediate reinstatement, to his position as chairman of the National
Science Development Board, of a presidential appointee whose preventive
suspension had lasted for nearly seven (7) months. Some members of the Court
held that the maximum period of sixty (60) days provided in Section 35 of
the Civil Service Act of 1959 (Republic Act 2260) was applicable to the petitioner.
The others believed, however, that period may not apply strictly to cases of
presidential appointees, nevertheless, the preventive suspension shall be limited
to a reasonable period. Obviously, the Court found the petitioner's preventive
suspension for seven (7) months to be unreasonable. The Court stated:
"To adopt the theory of respondents that an officer appointed by the
President, facing administrative charges can be preventively suspended
indefinitely, would be to countenance a situation where the preventive
suspension can, in effect, be the penalty itself without a finding of guilt
after due hearing; contrary to the express mandate of the
Constitution (No officer or employee in the Civil Service shall be
removed or suspended except for cause as provided by law. [Art. XII,
Sec. 4, Constitution of the Philippines]) and the Civil Service Law (No
officer or employee in the Civil Service shall be removed or suspended
except for cause as provided by law and after due process). . . . In the
guise of a preventive suspension, his term of office could be shortened
and he could, in effect, be removed without a finding of a cause duly
established after due hearing, in violation of the Constitution. . . ."

Pursuant to the guarantee of equal protection of the laws in the Bill of Rights of
our Constitution,that same ruling was applied in Deloso vs. Sandiganbayan, G.R.
Nos. 86899-903, May 15, 1989.
cdll

The petitioner herein is no less entitled to similar protection. Since his preventive
suspension has exceeded the reasonable maximum period of ninety (90) days

provided in Section 42 of the Civil Service Decree of the Philippines (P.D. 807), it
should now be lifted.
WHEREFORE, the petition for certiorari and prohibition is granted. The
Sandiganbayan shall immediately remand Criminal Case No. 12893 to the Office
of the Ombudsman for preliminary investigation and shall hold in abeyance the
proceedings before it pending the result of such investigation. The preventive
suspension of the petitioner is hereby lifted. No costs.
SO ORDERED.
|||

(Doromal v. Sandiganbayan, G.R. No. 85468, [September 7, 1989], 258 PHIL

146-146)

11
[G.R. Nos. 217126-27. November 10, 2015.]
CONCHITA CARPIO-MORALES, in her capacity as the
Ombudsman, petitioner, vs. COURT OF APPEALS (SIXTH
DIVISION) and JEJOMAR ERWIN S. BINAY, JR., respondents.
DECISION
PERLAS-BERNABE, J :
p

"All government is a trust, every branch of government is a trust,

and immemorially acknowledged so to be[.]" 1

The Case
Before the Court is a petition for certiorari and prohibition 2 filed on
March 25, 2015 by petitioner Conchita Carpio-Morales, in her capacity as the
Ombudsman (Ombudsman), through the Office of the Solicitor General
(OSG), assailing: (a) the Resolution 3 dated March 16, 2015 of public
respondent the Court of Appeals (CA) inCA-G.R. SP No. 139453, which

granted private respondent Jejomar Erwin S. Binay, Jr.'s (Binay, Jr.) prayer for
the issuance of a temporary restraining order (TRO) against the
implementation of the Joint Order 4 dated March 10, 2015 of the Ombudsman
in OMB-C-A-15-0058 to 0063 (preventive suspension order) preventively
suspending him and several other public officers and employees of the City
Government of Makati, for six (6) months without pay; and (b) the
Resolution 5 dated March 20, 2015 of the CA, ordering the Ombudsman to
comment on Binay, Jr.'s petition for contempt 6 in CA-G.R. SP No. 139504.
Pursuant to the Resolution 7 dated April 6, 2015, the CA issued a writ of
preliminary injunction 8 (WPI) in CA-G.R. SP No. 139453 which further
enjoined the implementation of the preventive suspension order, prompting
the Ombudsman to file a supplemental petition 9 on April 13, 2015.
The Facts
On July 22, 2014, a complaint/affidavit 10 was filed by Atty. Renato L.
Bondal and Nicolas "Ching" Enciso VI before the Office of the Ombudsman
against Binay, Jr. and other public officers and employees of the City
Government of Makati (Binay, Jr., et al.), accusing them of Plunder 11 and
violation of Republic Act No. (RA) 3019, 12otherwise known as "The Anti-Graft
and Corrupt Practices Act," in connection with the five (5) phases of the
procurement and construction of the Makati City Hall Parking Building (Makati
Parking Building). 13
CAIHTE

On September 9, 2014, the Ombudsman constituted a Special Panel of

Investigators 14 to conduct a fact-finding investigation, submit an investigation
report, and file the necessary complaint, if warranted (1st Special
Panel). 15 Pursuant to the Ombudsman's directive, on March 5, 2015, the 1st
Special Panel filed a complaint16 (OMB Complaint) against Binay, Jr., et al.,
charging them with six (6) administrative cases 17 for Grave Misconduct,
Serious Dishonesty, and Conduct Prejudicial to the Best Interest of the
Service, and six (6) criminal cases 18 for violation of Section 3 (e) of RA 3019,
Malversation of Public Funds, and Falsification of Public Documents (OMB
Cases). 19
As to Binay, Jr., the OMB Complaint alleged that he was involved in
anomalous activities attending the following procurement and construction

phases of the Makati Parking Building project, committed during his previous
and present terms as City Mayor of Makati:
Binay, Jr.'s First Term (2010 to 2013) 20
(a) On September 21, 2010, Binay, Jr. issued the Notice of
Award 21 for Phase III of the Makati Parking Building project to
Hilmarc's Construction Corporation (Hilmarc's), and consequently,
executed
the
corresponding
contract 22 on September
28,
2010, 23 without the required publication and the lack of architectural
design, 24 and approved the release of funds therefor in the following
amounts as follows: (1) P130,518,394.80 on December 15,
2010; 25 (2)
P134,470,659.64
onJanuary
19,
2011; 26 (3)
P92,775,202.27 on February
25,
2011; 27 (4)
P57,148,625.51
on March 28, 2011; 28 (5) P40,908,750.61 on May 3, 2011; 29 and (6)
P106,672,761.90 on July 7, 2011; 30
(b) On August 11, 2011, Binay, Jr. issued the Notice of
Award 31 for Phase IV of the Makati Parking Building project to
Hilmarc's,
and
consequently,
executed
the
corresponding
contract 32 on August 18, 2011, 33 without the required publication
and the lack of architectural design, 34 and approved the release of
funds therefor in the following amounts as follows: (1) P182,325,538.97
on October 4, 2011; 35 (2) P173,132,606.91 on October 28,
2011; 36 (3)
P80,408,735.20
on December
12,
2011; 37 (4)
P62,878,291.81 on February 10, 2012; 38 and (5) P59,639,167.90
on October 1, 2012; 39
(c) On September 6, 2012, Binay, Jr. issued the Notice of
Award 40 for Phase V of the Makati Parking Building project to
Hilmarc's,
and
consequently,
executed
the
corresponding
contract 41 on September 13, 2012, 42 without the required publication
and the lack of architectural design, 43 and approved the release of the
funds therefor in the amounts of P32,398,220.05 44 and
P30,582,629.30 45 on December 20, 2012; and
Binay, Jr.'s Second Term (2013 to 2016) 46
(d) On July 3, 2013 and July 4, 2013, Binay, Jr. approved the release
of funds for the remaining balance of the September 13, 2012 contract

with Hilmarc's forPhase V of the Makati Parking Building project in the

amount of P27,443,629.97; 47 and
(e) On July 24, 2013, Binay, Jr. approved the release of funds for the
remaining balance of the contract 48 with MANA Architecture & Interior
Design Co. (MANA) for the design and architectural services covering
the Makati Parking Building project in the amount of P429,011.48. 49

On March 6, 2015, the Ombudsman created another Special Panel of

Investigators to conduct a preliminary investigation and administrative
adjudication on the OMB Cases (2nd Special Panel). 50 Thereafter, on March
9, 2015, the 2nd Special Panel issued separate orders 51 for each of the OMB
Cases, requiring Binay, Jr., et al. to file their respective counter-affidavits. 52
Before Binay, Jr., et al.'s filing of their counter-affidavits, the
Ombudsman, upon the recommendation of the 2nd Special Panel, issued on
March 10, 2015, the subject preventive suspension order, placing Binay, Jr., et
al. under preventive suspension for not more than six (6) months without pay,
during the pendency of the OMB Cases. 53 The Ombudsman ruled that the
requisites for the preventive suspension of a public officer are
present, 54 finding that: (a) the evidence of Binay, Jr., et al.'s guilt was strong
given that (1) the losing bidders and members of the Bids and Awards
Committee of Makati City had attested to the irregularities attending the
Makati Parking Building project; (2) the documents on record negated the
publication of bids; and (3) the disbursement vouchers, checks, and official
receipts showed the release of funds; and (b) (1) Binay, Jr., et al. were
administratively charged with Grave Misconduct, Serious Dishonesty, and
Conduct Prejudicial to the Best Interest of the Service; (2) said charges, if
proven to be true, warrant removal from public service under the Revised
Rules on Administrative Cases in the Civil Service (RRACCS), and (3) Binay,
Jr., et al.'s respective positions give them access to public records and allow
them to influence possible witnesses; hence, their continued stay in office may
prejudice the investigation relative to the OMB Cases filed against
them. 55 Consequently, the Ombudsman directed the Department of Interior
and Local Government (DILG), through Secretary Manuel A. Roxas II
(Secretary Roxas), to immediately implement the preventive suspension order
against Binay, Jr., et al., upon receipt of the same. 56

On March 11, 2015, a copy of the preventive suspension order was sent
to the Office of the City Mayor, and received by Maricon Ausan, a member of
Binay, Jr.'s staff. 57
The Proceedings Before the CA
On even date, 58 Binay, Jr. filed a petition for certiorari 59 before the CA,
docketed as CA-G.R. SP No. 139453, seeking the nullification of the
preventive suspension order, and praying for the issuance of a TRO and/or
WPI to enjoin its implementation. 60 Primarily, Binay, Jr. argued that he
could not be held administratively liable for any anomalous activity
attending any of the five (5) phases of the Makati Parking Building project
since: (a) Phases I and II were undertaken before he was elected Mayor of
Makati in 2010; and (b) Phases III to V transpired during his first term and
that his re-election as City Mayor of Makati for a second term effectively
condoned his administrative liability therefor, if any, thus rendering the
administrative cases against him moot and academic. 61In any event, Binay,
Jr. claimed that the Ombudsman's preventive suspension order failed to
show that the evidence of guilt presented against him is strong,
maintaining that he did not participate in any of the purported
irregularities. 62 In support of his prayer for injunctive relief, Binay, Jr. argued
that he has a clear and unmistakable right to hold public office, having won by
landslide vote in the 2010 and 2013 elections, and that, in view of the
condonation doctrine, as well as the lack of evidence to sustain the charges
against him, his suspension from office would undeservedly deprive the
electorate of the services of the person they have conscientiously chosen and
voted into office. 63
DETACa

On March 16, 2015, at around 8:24 a.m., Secretary Roxas caused the
implementation of the preventive suspension order through the DILG National
Capital Region Regional Director, Renato L. Brion, CESO III (Director
Brion), who posted a copy thereof on the wall of the Makati City Hall after
failing to personally serve the same on Binay, Jr. as the points of entry to the
Makati City Hall were closed. At around 9:47 a.m., Assistant City Prosecutor
of Makati Billy C. Evangelista administered the oath of office on Makati City

Vice Mayor Romulo V. Pea, Jr. (Pea, Jr.) who thereupon assumed office as
Acting Mayor. 64
At noon of the same day, the CA issued a Resolution 65 (dated March
16, 2015), granting Binay, Jr.'s prayer for a TRO, 66 notwithstanding Pea, Jr.'s
assumption of duties as Acting Mayor earlier that day. 67 Citing the case
of Governor Garcia, Jr. v. CA, 68 the CA found that it was more prudent on its
part to issue a TRO in view of the extreme urgency of the matter and
seriousness of the issues raised, considering that if it were established that
the acts subject of the administrative cases against Binay, Jr. were all
committed during his prior term, then, applying the condonation doctrine,
Binay, Jr.'s re-election meant that he can no longer be administratively
charged. 69 The CA then directed the Ombudsman to comment on Binay, Jr.'s
petition for certiorari. 70
On March 17, 2015, the Ombudsman manifested 71 that the TRO did
not state what act was being restrained and that since the preventive
suspension order had already been served and implemented, there was no
longer any act to restrain. 72
On the same day, Binay, Jr. filed a petition for contempt, 73 docketed
as CA-G.R. SP No. 139504, accusing Secretary Roxas, Director Brion, the
officials of the Philippine National Police, and Pea, Jr. of deliberately refusing
to obey the CA, thereby allegedly impeding, obstructing, or degrading the
administration of justice. 74The Ombudsman and Department of Justice
Secretary Leila M. De Lima were subsequently impleaded as additional
respondents upon Binay, Jr.'s filing of the amended and supplemental petition
for contempt 75 (petition for contempt) on March 19, 2015. 76 Among others,
Binay, Jr. accused the Ombudsman and other respondents therein for willfully
and maliciously ignoring the TRO issued by the CA against the preventive
suspension order. 77
In a Resolution 78 dated March 20, 2015, the CA ordered the
consolidation of CA-G.R. SP No. 139453 and CA-G.R. SP No. 139504,
and, without necessarily giving due course to Binay, Jr.'s petition for
contempt, directed the Ombudsman to file her comment thereto. 79 The
cases were set for hearing of oral arguments on March 30 and 31, 2015. 80

The Proceedings Before the Court

Prior to the hearing of the oral arguments before the CA, or on March
25, 2015, the Ombudsman filed the present petition before this Court,
assailing the CA's March 16, 2015 Resolution, which granted Binay, Jr.'s
prayer for TRO in CA-G.R. SP No. 139453, and the March 20, 2015
Resolution directing her to file a comment on Binay, Jr.'s petition for contempt
in CA-G.R. SP No. 139504. 81 The Ombudsman claims that: (a) the CA had
no jurisdiction to grant Binay, Jr.'s prayer for a TRO, citing Section 14 of RA
6770, 82 or "The Ombudsman Act of 1989," which states that no injunctive writ
could be issued to delay the Ombudsman's investigation unless there is prima
facie evidence that the subject matter thereof is outside the latter's
jurisdiction; 83 and (b) the CA's directive for the Ombudsman to comment on
Binay, Jr.'s petition for contempt is illegal and improper, considering that the
Ombudsman is an impeachable officer, and therefore, cannot be subjected to
contempt proceedings. 84
In his comment 85 filed on April 6, 2015, Binay, Jr. argues that Section
1, Article VIII of the 1987 Constitution specifically grants the CA judicial power
to review acts of any branch or instrumentality of government, including the
Office of the Ombudsman, in case of grave abuse of discretion amounting to
lack or excess of jurisdiction, which he asserts was committed in this case
when said office issued the preventive suspension order against him. 86 Binay,
Jr. posits that it was incumbent upon the Ombudsman to have been apprised
of the condonation doctrine as this would have weighed heavily in determining
whether there was strong evidence to warrant the issuance of the preventive
suspension order. 87 In this relation, Binay, Jr. maintains that the CA correctly
enjoined the implementation of the preventive suspension order given his
clear and unmistakable right to public office, and that it is clear that he could
not be held administratively liable for any of the charges against him since his
subsequent re-election in 2013 operated as a condonation of any
administrative offenses he may have committed during his previous
term. 88 As regards the CA's order for the Ombudsman to comment on his
petition for contempt, Binay, Jr. submits that while the Ombudsman is indeed
an impeachable officer and, hence, cannot be removed from office except by
way of impeachment, an action for contempt imposes the penalty of fine and

imprisonment, without necessarily resulting in removal from office. Thus, the

fact that the Ombudsman is an impeachable officer should not deprive the CA
of its inherent power to punish contempt. 89
aDSIHc

Meanwhile, the CA issued a Resolution 90 dated April 6, 2015, after

the oral arguments before it were held, 91 granting Binay, Jr.'s prayer for a
WPI, which further enjoined the implementation of the preventive suspension
order. In so ruling, the CA found that Binay, Jr. has an ostensible right to the
final relief prayed for, namely, the nullification of the preventive suspension
order, in view of the condonation doctrine, citing Aguinaldo v.
Santos. 92 Particularly, it found that the Ombudsman can hardly impose
preventive suspension against Binay, Jr. given that his re-election in 2013 as
City Mayor of Makati condoned any administrative liability arising from
anomalous activities relative to the Makati Parking Building project from 2007
to 2013. 93 In this regard, the CA added that, although there were acts which
were apparently committed by Binay, Jr. beyond his first term namely, the
alleged payments on July 3, July 4, and July 24, 2013, 94 corresponding to the
services of Hillmarc's and MANA still, Binay, Jr. cannot be held
administratively liable therefor based on the cases of Salalima v. Guingona,
Jr., 95 and Mayor Garcia v. Mojica, 96 wherein the condonation doctrine was
still applied by the Court although the payments were made after the official's
re-election, reasoning that the payments were merely effected pursuant to
contracts executed before said re-election. 97 To this, the CA added that there
was no concrete evidence of Binay, Jr.'s participation for the alleged payments
made on July 3, 4, and 24, 2013. 98
In view of the CA's supervening issuance of a WPI pursuant to its April
6, 2015 Resolution, the Ombudsman filed a supplemental petition 99 before
this Court, arguing that the condonation doctrine is irrelevant to the
determination of whether the evidence of guilt is strong for purposes of issuing
preventive suspension orders. The Ombudsman also maintained that a
reliance on the condonation doctrine is a matter of defense, which should
have been raised by Binay, Jr. before it during the administrative proceedings,
and that, at any rate, there is no condonation because Binay, Jr. committed
acts subject of the OMB Complaint after his re-election in 2013. 100

On April 14 and 21, 2015, 101 the Court conducted hearings for the oral
arguments of the parties. Thereafter, they were required to file their respective
memoranda. 102 In compliance thereto, the Ombudsman filed her
Memorandum 103 on May 20, 2015, while Binay, Jr. submitted his
Memorandum the following day.104
Pursuant to a Resolution 105 dated June 16, 2015, the Court directed
the parties to comment on each other's memoranda, and the OSG to
comment on the Ombudsman's Memorandum, all within ten (10) days from
receipt of the notice.
On July 15, 2015, both parties filed their respective comments to each
other's memoranda. 106 Meanwhile, on July 16, 2015, the OSG filed its
Manifestation in Lieu of Comment, 107 simply stating that it was mutually
agreed upon that the Office of the Ombudsman would file its Memorandum,
consistent with its desire to state its "institutional position." 108 In her
Memorandum and Comment to Binay, Jr.'s Memorandum, the Ombudsman
pleaded, among others, that this Court abandon the condonation
doctrine. 109 In view of the foregoing, the case was deemed submitted for
resolution.
The Issues Before the Court
Based on the parties' respective pleadings, and as raised during the
oral arguments conducted before this Court, the main issues to be resolved in
seriatim are as follows:
I. Whether or not the present petition, and not motions for
reconsideration of the assailed CA issuances in CA-G.R. SP No.
139453 and CA-G.R. SP No. 139504, is the Ombudsman's plain,
speedy, and adequate remedy;
II. Whether or not the CA has subject matter jurisdiction over the main
petition for certiorari in CA-G.R. SP No. 139453;
III. Whether or not the CA has subject matter jurisdiction to issue a TRO
and/or WPI enjoining the implementation of a preventive
suspension order issued by the Ombudsman;
IV. Whether or not the CA gravely abused its discretion in issuing the
TRO and eventually, the WPI in CA-G.R. SP No. 139453 enjoining

the implementation of the preventive suspension order against

Binay, Jr. based on the condonation doctrine; and
V. Whether or not the CA's directive for the Ombudsman to comment on
Binay, Jr.'s petition for contempt in CA-G.R. SP No. 139504 is
improper and illegal.

The Ruling of the Court

The petition is partly meritorious.
I.
A common requirement to both a petition for certiorari and a petition for
prohibition taken under Rule 65 of the 1997 Rules of Civil Procedure is that
the petitioner has no other plain, speedy, and adequate remedy in the ordinary
course of law. Sections 1 and 2 thereof provide:
Section 1. Petition for certiorari. When any tribunal, board or
officer exercising judicial or quasi-judicial functions has acted without or
in excess of its or his jurisdiction, or with grave abuse of discretion
amounting to lack or excess of jurisdiction, and there is no appeal, nor
any plain, speedy, and adequate remedy in the ordinary course of
law, a person aggrieved thereby may file a verified petition in the
proper court, alleging the facts with certainty and praying that judgment
be rendered annulling or modifying the proceedings of such tribunal,
board or officer, and granting such incidental reliefs as law and justice
may require.
ETHIDa

xxx xxx xxx

Section 2. Petition for prohibition. When the proceedings of
any tribunal, corporation, board, officer or person, whether exercising
judicial, quasi-judicial or ministerial functions, are without or in excess
of its or his jurisdiction, or with grave abuse of discretion amounting to
lack or excess of jurisdiction, and there is no appeal, or any other
plain, speedy, and adequate remedy in the ordinary course of law,
a person aggrieved thereby may file a verified petition in the proper
court, alleging the facts with certainty and praying that judgment be
rendered commanding the respondent to desist from further
proceedings in the action or matter specified therein, or otherwise
granting such incidental reliefs as law and justice may require.

xxx xxx xxx (Emphases supplied)

Hence, as a general rule, a motion for reconsideration must first be filed

with the lower court prior to resorting to the extraordinary remedy
of certiorari or prohibition since a motion for reconsideration may still be
considered as a plain, speedy, and adequate remedy in the ordinary course of
law. The rationale for the pre-requisite is to grant an opportunity for the lower
court or agency to correct any actual or perceived error attributed to it by the
re-examination of the legal and factual circumstances of the case. 110
Jurisprudence states that "[i]t is [the] inadequacy, [and] not the mere
absence of all other legal remedies and the danger of failure of justice without
the writ, that must usually determine the propriety of certiorari [or prohibition].
A remedy is plain, speedy[,] and adequate if it will promptly relieve the
petitioner from the injurious effects of the judgment, order, or resolution of the
lower court or agency. . . . ." 111
In this light, certain exceptions were crafted to the general rule requiring
a prior motion for reconsideration before the filing of a petition for certiorari,
which exceptions also apply to a petition for prohibition. 112 These
are: (a) where the order is a patent nullity, as where the court a quo has no
jurisdiction; (b) where the questions raised in the certiorari proceedings have
been duly raised and passed upon by the lower court, or are the same as
those raised and passed upon in the lower court; (c) where there is an
urgent necessity for the resolution of the question and any further delay
would prejudice the interests of the Government or of the petitioner or the
subject matter of the action is perishable; (d) where, under the circumstances,
a motion for reconsideration would be useless; (e) where petitioner was
deprived of due process and there is extreme urgency for relief; (f) where, in a
criminal case, relief from an order of arrest is urgent and the granting of such
relief by the trial court is improbable; (g) where the proceedings in the lower
court are a nullity for lack of due process; (h) where the proceedings were ex
parte or in which the petitioner had no opportunity to object; and (i) where the
issue raised is one purely of law or where public interest is involved. 113
In this case, it is ineluctably clear that the above-highlighted exceptions
attend since, for the first time, the question on the authority of the CA and

of this Court, for that matter to enjoin the implementation of a preventive

suspension order issued by the Office of the Ombudsman is put to the fore.
This case tests the constitutional and statutory limits of the fundamental
powers of key government institutions namely, the Office of the
Ombudsman, the Legislature, and the Judiciary and hence, involves an
issue of transcendental public importance that demands no less than a careful
but expeditious resolution. Also raised is the equally important issue on the
propriety of the continuous application of the condonation doctrine as invoked
by a public officer who desires exculpation from administrative liability. As
such, the Ombudsman's direct resort to certiorari and prohibition before this
Court, notwithstanding her failure to move for the prior reconsideration of the
assailed issuances in CA-G.R. SP No. 139453 and CA-G.R. SP No. 139504
before the CA, is justified.
II.
Albeit raised for the first time by the Ombudsman in her
Memorandum, 114 it is nonetheless proper to resolve the issue on the CA's
lack of subject matter jurisdiction over the main petition for certiorari in CAG.R. SP No. 139453, in view of the well-established rule that a court's
jurisdiction over the subject matter may be raised at any stage of the
proceedings. The rationale is that subject matter jurisdiction is conferred by
law, and the lack of it affects the very authority of the court to take cognizance
of and to render judgment on the action. 115 Hence, it should be preliminarily
determined if the CA indeed had subject matter jurisdiction over the main CAG.R. SP No. 139453 petition, as the same determines the validity of all
subsequent proceedings relative thereto. It is noteworthy to point out that
Binay, Jr. was given the opportunity by this Court to be heard on this
issue, 116 as he, in fact, duly submitted his opposition through his comment to
the Ombudsman's Memorandum. 117 That being said, the Court perceives no
reasonable objection against ruling on this issue.
The Ombudsman's argument against the CA's lack of subject matter
jurisdiction over the main petition, and her corollary prayer for its dismissal, is
based on her interpretation of Section 14, RA 6770, or the Ombudsman
Act, 118 which reads in full:

Section 14. Restrictions. No writ of injunction shall be issued

by any court to delay an investigation being conducted by the
Ombudsman under this Act, unless there is a prima facie evidence that
the subject matter of the investigation is outside the jurisdiction of the
Office of the Ombudsman.
cSEDTC

No court shall hear any appeal or application for remedy against

the decision or findings of the Ombudsman, except the Supreme Court,
on pure question of law.

The subject provision may be dissected into two (2) parts.

The first paragraph of Section 14, RA 6770 is a prohibition against
any court (except the Supreme Court 119 ) from issuing a writ of injunction to
delay an investigation being conducted by the Office of the Ombudsman.
Generally speaking, "[i]njunction is a judicial writ, process or proceeding
whereby a party is ordered to do or refrain from doing a certain act. It may be
the main action or merely a provisional remedy for and as an incident in the
main action." 120 Considering the textual qualifier "to delay," which connotes a
suspension of an action while the main case remains pending, the "writ of
injunction" mentioned in this paragraph could only refer to injunctions of the
provisional kind, consistent with the nature of a provisional injunctive relief.
The exception to the no injunction policy is when there is prima
facie evidence that the subject matter of the investigation is outside the office's
jurisdiction. The Office of the Ombudsman has disciplinary authority over all
elective and appointive officials of the government and its subdivisions,
instrumentalities, and agencies, with the exception only of impeachable
officers, Members of Congress, and the Judiciary. 121 Nonetheless, the
Ombudsman retains the power to investigate any serious misconduct in office
allegedly committed by officials removable by impeachment, for the purpose of
filing a verified complaint for impeachment, if warranted. 122 Note that the
Ombudsman has concurrent jurisdiction over certain administrative cases
which are within the jurisdiction of the regular courts or administrative
agencies, but has primary jurisdiction to investigate any act or omission of a
public officer or employee who is under the jurisdiction of the
Sandiganbayan. 123

On the other hand, the second paragraph of Section 14, RA

6770 provides that no appeal or application for remedy may be heard against
the decision or findings of the Ombudsman, with the exception of the Supreme
Court on pure questions of law. This paragraph, which the Ombudsman
particularly relies on in arguing that the CA had no jurisdiction over the main
CA-G.R. SP No. 139453 petition, as it is supposedly this Court which has the
sole jurisdiction to conduct a judicial review of its decisions or findings, is
vague for two (2) reasons: (1) it is unclear what the phrase "application for
remedy" or the word "findings" refers to; and(2) it does not specify what
procedural remedy is solely allowable to this Court, save that the same be
taken only against a pure question of law. The task then, is to apply the
relevant principles of statutory construction to resolve the ambiguity.
"The underlying principle of all construction is that the intent of the
legislature should be sought in the words employed to express it, and that
when found[,] it should be made to govern, . . . . If the words of the law seem
to be of doubtful import, it may then perhaps become necessary to look
beyond them in order to ascertain what was in the legislative mind at the time
the law was enacted; what the circumstances were, under which the action
was taken; what evil, if any, was meant to be redressed; . . . [a]nd where the
law has contemporaneously been put into operation, and in doing so a
construction has necessarily been put upon it, this construction, especially if
followed for some considerable period, is entitled to great respect, as being
very probably a true expression of the legislative purpose, and is not lightly to
be overruled, although it is not conclusive." 124
As an aid to construction, courts may avail themselves of the actual
proceedings of the legislative body in interpreting a statute of doubtful
meaning. In case of doubt as to what a provision of a statute means, the
meaning put to the provision during the legislative deliberations may be
adopted, 125 albeit not controlling in the interpretation of the law. 126
A. The Senate deliberations cited by
the Ombudsman do not pertain to the
second paragraph of Section 14, RA 6770.

The Ombudsman submits that the legislative intent behind Section

14, RA 6770, particularly on the matter of judicial review of her office's
decisions or findings, is supposedly clear from the following Senate
deliberations: 127
Senator [Edgardo J.] Angara.
. . . . On page 15, Mr. President, line 14, after the phrase "petition for"
delete the word "review" and in lieu thereof, insert the
word CERTIORARI. So that, review or appeal from the decision of
the Ombudsman would only be taken not on a petition for review,
but on certiorari.
The President [Jovito R. Salonga].
What is the practical effect of that? Will it be more difficult to
reverse the decision under review?
Senator Angara.
It has two practical effect ways, Mr. President. First is that the findings
of facts of the Ombudsman would be almost conclusive if
supported by substantial evidence. Second, we would not
unnecessarily clog the docket of the Supreme Court. So, it in
effect will be a very strict appeal procedure.
xxx xxx xxx
Senator [Teofisto T.] Guingona, [Jr.].
Does this mean that, for example, if there are exhaustive remedies
available to a respondent, the respondent himself has the right to
exhaust the administrative remedies available to him?
Senator Angara.
Yes, Mr. President, that is correct.
Senator Guingona.
And he himself may cut the proceeding short by appealing to the
Supreme Court only on certiorari?
Senator Angara.
On question of law, yes.

Senator Guingona.
And no other remedy is available to him?
Senator Angara.
Going to the Supreme Court, Mr. President?
Senator Guingona.
Yes. What I mean to say is, at what stage, for example, if he is a
presidential appointee who is the respondent, if there is
no certiorari available, is the respondent given the right to exhaust
his administrative remedies first before the Ombudsman can take
the appropriate action?
SDAaTC

Senator Angara.
Yes, Mr. President, because we do not intend to change the
administrative law principle that before one can go to court, he
must exhaust all administrative remedies . . . available to him
before he goes and seeks judicial review.
xxx xxx xxx
Senator [Neptali A.] Gonzales.
What is the purpose of the Committee in changing the method of
appeal from one of a petition for review to a petition for
certiorari?
Senator Angara.
To make it consistent, Mr. President, with the provision here in the
bill to the effect that the finding of facts of the Ombudsman
is conclusive if supported by substantial evidence.
Senator Gonzales.
A statement has been made by the Honorable Presiding Officer to which
I concur, that in an appeal by certiorari, the appeal is more
difficult. Because in certiorari it is a matter of discretion on
the part of the court, whether to give due course to the
petition or dismiss it outright. Is that not correct, Mr. President?
Senator Angara.
That is absolutely correct, Mr. President.

Senator Gonzales.
And in a petition for certiorari, the issue is limited to whether or
not the Ombudsman here has acted without jurisdiction and
has committed a grave abuse of discretion amounting to lack
of jurisdiction. Is that not the consequence, Mr. President.
Senator Angara.
That is correct, Mr. President.
Senator Gonzales.
And it is, therefore, in this sense that the intention of the Committee is
to make it harder to have a judicial review, but should be
limited only to cases that I have enumerated.
Senator Angara.
Yes, Mr. President.
Senator Gonzales.
I think, Mr. President, our Supreme Court has made a distinction
between a petition for review and a petition for certiorari; because
before, under the 1935 Constitution appeal from any order, ruling
or decision of the COMELEC shall be by means of review. But
under the Constitution it is now by certiorari and the Supreme
Court said that by this change, the court exercising judicial review
will not inquire into the facts, into the evidence, because we will
not go deeply by way of review into the evidence on record but its
authority will be limited to a determination of whether the
administrative agency acted without, or in excess of, jurisdiction,
or committed a grave abuse of discretion. So, I assume that that
is the purpose of this amendment, Mr. President.
Senator Angara.
The distinguished Gentleman has stated it so well.
Senator Gonzales.
I just want to put that in the Record.
Senator Angara.
It is very well stated, Mr. President.

xxx xxx xxx

The President.
It is evident that there must be some final authority to render
decisions. Should it be the Ombudsman or should it be the
Supreme Court?
Senator Angara.
As I understand it, under our scheme of government, Mr. President, it is
and has to be the Supreme Court to make the final
determination.
The President.
Then if that is so, we have to modify Section 17.
Senator Angara.
That is why, Mr. President, some of our Colleagues have made a
reservation to introduce an appropriate change during the period
of Individual Amendments.
xxx xxx xxx
The President.
All right. Is there any objection to the amendment inserting the
word CERTIORARI instead of "review"? [Silence] Hearing none,
the same is approved. 128

Upon an assiduous scrutiny of these deliberations, the Court is,

however, unconvinced that the provision debated on was Section 14, RA
6770, as the Ombudsman invokes. Note that the exchange begins with the
suggestion of Senator Angara to delete the word "review" that comes after the
phrase "petition for review" and, in its stead, insert the word "certiorari" so that
the "review or appeal from the decision of the Ombudsman would not only be
taken on a petition for review, but on certiorari." The ensuing exchange
between Senators Gonzales and Angara then dwells on the purpose of
changing the method of review from one of a petition for review to a petition
for certiorari that is, to make "the appeal . . . more difficult." Ultimately, the
amendment to the change in wording, from "petition for review" to "petition
for certiorari" was approved.

Noticeably, these references to a "petition for review" and the proposed

"petition for certiorari" are nowhere to be found in the text of Section 14, RA
6770. In fact, it was earlier mentioned that this provision, particularly its
second paragraph, does not indicate what specific procedural remedy one
should take in assailing a decision or finding of the Ombudsman; it only
reveals that the remedy be taken to this Court based on pure questions of law.
More so, it was even commented upon during the oral arguments of this
case 129 that there was no debate or clarification made on the current
formulation of the second paragraph of Section 14, RA 6770per the available
excerpts of the Senate deliberations. In any case, at least for the above-cited
deliberations, the Court finds no adequate support to sustain the
Ombudsman's entreaty that the CA had no subject matter jurisdiction over the
main CA-G.R. SP No. 139453 petition.
acEHCD

On the contrary, it actually makes greater sense to posit that these

deliberations refer to another Ombudsman Act provision, namely
Section 27, RA 6770. This is because the latter textually reflects the approval
of Senator Angara's suggested amendment, i.e., that the Ombudsman's
decision or finding may be assailed in a petition for certiorari to this Court
(fourth paragraph), and further, his comment on the conclusive nature of the
factual findings of the Ombudsman, if supported by substantial evidence (third
paragraph):
Section 27. Effectivity and Finality of Decisions. (1) All
provisionary orders of the Office of the Ombudsman are immediately
effective and executory.
A motion for reconsideration of any order, directive or decision of
the Office of the Ombudsman must be filed within five (5) days after
receipt of written notice and shall be entertained only on any of the
following grounds:
(1) New evidence has been discovered which materially affects
the order, directive or decision;
(2) Errors of law or irregularities have been committed prejudicial
to the interest of the movant. The motion for
reconsideration shall be resolved within three (3) days from

filing: Provided, That only one motion for reconsideration

shall be entertained.
Findings of fact by the Office of the Ombudsman when
supported by substantial evidence are conclusive. Any order, directive
or decision imposing the penalty of public censure or reprimand,
suspension of not more than one (1) month's salary shall be final and
unappealable.
In all administrative disciplinary cases, orders, directives,
or decisions of the Office of the Ombudsman may be appealed to
the Supreme Court by filing a petition for certiorari within ten (10)
days from receipt of the written notice of the order, directive or
decision or denial of the motion for reconsideration in
accordance with Rule 45 of the Rules of Court.
The above rules may be amended or modified by the Office of
the Ombudsman as the interest of justice may require. (Emphasis and
underscoring supplied)

At first blush, it appears that Section 27, RA 6770 is equally ambiguous

in stating that a "petition for certiorari" should be taken in accordance with
Rule 45 of the Rules of Court, as it is well-known that under the present 1997
Rules of Civil Procedure, petitions for certiorari are governed by Rule 65 of the
said Rules. However, it should be discerned that the Ombudsman Act was
passed way back in 1989 130 and, hence, before the advent of the 1997 Rules
of Civil Procedure. 131 At that time, the governing 1964 Rules of
Court, 132 consistent with Section 27, RA 6770, referred to the appeal taken
thereunder as a petition for certiorari, thus possibly explaining the remedy's
textual denomination, at least in the provision's final approved version:
RULE 45
Appeal from Court of Appeals to Supreme Court
SECTION 1. Filing of Petition with Supreme Court. A party may
appeal by certiorari, from a judgment of the Court of Appeals, by filing
with the Supreme Court a petition for certiorari, within fifteen (15)
days from notice of judgment or of the denial of his motion for
reconsideration filed in due time, and paying at the same time, to the
clerk of said court the corresponding docketing fee. The petition shall

not be acted upon without proof of service of a copy thereof to the

Court of Appeals. (Emphasis supplied)

B. Construing the second paragraph

of Section 14, RA 6770.
The Senate deliberations' lack of discussion on the second paragraph
of Section 14, RA 6770 notwithstanding, the other principles of statutory
construction can apply to ascertain the meaning of the provision.
To recount, the second paragraph of Section 14, RA 6770 states
that "[n]o court shall hear any appeal or application for remedy against
the decision or findings of the Ombudsman, except the Supreme Court,
on pure question of law."
As a general rule, the second paragraph of Section 14, RA 6770 bans
the whole range of remedies against issuances of the Ombudsman, by
prohibiting:(a) an appeal against any decision or finding of the
Ombudsman, and (b) "any application of remedy" (subject to the exception
below) against the same. To clarify, the phrase "application for remedy," being
a generally worded provision, and being separated from the term "appeal" by
the disjunctive "or", 133 refers to any remedy (whether taken mainly or
provisionally), except an appeal, following the maxim generalia verba sunt
generaliter intelligenda: general words are to be understood in a general
sense. 134 By the same principle, the word "findings," which is also separated
from the word "decision" by the disjunctive "or", would therefore refer to any
finding made by the Ombudsman (whether final or provisional), except a
decision.
The subject provision, however, crafts an exception to the foregoing
general rule. While the specific procedural vehicle is not explicit from its text, it
is fairly deducible that the second paragraph of Section 14, RA 6770 excepts,
as the only allowable remedy against "the decision or findings of the
Ombudsman," a Rule 45 appeal, for the reason that it is the only remedy
taken to the Supreme Court on "pure questions of law," whether under
the 1964 Rules of Court or the 1997 Rules of Civil Procedure:
SDHTEC

Rule 45, 1964 Rules of Court

RULE 45
Appeal from Court of Appeals to Supreme Court
xxx xxx xxx
Section 2. Contents of Petition. The petition shall contain a
concise statement of the matters involved, the assignment of errors
made in the court below, and the reasons relied on for the allowance of
the petition, and it should be accompanied with a true copy of the
judgment sought to be reviewed, together with twelve (12) copies of the
record on appeal, if any, and of the petitioner's brief as filed in the
Court of Appeals. A verified statement of the date when notice of
judgment and denial of the motion for reconsideration, if any, were
received shall accompany the petition.
Only questions of law may be raised in the petition and must
be distinctly set forth. If no record on appeal has been filed in the Court
of Appeals, the clerk of the Supreme Court, upon admission of the
petition, shall demand from the Court of Appeals the elevation of the
whole record of the case. (Emphasis and underscoring supplied)
Rule 45, 1997 Rules of Civil Procedure
RULE 45
Appeal by Certiorari to the Supreme Court
Section 1. Filing of petition with Supreme Court. A party
desiring to appeal by certiorari from a judgment, final order or
resolution of the Court of Appeals, the Sandiganbayan, the Court of
Tax Appeals, the Regional Trial Court or other courts, whenever
authorized by law, may file with the Supreme Court a verified petition
for review on certiorari. The petition may include an application for a
writ of preliminary injunction or other provisional remedies and shall
raise only questions of law, which must be distinctly set forth. The
petitioner may seek the same provisional remedies by verified motion
filed in the same action or proceeding at any time during its pendency.
(Emphasis and underscoring supplied)

That the remedy excepted in the second paragraph of Section 14, RA

6770 could be a petition for certiorari under Rule 65 of the 1964 Rules of
Court or the 1997 Rules of Procedure is a suggestion that defies traditional

norms of procedure. It is basic procedural law that a Rule 65 petition is based

on errors of jurisdiction, and not errors of judgment to which the classifications
of (a) questions of fact, (b) questions of law, or (c) questions of mixed fact and
law, relate to. In fact, there is no procedural rule, whether in the old or new
Rules, which grounds a Rule 65 petition on pure questions of law. Indeed, it is
also a statutory construction principle that the lawmaking body cannot be said
to have intended the establishment of conflicting and hostile systems on the
same subject. Such a result would render legislation a useless and idle
ceremony, and subject the laws to uncertainty and unintelligibility. 135 There
should then be no confusion that the second paragraph of Section 14, RA
6770 refers to a Rule 45 appeal to this Court, and no other. In sum, the
appropriate construction of this Ombudsman Act provision is that all remedies
against issuances of the Office of the Ombudsman are prohibited, except the
above-stated Rule 45 remedy to the Court on pure questions of law.
C. Validity of the second paragraph
of Section 14, RA 6770.
Of course, the second paragraph of Section 14, RA 6770's extremely
limited restriction on remedies is inappropriate since a Rule 45 appeal
which is within the sphere of the rules of procedure promulgated by this Court
can only be taken against final decisions or orders of lower courts, 136 and
not against "findings" of quasi-judicial agencies. As will be later elaborated
upon, Congress cannot interfere with matters of procedure; hence, it cannot
alter the scope of a Rule 45 appeal so as to apply to interlocutory "findings"
issued by the Ombudsman. More significantly, by confining the remedy to a
Rule 45 appeal, the provision takes away the remedy of certiorari, grounded
on errors of jurisdiction, in denigration of the judicial power constitutionally
vested in courts. In this light, the second paragraph of Section 14, RA
6770 also increased this Court's appellate jurisdiction, without a showing,
however, that it gave its consent to the same. The provision is, in fact, very
similar to the fourth paragraph of Section 27, RA 6770 (as above-cited), which
was invalidated in the case of Fabian v. Desierto 137 (Fabian). 138
In Fabian, the Court struck down the fourth paragraph of Section 27, RA
6770 as unconstitutional since it had the effect of increasing the appellate

jurisdiction of the Court without its advice and concurrence in violation of

Section 30, Article VI of the 1987 Constitution. 139 Moreover, this provision
was found to be inconsistent with Section 1, Rule 45 of the present 1997
Rules of Procedure which, as above-intimated, applies only to a review of
"judgments or final orders of the Court of Appeals, the Sandiganbayan, the
Court of Tax Appeals, the Regional Trial Court, or other courts authorized by
law;" and not of quasi-judicial agencies, such as the Office of the
Ombudsman, the remedy now being a Rule 43 appeal to the Court of
Appeals. In Ruivivar v. Office of the Ombudsman, 140 the Court's
ratiocinations and ruling in Fabian were recounted:
The case of Fabian v. Desierto arose from the doubt created in
the application of Section 27 of R.A. No. 6770 (The Ombudsman's Act)
and Section 7, Rule III of A.O. No. 7 (Rules of Procedure of the Office
of the Ombudsman) on the availability of appeal before the Supreme
Court to assail a decision or order of the Ombudsman in administrative
cases. In Fabian, we invalidated Section 27 of R.A. No. 6770 (and
Section 7, Rule III of A.O. No. 7 and the other rules implementing
the Act) insofar as it provided for appeal by certiorari under Rule
45 from the decisions or orders of the Ombudsman in
administrative cases. We held that Section 27 of R.A. No. 6770
had the effect, not only of increasing the appellate jurisdiction of
this Court without its advice and concurrence in violation of
Section 30, Article VI of the Constitution; it was also inconsistent
with Section 1, Rule 45 of the Rules of Court which provides that
a petition for review on certiorari shall apply only to a review of
"judgments or final orders of the Court of Appeals, the
Sandiganbayan, the Court of Tax Appeals, the Regional Trial
Court, or other courts authorized by law." We pointedly said:
AScHCD

As a consequence of our ratiocination that

Section 27 of Republic Act No. 6770 should be struck
down as unconstitutional, and in line with the regulatory
philosophy adopted in appeals from quasi-judicial
agencies in the 1997 Revised Rules of Civil Procedure,
appeals from decisions of the Office of the Ombudsman
in administrative disciplinary cases should be taken to the

CA under the provisions of Rule 43. 141 (Emphasis

supplied)

Since the second paragraph of Section 14, RA 6770 limits the remedy
against "decision or findings" of the Ombudsman to a Rule 45 appeal and thus
similar to the fourth paragraph of Section 27, RA 6770 142 attempts to
effectively increase the Supreme Court's appellate jurisdiction without its
advice and concurrence,143 it is therefore concluded that the former provision
is also unconstitutional and perforce, invalid. Contrary to the Ombudsman's
posturing, 144 Fabian should squarely apply since the above-stated
Ombudsman Act provisions are in pari materia in that they "cover the same
specific or particular subject matter," 145 that is, the manner of judicial review
over issuances of the Ombudsman.
Note that since the second paragraph of Section 14, RA 6770 is clearly
determinative of the existence of the CA's subject matter jurisdiction over the
main CA-G.R. SP No. 139453 petition, including all subsequent proceedings
relative thereto, as the Ombudsman herself has developed, the Court deems it
proper to resolve this issue ex mero motu (on its own motion 146 ). This
procedure, as was similarly adopted in Fabian, finds its bearings in settled
case law:
The conventional rule, however, is that a challenge on constitutional
grounds must be raised by a party to the case, neither of whom did so
in this case, but that is not an inflexible rule, as we shall explain.
Since the constitution is intended for the observance of the
judiciary and other departments of the government and the judges are
sworn to support its provisions, the courts are not at liberty to overlook
or disregard its commands or countenance evasions thereof. When it is
clear that a statute transgresses the authority vested in a legislative
body, it is the duty of the courts to declare that the constitution, and not
the statute, governs in a case before them for judgment.
Thus, while courts will not ordinarily pass upon constitutional
questions which are not raised in the pleadings, the rule has been
recognized to admit of certain exceptions. It does not preclude a court
from inquiring into its own jurisdiction or compel it to enter a judgment
that it lacks jurisdiction to enter. If a statute on which a court's

jurisdiction in a proceeding depends is unconstitutional, the court has

no jurisdiction in the proceeding, and since it may determine whether or
not it has jurisdiction, it necessarily follows that it may inquire into the
constitutionality of the statute.
Constitutional questions, not raised in the regular and
orderly procedure in the trial are ordinarily rejected unless the
jurisdiction of the court below or that of the appellate court is
involved in which case it may be raised at any time or on the
court's own motion. The Court ex mero motu may take cognizance of
lack of jurisdiction at any point in the case where that fact is developed.
The court has a clearly recognized right to determine its own
jurisdiction in any proceeding. 147 (Emphasis supplied)

D. Consequence of invalidity.
In this case, the Rule 65 petition for certiorari in CA-G.R. SP No.
139453 was filed by Binay, Jr. before the CA in order to nullify the preventive
suspension order issued by the Ombudsman, an interlocutory
order, 148 hence, unappealable. 149
In several cases decided after Fabian, the Court has ruled that Rule 65
petitions for certiorari against unappealable issuances 150 of the Ombudsman
should be filed before the CA, and not directly before this Court:
In Office of the Ombudsman v. Capulong 151 (March 12, 2014), wherein
a preventive suspension order issued by the Office of the Ombudsman was
similar to this case assailed through a Rule 65 petition for certiorari filed by
the public officer before the CA, the Court held that "[t]here being a finding of
grave abuse of discretion on the part of the Ombudsman, it was certainly
imperative for the CA to grant incidental reliefs, as sanctioned by Section 1 of
Rule 65." 152
In Dagan v. Office of the Ombudsman 153 (November 19, 2013),
involving a Rule 65 petition for certiorari assailing a final and unappealable
order of the Office of the Ombudsman in an administrative case, the Court
remarked that "petitioner employed the correct mode of review in this
case, i.e., a special civil action forcertiorari before the Court of Appeals." 154 In
this relation, it stated that while "a special civil action for Certiorari is within the

concurrent original jurisdiction of the Supreme Court and the Court of

Appeals, such petition should be initially filed with the Court of Appeals in
observance of the doctrine of hierarchy of courts." Further, the Court
upheld Barata v. Abalos, Jr. 155 (June 6, 2001), wherein it was ruled that the
remedy against final and unappealable orders of the Office of the
Ombudsman in an administrative case was a Rule 65 petition to the CA. The
same verdict was reached in Ruivivar 156 (September 16, 2008).
AcICHD

Thus, with the unconstitutionality of the second paragraph of Section

14, RA 6770, the Court, consistent with existing jurisprudence, concludes that
the CA has subject matter jurisdiction over the main CA-G.R. SP No. 139453
petition. That being said, the Court now examines the objections of the
Ombudsman, this time against the CA's authority to issue the assailed TRO
and WPI against the implementation of the preventive suspension order,
incidental to that main case.
III.
From the inception of these proceedings, the Ombudsman has been
adamant that the CA has no jurisdiction to issue any provisional injunctive writ
against her office to enjoin its preventive suspension orders. As basis, she
invokes the first paragraph of Section 14, RA 6770 in conjunction with her
office's independence under the 1987 Constitution. She advances the idea
that "[i]n order to further ensure [her office's] independence, [RA 6770]
likewise insulated it from judicial intervention," 157 particularly, "from injunctive
reliefs traditionally obtainable from the courts," 158 claiming that said writs may
work "just as effectively as direct harassment or political pressure would." 159
A. The concept of Ombudsman independence.
Section 5, Article XI of the 1987 Constitution guarantees
independence of the Office of the Ombudsman:
Section 5. There is hereby created the independent Office of
the Ombudsman, composed of the Ombudsman to be known as
Tanodbayan, one overall Deputy and at least one Deputy each for
Luzon, Visayas[,] and Mindanao. A separate Deputy for the military
establishment may likewise be appointed. (Emphasis supplied)

the

In Gonzales III v. Office of the President 160 (Gonzales III), the Court
traced the historical underpinnings of the Office of the Ombudsman:
Prior to the 1973 Constitution, past presidents established
several Ombudsman-like agencies to serve as the people's medium for
airing grievances and for direct redress against abuses and misconduct
in the government. Ultimately, however, these agencies failed to fully
realize their objective for lack of the political independence necessary
for the effective performance of their function as government critic.
It was under the 1973 Constitution that the Office of the
Ombudsman became a constitutionally-mandated office to give it
political independence and adequate powers to enforce its mandate.
Pursuant to the 1973 Constitution, President Ferdinand Marcos
enacted Presidential Decree (PD) No. 1487, as amended by PD No.
1607 and PD No. 1630, creating the Office of the Ombudsman to be
known as Tanodbayan. It was tasked principally to investigate, on
complaint or motu proprio, any administrative act of any administrative
agency, including any government-owned or controlled corporation.
When the Office of the Tanodbayan was reorganized in 1979, the
powers previously vested in the Special Prosecutor were transferred to
the Tanodbayan himself. He was given the exclusive authority to
conduct preliminary investigation of all cases cognizable by the
Sandiganbayan, file the corresponding information, and control the
prosecution of these cases.
With the advent of the 1987 Constitution, a new Office of the
Ombudsman was created by constitutional fiat. Unlike in the 1973
Constitution, its independence was expressly and constitutionally
guaranteed. Its objectives are to enforce the state policy in Section 27,
Article II and the standard of accountability in public service under
Section 1, Article XI of the 1987 Constitution. These provisions read:
Section 27. The State shall maintain honesty and
integrity in the public service and take positive and
effective measures against graft and corruption.
Section 1. Public office is a public trust. Public
officers and employees must, at all times, be accountable
to the people, serve them with utmost responsibility,

integrity, loyalty, and efficiency; act with patriotism and

justice, and lead modest lives. 161 (Emphasis supplied)

More significantly, Gonzales III explained the broad scope of the office's
mandate, and in correlation, the impetus behind its independence:
Under Section 12, Article XI of the 1987 Constitution, the Office
of the Ombudsman is envisioned to be the "protector of the people"
against the inept, abusive, and corrupt in the Government, to function
essentially as a complaints and action bureau. This constitutional
vision of a Philippine Ombudsman practically intends to make the
Ombudsman an authority to directly check and guard against the ills,
abuses and excesses of the bureaucracy. Pursuant to Section 13 (8),
Article XI of the 1987 Constitution, Congress enacted RA No. 6770 to
enable it to further realize the vision of the Constitution. Section 21 of
RA No. 6770 provides:
Section 21. Official Subject to Disciplinary
Authority; Exceptions. The Office of the Ombudsman
shall have disciplinary authority over all elective and
appointive officials of the Government and its
subdivisions, instrumentalities, and agencies, including
Members of the Cabinet, local government, governmentowned or controlled corporations and their subsidiaries,
except over officials who may be removed only by
impeachment or over Members of Congress, and the
Judiciary.
As the Ombudsman is expected to be an "activist watchman,"
the Court has upheld its actions, although not squarely falling under
the broad powers granted [to] it by the Constitution and by RA No.
6770, if these actions are reasonably in line with its official function and
consistent with the law and the Constitution.
TAIaHE

The Ombudsman's broad investigative and disciplinary powers

include all acts of malfeasance, misfeasance, and nonfeasance of all
public officials, including Members of the Cabinet and key Executive
officers, during their tenure. To support these broad powers, the
Constitution saw it fit to insulate the Office of the Ombudsman
from the pressures and influence of officialdom and partisan

politics and from fear of external reprisal by making it an

"independent" office. . . . .
xxx xxx xxx
Given the scope of its disciplinary authority, the Office of the
Ombudsman is a very powerful government constitutional agency that
is considered "a notch above other grievance-handling investigative
bodies." It has powers, both constitutional and statutory, that are
commensurate with its daunting task of enforcing accountability of
public officers. 162 (Emphasis and underscoring supplied)

Gonzales III is the first case which grappled with the meaning of the
Ombudsman's independence vis--vis the independence of the other
constitutional bodies. Pertinently, the Court observed:
(1) "[T]he independence enjoyed by the Office of the Ombudsman and
by the Constitutional Commissions shares certain characteristics they do
not owe their existence to any act of Congress, but are created by the
Constitution itself; additionally, they all enjoy fiscal autonomy. In general
terms, the framers of the Constitution intended that these 'independent'
bodies be insulated from political pressure to the extent that the absence
of 'independence' would result in the impairment of their core
functions"; 163
(2) "[T]he Judiciary, the Constitutional Commissions, and the
Ombudsman must have the independence and flexibility needed in the
discharge of their constitutional duties. The imposition of restrictions and
constraints on the manner the independent constitutional offices allocate
and utilize the funds appropriated for their operations is anathema
to fiscal autonomy and violative not only [of] the express mandate of the
Constitution, but especially as regards the Supreme Court, of the
independence and separation of powers upon which the entire fabric of our
constitutional system is based"; 164 and
(3) "[T]he constitutional deliberations explain the Constitutional
Commissions' need for independence. In the deliberations of the 1973
Constitution, the delegates amended the 1935 Constitution by providing for a
constitutionally-created Civil Service Commission, instead of one created by

law, on the premise that the effectivity of this body is dependent on its
freedom from the tentacles of politics. In a similar manner, the
deliberations of the 1987 Constitution on the Commission on Audit highlighted
the developments in the past Constitutions geared towards insulating the
Commission on Audit from political pressure." 165
At bottom, the decisive ruling in Gonzales III, however, was that the
independence of the Office of the Ombudsman, as well as that of the
foregoing independent bodies, meant freedom from control or supervision
of the Executive Department:
[T]he independent constitutional commissions have been consistently
intended by the framers to be independent from executive control or
supervision or any form of political influence. At least insofar as
these bodies are concerned, jurisprudence is not scarce on how the
"independence" granted to these bodies prevents presidential
interference.
In Brillantes, Jr. v. Yorac (G.R. No. 93867, December 18, 1990,
192 SCRA 358), we emphasized that the Constitutional Commissions,
which have been characterized under the Constitution as
"independent," are not under the control of the President, even if
they discharge functions that are executive in nature. The Court
declared as unconstitutional the President's act of temporarily
appointing the respondent in that case as Acting Chairman of the
[Commission on Elections] "however well-meaning" it might have been.
In Bautista v. Senator Salonga (254 Phil. 156, 179 [1989]), the
Court categorically stated that the tenure of the commissioners of the
independent Commission on Human Rights could not be placed
under the discretionary power of the President.
xxx xxx xxx
The kind of independence enjoyed by the Office of the
Ombudsman certainly cannot be inferior but is similar in degree and
kind to the independence similarly guaranteed by the Constitution to
the Constitutional Commissions since all these offices fill the political
interstices of a republican democracy that are crucial to its existence
and proper functioning. 166 (Emphases and underscoring supplied)

Thus, in Gonzales III, the Court declared Section 8 (2), RA 6770, which
provides that "[a] Deputy or the Special Prosecutor, may be removed from
office by the President for any of the grounds provided for the removal of the
Ombudsman, and after due process," partially unconstitutional insofar as it
subjected the Deputy Ombudsman to the disciplinary authority of the
President for violating the principle of independence. Meanwhile, the validity
of Section 8 (2), RA 6770 was maintained insofar as the Office of the Special
Prosecutor was concerned since said office was not considered to be
constitutionally within the Office of the Ombudsman and is, hence, not entitled
to the independence the latter enjoys under the Constitution. 167
As may be deduced from the various discourses in Gonzales III, the
concept of Ombudsman's independence covers three (3) things:
cDHAES

First: creation by the Constitution, which means that the office

cannot be abolished, nor its constitutionally specified functions and privileges,
be removed, altered, or modified by law, unless the Constitution itself allows,
or an amendment thereto is made;
Second: fiscal autonomy, which means that the office "may not be
obstructed from [its] freedom to use or dispose of [its] funds for purposes
germane to [its] functions; 168 hence, its budget cannot be strategically
decreased by officials of the political branches of government so as to impair
said functions; and
Third: insulation from executive supervision and control, which
means that those within the ranks of the office can only be disciplined by an
internal authority.
Evidently, all three aspects of independence intend to protect the Office
of the Ombudsman from political harassment and pressure, so as to free it
from the "insidious tentacles of politics." 169
That being the case, the concept of Ombudsman independence cannot
be invoked as basis to insulate the Ombudsman from judicial power
constitutionally vested unto the courts. Courts are apolitical bodies, which are
ordained to act as impartial tribunals and apply even justice to all. Hence, the
Ombudsman's notion that it can be exempt from an incident of judicial power

 that is, a provisional writ of injunction against a preventive suspension

order clearly strays from the concept's rationale of insulating the office from
political harassment or pressure.
B. The first paragraph of Section 14,
RA 6770 in light of the powers of
Congress and the Court under the
1987 Constitution.
The Ombudsman's erroneous abstraction of her office's independence
notwithstanding, it remains that the first paragraph of Section 14, RA
6770 textually prohibits courts from extending provisional injunctive relief to
delay any investigation conducted by her office. Despite the usage of the
general phrase "[n]o writ of injunction shall be issued by any court," the
Ombudsman herself concedes that the prohibition does not cover the
Supreme Court. 170 As support, she cites the following Senate deliberations:
Senator [Ernesto M.] Maceda.
Mr. President, I do not know if an amendment is necessary. I would
just like to inquire for the record whether below the Supreme
Court, it is understood that there is no injunction policy
against the Ombudsman by lower courts. Or, is it necessary
to have a special paragraph for that?
Senator Angara.
Well, there is no provision here, Mr. President, that will prevent an
injunction against the Ombudsman being issued.
Senator Maceda.
In which case, I think that the intention, this being one of the
highest constitutional bodies, is to subject this only to
certiorari to the Supreme Court. I think an injunction from the
Supreme Court is, of course, in order but no lower courts
should be allowed to interfere. We had a very bad experience
with even, let us say, the Forestry Code where no injunction is
supposed to be issued against the Department of Natural
Resources. Injunctions are issued right and left by RTC
judges all over the country.

The President.
Why do we not make an express provision to that effect?
Senator Angara.
We would welcome that, Mr. President.
The President.
No [writs of injunction] from the trial courts other than the
Supreme Court.
Senator Maceda.
I so move, Mr. President, for that amendment.
The President.
Is

there any objection? [Silence] Hearing

approved. 171

none, the

same

is

Further, she acknowledges that by virtue of Sections 1 and 5 (1), Article

VIII of the 1987 Constitution, acts of the Ombudsman, including interlocutory
orders, are subject to the Supreme Court's power of judicial review. As a
corollary, the Supreme Court may issue ancillary injunctive writs or provisional
remedies in the exercise of its power of judicial review over matters pertaining
to ongoing investigations by the Office of the Ombudsman. Respecting the
CA, however, the Ombudsman begs to differ. 172
With these submissions, it is therefore apt to examine the validity of the
first paragraph of Section 14, RA 6770 insofar as it prohibits all courts, except
this Court, from issuing provisional writs of injunction to enjoin an
Ombudsman investigation. That the constitutionality of this provision is the lis
mota of this case has not been seriously disputed. In fact, the issue anent its
constitutionality was properly raised and presented during the course of these
proceedings. 173 More importantly, its resolution is clearly necessary to the
complete disposition of this case. 174
In the enduring words of Justice Laurel in Angara v. The Electoral
Commission (Angara), 175 the "Constitution has blocked out with deft strokes
and in bold lines, allotment of power to the executive, the legislative[,] and the
judicial departments of the government." 176 The constitutional demarcation of

the three fundamental powers of government is more commonly known as the

principle of separation of powers. In the landmark case of Belgica v. Ochoa,
Jr. (Belgica), 177 the Court held that "there is a violation of the separation of
powers principle when one branch of government unduly encroaches on the
domain of another." 178 In particular, "there is a violation of the principle when
there is impermissible (a) interference with and/or (b) assumption of another
department's functions." 179
Under Section 1, Article VIII of the 1987 Constitution, judicial power is
allocated to the Supreme Court and all such lower courts:
Section 1. The judicial power shall be vested in one Supreme
Court and in such lower courts as may be established by law.
Judicial power includes the duty of the courts of justice to settle
actual controversies involving rights which are legally demandable and
enforceable, and to determine whether or not there has been a grave
abuse of discretion amounting to lack or excess of jurisdiction on the
part of any branch or instrumentality of the Government.

This Court is the only court established by the Constitution, while all
other lower courts may be established by laws passed by Congress.
Thus, through the passage of Batas Pambansa Bilang (BP) 129, 180 known as
"The Judiciary Reorganization Act of 1980," the Court of Appeals, 181 the
Regional Trial Courts, 182 and the Metropolitan Trial Courts, Municipal Trial
Courts, and Municipal Circuit Trial Courts 183 were established. Later, through
the passage of RA 1125, 184 and Presidential Decree No. (PD) 1486, 185 the
Court of Tax Appeals, and the Sandiganbayan were respectively established.
In addition to the authority to establish lower courts, Section 2,
Article VIII of the 1987 Constitution empowers Congress to define,
prescribe, and apportion the jurisdiction of all courts, except that it may
not deprive the Supreme Court of its jurisdiction over cases enumerated
in Section 5 186 of the same Article:
Section 2. The Congress shall have the power to define,
prescribe, and apportion the jurisdiction of the various courts but may
not deprive the Supreme Court of its jurisdiction over cases
enumerated in Section 5 hereof.

xxx xxx xxx

Jurisdiction, as hereinabove used, more accurately pertains to

jurisdiction over the subject matter of an action. In The Diocese of Bacolod v.
Commission on Elections, 187 subject matter jurisdiction was defined as "the
authority 'to hear and determine cases of the general class to which the
proceedings in question belong and is conferred by the sovereign
authority which organizes the court and defines its powers.'"
Among others, Congress defined, prescribed, and apportioned the
subject matter jurisdiction of this Court (subject to the aforementioned
constitutional limitations), the Court of Appeals, and the trial courts, through
the passage of BP 129, as amended.
In this case, the basis for the CA's subject matter jurisdiction over
Binay, Jr.'s main petition for certiorari in CA-G.R. SP No. 139453 is Section 9
(1), Chapter I of BP 129, as amended:
cTDaEH

Section 9. Jurisdiction. The Court of Appeals shall exercise:

1. Original
jurisdiction
to
issue
writs
of mandamus,
prohibition, certiorari, habeas corpus, and quo warranto,
and auxiliary writs or processes, whether or not in aid of its
appellate jurisdiction[.]

Note that the CA's certiorari jurisdiction, as above-stated, is not

only original but also concurrent with the Regional Trial Courts (under
Section 21 (1), Chapter II of BP 129), and the Supreme Court (under Section
5, Article VIII of the 1987 Philippine Constitution). In view of the concurrence
of these courts' jurisdiction over petitions for certiorari, the doctrine of
hierarchy of courts should be followed. In People v. Cuaresma, 188 the
doctrine was explained as follows:
[T]his concurrence of jurisdiction is not . . . to be taken as according
to parties seeking any of the writs an absolute, unrestrained freedom of
choice of the court to which application therefor will be directed. There
is after all a hierarchy of courts. That hierarchy is determinative of the
venue of appeals, and should also serve as a general determinant of
the appropriate forum for petitions for the extraordinary writs. A
becoming regard for that judicial hierarchy most certainly indicates that

petitions for the issuance of extraordinary writs against first level

("inferior") courts should be filed with the Regional Trial Court, and
those against the latter, with the Court of Appeals. 189

When a court has subject matter jurisdiction over a particular case,

as conferred unto it by law, said court may then exercise its
jurisdiction acquired over that case, which is called judicial power.
Judicial power, as vested in the Supreme Court and all other courts
established by law, has been defined as the "totality of powers a court
exercises when it assumes jurisdiction and hears and decides a
case." 190 Under Section 1, Article VIII of the 1987 Constitution, it includes
"the duty of the courts of justice to settle actual controversies involving
rights which are legally demandable and enforceable, and to determine
whether or not there has been a grave abuse of discretion amounting to
lack or excess of jurisdiction on the part of any branch or
instrumentality of the Government."
In Oposa v. Factoran, Jr. 191 the Court explained the expanded scope of
judicial power under the 1987 Constitution:
The first part of the authority represents the traditional concept
of judicial power, involving the settlement of conflicting rights as
conferred by law. The second part of the authority represents a
broadening of judicial power to enable the courts of justice to review
what was before forbidden territory, to wit, the discretion of the political
departments of the government.
As worded, the new provision vests in the judiciary, and
particularly the Supreme Court, the power to rule upon even the
wisdom of the decisions of the executive and the legislature and to
declare their acts invalid for lack or excess of jurisdiction because they
are tainted with grave abuse of discretion. The catch, of course, is the
meaning of "grave abuse of discretion," which is a very elastic phrase
that can expand or contract according to the disposition of the
judiciary. 192

Judicial power is never exercised in a vacuum. A court's exercise of

the jurisdiction it has acquired over a particular case conforms to the
limits and parameters of the rules of procedure duly promulgated by this

Court. In other words, procedure is the framework within which judicial power
is exercised. InManila Railroad Co. v. Attorney-General, 193 the Court
elucidated that "[t]he power or authority of the court over the subject matter
existed and was fixed before procedure in a given cause began. Procedure
does not alter or change that power or authority; it simply directs the
manner in which it shall be fully and justly exercised. To be sure, in
certain cases, if that power is not exercised in conformity with the provisions of
the procedural law, purely, the court attempting to exercise it loses the power
to exercise it legally. This does not mean that it loses jurisdiction of the subject
matter." 194
While the power to define, prescribe, and apportion the jurisdiction of
the various courts is, by constitutional design, vested unto Congress, the
power to promulgate rules concerning the protection and enforcement
of constitutional rights, pleading, practice, and procedure in all
courts belongs exclusively to this Court. Section 5 (5), Article VIII of
the 1987 Constitution reads:
Section 5. The Supreme Court shall have the following
powers:
xxx xxx xxx
(5) Promulgate rules concerning the protection and
enforcement of constitutional rights, pleading,
practice, and procedure in all courts, the admission to
the practice of law, the Integrated Bar, and legal assistance
to the underprivileged. Such rules shall provide a simplified
and inexpensive procedure for the speedy disposition of
cases, shall be uniform for all courts of the same grade,
and shall not diminish, increase, or modify substantive
rights. Rules of procedure of special courts and quasijudicial bodies shall remain effective unless disapproved by
the Supreme Court. (Emphases and underscoring
supplied)

In Echegaray v. Secretary of Justice 195 (Echegaray), the Court traced

the evolution of its rule-making authority, which, under the 1935 196 and
1973 Constitutions, 197 had been priorly subjected to a power-sharing scheme

with Congress. 198 As it now stands, the 1987 Constitution textually altered
the old provisions by deleting the concurrent power of Congress to
amend the rules, thus solidifying in one body the Court's rule-making
powers, in line with the Framers' vision of institutionalizing a "[s]tronger and
more independent judiciary." 199
cSaATC

The records of the deliberations of the Constitutional Commission would

show 200 that the Framers debated on whether or not the Court's rule-making
powers should be shared with Congress. There was an initial suggestion to
insert the sentence "The National Assembly may repeal, alter, or supplement
the said rules with the advice and concurrence of the Supreme Court", right
after the phrase "Promulgate rules concerning the protection and enforcement
of constitutional rights, pleading, practice, and procedure in all courts, the
admission to the practice of law, the integrated bar, and legal assistance to the
underprivileged[,]" in the enumeration of powers of the Supreme Court. Later,
Commissioner Felicitas S. Aquino proposed to delete the former sentence
and, instead, after the word "[under]privileged," place a comma (,) to be
followed by "the phrase with the concurrence of the National Assembly."
Eventually, a compromise formulation was reached wherein (a) the Committee
members agreed to Commissioner Aquino's proposal to delete the phrase
"the National Assembly may repeal, alter, or supplement the said rules with
the advice and concurrence of the Supreme Court" and (b) in turn,
Commissioner Aquino agreed to withdraw his proposal to add "the phrase
with the concurrence of the National Assembly." The changes were
approved, thereby leading to the present lack of textual reference to any
form of Congressional participation in Section 5 (5), Article
VIII, supra. The prevailing consideration was that "both bodies, the
Supreme Court and the Legislature, have their inherent powers." 201
Thus, as it now stands, Congress has no authority to repeal, alter, or
supplement rules concerning pleading, practice, and procedure. As
pronounced inEchegaray:
The rule making power of this Court was expanded. This Court for the
first time was given the power to promulgate rules concerning the
protection and enforcement of constitutional rights. The Court was also

granted for the first time the power to disapprove rules of procedure of
special courts and quasi-judicial bodies. But most importantly,
the 1987 Constitution took away the power of Congress to repeal,
alter, or supplement rules concerning pleading, practice and
procedure. In fine, the power to promulgate rules of pleading,
practice and procedure is no longer shared by this Court with
Congress, more so with the Executive. 202(Emphasis and
underscoring supplied)

Under its rule-making authority, the Court has periodically passed

various rules of procedure, among others, the current 1997 Rules of Civil
Procedure.Identifying the appropriate procedural remedies needed for
the reasonable exercise of every court's judicial power, the provisional
remedies of temporary restraining orders and writs of preliminary
injunction were thus provided.
CHTAIc

A temporary restraining order and a writ of preliminary injunction both

constitute temporary measures availed of during the pendency of the action.
They are, by nature, ancillary because they are mere incidents in and are
dependent upon the result of the main action. It is well-settled that the sole
object of a temporary restraining order or a writ of preliminary
injunction, whether prohibitory or mandatory, is to preserve the status
quo 203 until the merits of the case can be heard. They are usually granted
when it is made to appear that there is a substantial controversy between the
parties and one of them is committing an act or threatening the immediate
commission of an act that will cause irreparable injury or destroy the status
quo of the controversy before a full hearing can be had on the merits of the
case. In other words, they are preservative remedies for the protection of
substantive rights or interests, and, hence, not a cause of action in itself, but
merely adjunct to a main suit. 204 In a sense, they are regulatory processes
meant to prevent a case from being mooted by the interim acts of the parties.
Rule 58 of the 1997 Rules of Civil Procedure generally governs the
provisional remedies of a TRO and a WPI. A preliminary injunction is defined
under Section 1,205 Rule 58, while Section 3 206 of the same Rule enumerates
the grounds for its issuance. Meanwhile, under Section 5 207 thereof, a TRO

may be issued as a precursor to the issuance of a writ of preliminary

injunction under certain procedural parameters.
The power of a court to issue these provisional injunctive reliefs
coincides with its inherent power to issue all auxiliary writs, processes,
and other means necessary to carry its acquired jurisdiction into effect
under Section 6, Rule 135 of the Rules of Court which reads:
Section 6. Means to carry jurisdiction into effect. When by law
jurisdiction is conferred on a court or judicial officer, all auxiliary writs,
processes and other means necessary to carry it into effect may be
employed by such court or officer; and if the procedure to be followed
in the exercise of such jurisdiction is not specifically pointed out by
law 208 or by these rules, any suitable process or mode of proceeding
may be adopted which appears comfortable to the spirit of the said law
or rules.

In City of Manila v. Grecia-Cuerdo, 209 which is a case involving "[t]he

supervisory power or jurisdiction of the [Court of Tax Appeals] to issue a writ
ofcertiorari in aid of its appellate jurisdiction" 210 over "decisions, orders or
resolutions of the RTCs in local tax cases originally decided or resolved by
them in the exercise of their original or appellate jurisdiction," 211 the Court
ruled that said power "should coexist with, and be a complement to, its
appellate jurisdiction to review, by appeal, the final orders and decisions of the
RTC, in order to have complete supervision over the acts of the latter:" 212
A grant of appellate jurisdiction implies that there is included in it
the power necessary to exercise it effectively, to make all orders
that will preserve the subject of the action, and to give effect to
the final determination of the appeal. It carries with it the power to
protect that jurisdiction and to make the decisions of the court
thereunder effective. The court, in aid of its appellate jurisdiction, has
authority to control all auxiliary and incidental matters necessary to the
efficient and proper exercise of that jurisdiction. For this purpose, it
may, when necessary, prohibit or restrain the performance of any act
which might interfere with the proper exercise of its rightful jurisdiction
in cases pending before it. 213 (Emphasis supplied)

In this light, the Court expounded on the inherent powers of a court

endowed with subject matter jurisdiction:
[A] court which is endowed with a particular jurisdiction should have
powers which are necessary to enable it to act effectively within such
jurisdiction. These should be regarded as powers which are
inherent in its jurisdiction and the court must possess them in
order to enforce its rules of practice and to suppress any abuses
of its process and to defeat any attempted thwarting of such
process.
xxx xxx xxx
Indeed, courts possess certain inherent powers which may be
said to be implied from a general grant of jurisdiction, in addition to
those expressly conferred on them. These inherent powers are such
powers as are necessary for the ordinary and efficient exercise of
jurisdiction; or are essential to the existence, dignity and
functions of the courts, as well as to the due administration of
justice; or are directly appropriate, convenient and suitable to the
execution of their granted powers; and include the power to
maintain the court's jurisdiction and render it effective in behalf of
the litigants. 214(Emphases and underscoring supplied)

Broadly speaking, the inherent powers of the courts resonates the longentrenched constitutional principle, articulated way back in the 1936 case
of Angara,that "where a general power is conferred or duty enjoined, every
particular power necessary for the exercise of the one or the performance of
the other is also conferred." 215
In the United States, the "inherent powers doctrine refers to the
principle by which the courts deal with diverse matters over which they are
thought to have intrinsic authority like procedural [rule-making] and general
judicial housekeeping. To justify the invocation or exercise of inherent powers,
a court must show thatthe powers are reasonably necessary to achieve
the specific purpose for which the exercise is sought. Inherent powers
enable the judiciary to accomplish its constitutionally mandated
functions." 216

In Smothers v. Lewis 217 (Smothers), a case involving the

constitutionality of a statute which prohibited courts from enjoining the
enforcement of a revocation order of an alcohol beverage license pending
appeal, 218 the Supreme Court of Kentucky held:
EATCcI

[T]he Court is . . . vested with certain "inherent" powers to do that

which is reasonably necessary for the administration of justice
within the scope of their jurisdiction. . . . [W]e said while
considering the rule making power and the judicial power to be one
and the same that ". . . the grant of judicial power [rule making
power] to the courts by the constitution carries with it, as a
necessary incident, the right to make that power effective in the
administration of justice." (Emphases supplied)

Significantly, Smothers characterized a court's issuance of provisional

injunctive relief as an exercise of the court's inherent power, and to this end,
stated that any attempt on the part of Congress to interfere with the same was
constitutionally impermissible:
It is a result of this foregoing line of thinking that we now adopt
the language framework of 28 Am.Jur.2d, Injunctions, Section 15, and
once and for all make clear that a court, once having obtained
jurisdiction of a cause of action, has, as an incidental to its
constitutional grant of power, inherent power to do all things reasonably
necessary to the administration of justice in the case before it. In the
exercise of this power, a court, when necessary in order to protect
or preserve the subject matter of the litigation, to protect its
jurisdiction and to make its judgment effective, may grant or issue
a temporary injunction in aid of or ancillary to the principal action.
The control over this inherent judicial power, in this
particular instance the injunction, is exclusively within the
constitutional realm of the courts. As such, it is not within the
purview of the legislature to grant or deny the power nor is it
within the purview of the legislature to shape or fashion
circumstances under which this inherently judicial power may be
or may not be granted or denied.
This Court has historically recognized constitutional limitations
upon the power of the legislature to interfere with or to inhibit the

performance of constitutionally granted and inherently provided judicial

functions. . . .
xxx xxx xxx
We reiterate our previously adopted language, ". . . a court, once
having obtained jurisdiction of a cause of action, has, as incidental to
its general jurisdiction, inherent power to do all things reasonably
necessary to the administration of justice in the case before it . . ." This
includes the inherent power to issue injunctions. (Emphases
supplied)

Smothers also pointed out that the legislature's authority to provide a

right to appeal in the statute does not necessarily mean that it could control
the appellate judicial proceeding:
However, the fact that the legislature statutorily provided for this appeal
does not give it the right to encroach upon the constitutionally granted
powers of the judiciary. Once the administrative action has ended
and the right to appeal arises the legislature is void of any right to
control a subsequent appellate judicial proceeding. The judicial
rules have come into play and have preempted the
field. 219 (Emphasis supplied)

With these considerations in mind, the Court rules that when Congress
passed the first paragraph of Section 14, RA 6770 and, in so doing, took away
from the courts their power to issue a TRO and/or WPI to enjoin an
investigation conducted by the Ombudsman, it encroached upon this Court's
constitutional rule-making authority. Clearly, these issuances, which are, by
nature, provisional reliefs and auxiliary writs created under the provisions of
the Rules of Court, are matters of procedure which belong exclusively within
the province of this Court. Rule 58 of the Rules of Court did not create, define,
and regulate a right but merely prescribed the means of implementing an
existing right 220 since it only provided for temporary reliefs to preserve the
applicant's right in esse which is threatened to be violated during the course of
a pending litigation. In the case of Fabian, 221 it was stated that:
If the rule takes away a vested right, it is not procedural. If the rule
creates a right such as the right to appeal, it may be classified as a

substantive matter; but if it operates as a means of implementing an

existing right then the rule deals merely with procedure.

Notably, there have been similar attempts on the part of Congress, in

the exercise of its legislative power, to amend the Rules of Court, as in the
cases of: (a) In Re: Exemption of The National Power Corporation from
Payment of Filing/Docket Fees; 222 (b) Re: Petition for Recognition of the
Exemption of the Government Service Insurance System (GSIS) from
Payment of Legal Fees; 223 and (c) Baguio Market Vendors Multi-Purpose
Cooperative (BAMARVEMPCO) v. Cabato-Cortes. 224While these cases
involved legislative enactments exempting government owned and controlled
corporations and cooperatives from paying filing fees, thus, effectively
modifying Rule 141 of the Rules of Court (Rule on Legal Fees), it was,
nonetheless, ruled that the prerogative to amend, repeal or even establish
new rules of procedure 225 solely belongs to the Court, to the exclusion
of the legislative and executive branches of government. On this score,
the Court described its authority to promulgate rules on pleading, practice,
and procedure as exclusive and "[o]ne of the safeguards of [its]
institutional independence." 226
That Congress has been vested with the authority to define, prescribe,
and apportion the jurisdiction of the various courts under Section 2, Article
VIII supra, as well as to create statutory courts under Section 1, Article
VIII supra, does not result in an abnegation of the Court's own power to
promulgate rules of pleading, practice, and procedure under Section 5 (5),
Article VIII supra. Albeit operatively interrelated, these powers are nonetheless
institutionally separate and distinct, each to be preserved under its own
sphere of authority. When Congress creates a court and delimits its
jurisdiction, the procedure for which its jurisdiction is exercised is fixed
by the Court through the rules it promulgates. The first paragraph of
Section 14, RA 6770 is not a jurisdiction-vesting provision, as the
Ombudsman misconceives, 227 because it does not define, prescribe, and
apportion the subject matter jurisdiction of courts to act on certiorari cases;
the certiorarijurisdiction of courts, particularly the CA, stands under the
relevant sections of BP 129 which were not shown to have been repealed.
Instead, through this provision,Congress interfered with a provisional

remedy that was created by this Court under its duly promulgated rules
of procedure, which utility is both integral and inherent to every court's
exercise of judicial power. Without the Court's consent to the
proscription, as may be manifested by an adoption of the same as part
of the rules of procedure through an administrative circular issued
therefor, there thus, stands to be a violation of the separation of powers
principle.
DHITCc

In addition, it should be pointed out that the breach of Congress in

prohibiting provisional injunctions, such as in the first paragraph of Section
14, RA 6770, does not only undermine the constitutional allocation of
powers; it also practically dilutes a court's ability to carry out its
functions. This is so since a particular case can easily be mooted by
supervening events if no provisional injunctive relief is extended while
the court is hearing the same. Accordingly, the court's acquired jurisdiction,
through which it exercises its judicial power, is rendered nugatory. Indeed, the
force of judicial power, especially under the present Constitution, cannot be
enervated due to a court's inability to regulate what occurs during a
proceeding's course. As earlier intimated, when jurisdiction over the subject
matter is accorded by law and has been acquired by a court, its exercise
thereof should be unclipped. To give true meaning to the judicial power
contemplated by the Framers of our Constitution, the Court's duly promulgated
rules of procedure should therefore remain unabridged, this, even by statute.
Truth be told, the policy against provisional injunctive writs in whatever variant
should only subsist under rules of procedure duly promulgated by the Court
given its sole prerogative over the same.
The following exchange between Associate Justice Marvic Mario Victor
F. Leonen (Justice Leonen) and the Acting Solicitor General Florin T. Hilbay
(Acting Solicitor General Hilbay) mirrors the foregoing observations:
JUSTICE LEONEN:
Okay. Now, would you know what rule covers injunction in the Rules of
Court?
ACTING SOLICITOR GENERAL HILBAY:
Rule 58, Your Honor.

JUSTICE LEONEN:
58, that is under the general rubric if Justice Bersamin will correct me if I
will be mistaken under the rubric of what is called provisional
remedies, our resident expert because Justice Peralta is not here
so Justice Bersamin for a while. So provisional remedy you have
injunction. . . . .
xxx xxx xxx
JUSTICE LEONEN:
Okay, Now, we go to the Constitution. Section
Article VIII of the Constitution, if you
Constitution, can you please read that
Article VIII the Judiciary subparagraph 5,
that provision?

5, subparagraph 5 of
have a copy of the
provision? Section 5,
would you kindly read

ACTING SOLICITOR GENERAL HILBAY:

"Promulgate rules concerning the protection and enforcement of
constitutional rights, pleading, practice and procedure in all courts
. . ."
JUSTICE LEONEN:
Okay, we can stop with that, promulgate rules concerning pleading,
practice and procedure in all courts. This is the power, the
competence, the jurisdiction of what constitutional organ?
ACTING SOLICITOR GENERAL HILBAY:
The Supreme Court, Your Honor.
JUSTICE LEONEN:
The Supreme Court. This is different from Article VIII Sections 1 and 2
which we've already been discussed with you by my other
colleagues, is that not correct?
ACTING SOLICITOR GENERAL HILBAY:
Correct, Your Honor.
JUSTICE LEONEN:
Okay, so in Section 2, [apportion] jurisdiction that is the power of
Congress, is that not correct?

ACTING SOLICITOR GENERAL HILBAY:

Correct, Your Honor.
JUSTICE LEONEN:
On the other hand, the power to promulgate rules is with the Court, is
that not correct?
ACTING SOLICITOR GENERAL HILBAY:
Correct, Your Honor.
JUSTICE LEONEN:
A TRO and a writ of preliminary injunction, would it be a separate case
or is it part of litigation in an ordinary case?
cEaSHC

ACTING SOLICITOR GENERAL HILBAY:

It is an ancillary remedy, Your Honor.
JUSTICE LEONEN:
In fact, it originated as an equitable remedy, is that not correct?
ACTING SOLICITOR GENERAL HILBAY:
Correct, Your Honor.
JUSTICE LEONEN:
In order to preserve the power of a court so that at the end of
litigation, it will not be rendered moot and academic, is that
not correct?
ACTING SOLICITOR GENERAL HILBAY:
Correct, Your Honor.
JUSTICE LEONEN:
In that view, isn't Section 14, first paragraph, unconstitutional?
ACTING SOLICITOR GENERAL HILBAY:
No, Your Honor.
xxx xxx xxx
JUSTICE LEONEN:

Can Congress say that a Court cannot prescribe Motions to Dismiss

under Rule 16?
ACTING SOLICITOR GENERAL HILBAY:
Your Honor, Congress cannot impair the power of the Court to
create remedies. . . . .
JUSTICE LEONEN:
What about bill [of] particulars, can Congress say, no Court shall have
the power to issue the supplemental pleading called the bill of
particular[s]? It cannot, because that's part of procedure . . .
ACTING SOLICITOR GENERAL HILBAY:
That is true.
JUSTICE LEONEN:
. . . or for that matter, no Court shall act on a Motion to Quash, is that
not correct?
ACTING SOLICITOR GENERAL HILBAY:
Correct.
JUSTICE LEONEN:
So what's different with the writ of injunction?
ACTING SOLICITOR GENERAL HILBAY:
Writ of injunction, Your Honor, requires the existence of jurisdiction on
the part of a court that was created by Congress. In the absence
of jurisdiction . . . (interrupted)
JUSTICE LEONEN:
No, writ of injunction does not attach to a court. In other words, when
they create a special agrarian court it has all procedures with it
but it does not attach particularly to that particular court, is that
not correct?
ACTING SOLICITOR GENERAL HILBAY:
When Congress, Your Honor, creates a special court . . .
JUSTICE LEONEN:

Again, Counsel, what statute provides for a TRO, created the concept of
a TRO? It was a Rule. A rule of procedure and the Rules of Court,
is that not correct?
ACTING SOLICITOR GENERAL HILBAY:
Yes, Your Honor.
JUSTICE LEONEN:
And a TRO and a writ of preliminary injunction does not exist unless it is
[an] ancillary to a particular injunction in a court, is that not
correct?
ACTING SOLICITOR GENERAL HILBAY:
Correct, Your Honor.
xxx xxx xxx 228 (Emphasis supplied)

In Biraogo v. The Philippine Truth Commission of 2010, 229 the Court

instructed that "[i]t is through the Constitution that the fundamental powers of
government are established, limited and defined, and by which these powers
are distributed among the several departments. The Constitution is the basic
and paramount law to which all other laws must conform and to which all
persons, including the highest officials of the land, must defer." It would then
follow that laws that do not conform to the Constitution shall be stricken down
for being unconstitutional. 230
However, despite the ostensible breach of the separation of powers
principle, the Court is not oblivious to the policy considerations behind the first
paragraph of Section 14, RA 6770, as well as other statutory provisions of
similar import. Thus, pending deliberation on whether or not to adopt the
same, the Court, under its sole prerogative and authority over all matters of
procedure, deems it proper to declare as ineffective the prohibition against
courts other than the Supreme Court from issuing provisional injunctive writs
to enjoin investigations conducted by the Office of the Ombudsman, until it is
adopted as part of the rules of procedure through an administrative circular
duly issued therefor.
CTIEac

Hence, with Congress interfering with matters of procedure (through

passing the first paragraph of Section 14, RA 6770) without the Court's

consent thereto, it remains that the CA had the authority to issue the
questioned injunctive writs enjoining the implementation of the preventive
suspension order against Binay, Jr. At the risk of belaboring the point, these
issuances
were
merely
ancillary
to
the
exercise
of
the
CA's certiorari jurisdiction conferred to it under Section 9 (1), Chapter I of BP
129, as amended, and which it had already acquired over the main CA-G.R.
SP No. 139453 case.
IV.
The foregoing notwithstanding, the issue of whether or not the CA
gravely abused its jurisdiction in issuing the TRO and WPI in CA-G.R. SP No.
139453 against the preventive suspension order is a persisting objection to
the validity of said injunctive writs. For its proper analysis, the Court first
provides the context of the assailed injunctive writs.
A. Subject matter of the CA's injunctive
writs is the preventive suspension order.
By nature, a preventive suspension order is not a penalty but only a
preventive measure. In Quimbo v. Acting Ombudsman Gervacio, 231 the
Court explained the distinction, stating that its purpose is to prevent the
official to be suspended from using his position and the powers and
prerogatives of his office to influence potential witnesses or tamper with
records which may be vital in the prosecution of the case against him:
Jurisprudential law establishes a clear-cut distinction
between suspension as preventive measure and suspension as
penalty. The distinction, by considering the purpose aspect of the
suspensions, is readily cognizable as they have different ends sought
to be achieved.
Preventive suspension is merely a preventive measure, a
preliminary step in an administrative investigation. The purpose
of the suspension order is to prevent the accused from using his
position and the powers and prerogatives of his office to
influence potential witnesses or tamper with records which may
be vital in the prosecution of the case against him. If after such
investigation, the charge is established and the person investigated is

found guilty of acts warranting his suspension or removal, then he is

suspended, removed or dismissed. This is the penalty.
That preventive suspension is not a penalty is in fact explicitly
provided by Section 24 of Rule XIV of the Omnibus Rules
Implementing Book V of the Administrative Code of 1987 (Executive
Order No. 292) and other Pertinent Civil Service Laws.
Section. 24. Preventive suspension is not a
punishment or penalty for misconduct in office but is
considered to be a preventive measure. (Emphasis
supplied)
Not being a penalty, the period within which one is under
preventive suspension is not considered part of the actual penalty of
suspension. So Section 25 of the same Rule XIV provides:
Section 25. The period within which a public officer
or employee charged is placed under preventive
suspension shall not be considered part of the actual
penalty of suspension imposed upon the employee
found guilty. 232 (Emphases supplied)

The requisites for issuing a preventive suspension order are explicitly

stated in Section 24, RA 6770:
Section 24. Preventive Suspension. The Ombudsman or his
Deputy may preventively suspend any officer or employee under his
authority pending an investigation, if in his judgment the evidence of
guilt is strong, and (a) the charge against such officer or
employee involves dishonesty, oppression or grave misconduct
or neglect in the performance of duty; (b) the charges would
warrant removal from the service; or (c) the respondent's
continued stay in office may prejudice the case filed against him.
The preventive suspension shall continue until the case is
terminated by the Office of the Ombudsman but not more than six (6)
months, without pay, except when the delay in the disposition of the
case by the Office of the Ombudsman is due to the fault, negligence or
petition of the respondent, in which case the period of such delay shall

not be counted in computing the period of suspension herein provided.

(Emphasis and underscoring supplied)

In other words, the law sets forth two (2) conditions that must be
satisfied to justify the issuance of an order of preventive suspension pending
an investigation, namely:
(1) The evidence of guilt is strong; and
(2) Either of the following circumstances co-exist with the first
requirement:
(a) The charge involves dishonesty, oppression or
misconduct or neglect in the performance of duty;

grave

(b) The charge would warrant removal from the service; or

(c) The respondent's continued stay in office may prejudice the
case filed against him. 233
B. The basis of the CA's injunctive
writs is the condonation doctrine.
Examining the CA's Resolutions in CA-G.R. SP No. 139453 would,
however, show that the Ombudsman's non-compliance with the requisites
provided in Section 24, RA 6770 was not the basis for the issuance of the
assailed injunctive writs.
SaCIDT

The CA's March 16, 2015 Resolution which directed the issuance of the
assailed TRO was based on the case of Governor Garcia, Jr. v.
CA 234 (Governor Garcia, Jr.), wherein the Court emphasized that "if it were
established in the CA that the acts subject of the administrative complaint
were indeed committed during petitioner [Garcia's] prior term, then, following
settled jurisprudence, he can no longer be administratively charged." 235 Thus,
the Court, contemplating the application of the condonation doctrine, among
others, cautioned, in the said case, that "it would have been more prudent for
[the appellate court] to have, at the very least, on account of the extreme
urgency of the matter and the seriousness of the issues raised in
the certiorari petition, issued a TRO . . ." 236 during the pendency of the
proceedings.

Similarly, the CA's April 6, 2015 Resolution which directed the issuance
of the assailed WPI was based on the condonation doctrine, citing the case
of Aguinaldo v. Santos. 237 The CA held that Binay, Jr. has an ostensible
right to the final relief prayed for, i.e., the nullification of the preventive
suspension order, finding that the Ombudsman can hardly impose preventive
suspension against Binay, Jr. given that his re-election in 2013 as City Mayor
of Makati condoned any administrative liability arising from anomalous
activities relative to the Makati Parking Building project from 2007 to
2013. 238 Moreover, the CA observed that although there were acts which
were apparently committed by Binay, Jr. beyond his first term, i.e., the alleged
payments on July 3, 4, and 24, 2013, 239 corresponding to the services of
Hillmarc's and MANA still, Binay, Jr. cannot be held administratively liable
therefor
based
on
the
cases
of Salalima
v.
Guingona,
Jr., 240 and Mayor Garcia v. Mojica, 241 wherein the condonation doctrine
was applied by the Court although the payments were made after the official's
election, reasoning that the payments were merely effected pursuant to
contracts executed before said re-election. 242
The Ombudsman contends that it was inappropriate for the CA to have
considered the condonation doctrine since it was a matter of defense which
should have been raised and passed upon by her office during the
administrative disciplinary proceedings. 243 However, the Court agrees with
the CA that it was not precluded from considering the same given that it was
material to the propriety of according provisional injunctive relief in conformity
with the ruling in Governor Garcia, Jr., which was the subsisting jurisprudence
at that time. Thus, since condonation was duly raised by Binay, Jr. in his
petition in CA-G.R. SP No. 139453, 244 the CA did not err in passing upon the
same. Note that although Binay, Jr. secondarily argued that the evidence of
guilt against him was not strong in his petition in CA-G.R. SP No.
139453, 245 it appears that the CA found that the application of the
condonation doctrine was already sufficient to enjoin the implementation of the
preventive suspension order. Again, there is nothing aberrant with this since,
as remarked in the same case of Governor Garcia, Jr., if it was established
that the acts subject of the administrative complaint were indeed committed
during Binay, Jr.'s prior term, then, following the condonation doctrine, he can

no longer be administratively charged. In other words, with condonation

having been invoked by Binay, Jr. as an exculpatory affirmative defense at the
onset, the CA deemed it unnecessary to determine if the evidence of guilt
against him was strong, at least for the purpose of issuing the subject
injunctive writs.
With the preliminary objection resolved and the basis of the assailed
writs herein laid down, the Court now proceeds to determine if the CA gravely
abused its discretion in applying the condonation doctrine.
C. The origin of the condonation doctrine.
Generally speaking, condonation has been defined as "[a] victim's
express or implied forgiveness of an offense, [especially] by treating the
offender as if there had been no offense." 246
The condonation doctrine which connotes this same sense of
complete extinguishment of liability as will be herein elaborated upon is not
based on statutory law. It is a jurisprudential creation that originated from
the 1959 case of Pascual v. Hon. Provincial Board of Nueva
Ecija, 247 (Pascual), which was therefore decided under the 1935
Constitution.
In Pascual, therein petitioner, Arturo Pascual, was elected Mayor of San
Jose, Nueva Ecija, sometime in November 1951, and was later re-elected to
the same position in 1955. During his second term, or on October 6, 1956,
the Acting Provincial Governor filed administrative charges before the
Provincial Board of Nueva Ecija against him for grave abuse of authority and
usurpation of judicial functions for acting on a criminal complaint in Criminal
Case No. 3556 on December 18 and 20, 1954. In defense, Arturo Pascual
argued that he cannot be made liable for the acts charged against him since
they were committed during his previous term of office, and therefore, invalid
grounds for disciplining him during his second term. The Provincial Board, as
well as the Court of First Instance of Nueva Ecija, later decided against Arturo
Pascual, and when the case reached this Court on appeal, it recognized that
the controversy posed a novel issue that is, whether or not an elective
official may be disciplined for a wrongful act committed by him during his
immediately preceding term of office.

As there was no legal precedent on the issue at that time, the Court,
in Pascual, resorted to American authorities and "found that cases on the
matter are conflicting due in part, probably, to differences in statutes and
constitutional provisions, and also, in part, to a divergence of views with
respect to the question of whether the subsequent election or appointment
condones the prior misconduct." 248 Without going into the variables of
these conflicting views and cases, it proceeded to state that:
cHECAS

The weight of authorities . . . seems to incline toward the

rule denying the right to remove one from office because of
misconduct
during
a
prior
term, to
which
we
fully
subscribe. 249 (Emphasis and underscoring supplied)

The conclusion is at once problematic since this Court has now

uncovered that there is really no established weight of authority in the United
States (US) favoring the doctrine of condonation, which, in the words
of Pascual, theorizes that an official's re-election denies the right to remove
him from office due to a misconduct during a prior term. In fact, as pointed out
during the oral arguments of this case, at least seventeen (17) states in the
US have abandoned the condonation doctrine. 250 The Ombudsman aptly
cites several rulings of various US State courts, as well as literature published
on the matter, to demonstrate the fact that the doctrine is not uniformly applied
across all state jurisdictions. Indeed, the treatment is nuanced:
(1) For one, it has been widely recognized that the propriety of removing
a public officer from his current term or office for misconduct which he
allegedly committed in a prior term of office is governed by the language of the
statute or constitutional provision applicable to the facts of a particular case
(see In Re Removal of Member of Council Coppola). 251 As an example, a
Texas statute, on the one hand, expressly allows removal only for an act
committed during a present term: "no officer shall be prosecuted or removed
from office for any act he may have committed prior to his election to office"
(see State ex rel. Rawlings v. Loomis).252 On the other hand, the Supreme
Court of Oklahoma allows removal from office for "acts of commission,
omission, or neglect committed, done or omitted during a previous or
preceding term of office" (see State v. Bailey). 253 Meanwhile, in some states

where the removal statute is silent or unclear, the case's resolution was
contingent upon the interpretation of the phrase "in office." On one end, the
Supreme Court of Ohio strictly construed a removal statute containing the
phrase "misfeasance of malfeasance in office" and thereby declared that, in
the absence of clear legislative language making, the word "office" must be
limited to the single term during which the offense charged against the public
officer occurred (see State ex rel. Stokes v. Probate Court of Cuyahoga
County). 254 Similarly, the Common Pleas Court of Allegheny County,
Pennsylvania decided that the phrase "in office" in its state constitution was a
time limitation with regard to the grounds of removal, so that an officer could
not be removed for misbehaviour which occurred prior to the taking of the
office (see Commonwealth v. Rudman). 255 The opposite was construed in the
Supreme Court of Louisiana which took the view that an officer's inability to
hold an office resulted from the commission of certain offenses, and at once
rendered him unfit to continue in office, adding the fact that the officer had
been re-elected did not condone or purge the offense (see State ex rel. Billon
v. Bourgeois). 256 Also, in the Supreme Court of New York, Apellate Division,
Fourth Department, the court construed the words "in office" to refer not to a
particular term of office but to an entire tenure; it stated that the whole purpose
of the legislature in enacting the statute in question could easily be lost sight
of, and the intent of the law-making body be thwarted, if an unworthy official
could not be removed during one term for misconduct for a previous
one (Newman v. Strobel). 257
(2) For another, condonation depended on whether or not the public
officer was a successor in the same office for which he has been
administratively charged. The "own-successor theory," which is recognized in
numerous States as an exception to condonation doctrine, is premised on the
idea that each term of a re-elected incumbent is not taken as separate and
distinct, but rather, regarded as one continuous term of office. Thus,
infractions committed in a previous term are grounds for removal because a
re-elected incumbent has no prior term to speak of 258 (see Attorney-General
v. Tufts; 259 State v. Welsh; 260 Hawkins v. Common Council of Grand
Rapids; 261 Territory v. Sanches; 262 and Tibbs v. City of Atlanta). 263

(3) Furthermore, some State courts took into consideration the

continuing nature of an offense in cases where the condonation doctrine was
invoked. InState ex rel. Douglas v. Megaarden, 264 the public officer charged
with malversation of public funds was denied the defense of condonation by
the Supreme Court of Minnesota, observing that "the large sums of money
illegally collected during the previous years are still retained by him." In State
ex rel. Beck v. Harvey, 265 the Supreme Court of Kansas ruled that "there is no
necessity" of applying the condonation doctrine since "the misconduct
continued in the present term of office[;] [thus] there was a duty upon
defendant to restore this money on demand of the county commissioners."
Moreover, in State ex rel. Londerholm v. Schroeder, 266 the Supreme Court of
Kansas held that "insofar as nondelivery and excessive prices are
concerned, . . . there remains a continuing duty on the part of the defendant to
make restitution to the country . . ., this duty extends into the present term,
and neglect to discharge it constitutes misconduct."
Overall, the foregoing data clearly contravenes the preliminary
conclusion in Pascual that there is a "weight of authority" in the US on the
condonation doctrine. In fact, without any cogent exegesis to show
that Pascual had accounted for the numerous factors relevant to the debate on
condonation, an outright adoption of the doctrine in this jurisdiction would not
have been proper.
At any rate, these US cases are only of persuasive value in the process
of this Court's decision-making. "[They] are not relied upon as precedents, but
as guides of interpretation." 267 Therefore, the ultimate analysis is on whether
or not the condonation doctrine, as espoused in Pascual, and carried over in
numerous cases after, can be held up against prevailing legal norms. Note
that the doctrine of stare decisis does not preclude this Court from revisiting
existing doctrine. As adjudged in the case of Belgica, the stare decisis rule
should not operate when there are powerful countervailing considerations
against its application. 268 In other words,stare decisis becomes an intractable
rule only when circumstances exist to preclude reversal of standing
precedent. 269 As the Ombudsman correctly points out, jurisprudence, after
all, is not a rigid, a temporal abstraction; it is an organic creature that develops
and devolves along with the society within which it thrives. 270 In the words of

a recent US Supreme Court Decision, "[w]hat we can decide, we can

undecide." 271
AHDacC

In this case, the Court agrees with the Ombudsman that since the
time Pascual was decided, the legal landscape has radically shifted.
Again, Pascual was a 1959 case decided under the 1935 Constitution, which
dated provisions do not reflect the experience of the Filipino People under
the 1973 and 1987 Constitutions. Therefore, the plain difference in setting,
including, of course, the sheer impact of the condonation doctrine on public
accountability, calls for Pascual's judicious re-examination.
D. Testing the Condonation Doctrine.
Pascual's ratio decidendi may be dissected into three (3) parts:
First, the penalty of removal may not be extended beyond the term in
which the public officer was elected for each term is separate and distinct:
Offenses committed, or acts done, during
previous term are generally held not to furnish cause
for removal and this is especially true where the
constitution provides that the penalty in proceedings for
removal shall not extend beyond the removal from
office, and disqualification from holding office for the
term for which the officer was elected or
appointed. (67 C.J.S. p. 248, citing Rice vs. State, 161
S.W. 2d. 401; Montgomery vs. Nowell, 40 S.W. 2d.
418; People ex rel. Bagshaw vs. Thompson, 130 P. 2d.
237; Board of Com'rs of Kingfisher County vs.
Shutler, 281 P. 222; State vs. Blake, 280 P. 388; In re
Fudula, 147 A. 67; State vs. Ward, 43 S.W. 2d. 217).
The underlying theory is that each term is separate from other
terms . . . . 272

Second, an elective official's re-election serves as a condonation of

previous misconduct, thereby cutting the right to remove him therefor; and
[T]hat the reelection to office operates as a condonation of the
officer's previous misconduct to the extent of cutting off the right

to remove him therefor.(43 Am. Jur. p. 45, citing Atty. Gen. vs. Hasty,
184 Ala. 121, 63 So. 559, 50 L.R.A. (NS) 553. 273 (emphasis supplied)

Third, courts may not deprive the electorate, who are assumed to have
known the life and character of candidates, of their right to elect officers:
As held in Conant vs. Grogan (1887) 6 N.Y.S.R. 322, cited in 17 A.I.R.
281, 63 So. 559, 50 LRA (NS) 553
The Court should never remove a public officer for
acts done prior to his present term of office. To do
otherwise would be to deprive the people of their right to
elect their officers. When the people have elected a
man to office, it must be assumed that they did this
with knowledge of his life and character, and that
they disregarded or forgave his faults or misconduct,
if he had been guilty of any. It is not for the court, by
reason of such faults or misconduct to practically overrule
the will of the people. 274 (Emphases supplied)

The notable cases on condonation following Pascual are as follows:

(1) Lizares v. Hechanova 275 (May 17, 1966) wherein the Court first
applied the condonation doctrine, thereby quoting the above-stated passages
fromPascual in verbatim.
(2) Ingco v. Sanchez, et al. 276 (December 18, 1967) wherein the
Court clarified that the condonation doctrine does not apply to a criminal
case. It was explained that a criminal case is different from an administrative
case in that the former involves the People of the Philippines as a community,
and is a public wrong to the State at large; whereas, in the latter, only the
populace of the constituency he serves is affected. In addition, the Court
noted that it is only the President who may pardon a criminal offense.
(3) Aguinaldo v. Santos 277 (Aguinaldo; August 21, 1992) a
case decided under the 1987 Constitution wherein the condonation
doctrine was applied in favor of then Cagayan Governor Rodolfo E. Aguinaldo
although his re-election merely supervened the pendency of the
proceedings.

(4) Salalima v. Guingona, Jr. 278 (Salalima; May 22, 1996) wherein
the Court reinforced the condonation doctrine by stating that the same is
justified by "sound public policy." According to the Court, condonation
prevented the elective official from being "hounded" by administrative cases
filed by his "political enemies" during a new term, for which he has to defend
himself "to the detriment of public service." Also, the Court mentioned that the
administrative liability condoned by re-election covered the execution of the
contract and the incidents related therewith. 279
(5) Mayor Garcia v. Mojica 280 (Mayor Garcia; September 10, 1999)
wherein the benefit of the doctrine was extended to then Cebu City Mayor
Alvin B. Garcia who was administratively charged for his involvement in an
anomalous contract for the supply of asphalt for Cebu City, executed only four
(4) days before the upcoming elections. The Court ruled that notwithstanding
the timing of the contract's execution, the electorate is presumed to have
known the petitioner's background and character, including his past
misconduct; hence, his subsequent re-election was deemed a condonation of
his prior transgressions. More importantly, the Court held that the
determinative time element in applying the condonation doctrine should be the
time when the contract was perfected; this meant that as long as the
contract was entered into during a prior term, acts which were done to
implement the same, even if done during a succeeding term, do not
negate the application of the condonation doctrine in favor of the
elective official.
(6) Salumbides, Jr. v. Office of the Ombudsman 281 (Salumbides, Jr.;
April 23, 2010) wherein the Court explained the doctrinal innovations in
theSalalima and Mayor Garcia rulings, to wit:
IDSEAH

Salalima v. Guingona, Jr. and Mayor Garcia v. Hon. Mojica reinforced

the doctrine. The condonation rule was applied even if the
administrative complaint was not filed before the reelection of the
public official, and even if the alleged misconduct occurred four
days before the elections, respectively. Salalima did not distinguish
as to the date of filing of the administrative complaint, as long as the
alleged misconduct was committed during the prior term, the precise
timing or period of which Garcia did not further distinguish, as long as

the wrongdoing that gave rise to the public official's culpability was
committed prior to the date of reelection. 282 (Emphasis supplied)

The Court, citing Civil Service Commission v. Sojor, 283 also clarified
that the condonation doctrine would not apply to appointive
officials since, as to them, there is no sovereign will to disenfranchise.
(7) And finally, the above discussed case of Governor Garcia, Jr.
wherein the Court remarked that it would have been prudent for the appellate
court therein to have issued a temporary restraining order against the
implementation of a preventive suspension order issued by the Ombudsman
in view of the condonation doctrine.
A
thorough
review
of
the
cases post-1987,
among
others, Aguinaldo, Salalima, Mayor Garcia, and Governor Garcia, Jr. all
cited by the CA to justify its March 16, 2015 and April 6, 2015 Resolutions
directing the issuance of the assailed injunctive writs would show that the
basis for condonation under the prevailing constitutional and statutory
framework was never accounted for. What remains apparent from the text of
these cases is that the basis for condonation, as jurisprudential doctrine, was
and still remains the above-cited postulates of Pascual, which was lifted
from rulings of US courts where condonation was amply supported by their
own state laws. With respect to its applicability to administrative cases, the
core premise of condonation that is, an elective official's re-election cuts off
the right to remove him for an administrative offense committed during a prior
term was adopted hook, line, and sinker in our jurisprudence largely
because the legality of that doctrine was never tested against existing legal
norms. As in the US, the propriety of condonation is as it should be
dependent on the legal foundation of the adjudicating jurisdiction. Hence, the
Court undertakes an examination of our current laws in order to determine if
there is legal basis for the continued application of the doctrine of
condonation.
The foundation of our entire legal system is the Constitution. It is the
supreme law of the land; 284 thus, the unbending rule is that every statute
should be read in light of the Constitution. 285 Likewise, the Constitution is a
framework of a workable government; hence, its interpretation must take into

account the complexities, realities, and politics attendant to the operation of

the political branches of government. 286
As earlier intimated, Pascual was a decision promulgated in 1959.
Therefore, it was decided within the context of the 1935 Constitution which
was silent with respect to public accountability, or of the nature of public office
being a public trust. The provision in the 1935 Constitution that comes closest
in dealing with public office is Section 2, Article II which states that "[t]he
defense of the State is a prime duty of government, and in the fulfillment of
this duty all citizens may be required by law to render personal military or civil
service." 287 Perhaps owing to the 1935 Constitution's silence on public
accountability, and considering the dearth of jurisprudential rulings on the
matter, as well as the variance in the policy considerations, there was no
glaring objection confronting the Pascual Court in adopting the condonation
doctrine that originated from select US cases existing at that time.
With the advent of the 1973 Constitution, the approach in dealing with
public officers underwent a significant change. The new charter introduced an
entire article on accountability of public officers, found in Article XIII. Section 1
thereof positively recognized, acknowledged, and declared that "[p]ublic
office is a public trust." Accordingly, "[p]ublic officers and employees
shall serve with the highest degree of responsibility, integrity, loyalty
and efficiency, and shall remain accountable to the people."
After the turbulent decades of Martial Law rule, the Filipino People have
framed and adopted the 1987 Constitution, which sets forth in the Declaration
of Principles and State Policies in Article II that "[t]he State shall maintain
honesty and integrity in the public service and take positive and
effective measures against graft and corruption." 288 Learning how
unbridled power could corrupt public servants under the regime of a dictator,
the Framers put primacy on the integrity of the public service by declaring it as
a constitutional principle and a State policy. More significantly, the 1987
Constitution strengthened and solidified what has been first proclaimed in
the 1973 Constitution by commanding public officers to be accountable to the
people at all times:

Section 1. Public office is a public trust. Public officers and

employees must at all times be accountable to the people, serve
them with utmostresponsibility, integrity, loyalty, and efficiency
and act with patriotism and justice, and lead modest lives.

In Belgica, it was explained that:

[t]he aphorism forged under Section 1, Article XI of the 1987
Constitution, which states that "public office is a public trust," is an
overarching reminder that every instrumentality of government should
exercise their official functions only in accordance with the principles of
the Constitution which embodies the parameters of the people's
trust. The
notion
of
a
public
trust
connotes
accountability . . . . 289 (Emphasis supplied)

The same mandate is found in the Revised Administrative Code under

the section of the Civil Service Commission, 290 and also, in the Code of
Conduct and Ethical Standards for Public Officials and Employees. 291
For local elective officials like Binay, Jr., the grounds to discipline,
suspend or remove an elective local official from office are stated
in Section 60 of Republic Act No. 7160, 292 otherwise known as the "Local
Government Code of 1991" (LGC), which was approved on October 10, 1991,
and took effect on January 1, 1992:
Section 60. Grounds for Disciplinary Action. An elective local official
may be disciplined, suspended, or removed from office on any of the
following grounds:
(a) Disloyalty to the Republic of the Philippines;
(b) Culpable violation of the Constitution;
(c) Dishonesty, oppression, misconduct
negligence, or dereliction of duty;

in

office,

gross

(d) Commission of any offense involving moral turpitude or an

offense punishable by at least prision mayor;
(e) Abuse of authority;
(f) Unauthorized absence for fifteen (15) consecutive working
days, except in the case of members of the sangguniang

panlalawigan, sangguniang
panlunsod,sanggunian
bayan, and sangguniang barangay;
(g) Application for, or acquisition of, foreign citizenship or
residence or the status of an immigrant of another country;
and
(h) Such other grounds as may be provided in this Code and other
laws.
An elective local official may be removed from office on the grounds
enumerated above by order of the proper court.

Related to this provision is Section 40 (b) of the LGC which states

that those removed from office as a result of an administrative case shall
bedisqualified from running for any elective local position:
Section 40. Disqualifications. The following persons are
disqualified from running for any elective local position:
AHCETa

xxx xxx xxx

(b) Those removed from
administrative case;

office

as

result

of

an

xxx xxx xxx (Emphasis supplied)

In the same sense, Section 52 (a) of the RRACCS provides that

the penalty of dismissal from service carries the accessory penalty of
perpetual disqualification from holding public office:
Section 52. Administrative Disabilities Inherent in Certain
Penalties.
a. The penalty of dismissal shall carry with it cancellation of
eligibility, forfeiture of retirement benefits, perpetual
disqualification from holding public office, and bar from
taking the civil service examinations.

In contrast, Section 66 (b) of the LGC states that the penalty of

suspension shall not exceed the unexpired term of the elective local official
nor constitute a bar to his candidacy for as long as he meets the qualifications
required for the office. Note, however, that the provision only pertains to the
duration of the penalty and its effect on the official's candidacy. Nothing

therein states that the administrative liability therefor is extinguished by

the fact of re-election:
Section 66. Form and Notice of Decision. . . . .
xxx xxx xxx
(b) The penalty of suspension shall not exceed the unexpired term of
the respondent or a period of six (6) months for every administrative
offense, nor shall said penalty be a bar to the candidacy of the
respondent so suspended as long as he meets the qualifications
required for the office.

Reading the 1987 Constitution together with the above-cited legal

provisions now leads this Court to the conclusion that the doctrine of
condonation is actually bereft of legal bases.
To begin with, the concept of public office is a public trust and the
corollary requirement of accountability to the people at all times, as
mandated under the 1987 Constitution, is plainly inconsistent with the idea
that an elective local official's administrative liability for a misconduct
committed during a prior term can be wiped off by the fact that he was elected
to a second term of office, or even another elective post. Election is not a
mode of condoning an administrative offense, and there is simply no
constitutional or statutory basis in our jurisdiction to support the notion that an
official elected for a different term is fully absolved of any administrative
liability arising from an offense done during a prior term. In this
jurisdiction, liability arising from administrative offenses may be
condoned by the President in light of Section 19, Article VII of the 1987
Constitution which was interpreted in Llamas v. Orbos 293 to apply to
administrative offenses:
The Constitution does not distinguish between which cases executive
clemency may be exercised by the President, with the sole exclusion of
impeachment cases. By the same token, if executive clemency may be
exercised only in criminal cases, it would indeed be unnecessary to
provide for the exclusion of impeachment cases from the coverage of
Article VII, Section 19 of the Constitution. Following petitioner's
proposed interpretation, cases of impeachment are automatically

excluded inasmuch as the same do not necessarily involve criminal

offenses.
In the same vein, We do not clearly see any valid and
convincing reason why the President cannot grant executive clemency
in administrative cases. It is Our considered view that if the President
can grant reprieves, commutations and pardons, and remit fines and
forfeitures in criminal cases, with much more reason can she grant
executive clemency in administrative cases, which are clearly less
serious than criminal offenses.

Also, it cannot be inferred from Section 60 of the LGC that the grounds
for discipline enumerated therein cannot anymore be invoked against an
elective local official to hold him administratively liable once he is re-elected to
office. In fact, Section 40 (b) of the LGC precludes condonation since in the
first place, an elective local official who is meted with the penalty of removal
could not be re-elected to an elective local position due to a direct
disqualification from running for such post. In similar regard, Section 52 (a) of
the RRACCS imposes a penalty of perpetual disqualification from holding
public office as an accessory to the penalty of dismissal from service.
To compare, some of the cases adopted in Pascual were decided by US
State jurisdictions wherein the doctrine of condonation of administrative
liability was supported by either a constitutional or statutory provision stating,
in effect, that an officer cannot be removed by a misconduct committed during
a previous term,294 or that the disqualification to hold the office does not
extend beyond the term in which the official's delinquency
occurred. 295 In one case, 296 the absence of a provision against the reelection of an officer removed unlike Section 40 (b) of the LGC was the
justification behind condonation. In another case,297 it was deemed that
condonation through re-election was a policy under their constitution
which adoption in this jurisdiction runs counter to our present Constitution's
requirements on public accountability. There was even one case where the
doctrine of condonation was not adjudicated upon but only invoked by a party
as a ground; 298 while in another case, which was not reported in full in the
official series, the crux of the disposition was that the evidence of a prior
irregularity in no way pertained to the charge at issue and therefore, was

deemed to be incompetent. 299 Hence, owing to either their variance or

inapplicability, none of these cases can be used as basis for the continued
adoption of the condonation doctrine under our existing laws.
ScHADI

At best, Section 66 (b) of the LGC prohibits the enforcement of the

penalty of suspension beyond the unexpired portion of the elective local
official's prior term, and likewise allows said official to still run for re-election.
This
treatment
is
similar
to People
ex
rel.
Bagshaw
v.
Thompson 300 and Montgomery v. Nowell, 301both cited in Pascual, wherein it
was ruled that an officer cannot be suspended for a misconduct committed
during a prior term. However, as previously stated, nothing in Section 66 (b)
states that the elective local official's administrative liability is extinguished by
the fact of re-election. Thus, at all events, no legal provision actually supports
the theory that the liability is condoned.
Relatedly, it should be clarified that there is no truth in Pascual's
postulation that the courts would be depriving the electorate of their right to
elect their officers if condonation were not to be sanctioned. In political law,
election pertains to the process by which a particular constituency chooses an
individual to hold a public office. In this jurisdiction, there is, again, no legal
basis to conclude that election automatically implies condonation. Neither is
there any legal basis to say that every democratic and republican state has an
inherent regime of condonation. If condonation of an elective official's
administrative liability would perhaps, be allowed in this jurisdiction, then the
same should have been provided by law under our governing legal
mechanisms. May it be at the time of Pascual or at present, by no means has
it been shown that such a law, whether in a constitutional or statutory
provision, exists. Therefore, inferring from this manifest absence, it cannot be
said that the electorate's will has been abdicated.
Equally infirm is Pascual's proposition that the electorate, when reelecting a local official, are assumed to have done so with knowledge of his
life and character, and that they disregarded or forgave his faults or
misconduct, if he had been guilty of any. Suffice it to state that no such
presumption exists in any statute or procedural rule. 302 Besides, it is
contrary to human experience that the electorate would have full knowledge of

a public official's misdeeds. The Ombudsman correctly points out the reality
that most corrupt acts by public officers are shrouded in secrecy, and
concealed from the public. Misconduct committed by an elective official is
easily covered up, and is almost always unknown to the electorate when
they cast their votes. 303 At a conceptual level, condonation presupposes
that the condoner has actual knowledge of what is to be condoned. Thus,
there could be no condonation of an act that is unknown.As observed
in Walsh v. City Council of Trenton 304 decided by the New Jersey Supreme
Court:
Many of the cases holding that re-election of a public official
prevents his removal for acts done in a preceding term of office are
reasoned out on the theory of condonation. We cannot subscribe to
that theory because condonation, implying as it does forgiveness,
connotes knowledge and in the absence of knowledge there can be no
condonation. One cannot forgive something of which one has no
knowledge.

That being said, this Court simply finds no legal authority to sustain the
condonation doctrine in this jurisdiction. As can be seen from this discourse, it
was a doctrine adopted from one class of US rulings way back in 1959 and
thus, out of touch from and now rendered obsolete by the current legal
regime. In consequence, it is high time for this Court to abandon the
condonation doctrine that originated from Pascual, and affirmed in the cases
following the same, such asAguinaldo, Salalima, Mayor Garcia, and Governor
Garcia, Jr. which were all relied upon by the CA.
It should, however, be clarified that this Court's abandonment of the
condonation doctrine should be prospective in application for the reason that
judicial decisions applying or interpreting the laws or the Constitution, until
reversed, shall form part of the legal system of the Philippines. 305 Unto this
Court devolves the sole authority to interpret what the Constitution means,
and all persons are bound to follow its interpretation. As explained in De
Castro v. Judicial Bar Council; 306
Judicial decisions assume the same authority as a statute itself
and, until authoritatively abandoned, necessarily become, to the extent
that they are applicable, the criteria that must control the actuations,

not only of those called upon to abide by them, but also of those dutybound to enforce obedience to them. 307

Hence, while the future may ultimately uncover a doctrine's error, it

should be, as a general rule, recognized as "good law" prior to its
abandonment. Consequently, the people's reliance thereupon should be
respected. The landmark case on this matter is People v. Jabinal, 308 wherein
it was ruled:
[W]hen a doctrine of this Court is overruled and a different view is
adopted, the new doctrine should be applied prospectively, and should
not apply to parties who had relied on the old doctrine and acted on the
faith thereof.

Later, in Spouses Benzonan v. CA, 309 it was further elaborated:

[P]ursuant to Article 8 of the Civil Code "judicial decisions applying or
interpreting the laws or the Constitution shall form a part of the legal
system of the Philippines." But while our decisions form part of the law
of the land, they are also subject to Article 4 of the Civil Code which
provides that "laws shall have no retroactive effect unless the contrary
is provided." This is expressed in the familiar legal maxim lex prospicit,
non respicit, the law looks forward not backward. The rationale against
retroactivity is easy to perceive. The retroactive application of a law
usually divests rights that have already become vested or impairs the
obligations of contract and hence, is unconstitutional. 310

Indeed, the lessons of history teach us that institutions can greatly

benefit from hindsight and rectify its ensuing course. Thus, while it is truly
perplexing to think that a doctrine which is barren of legal anchorage was able
to endure in our jurisprudence for a considerable length of time, this Court,
under a new membership, takes up the cudgels and now abandons the
condonation doctrine.
aICcHA

E. Consequence of ruling.
As for this section of the Decision, the issue to be resolved is whether
or not the CA committed grave abuse of discretion amounting to lack or
excess of jurisdiction in issuing the assailed injunctive writs.

It is well-settled that an act of a court or tribunal can only be considered

as with grave abuse of discretion when such act is done in a capricious or
whimsical exercise of judgment as is equivalent to lack of jurisdiction.
The abuse of discretion must be so patent and gross as to amount to an
evasion of a positive duty or to a virtual refusal to perform a duty enjoined by
law, or to act at all in contemplation of law, as where the power is exercised in
an arbitrary and despotic manner by reason of passion and hostility. 311 It has
also been held that "grave abuse of discretion arises when a lower court
or tribunal patently violates the Constitution, the law or existing
jurisprudence." 312
As earlier established, records disclose that the CA's resolutions
directing the issuance of the assailed injunctive writs were all hinged on cases
enunciating the condonation doctrine. To recount, the March 16, 2015
Resolution directing the issuance of the subject TRO was based on the case
of Governor Garcia, Jr., while the April 6, 2015 Resolution directing the
issuance
of
the
subject
WPI
was
based
on
the
cases
of Aguinaldo, Salalima, Mayor Garcia, and again, Governor Garcia, Jr. Thus,
by merely following settled precedents on the condonation doctrine, which at
that time, unwittingly remained "good law," it cannot be concluded that the CA
committed a grave abuse of discretion based on its legal attribution above.
Accordingly, the WPI against the Ombudsman's preventive suspension order
was correctly issued.
With this, the ensuing course of action should have been for the CA to
resolve the main petition for certiorari in CA-G.R. SP No. 139453 on the
merits. However, considering that the Ombudsman, on October 9, 2015, had
already found Binay, Jr. administratively liable and imposed upon him the
penalty of dismissal, which carries the accessory penalty of perpetual
disqualification from holding public office, for the present administrative
charges against him, the said CA petition appears to have been
mooted. 313 As initially intimated, the preventive suspension order is only an
ancillary issuance that, at its core, serves the purpose of assisting the Office
of the Ombudsman in its investigation. It therefore has no more purpose
and perforce, dissolves upon the termination of the office's process of
investigation in the instant administrative case.

F. Exceptions to the mootness principle.

This notwithstanding, this Court deems it apt to clarify that the
mootness of the issue regarding the validity of the preventive suspension
order subject of this case does not preclude any of its foregoing
determinations, particularly, its abandonment of the condonation doctrine. As
explained in Belgica, "'the moot and academic principle' is not a magical
formula that can automatically dissuade the Court in resolving a case. The
Court will decide cases, otherwise moot, if: first, there is a grave violation of
the Constitution; second, the exceptional character of the situation and the
paramount public interest is involved; third, when the constitutional issue
raised requires formulation of controlling principles to guide the bench, the bar,
and the public; and fourth, the case is capable of repetition yet evading
review." 314 All of these scenarios obtain in this case:
First, it would be a violation of the Court's own duty to uphold and
defend the Constitution if it were not to abandon the condonation doctrine now
that its infirmities have become apparent. As extensively discussed, the
continued application of the condonation doctrine is simply impermissible
under the auspices of the present Constitution which explicitly mandates that
public office is a public trust and that public officials shall be accountable to
the people at all times.
Second, the condonation doctrine is a peculiar jurisprudential creation
that has persisted as a defense of elective officials to escape administrative
liability. It is the first time that the legal intricacies of this doctrine have been
brought to light; thus, this is a situation of exceptional character which this
Court must ultimately resolve. Further, since the doctrine has served as a
perennial obstacle against exacting public accountability from the multitude of
elective local officials throughout the years, it is indubitable that paramount
public interest is involved.
Third, the issue on the validity of the condonation doctrine clearly
requires the formulation of controlling principles to guide the bench, the bar,
and the public. The issue does not only involve an in-depth exegesis of
administrative law principles, but also puts to the forefront of legal discourse
the potency of the accountability provisions of the 1987 Constitution. The

Court owes it to the bench, the bar, and the public to explain how this
controversial doctrine came about, and now, its reasons for abandoning the
same in view of its relevance on the parameters of public office.
And fourth, the defense of condonation has been consistently invoked
by elective local officials against the administrative charges filed against them.
To provide a sample size, the Ombudsman has informed the Court that "for
the period of July 2013 to December 2014 alone, 85 cases from the Luzon
Office and 24 cases from the Central Office were dismissed on the ground of
condonation. Thus, in just one and a half years, over a hundred cases of
alleged misconduct involving infractions such as dishonesty, oppression,
gross neglect of duty and grave misconduct were placed beyond the reach
of the Ombudsman's investigatory and prosecutorial powers." 315 Evidently,
this fortifies the finding that the case is capable of repetition and must
therefore, not evade review.
EHaASD

In any event, the abandonment of a doctrine is wholly within the

prerogative of the Court. As mentioned, it is its own jurisprudential creation
and may therefore, pursuant to its mandate to uphold and defend the
Constitution, revoke it notwithstanding supervening events that render the
subject of discussion moot.
V.
With all matters pertaining to CA-G.R. SP No. 139453 passed upon, the
Court now rules on the final issue on whether or not the CA's
Resolution 316 dated March 20, 2015 directing the Ombudsman to comment
on Binay, Jr.'s petition for contempt in CA-G.R. SP No. 139504 is improper
and illegal.
The sole premise of the Ombudsman's contention is that, as an
impeachable officer, she cannot be the subject of a charge for indirect
contempt 317 because this action is criminal in nature and the penalty therefor
would result in her effective removal from office. 318 However, a reading of the
aforesaid March 20, 2015 Resolution does not show that she has already
been subjected to contempt proceedings. This issuance, in fact, makes it
clear that notwithstanding the directive for the Ombudsman to comment, the

CA has not necessarily given due course to Binay, Jr.'s contempt

petition:
Without necessarily giving due course to the Petition for
Contempt, respondents [Hon. Conchita Carpio-Morales, in her
capacity as the Ombudsman, and the Department of Interior and Local
Government] are hereby DIRECTED to file Comment on the
Petition/Amended and Supplemental Petition for Contempt (CA-G.R.
SP No. 139504) within an inextendible period of three (3) days from
receipt hereof. 319 (Emphasis and underscoring supplied)

Thus, even if the Ombudsman accedes to the CA's directive by filing a

comment, wherein she may properly raise her objections to the contempt
proceedings by virtue of her being an impeachable officer, the CA, in the
exercise of its sound judicial discretion, may still opt not to give due course to
Binay, Jr.'s contempt petition and accordingly, dismiss the same. Simply put,
absent any indication that the contempt petition has been given due course,
by the CA, it would then be premature for this Court to rule on the issue. The
submission of the Ombudsman on this score is perforce denied.
WHEREFORE, the petition is PARTLY GRANTED. Under the premises
of this Decision, the Court resolves as follows:
(a) the second paragraph of Section 14 of Republic Act No. 6770 is
declared UNCONSTITUTIONAL, while the policy against the issuance of
provisional injunctive writs by courts other than the Supreme Court to enjoin
an investigation conducted by the Office of the Ombudsman under the first
paragraph of the said provision is DECLARED ineffective until the Court
adopts the same as part of the rules of procedure through an administrative
circular duly issued therefor;
(b) The condonation doctrine is ABANDONED, but the abandonment
is PROSPECTIVE in effect;
(c) The Court of Appeals (CA) is DIRECTED to act on respondent
Jejomar Erwin S. Binay, Jr.'s (Binay, Jr.) petition for certiorari in CA-G.R. SP
No. 139453 in light of the Office of the Ombudsman's supervening issuance of
its Joint Decision dated October 9, 2015 finding Binay, Jr. administratively
liable in the six (6) administrative complaints, docketed as OMB-C-A-15-0058,

OMB-C-A-15-0059, OMB-C-A-15-0060, OMB-C-A-15-0061, OMB-C-A-150062, and OMB-C-A-15-0063; and

(d) After the filing of petitioner Ombudsman Conchita Carpio-Morales's
comment, the CA is DIRECTED to resolve Binay, Jr.'s petition for contempt in
CA-G.R. SP No. 139504 with utmost dispatch.
SO ORDERED.
Sereno, C.J., Carpio, Velasco, Jr., * Leonardo-de Castro, Del Castillo,
Villarama, Jr., Perez, Reyes and Leonen, JJ., concur.
Brion, ** J., took no part, on leave.
Peralta *** and Jardeleza, ***** JJ., took no part.
Bersamin, J., Please see my Concurring and Dissenting Opinion.
Mendoza, **** J., is on leave.

Separate Opinions
BERSAMIN, J., concurring and dissenting:
I am writing this separate opinion to memorialize my concurrence with
the declaration of the ineffectiveness of the first paragraph of Section 14
of Republic Act No. 6770, and of the unconstitutionality of the second
paragraph thereof. The main opinion has been written well by our esteemed
colleague, Associate Justice Estela M. Perlas-Bernabe, who has exhibited her
scholarly bent once again. But let me assure my colleagues in the Majority
that if I submit this concurrence, I do not mean to diminish in any way or
degree the forcefulness and correctness of the justification for the declaration.
I simply want to underscore that Section 14 of Republic Act No. 6770 should
be struck down for authorizing the undue interference with the prerogatives of
the courts of law to adopt whatever means were allowed by law and procedure
to exercise their jurisdiction in the cases properly cognizable by them.
My dissent focuses on the main opinion's re-examination of the doctrine
of condonation. This controversy does not call for the revisit of the doctrine,
and does not warrant its eventual abandonment. For the Court to persist in the
re-examination, as it does now, and to announce its abandonment of the

doctrine despite the lack of the premise of justiciability is to indulge in

conjecture or in unwarranted anticipation of future controversies. We should
refrain from the re-examination.
The Ombudsman's supplemental petition raised condonation for the first
time but only to support her insistence that the CA could not validly rely on the
doctrine of condonation to justify its issuance of the injunction. She maintained
then that condonation was a matter of defense to be properly raised only in
the appropriate administrative proceeding, viz.:
6. It must be further emphasized that the condonation doctrine
is irrelevant in the Ombudsman's determination of whether the
evidence of guilt is strong in issuing preventive suspension orders.
Said doctrine does not go into the heart of subject-matter jurisdiction.
Neither can it oust the Ombudsman of her jurisdiction which she has
already acquired. Private respondent's claim of condonation doctrine is
equally a matter of defense which, like any other defense, could be
raised in the proper pleading, could be rebutted, and could be waived.
As a defense, condonation should be passed upon after a
decision on the administrative proceedings, not this early in the
proceeding.
7. The condonation doctrine, however, cannot abate the
issuance of a preventive suspension order, precisely because an order
of preventive suspension does not render a respondent
administratively liable. A respondent may be preventively suspended,
yet may be exonerated in the end.
8. At all events, there is no condonation because private
respondent committed the acts subject of the complaint after his reelection in 2013, as was argued by petition in public respondent Court
of Appeals.
9. As mentioned earlier, there is no condonation. The assailed
act (i.e., payment), by private respondent's own admission during the
proceedings before public respondent Court of Appeals, took place
during the period of June and July 2013, which was after his re-election
in May 2013. 1

The Ombudsman again discussed the doctrine of condonation at some

length in her Memorandum as the fourth and last argument presented on the
issue of the propriety of the temporary restraining order and the writ of
preliminary injunction. 2 She reiterated, however, that the doctrine was only a
matter of defense that was relevant only in imposing an administrative penalty
on the respondent public elective official, to wit:
SICDAa

165. Thus, in deciding that the evidence of respondent Binay's

guilt is strong, petitioner did not take into consideration the so-called
"condonation doctrine" the way respondent Court of Appeals did in its
Third Resolution. The condonation doctrine is applicable and relevant
only to the imposition of an administrative penalty, not to the issuance
of a preventive suspension, the latter being merely a preliminary step in
an administrative investigation.
166. Since a preventive suspension does not hold a public
officer liable, it will not be affected by any "condonation" that the
electorate may extend to the public officer. Verily, for purposes of aiding
an investigation, a public officer may be preventively suspended even
as, ultimately, he or she will be exonerated from administrative liability
due to the condonation doctrine. CONDONATION IS A MATTER OF
DEFENSE to be positively alleged and to be weighed according to
the evidence during the administrative proceedings, and not at the
very preliminary stage thereof. 3

I agree with the Ombudsman. The question of grave abuse of discretion

on the part of the CA could be settled not by re-examining and overturning the
doctrine of condonation but by reference to Section 24 of the Republic Act No.
6770. It would be plain error for us to determine whether the Court of Appeals
(CA) gravely abused its discretion or not on the basis of the doctrine of
condonation.
The general investigatory power of the Ombudsman is decreed by
Section 13 (1), Article XI of the 1987 Constitution, 4 while her statutory
mandate to act on administrative complaints is founded on Section 19
of Republic Act No. 6770, viz.:

Section 19. Administrative complaints. The Ombudsman shall

act on all complaints relating, but not limited, to acts or omissions
which:
1. Are contrary to law or regulation;
2. Are unreasonable, unfair, oppressive or discriminatory;
3. Are inconsistent with the general course of an agency's
functions, though in accordance with law;
4. Proceed from a mistake of law or an arbitrary ascertainment
of facts;
5. Are in the exercise of discretionary powers but for an
improper purpose; or
6. Are otherwise irregular, immoral or devoid of justification.

In line with the power to investigate administrative cases, the

Ombudsman is vested with the authority to preventively suspend respondent
public officials and employees pursuant to Section 24 of Republic Act No.
6770, which provides:
Section 24. Preventive Suspension. The Ombudsman or his
Deputy may preventively suspend any officer or employee under his
authority pending an investigation, if in his judgment the evidence of
guilt is strong, and (a) the charge against such officer or employee
involves dishonesty, oppression or grave misconduct or neglect in the
performance of duty; (b) the charges would warrant removal from the
service; or (c) the respondent's continued stay in office may prejudice
the case filed against him.
The preventive suspension shall continue until the case is
terminated by the Office of the Ombudsman but not more than six (6)
months, without pay, except when the delay in the disposition of the
case by the Office of the Ombudsman is due to the fault, negligence or
petition of the respondent, in which case the period of such delay shall
not be counted in computing the period of suspension herein provided.

It is important to note, however, that the Ombudsman has no authority

to issue the preventive suspension order in connection with criminal

investigations of government officials or employees because such authority

rests in the courts in which the criminal cases are filed. 5
Under Section 24, supra, two requisites must concur to render the
preventive suspension order valid. The first requisite is unique because it can
be satisfied in only one way, which is that the evidence of guilt is strong in the
judgment of the Ombudsman or the Deputy Ombudsman. But the second
requisite may be satisfied in three different ways, namely: (1) that the offense
charged involves dishonesty, oppression or grave misconduct or neglect in the
performance of duty; or (2) the charge would warrant removal from the
service; or (3) the respondent's continued stay in office may prejudice the
case filed against him or her. 6
Respondent Jejomar Erwin S. Binay, Jr., along with other officers and
employees of the City of Makati, were administratively charged in the Office of
the Ombudsman with grave misconduct, serious dishonesty, and conduct
prejudicial to the best interest of the service. 7 In her joint order dated March
10, 2015, the Ombudsman stated that the requisites for the issuance of the
preventive suspension order against Binay, Jr. and his co-respondents were
satisfied, specifically:
The first requisite is present in these cases, as shown by the
supporting evidence attached as Annexes to the Complaint. These
Annexes include, among other things, sworn statements
of alleged losing bidders and of some members of the Makati City BAC
attesting to the irregularities in the subject procurement; documents
negating the purported publication of bids; and disbursement vouchers,
checks, and official receipts showing disbursement of public funds by
the city government.
As regard the second requisite, all the circumstances
enumerated therein are likewise present. The Complaint charges
respondents with Grave Misconduct, Serious Dishonesty and Conduct
Prejudicial to the Best Interest of the Service. If proven true, they
constitute grounds for removal from public service under the Revised
Rules on Administrative Cases in the Civil Service. Moreover, since the
respondents' respective positions give them access to public records
and influence on possible witnesses, respondents' continued stay in

office may prejudice the cases filed against them. Thus, their
preventive suspension without pay for a period of six (6) months is in
order.
DHIcET

When he assailed the preventive suspension order by petition

for certiorari in the CA, Binay, Jr. alleged that the preventive suspension order
was illegal and issued with grave abuse of discretion because: (1) it
contravened well-settled jurisprudence applying the doctrine of condonation;
and (2) evidence of his guilt was not strong. He prayed that a temporary
restraining order or writ of preliminary injunction be issued to enjoin the
implementation of the preventive suspension order.
The CA heeded Binay, Jr.'s prayer for injunctive reliefs chiefly on the
basis of the doctrine of condonation. In the resolution promulgated on March
16, 2015, the CA, citing the pronouncement in Garcia, Jr. v. Court of
Appeals, 8 granted Binay, Jr.'s application for the temporary restraining order,
holding as follows:
In Garcia v. Court of Appeals (GR No. 185132, April 24, 2009),
the Supreme Court held that suspension from office of an elective
official, whether as a preventive measure or as a penalty will
undeservedly deprive the electorate of the services of the person they
have conscientiously chosen and voted into office.
The Supreme Court in said case likewise found serious and
urgent the question, among other matters, of whether the alleged acts
were committed in the previous term of office of petitioner therein. This
is because if it were established that the acts subject of the
administrative complaint were indeed committed during petitioner's
prior term, then following settled jurisprudence, he can no longer be
administratively charged. It further declared imperative on the part of
the appellate court, as soon as it was apprised of the said considerable
grounds, to issue an injunctive writ so as not to render moot, nugatory
and
ineffectual
the
resolution
of
the
issues
in
the certiorari petition. (Garcia, supra)
The Supreme Court also declared that it would have been more
prudent on the part of the CA, on account of the extreme urgency of
the matter and the seriousness of the issues raised in

the certiorari petition, to issue a TRO while it awaits the respective

comments of the respondents and while it judiciously contemplates on
whether or not to issue a writ of preliminary injunction. It pointed out
that the basic purpose of a restraining order is to preserve the status
quo until the hearing of the application for preliminary injunction. That,
it is a preservative remedy for the protection of substantive rights and
interests. (Garcia, supra)
In view of the seriousness of the issues raised in the Petition
for Certiorari and the possible repercussions on the electorate who will
unquestionably be affected by suspension of their elective official, the
Court resolves to grant petitioner's prayer for a Temporary
Restraining Order for a period of sixty (60) days from notice
hereof, conditioned upon the posting by petitioner of a bond in
the
amount
of
FIVE
HUNDRED
THOUSAND
PESOS
(P500,000.00). 9

In ultimately granting the writ of preliminary injunction through its April 6,

2015 resolution, the CA, relying on the doctrine of condonation adopted
in Garcia,
Jr.; Joson
III v.
Court
of
Appeals; 10 Aguinaldo
v.
Santos; 11 and Salalima v. Guingona, Jr., 12 explained:
Garcia was simply an echo of teachings in Joson v. Court of
Appeals (G.R. No. 160652, February 13, 2006) where the High Court
declared that suspension from office of an elective official would
deprive the electorate of the services of the person they have voted
into office.
Along this line, the concept of condonation, as advocated by
petitioner and opposed by public respondent Ombudsman, will assume
resonance.
Premised
on Aguinaldo, Salalima and Garcia, petitioner
asserted that the public respondent Ombudsman can hardly impose
preventive suspension of petitioner, given his election in 2010 and reelection in 2013 as Makati City Mayor, relative to his perceived illegal
participation in anomalous activities for the Makati City Hall Building II
project from 2007 to 2013.
xxx xxx xxx

To reiterate, there was no disagreement that petitioner was

elected in 2010 and re-elected as City Mayor of Makati in 2013. The
acts constitutive of the charges in the Complaint pertained to events
from November 8, 2007, when City Ordinance No. 2007-A-015
appropriated P1,240,000,000.00 as supplemental budget for 2007.
From this budget, P400,000,000.00 was allocated for the parking
building. It was allegedly during this time that a Negotiated Contract for
the architectural and engineering services were negotiated and
approved. Disbursements allegedly favored Hilmarc and MANA amidst
irregularities in the bidding process during the term of petitioner as City
Mayor of Makati.
Yet, to subscribe to public respondent Ombudsman's
submission that condonation can only be appreciated by the
investigating body after it is ventilated as an exculpation by petitioner
and considered solely by public respondent, following the exercise of
its investigatory power, will ignore the Court's constitutional power and
duty to evaluate the factual and legal foundations for, nay, impediments
to, a preventive suspension in an administrative case. 13

In my view, however, the CA erroneously banked on the

pronouncements in Garcia, Jr., Joson III, Aguinaldo, and Salalima to espouse
the doctrine of condonation as the basis to issue the injunctive writs under its
resolutions promulgated on March 16, 2015 and April 6, 2015. In
both Aguinaldo and Salalima, the Court applied the doctrine of condonation to
avoid the imposition of administrative liability upon re-elected public officials.
Specifically, the Court held in Aguinaldothat:
HcDSaT

Petitioner's re-election to the position of Governor of Cagayan

has rendered the administrative case pending before Us moot and
academic. It appears that after the canvassing of votes, petitioner
garnered the most number of votes among the candidates for governor
of Cagayan province. . . .
xxx xxx xxx

Clearly then, the rule is that a public official cannot be removed for
administrative misconduct committed during a prior term, since his re-election
to office operates as a condonation of the officer's previous misconduct to the

extent of cutting off the right to remove him therefor. The foregoing rule,
however, finds no application to criminal cases pending against petitioner for
acts he may have committed during the failed coup. 14
while in Salalima, the Court maintained that:
. . . [A]ny administrative liability which petitioner Salalima might
have incurred in the execution of the retainer contract in O.P. Case No.
5469 and the incidents related therewith and in the execution on 6
March 1992 of a contract for additional repair and rehabilitation works
for the Tabaco Public Market in O.P. Case No. 5450 are deemed
extinguished by his reelection in the 11 May 1992 synchronized
elections. So are the liabilities, if any, of petitioner members of the
Sangguniang Panlalawigan ng Albay, who signed Resolution No.
129 authorizing petitioner Salalima to enter into the retainer contract in
question and who were reelected in the 1992 elections. This is,
however, without prejudice to the institution of appropriate civil and
criminal cases as may be warranted by the attendant circumstances. . .
. 15

It is clear to me that, based on the language and the factual milieu

of Aguinaldo and Salalima, which both cited Pascual v. Provincial Board of
Nueva Ecija, 16and of other akin rulings, 17 condonation shall apply only in
case of the re-election of a public officer who is sought to be permanently
removed from office as a result of his misconduct, not while such public officer
is undergoing investigation. Condonation necessarily implies that the
condoned act has already been found to have been committed by the public
officer. Hence, condonation applies to the penalty or punishment
imposed after the conduct of an administrative investigation. Under the
circumstances, the pronouncements in Aguinaldo, Salalima and the others
could not be applicable to the preventive suspension order issued to Binay, Jr.
pending his administrative investigation because preventive suspension
pending the conduct of an investigation was not yet a penalty in itself, but a
mere measure of precaution to enable the disciplining authority to investigate
the charges by precluding the respondent from influencing the witnesses
against him. 18

It is worth emphasis that preventive suspension is distinct from the

penalty of suspension. The former is imposed on a public official during the
investigation while the latter, as a penalty, is served after the final disposition
of the case. 19 The former is not a punishment or penalty for misconduct in
office, but a merely preventive measure, or a preliminary step in the
administrative investigation. 20
As I see it, the CA misconstrued the milieu in Garcia, Jr. and Joson
III as an application of the doctrine of condonation. The Court notably stated
in Garcia, Jr. andJoson III that "suspension from office of an elective official
would deprive the electorate of the services of the person they voted into
office" in the context of determining the propriety of the issuance of the
preventive suspension order. In other words, the statement only served to
remind the Ombudsman to issue the preventive suspension orders with
utmost caution in view of the gravity of the effects of suspending an incumbent
elective local official. Hence, Garcia, Jr. and Joson III did not apply the
doctrine of condonation.
I further underscore that the CA was then only resolving Binay, Jr.'s
application for injunctive reliefs against the preventive suspension order
issued by the Ombudsman. At that point, the CA's application of the doctrine
of condonation was irrelevant and unnecessary.
A preliminary injunction is an order granted at any stage of an action
prior to the judgment or final order requiring a party or a court, agency or a
person to refrain from a particular act or acts. 21 The requirements for the
issuance of a writ of preliminary injunction or temporary restraining order are
clearly set forth in Section 3, Rule 58 of the Rules of Court. 22 The sole
objective of the writ of preliminary injunction is to preserve the status quo until
the merits of the case can be heard fully. The writ of preliminary injunction is
generally based solely on initial and incomplete evidence; 23 hence, it should
not determine the merits of a case, or decide controverted facts, for, being a
preventive remedy, it only seeks to prevent threatened wrong, further injury,
and irreparable harm or injustice until the rights of the parties can be
settled. 24 As held in Saulog v. Court of Appeals, 25 it is sufficient that:

. . . for the court to act, there must be an existing basis of facts

affording a present right which is directly threatened by an act sought
to be enjoined. And while a clear showing of the right claimed is
necessary, its existence need not be conclusively established. In fact,
the evidence to be submitted to justify preliminary injunction at the
hearing thereon need not be conclusive or complete but need only be a
sampling intended merely to give the court an idea of the justification
for the preliminary injunction pending the decision of the case on the
merits. This should really be so since our concern here involves only
the proprietary of the preliminary injunction and not the merits of the
case still pending with the trial court.
Thus, to be entitled to the writ of preliminary injunction, the
private respondent needs only to show that it has the ostensible
right to the final relief prayed for in its complaint . . . . (bold
emphasis supplied.)

By relying on the doctrine of condonation, therefore, the CA went

beyond the parameters for determining whether or not to issue the injunctive
writ. To recall, Binay, Jr. had filed his petition for certiorari in the CA primarily to
assail the validity of the preventive suspension order. What was raised for the
CA to determine was whether or not the Ombudsman satisfactorily complied
with the requisites imposed by Section 24 of Republic Act No. 6770 to
establish that Binay, Jr. and his co-respondents had the ostensible right to the
final relief prayed for in their petition, which was the nullification or lifting of the
preventive suspension order. In this regard, the CA plainly exceeded its
jurisdiction.
In the meanwhile, the Ombudsman found Binay, Jr. administratively
liable, and dismissed him from the service. By such dismissal, the questions
raised against the CA's issuance of the writ of preliminary injunction against
the Ombudsman were rendered moot and academic. I join the Majority in
saying that the preventive suspension order, being an ancillary issuance, was
dissolved upon the Ombudsman's resolution of the administrative charges on
the merits. Thus, to dwell on the preventive suspension of Binay, Jr. and his
co-respondents any further would be superfluous, for, as the Court said
in Philippine Savings Bank v. Senate Impeachment Court: 26

It is a rule of universal application that courts of justice

constituted to pass upon substantial rights will not consider questions
in which no actual interests are involved; they decline jurisdiction of
moot cases. And where the issue has become moot and academic,
there is no justiciable controversy, so that a declaration thereon would
be of no practical use or value. There is no actual substantial relief
to which petitioners would be entitled and which would be
negated by the dismissal of the petition.

In short, the Court should excuse itself from exercising jurisdiction

because the main case, the administrative proceeding against the
respondents, has already been decided by the Ombudsman on the merits.
IN VIEW OF THE FOREGOING, I VOTE to PARTIALLY GRANT the
petition for certiorari and prohibition, and, accordingly, SET ASIDE the
Resolution promulgated on April 6, 2015 by the Court of Appeals.
I further VOTE to DISSOLVE the writ of preliminary injunction issued on
April 8, 2015 in C.A.-G.R. SP No. 139453; and to AFFIRM the Resolution
promulgated on March 20, 2015 in C.A.-G.R. SP No. 139504.
|||

(Carpio-Morales v. Court of Appeals, G.R. Nos. 217126-27, [November 10,

2015])

12.
[G.R. No. 175289. August 31, 2011.]
CRISOSTOMO VILLARIN and ANIANO
LATAYADA, petitioners, vs. PEOPLE OF THE
PHILIPPINES, respondent.
DECISION
DEL CASTILLO, J :
p

Mere possession of timber without the legal documents required under

forest laws and regulations makes one automatically liable of violation of
Section 68, Presidential Decree (P.D.) No. 705, 1 as amended. Lack of
criminal intent is not a valid defense.
cda

This petition for review on certiorari seeks to reverse the June 28, 2005
Decision 2 of the Court of Appeals (CA) in CA-G.R. CR No. 26720 which
affirmed in all respects the Judgment 3 of the Regional Trial Court (RTC),
Branch 38, Cagayan De Oro City, finding petitioners guilty beyond reasonable
doubt of violation of Section 68, P.D. No. 705, as amended. Likewise assailed
in this petition is the September 22, 2006 Resolution 4 denying petitioners'
Motion for Reconsideration. 5
Factual Antecedents
In a Criminal Complaint 6 filed before the Municipal Trial Court in Cities,
Branch 4, Cagayan de Oro City by Marcelino B. Pioquinto (Pioquinto), Chief of
the Forest Protection and Law Enforcement Unit under the TL Strike Force
Team of Department of Environment and Natural Resources (DENR),
petitioner
Aniano
Latayada
(Latayada)
and
three
others
namely, Barangay Captain Camilo Sudaria (Sudaria) of Tagpangi, Cagayan de
Oro City, Marlon Baillo (Baillo) and Cipriano Boyatac (Boyatac), were charged
with violation of Section 68, P.D. No. 705 as amended by Executive Order No.
277. 7
Subsequently, however, the Office of the City Prosecutor of Cagayan de
Oro City issued a Resolution 8 dated March 13, 1996 recommending the filing
of an Information for the aforesaid charge not only against Latayada, Baillo
and Boyatac but also against petitioner Crisostomo Villarin (Villarin),
then Barangay Captain of Pagalungan, Cagayan de Oro City. The dismissal of
the complaint against Sudaria was likewise recommended. Said Resolution
was then approved by the Office of the Ombudsman-Mindanao through a
Resolution 9 dated May 9, 1996 ordering the filing of the Information in the
RTC of Cagayan de Oro City.
Thus, on October 29, 1996, an Information 10 was filed against
petitioners Villarin and Latayada and their co-accused Baillo and Boyatac, for
violation of Section 68, P.D. No. 705 as follows:

That on or about January 13, 1996, in Pagalungan, Cagayan de Oro

City, Philippines, and within the jurisdiction of this Honorable Court,
pursuant to RA 7975, the accused, Crisostomo Villarin, a public officer
being the Barangay Captain of Pagalungan, this City, with salary grade
below 27, taking advantage of his official position and committing the
offense in relation to his office, and the other above-named accused, all
private individuals, namely: Marlon Baillo, Cipriano Boyatac, and Aniano
Latayada, confederating and mutually helping one another did then and
there, willfully, unlawfully and feloniously gather and possess sixty-three
(63) pieces flitches of varying sizes belonging to the Apitong specie with
a total volume of Four Thousand Three Hundred Twenty Six (4,326)
board feet valued at P108,150.00, without any authority and supporting
documents as required under existing forest laws and regulation to the
damage and prejudice of the government.
CONTRARY TO LAW. 11

On January 14, 1997, Villarin, Boyatac and Baillo, filed a Motion for
Reinvestigation. 12 They alleged that the Joint Affidavit 13 of the personnel of
the DENR which became one of the bases in filing the Information never
mentioned Villarin as one of the perpetrators of the crime while the
accusations against Baillo and Boyatac were not based on the personal
knowledge of the affiants. They also asserted that their indictment was based
on polluted sources, consisting of the sworn statements of witnesses like
Latayada and Sudaria, who both appeared to have participated in the
commission of the crime charged.
Instead of resolving the Motion for Reinvestigation, the RTC, in its
Order 14 dated January 27, 1997, directed Villarin, Boyatac, and Baillo to file
their Motion for Reinvestigation with the Office of the Ombudsman-Mindanao,
it being the entity which filed the Information in Court. On March 31, 1997,
only Villarin filed a Petition for Reinvestigation 15 but same was, however,
denied by the Office of the Ombudsman-Mindanao in an Order 16 dated May
15, 1997 because the grounds relied upon were not based on newly
discovered evidence or errors of fact, law or irregularities that are prejudicial to
the interest of the movants, pursuant to Administrative Order No. 07 or
the Rules of Procedure of the Office of the Ombudsman in Criminal Cases.

The Office of the Ombudsman-Mindanao likewise opined that Villarin was

directly implicated by Latayada, his co-accused.
The RTC thus proceeded with the arraignment of the accused who
entered separate pleas of not guilty. 17 Thereafter, trial ensued.
The Version of the Prosecution
On December 31, 1995, at around five o'clock in the afternoon,
prosecution witness Roland Granada (Granada) noticed that a public utility
jeep loaded with timber stopped near his house. The driver, petitioner
Latayada, was accompanied by four to five other persons, one of whom was
Boyatac while the rest could not be identified by Granada. 18 They alighted
from the jeep and unloaded the timber 10 to 15 meters away from the Batinay
bridge at Barangay Pagalungan, Cagayan De Oro City. Another prosecution
witness, Pastor Pansacala (Pansacala), also noticed the jeep with plate
number MBB 226 and owned by Sudaria, loaded with timber. 19 Being then
the president of a community-based organization which serves as a watchdog
of illegal cutting of trees, 20 Pansacala even ordered a certain Mario Bael to
count the timber. 21
ESTaHC

At six o'clock in the evening of the same day, Barangay Captain

Angeles Alarcon (Alarcon) 22 noticed that the pile of timber was already
placed near the bridge. Since she had no knowledge of any scheduled repair
of the Batinay bridge she was surprised to discover that the timber would be
used for the repair. After inquiring from the people living near the bridge, she
learned that Latayada and Boyatac delivered the timber. 23
Another prosecution witness, Ariel Palanga (Palanga), testified that at
seven o'clock in the morning of January 1, 1996, Boyatac bought a stick of
cigarette from his store and requested him to cover the pile of timber near the
bridge for a fee. Palanga acceded and covered the pile with coconut leaves. 24
On January 13, 1996, at around ten o'clock in the morning, prosecution
witness Juan Casenas (Casenas), a radio and TV personality of RMN-TV8,
took footages of the timber 25 hidden and covered by coconut leaves.
Casenas also took footages of more logs inside a bodega at the other side of

the bridge. In the following evening, the footages were shown in a news
program on television.
On the same day, members of the DENR Region 10 Strike Force Team
measured the timber which consisted of 63 pieces of Apitong flitches and
determined that it totaled 4,326 board feet 26 and subsequently entrusted the
same to Alarcon for safekeeping.
Upon further investigation, it was learned that the timber was
requisitioned by Villarin, who was then Barangay Captain of Pagulangan,
Cagayan de Oro City. Villarin gave Sudaria the specifications for the
requisitioned timber. Thereafter, Boyatac informed Villarin that the timber was
already delivered on December 31, 1995. 27
On January 18, 1996, Felix Vera Cruz (Vera Cruz), a security guard at
the DENR Region 10 Office, received and signed for the confiscated timber
since the property custodian at that time was not around.
The filing of the aforestated Information followed.
The Version of the Defense
In response to the clamor of the residents of Barangays Tampangan,
Pigsag-an, Tuburan and Taglinao, all in Cagayan De Oro City, Villarin, decided
to repair the impassable Batinay bridge. The project was allegedly with the
concurrence of the Barangay Council.
Pressured to immediately commence the needed repairs, Villarin
commissioned Boyatac to inquire from Sudaria about the availability of timber
without first informing the City Engineer. Sudaria asked for the specifications
which Villarin gave. Villarin then asked Baillo and Boyatac to attend to the
same. When the timber was already available, it was transported from
Tagpangi to Batinay. However, the timber flitches were seized by the DENR
Strike Force Team and taken to its office where they were received by Vera
Cruz, the security guard on duty.
Ruling of the Regional Trial Court
In its Memorandum filed before the trial court, the defense notified the
court of Boyatac's demise. 28 However, the trial court did not act on such

notice. Instead, it proceeded to rule on the culpability of Boyatac. Thus, in its

Judgment, the trial court found herein petitioners and the deceased Boyatac
guilty as charged. On the other hand, it found the evidence against Baillo
insufficient. The dispositive portion of the Judgment reads:
WHEREFORE, in view of the foregoing findings, judgment is hereby
rendered finding the accused Crisostomo Villarin, Cipriano Boyatac and
Aniano Latayada guilty beyond reasonable doubt of violating Section 68
of Presidential Decree No. 705 as amended, and hereby sentences each
of them to suffer an indeterminate sentence of twelve (12) years
of prision mayor as minimum to seventeen (17) years of reclusion
temporal as maximum.
Accused Marlon Baillo is hereby acquitted for lack of evidence.
SO ORDERED. 29

AHCaED

In reaching said conclusions, the RTC noted that:

Without an iota of doubt, accused Crisostomo Villarin, being then a
Barangay Captain of Pagalungan, Cagayan de Oro City, was the one
who procured the subject flitches, while accused Aniano Latayada and
Cipriano Boyatac mutually helped him and each other by transporting the
flitches from Sitio Batinay to the Pagalungan Bridge. The accused would
like to impress upon the Court that the subject flitches were intended for
the repair of the Pagalungan Bridge and were acquired by virtue of
Barangay Resolution No. 110 of Barangay Pagalungan. The Court is not
impressed by this lame excuse. There is no dispute that the flitches were
intended for the repair of the bridge. The Court finds it a laudable motive.
The fact remains though that the said forest products were obtained
without the necessary authority and legal documents required under
existing forest laws and regulations. 30

Petitioners filed a Motion for Reconsideration

the RTC in its Order 32 dated August 20, 2002.

31

which was denied by

Ruling of the Court of Appeals

Petitioners filed an appeal which was denied by the CA in its Decision
dated June 28, 2005. The dispositive portion of which reads:

WHEREFORE, in view of all the foregoing, the judgment of the court a

quo finding [d]efendant-[a]ppellants Crisostomo Villarin, Cipriano
Boyatac and Aniano Latayada GUILTY beyond reasonable doubt for
violating Sec. 68 of Presidential Decree 705 is hereby AFFIRMED in
toto. No pronouncement as to cost.
SO ORDERED. 33

Petitioners filed a Motion for Reconsideration 34 which the appellate

court denied for lack of merit in its Resolution 35 promulgated on September
22, 2006.
Issues
Undeterred, petitioners filed the instant petition raising the following issues:
1. WHETHER . . . THE COURT OF APPEALS[,] ON [THE] MATTER OF
PRELIMINARY INVESTIGATION[,] DECIDED NOT IN ACCORD
WITH JURISPRUDENCE OF THE SUPREME COURT;
2. WHETHER . . . THE COURT OF APPEALS DEPARTED FROM
WHAT THE SUPREME COURT HAS ALWAYS BEEN SAYING,
THAT, TO CONVICT AN ACCUSED ALL ELEMENTS OF THE
CRIME MUST BE PROVEN BEYOND REASONABLE DOUBT
and;
3. WHETHER . . . THE COURT OF APPEALS[,] IN AFFIRMING THE
PENALTY IMPOSED BY THE COURT A QUO[,] DEPARTED
FROM JURISPRUDENCE THAT EVEN IN CRIMES [INVOLVING]
VIOLATION OF SPECIAL LAWS[,] SPECIAL CONSIDERATION
SHOULD BE GIVEN TO CIRCUMSTANCES THAT [CAN BE
CONSIDERED AS MITIGATING HAD THE VIOLATION BEEN
PENALIZED UNDER THE REVISED PENAL CODE, IN ORDER
TO REDUCE PENALTY]. 36

Petitioners argue that the refusal of the Ombudsman to conduct a

reinvestigation is tantamount to a denial of the right to due process. As Villarin
was indicted in the Information despite his not being included in the criminal
complaint filed by Pioquinto of the TL Strike Force Team of the DENR, they
claim that he was not afforded a preliminary investigation. They also bewail
the fact that persons who appear to be equally guilty, such as Sudaria, have

not been included in the Information. Hence, they argue that the Ombudsman
acted with grave abuse of discretion in denying their petition for reinvestigation
because it deprived Villarin of his right to preliminary investigation and in
refusing and to equally prosecute the guilty. They contend that the
Ombudsman
should
not
have
relied
on
the
prosecutor's
Certification 37 contained in the Information to the effect that a preliminary
investigation was conducted in the case.
Moreover, petitioners contend that the evidence was insufficient to prove
their guilt beyond reasonable doubt since they had no intention to possess the
timber and dispose of it for personal gain. They likewise claim that there was
failure on the part of the prosecution to present the timber, which were the
object of the offense.
Our Ruling
The petition is unmeritorious.
Villarin was properly afforded his right
to due process.
Records show that the investigating prosecutor received a criminal complaint
charging Sudaria, Latayada, Baillo and Boyatac with violation of Section 68
of P.D. No. 705, as amended. 38 The said complaint did not state the known
addresses of the accused. Neither was the notarized joint-affidavit of the
complainants attached thereto. The subpoena issued to the accused and the
copy of their counter-affidavits were also not part of the record. Moreover, the
complaint did not include Villarin as a respondent. However, said infirmities do
not constitute denial of due process particularly on the part of Villarin.
DTEAHI

It is evidently clear from the Resolution dated March 13, 1996 of the Office of the
City Prosecutor that Villarin and all the accused participated in the scheduled
preliminary investigation that was conducted prior to the filing of the criminal
case. 39 They knew about the filing of the complaint and even denied any
involvement in the illegal cutting of timber. They were also given the opportunity
to submit countervailing evidence to convince the investigating prosecutor of their
innocence.

Foregoing findings considered, there is no factual basis to the assertion that

Villarin was not afforded a preliminary investigation. Accordingly, we find no grave
abuse of discretion on the part of the Office of the Ombudsman-Mindanao in
denying Villarin's motion for reconsideration. It validly relied on the certification
contained in the Information that a preliminary investigation was properly
conducted in this case. The certification was made under oath by no less than
the public prosecutor, a public officer who is presumed to have regularly
performed his official duty. 40 Besides, it aptly noted that "Villarin was implicated
by . . . Latayada in his affidavit dated January 22, 1996 before Marcelino B.
Pioquinto, Chief, Forest Protection and Law Enforcement Unit. The denial of
Villarin cannot prevail over the declaration of witnesses." 41
Moreover, the absence of a proper preliminary investigation must be timely raised
and must not have been waived. This is to allow the trial court to hold the case in
abeyance and conduct its own investigation or require the prosecutor to hold a
reinvestigation, which, necessarily "involves a re-examination and re-evaluation of
the evidence already submitted by the complainant and the accused, as well as
the initial finding of probable cause which led to the filing of the Informations after
the requisite preliminary investigation." 42
Here, it is conceded that Villarin raised the issue of lack of a preliminary
investigation in his Motion for Reinvestigation. However, when the Ombudsman
denied the motion, he never raised this issue again. He accepted the
Ombudsman's verdict, entered a plea of not guilty during his arraignment and
actively participated in the trial on the merits by attending the scheduled
hearings, conducting cross-examinations and testifying on his own behalf. It was
only after the trial court rendered judgment against him that he once again
assailed the conduct of the preliminary investigation in the Motion for
Reconsideration. 43 Whatever argument Villarin may have regarding the alleged
absence of a preliminary investigation has therefore been mooted. By entering
his plea, and actively participating in the trial, he is deemed to have waived his
right to preliminary investigation.
Petitioners also contend that Sudaria should also have been included as a
principal in the commission of the offense. However, whether Sudaria should or
should not be included as co-accused can no longer be raised on appeal. Any

right that the petitioners may have in questioning the non-inclusion of Sudaria in
the Information should have been raised in a motion for reconsideration of the
March 13, 1996 Resolution of the Office of the City Prosecutor which
recommended the dismissal of the complaint against Sudaria. 44 Having failed to
avail of the proper procedural remedy, they are now estopped from assailing his
non-inclusion.
Two Offenses Penalized Under Sec. 68
of Presidential Decree No. 705.
Section 68 of P.D. No. 705, as amended, provides:
Section 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 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 the 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.

"There are two distinct and separate offenses punished under Section
68 of P.D. No. 705, to wit:
(1) Cutting, gathering, collecting and removing timber or other
forest products from any forest land, or timber from alienable
or disposable public land, or from private land without any
authorization; and
IESTcD

(2) Possession of timber or other forest products without the legal

documents required under existing forest laws and
regulations." 45

The Information charged petitioners with the second offense which is

consummated by the mere possession of forest products without the proper
documents.
We reviewed the records and hold that the prosecution had discharged
the burden of proving all the elements of the offense charged. The evidence of
the prosecution proved beyond reasonable doubt that petitioners were in
custody of timber without the necessary legal documents. Incidentally, we note
that several transcripts of stenographic notes (TSNs) were not submitted by
the trial court. No explanation was provided for these missing TSNs.
Notwithstanding the incomplete TSNs, we still find that the prosecution was
able to prove beyond reasonable doubt petitioners' culpability.
The prosecution adduced several documents to prove that timber was
confiscated from petitioners. It presented a Tally Sheet 46 to prove that the
DENR Strike Force Team examined the seized timber on January 13, 1996.
The number, volume and appraised value of said timber were also noted in
the Tally Sheet. Seizure receipts were also presented to prove that the
confiscated timber were placed in the custody of Alarcon 47 and eventually
taken to the DENR Office. 48 There was a photograph of the timber taken by
the television crew led by Casenas. 49
The prosecution likewise presented in evidence the testimonies of
eyewitnesses Granada and Pansacala who testified that Latayada and
Boyatac were the ones who delivered the timber. 50
More significantly, Villarin admitted that he was the one who
commissioned the procurement of the timber 51 for the repair of the Batinay
bridge. He even deputized Boyatac to negotiate with Sudaria and gave
Latayada P2,000.00 to transport the logs. Boyatac later informed him of the
delivery of timber. However, he could not present any document to show that
his possession thereof was legal and pursuant to existing forest laws and
regulations.
Relevant portions of the testimony of Villarin are as follows:
Q As Barangay Captain of Pagalungan, of course, you heard reports
prior to the incident on December 31, 1995 that Barangay Captain

Camilo Sudaria was also engaged in supplying forest products

like forest lumber?
A Yes, because I always go to Cagayan de Oro and I can always ride on
his jeepney.
Q And you were sure that information of yours was received by you and
not only by one but several persons from Barangay Tagpangi
even up to Barangay Pagalungan?
A That's true because he even has a record with the police.
Q And you learned [this] prior to January 1995?
A Yes, Sir.
Q And your information was even to the effect that Sudaria was
supplying illegally cut lumber regularly?
A What I have noticed because I always ride on his jeep wherein lumber
was being loaded, the lumber will be taken when it arrived in
Lumbia, kilometer 5.
Q Even if there were already raids being conducted to the person of
Camilo Sudaria, still he continued to load illegally cut lumber?
A. He slowed down after several arrest because maybe he was ashamed
because he was the Barangay Captain of Tagpangi.
Q And his arrest and the slackening of his activities of illegally cut lumber
occurred prior to June 1995?
A Yes, sir.
Q [In spite] of your knowledge that he is engaged [in] illegally cut[ting]
forest products, you as Barangay Captain of Pagalungan
transacted with him for the purpose of acquiring lumber [for] the
bridge at Pagalungan?
A As we rode together in his jeep, he informed me that he has some
lumber to be used to build his house and he told me he will sell it
for the repair of the bridge in Pagalungan.

Q And because of that, in addition, you sent him the specifications of

materials for the repair of the bridge in Pagalungan?
A I let Boyatac go to him and [inquire] from him if he has those
specifications.
Q And he communicated to you that he has available lumber of those
specification?
aSIETH

A Yes, because he sent to Boyatac some requirements of the

specifications and he let me sign it.
Q And after that, you closed the [deal] with Sudaria?
A Yes, because I sent somebody to him and we did not talk anymore.
Q And thereafter on December 31, 1995, according to your testimony
before, Aniano Latayada delivered the lumber flitches you ordered
on board the passenger jeep of Camilo Sudaria?
A When the specifications were given, we were informed that the lumber
were already there. So, it was delivered.
Q Who informed you that the lumber were already delivered?
A Boyatac.
Q And he is referring to those lumber placed alongside the Batinay
Bridge.
A Yes, Sir.
Q And even without personally inspecting it, you immediately paid
Latayada the compensation for the delivery of those lumber?
A There was already an advance payment for his delivery.
Q To whom did you give the advance?
A To Latayada.
Q You have not given the amount to Camilo Sudaria?
A No, Sir.

Q In fact, the money that you paid to Latayada was specifically for the
transportation of the lumber from Tagpangi to Batinay bridge?
A Yes, Sir.
PROS. GALARRITA:
Q And at that time, you paid Latayada P2,000 as payment of the
lumber?
A Yes, Sir.
COURT:
Q Did you pay Latayada?
A Yes, Sir.
Q How much?
A P2,000.
Q And you gave this to the conductor?
A Yes, Sir.
Q You told the conductor to pay the money to Latayada?
A Yes, sir.
Q What did the conductor say?
A The conductor said that the money was for the payment for the
transporting of lumber from Tagpangi. 52 (Underscoring ours.)

Violation
of
Decree
No.
malum prohibitum.

Sec.
705,

68
as

of
Presidential
amended,
is

As a special law, the nature of the offense is malum prohibitum and as

such, criminal intent is not an essential element. "However, the prosecution
must prove that petitioners had the intent to possess (animus possidendi)" the
timber. 53 "Possession, under the law, includes not only actual possession, but
also constructive possession. Actual possession exists when the [object of the

crime] is in the immediate physical control of the accused. On the other hand,
constructive possession exists when the [object of the crime] is under the
dominion and control of the accused or when he has the right to exercise
dominion and control over the place where it is found." 54
DCTHaS

There is no dispute that petitioners were in constructive possession of

the timber without the requisite legal documents. Villarin and Latayada were
personally involved in its procurement, delivery and storage without any
license or permit issued by any competent authority. Given these and
considering that the offense ismalum prohibitum, petitioners' contention that
the possession of the illegally cut timber was not for personal gain but for the
repair of said bridge is, therefore, inconsequential.
Corpus
Delicti
Commission of the Crime

is

the

Fact

of

the

Petitioners argue that their convictions were improper because

the corpus delicti had not been established. They assert that the failure to
present the confiscated timber in court was fatal to the cause of the
prosecution.
We disagree. "[C]orpus delicti refers to the fact of the commission of the
crime charged or to the body or substance of the crime. In its legal sense, it
does not refer to the ransom money in the crime of kidnapping for ransom or
to the body of the person murdered" 55 or, in this case, to the seized timber.
"Since the corpus delicti is the fact of the commission of the crime, this Court
has ruled that even a single witness' uncorroborated testimony, if credible,
may suffice to prove it and warrant a conviction therefor. Corpus delicti may
even be established by circumstantial evidence." 56
Here, the trial court and the CA held that the corpus delicti was
established by the documentary and testimonial evidence on record. The Tally
Sheet, Seizure Receipts issued by the DENR and photograph proved the
existence of the timber and its confiscation. The testimonies of the petitioners
themselves stating in no uncertain terms the manner in which they
consummated the offense they were charged with were likewise crucial to
their conviction.

We find no reason to deviate from these findings since it has been

established that factual findings of a trial court are binding on us, absent any
showing that it overlooked or misinterpreted facts or circumstances of weight
and substance. 57 The legal precept applies to this case in which the trial
court's findings were affirmed by the appellate court. 58
The Proper Penalty
Violation of Section 68 of P.D. No. 705, as amended, is penalized as
qualified theft under Article 310 in relation to Article 309 of the Revised Penal
Code (RPC). The pertinent portions of these provisions read:
Art. 310. Qualified Theft. The crime of theft shall be punished by the
penalties next higher by two degrees than those respectively specified in
the next preceding articles, if committed by a domestic servant, or with
grave abuse of confidence, or if the property stolen is motor vehicle, mail
matter or large cattle or consists of coconuts taken from the premises of
the plantation or fish taken from a fishpond or fishery, or if property is
taken on the occasion of fire, earthquake, typhoon, volcanic eruption, or
any calamity, vehicular accident or civil disturbance.
Art. 309. Penalties. Any person guilty of theft shall be punished by:
1. The penalty of prision mayor in its minimum and medium periods, if
the value of the thing stolen is more than 12,000 pesos but does not
exceed 22,000 pesos; but if the value of the thing stolen exceeds the
latter amount, the penalty shall be the maximum period of the one
prescribed in this paragraph, and one year for each additional ten
thousand pesos, but the total of the penalty which may be imposed shall
not exceed twenty years. In such cases, and in connection with the
accessory penalties which may be imposed and for the purpose of the
other provisions of this Code, the penalty shall be termed prision
mayor or reclusion temporal, as the case may be. . . .

The Information filed against the petitioners alleged that the 63 pieces
of timber without the requisite legal documents measuring 4,326 board feet
were valued at P108,150.00. To prove this allegation, the prosecution
presented Pioquinto to testify, among others, on this amount. Tally Sheets and
Seizure Receipts were also presented to corroborate said amount. With the

value of the timber exceeding P22,000.00, the basic penalty is prision

mayor in its minimum and medium periods to be imposed in its maximum, the
range of which is eight (8) years, eight (8) months and one (1) day to ten (10)
years. Since none of the qualifying circumstances in Article 310 of the RPC
was alleged in the Information, the penalty cannot be increased two degrees
higher.
ECTIHa

In determining the additional years of imprisonment, P22,000.00 is to be

deducted from P108,150.00, which results to P86,150.00. This remainder
must be divided by P10,000.00, disregarding any amount less than
P10,000.00. Consequently, eight (8) years must be added to the basic penalty.
Thus the maximum imposable penalty ranges from sixteen (16) years, eight
(8) months and one (1) day to eighteen (18) years of reclusion temporal.
Applying the Indeterminate Sentence Law, the minimum imposable
penalty should be taken anywhere within the range of the penalty next lower in
degree, without considering the modifying circumstances. The penalty one
degree lower from prision mayor in its minimum and medium periods is prision
correccional in its medium and maximum periods, the range of which is from
two (2) years, four (4) months and one (1) day to six (6) years. Thus, the RTC,
as affirmed by the CA, erroneously fixed the minimum period of the penalty at
twelve (12) years of prision mayor.
Finally, the case against Boyatac must be dismissed considering his
demise even before the RTC rendered its Judgment.
WHEREFORE, the petition is DENIED. The assailed Decision dated
June 28, 2005 and the Resolution dated September 22, 2006 in CA-G.R. CR
No. 26720 areAFFIRMED with the MODIFICATIONS that petitioners
Crisostomo Villarin and Aniano Latayada are each sentenced to suffer
imprisonment of two (2) years, four (4) months, and one (1) day of prision
correccional, as minimum, to sixteen (16) years, eight (8) months, and one (1)
day of reclusion temporal, as maximum. The complaint against Cipriano
Boyatac is hereby DISMISSED.
SO ORDERED.
|||

(Villarin v. People, G.R. No. 175289, [August 31, 2011], 672 PHIL 155-177)

13,
[G.R. No. 130644. March 13, 1998.]
THE MINOR FRANCISCO JUAN LARRANAGA, Represented in
this
Suit
by
his
mother,
MARGARITA
G.
LARRANAGA, petitioner, vs. COURT OF APPEALS and
PEOPLE OF THE PHILIPPINES, respondents.
The Law Firm of Raymundo A. Armovit for petitioner.
The Solicitor General for respondents.
SYNOPSIS
Members of the PNP Criminal Investigation Group (CIG) tried to arrest petitioner
without a warrant while attending a culinary class. Petitioner resisted the arrest.
Subsequently, petitioner went to the CIG headquarters in Camp Crame where he
was met by his counsel. He was allowed to go home. His counsel made a written
undertaking that he and petitioner will appear before the Prosecutor for
preliminary investigation. In the morning of September 17, 1997, Petitioner's
counsel appeared before the City Prosecutor and specifically demanded for a
regular preliminary investigation for his client which was, however, denied on the
ground that petitioner was entitled only to an inquest investigation. Charged with
Kidnapping and Serious Illegal detention, petitioner refused to enter a plea
claiming that he was not accorded a regular preliminary investigation. The trial
court ruled that petitioner waived his right thereto when he failed to appear in the
afternoon of September 17, 1997 for an inquest investigation, on which date the
Executive Judge issued a warrant for his arrest. Petitioner questions the validity
of his arrest because he was denied the right to a preliminary investigation.
SAEHaC

The right to preliminary investigation is waived when the accused fails to invoke it
before or at the time of entering a plea at arraignment. Petitioner and his counsel
demanded a regular preliminary investigation even before he was charged, and

refused to enter a plea because of absence thereof. These acts were inconsistent
with a waiver. Preliminary investigation is part of procedural due process. It
cannot be waived unless the waiver appears to be clear and informed.
The absence of a preliminary investigation will not justify petitioner's release
arrested by virtue of warrant of arrest nor nullify the information filed against
him.
CTIEac

The holding of a preliminary investigation is a function of the Executive

Department and not of the Judiciary. Petitioner and counsel should therefore
address their plea to the Department of Justice that has control and supervision
over the conduct of preliminary investigations.
SYLLABUS
1. REMEDIAL LAW; CRIMINAL PROCEDURE; ARREST WITHOUT A
WARRANT; NOT PROPER IN CASE AT BAR. It does not appear in the case
at bar that petitioner has just committed, is actually committing or is attempting to
commit an offense when the police officers tried to arrest him on September 15,
1997. In fact, petitioner was attending classes at the Center for Culinary Arts at
that time. We reject the prosecutors' argument that petitioner was actually
committing a crime at the time of the arrest since kidnapping with serious illegal
detention is a continuing crime. In the case of Parulan v. Director of Prisons cited
by the prosecutors, kidnapping with illegal detention is considered a continuing
crime where the deprivation of liberty is persistent and continuing from one place
to another. The facts show that the alleged kidnapping was committed on July 16,
1997. One of the victims, Marijoy Chiong, was found dead in Sitio Tanawan,
Barangay Guadalupe, Carcar, Cebu on July 18, 1997, while the other victim,
Jacqueline Chiong, remains missing to date. There is no showing that at the time
of the arrest on September 15, 1997, Jacqueline Chiong was being detained by
petitioner who was then residing in Quezon City. Hence, petitioner may not be
considered as continually committing the crime of kidnapping with serious illegal
detention at the time of the arrest.
SITCcE

2. ID.; ID.; PRELIMINARY INVESTIGATION; WAIVER MUST BE MADE IN

CLEAR AND UNEQUIVOCAL MANNER; NOT INFERRED BY MERE FAILURE

TO APPEAR BEFORE THE CITY PROSECUTOR. A waiver, whether express

or implied, must be made in clear and unequivocal manner. Mere failure of
petitioner and his counsel to appear before the City Prosecutor in the afternoon
of September 17, 1997 cannot be construed as a waiver of his right to preliminary
investigation, considering that petitioner has been vigorously invoking his right to
a regular preliminary investigation since the start of the proceedings before the
City Prosecutor. At 9:00 in the morning of September 17, 1997, petitioner's
counsel appeared before the City Prosecutor of Cebu and moved that petitioner
be accorded a regular preliminary investigation. The City Prosecutor, however,
denied the motion, stating that petitioner is entitled only to an inquest
investigation. Petitioner orally moved for a reconsideration, to no avail. Petitioner
assailed the decision of the City Prosecutor before the Court of Appeals on a
petition for certiorari, prohibition and mandamus. After the Court of Appeals
dismissed said petition, petitioner went to this Court, still asserting that he should
be accorded a regular preliminary investigation.
EIAaDC

3. ID.; ID.; ID.; DEEMED WAIVED WHEN ACCUSED FAILS TO INVOKE IT

BEFORE PLEA; RIGHT VIGOROUSLY ASSERTED IN CASE AT BAR. The
rule is that the right to preliminary investigation is waived when the accused fails
to invoke it before or at the time of entering a plea at arraignment. Petitioner, in
this case, has been actively and consistently demanding a regular preliminary
investigation even before he was charged in court. Also, petitioner refused to
enter a plea during the arraignment because there was a pending case in this
Court regarding his right to avail of a regular preliminary investigation. Clearly, the
acts of petitioner and his counsel are inconsistent with a waiver. Preliminary
investigation is part of procedural due process. It cannot be waived unless the
waiver appears to be clear and informed.
4. ID.; ID.; ARREST; SUBSEQUENT ISSUANCE OF WARRANT OF ARREST
AGAINST A PERSON INVALIDLY DETAINED WILL DENY HIM RIGHT TO BE
RELEASED; CASE AT BAR. We held in Sanchez v. Demetriou that the filing of
charges and the issuance of the warrant of arrest against a person invalidly
detained will cure the defect of that detention or at least deny him the right to be
released because of such defect. We hold, therefore, that petitioner's detention at

the Bagong Buhay Rehabilitation Center is legal in view of the information and
the warrant of arrest against him.
5. ID.; ID.; ID.; ABSENCE OF PRELIMINARY INVESTIGATION DOES NOT
NULLIFY INFORMATION AND WARRANT OF ARREST. The absence of a
preliminary investigation will not justify petitioner's release because such defect
did not nullify the information and the warrant of arrest against him.
6. ID.; ID.; PRELIMINARY INVESTIGATION; CHANGE OF VENUE THEREOF
LIES WITH THE EXECUTIVE DEPARTMENT. As regards petitioner's motion
to change the venue and the authority to conduct the preliminary investigation,
we are constrained to dismiss the same for lack of jurisdiction. The holding of a
preliminary investigation is a function of the Executive Department and not of the
Judiciary. Petitioner should therefore address their plea to the Department of
Justice that has control and supervision over the conduct of preliminary
investigations.
DcTAIH

7. ID.; ID.; ID.; PREJUDICIAL PUBLICITY MUST CAUSE UNDUE INFLUENCE.

Nonetheless, even if the Court had jurisdiction over the issue, petitioner's
motion should still be denied because it failed to allege and prove that the City
Prosecutor of Cebu has been actually affected by the publicity. We held in Webb
v. De Leon: Be that as it may, we recognize that pervasive and prejudicial
publicity under certain circumstances can deprive an accused of his due process
right to fair trial. Thus, in Martelino, et al. vs. Alejandro, et al., we held that to
warrant a finding of prejudicial publicity there must be allegation and proof that
the judges have been unduly influenced, not simply that they might be, by the
barrage of publicity.
8. ID.; SPECIAL CIVIL ACTIONS; CONTEMPT; DELIBERATELY WITHHOLDING
EVIDENCE FROM THE HIGH TRIBUNAL; LACK OF CONCRETE EVIDENCE IN
CASE AT BAR. We likewise dismiss the complaint filed by Judge Martin A.
Ocampo against Attorneys Raymundo A. Armovit, Ramon R. Teleron and
Bernardito Florido for lack of concrete evidence to prove that said lawyers
deliberately withheld from the Court the orders he issued with intent to mislead
the Court.

9. ID.; SPECIAL PROCEEDINGS; HABEAS CORPUS; MOTHER OF PERSON

DETAINED, PROPER PARTY. We also deny the motion of the prosecutors to
dismiss the petition on the ground that it was not filed by the proper party. The
prosecutors argue that petitioner Francisco Juan Larranaga is no longer a minor
under R.A. 6809, thus, his mother, Margarita G. Larranaga, does not have the
authority to file the instant petition as his representative. It appears, however, that
on October 6, 1997, petitioner's mother filed a supplemental petition for habeas
corpus on his behalf. This converted the petition at bar to one for habeas corpus.
Section 3, Rule 102 of the Revised Rules of Court states that a petition
for habeas corpus may be filed either by the party for whose relief it is intended or
by some person on his behalf.
TDAHCS

RESOLUTION
PUNO, J :
p

The following are submitted before the Court for resolution:

1. an urgent motion to implement petitioner's release filed by
petitioner on November 3, 1997;
cdrep

2. a motion for reconsideration of this Court's resolution of October

27, 1997 filed on November 17, 1997 by the counsels for the
prosecution in Crim. Case No. CBU-45303 and 45304;
3. a complaint filed by Judge Martin A. Ocampo, Presiding Judge,
Regional Trial Court, Branch 7, Cebu City, against
petitioner's counsels, Attorneys Raymundo A. Armovit,
Ramon R. Teleron and Bernardito Florido, for allegedly
deliberately withholding from this Court the omnibus order,
supplemental order and order of arraignment he issued on
October 17, 1997, thus misleading the Court into issuing its
resolution of October 27, 1997; and

4. an urgent motion to change the venue and the officers to

conduct the preliminary investigation filed by petitioner on
November 17, 1997.
The antecedent facts:
Petitioner Francisco Juan Larranaga is charged with two counts of kidnapping
and serious illegal detention docketed as CBU-45303 and CBU-45304 pending
before the Regional Trial Court (RTC), Branch 7, Cebu City. He is presently
detained at the Bagong Buhay Rehabilitation Center.
On October 1, 1997, petitioner, represented by his mother, Margarita G.
Larranaga, filed with this Court a petition for certiorari, prohibition and mandamus
with writs of preliminary prohibitory and mandatory injunction. Petitioner alleged
that he was denied the right to preliminary investigation and sought to annul the
informations as well as the warrant of arrest issued in consequence thereof. In
the alternative, petitioner prayed that a preliminary investigation be conducted
and that he be released from detention pending the investigation. 1 Petitioner filed
a supplemental petition for habeas corpus or bail on October 6, 1997. 2
On October 20, 1997, the Solicitor General filed a manifestation and motion in
lieu of comment submitting that petitioner should have been given a regular
preliminary investigation before the filing of the informations and the issuance of
the warrant of arrest. The Solicitor General recommended that petitioner be
accorded his right to preliminary investigation and that he be released from
detention during the pendency thereof. 3
On October 27, 1997, we issued a resolution holding that petitioner was deprived
of his right to preliminary investigation when the City Prosecutor of Cebu insisted
that he was only entitled to an inquest investigation. 4 Hence, we resolved:
1. to set aside the inquest investigation of petitioner and to order
the Office of the City Prosecutor of Cebu to conduct a regular
preliminary investigation of the petitioner in accord with
Section 3, Rule 112;

2. to annul the Order for Detention During The Pendency of the

Case issued by Executive Judge Priscila Agana against the
petitioner in Crim. Case No. CBU-45303 and 45304;
3. to order the immediate release of petitioner pending his
preliminary investigation; and
4. to order the Presiding Judge of Br. VII, RTC of Cebu City to
cease and desist from proceeding with the arraignment and
trial of petitioner in Crim. Case No. CBU-45303 and 45304,
pending the result of petitioner's preliminary investigation.
On October 30, 1997, petitioner filed with the RTC of Cebu an urgent ex parte
motion praying for his immediate release pursuant to our October 27 resolution. 5
The following day, on October 31, 1997, Judge Martin A. Ocampo, Presiding
Judge of RTC Branch 7, Cebu City, issued an order deferring the resolution of
petitioner's motion. It stated that it would be premature to act on the motion since
the trial court has not yet received an official copy of our October 27 resolution
and that said resolution has not yet attained finality. Furthermore, Judge Ocampo
called the Court's attention to the fact that petitioner has been arraigned on
October 14, 1997 and waived his right to preliminary investigation. 6
On November 3, 1997, petitioner filed with this Court an urgent motion praying,
among others, that Judge Ocampo be directed to order petitioner's immediate
release upon receipt of our October 27 resolution. 7
Judge Ocampo filed with this Court a letter-complaint dated November 3, 1997
alleging that petitioner's counsels, Attorneys Raymundo A. Armovit, Ramon R.
Teleron and Bernardito Florido, deliberately withheld from this Court the omnibus
order, supplemental order and order of arraignment, all issued by him on October
14, 1997 in connection with Crim. Case No. CBU-45303 and 45304. Judge
Ocampo alleged that by withholding said orders, petitioner's counsels unwittingly
misled the Court in its October 27 resolution. 8
On November 17, 1997, the counsels for the prosecution in Crim. Case No. CBU45303 and 45304 filed a motion for reconsideration of our October 27
resolution. 9 They raised the following arguments:

1. Petitioner is charged with a continuing offense; hence, his arrest

and detention about two months after the abduction of the
victims was lawful;
2. Since petitioner was arrested without a warrant, his case comes
within the purview of Section 7 of Rule 112, not under
Section 3 thereof;
3. The filing of the informations in court and the issuance of the
corresponding warrants of arrest by Executive Judge Priscila
S. Agana cured whatever defect there was in petitioner's
arrest and detention;
4. Petitioner was validly arraigned on October 14, 1997 and the
validity of such arraignment was not set aside by this
tribunal;
5. The case of Sanchez v. Demetriou squarely applies to the
instant case; and
6. Petitioner is no longer a minor pursuant to R.A. 6809.
The Solicitor General, meanwhile, in its comment to petitioner's urgent motion for
release, modified its stance regarding the validity of petitioner's detention. 10 It
stated:
Considering that petitioner was arraigned (a supervening event after the
filing of the petition and before the issuance of the TRO), petitioner
should be kept in detention without prejudice to his right to preliminary
investigation. 11

Petitioner also filed on November 17, 1997 an urgent motion to transfer the venue
of the preliminary investigation from Cebu City to Manila and to replace the Office
of the City Prosecutor of Cebu with the Office of the State Prosecutor,
Department of Justice, as the authority to conduct the preliminary investigation
because of the extensive coverage of the proceedings by the Cebu media which
allegedly influenced the people's perception of petitioner's character and guilt. 12

The primary issues to be resolved are: (1 ) whether petitioner is entitled to a

regular preliminary investigation, and (2) whether petitioner should be released
from detention pending the investigation.
We resolve the first issue in the affirmative.
The prosecutors argue that petitioner is entitled only to an inquest investigation
under Section 7 of Rule 112 since he was lawfully arrested without a warrant
under Section 5, Rule 113 of the Revised Rules of Court.
The prosecutors' argument is benefit of merit. Section 7 of Rule 112 13 applies
only to persons lawfully arrested without a warrant. Petitioner in this case was, in
the first place, not arrested either by a peace officer or a private person. The facts
show that on September 15, 1997, some members of the Philippine National
Police Criminal Investigation Group (PNP CIG) went to the Center for Culinary
Arts in Quezon City to arrest petitioner, albeit without warrant. Petitioner resisted
the arrest and immediately phoned his sister and brother-in-law. Petitioner's sister
sought the aid of Atty. Raymundo A.. Armovit. Atty. Armovit, over the phone,
dissuaded the police officers from carrying out the warrantless arrest and
proposed to meet with them at the CIG headquarters in Camp Crame, Quezon
City. The police officers yielded and returned to the CIG headquarters. Petitioner,
together with his sister and brother-in-law also went to the CIG headquarters
aboard their own vehicle. Atty. Armovit questioned the legality of the warrantless
arrest before CIG Legal Officer Ruben Zacarias. After consulting with his
superiors, Legal Officer Zacarias ordered to stop the arrest and allowed petitioner
to go home. Atty. Armovit made an undertaking in writing that he and petitioner
would appear before the Cebu City Prosecutor on September 17, 1997 for
preliminary investigation.
An arrest is defined as the taking of a person into custody in order that he may be
bound to answer for the commission of an offense. 14 It is made by an actual
restraint of the person to be arrested, or by his submission to the custody of the
person making the arrest. 15 An arrest signifies restraint on person, depriving one
of his own will and liberty, binding him to become obedient to the will of the
law. 16 The foregoing facts show no restraint upon the person of petitioner.

Neither do they show that petitioner was deprived of his own will and liberty.
Hence, Section 7 of Rule 112 does not apply to petitioner.
To be sure, even if petitioner were arrested by the PNP CIG personnel, such
arrest would still be illegal because of the absence of a warrant. Section 5 of Rule
113 states when a warrantless arrest is deemed lawful, thus:
Sec. 5. Arrest without a warrant; when lawful. A peace officer or a
private person may, without a warrant, arrest a person:
(a) When, in his presence, the person to be arrested has committed, is
actually committing, or is attempting to commit an offense;
(b) When an offense has in fact just been committed, and he has
personal knowledge of facts indicating that the person to be arrested has
committed it; and
LLjur

(c) When the person to be arrested is a prisoner who has escaped from
a penal establishment or place where he is serving final judgment or
temporarily confined while his case is pending, or has escaped while
being transferred from one confinement to another.
In cases falling under paragraphs (a) and (b) hereof, the person arrested
without a warrant shall be forthwith delivered to the nearest police station
or jail, and he shall be proceeded against in accordance with Rule 112,
Section 7.

It does not appear in the case at bar that petitioner has just committed, is actually
committing or is attempting to commit an offense when the police officers tried to
arrest him on September 15, 1997. In fact, petitioner was attending classes at the
Center for Culinary Arts at that time.
We reject the prosecutors' argument that petitioner was actually committing a
crime at the time of the arrest since kidnapping with serious illegal detention is a
continuing crime. In the case of Parulan v. Director of Prisons 17 cited by the
prosecutors, kidnapping with illegal detention is considered a continuing crime
where the deprivation of liberty is persistent and continuing from one place to
another. The facts show that the alleged kidnapping was committed on July 16,
1997. One of the victims, Marijoy Chiong, was found dead in Sitio Tanawan,
Barangay Guadalupe, Carcar, Cebu on July 18, 1997, while the other victim,

Jacqueline Chiong, remains missing to date. There is no showing that at the time
of the arrest on September 15, 1997, Jacqueline Chiong was being detained by
petitioner who was then residing in Quezon City. Hence, petitioner may not be
considered as continually committing the crime of kidnapping with serious illegal
detention at the time of the arrest.

Judge Martin Ocampo of RTC Branch 7, Cebu City, and the state prosecutors
assert that petitioner is no longer entitled to a preliminary investigation because
he had previously waived his right to such investigation. In his omnibus order
dated October 14, 1997, Judge Ocampo held that petitioner waived his right to
preliminary investigation when he failed to appear during the preliminary
investigation set by the City Prosecutor in the afternoon of September 17, 1997,
despite the express warning that "failure of the counsel (to present the petitioner
to the Cebu City Prosecutor on said time and date) would be treated as a waiver
of his client's right to preliminary investigation."
We disagree. A waiver, whether express or implied, must be made in clear and
unequivocal manner. Mere failure of petitioner and his counsel to appear before
the City Prosecutor in the afternoon of September 17, 1997 cannot be construed
as a waiver of his right to preliminary investigation, considering that petitioner has
been vigorously invoking his right to a regular preliminary investigation since the
start of the proceedings before the City Prosecutor. At 9:00 in the morning of
September 17, 1997, petitioner's counsel appeared before the City Prosecutor of
Cebu and moved that petitioner be accorded a regular preliminary investigation.
The City Prosecutor, however, denied the motion, stating that petitioner is entitled
only to an inquest investigation. Petitioner orally moved for a reconsideration, to
no avail. Petitioner assailed the decision of the City Prosecutor before the Court
of Appeals on a petition for certiorari, prohibition and mandamus. After the Court
of Appeals dismissed said petition, petitioner went to this Court, still asserting
that he should be accorded a regular preliminary investigation.
Furthermore, petitioner and his counsel cannot be faulted for their refusal to
comply with the City Prosecutor's directive to appear before him in the afternoon
of September 17, 1997 for preliminary investigation. As stated above, petitioner's

counsel appeared before the City Prosecutor earlier that day and specifically
demanded a regular preliminary investigation for his client. The City Prosecutor,
however, insisted that petitioner was entitled only to an inquest investigation
which he scheduled in the afternoon of the same day. Petitioner and his counsel
refused to submit to such investigation as it might be construed as a waiver of
petitioner's right to a regular preliminary investigation.
Our ruling is not altered by the fact that petitioner has been arraigned on October
14, 1997. The rule is that the right to preliminary investigation is waived when the
accused fails to invoke it before or at the time of entering a plea at
arraignment. 18 Petitioner, in this case, has been actively and consistently
demanding a regular preliminary investigation even before he was charged in
court. Also, petitioner refused to enter a plea during the arraignment because
there was a pending case in this Court regarding his right to avail of a regular
preliminary investigation. 19 Clearly, the acts of petitioner and his counsel are
inconsistent with a waiver. Preliminary investigation is part of procedural due
process. It cannot be waived unless the waiver appears to be clear and informed.
The next question is whether petitioner should be released from detention
pending the investigation.
We rule in the negative.
The records show that on September 17, 1997, two informations were filed
against petitioner for kidnapping and serious illegal detention. 20 Executive Judge
Priscila Agana issued a warrant of arrest on September 19, 1997. 21 Petitioner
was arrested on September 22, 1997 by virtue of said warrant. We held
in Sanchez v. Demetriou 22that the filing of charges and the issuance of the
warrant of arrest against a person invalidly detained will cure the defect of that
detention or at least deny him the right to be released because of such defect.
The Court ruled:
The original warrantless arrest of the petitioner was doubtless illegal.
Nevertheless, the Regional Trial Court lawfully acquired jurisdiction over
the person of the petitioner by virtue of the warrant of arrest it issued on
August 26, 1993 against him and the other accused in connection with

the rape-slay cases. It was belated, to be sure, but it was nonetheless

legal.
Even on the assumption that no warrant was issued at all, we find that
the trial court still lawfully acquired jurisdiction over the person of the
petitioner. The rule is that if the accused objects to the jurisdiction of the
court over his person, he may move to quash the information, but only
on that ground. If, as in this case, the accused raises other grounds in
the motion to quash, he is deemed to have waived that objection and to
have submitted his person to the jurisdiction of the court.
The Court notes that on August 13, 1993, after the petitioner was
unlawfully arrested, Judge Lanzanas issued a warrant of arrest against
Antonio L. Sanchez in connection with Criminal Cases Nos. 93-124634
to 93-124637 for violation of R.A. No. 6713. Pending the issuance of the
warrant of arrest for the rape-slay cases, this first warrant served as the
initial justification for his detention.
The Court also adverts to its uniform ruling that the filing of charges, and
the issuance of the corresponding warrant of arrest, against a person
invalidly detained will cure the defect of that detention or at least deny
him the right to be released because of such defect. Applicable by
analogy to the case at bar is Rule 102 Section 4 of the Rules of Court
that:
"Sec. 4. When writ is not allowed or discharge authorized. If it
appears that the person alleged to be restrained of his liberty is in
the custody of an officer under process issued by a court or judge
or by virtue of a judgment or order of a court of record, and that
the court or judge had jurisdiction to issue the process, render the
judgment, or make the order, the writ shall not be allowed; or if the
jurisdiction appears after the writ is allowed, the person shall not
be discharged by reason of any informality or defect in the
process, judgment, or order. Nor shall anything in this rule be held
to authorize the discharge of a person charged with or convicted
of an offense in the Philippines or of a person suffering
imprisonment under lawful judgment.
In one case, the petitioner sued on habeas corpus on the ground that
she had been arrested by virtue of a John Doe warrant. In their return,

the respondents declared that a new warrant specifically naming her had
been issued, thus validating her detention. While frowning at the tactics
of the respondents, the Court said:
The case has, indeed, become moot and academic inasmuch as
the new warrant of arrest complies with the requirements of the
Constitution and the Rules of Court regarding the particular
description of the person to be arrested. While the first warrant
was unquestionably void, being a general warrant, release of the
petitioner for that reason will be a futile act as it will be followed by
her immediate re-arrest pursuant to the new and valid warrant,
returning her to the same prison she will just have left. This Court
will not participate in such a meaningless charade.
The same doctrine has been consistently followed by the Court more
recently in the Umil case. 23 (citations omitted)

We hold, therefore, that petitioner's detention at the Bagong Buhay Rehabilitation

Center is legal in view of the information and the warrant of arrest against him.
The absence of a preliminary investigation will not justify petitioner's release
because such defect did not nullify the information and the warrant of arrest
against him. 24 We ruled in Sanciangco, Jr. v. People: 25
The absence of preliminary investigations does not affect the court's
jurisdiction over the case. Nor do they impair the validity of the
information or otherwise render it defective; but, if there were no
preliminary investigation and the defendants, before entering their plea,
invite the attention of the court to their absence, the court, instead of
dismissing the information, should conduct it or remand the case to the
inferior court so that the preliminary investigation may be conducted. 26

As regards petitioner's motion to change the venue and the authority to conduct
the preliminary investigation, we are constrained to dismiss the same for lack of
jurisdiction. The holding of a preliminary investigation is a function of the
Executive Department and not of the Judiciary. 27 Petitioner should therefore
address their plea to the Department of Justice that has control and supervision
over the conduct of preliminary investigations.

Nonetheless, even if the Court had jurisdiction over the issue, petitioner's motion
should still be denied because it failed to allege and prove that the City
Prosecutor of Cebu has been actually affected by the publicity. We held in Webb
v. De Leon: 28
Be that as it may, we recognize that pervasive and prejudicial publicity
under certain circumstances can deprive an accused of his due process
right to fair trial. Thus, inMartelino, et al. vs. Alejandro, et al., we held that
to warrant a finding of prejudicial publicity there must
be allegation and proof that the judges have been unduly influenced, not
simply that they might be, by the barrage in publicity. In the case at bar,
we find nothing in the records that will prove that the tone and content of
the publicity that attended the investigation of petitioners fatally infected
the fairness and impartiality of the DOJ Panel. Petitioners cannot just
rely on the subliminal effects of publicity on the sense of fairness of the
DOJ Panel, for these are basically unbeknown and beyond knowing. To
be sure, the DOJ Panel is composed of an Assistant Chief State
Prosecutor and Senior State Prosecutors. Their long experience in
criminal investigation is a factor to consider in determining whether they
can easily be blinded by the klieg lights of publicity. Indeed, their 26page Resolution carries no indubitable indicia of bias for it does not
appear that they considered any extra-record evidence except evidence
properly adduced by the parties. The length of time the investigation was
conducted despite its summary nature and the generosity with which
they accommodated the discovery motions of petitioners speak well of
their fairness. At no instance, we note, did petitioners seek the
disqualification of any member of the DOJ Panel on the ground of bias
resulting from their bombardment of prejudicial publicity. 29

We further held in People v. Teehankee: 30

We cannot sustain appellant's claim that he was denied the right to
impartial trial due to prejudicial publicity. It is true that the print and
broadcast media gave the case at bar pervasive publicity, just like all
high profile and high stake criminal trials. Then and now, we rule that the
right of an accused to a fair trial is not incompatible to a free press. To be
sure, responsible reporting enhances an accused's right to a fair trial for,

as well pointed out, "a responsible press has always been regarded as
the handmaiden of effective judicial administration, especially in the
criminal field . . . The press does not simply publish information about
trials but guards against the miscarriage of justice by subjecting the
police, prosecutors, and judicial processes to extensive public scrutiny
and criticism.
Pervasive publicity is not per se prejudicial to the right of an accused to
fair trial. The mere fact that the trial of the appellant was given a day-today, gavel-to-gavel coverage does not by itself prove that the publicity so
permeated the mind of the trial judge and impaired his impartiality. For
one, it is impossible to seal the minds of members of the bench from pretrial and other off-court publicity of sensational criminal cases. The state
of the art of our communication system brings news as they happen
straight to our breakfast tables and to our bedrooms. These news form
part of our everyday menu of the facts and fictions of life. For another,
our idea of a fair and impartial judge is not that of a hermit who is out of
touch with the world. We have not installed the jury system whose
members are overly protected from publicity lest they lose their
impartiality. Criticisms against the jury system are mounting and Mark
Twain's wit and wisdom put them all in better perspective when he
observed: "When a gentleman of high social standing, intelligence, and
probity swears that testimony given under the same oath will outweigh
with him, street talk and newspaper reports based upon mere hearsay,
he is worth a hundred jurymen who will swear to their own ignorance and
stupidity . . . . Why could not the jury law be so altered as to give men of
brains and honesty an equal chance with fools and miscreants?" Our
judges are learned in the law and trained to disregard off-court evidence
and on-camera performances of parties to a litigation. Their mere
exposure to publications and publicity stunts does not per se fatally infect
their impartiality.
At best, appellant can only conjure possibility of prejudice on the part of
the trial judge due to the barrage of publicity that characterized the
investigation and trial of the case. In Martelino, et al. v. Alejandro, et al.,
we rejected this standard of possibility of prejudice and adopted the test
of actual prejudice as we ruled that to warrant a finding of prejudicial
publicity, there must be allegation and proof that the judges have been

unduly influenced, not simply that they might be, by the barrage of
publicity. In the case at bar, the records do not show that the trial judge
developed actual bias against appellant as a consequence of the
extensive media coverage of the pre-trial and trial of his case.
The totality of circumstances of the case does not prove this actual bias
and he has not discharged the burden. 31

We likewise dismiss the complaint filed by Judge Martin A Ocampo against

Attorneys Raymundo A. Armovit, Ramon R. Teleron and Bernardito Florido for
lack of concrete evidence to prove that said lawyers deliberately withheld from the
Court the orders he issued with intent to mislead the Court.
Finally, we also deny the motion of the prosecutors to dismiss the petition on the
ground that it was not filed by the proper party. The prosecutors argue that
petitioner Francisco Juan Larranaga is no longer a minor under R.A. 6809, thus,
his mother, Margarita G. Larranaga, does not have the authority to file the instant
petition as his representative. It appears, however, that on October 6, 1997,
petitioner's mother filed a supplemental petition for habeas corpus on his behalf.
This converted the petition at bar to one for habeas corpus. Section 3, Rule 102
of the Revised Rules of Court states that a petition for habeas corpus may be
filed either by the party for whose relief it is intended or by some person on his
behalf.
IN VIEW WHEREOF, we resolve to: (1) REITERATE our order to the Office of the
City Prosecutor of Cebu to conduct a regular preliminary investigation of
petitioner and to the Presiding Judge of RTC, Branch 7, Cebu City to cease and
desist from proceeding with the trial of petitioner until a preliminary investigation
shall have been conducted; (2) SET ASIDE our order to immediately release
petitioner pending the preliminary investigation and thus DENY petitioner's urgent
motion to implement petitioner's release; (3) DISMISS Judge Ocampo's
complaint against Attorneys Raymundo A. Armovit, Ramon R. Teleron and
Bernardito Florido; and (4) DENY petitioner's motion to change the venue and the
authority to conduct the preliminary investigation.
SO ORDERED.

LLjur

|||

(Larranaga v. Court of Appeals, G.R. No. 130644 (Resolution), [March 13,

1998], 351 PHIL 75-93)

14
[G.R. No. 170288. September 22, 2006.]
PEDRO E. BUDIONGAN, JR., Municipal Mayor; JOSIL E.
TRABAJO, Municipal Vice Mayor and Presiding Officer of the
Sangguniang Bayan; FULGENCIO V. PAA, Municipal
Treasurer; TACIANA B. ESPEJO, Municipal Budget Officer;
and SB Members: RUFINO G. ADLAON, TITO R. MONTAJES,
MARIO M. SORIA, ALFONSO L. UNAJAN, CARLITO B.
TORREFRANCA, VICENTE A. TORREFRANCA,
JR., petitioners, vs. HON. JACINTO M. DELA CRUZ, JR., Asst.
Special Prosecutor I; HON. CORNELIO L. SONIDO, Acting
Director, Prosecution Bureau IV; HON. ROBERT E. KALLOS,
Deputy Special Prosecutor; HON. DENNIS M. VILLA IGNACIO,
The Special Prosecutor; HON. WENDELL E. BARRERASSULIT, Acting Director, Case Assessment, Review and Reinvestigation Bureau; and OFFICE OF THE SPECIAL
PROSECUTOR, public respondents.
VALERIANO U. NADALA, ARLENE PAINAGANPALGAN, private respondents.
DECISION
YNARES-SANTIAGO, J :
p

This Petition for Certiorari under Rule 65 of the Rules of Court assails the
Memorandum 1 dated April 28, 2004 of the Office of the Special Prosecutor,

Office of the Ombudsman, recommending that petitioners be charged with

violation of Section 3(e) of Republic Act (R.A.) No. 3019 and petitioner Pedro E.
Budiongan with violation of Section 3(h) of R.A. No. 3019. Also assailed is the
Resolution 2 dated October 19, 2005 denying petitioners' motion for
reconsideration.
The antecedent facts are as follows:
By virtue of Municipal Ordinance No. 2, series of 2001, the Municipality of
Carmen, Bohol appropriated the amount of P450,000.00 for the purchase of a
road roller for the municipality. However, on November 16, 2001, the Municipal
Development Council through Resolution No. 3 recommended that the amount of
P450,000.00 be realigned and used for the asphalt laying of a portion of the Tan
Modesto Bernaldez Street. 3 The proposed realignment was included in the
December 21, 2001 agenda of the Sangguniang Bayan of Carmen but discussion
thereon was deferred.
On February 6, 2002, petitioner Municipal Treasurer, Fulgencio V. Paa, issued a
Certificate of Availability of Funds for the project. Thereafter, the Office of the
Municipal Engineer prepared a Program of Works and Cost Estimates duly
noted/approved by Municipal Budget Officer Taciana B. Espejo and Mayor
Budiongan.
aDHCEA

Bidding was conducted on March 5, 2002. The next day, March 6, 2002, Mayor
Budiongan issued the Notice of Award and Notice to Commence Work in favor of
Herbert Malmis General Merchandise and Contractor, Inc. who emerged as the
lowest complying bidder. On March 22, 2002, the Sangguniang Bayan passed
Resolution No. 60, 4series of 2002, authorizing Mayor Budiongan to sign and
enter into contract with Malmis relative to the above project in the amount of
P339,808.00. With such authority, Malmis commenced with the project.
Thereafter, it was discovered that there was yet no ordinance approving the
realignment of the funds. Thus, on May 17, 2002, the Sangguniang Bayan
passed Ordinance No. 8, 5 series of 2002, approving the realignment of the fund.
On June 14, 2002, Malmis was paid the contract price.
On July 3, 2002, private respondents Arlene P. Palgan and Valeriano U. Nadala
filed a complaint 6 against the petitioners before the Office of the Deputy

Ombudsman for Visayas alleging illegality in the conduct of the bidding, award
and notice to commence work since there was no fund appropriated for the
purpose.
On July 31, 2003, the Office of the Deputy Ombudsman for Visayas found
probable cause and recommended the filing of an information for violation of
Article 220 7 of the Revised Penal Code against the petitioners. However, the
complaint against Hermosila Logrono, Desiderio Gudia, Jr. and Herbert Malmis
was dismissed for lack of merit. 8
Upon review, the Case Assessment, Review and Reinvestigation Bureau of the
Office of the Special Prosecutor, issued the assailed Memorandum dated April
28, 2004, modifying the charge from violation of Article 220 of the Revised Penal
Code to (1) violation of Section 3(e) of R.A. No. 3019 against petitioners for
allegedly giving unwarranted benefit to Malmis and (2) violation of Section 3(h)
of R.A. No. 3019 against petitioner Budiongan for allegedly "directly or indirectly
having financial or pecuniary interest in a contract or transaction in connection
with which he intervenes or takes part in his official capacity."
DaAIHC

Thus, two separate Informations were filed before the Sandiganbayan (1) for
violation of Section 3(e) of R.A. No. 3019 against the petitioners docketed as
Criminal Case No. 28075 and (2) for violation of Section 3(h) of R.A. No.
3019 against petitioner Budiongan docketed as Criminal Case No. 28076.
Thereafter, petitioners filed a Motion to Quash 9 the information charging them
with violation of Sec. 3(e) of R.A. No. 3019. In a Resolution 10 dated June 10,
2005, the Sandiganbayan granted the motion to quash and remanded Criminal
Case No. 28075 to the Office of the Ombudsman for amendment of the
Information. It held that although Malmis benefited from the contract, the same is
not unwarranted considering that the project was implemented, executed and
completed.
On June 27, 2005, an Amended Information 11 was filed charging petitioners with
violation of Sec. 3(e) of R.A. No. 3019, alleging that petitioners, by prematurely
awarding to Malmis the project despite the absence of funds specifically
appropriated for such purpose, and thereafter paying the contract price from the

Municipal Treasury which was originally appropriated for the purchase of a road
roller, caused damage and undue injury to the government.
Finding that the Amended Information contains all the material averments
necessary to make out a case for the first mode of violating Section 3(e) of R.A.
No. 3019, i.e.,causing any undue injury to any party, including the government,
the Sandiganbayan admitted the Amended Information in its Resolution dated
August 18, 2005. 12
On even date, petitioners filed with the Sandiganbayan a Motion for Leave of
Court to File Motion for Reinvestigation 13 arguing that the above Informations
were filed without affording them the opportunity to file counter-affidavits to
answer/rebut the modified charges. On September 20, 2005, the Sandiganbayan
issued a Resolution 14 denying the motion insofar as Criminal Case No. 28076 is
concerned. It held that it is too late in the day to remand the case for
reinvestigation considering that Budiongan had already been arraigned and the
case had long been set for pre-trial proceedings, with both parties having filed
their respective briefs. As regards Criminal Case No. 28075, the Sandiganbayan
noted that although the conduct of the preliminary investigation was regular,
petitioners however were not given the opportunity to seek reconsideration of the
modified charges. Thus, it granted leave to the petitioners to file with the Office of
the Special Prosecutor a motion for reconsideration (not a motion for
reinvestigation) of the said office's Memorandum dated April 28, 2004.
ADaSEH

Petitioners filed a Motion for Reconsideration with the Office of the Special
Prosecutor which was denied for lack of merit in the Resolution dated October
19, 2005.
Hence, this petition raising the following issues:
I. WHETHER PUBLIC RESPONDENTS ACTED WITH GRAVE ABUSE
OF DISCRETION AMOUNTING TO LACK OR IN EXCESS OF
JURISDICTION IN REJECTING THE FINDINGS AND
AMENDING/MODIFYING THE RESOLUTION OF THE GRAFT
INVESTIGATING OFFICER, OMBUDSMAN VISAYAS, AND IN
FILING THE INFORMATION FOR VIOLATION OF SEC. 3(e)
OF RA 3019 WITHOUT AFFORDING PETITIONERS THE

OPPORTUNITY TO PRESENT THEIR COUNTER EVIDENCE IN

A RE-INVESTIGATION;
II. WHETHER THE REFUSAL OR FAILURE TO CONDUCT A REINVESTIGATION HAS VIOLATED PETITIONERS' RIGHT TO
DUE PROCESS;
III. WHETHER PUBLIC RESPONDENTS ACTED WITH GRAVE ABUSE
OF DISCRETION AMOUNTING TO LACK OR IN EXCESS OF
JURISDICTION IN ISSUING RESOLUTIONS DATED APRIL 28,
2004 AND OCTOBER 19, 2005 FINDING PROBABLE CAUSE
FOR VIOLATION OF SEC. 3(e) OF RA 3019 AGAINST HEREIN
PETITIONERS; and
IV. WHETHER PUBLIC RESPONDENTS ACTED WITH GRAVE ABUSE
OF DISCRETION AMOUNTING TO LACK OR IN EXCESS OF
JURISDICTION IN FILING THE INFORMATION FOR VIOLATION
OF SEC. 3(e) OF RA 3019 AGAINST PETITIONERS IN THE
SANDIGANBAYAN DOCKETED AS CRIMINAL CASE NO. 28075.

Petitioners maintain that the modification of the charge from violation of Article
220 of the Revised Penal Code to violation of Sections 3(e) and 3(h) of R.A. No.
3019denied their rights to due process since they were not given the opportunity
to answer and present evidence on the new charge in a preliminary investigation.
Furthermore, the petitioners argue that public respondents committed grave
abuse of discretion amounting to lack or excess of jurisdiction in issuing the
challenged resolutions finding probable cause for violation of R.A. No. 3019.
TaCDAH

The petition lacks merit.

The right to a preliminary investigation is not a constitutional right, but is merely a
right conferred by statute. The absence of a preliminary investigation does not
impair the validity of the Information or otherwise render the same defective. It
does not affect the jurisdiction of the court over the case or constitute a ground
for quashing the Information. 15 If absence of a preliminary investigation does not
render the Information invalid nor affect the jurisdiction of the court over the case,
then the denial of a motion for reinvestigation cannot likewise invalidate the
Information or oust the court of its jurisdiction over the case.

Petitioners were not deprived of due process because they were afforded the
opportunity to refute the charges by filing their counter-affidavits. The modification
of the offense charged did not come as a surprise to the petitioners because it
was based on the same set of facts and the same alleged illegal acts. Moreover,
petitioners failed to aver newly discovered evidence nor impute commission of
grave errors or serious irregularities prejudicial to their interest to warrant a
reconsideration or reinvestigation of the case as required under Section 8, Rule
III of the Rules of Procedure of the Office of the Ombudsman. 16 Thus, the
modification of the offense charged, even without affording the petitioners a new
preliminary investigation, did not amount to a violation of their rights.
Furthermore, the right to preliminary investigation is deemed waived when the
accused fails to invoke it before or at the time of entering a plea at
arraignment. 17Petitioner Budiongan was arraigned in Criminal Case No. 28076
on March 28, 2005. He was also arraigned together with the rest of the
petitioners under the Amended Information in Criminal Case No. 28075 on
December 2, 2005.
AHaETS

The purpose of a preliminary investigation is merely to determine whether a crime

has been committed and whether there is probable cause to believe that the
person accused of the crime is probably guilty thereof and should be held for
trial. 18 A finding of probable cause needs only to rest on evidence showing that
more likely than not a crime has been committed and was committed by the
suspect. Probable cause need not be based on clear and convincing evidence of
guilt, neither on evidence establishing guilt beyond reasonable doubt and
definitely, not on evidence establishing absolute certainty of guilt." 19
The Office of the Special Prosecutor is an integral component of the Ombudsman
and is under the latter's supervision and control. Thus, whatever course of action
that the Ombudsman may take, whether to approve or to disapprove the
recommendation of the investigating prosecutor, is but an exercise of his
discretionary powers based upon constitutional mandate. Generally, courts
should not interfere in such exercise. It is beyond the ambit of this Court to review
the exercise of discretion of the Ombudsman in prosecuting or dismissing a
complaint filed before it, save in cases where there is clear showing of grave

abuse of discretion amounting to lack or excess of jurisdiction on the part of the

Ombudsman. 20 Absent any showing of arbitrariness on the part of the
prosecutor or any other officer authorized to conduct preliminary investigation, as
in the instant case, courts as a rule must defer to said officer's finding and
determination of probable cause, since the determination of the existence of
probable cause is the function of the prosecutor. 21
In fine, certiorari will not lie to invalidate the Office of the Special Prosecutor's
resolution denying petitioners' motion for reconsideration since there is nothing to
substantiate petitioners' claim that it gravely abused its discretion in ruling that
there was no need to conduct a reinvestigation of the case. 22
WHEREFORE, in view of the foregoing, the instant petition is DISMISSED. The
assailed Memorandum of the Office of the Special Prosecutor, Office of the
Ombudsman, dated April 28, 2004 finding probable cause that petitioners
violated Sections 3(e) and 3(h) of Republic Act No. 3019 and the Resolution
dated October 19, 2005 denying petitioners' Motion for Reconsideration, are
hereby AFFIRMED.
SO ORDERED.
|||

(Budiongan, Jr. v. Dela Cruz, Jr., G.R. No. 170288, [September 22, 2006], 534

PHIL 47-57)

15
[G.R. Nos. 71404-09. October 26, 1988.]
HERMILO RODIS, SR., petitioner, vs. THE SANDIGANBAYAN, and
PEOPLE OF THE PHILIPPINES, respondents.
Quisumbing & Associates for petitioner.
The Solicitor General for respondents.

SYLLABUS
1. REMEDIAL LAW; 1985 RULES ON CRIMINAL PROCEDURE; PRELIMINARY
INVESTIGATION; PRESENCE OF ACCUSED, NOT A CONDITION SINE QUA
NON TO THE VALIDITY OF THE PROCEEDINGS. Under Section 3, subsection (d) of Rule 112 of the 1985 Rules on Criminal Procedure, "if the
respondent cannot be subpoenaed, or if subpoenaed, does not submit counteraffidavits within the ten (10) day period, the investigating officer shall base his
resolution on the evidence presented by the complainant." It is to be noted that
this provision does not require as a condition sine qua non to the validity of the
proceedings the presence of the accused for as long as efforts to reach him were
made, and an opportunity to controvert the evidence of the complainant is
accorded him. The obvious purpose of the rule is to block attempts of
unscrupulous respondents to thwart the prosecution of offenses by hiding
themselves or by employing dilatory tactics.
2. ID.; ID.; SEC. 3, SUB-SECTION (d) OF RULE 112; SHOULD NOT BE
APPLIED STRICTLY AGAINST ACCUSED. Considering that petitioner has
voluntarily appeared before the respondent Sandiganbayan in connection with
the criminal cases in question and has appeared in other preliminary investigation
of other PHILFINANCE charges filed in various fiscals' offices and the Ministry
(now Department) of Justice, it is apparent that the non-service of the subpoena
upon him was not of his own doing or liking. To apply the full force and effect of
section 3, sub-section (d) of Rule 112 of the 1985 Rules on Criminal Procedure
would, to our mind, greatly prejudice him.
3. ID.; ID.; ABSENCE OF PRELIMINARY INVESTIGATION; OUTRIGHT
DISMISSAL OF INFORMATION; SHOULD NOT BE DONE WHERE THE
COURT'S ATTENTION WAS CALLED TO THE FACT THAT NO SUCH
INVESTIGATION WAS CONDUCTED. While the "absence of preliminary
investigations does not affect the court's jurisdiction over the case (n)or do they
impair the validity of the information or otherwise render it defective, but, if there
were no preliminary investigations and the defendants, before entering their plea,
invite the attention of the court to their absence, the court, instead of dismissing
the information, should conduct such investigation, order the fiscal to conduct it or

remand the case to the inferior court so that the preliminary investigation may be
conducted. In this case, the Tanodbayan has the duty to conduct the said
investigation.
DECISION
FERNAN, C.J. :
p

This is a petition for certiorari with prayer for a writ of preliminary injunction
seeking to annul the Resolution 1 of the Sandiganbayan dated July 15, 1985
denying herein petitioner's Motion to Quash the Informations in Criminal Cases
Nos. 10389, 10390, 10391, 10393 and 10394 pending before said court and to
enjoin the arraignment, pre-trial and trial herein.
cdphil

The antecedents are as follows:

On May 22, 1985, petitioner Hermilo v. Rodis, Sr., former President of the
Philippine Underwriters Finance Corporation (PHILFINANCE), together with
some other persons, was charged before the Sandiganbayan in separate
informations docketed therein as Criminal Cases Nos. 10389, 10390, 10391,
10393 and 10394 with five (5) counts of violation of Section 3(b) of Republic Act
No. 3019, otherwise known as the Anti-Graft and Corrupt Practices Act.
On May 31, 1985, petitioner filed a motion to quash said informations as against
him on the ground of lack of preliminary investigation, with the alternative prayer
that the "issue and/or enforcement of the warrant of arrests as against him be
held in abeyance while he seeks a reinvestigation by the Tanodbayan pursuant
to his right of (sic) preliminary investigation." 2
In its opposition to said motion, the Prosecution cited as basis therefor Sec. 3,
Rule 117 of the 1985 Rules on Criminal Procedure enumerating the grounds for a
motion to quash. It argued that since lack of preliminary investigation is not
among those enumerated thereunder, the motion to quash on this ground should
be denied for lack of merit and instead, petitioner should be ordered to file his

Petition for Reinvestigation and/or Motion for Reconsideration in accordance

with Section 13 of the Revised Rules of Procedure of the Tanodbayan. 3
Petitioner filed a Reply to the Opposition controverting the prosecution's claim
that lack of preliminary investigation is not a ground for quashing the information;
but manifesting that he would file a petition for re-investigation with the
Tanodbayan as suggested. 4 This he did, on June 24, 1985.
prcd

On July 15, 1985, while petitioner's petition for reinvestigation was pending action
by a the Tanodbayan, the Sandiganbayan promulgated the assailed resolution
denying petitioner's motion to quash for lack of merit, stating:
". . . this Court is of the considered opinion that the alleged absence of
preliminary investigation with respect to the accused-movant (herein
petitioner) or his inability to participate in the preliminary investigation for
the reason that he was not duly served with a subpoena is not a proper
ground for a motion to quash. If the accused was not afforded due
preliminary investigation, the proper remedy for him is to file a Petition for
Reinvestigation with the Office of the Tanodbayan, pursuant to Section
(13) of Administrative Order No. 111 of the Revised Rules of Procedure
of the Tanodbayan, promulgated on December 1, 1979." 5

On the premise that no appeal or any plain and speedy remedy in the ordinary
course of law will prove adequate under the circumstances obtaining in the case
at bar arraignment, pre-trial and trial having been set on August 26, 27 and 28,
1985 and on the allegation that in denying his motion to quash, respondent
Sandiganbayan had acted with grave abuse of discretion amounting to lack or
excess of jurisdiction, petitioner brought the instant petition.
Cdpr

On August 1, 1985, the Court issued a Temporary Restraining Order enjoining

the respondent Sandiganbayan from proceeding with the arraignment, pre-trial
and trial of Criminal Cases Nos. 10389, 10390, 10391, 10392, 6 10393 and
10394. 7
Petitioner contends that while it may be true that lack of preliminary investigation
neither affects the jurisdiction of the court nor impairs the validity of the
information filed, nonetheless such lack of preliminary investigation affects the
regularity of the proceedings which led to the filing of the information, such that in

several cases, the Court had ordered the quashal of the information on said
ground; and that although lack of preliminary investigation is not enumerated as
one of the grounds for a motion to quash, the Sandiganbayan can nevertheless
order the quashal of the information pursuant to its inherent power to amend and
control its processes so as to make them conformable to law and justice. 8 He
further claims that given the chance to be heard on preliminary investigation, he
will demonstrate to the Tanodbayan that he had no participation in the
transactions complained of, except in one where he merely approved for
reimbursement representation expense incurred by one subordinate to him, the
Executive Vice-President, and after it had been approved by one superior to him,
the Vice-Chairman of the Executive Committee and Chief Executive Officer of the
PHILFINANCE.
Respondent People of the Philippines on the other hand avers that as petitioner
does not dispute that a preliminary investigation was indeed conducted, what he
is really protesting against is the lost opportunity to participate therein due to the
alleged failure of the Tanodbayan to serve a subpoena upon him. It is however,
contended that this alleged failure did not affect the regularity of the preliminary
investigation as the Tanodbayan is justified under Section 3, Rule 112 of the 1985
Rules of Criminal Procedure in proceeding with the preliminary investigation after
an attempt to subpoena petitioner at the latter's known address proved
unavailing, and in basing its resolution on the evidence presented by the
complainant.
LibLex

The analysis of respondent People, thru the Solicitor General, as to the real
nature of the controversy at bar is correct. It is not disputed that a preliminary
investigation was conducted by the Tanodbayan prior to the filing of the
informations. Petitioner, however, was not able to participate therein as the
subpoena addressed to him at PHILFINANCE his last known address, was
returned "unserved," petitioner having already severed his employment with said
company at the time of service. As petitioner reportedly left PHILFINANCE under
most unfriendly circumstances, PHILFINANCE did not give the process server his
residence address on record with it.
Under Section 3, sub-section (d) of Rule 112 of the 1985 Rules on Criminal
Procedure, "if the respondent cannot be subpoenaed, or if subpoenaed, does not

submit counter-affidavits within the ten (10) day period, the investigating officer
shall base his resolution on the evidence presented by the complainant." It is to
be noted that this provision does not require as a condition sine qua non to the
validity of the proceedings the presence of the accused for as long as efforts to
reach him were made, and an opportunity to controvert the evidence of the
complainant is accorded him. The obvious purpose of the rule is to block
attempts of unscrupulous respondents to thwart the prosecution of offenses by
hiding themselves or by employing dilatory tactics.
cdll

Considering that petitioner has voluntarily appeared before the respondent

Sandiganbayan in connection with the criminal cases in question and has
appeared in other preliminary investigation of other PHILFINANCE charges filed
in various fiscals' offices and the Ministry (now Department) of Justice, it is
apparent that the non-service of the subpoena upon him was not of his own
doing or liking. To apply the full force and effect of section 3, sub-section (d) of
Rule 112 of the 1985 Rules on Criminal Procedure would, to our mind, greatly
prejudice him.
LLjur

It is worthwhile repeating that the avowed purposes of a preliminary investigation

are "to secure the innocent against hasty, malicious and oppressive prosecution,
and to protect him from an open and public accusation of crime, from the trouble,
expense and anxiety of a public trial, and also to protect the state from useless
and expensive trials. 9 And while the "absence of preliminary investigations does
not affect the court's jurisdiction over the case (n)or do they impair the validity of
the information or otherwise render it defective, but, if there were no preliminary
investigations and the defendants, before entering their plea, invite the attention
of the court to their absence, the court, instead of dismissing the information,
should conduct such investigation, order the fiscal to conduct it or remand the
case to the inferior court so that the preliminary investigation may be
conducted. 10 In this case, the Tanodbayan has the duty to conduct the said
investigation. 11
Thus, although the Sandiganbayan was correct in ruling that the absence of a
preliminary investigation is not a ground for quashing an information, it should
have held the proceedings in the criminal cases in abeyance pending resolution

by the Tanodbayan of petitioner's petition for reinvestigation, as alternatively

prayed for by him in his motion to quash.
During the pendency of the case at bar, petitioner manifested to the Court that in
a Joint Order dated September 26, 1985, Tanodbayan Special Prosecutors Roger
C. Berbano, Sr. and Eleuterio F. Guerrero had recommended that the separate
petitions for reinvestigation filed by petitioner and his co-accused be given due
course by the Tanodbayan and that said special prosecutors be given clearance
and authority to conduct such reinvestigation. Although it appears that these
recommendations were approved by then Tanodbayan Bernardo P. Fernandez on
October 14, 1985, 12 no further report on this matter has reached the Court. As
we cannot assume that the reinvestigation was indeed conducted as would
render the instant petition moot and academic, and considering the importance of
the issue involved, we deemed it proper to decide the petition on the merits.
WHEREFORE, the assailed resolution of the respondent Sandiganbayan dated
July 15, 1985 in Criminal Cases No. 10389, 10390, 10391, 10393 and 10394 is
hereby affirmed, but respondent Sandiganbayan is ordered to hold in abeyance
the proceedings therein with respect to petitioner, subject to the outcome of the
reinvestigation of the Tanodbayan of the aforesaid cases. The Temporary
Restraining Order issued by the Court of August 1, 1985 is deemed superseded
by this directive.
SO ORDERED.
|||

(Rodis, Sr. v. Sandiganbayan, G.R. Nos. 71404-09, [October 26, 1988], 248

PHIL 854-861)

16
[G.R. No. 216920. January 13, 2016.]
GIRLIE
M.
QUISAY, petitioner, vs. PEOPLE
PHILIPPINES, respondent.

OF

THE

DECISION
PERLAS-BERNABE, J :
p

Assailed in this petition for review on certiorari 1 are the

Decision 2 dated October 10, 2014 and the Resolution 3 dated January 30,
2015 of the Court of Appeals (CA) in CA-G.R. SP No. 131968, which affirmed
the denial of petitioner Girlie M. Quisay's (petitioner) Motion to Quash before
the Regional Trial Court of Makati, Branch 144 (RTC).
The Facts
On December 28, 2012, the Office of the City Prosecutor of Makati City
(OCP-Makati) issued a Pasiya 4 or Resolution finding probable cause against
petitioner for violation of Section 10 of Republic Act No. (RA)
7610, 5 otherwise known as the "Special Protection of Children Against
Abuse, Exploitation and Discrimination Act." Consequently, a Pabatid
Sakdal 6 or Information was filed before the RTC on January 11, 2013
charging petitioner of such crime.
On April 12, 2013, petitioner moved for the quashal of the Information
against her on the ground of lack of authority of the person who filed the same
before the RTC. In support of her motion, petitioner pointed out that
the Pasiya issued by the OCP-Makati was penned by Assistant City
Prosecutor Estefano H. De La Cruz (ACP De La Cruz) and approved by
Senior Assistant City Prosecutor Edgardo G. Hirang (SACP Hirang), while
the Pabatid Sakdal was penned by ACP De La Cruz, without any approval
from any higher authority, albeit with a Certification claiming that ACP De La
Cruz has prior written authority or approval from the City Prosecutor in filing
the said Information. In this regard, petitioner claimed that nothing in the
aforesaid Pasiya and Pabatid Sakdal would show that ACP De La Cruz and/or
SACP Hirang had prior written authority or approval from the City Prosecutor
to file or approve the filing of the Information against her. As such, the
Information must be quashed for being tainted with a jurisdictional defect that
cannot be cured. 7

In its Comment and Opposition, 8 the OCP-Makati countered that the

review prosecutor, SACP Hirang, was authorized to approve
the Pasiya pursuant to OCP-Makati Office Order No. 32. 9 Further, it
maintained that the Pabatid Sakdal was filed with the prior approval of the City
Prosecutor as shown in the Certification in the Information itself. 10
The RTC Ruling
In an Order 11 dated May 8, 2013, the RTC denied petitioner's motion to
quash for lack of merit. It found the Certification attached to the Pabatid
Sakdal to have sufficiently complied with Section 4, Rule 112 of the Rules of
Court which requires the prior written authority or approval by, among others,
the City Prosecutor, in the filing of Informations. 12
Petitioner moved for reconsideration, 13 which was, however, denied in
an Order 14 dated July 10, 2013. Aggrieved, petitioner elevated the matter to
the CA viaa petition for certiorari. 15
The CA Ruling
In a Decision 16 dated October 10, 2014, the CA affirmed the RTC
ruling. It held that pursuant to Section 9 of RA 10071, 17 otherwise known as
the "Prosecution Service Act of 2010," as well as OCP-Makati Office Order
No. 32, the City Prosecutor of Makati authorized SACP Hirang to approve the
issuance of, inter alia, resolutions finding probable cause and the filing of
Informations before the courts. As such, SACP Hirang may, on behalf of the
City Prosecutor, approve the Pasiyawhich found probable cause to indict
petitioner of violation of Section 10 of RA 7610. 18
aDSIHc

Further, it held that the Certification made by ACP De La Cruz in

the Pabatid Sakdal clearly indicated that the same was filed after the requisite
preliminary investigation and with the prior written authority or approval of the
City Prosecutor. In this regard, the CA opined that such Certification enjoys
the presumption of regularity accorded to a public officer's performance of
official functions, in the absence of convincing evidence to the contrary. 19
Undaunted, petitioner moved for reconsideration, 20 but was denied in a
Resolution 21 dated January 30, 2015; hence, this petition.
The Issue Before the Court

The core issue for the Court's resolution is whether or not the CA
correctly held that the RTC did not gravely abuse its discretion in dismissing
petitioner's motion to quash.
The Court's Ruling
The petition is meritorious.
Section 4, Rule 112 of the 2000 Revised Rules on Criminal
Procedure states that the filing of a complaint or information requires a prior
written authority or approval of the named officers therein before a complaint
or information may be filed before the courts, viz.:
SECTION 4. Resolution of investigating prosecutor and its
review. If the investigating prosecutor finds cause to hold the
respondent for trial, he shall prepare the resolution and information. He
shall certify under oath in the information that he, or as shown by the
record, an authorized officer, has personally examined the complainant
and his witnesses; that there is reasonable ground to believe that a
crime has been committed and that the accused is probably guilty
thereof; that the accused was informed of the complaint and of the
evidence submitted against him; and that he was given an opportunity
to submit controverting evidence. Otherwise, he shall recommend the
dismissal of the complaint.
Within five (5) days from his resolution, he shall forward the
record of the case to the provincial or city prosecutor or chief state
prosecutor, or to the Ombudsman or his deputy in cases of offenses
cognizable by the Sandiganbayan in the exercise of its original
jurisdiction. They shall act on the resolution within ten (10) days from
their receipt thereof and shall immediately inform the parties of such
action.
No complaint or information may be filed or dismissed by an
investigating prosecutor without the prior written authority or
approval of the provincial orcity prosecutor or chief state prosecutor
or the Ombudsman or his deputy.
xxx xxx xxx (Emphases and underscoring supplied)

Thus, as a general rule, complaints or informations filed before the

courts without the prior written authority or approval of the foregoing
authorized officers renders the same defective and, therefore, subject to
quashal pursuant to Section 3 (d), Rule 117 of the same Rules, to wit:
SECTION 3. Grounds. The accused may move to quash the
complaint or information on any of the following grounds:
xxx xxx xxx
(d) That the officer who filed the information had no
authority to do so;
xxx xxx xxx (Emphasis and underscoring supplied)

In this relation, People v. Garfin 22 firmly instructs that the filing of an

Information by an officer without the requisite authority to file the same
constitutes a jurisdictional infirmity which cannot be cured by silence, waiver,
acquiescence, or even by express consent. Hence, such ground may be
raised at any stage of the proceedings. 23
In the case at bar, the CA affirmed the denial of petitioner's motion to
quash on the grounds that: (a) the City Prosecutor of Makati may delegate its
authority to approve the filing of the Pabatid Sakdal pursuant to Section 9
of RA 10071, as well as OCP-Makati Office Order No. 32; and (b) the Pabatid
Sakdal contained a Certification stating that its filing before the RTC was with
the prior written authority or approval from the City Prosecutor.
ETHIDa

The CA correctly held that based on the wordings of Section 9 of RA

10071, which gave the City Prosecutor the power to "[i]nvestigate
and/or cause to be investigated all charges of crimes, misdemeanors and
violations of penal laws and ordinances within their respective
jurisdictions, and have the necessary information or complaint prepared
or made and filed against the persons accused," 24 he may indeed delegate
his power to his subordinates as he may deem necessary in the interest of the
prosecution service. The CA also correctly stressed that it is under the
auspice of this provision that the City Prosecutor of Makati issued OCP-Makati
Office Order No. 32, which gave division chiefs or review prosecutors
"authority to approve or act on any resolution, order, issuance, other action,

and any information recommended by any prosecutor for approval," 25 without

necessarily diminishing the City Prosecutor's authority to act directly in
appropriate cases. 26 By virtue of the foregoing issuances, the City Prosecutor
validly designated SACP Hirang, Deputy City Prosecutor Emmanuel D.
Medina, and Senior Assistant City Prosecutor William Celestino T. Uy as
review prosecutors for the OCP-Makati. 27
In this light, the Pasiya or Resolution finding probable cause to indict
petitioner of the crime charged, was validly made as it bore the approval of
one of the designated review prosecutors for OCP-Makati, SACP Hirang, as
evidenced by his signature therein.
Unfortunately, the same could not be said of the Pabatid Sakdal or
Information filed before the RTC, as there was no showing that it was
approved by either the City Prosecutor of Makati or any of the OCP-Makati's
division chiefs or review prosecutors. All it contained was a Certification from
ACP De La Cruz which stated, among others, that "DAGDAG KO PANG
PINATUTUNAYAN na ang paghahain ng sakdal na ito ay may nakasulat na
naunang pahintulot o pagpapatibay ng Panlunsod na Taga-Usig" 28 which
translates to "and that the filing of the Information is with the prior authority
and approval of the City Prosecutor."
In the cases of People v. Garfin, 29 Turingan v. Garfin, 30 and Tolentino
v. Paqueo, 31 the Court had already rejected similarly-worded certifications,
uniformly holding that despite such certifications, the Informations were
defective as it was shown that the officers filing the same in court either lacked
the authority to do so or failed to show that they obtained prior written
authority from any of those authorized officers enumerated in Section 4, Rule
112 of the 2000 Revised Rules of Criminal Procedure.
Here, aside from the bare and self-serving Certification, there was no
proof that ACP De La Cruz was authorized to file the Pabatid Sakdal or
Information before the RTC by himself. Records are bereft of any showing that
the City Prosecutor of Makati had authorized ACP De La Cruz to do so by
giving him prior written authority or by designating him as a division chief or
review prosecutor of OCP-Makati. There is likewise nothing that would indicate
that ACP De La Cruz sought the approval of either the City Prosecutor or any

of those authorized pursuant to OCP-Makati Office Order No. 32 in filing

the Pabatid Sakdal. Quite frankly, it is simply baffling how ACP De La Cruz
was able to have the Pasiya approved by designated review prosecutor SACP
Hirang but failed to have the Pabatid Sakdal approved by the same person or
any other authorized officer in the OCP-Makati.
In view of the foregoing circumstances, the CA erred in according
the Pabatid Sakdal the presumption of regularity in the performance of official
functions solely on the basis of the Certification made by ACP De La Cruz
considering the absence of any evidence on record clearly showing that ACP
De La Cruz: (a) had any authority to file the same on his own; or (b) did seek
the prior written approval from those authorized to do so before filing the
Information before the RTC.
In conclusion, the CA erred in affirming the RTC's dismissal of
petitioner's motion to quash as the Pabatid Sakdal or Information suffers from
an incurable infirmity that the officer who filed the same before the RTC had
no authority to do so. Hence, the Pabatid Sakdal must be quashed, resulting
in the dismissal of the criminal case against petitioner.
As a final note, it must be stressed that "[t]he Rules of Court governs
the pleading, practice, and procedure in all courts of the Philippines. For the
orderly administration of justice, the provisions contained therein should be
followed by all litigants, but especially by the prosecution arm of the
Government." 32
WHEREFORE, the petition is GRANTED. The Decision dated October
10, 2014 and the Resolution dated January 30, 2015 of the Court of Appeals
in CA-G.R. SP No. 131968 are hereby REVERSED and SET ASIDE.
Accordingly, the Information against petitioner Girlie M. Quisay
is QUASHED and the criminal case against her isDISMISSED.
cSEDTC

SO ORDERED.
|||

(Quisay v. People, G.R. No. 216920, [January 13, 2016])

17
[G.R. No. 147932. January 25, 2006.]

LAILA G. DE OCAMPO, petitioner, vs. THE HONORABLE

SECRETARY OF JUSTICE, MAGDALENA B. DACARRA, and
ERLINDA P. ORAYAN, respondents.
Pedro R. Lazo for petitioner.
The Solicitor General for public respondent.
SYLLABUS

1. REMEDIAL LAW; CRIMINAL PROCEDURE; PRELIMINARY INVESTIGATION;

CLARIFICATORY HEARING IS OPTIONAL ON THE PART OF THE
INVESTIGATING OFFICER. A clarificatory hearing is not indispensable during
preliminary investigation. Rather than being mandatory, a clarificatory hearing is
optional on the part of the investigating officer as evidenced by the use of the
term "may" in Section 3 (e) of Rule 112. This provision states: (e) If the
investigating officer believes that there are matters to be clarified he may set a
hearing to propound clarificatory questions to the parties or their witnesses,
during which the parties shall be afforded an opportunity to be present but
without the right to examine or cross-examine. . . . The use of the word "may" in a
statute commonly denotes that it is directory in nature. The term "may" is
generally permissive only and operates to confer discretion. Under Section 3 (e)
of Rule 112, it is within the discretion of the investigation officer whether to set the
case for further hearings to clarify some matters.
2. ID.; ID.; ID.; NATURE AND PURPOSE THEREOF EXPLAINED. Petitioner
was not deprived of due process since both parties were accorded equal rights in
arguing their case and presenting their respective evidence during the preliminary
investigation. Due process is merely an opportunity to be heard. Petitioner cannot
successfully invoke denial of due process since she was given the opportunity of
a hearing. She even submitted her counter-affidavit to the investigating
prosecutor on 18 January 2000. Preliminary investigation is merely inquisitorial. It
is not a trial of the case on the merits. Its sole purpose is to determine whether a
crime has been committed and whether the respondent is probably guilty of the

crime. It is not the occasion for the full and exhaustive display of the parties'
evidence. Hence, if the investigating prosecutor is already satisfied that he can
reasonably determine the existence of probable cause based on the parties'
evidence thus presented, he may terminate the proceedings and resolve the
case.
3. ID.; ID.; ID.; SECURING AUTOPSY REPORT DURING PRELIMINARY
INVESTIGATION IS NOT PROHIBITED. Though the autopsy report is not part
of the parties' evidence, the Rules on preliminary investigation do not forbid the
investigating prosecutor from obtaining it. Neither is there a law requiring the
investigating prosecutor to notify the parties before securing a copy of the
autopsy report. The autopsy report, which states the causes of Ronald's death,
can either absolve or condemn the petitioner. Unfortunately for petitioner, the
investigating prosecutor found that the autopsy report bolstered complainants'
allegations.
4. ID.; ID.; ID.; PROBABLE CAUSE, DEFINED; EXEMPLIFIED IN CASE AT
BAR. Probable cause is the existence of such facts and circumstances as
would excite the belief in a reasonable mind that a crime has been committed
and the respondent is probably guilty of the crime. In the present case, Ronald, a
nine year-old student, died five days after his teacher, petitioner in this case,
allegedly banged his head against that of his classmate Lorendo. There is
nothing in the records showing petitioner's specific denial of the occurrence of
such act. Petitioner simply stated that "the head-banging incident happened but
[she] did not perpetrate it." In effect, petitioner admits the occurrence of the headbanging incident but denies committing it. The alleged intervening events before
Ronald died, namely: (a) the consultation with a quack doctor, and (b) the threeday confinement in the East Avenue Medical Center, are not sufficient to break
the relation of the felony committed and the resulting injury. Were it not for the
head-banging incident, Ronald might not have needed medical assistance in the
first place.
5. CRIMINAL LAW; REPUBLIC ACT 7610; CHILD ABUSE AS DEFINED, NOT
AMBIGUOUS; RATIONALE. Contrary to petitioner's contention, Section 10
(a), Article VI of RA 7610 is clear. This provision reads: (a) Any person who shall
commit any other acts of child abuse, cruelty or exploitation or be responsible for

other conditions prejudicial to the child's development including those covered by

Article 59 of Presidential Decree No. 603, as amended, but not covered by the
Revised Penal Code, as amended, shall suffer the penalty of prision mayor in its
minimum period. Ambiguity is a condition of admitting two or more meanings, of
being understood in more than one way, or of referring to two or more things at
the same time. A statute is ambiguous if it is susceptible to more than one
interpretation. In the present case, petitioner fails to show convincingly the
ambiguity in Section 10 (a), Article VI of RA 7610. Section 3 (b), Article VI of RA
7610 defines "child abuse" as the maltreatment whether habitual or not, of the
child which includes physical abuse and cruelty. Petitioner's alleged banging of
the heads of Ronald and Lorendo is clearly an act of cruelty.

DECISION
CARPIO, J :
p

The Case
This petition for certiorari 1 assails the Resolutions dated 15 September 2000 and
19 April 2001 of the Secretary of the Department of Justice ("DOJ Secretary") in
I.C. No. 99-6254. 2 The DOJ Secretary 3 denied Laila G. De Ocampo's
("petitioner") petition for review of the investigating prosecutor's finding of
probable cause against her for homicide 4 in relation to Section 10(a), Article VI
of Republic Act No. 7610 ("RA 7610") 5 and for violation of the same provision of
RA 7610. The DOJ Secretary 6 also denied petitioner's motion for
reconsideration.
The Facts
The present case arose from a sworn statement of respondent Magdalena B.
Dacarra ("Magdalena") executed before the Women's Desk of the CPD Police
Station in Batasan Hills, Quezon City on 10 December 1999. Magdalena stated
that on 4 December 1999, her nine-year-old son Ronald complained of dizziness
upon arriving home at about six in the evening. Ronald then vomited, prompting

Magdalena to ask what happened. Ronald replied that petitioner, who was
Ronald's teacher, banged his head against that of his classmate Lorendo Orayan
("Lorendo"). Magdalena inspected Ronald's head and saw a woundless
contusion. Due to Ronald's continued vomiting, Magdalena brought him to a
quack doctor (arbularyo) on 5 December 1999. The following morning,
Magdalena brought Ronald to the East Avenue Medical Center where he
underwent an x-ray. The attending physician informed Magdalena that Ronald's
head had a fracture. Blood oozed out of Ronald's nose before he died on 9
December 1999.
Lorendo also executed a sworn statement narrating how petitioner banged his
head against Ronald's.
During the inquest proceedings on 14 December 1999, Assistant Quezon City
Prosecutor Maria Lelibet Sampaga ("inquest prosecutor") ruled as follows:
Evidence warrants the release of the respondent for further investigation
of the charges against her. The case is not proper for inquest as the
incident complained of happened on December 4, 1999. Further, we find
the evidence insufficient to support the charge for homicide against the
respondent. There is no concrete evidence to show proof that the alleged
banging of the heads of the two minor victims could be the actual and
proximate cause of the death of minor Ronald Dacarra y Baluton.
Besides, the police report submitted by the respondent in this case
states that said victim bears stitches or sutures on the head due to a
vehicular accident. There is no certainty, therefore, that respondent's
alleged wrongdoing contributed or caused the death of said victim. 7

Subsequently, the case was referred to Assistant Quezon City Prosecutor Lorna
F. Catris-Chua Cheng ("investigating prosecutor") for preliminary investigation.
She scheduled the first hearing on 6 January 2000.
Respondent Erlinda P. Orayan ("Erlinda"), Lorendo's mother, attended the
hearing of 6 January 2000 and alleged that petitioner offered her P100,000,
which she initially accepted, for her and her son's non-appearance at the
preliminary investigation. Erlinda presented the money to the investigating
prosecutor.

On 7 January 2000, Jennilyn Quirong, who witnessed the head-banging incident,

and Melanie Lugales, who claimed to be another victim of petitioner's alleged
cruel deeds, filed their sworn statements with the Office of the Quezon City
Prosecutor.
On 18 January 2000, petitioner submitted her counter-affidavit. Petitioner invoked
the disposition of the inquest prosecutor finding insufficient evidence to support
the charges against her. Petitioner assailed the omission in Magdalena's sworn
statement about Ronald's head injury due to a vehicular accident in November
1997. Petitioner pointed out the absence of damage or injury on Lorendo as
borne out by his medical certificate. Petitioner contended that the head-banging
incident was not the proximate cause of Ronald's death, but the failed medical
attention or medical negligence. Petitioner also alleged that Jennilyn Quirong and
Melanie Lugales have immature perception. Petitioner further asserted that the
causes of death stated in Ronald's Death Certificate are hearsay and
inadmissible in the preliminary investigation.
cTaDHS

Ronald's Death Certificate shows the immediate cause of his death as "Cardio
Pulmonary Arrest," the underlying cause as "Cerebral Edema," and other
significant conditions contributing to death as "Electrolyte imbalance and
vomiting." The Autopsy Report, obtained by the investigating prosecutor from the
PNP Crime Laboratory in Camp Crame, states the cause of death as "Intracranial
hemorrhage secondary to traumatic injury of the head."
The investigating prosecutor issued a Resolution finding probable cause against
petitioner for the offenses charged. The dispositive portion of the Resolution
reads:
WHEREFORE, in view of the foregoing, it is respectfully recommended
that [petitioner] be charged with Homicide in relation to Art. VI, Sec. 10 of
R.A. 7610 and Violation of Art. VI, Sec. 10(a) of R.A. 7610 with no bail
recommended for the Homicide since par. 6 of Art. VI of Sec. 10 of R.A.
7610 provides that:
"For purposes of this Act, the penalty for the commission of acts
punishable under Articles 248, 249, 262, par. 2 and 263, par.
1 Act No. 3815, as amended, the Revised Penal Code, for the
crimes of murder, homicide, other intentional mutilation

and serious physical injuries, respectively, shall be reclusion

perpetua when the victim is under twelve (12) years of age."
Bail recommended: No bail recommended Homicide, in relation to Art.
VI, Sec. 10, R.A. 7610; and Twenty Thousand pesos
(P20,000.00) Viol. of Sec. 10(a) of R.A. 7610 8

Consequently, petitioner filed a petition for review with the DOJ.

In her appeal to the DOJ, petitioner contended that the investigating prosecutor
showed bias in favor of complainants Magdalena and Erlinda ("complainants") for
not conducting a clarificatory hearing and unilaterally procuring the autopsy
report. Petitioner argued that the investigating prosecutor erred in concluding that
her alleged act of banging Ronald and Lorendo's heads was the cause of
Ronald's injury and that such was an act of child abuse. Petitioner also alleged
that it is the Office of the Ombudsman which has jurisdiction over the case, and
not the Quezon City Prosecutor's Office.
The Resolution of the DOJ Secretary
The DOJ Secretary denied the petition for review. The DOJ Secretary held that
there was no bias in complainants' favor when the investigating prosecutor did
not conduct a clarificatory hearing and unilaterally procured the autopsy report as
nothing precluded her from doing so.
The DOJ Secretary upheld the investigating prosecutor's finding that Ronald's
injury was the direct and natural result of petitioner's act of banging Ronald and
Lorendo's heads. The DOJ Secretary stated that petitioner never denied such
act, making her responsible for all its consequences even if the immediate cause
of Ronald's death was allegedly the failed medical attention or medical
negligence. The DOJ Secretary held that assuming there was failure of medical
attention or medical negligence, these inefficient intervening causes did not break
the relation of the felony committed and the resulting injury.
The DOJ Secretary rejected petitioner's claim that she is innocent as held by the
inquest prosecutor. The inquest prosecutor did not dismiss the case. She merely
recommended petitioner's release for further investigation since the case was not
proper for inquest and the evidence was then insufficient.

The DOJ Secretary further stated that the omission in Magdalena's sworn
statement about Ronald's head injury due to a vehicular accident in November
1997 and the absence of any injury on Lorendo are inconsequential.
Moreover, the DOJ Secretary ruled that whether the statements of the causes of
death in the death certificate and autopsy report are hearsay, and whether
Jennilyn Quirong and Melanie Lugales have immature perception, are evidentiary
matters which should be determined during trial. The DOJ Secretary also
sustained the investigating prosecutor's conclusion that the banging of Ronald
and Lorendo's heads is an act of child abuse.
Petitioner filed a motion for reconsideration 9 which the DOJ Secretary denied in
his Resolution dated 19 April 2001. 10
Hence, this petition.
The Issues
Petitioner raises the following issues:
1. Whether petitioner was denied due process during the
preliminary investigation; and
2. Whether there is probable cause against petitioner for homicide
under Article 249 of the Revised Penal Code in relation to
Section 10(a), Article VI of RA 7610 and for violation of
Section 10(a), Article VI of RA 7610.
The Ruling of the Court
The petition lacks merit.
Before resolving the substantive issues in this case, the Court will address the
procedural issue raised by the Office of the Solicitor General ("OSG"). 11 The
OSG contends that instead of Rule 65, Rule 43 is applicable to the present case.
Thus, the OSG argues that the petition should be dismissed outright for being
filed with this Court, instead of with the Court of Appeals, under a wrong mode of
appeal. On the other hand, assuming Rule 65 applies, the OSG points out that
the petition for certiorarishould be filed with the Court of Appeals.

Based on Memorandum Circular No. 58, 12 the resolution of the DOJ Secretary is
appealable administratively to the Office of the President since the offenses
charged in this case are punishable by reclusion perpetua. 13 From the Office of
the President, the aggrieved party may file an appeal with the Court of Appeals
pursuant to Rule 43. 14
Even assuming that the DOJ Secretary committed grave abuse of discretion in
rendering the assailed Resolutions amounting to lack or excess of jurisdiction,
petitioner should have filed the instant petition for certiorari with the Court of
Appeals. Hence, on the issue alone of the propriety of the remedy sought by
petitioner, this petition for certiorari must fail. However, considering the gravity of
the offenses charged and the need to expedite the disposition of this case, the
Court will relax the rules and finally resolve this case in the interest of substantial
justice.
aTHASC

Whether petitioner was denied

due process during the preliminary investigation
Absence of a clarificatory hearing
The Court rejects petitioner's contention that she was denied due process when
the investigating prosecutor did not conduct a clarificatory hearing. A clarificatory
hearing is not indispensable during preliminary investigation. Rather than being
mandatory, a clarificatory hearing is optional on the part of the investigating
officer as evidenced by the use of the term "may" in Section 3(e) of Rule 112.
This provision states:
(e) If the investigating officer believes that there are matters to be
clarified, he may set a hearing to propound clarificatory
questions to the parties or their witnesses, during which the
parties shall be afforded an opportunity to be present but without
the right to examine or cross-examine. . . . 15 (emphasis supplied)

The use of the word "may" in a statute commonly denotes that it is directory in
nature. The term "may" is generally permissive only and operates to confer
discretion. 16 Under Section 3(e) of Rule 112, it is within the discretion of the

investigation officer whether to set the case for further hearings to clarify some
matters.
In this case, the investigating prosecutor no longer conducted hearings after
petitioner submitted her counter-affidavit. This simply means that at that point the
investigating prosecutor believed that there were no more matters for clarification.
It is only in petitioner's mind that some "crucial points" still exist and need
clarification. In any event, petitioner can raise these "important" matters during
the trial proper.
Petitioner was not deprived of due process since both parties were accorded
equal rights in arguing their case and presenting their respective evidence during
the preliminary investigation. Due process is merely an opportunity to be
heard. 17 Petitioner cannot successfully invoke denial of due process since she
was given the opportunity of a hearing. 18 She even submitted her counteraffidavit to the investigating prosecutor on 18 January 2000.
Preliminary investigation is merely inquisitorial. It is not a trial of the case on the
merits. 19 Its sole purpose is to determine whether a crime has been committed
and whether the respondent is probably guilty of the crime. 20 It is not the
occasion for the full and exhaustive display of the parties' evidence. 21 Hence, if
the investigating prosecutor is already satisfied that he can reasonably determine
the existence of probable cause based on the parties' evidence thus presented,
he may terminate the proceedings and resolve the case.
Obtaining a copy of the autopsy report
Petitioner argues that she was denied the right to examine evidence submitted by
complainants when the investigating prosecutor unilaterally obtained a copy of
the autopsy report from the PNP Crime Laboratory.
Petitioner fails to persuade us. Though the autopsy report is not part of the
parties' evidence, the Rules on preliminary investigation do not forbid the
investigating prosecutor from obtaining it. Neither is there a law requiring the
investigating prosecutor to notify the parties before securing a copy of the
autopsy report. The autopsy report, which states the causes of Ronald's death,
can either absolve or condemn the petitioner. Unfortunately for petitioner, the

investigating prosecutor found that the autopsy report bolstered complainants'

allegations.
Moreover, there is nothing to support petitioner's claim that the investigating
prosecutor was biased in favor of complainants. There are other pieces of
evidence aside from the autopsy report upon which the investigating prosecutor
based her finding of probable cause. The autopsy report is not the sole piece of
evidence against petitioner. The sworn statement of the other victim, Lorendo,
and the eyewitness account of Jennilyn Quirong, substantiate the charges
against petitioner. Petitioner's failure to deny the occurrence of the head-banging
incident also strengthened complainants' allegations.
Petitioner mistakenly cites Section 3(d) of Rule 112 22 in arguing that the
investigating prosecutor should not go beyond the evidence presented by
complainants in resolving the case. This provision applies if the respondent
cannot be subpoenaed or if subpoenaed fails to submit her counter-affidavit
within the prescribed period. Such is not the case here where petitioner filed her
counter-affidavit and both parties presented their respective evidence.
Whether there is probable cause
for the offenses charged against petitioner
Existence of probable cause
Petitioner challenges the finding of probable cause against her for the offenses
charged arguing that the head-banging incident was not the proximate cause of
Ronald's death. Petitioner insists that efficient intervening events caused
Ronald's death.
We do not agree. There is probable cause for the offenses charged against
petitioner. Probable cause is the existence of such facts and circumstances as
would excite the belief in a reasonable mind that a crime has been committed
and the respondent is probably guilty of the crime. 23
In the present case, Ronald, a nine-year-old student, died five days after his
teacher, petitioner in this case, allegedly banged his head against that of his
classmate Lorendo. There is nothing in the records showing petitioner's specific
denial of the occurrence of such act. Petitioner simply stated that "the head-

banging incident happened but [she] did not perpetrate it." 24 In effect, petitioner
admits the occurrence of the head-banging incident but denies committing it.
The alleged intervening events before Ronald died, namely: (a) the consultation
with a quack doctor, and (b) the three-day confinement in the East Avenue
Medical Center, are not sufficient to break the relation of the felony committed
and the resulting injury. Were it not for the head-banging incident, Ronald might
not have needed medical assistance in the first place.
These circumstances which allegedly intervened causing Ronald's death are
evidentiary matters which should be threshed out during the trial. The following
are also matters better left for the trial court to appreciate: (a) the contents of the
death certificate and autopsy report, (b) the medical records of Ronald's accident
in November 1997, (c) the perception of witnesses Jennilyn Quirong and Melanie
Lugales, and (d) the alleged lack of medical assistance or medical negligence
which caused Ronald's death.
To repeat, what is determined during preliminary investigation is only probable
cause, not proof beyond reasonable doubt. 25 As implied by the words
themselves, "probable cause" is concerned with probability, not absolute or moral
certainty. 26
Asserting her innocence, petitioner continues to invoke the disposition of the
inquest prosecutor finding insufficient evidence for the charges against her. As
correctly ruled by the DOJ Secretary, the inquest prosecutor did not dismiss the
case but merely recommended it for further investigation since it was not proper
for inquest and the evidence was then insufficient. Moreover, petitioner's active
participation in the preliminary investigation without questioning the propriety of
such proceedings indicates petitioner's agreement with the recommendation of
the inquest prosecutor for the further investigation of the case.
SaIEcA

Charges of Homicide and Child Abuse

Petitioner's single act of allegedly banging the heads of her students had two
distinct victims, namely Ronald and Lorendo. Therefore, petitioner has to face
prosecution for cruelty to each victim. For Ronald's death, petitioner is being
charged with homicide under Article 249 of the Revised Penal Code 27 in relation
to Section 10(a), Article VI of RA 7610 punishable by reclusion

perpetua. 28 However, this does not mean that petitioner is being charged with
the distinct offenses of homicide and child abuse for Ronald's death. On the other
hand, for her cruelty to Lorendo, petitioner is being charged with violation of
Section 10(a), Article VI of RA 7610 punishable by prision mayor in its minimum
period.
Contrary to petitioner's contention, Section 10(a), Article VI of RA 7610 is clear.
This provision reads:
(a) Any person who shall commit any other acts of child abuse, cruelty or
exploitation or be responsible for other conditions prejudicial to the
child's development including those covered by Article 59 of Presidential
Decree No. 603, as amended, but not covered by the Revised Penal
Code, as amended, shall suffer the penalty ofprision mayor in its
minimum period.

Ambiguity is a condition of admitting two or more meanings, of being

understood in more than one way, or of referring to two or more things at the
same time. A statute is ambiguous if it is susceptible to more than one
interpretation. 29 In the present case, petitioner fails to show convincingly the
ambiguity in Section 10(a), Article VI of RA 7610.
Section 3(b), Article VI of RA 7610 defines "child abuse" as the maltreatment,
whether habitual or not, of the child which includes physical abuse and cruelty.
Petitioner's alleged banging of the heads of Ronald and Lorendo is clearly an act
of cruelty.
In a petition for certiorari like this case, the primordial issue is whether the DOJ
Secretary acted with grave abuse of discretion amounting to lack or excess of
jurisdiction. The Court rules that the DOJ Secretary did not commit grave abuse
of discretion in finding that there is probable cause to charge petitioner of the
crimes of homicide and child abuse. The Court further rules that the investigating
prosecutor did not act with grave abuse of discretion in securing motu proprio the
autopsy report and in not calling for a clarificatory hearing. This ruling does not
diminish in any way the constitutional right of petitioner to be presumed innocent
until the contrary is proven.

WHEREFORE, we DENY the instant petition. We AFFIRM the Resolutions of the

Secretary of Justice dated 15 September 2000 and 19 April 2001 in I.C. No. 996254. No pronouncement as to costs.
SO ORDERED.
|||

(De Ocampo v. Secretary of Justice, G.R. No. 147932, [January 25, 2006], 515

PHIL 702-716)

18
[G.R. No. 217508. April 18, 2016.]
JOSEPH SCOTT PEMBERTON, petitioner, vs. HON. LEILA M.
DE LIMA, in her capacity as the Secretary of Justice, JUDGE
ROLINE GINEZ-JABALDE, in her capacity as Presiding Judge
of Branch 74 of the Regional Trial Court of Olongapo City, and
MARILOU LAUDE y SERDONCILLO, respondents.
DECISION
LEONEN, J :
p

This resolves a Petition for Certiorari 1 praying that the Resolutions

dated January 27, 2015 2 and February 20, 2015 3 of respondent Secretary of
Justice Leila M. De Lima (Secretary De Lima) in I.S. No. III-10-INV-14J01102 4 be reversed and set aside. 5
A complaint for murder was filed by the Philippine National PoliceOlongapo City Police Office and private respondent Marilou Laude y
Serdoncillo (Laude) against petitioner Joseph Scott Pemberton (Pemberton). 6
On October 17, 2014, Pemberton received a Subpoena 7 issued by the
City Prosecutor of Olongapo City giving him 10 days from receipt within which
to file a counter-affidavit. 8 Laude filed an Omnibus Motion 9 dated October 21,

2014 praying that the City Prosecutor of Olongapo City issue subpoenas
addressed to: (a) "Pemberton, directing him to present himself for the lifting of
his fingerprint and of buccal swabs during the clarificatory hearing set on
[November 5,] 2014;" 10 and (b) the Philippine National Police Crime
Laboratory, directing the Chief of Office to assign forensic personnel to gather
fingerprints and buccal swabs from Pemberton and subject him to "forensic
examination and analysis, including DNA testing." 11 Pemberton opposed this
in his Opposition to the Omnibus Motion dated 21 October 2014 12 dated
October 27, 2014. 13 He also filed a Manifestation and Omnibus Motion: (1)
For Clarification; (2) To Declare Absence of Probable Cause for Murder or Any
Other Crime Against [Petitioner]; and (3) By Way of Ad Cautela [sic] Prayer, in
the Event that this Honorable Office does not Declare the Absence of
Probable Cause, at the very least, To Reduce the Charge to Homicide
Considering the Lack of Circumstances Qualifying the Offense to
Murder 14 dated October 27, 2014. 15
During the preliminary investigation on October 27, 2014, the City
Prosecutor of Olongapo City stated that Pemberton's right to file a counteraffidavit was deemed waived. 16 In the Order dated October 29, 2014, the City
Prosecutor directed the Philippine National Police Crime Laboratory to obtain
latent fingerprint and buccal swabs from Pemberton and "to submit . . . the
results of the forensic examination within a period of three (3) weeks . . . from
the date of actual collection of the specimen[s.]" 17
Pemberton filed a Manifestation with Omnibus Motion: 1) to Determine
Probable Cause on the Basis of Evidence Submitted as of 27 October 2014;
and 2) For Reconsideration of the Order dated 29 October 2014 18 dated
November 4, 2014. 19
However, the City Prosecutor of Olongapo City continued to evaluate
the evidence and conducted ocular inspections in connection with the
preliminary investigation. 20 Through the Resolution dated December 15,
2014, it "found probable cause against [Pemberton] for the crime of
murder." 21 On the same day, an Information 22 for murder was filed against
Pemberton before the Regional Trial Court of Olongapo City. 23 The case was

docketed as Criminal Case No. 865-2014 and was raffled to Branch 74 of the
Regional Trial Court. 24 The trial court issued a warrant of arrest. 25
On December 18, 2014, Pemberton filed his Petition for Review before
the Department of Justice. 26 On the same day, he filed a Motion to Defer the
Proceedings 27 before the Regional Trial Court. 28
In the Resolution dated January 27, 2015, Secretary De Lima denied
Pemberton's Petition for Review 29 and stated that based on the evidence on
record, there was "no reason to alter, modify, or reverse the resolution of the
City Prosecutor of Olongapo City." 30 Pemberton's Motion for Reconsideration
was likewise denied for lack of merit in the Resolution dated February 20,
2015. 31
Aggrieved, Pemberton filed this Petition for Certiorari with application for
the ex-parte issuance of a temporary restraining order and/or writ of
preliminary injunction. 32
CAIHTE

Pemberton argues that in sustaining a finding of probable cause,

Secretary De Lima committed grave abuse of discretion amounting to excess
or absence of jurisdiction based on the following grounds: (a) Secretary De
Lima took into account additional evidence which the City Prosecutor allegedly
had no authority to receive and which Pemberton had no opportunity to
address and rebut, thereby denying him due process of law; 33 (b) Secretary
De Lima found probable cause to charge Pemberton with the crime of murder
when "the evidence on record does not support the existence of probable
cause to indict [him] . . . with either homicide or murder[;]" 34 and (c) Secretary
De Lima found that "the killing was attended with the qualifying circumstances
of treachery, abuse of superior strength[,] and cruelty despite prevailing
jurisprudence dictating that the elements of these qualifying circumstances . . .
be established by direct evidence." 35
Secretary De Lima, through the Office of the Solicitor General, points
out that this Petition is procedurally infirm. The Petition assails the
appreciation of evidence and law by Secretary De Lima, which are "errors of
judgment . . . [that] cannot be remedied by a writ of certiorari." 36 Further, by
filing this Petition before this court and not the Court of Appeals, Pemberton
violated the principle of hierarchy of courts. 37 Moreover, the case is moot and

academic, considering that the Regional Trial Court has convicted Pemberton
for the crime charged. 38
Thus, for resolution are the following issues:
First, whether respondent Secretary Leila M. De Lima committed grave
abuse of discretion in sustaining the finding of probable cause against
petitioner Joseph Scott Pemberton, thereby denying petitioner due process of
law;
Second, whether petitioner violated the principle of hierarchy of courts
by filing his Petition before this Court instead of the Court of Appeals; and
Lastly, whether this case has been rendered moot and academic.
We deny the Petition for Certiorari for lack of merit and for being moot
and academic.
I
In Alafriz v. Nable, 39 this Court defined grave abuse of discretion:
Certiorari lies where a court has acted without or in excess of
jurisdiction or with grave abuse of discretion. "Without jurisdiction"
means that the court acted with absolute want of jurisdiction. There is
"excess of jurisdiction" where the court has jurisdiction but has
transcended the same or acted without any statutory authority. "Grave
abuse of discretion" implies such capricious and whimsical exercise of
judgment as is equivalent to lack of jurisdiction, or, in other words,
where the power is exercised in an arbitrary or despotic manner by
reason of passion or personal hostility, and it must be so patent and
gross as to amount to an evasion of positive duty or to a virtual refusal
to perform the duty enjoined or to act at all in contemplation of
law. 40 (Citations omitted)

In Ching v. Secretary of Justice, 41 this Court expounded on the

evidence required for a determination of probable cause:
Probable cause need not be based on clear and convincing evidence
of guilt, as the investigating officer acts upon probable cause of
reasonable belief. Probable cause implies probability of guilt and
requires more than bare suspicion but less than evidence which would

justify a conviction. A finding of probable cause needs only to rest on

evidence showing that more likely than not, a crime has been
committed by the suspect. 42

This was reiterated in Chan v. Secretary of Justice: 43

Probable cause has been defined as the existence of such facts
and circumstances as would lead a person of ordinary caution and
prudence to entertain an honest and strong suspicion that the person
charged is guilty of the crime subject of the investigation. Being based
merely on opinion and reasonable belief, it does not import absolute
certainty. Probable cause need not be based on clear and convincing
evidence of guilt, as the investigating officer acts upon reasonable
belief. Probable cause implies probability of guilt and requires more
than bare suspicion but less than evidence which would justify a
conviction. 44

There is no basis to doubt that respondent De Lima judiciously

scrutinized the evidence on record. Based on respondent De Lima's
assessment, there was ample evidence submitted to establish probable cause
that petitioner murdered the victim:
First, the killing of Laude has been indubitably confirmed.
Second, the various pieces of evidence so far presented in this
case, i.e., the CCTV footage of Ambyanz showing Gelviro, Laude and
respondent leaving the club together; the unequivocal testimonies of
Gelviro and Gallamos positively identifying respondent as the person
who was last seen with Laude on the night he died; the result of the
general physical examination conducted on respondent showing
abrasions and light scratches on different parts of his body; his latent
print on one of the condoms found at the crime scene; and the
unequivocal testimonies of respondent's fellow Marine servicemen who
were with him on that fateful night, lead to no other conclusion than that
respondent was the perpetrator of the crime.
Third, the results of the physical examination conducted on
respondent and Laude's cadaver, as well as the ocular inspection of
the crime scene, demonstrate the attendant qualifying circumstances
of treachery, abuse of superior strength, and cruelty.

Finally, the killing is neither parricide nor infanticide as provided

under the RPC, as amended. Hence, the charge of murder.
DETACa

The convergence of the foregoing circumstances all taken

together leads to the fair and reasonable inference that respondent is
probably guilty of killing Laude through treachery, abuse of superior
strength, and cruelty.
Maintaining his innocence, respondent points out the lack of any
direct evidence linking him to the crime. We are not persuaded.
Absence of direct evidence does not preclude a finding of
probable cause. It has been the consistent pronouncement of the
Supreme Court that, in such cases, the prosecution may resort to
circumstantial evidence. Crimes are usually committed in secret and
under conditions where concealment is highly probable. If direct
evidence is insisted upon under all circumstances, the guilt of vicious
felons who committed heinous crimes in secret or in secluded places
will be hard, if not impossible, to prove.
In view of the importance of the qualifying circumstances as the
bases for respondent's indictment for the crime of murder, the same
are heretofore discussed and explained.
There is treachery when these two elements occur: (1) the
employment of means of execution that give the persons attacked no
opportunity to defend themselves or retaliate; and (2) the means of
execution were deliberately or consciously adopted.
Treachery clearly attended the killing of Laude. The evidence
reveals that respondent choked him from behind. The autopsy results
as well as the examination conducted by the NCIS indicate that there
were visible pressure marks and a circular purplish discoloration
around his neck. In addition, the Medico Legal Report No. A14163RCLO5 shows that the external portion of the right horn of his
larynx is contused and that there is hematoma on the upper inner
portions of the larynx below the glottis. It is apparent that the manner of
attack employed by respondent rendered Laude unable to defend
himself or to retaliate.
It has been repeatedly held that the essence of treachery is the
sudden attack by an aggressor without the slightest provocation on the

part of the victim, depriving the latter of any real chance to defend
himself, thereby ensuring the commission of the crime without risk to
the aggressor. We note that the short span of time it took to kill Laude
indicates the suddenness of the attack. According to the separate
testimonies of certain witnesses, the lifeless body of Laude was
discovered thirty (30) minutes after Gelviro left the room.
HEITAD

Moreover, the absence of provocation on the part of Laude to

warrant such vicious attack need not be debated. He went with
respondent on his own volition to engage in sexual acts in exchange for
money. Thus, he most probably did not expect to be in danger and,
consequently, he was unlikely unable to defend himself against the
unwarranted attack.
In appreciating the element of abuse of superior strength, it is
not only necessary to evaluate the physical conditions of the
protagonists or opposing forces and the arms or objects employed by
both sides, but it is also necessary to analyse the incidents and
episodes constituting the total development of the event. We aptly note
that respondent is a member of [the] United States Marine Corps,
which is known to have the strictest recruitment standards among the
Uniformed Services of the United States Armed Forces. In view of the
rigorous physical and mental training requirements for enlistment, all
members of the Marine Corps possess superior strength and
exceptional combat skills. On the other hand, Laude, albeit biologically
a man, is a transgender who chose to adapt (sic) a woman's physical
appearance and behavior. Thus, it is clear that there is manifest
physical disparity between respondent and Laude and that the former
took advantage of his superior strength to cause the death of Laude,
as evidenced by the multiple abrasions and contusions found on the
latter.
On the other hand, there is cruelty when the culprit enjoys and
delights in making his victim suffer slowly and gradually, causing him
unnecessary physical pain in the consummation of the criminal act.
The test is whether respondent deliberately and sadistically augmented
the wrong by causing another wrong not necessary for its commission
or inhumanly increased the victim's suffering or outraged or scoffed at
his person or corpse. The autopsy results that Laude died of "asphyxia

due to drowning and strangulation" shows that while he was still

breathing, respondent drowned him by forcefully submerging his head
in the water inside the toilet bowl. This grisly scenario, coupled with
Laude's other major injuries, clearly show that he suffered excessively
prior to his death. Respondent opted to kill him in a manner that
increased his suffering and caused him unnecessary physical pain
before his death. Drowning Laude in a toilet bowl evidently indicates
respondent's intention to degrade him. 45 (Citations omitted)

Respondent De Lima's finding of probable cause against petitioner was

not rendered with grave abuse of discretion. Rather, her determination was
based on a careful evaluation of evidence presented.
Moreover, petitioner was fully accorded due process in the preliminary
investigation proceedings. This Court has explained that the essence of due
process is an opportunity to be heard:
aDSIHc

The essence of due process is that a party is afforded a

reasonable opportunity to be heard in support of his case; what the law
abhors and prohibits is the absolute absence of the opportunity to be
heard. When the party seeking due process was in fact given several
opportunities to be heard and to air his side, but it was by his own fault
or choice that he squandered these chances, then his cry for due
process must fail. 46 (Citations omitted)

Petitioner had multiple opportunities to controvert the evidence

presented during the preliminary investigation. He was directed to file a
counter-affidavit, which was an opportunity to refute the allegations against
him. Petitioner was also given the opportunity to seek reconsideration of the
initial finding of probable cause.
II
In The Diocese of Bacolod v. Commission on Elections, 47 we explained
the role of this Court in relation to the doctrine of hierarchy of courts:
This brings us to the issue of whether petitioners violated the
doctrine of hierarchy of courts in directly filing their petition before this
court.

Respondents contend that petitioners' failure to file the proper

suit with a lower court of concurrent jurisdiction is sufficient ground for
the dismissal of their petition. They add that observation of the
hierarchy of courts is compulsory, citing Heirs of Bertuldo Hinog v.
Melicor. While respondents claim that while there are exceptions to the
general rule on hierarchy of courts, none of these are present in this
case.
On the other hand, petitioners cite Fortich v. Corona on this
court's discretionary power to take cognizance of a petition filed directly
to it if warranted by "compelling reasons, or [by] the nature and
importance of the issues raised. . . ." Petitioners submit that there are
"exceptional and compelling reasons to justify a direct resort [with] this
Court."
In Baez, Jr. v. Concepcion, we explained the necessity of the
application of the hierarchy of courts:
The Court must enjoin the observance of the
policy on the hierarchy of courts, and now affirms that the
policy is not to be ignored without serious consequences.
The strictness of the policy is designed to shield the
Court from having to deal with causes that are also well
within the competence of the lower courts, and thus leave
time to the Court to deal with the more fundamental and
more essential tasks that the Constitution has assigned
to it. The Court may act on petitions for the extraordinary
writs of certiorari, prohibition and mandamus only when
absolutely necessary or when serious and important
reasons exist to justify an exception to the policy.
In Baez, we also elaborated on the reasons why lower courts
are allowed to issue writs of certiorari, prohibition, and mandamus,
citing Vergara v. Suelto:
The Supreme Court is a court of last resort, and
must so remain if it is to satisfactorily perform the
functions assigned to it by the fundamental charter and
immemorial tradition. It cannot and should not be
burdened with the task of dealing with causes in the first

instance. Its original jurisdiction to issue the so-called

extraordinary writs should be exercised only where
absolutely necessary or where serious and important
reasons exist therefore. Hence, that jurisdiction should
generally be exercised relative to actions or proceedings
before the Court of Appeals, or before constitutional or
other tribunals, bodies or agencies whose acts for some
reason or another are not controllable by the Court of
Appeals. Where the issuance of an extraordinary writ is
also within the competence of the Court of Appeals or a
Regional Trial Court, it is in either of these courts that the
specific action for the writ's procurement must be
presented. This is and should continue to be the policy in
this regard, a policy that courts and lawyers must strictly
observe.
The doctrine that requires respect for the hierarchy of courts
was created by this court to ensure that every level of the judiciary
performs its designated roles in an effective and efficient manner. Trial
courts do not only determine the facts from the evaluation of the
evidence presented before them. They are likewise competent to
determine issues of law which may include the validity of an ordinance,
statute, or even an executive issuance in relation to the Constitution. To
effectively perform these functions, they are territorially organized into
regions and then into branches. Their writs generally reach within
those territorial boundaries. Necessarily, they mostly perform the allimportant task of inferring the facts from the evidence as these are
physically presented before them. In many instances, the facts occur
within their territorial jurisdiction, which properly present the 'actual
case' that makes ripe a determination of the constitutionality of such
action. The consequences, of course, would be national in scope.
There are, however, some cases where resort to courts at their level
would not be practical considering their decisions could still be
appealed before the higher courts, such as the Court of Appeals.
The Court of Appeals is primarily designed as an appellate court
that reviews the determination of facts and law made by the trial courts.
It is collegiate in nature. This nature ensures more standpoints in the

review of the actions of the trial court. But the Court of Appeals also
has original jurisdiction over most special civil actions. Unlike the trial
courts, its writs can have a nationwide scope. It is competent to
determine facts and, ideally, should act on constitutional issues that
may not necessarily be novel unless there are factual questions to
determine.
This court, on the other hand, leads the judiciary by breaking
new ground or further reiterating in the light of new circumstances or
in the light of some confusions of bench or bar existing precedents.
Rather than a court of first instance or as a repetition of the actions of
the Court of Appeals, this court promulgates these doctrinal devices in
order that it truly performs that role. 48

We proceeded to name exceptional cases, where direct resort to this

Court may be allowed:
First, a direct resort to this court is allowed when there are
genuine issues of constitutionality that must be addressed at the most
immediate time. A direct resort to this court includes availing of the
remedies of certiorari and prohibition to assail the constitutionality of
actions of both legislative and executive branches of the government.
In this case, the assailed issuances of respondents prejudice
not only petitioners' right to freedom of expression in the present case,
but also of others in future similar cases. The case before this court
involves an active effort on the part of the electorate to reform the
political landscape. This has become a rare occasion when private
citizens actively engage the public in political discourse. To quote an
eminent political theorist:
ETHIDa

[T]he theory of freedom of expression involves more than

a technique for arriving at better social judgments through
democratic procedures. It comprehends a vision of
society, a faith and a whole way of life. The theory grew
out of an age that was awakened and invigorated by the
idea of new society in which man's mind was free, his
fate determined by his own powers of reason, and his
prospects of creating a rational and enlightened
civilization virtually unlimited. It is put forward as a

prescription for attaining a creative, progressive, exciting

and intellectually robust community. It contemplates a
mode of life that, through encouraging toleration,
skepticism, reason and initiative, will allow man to realize
his full potentialities. It spurns the alternative of a society
that is tyrannical, conformist, irrational and stagnant.
In a democracy, the citizen's right to freely participate in the
exchange of ideas in furtherance of political decision-making is
recognized. It deserves the highest protection the courts may provide,
as public participation in nation-building is a fundamental principle in
our Constitution. As such, their right to engage in free expression of
ideas must be given immediate protection by this court.
A second exception is when the issues involved are of
transcendental importance. In these cases, the imminence and clarity
of the threat to fundamental constitutional rights outweigh the necessity
for prudence. The doctrine relating to constitutional issues of
transcendental importance prevents courts from the paralysis of
procedural niceties when clearly faced with the need for substantial
protection.
In the case before this court, there is a clear threat to the
paramount right of freedom of speech and freedom of expression
which warrants invocation of relief from this court. The principles laid
down in this decision will likely influence the discourse of freedom of
speech in the future, especially in the context of elections. The right to
suffrage not only includes the right to vote for one's chosen candidate,
but also the right to vocalize that choice to the public in general, in the
hope of influencing their votes. It may be said that in an election year,
the right to vote necessarily includes the right to free speech and
expression. The protection of these fundamental constitutional rights,
therefore, allows for the immediate resort to this court.
Third, cases of first impression warrant a direct resort to this
court. In cases of first impression, no jurisprudence yet exists that will
guide the lower courts on this matter. In Government of the United
States v. Purganan, this court took cognizance of the case as a matter
of first impression that may guide the lower courts:

In the interest of justice and to settle once and for

all the important issue of bail in extradition proceedings,
we deem it best to take cognizance of the present case.
Such proceedings constitute a matter of first impression
over which there is, as yet, no local jurisprudence to
guide lower courts.
This court finds that this is indeed a case of first impression
involving as it does the issue of whether the right of suffrage includes
the right of freedom of expression. This is a question which this court
has yet to provide substantial answers to, through jurisprudence. Thus,
direct resort to this court is allowed.
Fourth, the constitutional issues raised are better decided by
this court. In Drilon v. Lim, this court held that:
. . . it will be prudent for such courts, if only out of
a becoming modesty, to defer to the higher judgment of
this Court in the consideration of its validity, which is
better determined after a thorough deliberation by a
collegiate body and with the concurrence of the majority
of those who participated in its discussion.
In this case, it is this court, with its constitutionally enshrined
judicial power, that can rule with finality on whether COMELEC
committed grave abuse of discretion or performed acts contrary to the
Constitution through the assailed issuances.
Fifth, the time element presented in this case cannot be ignored.
This case was filed during the 2013 election period. Although the
elections have already been concluded, future cases may be filed that
necessitate urgency in its resolution. Exigency in certain situations
would qualify as an exception for direct resort to this court.
Sixth, the filed petition reviews the act of a constitutional organ.
COMELEC is a constitutional body. In Albano v. Arranz, cited by
petitioners, this court held that "[i]t is easy to realize the chaos that
would ensue if the Court of First Instance of each and every province
were [to] arrogate itself the power to disregard, suspend, or contradict
any order of the Commission on Elections: that constitutional body
would be speedily reduced to impotence."

In this case, if petitioners sought to annul the actions of

COMELEC through pursuing remedies with the lower courts, any ruling
on their part would not have been binding for other citizens whom
respondents may place in the same situation. Besides, this court
affords great respect to the Constitution and the powers and duties
imposed upon COMELEC. Hence, a ruling by this court would be in the
best interest of respondents, in order that their actions may be guided
accordingly in the future.
Seventh, petitioners rightly claim that they had no other plain,
speedy, and adequate remedy in the ordinary course of law that could
free them from the injurious effects of respondents' acts in violation of
their right to freedom of expression.
cSEDTC

In this case, the repercussions of the assailed issuances on this

basic right constitute an exceptionally compelling reason to justify the
direct resort to this court. The lack of other sufficient remedies in the
course of law alone is sufficient ground to allow direct resort to this
court.
Eighth, the petition includes questions that are "dictated by
public welfare and the advancement of public policy, or demanded by
the broader interest of justice, or the orders complained of were found
to be patent nullities, or the appeal was considered as clearly an
inappropriate remedy." In the past, questions similar to these which this
court ruled on immediately despite the doctrine of hierarchy of courts
included citizens' right to bear arms, government contracts involving
modernization of voters' registration lists, and the status and existence
of a public office.
This case also poses a question of similar, if not greater import.
Hence, a direct action to this court is permitted.
It is not, however, necessary that all of these exceptions must
occur at the same time to justify a direct resort to this court. While
generally, the hierarchy of courts is respected, the present case falls
under the recognized exceptions and, as such, may be resolved by this
court directly. 49

A direct invocation of this Court's original jurisdiction to issue these writs

should be allowed only when there are special and important reasons clearly
and specifically set out in the petition. 50
In this case, petitioner alleges that the case against him has been
scheduled for an expedited trial. 51 Thus, petitioner claims that it is necessary
"to expeditiously arrive at a definitive ruling as to whether . . . respondent [De
Lima] committed grave abuse of discretion . . . in issuing the [a]ssailed
[r]esolutions." 52 In his view, a direct invocation of this Court's original
jurisdiction is necessary. Petitioner argues that without this Court's
intervention, a situation may result where "the trial has already concluded[,]
while the issue on whether there exists probable cause to charge [petitioner]
with the crime of murder . . . has not been settled with finality." 53
This argument is completely bereft of merit. It is not clear why any
action by the Court of Appeals, which has concurrent original jurisdiction in
petitions forcertiorari under Rule 65, cannot be considered as sufficient for
review of petitioner's case.
Furthermore, the possibility of the conclusion of the trial of the case
against petitioner is not a reason that is special and important enough to
successfully invoke this Court's original jurisdiction. Once there has been a
judicial finding of probable cause, an executive determination of probable
cause is irrelevant. Consequently, even assuming that grave abuse of
discretion somehow taints an executive finding of probable cause, such grave
abuse of discretion has no effect in a trial. Whether respondent De Lima,
indeed, committed grave abuse of discretion in relation to the executive
determination of probable cause is irrelevant to the trial itself.
III
A petition for certiorari questioning the validity of the preliminary
investigation in any other venue is rendered moot by the issuance of a warrant
of arrest and the conduct of arraignment. In De Lima v. Reyes: 54
The filing of the information and the issuance by the trial court of
the respondent's warrant of arrest has already rendered this Petition
moot.

It is settled that executive determination of probable cause is

different from the judicial determination of probable cause. In People v.
Castillo and Mejia:
There are two kinds of determination of probable
cause: executive
and
judicial.
The
executive
determination of probable cause is one made during
preliminary investigation. It is a function that properly
pertains to the public prosecutor who is given a broad
discretion to determine whether probable cause exists
and to charge those whom he believes to have committed
the crime as defined by law and thus should be held for
trial. Otherwise stated, such official has the quasi-judicial
authority to determine whether or not a criminal case
must be filed in court. Whether or not that function has
been correctly discharged by the public prosecutor, i.e.,
whether or not he has made a correct ascertainment of
the existence of probable cause in a case, is a matter
that the trial court itself does not and may not be
compelled to pass upon.
The judicial determination of probable cause, on
the other hand, is one made by the judge to ascertain
whether a warrant of arrest should be issued against the
accused. The judge must satisfy himself that based on
the evidence submitted, there is necessity for placing the
accused under custody in order not to frustrate the ends
of justice. If the judge finds no probable cause, the judge
cannot be forced to issue the arrest warrant.
The courts do not interfere with the prosecutor's conduct of a
preliminary investigation. The prosecutor's determination of probable
cause is solely within his or her discretion. Prosecutors are given a
wide latitude of discretion to determine whether an information should
be filed in court or whether the complaint should be dismissed.
SDAaTC

A preliminary investigation is "merely inquisitorial," and is only

conducted to aid the prosecutor in preparing the information. It serves
a two-fold purpose: first, to protect the innocent against wrongful

prosecutions; and second, to spare the state from using its funds and
resources in useless prosecutions. . . .
xxx xxx xxx
Once the information is filed in court, the court acquires
jurisdiction of the case and any motion to dismiss the case or to
determine the accused's guilt or innocence rests within the sound
discretion of the court. In Crespo v. Mogul:
The filing of a complaint or information in Court
initiates a criminal action. The Court thereby acquires
jurisdiction over the case, which is the authority to hear
and determine the case. When after the filing of the
complaint or information a warrant for the arrest of the
accused is issued by the trial court and the accused
either voluntarily submitted himself to the court or was
duly arrested, the Court thereby acquired jurisdiction over
the person of the accused.
The preliminary investigation conducted by the
fiscal for the purpose of determining whether a prima
facie case exists warranting the prosecution of the
accused is terminated upon the filing of the information in
the proper court. In turn, as above stated, the filing of
said information sets in motion the criminal action against
the accused in Court. Should the fiscal find it proper to
conduct a reinvestigation of the case, at such stage, the
permission of the Court must be secured. After such
reinvestigation the finding and recommendations of the
fiscal should be submitted to the Court for appropriate
action. While it is true that the fiscal has the quasi-judicial
discretion to determine whether or not a criminal case
should be filed in court or not, once the case had already
been brought to Court whatever disposition the fiscal may
feel should be proper in the case thereafter should be
addressed for the consideration of the Court, the only
qualification is that the action of the Court must not impair
the substantial rights of the accused or the right of the
People to due process of law.

Whether the accused had been arraigned or not

and whether it was due to a reinvestigation by the fiscal
or a review by the Secretary of Justice whereby a motion
to dismiss was submitted to the Court, the Court in the
exercise of its discretion may grant the motion or deny it
and require that the trial on the merits proceed for the
proper determination of the case.
However, one may ask, if the trial court refuses to
grant the motion to dismiss filed by the fiscal upon the
directive of the Secretary of Justice will there not be a
vacuum in the prosecution? A state prosecutor to handle
the case cannot possibly be designated by the Secretary
of Justice who does not believe that there is a basis for
prosecution nor can the fiscal be expected to handle the
prosecution of the case thereby defying the superior
order of the Secretary of Justice.
The answer is simple. The role of the fiscal or
prosecutor as We all know is to see that justice is done
and not necessarily to secure the conviction of the person
accused before the Courts. Thus, in spite of his [or her]
opinion to the contrary, it is the duty of the fiscal to
proceed with the presentation of evidence of the
prosecution to the Court to enable the Court to arrive at
its own independent judgment as to whether the accused
should be convicted or acquitted. The fiscal should not
shirk from the responsibility of appearing for the People
of the Philippines even under such circumstances much
less should he [or she] abandon the prosecution of the
case leaving it to the hands of a private prosecutor for
then the entire proceedings will be null and void. The
least that the fiscal should do is to continue to appear for
the prosecution although he [or she] may turn over the
presentation of the evidence to the private prosecutor but
still under his direction and control.
The rule therefore in this jurisdiction is that once a
complaint or information is filed in Court, any disposition

of the case as to its dismissal or the conviction or

acquittal of the accused rests in the sound discretion of
the Court. Although the fiscal retains the direction and
control of the prosecution of criminal cases even while
the case is already in Court he [or she] cannot impose
his [or her] opinion on the trial court. The Court is the
best and sole judge on what to do with the case before it.
The determination of the case is within its exclusive
jurisdiction and competence. A motion to dismiss the
case filed by the fiscal should be addressed to the Court
who has the option to grant or deny the same. It does not
matter if this is done before or after the arraignment of
the accused or that the motion was filed after a
reinvestigation or upon instructions of the Secretary of
Justice who reviewed the records of the investigation.
Thus, it would be ill-advised for the Secretary of Justice to
proceed with resolving respondent's Petition for Review pending before
her. It would be more prudent to refrain from entertaining the Petition
considering that the trial court already issued a warrant of arrest
against respondent. The issuance of the warrant signifies that the trial
court has made an independent determination of the existence of
probable cause. . . .
xxx xxx xxx
Here, the trial court has already determined, independently of
any finding or recommendation by the First Panel or the Second Panel,
that probable cause exists for the issuance of the warrant of arrest
against respondent. Probable cause has been judicially determined.
Jurisdiction over the case, therefore, has transferred to the trial court. A
petition for certiorari questioning the validity of the preliminary
investigation in any other venue has been rendered moot by the
issuance of the warrant of arrest and the conduct of
arraignment. 55 (Emphasis in the original)

Respondent De Lima's manifestation regarding the conviction of

petitioner of the crime of homicide 56 is well-taken. However, even without the
conviction, this Petition has already been rendered moot and academic by

virtue of the judicial finding of probable cause in the form of the Regional Trial
Court's issuance of an arrest warrant against petitioner.
WHEREFORE, the Petition for Certiorari is DISMISSED. The January
27, 2015 Resolution and the February 20, 2015 Resolution of respondent
Secretary of Justice Leila M. De Lima in I.S. No. III-10-INV-14J-01102
are AFFIRMED.
SO ORDERED.
|||

(Pemberton v. De Lima, G.R. No. 217508, [April 18, 2016])

19
[G.R. No. 164317. February 6, 2006.]
ALFREDO CHING, petitioner, vs. THE SECRETARY OF
JUSTICE, ASST. CITY PROSECUTOR CECILYN BURGOSVILLAVERT, JUDGE EDGARDO SUDIAM of the Regional Trial
Court, Manila, Branch 52; RIZAL COMMERCIAL BANKING
CORP. and THE PEOPLE OF THE PHILIPPINES, respondents.
Balgos & Perez for petitioner.
The Solicitor General for public respondents.
Ponce Enrile Reyes & Manalastas for RCBC.
SYLLABUS

1. REMEDIAL LAW; CIVIL PROCEDURE; FORUM SHOPPING; PETITIONER'S

CERTIFICATION IS INCOMPLETE AND UNINTELLIGIBLE AS IT FAILED TO
CERTIFY THAT HE "HAD NOT COMMENCED ANY OTHER ACTION
INVOLVING THE SAME ISSUES BEFORE THE COURTS, ANY OTHER
TRIBUNAL OR AGENCY." We agree with the ruling of the CA that the

certification of non-forum shopping petitioner incorporated in his petition before

the appellate court is defective. Under Section 1, second paragraph of Rule 65 of
the Revised Rules of Court, the petition should be accompanied by a sworn
certification of non-forum shopping, as provided in the third paragraph of Section
3, Rule 46 of said Rules. Compliance with the certification against forum
shopping is separate from and independent of the avoidance of forum shopping
itself. The requirement is mandatory. The failure of the petitioner to comply with
the foregoing requirement shall be sufficient ground for the dismissal of the
petition without prejudice, unless otherwise provided. Indubitably, the first
paragraph of petitioner's certification is incomplete and unintelligible. Petitioner
failed to certify that he "had not heretofore commenced any other action involving
the same issues in the Supreme Court, the Court of Appeals or the different
divisions thereof or any other tribunal or agency" as required by paragraph 4,
Section 3, Rule 46 of the Revised Rules of Court. We agree with petitioner's
contention that the certification is designed to promote and facilitate the orderly
administration of justice, and therefore, should not be interpreted with absolute
literalness. In his works on the Revised Rules of Civil Procedure, former Supreme
Court Justice Florenz Regalado states that, with respect to the contents of the
certification which the pleader may prepare, the rule of substantial compliance
may be availed of. However, there must be a special circumstance or compelling
reason which makes the strict application of the requirement clearly unjustified.
The instant petition has not alleged any such extraneous circumstance.
Moreover, as worded, the certification cannot even be regarded as substantial
compliance with the procedural requirement. Thus, the CA was not informed
whether, aside from the petition before it, petitioner had commenced any other
action involving the same issues in other tribunals.
2. ID.; SPECIAL CIVIL ACTIONS; CERTIORARI; MAY NULLIFY ACTS OF THE
SECRETARY OF JUSTICE THAT IS CONTRARY TO LAW, WITHOUT
AUTHORITY AND/OR IN EXCESS OF AUTHORITY. In Mendoza-Arce v.
Office of the Ombudsman (Visayas), this Court held that the acts of a quasijudicial officer may be assailed by the aggrieved party via a petition
for certiorari and enjoined (a) when necessary to afford adequate protection to
the constitutional rights of the accused; (b) when necessary for the orderly
administration of justice; (c) when the acts of the officer are without or in excess

of authority; (d) where the charges are manifestly false and motivated by the lust
for vengeance; and (e) when there is clearly no prima facie case against the
accused. The Court also declared that, if the officer conducting a preliminary
investigation (in that case, the Office of the Ombudsman) acts without or in
excess of his authority and resolves to file an Information despite the absence of
probable cause, such act may be nullified by a writ of certiorari. Indeed, under
Section 4, Rule 112 of the 2000 Rules of Criminal Procedure, the Information
shall be prepared by the Investigating Prosecutor against the respondent only if
he or she finds probable cause to hold such respondent for trial. The
Investigating Prosecutor acts without or in excess of his authority under the Rule
if the Information is filed against the respondent despite absence of evidence
showing probable cause therefore. If the Secretary of Justice reverses the
Resolution of the Investigating Prosecutor who found no probable cause to hold
the respondent for trial, and orders such prosecutor to file the Information despite
the absence of probable cause; the Secretary of Justice acts contrary to law,
without authority and/or in excess of authority. Such resolution may likewise be
nullified in a petition for certiorari under Rule 65 of the Revised Rules of Civil
Procedure.
3. ID.; ID.; ID.; THE SECRETARY OF JUSTICE ACTED IN ACCORD WITH LAW
AND EVIDENCE IN HIS RESOLUTIONS UPHOLDING THE FINDING OF
PROBABLE CAUSE; CASE AT BAR. A preliminary investigation, designed to
secure the respondent against hasty, malicious and oppressive prosecution, is an
inquiry to determine whether (a) a crime has been committed; and (b) whether
there is probable cause to believe that the accused is guilty thereof. It is a means
of discovering the person or persons who may be reasonably charged with a
crime. Probable cause need not be based on clear and convincing evidence of
guilt, as the investigating officer acts upon probable cause of reasonable belief.
Probable cause implies probability of guilt and requires more than bare suspicion
but less than evidence which would justify a conviction. A finding of probable
cause needs only to rest on evidence showing that more likely than not, a crime
has been committed by the suspect. However, while probable cause should be
determined in a summary manner, there is a need to examine the evidence with
care to prevent material damage to a potential accused's constitutional right to
liberty and the guarantees of freedom and fair play and to protect the State from

the burden of unnecessary expenses in prosecuting alleged offenses and holding

trials arising from false, fraudulent or groundless charges. In this case, petitioner
failed to establish that the Secretary of Justice committed grave abuse of
discretion in issuing the assailed resolutions. Indeed, he acted in accord with law
and the evidence.
4. MERCANTILE LAW; TRUST RECEIPTS LAW (P.D. NO. 115); TRANSACTION
BETWEEN PETITIONER AND RESPONDENT BANK FALLS UNDER THE
TRUST RECEIPT TRANSACTIONS ENVISAGED IN P.D. NO. 115;
RESPONDENT BANK IMPORTED THE GOODS AND ENTRUSTED THE SAME
TO PETITIONER'S COMPANY UNDER THE TRUST RECEIPTS SIGNED BY
PETITIONER, AS ENTRUSTEE, WITH THE BANK AS ENTRUSTER. An
entrustee is one having or taking possession of goods, documents or instruments
under a trust receipt transaction, and any successor in interest of such person for
the purpose of payment specified in the trust receipt agreement. The entrustee is
obliged to: (1) hold the goods, documents or instruments in trust for the entruster
and shall dispose of them strictly in accordance with the terms and conditions of
the trust receipt; (2) receive the proceeds in trust for the entruster and turn over
the same to the entruster to the extent of the amount owing to the entruster or as
appears on the trust receipt; (3) insure the goods for their total value against loss
from fire, theft, pilferage or other casualties; (4) keep said goods or proceeds
thereof whether in money or whatever form, separate and capable of
identification as property of the entruster; (5) return the goods, documents or
instruments in the event of non-sale or upon demand of the entruster; and (6)
observe all other terms and conditions of the trust receipt not contrary to the
provisions of the decree. The entruster shall be entitled to the proceeds from the
sale of the goods, documents or instruments released under a trust receipt to the
entrustee to the extent of the amount owing to the entruster or as appears in the
trust receipt, or to the return of the goods, documents or instruments in case of
non-sale, and to the enforcement of all other rights conferred on him in the trust
receipt; provided, such are not contrary to the provisions of the document. In the
case at bar, the transaction between petitioner and respondent bank falls under
the trust receipt transactions envisaged in P.D. No. 115. Respondent bank
imported the goods and entrusted the same to PBMI under the trust receipts
signed by petitioner, as entrustee, with the bank as entruster.

5. ID.; ID.; THE TRUST RECEIPTS LAW APPLIES TO GOODS USED BY THE
ENTRUSTEE IN THE OPERATION OF ITS MACHINERIES AND EQUIPMENT.
It must be stressed that P.D. No. 115 is a declaration by legislative authority
that, as a matter of public policy, the failure of person to turn over the proceeds of
the sale of the goods covered by a trust receipt or to return said goods, if not
sold, is a public nuisance to be abated by the imposition of penal sanctions. The
Court likewise rules that the issue of whether P.D. No. 115 encompasses
transactions involving goods procured as a component of a product ultimately
sold has been resolved in the affirmative in Allied Banking Corporation v.
Ordoez. The law applies to goods used by the entrustee in the operation of its
machineries and equipment. The non-payment of the amount covered by the
trust receipts or the non-return of the goods covered by the receipts, if not sold or
otherwise not disposed of, violate the entrustee's obligation to pay the amount or
to return the goods to the entruster.
6. ID.; ID.; PENALTY CLAUSE OF P.D. NO. 115; ALTHOUGH PETITIONER
SIGNED THE TRUST RECEIPTS MERELY AS SENIOR VICE-PRESIDENT OF
THE COMPANY AND HAS NO PHYSICAL POSSESSION OF THE GOODS, HE
CANNOT AVOID PROSECUTION FOR VIOLATION OF THE LAW.
In Colinares v. Court of Appeals, the Court declared that there are two possible
situations in a trust receipt transaction. The first is covered by the provision which
refers to money received under the obligation involving the duty to deliver it
(entregarla) to the owner of the merchandise sold. The second is covered by the
provision which refers to merchandise received under the obligation to return it
(devolvera) to the owner. Thus, failure of the entrustee to turn over the proceeds
of the sale of the goods covered by the trust receipts to the entruster or to return
said goods if they were not disposed of in accordance with the terms of the trust
receipt is a crime under P.D. No. 115, without need of proving intent to defraud.
The law punishes dishonesty and abuse of confidence in the handling of money
or goods to the prejudice of the entruster, regardless of whether the latter is the
owner or not. A mere failure to deliver the proceeds of the sale of the goods, if
not sold, constitutes a criminal offense that causes prejudice, not only to another,
but more to the public interest. The Court rules that although petitioner signed the
trust receipts merely as Senior Vice-President of PBMI and had no physical

possession of the goods, he cannot avoid prosecution for violation of P.D. No.
115.
7. ID.; ID.; PERSONS HELD RESPONSIBLE FOR VIOLATION OF THE TRUST
RECEIPTS LAW WHEN ENTRUSTEE IS A CORPORATION; RATIONALE.
The crime defined in P.D. No. 115 is malum prohibitum but is classified
as estafa under paragraph 1 (b), Article 315 of the Revised Penal Code, or estafa
with abuse of confidence. It may be committed by a corporation or other juridical
entity or by natural persons. However, the penalty for the crime is imprisonment
for the periods provided in said Article 315. Article 315. Swindling (estafa). Any
person who shall defraud another by any of the means mentioned hereinbelow
shall be punished by: 1st. The penalty of prision correccional in its maximum
period to prision mayor in its minimum period, if the amount of the fraud is over
12,000 pesos but does not exceed 22,000 pesos; and if such amount exceeds
the latter sum, the penalty provided in this paragraph shall be imposed in its
maximum period, adding one year for each additional 10,000 pesos; but the total
penalty which may be imposed shall not exceed twenty years. In such cases, and
in connection with the accessory penalties which may be imposed and for the
purpose of the other provisions of this Code, the penalty shall be termed prision
mayor or reclusion temporal, as the case may be. Though the entrustee is a
corporation, nevertheless, the law specifically makes the officers, employees or
other officers or persons responsible for the offense, without prejudice to the civil
liabilities of such corporation and/or board of directors, officers, or other officials
or employees responsible for the offense. The rationale is that such officers or
employees are vested with the authority and responsibility to devise means
necessary to ensure compliance with the law and, if they fail to do so, are held
criminally accountable; thus, they have a responsible share in the violations of
the law. If the crime is committed by a corporation or other juridical entity, the
directors, officers, employees or other officers thereof responsible for the offense
shall be charged and penalized for the crime, precisely because of the nature of
the crime and the penalty therefor. A corporation cannot be arrested and
imprisoned; hence, cannot be penalized for a crime punishable by imprisonment.
However, a corporation may be charged and prosecuted for a crime if the
imposable penalty is fine. Even if the statute prescribes both fine and

imprisonment as penalty, a corporation may be prosecuted and, if found guilty,

may be fined.
8. ID.; ID.; WHETHER THE OFFICERS AND EMPLOYEES ARE BENEFITED BY
THEIR DELICTUAL ACTS IS NOT A TOUCHSTONE OF THEIR CRIMINAL
LIABILITY; BENEFIT IS NOT AN OPERATIVE FACT OF THE OFFENSE. A
crime is the doing of that which the penal code forbids to be done, or omitting to
do what it commands. A necessary part of the definition of every crime is the
designation of the author of the crime upon whom the penalty is to be inflicted.
When a criminal statute designates an act of a corporation or a crime and
prescribes punishment therefor, it creates a criminal offense which, otherwise,
would not exist and such can be committed only by the corporation. But when a
penal statute does not expressly apply to corporations, it does not create an
offense for which a corporation may be punished. On the other hand, if the State,
by statute, defines a crime that may be committed by a corporation but prescribes
the penalty therefor to be suffered by the officers, directors, or employees of such
corporation or other persons responsible for the offense, only such individuals will
suffer such penalty. Corporate officers or employees, through whose act, default
or omission the corporation commits a crime, are themselves individually guilty of
the crime. The principle applies whether or not the crime requires the
consciousness of wrongdoing. It applies to those corporate agents who
themselves commit the crime and to those, who, by virtue of their managerial
positions or other similar relation to the corporation, could be deemed
responsible for its commission, if by virtue of their relationship to the corporation,
they had the power to prevent the act. Moreover, all parties active in promoting a
crime, whether agents or not, are principals. Whether such officers or employees
are benefited by their delictual acts is not a touchstone of their criminal liability.
Benefit is not an operative fact. In this case, petitioner signed the trust receipts in
question. He cannot, thus, hide behind the cloak of the separate corporate
personality of PBMI. In the words of Chief Justice Earl Warren, a corporate officer
cannot protect himself behind a corporation where he is the actual, present and
efficient actor.
DECISION

CALLEJO, SR., J :
p

Before the Court is a petition for review on certiorari of the Decision 1 of the Court
of Appeals (CA) in CA-G.R. SP No. 57169 dismissing the petition for certiorari,
prohibition and mandamus filed by petitioner Alfredo Ching, and its
Resolution 2 dated June 28, 2004 denying the motion for reconsideration thereof.
Petitioner was the Senior Vice-President of Philippine Blooming Mills, Inc.
(PBMI). Sometime in September to October 1980, PBMI, through petitioner,
applied with the Rizal Commercial Banking Corporation (respondent bank) for the
issuance of commercial letters of credit to finance its importation of assorted
goods. 3
Respondent bank approved the application, and irrevocable letters of credit were
issued in favor of petitioner. The goods were purchased and delivered in trust to
PBMI. Petitioner signed 13 trust receipts 4 as surety, acknowledging delivery of
the following goods:
T/R
Nos.

Date
Granted

Maturity
Date

Principal

Description of
Goods

1845

12-05-80

03-05-81

P1,596,470.05

79.9425 M/T "SDK" Brand

Synthetic Graphite Electrode

1853

12-08-80

03-06-81

P198,150.67

3,000 pcs. (15 bundles) Calorized

Lance Pipes

1824

11-28-80

02-26-81

P707,879.71

One Lot High Fired Refractory

Tundish Bricks

1798

11-21-80

02-19-81

P835,526.25

5 cases spare parts for CCM

1808

11-21-80

02-19-81

P370,332.52

200 pcs. ingot moulds

2042

01-30-81

04-30-81

P469,669.29

High Fired Refractory Nozzle

Bricks

1801

11-21-80

02-19-81

P2,001,715.17

Synthetic Graphite Electrode [with]

tapered pitch filed nipples

1857

12-09-80

03-09-81

P197,843.61

3,000 pcs. (15 bundles calorized

lance pipes [)]

1895

12-17-80

03-17-81

P67,652.04

Spare parts for Spectrophotometer

1911

12-22-80

03-20-81

P91,497.85

50 pcs. Ingot moulds

2041

01-30-81

04-30-81

P91,456.97

50 pcs. Ingot moulds

2099

02-10-81

05-11-81

P66,162.26

8 pcs. Kubota Rolls for rolling mills

2100

02-10-81

05-12-81

P210,748.00

Spare parts for Lacolaboratory

Equipment 5

Under the receipts, petitioner agreed to hold the goods in trust for the said bank,
with authority to sell but not by way of conditional sale, pledge or otherwise; and
in case such goods were sold, to turn over the proceeds thereof as soon as
received, to apply against the relative acceptances and payment of other
indebtedness to respondent bank. In case the goods remained unsold within the
specified period, the goods were to be returned to respondent bank without any
need of demand. Thus, said "goods, manufactured products or proceeds thereof,
whether in the form of money or bills, receivables, or accounts separate and
capable of identification" were respondent bank's property.
When the trust receipts matured, petitioner failed to return the goods to
respondent bank, or to return their value amounting to P6,940,280.66 despite
demands. Thus, the bank filed a criminal complaint for estafa 6 against petitioner
in the Office of the City Prosecutor of Manila.
After the requisite preliminary investigation, the City Prosecutor found probable
cause estafa under Article 315, paragraph 1(b) of the Revised Penal Code, in
relation to Presidential Decree (P.D.) No. 115, otherwise known as the Trust
Receipts Law. Thirteen (13) Informations were filed against the petitioner before
the Regional Trial Court (RTC) of Manila. The cases were docketed as Criminal
Cases No. 86-42169 to 86-42181, raffled to Branch 31 of said court.
ACIDSc

Petitioner appealed the resolution of the City Prosecutor to the then Minister of
Justice. The appeal was dismissed in a Resolution 7 dated March 17, 1987, and
petitioner moved for its reconsideration. On December 23, 1987, the Minister of
Justice granted the motion, thus reversing the previous resolution finding
probable cause against petitioner. 8 The City Prosecutor was ordered to move for
the withdrawal of the Informations.
This time, respondent bank filed a motion for reconsideration, which, however,
was denied on February 24, 1988. 9 The RTC, for its part, granted the Motion to

Quash the Informations filed by petitioner on the ground that the material
allegations therein did not amount to estafa. 10
In the meantime, the Court rendered judgment in Allied Banking Corporation v.
Ordoez, 11 holding that the penal provision of P.D. No. 115 encompasses any
act violative of an obligation covered by the trust receipt; it is not limited to
transactions involving goods which are to be sold (retailed), reshipped, stored or
processed as a component of a product ultimately sold. The Court also ruled that
"the non-payment of the amount covered by a trust receipt is an act violative of
the obligation of the entrustee to pay." 12
On February 27, 1995, respondent bank re-filed the criminal complaint
for estafa against petitioner before the Office of the City Prosecutor of Manila.
The case was docketed as I.S. No. 95B-07614.
Preliminary investigation ensued. On December 8, 1995, the City Prosecutor
ruled that there was no probable cause to charge petitioner with violating P.D. No.
115, as petitioner's liability was only civil, not criminal, having signed the trust
receipts as surety. 13 Respondent bank appealed the resolution to the
Department of Justice (DOJ) via petition for review, alleging that the City
Prosecutor erred in ruling:
1.That there is no evidence to show that respondent participated in the
misappropriation of the goods subject of the trust receipts;
2.That the respondent is a mere surety of the trust receipts; and
3.That the liability of the respondent is only civil in nature. 14

On July 13, 1999, the Secretary of Justice issued Resolution No. 250 15 granting
the petition and reversing the assailed resolution of the City Prosecutor.
According to the Justice Secretary, the petitioner, as Senior Vice-President of
PBMI, executed the 13 trust receipts and as such, was the one responsible for
the offense. Thus, the execution of said receipts is enough to indict the petitioner
as the official responsible for violation of P.D. No. 115. The Justice Secretary also
declared that petitioner could not contend that P.D. No. 115 covers only goods
ultimately destined for sale, as this issue had already been settled in Allied
Banking Corporation v. Ordoez, 16where the Court ruled that P.D. No. 115 is

"not limited to transactions in goods which are to be sold (retailed), reshipped,

stored or processed as a component of a product ultimately sold but covers
failure to turn over the proceeds of the sale of entrusted goods, or to return said
goods if unsold or not otherwise disposed of in accordance with the terms of the
trust receipts."
The Justice Secretary further stated that the respondent bound himself under the
terms of the trust receipts not only as a corporate official of PBMI but also as its
surety; hence, he could be proceeded against in two (2) ways: first, as surety as
determined by the Supreme Court in its decision in Rizal Commercial Banking
Corporation v. Court of Appeals; 17 and second, as the corporate official
responsible for the offense under P.D. No. 115, via criminal prosecution.
Moreover, P.D. No. 115explicitly allows the prosecution of corporate officers
"without prejudice to the civil liabilities arising from the criminal offense." Thus,
according to the Justice Secretary, following Rizal Commercial Banking
Corporation, the civil liability imposed is clearly separate and distinct from the
criminal liability of the accused under P.D. No. 115.
Conformably with the Resolution of the Secretary of Justice, the City Prosecutor
filed 13 Informations against petitioner for violation of P.D. No. 115 before the
RTC of Manila. The cases were docketed as Criminal Cases No. 99-178596 to
99-178608 and consolidated for trial before Branch 52 of said court. Petitioner
filed a motion for reconsideration, which the Secretary of Justice denied in a
Resolution 18 dated January 17, 2000.
Petitioner then filed a petition for certiorari, prohibition and mandamus with the
CA, assailing the resolutions of the Secretary of Justice on the following grounds:
1.THE RESPONDENTS ARE ACTING WITH AN UNEVEN HAND AND
IN FACT, ARE ACTING OPPRESSIVELY AGAINST ALFREDO CHING
WHEN THEY ALLOWED HIS PROSECUTION DESPITE THE FACT
THAT NO EVIDENCE HAD BEEN PRESENTED TO PROVE HIS
PARTICIPATION IN THE ALLEGED TRANSACTIONS.
2.THE RESPONDENT SECRETARY OF JUSTICE COMMITTED AN
ACT IN GRAVE ABUSE OF DISCRETION AND IN EXCESS OF HIS
JURISDICTION WHEN THEY CONTINUED PROSECUTION OF THE
PETITIONER DESPITE THE LENGTH OF TIME INCURRED IN THE

TERMINATION OF THE PRELIMINARY INVESTIGATION THAT

SHOULD JUSTIFY THE DISMISSAL OF THE INSTANT CASE.
3.THE RESPONDENT SECRETARY OF JUSTICE AND ASSISTANT
CITY PROSECUTOR ACTED IN GRAVE ABUSE OF DISCRETION
AMOUNTING TO AN EXCESS OF JURISDICTION WHEN THEY
CONTINUED THE PROSECUTION OF THE PETITIONER DESPITE
LACK OF SUFFICIENT BASIS. 19

In his petition, petitioner incorporated a certification stating that "as far as this
Petition is concerned, no action or proceeding in the Supreme Court, the Court of
Appeals or different divisions thereof, or any tribunal or agency. It is finally
certified that if the affiant should learn that a similar action or proceeding has
been filed or is pending before the Supreme Court, the Court of Appeals, or
different divisions thereof, of any other tribunal or agency, it hereby undertakes to
notify this Honorable Court within five (5) days from such notice." 20
In its Comment on the petition, the Office of the Solicitor General alleged that
A.
THE HONORABLE SECRETARY OF JUSTICE CORRECTLY RULED
THAT PETITIONER ALFREDO CHING IS THE OFFICER
RESPONSIBLE FOR THE OFFENSE CHARGED AND THAT THE
ACTS OF PETITIONER FALL WITHIN THE AMBIT OF VIOLATION OF
P.D. [No.] 115 IN RELATION TO ARTICLE 315, PAR. 1(B) OF THE
REVISED PENAL CODE.

B.
THERE IS NO MERIT IN PETITIONER'S CONTENTION THAT
EXCESSIVE DELAY HAS MARRED THE CONDUCT OF THE
PRELIMINARY INVESTIGATION OF THE CASE, JUSTIFYING ITS
DISMISSAL.
TcHCDI

C.
THE PRESENT SPECIAL CIVIL ACTION FOR CERTIORARI,
PROHIBITION AND MANDAMUS IS NOT THE PROPER MODE OF
REVIEW FROM THE RESOLUTION OF THE DEPARTMENT OF

JUSTICE. THE PRESENT PETITION MUST THEREFORE BE

DISMISSED. 21

On April 22, 2004, the CA rendered judgment dismissing the petition for lack of
merit, and on procedural grounds. On the procedural issue, it ruled that (a) the
certification of non-forum shopping executed by petitioner and incorporated in the
petition was defective for failure to comply with the first two of the three-fold
undertakings prescribed in Rule 7, Section 5 of the Revised Rules of Civil
Procedure; and (b) the petition for certiorari, prohibition and mandamus was not
the proper remedy of the petitioner.
On the merits of the petition, the CA ruled that the assailed resolutions of the
Secretary of Justice were correctly issued for the following reasons: (a) petitioner,
being the Senior Vice-President of PBMI and the signatory to the trust receipts, is
criminally liable for violation of P.D. No. 115; (b) the issue raised by the petitioner,
on whether he violated P.D. No. 115 by his actuations, had already been resolved
and laid to rest in Allied Bank Corporation v. Ordoez; 22 and (c) petitioner was
estopped from raising the City Prosecutor's delay in the final disposition of the
preliminary investigation because he failed to do so in the DOJ.
Thus, petitioner filed the instant petition, alleging that:
I
THE COURT OF APPEALS ERRED WHEN IT DISMISSED THE
PETITION ON THE GROUND THAT THE CERTIFICATION OF NONFORUM SHOPPING INCORPORATED THEREIN WAS DEFECTIVE.
II
THE COURT OF APPEALS ERRED WHEN IT RULED THAT NO
GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS
OF JURISDICTION WAS COMMITTED BY THE SECRETARY OF
JUSTICE IN COMING OUT WITH THE ASSAILED RESOLUTIONS. 23

The Court will delve into and resolve the issues seriatim.
The petitioner avers that the CA erred in dismissing his petition on a mere
technicality. He claims that the rules of procedure should be used to promote, not
frustrate, substantial justice. He insists that the Rules of Court should be

construed liberally especially when, as in this case, his substantial rights are
adversely affected; hence, the deficiency in his certification of non-forum
shopping should not result in the dismissal of his petition.
The Office of the Solicitor General (OSG) takes the opposite view, and asserts
that indubitably, the certificate of non-forum shopping incorporated in the petition
before the CA is defective because it failed to disclose essential facts about
pending actions concerning similar issues and parties. It asserts that petitioner's
failure to comply with the Rules of Court is fatal to his petition. The OSG cited
Section 2, Rule 42, as well as the ruling of this Court in Melo v. Court of
Appeals. 24
We agree with the ruling of the CA that the certification of non-forum shopping
petitioner incorporated in his petition before the appellate court is defective. The
certification reads:
It is further certified that as far as this Petition is concerned, no action or
proceeding in the Supreme Court, the Court of Appeals or different
divisions thereof, or any tribunal or agency.
It is finally certified that if the affiant should learn that a similar action or
proceeding has been filed or is pending before the Supreme Court, the
Court of Appeals, or different divisions thereof, of any other tribunal or
agency, it hereby undertakes to notify this Honorable Court within five (5)
days from such notice. 25

Under Section 1, second paragraph of Rule 65 of the Revised Rules of Court, the
petition should be accompanied by a sworn certification of non-forum shopping,
as provided in the third paragraph of Section 3, Rule 46 of said Rules. The latter
provision reads in part:
SEC. 3.Contents and filing of petition; effect of non-compliance with
requirements. The petition shall contain the full names and actual
addresses of all the petitioners and respondents, a concise statement of
the matters involved, the factual background of the case and the grounds
relied upon for the relief prayed for.
xxx xxx xxx

The petitioner shall also submit together with the petition a sworn
certification that he has not theretofore commenced any other action
involving the same issues in the Supreme Court, the Court of Appeals or
different divisions thereof, or any other tribunal or agency; if there is such
other action or proceeding, he must state the status of the same; and if
he should thereafter learn that a similar action or proceeding has been
filed or is pending before the Supreme Court, the Court of Appeals, or
different divisions thereof, or any other tribunal or agency, he undertakes
to promptly inform the aforesaid courts and other tribunal or agency
thereof within five (5) days therefrom. . . .

Compliance with the certification against forum shopping is separate from and
independent of the avoidance of forum shopping itself. The requirement is
mandatory. The failure of the petitioner to comply with the foregoing requirement
shall be sufficient ground for the dismissal of the petition without prejudice, unless
otherwise provided. 26
Indubitably, the first paragraph of petitioner's certification is incomplete and
unintelligible. Petitioner failed to certify that he "had not heretofore commenced
any other action involving the same issues in the Supreme Court, the Court of
Appeals or the different divisions thereof or any other tribunal or agency" as
required by paragraph 4, Section 3, Rule 46 of the Revised Rules of Court.
We agree with petitioner's contention that the certification is designed to promote
and facilitate the orderly administration of justice, and therefore, should not be
interpreted with absolute literalness. In his works on the Revised Rules of Civil
Procedure, former Supreme Court Justice Florenz Regalado states that, with
respect to the contents of the certification which the pleader may prepare, the
rule of substantial compliance may be availed of. 27 However, there must be a
special circumstance or compelling reason which makes the strict application of
the requirement clearly unjustified. The instant petition has not alleged any such
extraneous circumstance. Moreover, as worded, the certification cannot even be
regarded as substantial compliance with the procedural requirement. Thus, the
CA was not informed whether, aside from the petition before it, petitioner had
commenced any other action involving the same issues in other tribunals.
DcCIAa

On the merits of the petition, the CA ruled that the petitioner failed to establish
that the Secretary of Justice committed grave abuse of discretion in finding
probable cause against the petitioner for violation of estafa under Article 315,
paragraph 1(b) of the Revised Penal Code, in relation to P.D. No. 115. Thus, the
appellate court ratiocinated:
Be that as it may, even on the merits, the arguments advanced in
support of the petition are not persuasive enough to justify the desired
conclusion that respondent Secretary of Justice gravely abused its
discretion in coming out with his assailed Resolutions. Petitioner posits
that, except for his being the Senior Vice-President of the PBMI, there is
no iota of evidence that he was a participes crimines in violating the trust
receipts sued upon; and that his liability, if at all, is purely civil because
he signed the said trust receipts merely as a . . . surety and not as the
entrustee. These assertions are, however, too dull that they cannot even
just dent the findings of the respondent Secretary, viz:
". . . it is apropos to quote section 13 of PD 115 which states in
part, viz:
'. . . If the violation or offense is committed by a
corporation, partnership, association or other judicial
entities, the penalty provided for in this Decree shall be
imposed upon the directors, officers, employees or other
officials or persons therein responsible for the offense,
without prejudice to the civil liabilities arising from the
criminal offense.'
"There is no dispute that it was the respondent, who as senior vicepresident of PBM, executed the thirteen (13) trust receipts. As such, the
law points to him as the official responsible for the offense. Since a
corporation cannot be proceeded against criminally because it cannot
commit crime in which personal violence or malicious intent is required,
criminal action is limited to the corporate agents guilty of an act
amounting to a crime and never against the corporation itself (West
Coast Life Ins. Co. vs. Hurd, 27 Phil. 401; Times, [I]nc. v. Reyes, 39
SCRA 303). Thus, the execution by respondent of said receipts is
enough to indict him as the official responsible for violation of PD 115.

"Parenthetically, respondent is estopped to still contend that PD

115 covers only goods which are ultimately destined for sale and not
goods, like those imported by PBM, for use in manufacture. This issue
has already been settled in the Allied Banking Corporation case, supra,
where he was also a party, when the Supreme Court ruled that PD
115 is 'not limited to transactions in goods which are to be sold (retailed),
reshipped, stored or processed as a component or a product ultimately
sold' but 'covers failure to turn over the proceeds of the sale of entrusted
goods, or to return said goods if unsold or disposed of in accordance
with the terms of the trust receipts.'
"In regard to the other assigned errors, we note that the respondent
bound himself under the terms of the trust receipts not only as a
corporate official of PBM but also as its surety. It is evident that these are
two (2) capacities which do not exclude the other. Logically, he can be
proceeded against in two (2) ways: first, as surety as determined by the
Supreme Court in its decision in RCBC vs. Court of Appeals, 178 SCRA
739; and, secondly, as the corporate official responsible for the offense
under PD 115, the present case is an appropriate remedy under our
penal law.
"Moreover, PD 115 explicitly allows the prosecution of corporate officers
'without prejudice to the civil liabilities arising from the criminal offense'
thus, the civil liability imposed on respondent in RCBC vs. Court of
Appeals case is clearly separate and distinct from his criminal liability
under PD 115.'" 28

Petitioner asserts that the appellate court's ruling is erroneous because (a) the
transaction between PBMI and respondent bank is not a trust receipt transaction;
(b) he entered into the transaction and was sued in his capacity as PBMI Senior
Vice-President; (c) he never received the goods as an entrustee for PBMI, hence,
could not have committed any dishonesty or abused the confidence of
respondent bank; and (d) PBMI acquired the goods and used the same in
operating its machineries and equipment and not for resale.
The OSG, for its part, submits a contrary view, to wit:

34.Petitioner further claims that he is not a person responsible for the

offense allegedly because "[b]eing charged as the Senior Vice-President
of Philippine Blooming Mills (PBM), petitioner cannot be held criminally
liable as the transactions sued upon were clearly entered into in his
capacity as an officer of the corporation" and that [h]e never received the
goods as an entrustee for PBM as he never had or took possession of
the goods nor did he commit dishonesty nor "abuse of confidence in
transacting with RCBC." Such argument is bereft of merit.
35.Petitioner's being a Senior Vice-President of the Philippine Blooming
Mills does not exculpate him from any liability. Petitioner's responsibility
as the corporate official of PBM who received the goods in trust is
premised on Section 13 of P.D. No. 115, which provides:
Section 13.Penalty Clause. The failure of an entrustee to turn over
the proceeds of the sale of the goods, documents or instruments
covered by a trust receipt to the extent of the amount owing to the
entruster or as appears in the trust receipt or to return said goods,
documents or instruments if they were not sold or disposed of in
accordance with the terms of the trust receipt shall constitute the
crime of estafa, punishable under the provisions of Article Three
hundred and fifteen, paragraph one (b) of Act Numbered Three
thousand eight hundred and fifteen, as amended, otherwise
known as the Revised Penal Code. If the violation or offense is
committed by a corporation, partnership, association or
other juridical entities, the penalty provided for in this Decree
shall be imposed upon the directors, officers, employees or
other officials or persons therein responsible for the offense,
without prejudice to the civil liabilities arising from the
criminal offense. (Emphasis supplied)
36.Petitioner having participated in the negotiations for the trust receipts
and having received the goods for PBM, it was inevitable that the
petitioner is the proper corporate officer to be proceeded against by
virtue of the PBM's violation of P.D. No. 115. 29

The ruling of the CA is correct.

SDaHEc

In Mendoza-Arce v. Office of the Ombudsman (Visayas), 30 this Court held that

the acts of a quasi-judicial officer may be assailed by the aggrieved party via a
petition forcertiorari and enjoined (a) when necessary to afford adequate
protection to the constitutional rights of the accused; (b) when necessary for the
orderly administration of justice; (c) when the acts of the officer are without or in
excess of authority; (d) where the charges are manifestly false and motivated by
the lust for vengeance; and (e) when there is clearly no prima facie case against
the accused. 31 The Court also declared that, if the officer conducting a
preliminary investigation (in that case, the Office of the Ombudsman) acts without
or in excess of his authority and resolves to file an Information despite the
absence of probable cause, such act may be nullified by a writ of certiorari. 32
Indeed, under Section 4, Rule 112 of the 2000 Rules of Criminal
Procedure, 33 the Information shall be prepared by the Investigating Prosecutor
against the respondent only if he or she finds probable cause to hold such
respondent for trial. The Investigating Prosecutor acts without or in excess of his
authority under the Rule if the Information is filed against the respondent despite
absence of evidence showing probable cause therefor. 34 If the Secretary of
Justice reverses the Resolution of the Investigating Prosecutor who found no
probable cause to hold the respondent for trial, and orders such prosecutor to file
the Information despite the absence of probable cause, the Secretary of Justice
acts contrary to law, without authority and/or in excess of authority. Such
resolution may likewise be nullified in a petition forcertiorari under Rule 65 of the
Revised Rules of Civil Procedure. 35
A preliminary investigation, designed to secure the respondent against hasty,
malicious and oppressive prosecution, is an inquiry to determine whether (a) a
crime has been committed; and (b) whether there is probable cause to believe
that the accused is guilty thereof. It is a means of discovering the person or
persons who may be reasonably charged with a crime. Probable cause need not
be based on clear and convincing evidence of guilt, as the investigating officer
acts upon probable cause of reasonable belief. Probable cause implies
probability of guilt and requires more than bare suspicion but less than evidence
which would justify a conviction. A finding of probable cause needs only to rest on

evidence showing that more likely than not, a crime has been committed by the
suspect. 36
However, while probable cause should be determined in a summary manner,
there is a need to examine the evidence with care to prevent material damage to
a potential accused's constitutional right to liberty and the guarantees of freedom
and fair play 37 and to protect the State from the burden of unnecessary
expenses in prosecuting alleged offenses and holding trials arising from false,
fraudulent or groundless charges. 38
In this case, petitioner failed to establish that the Secretary of Justice committed
grave abuse of discretion in issuing the assailed resolutions. Indeed, he acted in
accord with law and the evidence.
Section 4 of P.D. No. 115 defines a trust receipt transaction, thus:
Section 4.What constitutes a trust receipt transaction. A trust receipt
transaction, within the meaning of this Decree, is any transaction by and
between a person referred to in this Decree as the entruster, and another
person referred to in this Decree as entrustee, whereby the entruster,
who owns or holds absolute title or security interests over certain
specified goods, documents or instruments, releases the same to the
possession of the entrustee upon the latter's execution and delivery to
the entruster of a signed document called a "trust receipt" wherein the
entrustee binds himself to hold the designated goods, documents or
instruments in trust for the entruster and to sell or otherwise dispose of
the goods, documents or instruments with the obligation to turn over to
the entruster the proceeds thereof to the extent of the amount owing to
the entruster or as appears in the trust receipt or the goods, documents
or instruments themselves if they are unsold or not otherwise disposed
of, in accordance with the terms and conditions specified in the trust
receipt, or for other purposes substantially equivalent to any of the
following:
1.In case of goods or documents, (a) to sell the goods or procure their
sale; or (b) to manufacture or process the goods with the purpose of
ultimate sale; Provided, That, in the case of goods delivered under trust
receipt for the purpose of manufacturing or processing before its ultimate
sale, the entruster shall retain its title over the goods whether in its

original or processed form until the entrustee has complied fully with his
obligation under the trust receipt; or (c) to load, unload, ship or otherwise
deal with them in a manner preliminary or necessary to their sale; or
2.In the case of instruments a) to sell or procure their sale or exchange;
or b) to deliver them to a principal; or c) to effect the consummation of
some transactions involving delivery to a depository or register; or d) to
effect their presentation, collection or renewal.
The sale of goods, documents or instruments by a person in the
business of selling goods, documents or instruments for profit who, at
the outset of the transaction, has, as against the buyer, general property
rights in such goods, documents or instruments, or who sells the same
to the buyer on credit, retaining title or other interest as security for the
payment of the purchase price, does not constitute a trust receipt
transaction and is outside the purview and coverage of this Decree.

An entrustee is one having or taking possession of goods, documents or

instruments under a trust receipt transaction, and any successor in interest of
such person for the purpose of payment specified in the trust receipt
agreement. 39 The entrustee is obliged to: (1) hold the goods, documents or
instruments in trust for the entruster and shall dispose of them strictly in
accordance with the terms and conditions of the trust receipt; (2) receive the
proceeds in trust for the entruster and turn over the same to the entruster to the
extent of the amount owing to the entruster or as appears on the trust receipt; (3)
insure the goods for their total value against loss from fire, theft, pilferage or other
casualties; (4) keep said goods or proceeds thereof whether in money or
whatever form, separate and capable of identification as property of the entruster;
(5) return the goods, documents or instruments in the event of non-sale or upon
demand of the entruster; and (6) observe all other terms and conditions of the
trust receipt not contrary to the provisions of the decree. 40

The entruster shall be entitled to the proceeds from the sale of the goods,
documents or instruments released under a trust receipt to the entrustee to the
extent of the amount owing to the entruster or as appears in the trust receipt, or
to the return of the goods, documents or instruments in case of non-sale, and to

the enforcement of all other rights conferred on him in the trust receipt; provided,
such are not contrary to the provisions of the document. 41
In the case at bar, the transaction between petitioner and respondent bank falls
under the trust receipt transactions envisaged in P.D. No. 115. Respondent bank
imported the goods and entrusted the same to PBMI under the trust receipts
signed by petitioner, as entrustee, with the bank as entruster. The agreement was
as follows:
And in consideration thereof, I/we hereby agree to hold said goods in
trust for the said BANK as its property with liberty to sell the same within
____ days from the date of the execution of this Trust Receipt and for the
Bank's account, but without authority to make any other disposition
whatsoever of the said goods or any part thereof (or the proceeds) either
by way of conditional sale, pledge or otherwise.
I/we agree to keep the said goods insured to their full value against loss
from fire, theft, pilferage or other casualties as directed by the BANK, the
sum insured to be payable in case of loss to the BANK, with the
understanding that the BANK is, not to be chargeable with the storage
premium or insurance or any other expenses incurred on said goods.
In case of sale, I/we further agree to turn over the proceeds thereof as
soon as received to the BANK, to apply against the relative acceptances
(as described above) and for the payment of any other indebtedness of
mine/ours to the BANK. In case of non-sale within the period specified
herein, I/we agree to return the goods under this Trust Receipt to the
BANK without any need of demand.
EcDSHT

I/we agree to keep the said goods, manufactured products or proceeds

thereof, whether in the form of money or bills, receivables, or accounts
separate and capable of identification as property of the BANK. 42

It must be stressed that P.D. No. 115 is a declaration by legislative authority that,
as a matter of public policy, the failure of person to turn over the proceeds of the
sale of the goods covered by a trust receipt or to return said goods, if not sold, is
a public nuisance to be abated by the imposition of penal sanctions. 43
The Court likewise rules that the issue of whether P.D. No. 115 encompasses
transactions involving goods procured as a component of a product ultimately

sold has been resolved in the affirmative in Allied Banking Corporation v.

Ordoez. 44 The law applies to goods used by the entrustee in the operation of its
machineries and equipment. The non-payment of the amount covered by the
trust receipts or the non-return of the goods covered by the receipts, if not sold or
otherwise not disposed of, violate the entrustee's obligation to pay the amount or
to return the goods to the entruster.
In Colinares v. Court of Appeals, 45 the Court declared that there are two possible
situations in a trust receipt transaction. The first is covered by the provision which
refers to money received under the obligation involving the duty to deliver it
(entregarla) to the owner of the merchandise sold. The second is covered by the
provision which refers to merchandise received under the obligation to return it
(devolvera) to the owner. 46 Thus, failure of the entrustee to turn over the
proceeds of the sale of the goods covered by the trust receipts to the entruster or
to return said goods if they were not disposed of in accordance with the terms of
the trust receipt is a crime under P.D. No. 115, without need of proving intent to
defraud. The law punishes dishonesty and abuse of confidence in the handling of
money or goods to the prejudice of the entruster, regardless of whether the latter
is the owner or not. A mere failure to deliver the proceeds of the sale of the
goods, if not sold, constitutes a criminal offense that causes prejudice, not only to
another, but more to the public interest. 47
The Court rules that although petitioner signed the trust receipts merely as Senior
Vice-President of PBMI and had no physical possession of the goods, he cannot
avoid prosecution for violation of P.D. No. 115.
The penalty clause of the law, Section 13 of P.D. No. 115 reads:
Section 13.Penalty Clause. The failure of an entrustee to turn over the
proceeds of the sale of the goods, documents or instruments covered by
a trust receipt to the extent of the amount owing to the entruster or as
appears in the trust receipt or to return said goods, documents or
instruments if they were not sold or disposed of in accordance with the
terms of the trust receipt shall constitute the crime of estafa, punishable
under the provisions of Article Three hundred and fifteen, paragraph one
(b) of Act Numbered Three thousand eight hundred and fifteen, as
amended, otherwise known as the Revised Penal Code. If the violation

or offense is committed by a corporation, partnership, association or

other juridical entities, the penalty provided for in this Decree shall be
imposed upon the directors, officers, employees or other officials or
persons therein responsible for the offense, without prejudice to the civil
liabilities arising from the criminal offense.

The crime defined in P.D. No. 115 is malum prohibitum but is classified
as estafa under paragraph 1(b), Article 315 of the Revised Penal Code,
or estafa with abuse of confidence. It may be committed by a corporation or other
juridical entity or by natural persons. However, the penalty for the crime is
imprisonment for the periods provided in said Article 315, which reads:
ARTICLE 315.Swindling (estafa). Any person who shall defraud
another by any of the means mentioned hereinbelow shall be punished
by:
1st.The penalty of prision correccional in its maximum period to prision
mayor in its minimum period, if the amount of the fraud is over 12,000
pesos but does not exceed 22,000 pesos; and if such amount exceeds
the latter sum, the penalty provided in this paragraph shall be imposed in
its maximum period, adding one year for each additional 10,000 pesos;
but the total penalty which may be imposed shall not exceed twenty
years. In such cases, and in connection with the accessory penalties
which may be imposed and for the purpose of the other provisions of this
Code, the penalty shall be termed prision mayor or reclusion temporal,
as the case may be;
2nd.The penalty of prision correccional in its minimum and medium
periods, if the amount of the fraud is over 6,000 pesos but does not
exceed 12,000 pesos;
3rd.The penalty of arresto mayor in its maximum period to prision
correccional in its minimum period, if such amount is over 200 pesos but
does not exceed 6,000 pesos; and
4th.By arresto mayor in its medium and maximum periods, if such
amount does not exceed 200 pesos, provided that in the four cases
mentioned, the fraud be committed by any of the following means; . . .

Though the entrustee is a corporation, nevertheless, the law specifically makes

the officers, employees or other officers or persons responsible for the offense,
without prejudice to the civil liabilities of such corporation and/or board of
directors, officers, or other officials or employees responsible for the offense. The
rationale is that such officers or employees are vested with the authority and
responsibility to devise means necessary to ensure compliance with the law and,
if they fail to do so, are held criminally accountable; thus, they have a responsible
share in the violations of the law. 48
If the crime is committed by a corporation or other juridical entity, the directors,
officers, employees or other officers thereof responsible for the offense shall be
charged and penalized for the crime, precisely because of the nature of the crime
and the penalty therefor. A corporation cannot be arrested and imprisoned;
hence, cannot be penalized for a crime punishable by imprisonment. 49 However,
a corporation may be charged and prosecuted for a crime if the imposable
penalty is fine. Even if the statute prescribes both fine and imprisonment as
penalty, a corporation may be prosecuted and, if found guilty, may be fined. 50
A crime is the doing of that which the penal code forbids to be done, or omitting
to do what it commands. A necessary part of the definition of every crime is the
designation of the author of the crime upon whom the penalty is to be inflicted.
When a criminal statute designates an act of a corporation or a crime and
prescribes punishment therefor, it creates a criminal offense which, otherwise,
would not exist and such can be committed only by the corporation. But when a
penal statute does not expressly apply to corporations, it does not create an
offense for which a corporation may be punished. On the other hand, if the State,
by statute, defines a crime that may be committed by a corporation but prescribes
the penalty therefor to be suffered by the officers, directors, or employees of such
corporation or other persons responsible for the offense, only such individuals will
suffer such penalty. 51 Corporate officers or employees, through whose act,
default or omission the corporation commits a crime, are themselves individually
guilty of the crime. 52
The principle applies whether or not the crime requires the consciousness of
wrongdoing. It applies to those corporate agents who themselves commit the
crime and to those, who, by virtue of their managerial positions or other similar

relation to the corporation, could be deemed responsible for its commission, if by

virtue of their relationship to the corporation, they had the power to prevent the
act. 53 Moreover, all parties active in promoting a crime, whether agents or not,
are principals. 54Whether such officers or employees are benefited by their
delictual acts is not a touchstone of their criminal liability. Benefit is not an
operative fact.
aHcDEC

In this case, petitioner signed the trust receipts in question. He cannot, thus, hide
behind the cloak of the separate corporate personality of PBMI. In the words of
Chief Justice Earl Warren, a corporate officer cannot protect himself behind a
corporation where he is the actual, present and efficient actor. 55
IN LIGHT OF ALL THE FOREGOING, the petition is DENIED for lack of merit.
Costs against the petitioner.
SO ORDERED.
Panganiban, C.J., Ynares-Santiago, Austria-Martinez and Chico-Nazario,
JJ., concur.

Footnotes
1.Penned by Associate Justice Salvador J. Valdez, Jr., with Associate Justices
Rebecca de Guia-Salvador and Fernanda Lampas Peralta, concurring; rollo,
pp. 10-26.
2.Rollo, pp. 7-8.
3.Records, pp. 15-23.
4.Id. at 24-61.
5.Id. at 4-5.
6.Docketed as I.S. No. 84-01648.
7.Annex "A," Petition in CA-G.R. SP No. 57169.
8.Annex "C," id.

9.Annex "D," id.

10.Rollo, pp. 70-73.
11.G.R. No 82495, December 10, 1990, 192 SCRA 246.
12.Id. at 254.
13.Rollo, pp. 82-85.
14.Records, p. 6.
15.Rollo, pp. 86-91.
16.Supra, at note 11.
17.G.R. No. 85396, October 27, 1989, 178 SCRA 739.
18.Records, p. 140.
19.Rollo, pp. 13-14.
20.Id. at 59.
21.Comment dated April 18, 2000, p. 4.
22.Supra, at note 11.
23.Rollo, p. 34.
24.376 Phil. 204 (1999).
25.Rollo, p. 58. (Emphasis supplied)
26.Melo v. Court of Appeals, supra, at note 24.
27.Cited in Melo v. Court of Appeals, supra at 214-215.
28.Rollo, pp. 20-22.
29.Rollo, pp. 117-118.
30.430 Phil. 101 (2002).
31.Id. at 113.
32.Id. at 112.

33.The Court approved the revised rules on October 3, 2000, which took effect on
December 1, 2000.
34.Enemecio v. Office of the Ombudsman, G.R. No. 146731, January 13, 2004, 419
SCRA 82.
35.Nava v. Commission on Audit, 419 Phil. 544 (2001).
36.Id. at 554.
37.Drilon v. Court of Appeals, 327 Phil. 916, 923 (1996).
38.People v. Court of Appeals, 361 Phil. 401, 412-413 (1999), citing Ledesma v. Court
of Appeals, 278 SCRA 657, 673-674 (1997).
39.Section 3(b) of P.D. No. 115.
40.Section 9 of P.D. No. 115.
41.Section 7 of P.D. No. 115.
42.Annex "K," records, p. 27.
43.Tiomico v. Court of Appeals, G.R. No. 122539, March 4, 1999, 304 SCRA 216,
citing Lee v. Rodil, 175 SCRA 100 (1989).
44.Supra, at note 11.
45.394 Phil. 106 (2000).
46.Id. at 119-120, citing People v. Cuevo, 104 SCRA 312, 318 (1981).
47.People v. Nitafan, G.R. Nos. 81559-60, April 6, 1992, 207 SCRA 726.
48.See U.S. v. Park, 421 U.S. 658, 95, S.Ct. 1903 (1975).
49.See Ong v. Court of Appeals, G.R. No. 499 Phil. 691 (2003).
50.W.H. Small & Co. v. Commonwealth, 120 S.W. 361 (1909).
51.Paragon Paper Co. v. State, 49 N.E. 600 (1898).
52.U.S. v. Park, supra, at note 48.
53.Id.
54.U.S. v. Wise, 370 U.S. 405, 82 S.Ct., 1354 (1962).

55.Id.

n> J :
p

Before the Court is a petition for review on certiorari of the Decision 1 of the Court
of Appeals (CA) in CA-G.R. SP No. 57169 dismissing the petition for certiorari,
prohibition and mandamus filed by petitioner Alfredo Ching, and its
Resolution 2 dated June 28, 2004 denying the motion for reconsideration thereof.
Petitioner was the Senior Vice-President of Philippine Blooming Mills, Inc.
(PBMI). Sometime in September to October 1980, PBMI, through petitioner,
applied with the Rizal Commercial Banking Corporation (respondent bank) for the
issuance of commercial letters of credit to finance its importation of assorted
goods. 3
Respondent bank approved the application, and irrevocable letters of credit were
issued in favor of petitioner. The goods were purchased and delivered in trust to
PBMI. Petitioner signed 13 trust receipts 4 as surety, acknowledging delivery of
the following goods:
T/RDateMaturityPrincipalDescription of
Nos.GrantedDateGoods
184512-05-8003-05-81P1,596,470.0579.9425 M/T "SDK" Brand
Synthetic Graphite Electrode
185312-08-8003-06-81P198,150.673,000 pcs. (15 bundles) Calorized
Lance Pipes
182411-28-8002-26-81P707,879.71One Lot High Fired Refractory
Tundish Bricks
179811-21-8002-19-81P835,526.255 cases spare parts for CCM
180811-21-8002-19-81P370,332.52200 pcs. ingot moulds
204201-30-8104-30-81P469,669.29High Fired Refractory Nozzle
Bricks

180111-21-8002-19-81P2,001,715.17Synthetic Graphite Electrode [with]

tapered pitch filed nipples
185712-09-8003-09-81P197,843.613,000 pcs. (15 bundles calorized
lance pipes [)]
189512-17-8003-17-81P67,652.04Spare parts for Spectrophotometer
191112-22-8003-20-81P91,497.8550 pcs. Ingot moulds
204101-30-8104-30-81P91,456.9750 pcs. Ingot moulds
209902-10-8105-11-81P66,162.268 pcs. Kubota Rolls for rolling mills
210002-10-8105-12-81P210,748.00Spare parts for Lacolaboratory
Equipment 5

Under the receipts, petitioner agreed to hold the goods in trust for the said bank,
with authority to sell but not by way of conditional sale, pledge or otherwise; and
in case such goods were sold, to turn over the proceeds thereof as soon as
received, to apply against the relative acceptances and payment of other
indebtedness to respondent bank. In case the goods remained unsold within the
specified period, the goods were to be returned to respondent bank without any
need of demand. Thus, said "goods, manufactured products or proceeds thereof,
whether in the form of money or bills, receivables, or accounts separate and
capable of identification" were respondent bank's property.
When the trust receipts matured, petitioner failed to return the goods to
respondent bank, or to return their value amounting to P6,940,280.66 despite
demands. Thus, the bank filed a criminal complaint for estafa 6 against petitioner
in the Office of the City Prosecutor of Manila.
After the requisite preliminary investigation, the City Prosecutor found probable
cause estafa under Article 315, paragraph 1(b) of the Revised Penal Code, in
relation to Presidential Decree (P.D.) No. 115, otherwise known as the Trust
Receipts Law. Thirteen (13) Informations were filed against the petitioner before
the Regional Trial Court (RTC) of Manila. The cases were docketed as Criminal
Cases No. 86-42169 to 86-42181, raffled to Branch 31 of said court.
ACIDSc

Petitioner appealed the resolution of the City Prosecutor to the then Minister of
Justice. The appeal was dismissed in a Resolution 7 dated March 17, 1987, and
petitioner moved for its reconsideration. On December 23, 1987, the Minister of
Justice granted the motion, thus reversing the previous resolution finding

probable cause against petitioner. 8 The City Prosecutor was ordered to move for
the withdrawal of the Informations.
This time, respondent bank filed a motion for reconsideration, which, however,
was denied on February 24, 1988. 9 The RTC, for its part, granted the Motion to
Quash the Informations filed by petitioner on the ground that the material
allegations therein did not amount to estafa. 10
In the meantime, the Court rendered judgment in Allied Banking Corporation v.
Ordoez, 11 holding that the penal provision of P.D. No. 115 encompasses any
act violative of an obligation covered by the trust receipt; it is not limited to
transactions involving goods which are to be sold (retailed), reshipped, stored or
processed as a component of a product ultimately sold. The Court also ruled that
"the non-payment of the amount covered by a trust receipt is an act violative of
the obligation of the entrustee to pay." 12
On February 27, 1995, respondent bank re-filed the criminal complaint
for estafa against petitioner before the Office of the City Prosecutor of Manila.
The case was docketed as I.S. No. 95B-07614.
Preliminary investigation ensued. On December 8, 1995, the City Prosecutor
ruled that there was no probable cause to charge petitioner with violating P.D. No.
115, as petitioner's liability was only civil, not criminal, having signed the trust
receipts as surety. 13 Respondent bank appealed the resolution to the
Department of Justice (DOJ) via petition for review, alleging that the City
Prosecutor erred in ruling:
1.That there is no evidence to show that respondent participated in the
misappropriation of the goods subject of the trust receipts;
2.That the respondent is a mere surety of the trust receipts; and
3.That the liability of the respondent is only civil in nature. 14

On July 13, 1999, the Secretary of Justice issued Resolution No. 250 15 granting
the petition and reversing the assailed resolution of the City Prosecutor.
According to the Justice Secretary, the petitioner, as Senior Vice-President of
PBMI, executed the 13 trust receipts and as such, was the one responsible for
the offense. Thus, the execution of said receipts is enough to indict the petitioner

as the official responsible for violation of P.D. No. 115. The Justice Secretary also
declared that petitioner could not contend that P.D. No. 115 covers only goods
ultimately destined for sale, as this issue had already been settled in Allied
Banking Corporation v. Ordoez, 16where the Court ruled that P.D. No. 115 is
"not limited to transactions in goods which are to be sold (retailed), reshipped,
stored or processed as a component of a product ultimately sold but covers
failure to turn over the proceeds of the sale of entrusted goods, or to return said
goods if unsold or not otherwise disposed of in accordance with the terms of the
trust receipts."
The Justice Secretary further stated that the respondent bound himself under the
terms of the trust receipts not only as a corporate official of PBMI but also as its
surety; hence, he could be proceeded against in two (2) ways: first, as surety as
determined by the Supreme Court in its decision in Rizal Commercial Banking
Corporation v. Court of Appeals; 17 and second, as the corporate official
responsible for the offense under P.D. No. 115, via criminal prosecution.
Moreover, P.D. No. 115explicitly allows the prosecution of corporate officers
"without prejudice to the civil liabilities arising from the criminal offense." Thus,
according to the Justice Secretary, following Rizal Commercial Banking
Corporation, the civil liability imposed is clearly separate and distinct from the
criminal liability of the accused under P.D. No. 115.
Conformably with the Resolution of the Secretary of Justice, the City Prosecutor
filed 13 Informations against petitioner for violation of P.D. No. 115 before the
RTC of Manila. The cases were docketed as Criminal Cases No. 99-178596 to
99-178608 and consolidated for trial before Branch 52 of said court. Petitioner
filed a motion for reconsideration, which the Secretary of Justice denied in a
Resolution 18 dated January 17, 2000.
Petitioner then filed a petition for certiorari, prohibition and mandamus with the
CA, assailing the resolutions of the Secretary of Justice on the following grounds:
1.THE RESPONDENTS ARE ACTING WITH AN UNEVEN HAND AND
IN FACT, ARE ACTING OPPRESSIVELY AGAINST ALFREDO CHING
WHEN THEY ALLOWED HIS PROSECUTION DESPITE THE FACT
THAT NO EVIDENCE HAD BEEN PRESENTED TO PROVE HIS
PARTICIPATION IN THE ALLEGED TRANSACTIONS.

2.THE RESPONDENT SECRETARY OF JUSTICE COMMITTED AN

ACT IN GRAVE ABUSE OF DISCRETION AND IN EXCESS OF HIS
JURISDICTION WHEN THEY CONTINUED PROSECUTION OF THE
PETITIONER DESPITE THE LENGTH OF TIME INCURRED IN THE
TERMINATION OF THE PRELIMINARY INVESTIGATION THAT
SHOULD JUSTIFY THE DISMISSAL OF THE INSTANT CASE.
3.THE RESPONDENT SECRETARY OF JUSTICE AND ASSISTANT
CITY PROSECUTOR ACTED IN GRAVE ABUSE OF DISCRETION
AMOUNTING TO AN EXCESS OF JURISDICTION WHEN THEY
CONTINUED THE PROSECUTION OF THE PETITIONER DESPITE
LACK OF SUFFICIENT BASIS. 19

In his petition, petitioner incorporated a certification stating that "as far as this
Petition is concerned, no action or proceeding in the Supreme Court, the Court of
Appeals or different divisions thereof, or any tribunal or agency. It is finally
certified that if the affiant should learn that a similar action or proceeding has
been filed or is pending before the Supreme Court, the Court of Appeals, or
different divisions thereof, of any other tribunal or agency, it hereby undertakes to
notify this Honorable Court within five (5) days from such notice." 20
In its Comment on the petition, the Office of the Solicitor General alleged that
A.
THE HONORABLE SECRETARY OF JUSTICE CORRECTLY RULED
THAT PETITIONER ALFREDO CHING IS THE OFFICER
RESPONSIBLE FOR THE OFFENSE CHARGED AND THAT THE
ACTS OF PETITIONER FALL WITHIN THE AMBIT OF VIOLATION OF
P.D. [No.] 115 IN RELATION TO ARTICLE 315, PAR. 1(B) OF THE
REVISED PENAL CODE.

B.
THERE IS NO MERIT IN PETITIONER'S CONTENTION THAT
EXCESSIVE DELAY HAS MARRED THE CONDUCT OF THE
PRELIMINARY INVESTIGATION OF THE CASE, JUSTIFYING ITS
DISMISSAL.
TcHCDI

C.
THE PRESENT SPECIAL CIVIL ACTION FOR CERTIORARI,
PROHIBITION AND MANDAMUS IS NOT THE PROPER MODE OF
REVIEW FROM THE RESOLUTION OF THE DEPARTMENT OF
JUSTICE. THE PRESENT PETITION MUST THEREFORE BE
DISMISSED. 21

On April 22, 2004, the CA rendered judgment dismissing the petition for lack of
merit, and on procedural grounds. On the procedural issue, it ruled that (a) the
certification of non-forum shopping executed by petitioner and incorporated in the
petition was defective for failure to comply with the first two of the three-fold
undertakings prescribed in Rule 7, Section 5 of the Revised Rules of Civil
Procedure; and (b) the petition for certiorari, prohibition and mandamus was not
the proper remedy of the petitioner.
On the merits of the petition, the CA ruled that the assailed resolutions of the
Secretary of Justice were correctly issued for the following reasons: (a) petitioner,
being the Senior Vice-President of PBMI and the signatory to the trust receipts, is
criminally liable for violation of P.D. No. 115; (b) the issue raised by the petitioner,
on whether he violated P.D. No. 115 by his actuations, had already been resolved
and laid to rest in Allied Bank Corporation v. Ordoez; 22 and (c) petitioner was
estopped from raising the City Prosecutor's delay in the final disposition of the
preliminary investigation because he failed to do so in the DOJ.
Thus, petitioner filed the instant petition, alleging that:
I
THE COURT OF APPEALS ERRED WHEN IT DISMISSED THE
PETITION ON THE GROUND THAT THE CERTIFICATION OF NONFORUM SHOPPING INCORPORATED THEREIN WAS DEFECTIVE.
II
THE COURT OF APPEALS ERRED WHEN IT RULED THAT NO
GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS
OF JURISDICTION WAS COMMITTED BY THE SECRETARY OF
JUSTICE IN COMING OUT WITH THE ASSAILED RESOLUTIONS. 23

The Court will delve into and resolve the issues seriatim.
The petitioner avers that the CA erred in dismissing his petition on a mere
technicality. He claims that the rules of procedure should be used to promote, not
frustrate, substantial justice. He insists that the Rules of Court should be
construed liberally especially when, as in this case, his substantial rights are
adversely affected; hence, the deficiency in his certification of non-forum
shopping should not result in the dismissal of his petition.
The Office of the Solicitor General (OSG) takes the opposite view, and asserts
that indubitably, the certificate of non-forum shopping incorporated in the petition
before the CA is defective because it failed to disclose essential facts about
pending actions concerning similar issues and parties. It asserts that petitioner's
failure to comply with the Rules of Court is fatal to his petition. The OSG cited
Section 2, Rule 42, as well as the ruling of this Court in Melo v. Court of
Appeals. 24
We agree with the ruling of the CA that the certification of non-forum shopping
petitioner incorporated in his petition before the appellate court is defective. The
certification reads:
It is further certified that as far as this Petition is concerned, no action or
proceeding in the Supreme Court, the Court of Appeals or different
divisions thereof, or any tribunal or agency.
It is finally certified that if the affiant should learn that a similar action or
proceeding has been filed or is pending before the Supreme Court, the
Court of Appeals, or different divisions thereof, of any other tribunal or
agency, it hereby undertakes to notify this Honorable Court within five (5)
days from such notice. 25

Under Section 1, second paragraph of Rule 65 of the Revised Rules of Court, the
petition should be accompanied by a sworn certification of non-forum shopping,
as provided in the third paragraph of Section 3, Rule 46 of said Rules. The latter
provision reads in part:
SEC. 3.Contents and filing of petition; effect of non-compliance with
requirements. The petition shall contain the full names and actual
addresses of all the petitioners and respondents, a concise statement of

the matters involved, the factual background of the case and the grounds
relied upon for the relief prayed for.
xxx xxx xxx
The petitioner shall also submit together with the petition a sworn
certification that he has not theretofore commenced any other action
involving the same issues in the Supreme Court, the Court of Appeals or
different divisions thereof, or any other tribunal or agency; if there is such
other action or proceeding, he must state the status of the same; and if
he should thereafter learn that a similar action or proceeding has been
filed or is pending before the Supreme Court, the Court of Appeals, or
different divisions thereof, or any other tribunal or agency, he undertakes
to promptly inform the aforesaid courts and other tribunal or agency
thereof within five (5) days therefrom. . . .

Compliance with the certification against forum shopping is separate from and
independent of the avoidance of forum shopping itself. The requirement is
mandatory. The failure of the petitioner to comply with the foregoing requirement
shall be sufficient ground for the dismissal of the petition without prejudice, unless
otherwise provided. 26
Indubitably, the first paragraph of petitioner's certification is incomplete and
unintelligible. Petitioner failed to certify that he "had not heretofore commenced
any other action involving the same issues in the Supreme Court, the Court of
Appeals or the different divisions thereof or any other tribunal or agency" as
required by paragraph 4, Section 3, Rule 46 of the Revised Rules of Court.
We agree with petitioner's contention that the certification is designed to promote
and facilitate the orderly administration of justice, and therefore, should not be
interpreted with absolute literalness. In his works on the Revised Rules of Civil
Procedure, former Supreme Court Justice Florenz Regalado states that, with
respect to the contents of the certification which the pleader may prepare, the
rule of substantial compliance may be availed of. 27 However, there must be a
special circumstance or compelling reason which makes the strict application of
the requirement clearly unjustified. The instant petition has not alleged any such
extraneous circumstance. Moreover, as worded, the certification cannot even be
regarded as substantial compliance with the procedural requirement. Thus, the

CA was not informed whether, aside from the petition before it, petitioner had
commenced any other action involving the same issues in other tribunals.
DcCIAa

On the merits of the petition, the CA ruled that the petitioner failed to establish
that the Secretary of Justice committed grave abuse of discretion in finding
probable cause against the petitioner for violation of estafa under Article 315,
paragraph 1(b) of the Revised Penal Code, in relation to P.D. No. 115. Thus, the
appellate court ratiocinated:
Be that as it may, even on the merits, the arguments advanced in
support of the petition are not persuasive enough to justify the desired
conclusion that respondent Secretary of Justice gravely abused its
discretion in coming out with his assailed Resolutions. Petitioner posits
that, except for his being the Senior Vice-President of the PBMI, there is
no iota of evidence that he was a participes crimines in violating the trust
receipts sued upon; and that his liability, if at all, is purely civil because
he signed the said trust receipts merely as a . . . surety and not as the
entrustee. These assertions are, however, too dull that they cannot even
just dent the findings of the respondent Secretary, viz:
". . . it is apropos to quote section 13 of PD 115 which states in
part, viz:
'. . . If the violation or offense is committed by a
corporation, partnership, association or other judicial
entities, the penalty provided for in this Decree shall be
imposed upon the directors, officers, employees or other
officials or persons therein responsible for the offense,
without prejudice to the civil liabilities arising from the
criminal offense.'
"There is no dispute that it was the respondent, who as senior vicepresident of PBM, executed the thirteen (13) trust receipts. As such, the
law points to him as the official responsible for the offense. Since a
corporation cannot be proceeded against criminally because it cannot
commit crime in which personal violence or malicious intent is required,
criminal action is limited to the corporate agents guilty of an act
amounting to a crime and never against the corporation itself (West
Coast Life Ins. Co. vs. Hurd, 27 Phil. 401; Times, [I]nc. v. Reyes, 39

SCRA 303). Thus, the execution by respondent of said receipts is

enough to indict him as the official responsible for violation of PD 115.
"Parenthetically, respondent is estopped to still contend that PD
115 covers only goods which are ultimately destined for sale and not
goods, like those imported by PBM, for use in manufacture. This issue
has already been settled in the Allied Banking Corporation case, supra,
where he was also a party, when the Supreme Court ruled that PD
115 is 'not limited to transactions in goods which are to be sold (retailed),
reshipped, stored or processed as a component or a product ultimately
sold' but 'covers failure to turn over the proceeds of the sale of entrusted
goods, or to return said goods if unsold or disposed of in accordance
with the terms of the trust receipts.'
"In regard to the other assigned errors, we note that the respondent
bound himself under the terms of the trust receipts not only as a
corporate official of PBM but also as its surety. It is evident that these are
two (2) capacities which do not exclude the other. Logically, he can be
proceeded against in two (2) ways: first, as surety as determined by the
Supreme Court in its decision in RCBC vs. Court of Appeals, 178 SCRA
739; and, secondly, as the corporate official responsible for the offense
under PD 115, the present case is an appropriate remedy under our
penal law.
"Moreover, PD 115 explicitly allows the prosecution of corporate officers
'without prejudice to the civil liabilities arising from the criminal offense'
thus, the civil liability imposed on respondent in RCBC vs. Court of
Appeals case is clearly separate and distinct from his criminal liability
under PD 115.'" 28

Petitioner asserts that the appellate court's ruling is erroneous because (a) the
transaction between PBMI and respondent bank is not a trust receipt transaction;
(b) he entered into the transaction and was sued in his capacity as PBMI Senior
Vice-President; (c) he never received the goods as an entrustee for PBMI, hence,
could not have committed any dishonesty or abused the confidence of
respondent bank; and (d) PBMI acquired the goods and used the same in
operating its machineries and equipment and not for resale.

The OSG, for its part, submits a contrary view, to wit:

34.Petitioner further claims that he is not a person responsible for the
offense allegedly because "[b]eing charged as the Senior Vice-President
of Philippine Blooming Mills (PBM), petitioner cannot be held criminally
liable as the transactions sued upon were clearly entered into in his
capacity as an officer of the corporation" and that [h]e never received the
goods as an entrustee for PBM as he never had or took possession of
the goods nor did he commit dishonesty nor "abuse of confidence in
transacting with RCBC." Such argument is bereft of merit.
35.Petitioner's being a Senior Vice-President of the Philippine Blooming
Mills does not exculpate him from any liability. Petitioner's responsibility
as the corporate official of PBM who received the goods in trust is
premised on Section 13 of P.D. No. 115, which provides:
Section 13.Penalty Clause. The failure of an entrustee to turn over
the proceeds of the sale of the goods, documents or instruments
covered by a trust receipt to the extent of the amount owing to the
entruster or as appears in the trust receipt or to return said goods,
documents or instruments if they were not sold or disposed of in
accordance with the terms of the trust receipt shall constitute the
crime of estafa, punishable under the provisions of Article Three
hundred and fifteen, paragraph one (b) of Act Numbered Three
thousand eight hundred and fifteen, as amended, otherwise
known as the Revised Penal Code. If the violation or offense is
committed by a corporation, partnership, association or
other juridical entities, the penalty provided for in this Decree
shall be imposed upon the directors, officers, employees or
other officials or persons therein responsible for the offense,
without prejudice to the civil liabilities arising from the
criminal offense. (Emphasis supplied)
36.Petitioner having participated in the negotiations for the trust receipts
and having received the goods for PBM, it was inevitable that the
petitioner is the proper corporate officer to be proceeded against by
virtue of the PBM's violation of P.D. No. 115. 29

The ruling of the CA is correct.

SDaHEc

In Mendoza-Arce v. Office of the Ombudsman (Visayas), 30 this Court held that

the acts of a quasi-judicial officer may be assailed by the aggrieved party via a
petition forcertiorari and enjoined (a) when necessary to afford adequate
protection to the constitutional rights of the accused; (b) when necessary for the
orderly administration of justice; (c) when the acts of the officer are without or in
excess of authority; (d) where the charges are manifestly false and motivated by
the lust for vengeance; and (e) when there is clearly no prima facie case against
the accused. 31 The Court also declared that, if the officer conducting a
preliminary investigation (in that case, the Office of the Ombudsman) acts without
or in excess of his authority and resolves to file an Information despite the
absence of probable cause, such act may be nullified by a writ of certiorari. 32
Indeed, under Section 4, Rule 112 of the 2000 Rules of Criminal
Procedure, 33 the Information shall be prepared by the Investigating Prosecutor
against the respondent only if he or she finds probable cause to hold such
respondent for trial. The Investigating Prosecutor acts without or in excess of his
authority under the Rule if the Information is filed against the respondent despite
absence of evidence showing probable cause therefor. 34 If the Secretary of
Justice reverses the Resolution of the Investigating Prosecutor who found no
probable cause to hold the respondent for trial, and orders such prosecutor to file
the Information despite the absence of probable cause, the Secretary of Justice
acts contrary to law, without authority and/or in excess of authority. Such
resolution may likewise be nullified in a petition forcertiorari under Rule 65 of the
Revised Rules of Civil Procedure. 35
A preliminary investigation, designed to secure the respondent against hasty,
malicious and oppressive prosecution, is an inquiry to determine whether (a) a
crime has been committed; and (b) whether there is probable cause to believe
that the accused is guilty thereof. It is a means of discovering the person or
persons who may be reasonably charged with a crime. Probable cause need not
be based on clear and convincing evidence of guilt, as the investigating officer
acts upon probable cause of reasonable belief. Probable cause implies
probability of guilt and requires more than bare suspicion but less than evidence
which would justify a conviction. A finding of probable cause needs only to rest on

evidence showing that more likely than not, a crime has been committed by the
suspect. 36
However, while probable cause should be determined in a summary manner,
there is a need to examine the evidence with care to prevent material damage to
a potential accused's constitutional right to liberty and the guarantees of freedom
and fair play 37 and to protect the State from the burden of unnecessary
expenses in prosecuting alleged offenses and holding trials arising from false,
fraudulent or groundless charges. 38
In this case, petitioner failed to establish that the Secretary of Justice committed
grave abuse of discretion in issuing the assailed resolutions. Indeed, he acted in
accord with law and the evidence.
Section 4 of P.D. No. 115 defines a trust receipt transaction, thus:
Section 4.What constitutes a trust receipt transaction. A trust receipt
transaction, within the meaning of this Decree, is any transaction by and
between a person referred to in this Decree as the entruster, and another
person referred to in this Decree as entrustee, whereby the entruster,
who owns or holds absolute title or security interests over certain
specified goods, documents or instruments, releases the same to the
possession of the entrustee upon the latter's execution and delivery to
the entruster of a signed document called a "trust receipt" wherein the
entrustee binds himself to hold the designated goods, documents or
instruments in trust for the entruster and to sell or otherwise dispose of
the goods, documents or instruments with the obligation to turn over to
the entruster the proceeds thereof to the extent of the amount owing to
the entruster or as appears in the trust receipt or the goods, documents
or instruments themselves if they are unsold or not otherwise disposed
of, in accordance with the terms and conditions specified in the trust
receipt, or for other purposes substantially equivalent to any of the
following:
1.In case of goods or documents, (a) to sell the goods or procure their
sale; or (b) to manufacture or process the goods with the purpose of
ultimate sale; Provided, That, in the case of goods delivered under trust
receipt for the purpose of manufacturing or processing before its ultimate
sale, the entruster shall retain its title over the goods whether in its

original or processed form until the entrustee has complied fully with his
obligation under the trust receipt; or (c) to load, unload, ship or otherwise
deal with them in a manner preliminary or necessary to their sale; or
2.In the case of instruments a) to sell or procure their sale or exchange;
or b) to deliver them to a principal; or c) to effect the consummation of
some transactions involving delivery to a depository or register; or d) to
effect their presentation, collection or renewal.
The sale of goods, documents or instruments by a person in the
business of selling goods, documents or instruments for profit who, at
the outset of the transaction, has, as against the buyer, general property
rights in such goods, documents or instruments, or who sells the same
to the buyer on credit, retaining title or other interest as security for the
payment of the purchase price, does not constitute a trust receipt
transaction and is outside the purview and coverage of this Decree.

An entrustee is one having or taking possession of goods, documents or

instruments under a trust receipt transaction, and any successor in interest of
such person for the purpose of payment specified in the trust receipt
agreement. 39 The entrustee is obliged to: (1) hold the goods, documents or
instruments in trust for the entruster and shall dispose of them strictly in
accordance with the terms and conditions of the trust receipt; (2) receive the
proceeds in trust for the entruster and turn over the same to the entruster to the
extent of the amount owing to the entruster or as appears on the trust receipt; (3)
insure the goods for their total value against loss from fire, theft, pilferage or other
casualties; (4) keep said goods or proceeds thereof whether in money or
whatever form, separate and capable of identification as property of the entruster;
(5) return the goods, documents or instruments in the event of non-sale or upon
demand of the entruster; and (6) observe all other terms and conditions of the
trust receipt not contrary to the provisions of the decree. 40

The entruster shall be entitled to the proceeds from the sale of the goods,
documents or instruments released under a trust receipt to the entrustee to the
extent of the amount owing to the entruster or as appears in the trust receipt, or
to the return of the goods, documents or instruments in case of non-sale, and to

the enforcement of all other rights conferred on him in the trust receipt; provided,
such are not contrary to the provisions of the document. 41
In the case at bar, the transaction between petitioner and respondent bank falls
under the trust receipt transactions envisaged in P.D. No. 115. Respondent bank
imported the goods and entrusted the same to PBMI under the trust receipts
signed by petitioner, as entrustee, with the bank as entruster. The agreement was
as follows:
And in consideration thereof, I/we hereby agree to hold said goods in
trust for the said BANK as its property with liberty to sell the same within
____ days from the date of the execution of this Trust Receipt and for the
Bank's account, but without authority to make any other disposition
whatsoever of the said goods or any part thereof (or the proceeds) either
by way of conditional sale, pledge or otherwise.
I/we agree to keep the said goods insured to their full value against loss
from fire, theft, pilferage or other casualties as directed by the BANK, the
sum insured to be payable in case of loss to the BANK, with the
understanding that the BANK is, not to be chargeable with the storage
premium or insurance or any other expenses incurred on said goods.
In case of sale, I/we further agree to turn over the proceeds thereof as
soon as received to the BANK, to apply against the relative acceptances
(as described above) and for the payment of any other indebtedness of
mine/ours to the BANK. In case of non-sale within the period specified
herein, I/we agree to return the goods under this Trust Receipt to the
BANK without any need of demand.
EcDSHT

I/we agree to keep the said goods, manufactured products or proceeds

thereof, whether in the form of money or bills, receivables, or accounts
separate and capable of identification as property of the BANK. 42

It must be stressed that P.D. No. 115 is a declaration by legislative authority that,
as a matter of public policy, the failure of person to turn over the proceeds of the
sale of the goods covered by a trust receipt or to return said goods, if not sold, is
a public nuisance to be abated by the imposition of penal sanctions. 43
The Court likewise rules that the issue of whether P.D. No. 115 encompasses
transactions involving goods procured as a component of a product ultimately

sold has been resolved in the affirmative in Allied Banking Corporation v.

Ordoez. 44 The law applies to goods used by the entrustee in the operation of its
machineries and equipment. The non-payment of the amount covered by the
trust receipts or the non-return of the goods covered by the receipts, if not sold or
otherwise not disposed of, violate the entrustee's obligation to pay the amount or
to return the goods to the entruster.
In Colinares v. Court of Appeals, 45 the Court declared that there are two possible
situations in a trust receipt transaction. The first is covered by the provision which
refers to money received under the obligation involving the duty to deliver it
(entregarla) to the owner of the merchandise sold. The second is covered by the
provision which refers to merchandise received under the obligation to return it
(devolvera) to the owner. 46 Thus, failure of the entrustee to turn over the
proceeds of the sale of the goods covered by the trust receipts to the entruster or
to return said goods if they were not disposed of in accordance with the terms of
the trust receipt is a crime under P.D. No. 115, without need of proving intent to
defraud. The law punishes dishonesty and abuse of confidence in the handling of
money or goods to the prejudice of the entruster, regardless of whether the latter
is the owner or not. A mere failure to deliver the proceeds of the sale of the
goods, if not sold, constitutes a criminal offense that causes prejudice, not only to
another, but more to the public interest. 47
The Court rules that although petitioner signed the trust receipts merely as Senior
Vice-President of PBMI and had no physical possession of the goods, he cannot
avoid prosecution for violation of P.D. No. 115.
The penalty clause of the law, Section 13 of P.D. No. 115 reads:
Section 13.Penalty Clause. The failure of an entrustee to turn over the
proceeds of the sale of the goods, documents or instruments covered by
a trust receipt to the extent of the amount owing to the entruster or as
appears in the trust receipt or to return said goods, documents or
instruments if they were not sold or disposed of in accordance with the
terms of the trust receipt shall constitute the crime of estafa, punishable
under the provisions of Article Three hundred and fifteen, paragraph one
(b) of Act Numbered Three thousand eight hundred and fifteen, as
amended, otherwise known as the Revised Penal Code. If the violation

or offense is committed by a corporation, partnership, association or

other juridical entities, the penalty provided for in this Decree shall be
imposed upon the directors, officers, employees or other officials or
persons therein responsible for the offense, without prejudice to the civil
liabilities arising from the criminal offense.

The crime defined in P.D. No. 115 is malum prohibitum but is classified
as estafa under paragraph 1(b), Article 315 of the Revised Penal Code,
or estafa with abuse of confidence. It may be committed by a corporation or other
juridical entity or by natural persons. However, the penalty for the crime is
imprisonment for the periods provided in said Article 315, which reads:
ARTICLE 315.Swindling (estafa). Any person who shall defraud
another by any of the means mentioned hereinbelow shall be punished
by:
1st.The penalty of prision correccional in its maximum period to prision
mayor in its minimum period, if the amount of the fraud is over 12,000
pesos but does not exceed 22,000 pesos; and if such amount exceeds
the latter sum, the penalty provided in this paragraph shall be imposed in
its maximum period, adding one year for each additional 10,000 pesos;
but the total penalty which may be imposed shall not exceed twenty
years. In such cases, and in connection with the accessory penalties
which may be imposed and for the purpose of the other provisions of this
Code, the penalty shall be termed prision mayor or reclusion temporal,
as the case may be;
2nd.The penalty of prision correccional in its minimum and medium
periods, if the amount of the fraud is over 6,000 pesos but does not
exceed 12,000 pesos;
3rd.The penalty of arresto mayor in its maximum period to prision
correccional in its minimum period, if such amount is over 200 pesos but
does not exceed 6,000 pesos; and
4th.By arresto mayor in its medium and maximum periods, if such
amount does not exceed 200 pesos, provided that in the four cases
mentioned, the fraud be committed by any of the following means; . . .

Though the entrustee is a corporation, nevertheless, the law specifically makes

the officers, employees or other officers or persons responsible for the offense,
without prejudice to the civil liabilities of such corporation and/or board of
directors, officers, or other officials or employees responsible for the offense. The
rationale is that such officers or employees are vested with the authority and
responsibility to devise means necessary to ensure compliance with the law and,
if they fail to do so, are held criminally accountable; thus, they have a responsible
share in the violations of the law. 48
If the crime is committed by a corporation or other juridical entity, the directors,
officers, employees or other officers thereof responsible for the offense shall be
charged and penalized for the crime, precisely because of the nature of the crime
and the penalty therefor. A corporation cannot be arrested and imprisoned;
hence, cannot be penalized for a crime punishable by imprisonment. 49 However,
a corporation may be charged and prosecuted for a crime if the imposable
penalty is fine. Even if the statute prescribes both fine and imprisonment as
penalty, a corporation may be prosecuted and, if found guilty, may be fined. 50
A crime is the doing of that which the penal code forbids to be done, or omitting
to do what it commands. A necessary part of the definition of every crime is the
designation of the author of the crime upon whom the penalty is to be inflicted.
When a criminal statute designates an act of a corporation or a crime and
prescribes punishment therefor, it creates a criminal offense which, otherwise,
would not exist and such can be committed only by the corporation. But when a
penal statute does not expressly apply to corporations, it does not create an
offense for which a corporation may be punished. On the other hand, if the State,
by statute, defines a crime that may be committed by a corporation but prescribes
the penalty therefor to be suffered by the officers, directors, or employees of such
corporation or other persons responsible for the offense, only such individuals will
suffer such penalty. 51 Corporate officers or employees, through whose act,
default or omission the corporation commits a crime, are themselves individually
guilty of the crime. 52
The principle applies whether or not the crime requires the consciousness of
wrongdoing. It applies to those corporate agents who themselves commit the
crime and to those, who, by virtue of their managerial positions or other similar

relation to the corporation, could be deemed responsible for its commission, if by

virtue of their relationship to the corporation, they had the power to prevent the
act. 53 Moreover, all parties active in promoting a crime, whether agents or not,
are principals. 54Whether such officers or employees are benefited by their
delictual acts is not a touchstone of their criminal liability. Benefit is not an
operative fact.
aHcDEC

In this case, petitioner signed the trust receipts in question. He cannot, thus, hide
behind the cloak of the separate corporate personality of PBMI. In the words of
Chief Justice Earl Warren, a corporate officer cannot protect himself behind a
corporation where he is the actual, present and efficient actor. 55
IN LIGHT OF ALL THE FOREGOING, the petition is DENIED for lack of merit.
Costs against the petitioner.
SO ORDERED.
|||

(Ching v. Secretary of Justice, G.R. No. 164317, [February 6, 2006], 517 PHIL

151-178)

20
[G.R. No. 113930. March 5, 1996.]
PAUL G. ROBERTS, JR., RODOLFO C. SALAZAR, LUIS
LORENZO, SR., LUIS LORENZO, JR., AMAURY R. GUTIERREZ,
BAYANI N. FABIC, JOSE YULO, JR., ESTEBAN B.
PALANNUAYAN, and WONG FONG FUI, petitioners, vs. THE
COURT OF APPEALS, THE HON. MAXIMIANO ASUNCION, in
his capacity as the Presiding Judge of the Regional Trial
Court, Quezon City, Branch 104, HON. APOLINARIO G.
EXEVEA, HON. HENRICK F. GINGOYON, and HON. PHILIP A.
AGUINALDO, in their capacities as Members of the
Department of Justice "349" Committee, and the CITY

PROSECUTOR OF QUEZON CITY, respondents. ROBERTO

DELGADO, petitioner-intervenor.
Poblador Bautista & Reyes for petitioner Paul G. Roberts, Jr.
De Jesus & Associates for other petitioners.
Laqui Palma Tiuseco Contreras Law Office, Gregorio Fabros, and Jose
A. Espina for private respondents.
The Solicitor General for public respondent.
Chavez Laureta & Associates for Intervenor.
SYLLABUS
1. REMEDIAL LAW; CRIMINAL PROCEDURE; PRELIMINARY INVESTIGATION;
RULING IN CRESPO VS. MOGUL MERELY ADVISED THE DOJ TO, "AS FAR
AS PRACTICABLE, REFRAIN FROM ENTERTAINING A PETITION FOR
REVIEW OR APPEAL FROM THE ACTION OF THE FISCAL, WHEN THE
COMPLAINT OR INFORMATION HAS ALREADY BEEN FILED IN COURT."
There is nothing in Crespo vs. Mogul which bars the DOJ from taking cognizance
of an appeal, by way of a petition for review, by an accused in a criminal case
from an unfavorable ruling of the investigation prosecutor. It merely advised the
DOJ to, "as far as practicable, refrain from entertaining a petition for review or
appeal from the action of the fiscal, when the complaint or information has
already been filed in Court." More specifically, it stated: In order therefore to avoid
such a situation whereby the opinion of the Secretary of Justice who reviewed the
action of the fiscal may be disregarded by the trial court, the Secretary of Justice
should, as far as practicable, refrain from entertaining a petition for review or
appeal from the action of the fiscal, when the complaint or information has
already been filed in Court. The matter should be left entirely for the
determination of the Court.
2. ID.; ID.; ISSUANCE OF A WARRANT OF ARREST; CONSTITUTIONAL
BASIS; WHO MAY ISSUE; PROCEDURE. Section 2, Article III of the present
Constitution provides that no search warrant or warrant of arrest shall issue

except upon probable cause to be determined personally by the judge after

examination under oath or affirmation of the complainant and the witnesses he
may produce. Under existing laws, warrants of arrest may be issued (1) by the
Metropolitan Trial Court (MeTCs) except those in the National Capital Region,
Municipal Trial Courts (MTCs), in cases falling within their exclusive original
jurisdiction; in cases covered by the rule on summary procedure where the
accused fails to appear when required; and in cases filed with them which are
cognizable by the Regional Trial Courts (RTCs); and (2) by the Metropolitan Trial
Courts in the National Capital Region (MeTCs-NCR) and the RTCs in cases filed
with them after appropriate preliminary investigations conducted by officers
authorized to do so other than judges of MeTCs, MTCs, and MCTCs. As to the
first, a warrant can issue only if the judge is satisfied after an examination in
writing and under oath of the complainant and the witnesses, in the form of
searching questions and answers, that a probable cause exists and that there is
a necessity of placing the respondent under immediate custody in order not to
frustrate the ends of justice. As to the second, this Court held in Soliven
vs. Makasiar that the judge is not required to personally examine the complainant
and the witnesses, but [f]ollowing established doctrine and procedure, he shall:
(1) personally evaluate the report and supporting documents submitted by the
fiscal regarding the existence of probable cause and, on the basis thereof, issue
a warrant of arrest; or (2) if on the basis thereof he finds no probable cause, he
may disregard the fiscal's report and require the submission of supporting
affidavits of witnesses to aid him in arriving at a conclusion as to the existence of
probable cause. Sound policy supports this procedure, "otherwise judges would
be unduly laden with the preliminary examination and investigation of criminal
complaints instead of concentrating on hearing and deciding cases filed before
their courts." It must be emphasized that judges must not rely solely on the report
or resolution of the fiscal (now prosecutor); they must evaluate the report and the
supporting documents.
3. ID.; ID.; ID.; ID.; ID.; ID.; NOT COMPLIED WITH IN CASE AT BAR.
Unfortunately, in Criminal Case No. Q-93-43198, nothing accompanied the
information upon its filing on 12 April 1993 with the trial court. As found by the
Court of Appeals in its resolution of 1 July 1993, a copy of the Joint Resolution
was forwarded to, and received by, the trial court only on 22 April 1993. And as

revealed by the certification of Branch Clerk of Court Gibson Araula, Jr., no

affidavits of the witnesses, transcripts of stenographic notes of the proceedings
during the preliminary investigation, or other documents submitted in the course
thereof were found in the records of Criminal Case No. Q-93-43198 as of 19 May
1993. Clearly, when respondent Judge Asuncion issued the assailed order of 17
May 1993 directing, among others things, the issuance of warrants of arrest, he
had only the information, amended information, and Joint Resolution as bases
thereof. He did not have the records or evidence supporting the prosecutor's
finding of probable cause. And strangely enough, he made no specific finding of
probable cause; he merely directed the issuance of warrants of arrest "after June
21, 1993." It may, however, be argued that the directive presupposes a finding of
probable cause. But then compliance with a constitutional requirement for the
protection of individual liberty cannot be left to presupposition, conjecture, or
even convincing logic.
4. ID.; ID.; DEPARTMENT OF JUSTICE DISMISSAL OF THE PETITION FOR
REVIEW; AN ACT OF GRAVE ABUSE OF DISCRETION; CASE AT BAR. The
Department of Justice committed grave abuse of discretion when it executed on
23 July 1993 a unilateral volte-face, which was even unprovoked by a formal
pleading to accomplish the same end, by dismissing the petition for review. It
dismissed the petition simply because it thought that a review of the Joint
Resolution would be an exercise in futility in that any further action on the part of
the Department would depend on the sound discretion of the trial court, and that
the latter's denial of the motion to defer arraignment filed at the instance of the
DOJ was clearly an exercise of that discretion or was, in effect, a signal to the
Department that the determination of the case is within the court's exclusive
jurisdiction and competence. This infirmity becomes more pronounced because
the reason adduced by the respondent judge for his denial of the motions to
suspend proceedings and hold in abeyance issuance of warrants of arrest and to
defer arraignment finds, as yet, no support in Crespo.
5. ID.; ID.; ID.; DID NOT RENDER MOOT AND ACADEMIC THE ISSUE OF
WHETHER OR NOT THERE WAS AN IMPROPER ISSUANCE OF THE
WARRANTS OF ARREST. If the only issue before the Court of Appeals were
the denial of the petitioners' Motion to Suspend Proceedings and to Hold in

Abeyance Issuance of Warrants of Arrest and the public prosecutor's Motion to

Defer Arraignment, which were both based on the pendency before the DOJ of
the petition for the review of the Joint Resolution, the dismissal of CA-G.R. SP
NO. 31226 on the basis of the dismissal by the DOJ of the petition for review
might have been correct. However, the petition likewise involved the issue of
whether respondent Judge Asuncion gravely abused his discretion in ordering the
issuance of warrants of arrest despite want of basis. The DOJ's dismissal of the
petition for review did not render moot and academic the latter issue.
6. ID.; ID.; ID.; CASE AT BAR, AN EXCEPTION TO THE GENERAL RULE THAT
CRIMINAL PROSECUTIONS MAY NOT BE RESTRAINED OR STAYED BY
INJUNCTION. There can be no doubt that, in light of the several thousand
private complainants in Criminal Case No. Q-93-43198 and several thousands
more in different parts of the country who are similarly situated as the former for
being holders of "349" Pepsi crowns, any affirmative holding of probable cause in
the said case may be cause or provoke, as justly feared by the petitioners, the
filing of several thousand cases in various courts throughout the country.
Inevitably, the petitioners would be exposed to the harassments of warrants of
arrest issued by such courts and to huge expenditures for premiums on bailbonds
and for travels from one court to another throughout the length and breadth of the
archipelago for their arraignments and trials in such cases. Worse, the filing of
these staggering number of cases would necessarily affect the trial calendar of
our overburdened judges and take much of their attention, time, and energy,
which they could devote to other equally, if not more, important cases. Such
frightful scenario would seriously affect the orderly administration of justice, or
cause oppression or multiplicity of actions a situation already long conceded
by this Court to be an exception to the general rule that criminal prosecutions
may not be restrained or stayed by injunction.
NARVASA, C.J., separate opinion:
THE DETERMINATION OF WHETHER OR NOT PROBABLE CAUSE EXISTS
TO WARRANT THE PROSECUTION OF CRIMES IN COURT SHOULD BE
CONSIGNED AND ENTRUSTED TO THE DEPARTMENT OF JUSTICE, AS
REVIEWER OF THE FINDINGS OF THE PUBLIC PROSECUTORS
CONCERNED. C.J. Narvasa agrees with the disposition of the case proposed

by ponente, that the determination of whether or not probable cause exists to

warrant the prosecution in court of the petitioners should be consigned and
entrusted to the Department of Justice, as reviewer of the findings of the public
prosecutors concerned. In this special civil action, this Court is being asked to
assume the function of a public prosecutor. It is being asked to determine
whether probable cause exists as regards petitioners. More concretely, the Court
is being asked to examine and assess such evidence as has thus far been
submitted by the parties and, on the basis thereof, make a conclusion as to
whether or not it suffices "to engender a well founded belief that a crime has
been committed and that the respondent is probably guilty thereof and should be
held for trial." It is a function that this Court should not be called upon to perform.
It is a function that properly pertains to the public prosecutor, one that, as far as
crimes cognizable by a Regional Trial Court are concerned, and notwithstanding
that it involves an adjudicative process of a sort, exclusively pertains, by law, to
said executive officer, the public prosecutor. It is moreover a function that in the
established scheme of things, is supposed to be performed at the very genesis
of, indeed, prefatorily to, the formal commencement of a criminal action. The
proceedings before a public prosecutor, it may well be stressed, are essentially
preliminary, prefatory, and cannot lead to a final, definite and authoritative
adjudgment of the guilt or innocence of the persons charged with a felony or
crime. Whether or not that function has been correctly discharged by the public
prosecutor i.e., whether or not he has made a correct ascertainment of the
existence of probable cause in a case is a matter that the trial court itself does
not and may not be compelled to pass upon. There is no provision of law
authorizing an aggrieved party to a petition for such a determination. It is not for
instance permitted for an accused, upon the filing of an information against him
by the public prosecutor, to preempt trial by filing a motion with the Trial Court
praying for the quashal or dismissal of the indictment on the ground that the
evidence upon which the same is based is inadequate. Nor is it permitted, on the
antipodal theory that the evidence is in truth adequate, for the complaining party
to present a petition before the Court praying that the public prosecutor be
compelled to file the corresponding information against the accused. Besides, the
function that this Court is asked to perform is that of a trier of facts which it does
not generally do, and if at all, only exceptionally, as in an appeal in a criminal

action where the penalty of life imprisonment, reclusion perpetua, or death has
been imposed by a lower court (after due trial, of course), or upon a convincing
showing of palpable error as regards a particular factual conclusion in the
judgment of such lower court. What, in sum, is being attempted in this Court is to
reverse the established and permanent order of things for the Court to act
before trial and judgment by a lower tribunal; to require it to perform the role of
trier of facts which, to repeat, it does not generally do, the issues properly
cognizable by it being normally limited exclusively to questions of law; to make it
do something that even the trial court may not do at this stage of the proceedings
itself to determine the existence of probable cause; to usurp a duty that
exclusively pertains to an executive official to conduct a preliminary
investigation or review the findings and conclusions of the public prosecutor who
conducted one. The matter is not within the review jurisdiction of the Court as this
is clearly specified in the Constitution, a jurisdiction which even the Congress
may not increase "without . . . (the Court's) advice and concurrence." From the
pragmatic aspect, it is also an undesirable thing, for the result could well be an
increase the already considered work load of the Court. Furthermore, any
judgment of this Court in this action would be inconclusive, as above intimated. It
would not necessarily end the case. It would not, for instance, prevent the
complaining witnesses from presenting additional evidence in an effort to have
the information ultimately filed in the proper court against the accused, or the
respondents from asking for a reinvestigation and presenting additional or other
evidence warranting the dropping of the case. The Court would thus have
wielded judicial power without a definite settlement of rights and liabilities. There
are set rules, and procedural mechanisms in place for the determination of
probable cause at the level of the public prosecutor, the Department of Justice
and, to a certain extent, the Regional Trial Court. No recourse to this Court
should normally be allowed to challenge their determinations and dispositions.
Chief Justice Narvasa therefore vote to refer to the Department of Justice for
resolution, the petition for the review of the Joint Resolution issued by
Investigating Prosecutor Ramon Gerona.

PUNO, J., dissenting opinion:

1. REMEDIAL LAW; CRIMINAL PROCEDURE; PRELIMINARY INVESTIGATION;

A FINDING OF PROBABLE CAUSE NEEDS ONLY TO REST ON EVIDENCE
SHOWING THAT MORE LIKELY THAN NOT A CRIME HAS BEEN COMMITTED
AND WAS COMMITTED BY THE SUSPECTS. The concept of probable cause
is not a high level legal abstraction to be the subject of warring thoughts. It is well
established that "a finding of probable cause needs only to rest on evidence
showing that more likely than not a crime has been committed and was
committed by the suspects. Probable cause need not be based on clear and
convincing evidence of guilt, neither on evidence establishing guilt beyond
reasonable doubt, and definitely not on evidence establishing absolute certainty
of guilt."
2. ID.; ID.; ID.; THE CASE OF SOLIVEN VS. MAKASIAR AND OTHER
RELATED CASES DID NOT ESTABLISH THE ABSOLUTE RULE THAT
UNLESS A JUDGE HAS THE COMPLETE RECORDS OF THE PRELIMINARY
INVESTIGATION BEFORE HIM HE CANNOT LAWFULLY DETERMINE
PROBABLE CAUSE AND ISSUE A WARRANT OF ARREST. Soliven and
other related cases did not establish the absolute rule that unless a judge has
the complete records of the preliminary investigation before him, he cannot
lawfully determine probable cause and issue a warrant of arrest. Soliven only
held that it is the personal responsibility of the judge to determine probable cause
on the basis of the report and supporting documents submitted by the fiscal; that
he must independently evaluate the report and supporting documents submitted
by the fiscal; and, if he finds no probable cause on the basis thereof, he can
require submission of additional supporting affidavits of witnesses. There is
nothing in Soliven thatrequires prosecutors to submit to the judge the complete
records of the preliminary investigation especially if they are voluminous. Nor is
there anything in Soliven that holds that the omission to physically submit the
complete records of the case would constitutionally infirm a finding of probable
cause by a judge even if it was made on the basis of an exhaustive prosecutor's
report or resolution. Indeed, in Webb vs. de Leon, (G.R. No. 121234) we
sustained the finding of probable cause made by the trial judge even if
the complete records of the preliminary investigation were not elevated to the said
judge.

3. ID.; ID.; ID.; CASE AT BAR DOES NOT INVOLVE THE OUTLAWED PROFORMA CERTIFICATION. A revisit of our case law will reveal that what we
condemned in the past as constitutionally impermissible was the practice of
judges of totally relying on pro forma certifications of fiscals that they conducted a
preliminary investigation and found probable cause that the accused committed
the crime charged in the Information. These pro forma certifications usually
consisted of a short sentence. They did not relate the relevant proceedings in the
preliminary investigation nor did they calibrate the weight of diverse and dueling
evidence submitted by the parties. These bare certifications carried no findings of
fact and made no legal analysis which could be used by judges as a rational
basis for a determination of probable cause. Thus, we laid down the
jurisprudence that a judge who determines probable cause by relying on such
meaningless certifications violates the constitutional provision prohibiting
issuance of warrants of arrest ". . . except upon probable cause to be determined
personally by the judge . . . ." The case at bar does not involve these outlawed
certifications.
4. ID.; ID.; ID.; FORWARDING OF COMPLETE RECORDS IS NOT
NECESSARY WHEN THE PROSECUTOR'S REPORT IS EXHAUSTIVE AND
ACCURATE. With due respect to the majority, the ruling that a judge should
always order the elevation of the complete records of a preliminary investigation
before proceeding with the task of reviewing the finding of probable cause made
by prosecutors will exacerbate the mischief of delays in the disposition of criminal
cases. This will not sit well with our people who are complaining that their
continuing calls for speedy justice are only receiving dial tones from courts. The
transcription of stenographic notes and the transfer of physical and documentary
evidence, especially when voluminous, will consume time, result in loss of
valuable evidence and aggravate the burden of litigants.It is Justice Puno's
humble submission that the forwarding of complete records is not necessary
when the prosecutor's report is exhaustive and accurate as in the case at bar.
5. ID.; ID.; ID.; THE CONSTITUTIONAL DUTY OF THIS COURT IN CRIMINAL
LITIGATIONS IS NOT ONLY TO ACQUIT THE INNOCENT AFTER TRIAL BUT
TO INSULATE, FROM THE START, THE INNOCENT FROM UNFOUNDED
CHARGES. The majority has deviated from the general rule when it set aside

the finding of probable cause made by the respondent Court of Appeals and the
respondent trial judge. To be sure, this Court can restrain the prosecution of
criminal prosecutions in exceptionalcases. It must be stressed, however, that in
these exceptional cases, the Court took the extraordinary step of annulling
findings of probable cause either to prevent the misuse of the strong arm of the
law or to protect the orderly administration of justice. The constitutional duty of
this Court in criminal litigations is not only to acquit the innocent after trial but to
insulate, from the start, the innocent from unfounded charges. For the Court is
aware of the strains of a criminal accusation and the stresses of litigation which
should not be suffered by the clearly innocent. The filing of an unfounded criminal
information in court exposes the innocent to severe distress especially when the
crime is not bailable. Even an acquittal of the innocent will not fully bleach the
dark and deep stains left by a baseless accusation for reputation once tarnished
remains tarnished for a long length of time. The expense to establish innocence
may also be prohibitive and can be more punishing especially to the poor and the
powerless. Innocence ought to be enough and the business of this Court is to
shield the innocent from senseless suits right from the start. J. Puno respectfully
submits, however, that the peculiar facts obtaining in the case at bar do not
warrant us to take the exceptional step of setting aside the finding of probable
cause made by the respondent appellate court and the trial court. Their finding is
supported by substantial evidence and the issuance of warrants of arrest against
the petitioners to hold them for trial for estafa does not constitute misuse of
prosecutorial powers. To be sure, petitioners will be exposed to the
inconvenience of facing numerous similar criminal suits but so long as the
inconvenience is no more than what is necessary to dispense justice, they have
no cause to gripe for justice equally belongs to the private respondents.
6. ID.; ID.; ID.; ONLY THE COURTS AS ULTIMATE ARBITER OF RIGHTS IN
CONFLICT CAN WRITE FINIS TO CONTROVERSIES. Petitioners justify the
need for DOJ to review their case in view of the latter's alleged contradictory
rulings on cases brought by different parties involving the same controversy. The
DOJ has denied the charge that it has issued contradictory rulings. But if these
contradictory rulings were truly rendered by DOJ, there is more reason for DOJ to
let the issue be resolved by the courts. As ultimate arbiters of rights in conflict,

only the courts can write finis to the controversy between petitioners and private
respondents.
DECISION
DAVIDE, JR., J :
p

We are urged in this petition to set aside (a) the decision of the Court of Appeals
of 28 September 1993 in CA-G.R. SP No. 31226 1 , which dismissed the petition
therein on the ground that it has been "mooted with the release by the
Department of Justice of its decision . . . dismissing petitioners' petition for
review"; (b) the resolution of the said court of 9 February 1994 2 denying the
petitioners' motion to reconsider the decision; (c) the order of 17 May 1993 3 of
respondent Judge Maximiano C. Asuncion of Branch 104 of the Regional Trial
Court (RTC) of Quezon City in Criminal Case No. Q-93-43198 denying
petitioners' motion to suspend proceedings and to hold in abeyance the issuance
of the warrants of arrest and the public prosecutor's motion to defer arraignment;
and (d) the resolution of 23 July 1993 and 3 February 1994 4 of the Department
of Justice, (DOJ) dismissing petitioners' petition for the review of the Joint
Resolution of the Assistant City Prosecutor of Quezon City and denying the
motion to reconsider the dismissal, respectively.
The petitioners rely on the following grounds for the grant of the reliefs prayed for
in this petition:
I
Respondent Judge acted with grave abuse of discretion when he
ordered the arrest of the petitioners without examining the record of the
preliminary investigation and in determining for himself on the basis
thereof the existence of probable cause.
II
The Department of Justice "349'' Committee acted with grave abuse of
discretion when it refused to review the City Prosecutor's Joint
Resolution and dismissed petitioner's appeal therefrom.

III
The Court of Appeals acted with grave abuse of discretion when it
upheld the subject order directing the issuance of the warrants of arrest
without assessing for itself whether based on such records there is
probable cause against petitioners.
IV
The facts on record do not establish prima facie probable cause and
Criminal Case No. Q-93-43198 should have been dismissed. 5

The antecedents of this petition are not disputed.

Several thousand holders 6 of "349" Pepsi crowns in connection with the Pepsi
Cola Products Phils., Inc.'s (PEPSI's) Number Fever Promotion 7 filed with the
Office of the City Prosecutor of Quezon City complaints against the petitioners in
their respective capacities as Presidents or Chief Executive Officers, Chairman of
the Board, Vice-Chairman of the Board, and Directors of PEPSI, and also against
other officials of PEPSI. The complaints respectively accuse the petitioners and
the other PEPSI officials of the following crimes: (a) estafa; (b) violation of R.A.
No. 7394, otherwise known as the Consumer Act of the Philippines; (c) violation
of E.O. No. 913; 8 and (d) violation of Act No. 2333, entitled "An Act Relative to
Untrue, Deceptive and Misleading Advertisements," as amended by Act No.
3740. 9

After appropriate proceedings, the investigating prosecutor, Ramon M. Gerona,

released on 23 March 1993 a Joint Resolution 10 where he recommended the
filing of an information against the petitioners and others for the violation of
Article 318 of the Revised Penal Code and the dismissal of the complaints for the
violation of Article 315, 2(d) of the Revised Penal Code; R.A. No. 7394; Act No.
2333, as amended by Act No. 3740; and E.O. No. 913. The dispositive portion
thereof reads as follows:
In view of all the foregoing, it is recommended that:
1. The attached information be filed against respondents Paul G.
Roberts, Jr., Rodolfo C. Salazar, Rosemarie R. Vera, Luis F.

Lorenzo, Sr., Luis P. Lorenzo, Jr., J. Roberto Delgado, Amaury R.

Gutierrez, Bayani N. Fabic, Jose Yulo, Jr., Esteban B.
Pacannuayan, Jr., Wong Fong Fui, Quintin J. Gomez, Jr. and
Chito V. Gutierrez for estafa under Article 318, Revised Penal
Code, while the complaint for violation of Article 315, 2(d),
Revised Penal Code against same respondents Juanito R.
Ignacio, R. Sobong, R.O. Sinsuan, M.P. Zarsadias, L.G. Dabao,
Jr., R.L. Domingo, N.N. Bacsal, Jesus M. Manalastas, Janette P.
Pio de Roda, Joaquin W. Sampaico, Winefreda O. Madarang,
Jack Gravey, Les G. Ham, Corazon Pineda, Edward S. Serapio,
Alex O. Caballes, Sandy Sytangco, Jorge W. Drysdale, Richard
Blossom, Pablo de Borja, Edmundo L. Tan, Joseph T. Cohen,
Delfin Dator, Zosimo B. San Juan, Joaquin Franco, Primitivo S.
Javier, Jr., Luisito Guevarra, Asif H. Adil, Eugenio Muniosguren,
James Ditkoff and Timothy Lane be dismissed;
2. The complaints against all respondents for violation of R.A.
7394 otherwise known as the Consumer Act of the
Philippines and violation of Act 2333 as amended by Act 3740
and E.O. 913 be also dismissed for insufficiency of evidence, and
3. I.S. Nos. 92-7833; 92-8710 and 92-P-1065 involving Crowns Nos.
173; 401; and 117, 425, 703 and 373, respectively, alleged to be
likewise winning ones be further investigated to afford
respondents a chance to submit their counter-evidence. 11

On 6 April 1993, City Prosecutor Candido V. Rivera approved the

recommendation with the modification that Rosemarie Vera, Quintin Gomez, Jr.,
and Chito Gonzales be excluded from the charge on the ground of insufficiency
of evidence. 12
The information for estafa attached to the Joint Resolution was approved (on 7
April 1993) by Ismael P. Casabar, Chief of the Prosecution Division, upon
authority of the City Prosecutor of Quezon City, and was filed with the RTC of
Quezon City on 12 April 1993. It was docketed as Criminal Case No. Q-9343198. 13 The information reads as follows:
The undersigned 1st Assistant City Prosecutor accuses PAUL G.
ROBERTS, JR. RODOLFO C. SALAZAR, LUIS F. LORENZO, SR., LUIS

P. LORENZO, JR., J. ROBERTO DELGADO, AMAURY R. GUTIERREZ,

BAYANI N. FABIC, JOSE YULO, JR., ESTEBAN B. PACANNUAYAN, JR.
and WONG FONG FUI, of the crime of ESTAFA, committed as follows:
That in the month of February, 1992, in Quezon City, Philippines and for
sometime prior and subsequent thereto, the above-named accused

Paul G. Roberts, Jr. ) being then the Presidents

Rodolfo G. Salazar and Executive Officers

Luis F. Lorenzo, Sr. ) being then the Chairman of

the Board of Directors

Luis P. Lorenzo, Jr. ) being then the Vice

Chairman of the Board

J. Roberto Delgado ) being then Members of

Amaury R. Gutierrez the Board
Bayani N. Fabic )
Jose Yulo, Jr. )
Esteban B. Pacannuayan, )
Jr. and
Wong Fong Fui )

OF THE PEPSI COLA PRODUCTS PHILIPPINES, INC., CONSPIRING

with one another, with intent of gain, by means of deceit, fraudulent acts
or false pretenses, executed prior to or simultaneously with the
commission of the fraud, did then and there willfully, unlawfully and

feloniously defraud the private complainants whose names with their

prizes claimed appear in the attached lists marked as Annexes "A" to "A46"; "B" to "B-33"; "C" to "C-281"; "D" to "D-238"; "E" to "E-30" and "F" to
"F-244" in the following manner: on the date and in the place
aforementioned, said accused pursuant to their conspiracy, launched the
Pepsi Cola Products Philippines, Inc. "Number Fever Promotion" from
February 17 to May 8, 1992 later extended to May 11-June 12, 1992 and
announced and advertised in the media that "all holders of crowns
and/or caps of Pepsi, Mirinda, Mountain Dew and Seven-up bearing the
winning 3-digit number will win the full amount of the prize printed on the
crowns/caps which are marked with a seven-digit security code as a
measure against tampering or faking of crowns and each and every
number has its own unique matching security code", enticing the public
to buy Pepsi softdrinks with aforestated alluring and attractive
advertisements to become millionaires, and by virtue of such
representations made by the accused, the said complainants bought
Pepsi softdrinks, but, the said accused after their TV announcement on
May 25, 1992 that the winning number for the next day was "349", in
violation of their aforecited mechanics, refused as they still refuse to
redeem/pay the said Pepsi crowns and/or caps presented to them by the
complainants, who, among others, were able to buy Pepsi softdrinks with
crowns/caps bearing number "349" with security codes L-2560-FQ and L3560-FQ, despite repeated demands made by the complainants, to their
damage and prejudice to the extent of the amount of the prizes
respectively due them from their winning "349" crowns/caps, together
with such amounts they spent in going to and from the Office of Pepsi to
claim their prizes and such other amounts used in buying Pepsi
softdrinks which the complainants normally would not have done were it
not for the false, fraudulent and deceitful posters of Pepsi Cola Products
Philippines, Inc.
CONTRARY TO LAW.

On 14 April 1993, the petitioners filed with the Office of the City Prosecutor a
motion for the reconsideration of the Joint Resolution 14 alleging therein that (a)
there was neither fraud in the Number Fever Promotion nor deviation from or
modification of the promotional rules approved by the Department of Trade and
Industry (DTI), for from the start of the promotion, it had always been clearly

explained to the public that for one to be entitled to the cash prize his crown must
bear both the winning number and the correct security code as they appear in the
DTI list; (b) the complainants failed to allege, much less prove with prima
facie evidence, the specific overt criminal acts or omissions purportedly
committed by each of the petitioners; (c) the compromise agreement entered into
by PEPSI is not an admission of guilt; and (d) the evidence establishes that the
promo was carried out with utmost good faith and without malicious intent.
On 15 April 1993, the petitioners filed with the DOJ a Petition for
Review 15 wherein, for the same grounds adduced in the aforementioned motion
for reconsideration, they prayed that the Joint Resolution be reversed and the
complaints dismissed. They further stated that the approval of the Joint
Resolution by the City Prosecutor was not the result of a careful scrutiny and
independent evaluation of the relevant facts and the applicable law but of the
grave threats, intimidation, and actual violence which the complainants had
inflicted on him and his assistant prosecutors.
On that same date, the petitioners filed in Criminal Case No. Q-93-43198 Motions
to Suspend Proceedings and to Hold in Abeyance Issuance of Warrants of Arrest
on the ground that they had filed the aforesaid Petition for Review. 16
On 21 April 1993, acting on the Petition for Review, Chief State Prosecutor Zenon
L. de Guia issued a 1st Indorsement, 17 directing the City Prosecutor of Quezon
City to inform the DOJ whether the petitioners have already been arraigned, and
if not, to move in court for the deferment of further proceedings in the case and to
elevate to the DOJ the entire records of the case, for the case is being treated as
an exception pursuant to Section 4 of Department Circular No. 7 dated 25
January 1990.
On 22 April 1993, Criminal Case No. Q-93-41398 was raffled to Branch 104 of
the RTC of Quezon City. 18
In the morning of 27 April 1993, private prosecutor Julio Contreras filed an ExParte Motion for Issuance of Warrants of Arrest. 19
In the afternoon of that same day, petitioner Paul Roberts, Jr., filed a
Supplemental Urgent Motion to hold in Abeyance Issuance of Warrant of Arrest
and to Suspend Proceedings. 20 He stressed that the DOJ had taken cognizance

of the Petition for Review by directing the City Prosecutor to elevate the records
of I.S. No. P-4401 and its related cases and asserted that the petition for review
was an essential part of the petitioners' right to a preliminary investigation.
The next day, respondent Judge Asuncion, Presiding Judge of Branch 104 of the
RTC of Quezon City, issued an order advising the parties that his court would "be
guided by the doctrine laid down by the Supreme Court in the case of Crespo vs.
Mogul, 151 SCRA 462 and not by the resolution of the Department of Justice on
the petition for review undertaken by the accused." 21
On 30 April 1993, Assistant City Prosecutor Tirso M. Gavero filed with the trial
court a Motion to Defer Arraignment wherein he also prayed that "further
proceedings be held in abeyance pending final disposition by the Department of
Justice." 22
On 4 May 1993, Gavero filed an Amended Information, 23 accompanied by a
corresponding motion 24 to admit it. The amendments merely consist in the
statement that the complainants therein were only "among others" who were
defrauded by the accused and that the damage or prejudice caused amounted
"to several billions of pesos, representing the amounts due them from their
winning '349' crowns/caps." The trial court admitted the amended information on
the same date. 25
Later, the attorneys for the different private complainants filed, respectively, an
Opposition to Motion to Defer Arraignment, 26 and Objection and Opposition to
Motion to Suspend Proceedings and to Hold in Abeyance the Issuance of
Warrants of Arrest. 27

On 14 May 1993, the petitioners filed a Memorandum in support of their Motion to

Suspend Proceedings and to Hold in Abeyance the Issuance of the Warrants of
Arrest. 28
On 17 May 1993, respondent Judge Asuncion issued the challenged order (1)
denying the petitioners' Motion to Suspend Proceedings and to Hold in Abeyance
Issuance of Warrants of Arrest and the public prosecutor's Motion to Defer
Arraignment and (2) directing the issuance of the warrants of arrest "after 21

June 1993" and setting the arraignment on 28 June 1993. 29 Pertinent portions of
the order read as follows:
In the Motion filed by the accused, it is alleged that on April 15, 1993,
they filed a petition for review seeking the reversal of the resolution of the
City Prosecutor of Quezon City approving the filing of the case against
the accused, claiming that:
1. The resolution constituting [sic] force and duress;
2. There was no fraud or deceit therefore there can be no estafa;
3. No criminal overt acts by respondents were proved;
4. Pepsi nor the accused herein made no admission of guilt before the
Department of Trade and Industry;
5. The evidence presented clearly showed no malicious intent on the
part of the accused.
Trial Prosecutor Tirso M. Gavero in his Motion to Defer Arraignment
averred that there is a pending petition for review with the Department of
Justice filed by the accused and the Office of the City Prosecutor was
directed, among other things, to cause for the deferment of further
proceedings pending final disposition of said petition by the Department
of Justice.
The motions filed by the accused and the Trial Prosecutor are hereby
DENIED.
This case is already pending in this Court for trial. To follow whatever
opinion the Secretary of Justice may have on the matter would
undermine the independence and integrity of this Court. This Court is
still capable of administering justice.
The Supreme Court in the case of Crespo vs. Mogul (SCRA 151, pp.
471-472) stated as follows:
"In order therefor to avoid such a situation whereby the opinion of
the Secretary of Justice who reviewed the action of the fiscal may
be disregarded by the trial court, the Secretary of Justice should,
as far as practicable, refrain from entertaining a petition for review
or appeal from the action of the fiscal, when the complaint or

information has already been filed in Court. The matter should be

left entirely for the determination of the Court."
WHEREFORE, let warrant of arrest be issued after June 21,
1993, and arraignment be set aside on June 28, 1993, at 9:30 in
the morning.

On 7 June 1993, the petitioners filed with the Court of Appeals a special civil
action for certiorari and prohibition with application for a temporary restraining
order, 30which was docketed as CA-G.R. SP No. 31226. They contended therein
that respondent Judge Asuncion had acted without or in excess of jurisdiction or
with grave abuse of discretion in issuing the aforementioned order of 17 May
1993 because
I. RESPONDENT JUDGE FAILED TO EXAMINE THE RECORD OF
PRELIMINARY INVESTIGATION BEFORE ORDERING THE
ARREST OF PETITIONERS.
II. THERE IS NO PROBABLE CAUSE TO HOLD PETITIONERS
CRIMINALLY LIABLE FOR ESTAFA, OTHER DECEITS, OR ANY
OTHER OFFENSE.
III. THE PROCEEDINGS BELOW SHOULD HAVE BEEN SUSPENDED
TO AWAIT THE SECRETARY OF JUSTICE'S RESOLUTION OF
PETITIONERS' APPEAL, AND
IV. THERE IS NO OTHER PLAIN, SPEEDY AND ADEQUATE REMEDY
IN THE ORDINARY COURSE OF LAW.

On 15 June 1993, the Court of Appeals issued a temporary restraining order to

maintain the status quo. 31 In view thereof, respondent Judge Asuncion issued an
order on 28 June 1993 32 postponing indefinitely the arraignment of the
petitioners which was earlier scheduled on that date.
On 28 June 1993, the Court of Appeals heard the petitioners' application for a
writ of preliminary injunction, granted the motion for leave to intervene filed by J.
Roberto Delgado, and directed the Branch Clerk of Court of the RTC of Quezon
City to elevate the original records of Criminal Case No. Q-93-43198. 33

Upon receipt of the original records of the criminal case, the Court of Appeals
found that a copy of the Joint Resolution had in fact been forwarded to, and
received by, the trial court on 22 April 1993, which fact belied the petitioners'
claim that the respondent Judge had not the slightest basis at all for determining
probable cause when he ordered the issuance of warrants of arrest. It ruled that
the Joint Resolution "was sufficient in itself to have been relied upon by
respondent Judge in convincing himself that probable cause indeed exists for the
purpose of issuing the corresponding warrants of arrest"; and that the "mere
silence of the records or the absence of any express declaration" in the
questioned order as to the basis of such finding does not give rise to an adverse
inference, for the respondent Judge enjoys in his favor the presumption of
regularity in the performance of his official duty. The Court of Appeals then issued
a resolution 34 denying the application for a writ of preliminary injunction.
On 8 June 1993, the petitioners filed a motion to reconsider 35 the aforesaid
resolution. The Court of Appeals required the respondents therein to comment on
the said motion. 36
On 3 August 1993, the counsel for the private complainants filed in CA-G.R. SP
No. 31226 a Manifestation 37 informing the court that the petitioners' petition for
review filed with the DOJ was dismissed in a resolution dated 23 July 1993. A
copy 38 of the resolution was attached to the Manifestation.
On 21 September 1993, the public respondents filed in CA-G.R. SP No. 31226 a
motion to dismiss the petition 39 on the ground that it has become moot and
academic in view of the dismissal by the DOJ of the petitioners' petition to review
the Joint Resolution. The dismissal by the DOJ is founded on the following
exposition:
You questioned the said order of the RTC before the Court of Appeals
and prayed for the issuance of a writ of preliminary injunction to restrain
the Trial Judge from issuing any warrant of arrest and from proceeding
with the arraignment of the accused. The appellate court in a resolution
dated July 1, 1993, denied your petition.
In view of the said developments, it would be an exercise in futility to
continue reviewing the instant cases for any further action on the part of
the Department would depend on the sound discretion of the Trial Court.

The denial by the said court of the motion to defer arraignment filed at
our instance was clearly an exercise of its discretion. With the issuance
of the order dated May 17, 1993, the Trial Court was in effect sending a
signal to this Department that "the determination of the case is within its
exclusive jurisdiction and competence." The rule is that '. . . once a
complaint or information is filed in Court, any disposition of the case as
to dismissal or the conviction or acquittal of the accused rests in the
sound discretion of the Court. Although the fiscal retains the direction
and control of the prosecution of criminal cases even while the case is
already in Court, he cannot impose his opinion on the trial court. The
court is the best and sole judge on what to do with the case before it. . . .'
(Crespo vs. Mogul, 151 SCRA 462). 40

On 28 September 1993, the Court of Appeals promulgated a

decision 41 dismissing the petition because it had been "mooted with the release
by the Department of Justice of its decision . . . dismissing petitioners' petition for
review by inerrantly upholding the criminal court's exclusive and unsupplantable
authority to control the entire course of the case brought against petitioners,
reiterating with approval the dictum laid down in the 'Crespo' case."
The petitioners filed a motion to reconsider the DOJ's dismissal of the petition
citing therein its resolutions in other similar cases which were favorable to the
petitioners and adverse to other "349" Pepsi crown holders.
In its resolution of 3 February 1994, the DOJ, through its "349" Committee,
denied the motion and stated: "The instant petition is different from the other
petitions resolved by this Department in similar cases from the provinces. In the
latter petitions, the complaints against herein respondents [sic] 42 were dismissed
inasmuch as the informations have not yet been filed or even if already filed in
court, the proceedings have been suspended by the courts to await the outcome
of the appeal with this Department." 43
The petitioners likewise filed a motion to reconsider 44 the aforesaid Court of
Appeals' decision, which the said court denied in its resolution 45 of 9 February
1994. Hence, the instant petition.
The First Division of this Court denied due course to this petition in its resolution
of 19 September 1994. 46

On 7 October 1994, the petitioners filed a motion for the reconsideration 47 of the
aforesaid resolution. Acting thereon, the First Division required the respondents
to comment thereon.
Later, the petitioners filed a supplemental motion for reconsideration 48 and a
motion to refer this case to the Court en banc. 49 In its resolution of 14 November
1994, 50 the First Division granted the latter motion and required the respondents
to comment on the supplemental motion for reconsideration.
In the resolution of 24 November 1994, the Court en banc accepted the referral.
On 10 October 1995, after deliberating on the motion for reconsideration and the
subsequent pleadings in relation thereto, the Court en banc granted the motion
for reconsideration; reconsidered and set aside the resolution of 19 September
1994; and reinstated the petition. It then considered the case submitted for
decision, "since the parties have exhaustively discussed the issues in their
pleadings, the original records of Criminal Case No. Q-93-43198 and of CA-G.R.
SP No. 31226 had been elevated to this Court, and both the petitioners and the
Office of the Solicitor General pray, in effect, that this Court resolve the issue of
probable cause on the basis thereof."

The pleadings of the parties suggest for this Court's resolution the following key
issues:
1. Whether public respondent Judge Asuncion committed grave abuse of
discretion in denying, on the basis of Crespo vs. Mogul, the
motions to suspend proceedings and hold in abeyance the
issuance of warrants of arrest and to defer arraignment until after
the petition for review filed with the DOJ shall have been resolved.
2. Whether public respondent Judge Asuncion committed grave abuse of
discretion in ordering the issuance of warrants of arrest without
examining the records of the preliminary investigation.
3. Whether the DOJ, through its "349" Committee, gravely abused its
discretion in dismissing the petition for review on the following
bases: (a) the resolution of public respondent Court of Appeals
denying the application for a writ of preliminary injunction and (b)

of public respondent Asuncion's denial of the abovementioned

motions.
4. Whether public respondent Court of Appeals committed grave abuse
of discretion (a) in denying the motion for a writ of preliminary
injunction solely on the ground that public respondent Asuncion
had already before him the Joint Resolution of the investigating
prosecutor when he ordered the issuance of the warrants of
arrest, and (b) in ultimately dismissing the petition on the ground
of mootness since the DOJ has dismissed the petition for review.
5. Whether this Court may determine in this proceedings the existence of
probable cause either for the issuance of warrants of arrest
against the petitioners or for their prosecution for the crime of
estafa.

We resolve the first four issues in the affirmative and the fifth, in the negative.
I.
There is nothing in Crespo vs. Mogul 51 which bars the DOJ from taking
cognizance of an appeal, by way of a petition for review, by an accused in a
criminal case from an unfavorable ruling of the investigating prosecutor. It merely
advised the DOJ to, "as far as practicable, refrain from entertaining a petition for
review or appeal from the action of the fiscal, when the complaint or information
has already been filed in Court." More specifically, it stated:
In order therefore to avoid such a situation whereby the opinion of the
Secretary of Justice who reviewed the action of the fiscal may be
disregarded by the trial court, the Secretary of Justice should, as far as
practicable, refrain from entertaining a petition for review or appeal from
the action of the fiscal, when the complaint or information has already
been filed in Court. The matter should be left entirely for the
determination of the Court. 52

In Marcelo vs. Court of Appeals, 53 this Court explicitly declared:

Nothing in the said ruling forecloses the power or authority of the
Secretary of Justice to review resolutions of his subordinates in criminal
cases. The Secretary of Justice is only enjoined to refrain as far as
practicable from entertaining a petition for review or appeal from the

action of the prosecutor once a complaint or information is filed in court.

In any case, the grant of a motion to dismiss, which the prosecution may
file after the Secretary of Justice reverses an appealed resolution, is
subject to the discretion of the court.

Crespo could not have intended otherwise without doing violence to, or repealing,
the last paragraph of Section 4, Rule 112 of the Rules of Court 54 which
recognizes the authority of the Secretary of Justice to reverse the resolution of
the provincial or city prosecutor or chief state prosecutor upon petition by a
proper party.
Pursuant to the said provision, the Secretary of Justice had promulgated the rules
on appeals from resolutions in preliminary investigation. At the time the
petitioners filed their petition for the review of the Joint Resolution of the
investigating prosecutor, the governing rule was Circular No. 7, dated 25 January
1990. Section 2 thereof provided that only resolutions dismissing a criminal
complaint may be appealed to the Secretary of Justice. Its Section 4, 55 however,
provided an exception, thus allowing, upon a showing of manifest error or grave
abuse of discretion, appeals from resolutions finding probable cause, provided
that the accused has not been arraigned.
The DOJ gave due course to the petitioners' petition for review as an exception
pursuant to Section 4 of Circular No. 7.
Meanwhile, the DOJ promulgated on 30 June 1993 Department Order No.
223 56 which superseded Circular No. 7. This Order, however, retained the
provisions of Section 1 of the Circular on appealable cases and Section 4 on the
non-appealable cases and the exceptions thereto.
There is nothing in Department Order No. 223 which would warrant a recall of the
previous action of the DOJ giving due course to the petitioners' petition for review.
But whether the DOJ would affirm or reverse the challenged Joint Resolution is
still a matter of guesswork. Accordingly, it was premature for respondent Judge
Asuncion to deny the motions to suspend proceedings and to defer arraignment
on the following grounds:
This case is already pending in this Court for trial. To follow whatever
opinion the Secretary of Justice may have on the matter would

undermine the independence and integrity of this Court. This Court is

still capable of administering justice.

The real and ultimate test of the independence and integrity of this court is not
the filing of the aforementioned motions at that stage of the proceedings but the
filing of a motion to dismiss or to withdraw the information on the basis of a
resolution of the petition for review reversing the Joint Resolution of the
investigating prosecutor. Before that time, the following pronouncement
in Crespo did not yet truly become relevant or applicable:
The rule therefore in this jurisdiction is that once a complaint or
information is filed in Court any disposition of the case as its dismissal or
the conviction or acquittal of the accused rests in the sound discretion of
the court. Although the fiscal retains the direction and control of the
prosecution of criminal cases even while the case is already in court he
cannot impose his opinion on the trial court. The court is the best and
sole judge on what to do with the case before it. The determination of the
case is within its exclusive jurisdiction and competence. A motion to
dismiss the case filed by the fiscal should be addressed to the Court who
has the option to grant or deny the same. It does not matter if this is
done before or after the arraignment of the accused or that the motion
was filed after a reinvestigation or upon instructions of the Secretary of
Justice who reviewed the records of the investigation. 57

However, once a motion to dismiss or withdraw the information is filed the trial
judge may grant or deny it, not out of subservience to the Secretary of Justice,
but in faithful exercise of judicial prerogative. This Court pertinently stated so
in Martinez vs. Court of Appeals: 58
Whether to approve or disapprove the stand taken by the prosecution is
not the exercise of discretion required in cases like this. The trial judge
must himself be convinced that there was indeed no sufficient evidence
against the accused, and this conclusion can be arrived at only after an
assessment of the evidence in the possession of the prosecution. What
was imperatively required was the trial judge's own assessment of such
evidence, it not being sufficient for the valid and proper exercise of
judicial discretion merely to accept the prosecution's word for its
supposed insufficiency.

As aptly observed the Office of the Solicitor General, in failing to make

an independent finding of the merits of the case and merely anchoring
the dismissal on the revised position of the prosecution, the trial judge
relinquished the discretion he was duty bound to exercise. In effect, it
was the prosecution, through the Department of Justice which decided
what to do and not the court which was reduced to a mere rubber stamp
in violation of the ruling in Crespo vs. Mogul.

II.
Section 2, Article III of the present Constitution provides that no search warrant or
warrant of arrest shall issue except upon probable cause to be determined
personally by the judge after examination under oath or affirmation of the
complainant and the witnesses he may produce.
Under existing laws, warrants of arrest may be issued (1) by the Metropolitan Trial
Courts (MeTCs) except those in the National Capital Region, Municipal Trial
Courts (MTCs), and Municipal Circuit Trial Courts (MCTCs) in cases falling within
their exclusive original jurisdiction; 59 in cases covered by the rule on summary
procedure where the accused fails to appear when required; 60 and in cases filed
with them which are cognizable by the Regional Trial Courts (RTCs); 61 and (2)
by the Metropolitan Trial Courts in the National Capital Region (MeTCs-NCR) and
the RTCs in cases filed with them after appropriate preliminary investigations
conducted by officers authorized to do so other than judges of MeTCs, MTCs and
MCTCs. 62
As to the first, a warrant can issue only if the judge is satisfied after an
examination in writing and under oath of the complainant and the witnesses,
in the form of searching questions and answers, that a probable cause exists
and that there is a necessity of placing the respondent under immediate
custody in order not to frustrate the ends of justice.
As to the second, this Court held in Soliven vs. Makasiar 63 that the judge is not
required to personally examine the complainant and the witnesses, but
[f]ollowing established doctrine and procedure, he shall: (1) personally
evaluate the report and supporting documents submitted by the fiscal
regarding the existence of probable cause and, on the basis thereof,
issue a warrant of arrest; or (2) if on the basis thereof he finds no

probable cause, he may disregard the fiscal's report and require the
submission of supporting affidavits of witnesses to aid him in arriving at a
conclusion as to the existence of probable cause. 64

Sound policy supports this procedure, "otherwise judges would be unduly laden
with the preliminary examination and investigation of criminal complaints instead
of concentrating on hearing and deciding cases filed before their courts." It must
be emphasized that judges must not rely solely on the report or resolution of the
fiscal (now prosecutor); they must evaluate the report and the supporting
documents. In this sense, the aforementioned requirement has
modified paragraph 4(a) of Circular No. 12 issued by this Court on 30 June 1987
prescribing the Guidelines on Issuance of Warrants of Arrest under Section 2,
Article III of the 1987 Constitution, which provided in part as follows:
4. In satisfying himself of the existence of a probable cause for the
issuance of a warrant of arrest, the judge, following established doctrine
and procedure, may either:
(a) Rely upon the fiscal's certification of the existence of probable
cause whether or not the case is cognizable only by the Regional
Trial Court and on the basis thereof, issue a warrant of arrest. . . .

This requirement of evaluation not only of the report or certification of the fiscal
but also of the supporting documents was further explained in People vs.
Inting, 65where this Court specified what the documents may consist of, viz., "the
affidavits, the transcripts of stenographic notes (if any), and all other supporting
documents behind the Prosecutor's certification which are material in assisting
the Judge to make his determination of probable cause. Thus:
We emphasize the important features of the constitutional mandate that
". . . no search warrant or warrant of arrest shall issue except upon
probable cause to be determined personally by the judge . . ." (Article III,
Section 2, Constitution).
First, the determination of probable cause is a function of the Judge. It is
not for the Provincial Fiscal or Prosecutor nor the Election Supervisor to
ascertain. Only the Judge and the Judge alone makes this determination.

Second, the preliminary inquiry made by a Prosecutor does not bind the
Judge. It merely assists him to make the determination of probable
cause. The Judge does not have to follow what the Prosecutor presents
to him. By itself, the Prosecutor's certification of probable cause is
ineffectual. It is the report, the affidavits, the transcripts of stenographic
notes (if any), and all other supporting documents behind the
Prosecutor's certification which are material in assisting the Judge to
make his determination.

In adverting to a statement in People vs. Delgado 66 that the judge may rely on
the resolution of the Commission on Elections (COMELEC) to file the information
by the same token that it may rely on the certification made by the prosecutor
who conducted the preliminary investigation in the issuance of the warrant of
arrest, this Court stressed in Lim vs. Felix 67 that
Reliance on the COMELEC resolution or the Prosecutor's certification
presupposes that the records of either the COMELEC or the Prosecutor
have been submitted to the Judge and he relies on the certification or
resolution because the records of the investigation sustain the
recommendation. The warrant issues not on the strength of the
certification standing alone but because of the records which sustain it.

And noting that judges still suffer from the inertia of decisions and practice
under the 1935 and 1973 Constitutions, this Court found it necessary to
restate the rule "in greater detail and hopefully clearer terms." It then
proceeded to do so, thus:
We reiterate the ruling in Soliven vs. Makasiar that the Judge does not
have to personally examine the complainant and his witnesses. The
Prosecutor can perform the same functions as a commissioner for the
taking of the evidence. However, there should be a report and necessary
documents supporting the Fiscal's bare certification. All of these should
be before the Judge.
The extent of the Judge's personal examination of the report and its
annexes depends on the circumstances of each case. We cannot
determine beforehand how cursory or exhaustive the Judge's
examination should be. The Judge has to exercise sound discretion for,
after all, the personal determination is vested in the Judge by the

Constitution. It can be as brief as or detailed as the circumstances of

each case require. To be sure, the Judge must go beyond the
Prosecutor's certification and investigation report whenever, necessary.
He should call for the complainant and witnesses themselves to answer
the court's probing questions when the circumstances of the case so
require.

This Court then set aside for being null and void the challenged order of
respondent Judge Felix directing the issuance of the warrants of arrest against
petitioners Lim, et al., solely on the basis of the prosecutor's certification in the
informations that there existed probable cause "without having before him any
other basis for his personal determination of the existence of a probable
cause."
In Allado vs. Diokno, 68 this Court also ruled that 'before issuing a warrant of
arrest, the judge must satisfy himself that based on the evidence submitted there
is sufficient proof that a crime has been committed and that the person to be
arrested is probably guilty thereof."
In the recent case of Webb vs . De Leon, 69 this Court rejected the thesis of the
petitioners of absence probable cause and sustained the investigating panel's
and the respondent Judge's findings of probable cause. After quoting extensively
from Soliven vs. Makasiar, 70 this Court explicitly pointed out:
Clearly then, the Constitution, the Rules of Court, and our case law
repudiate the submission of petitioners that respondent judges should
have conducted "searching examination of witnesses" before issuing
warrants of arrest against them. They also reject petitioners' contention
that a judge must first issue an order of arrest before issuing a warrant of
arrest. There is no law or rule requiring the issuance of an Order of
Arrest prior to a warrant of arrest.
In the case at bar, the DOJ Panel submitted to the trial court its 26-page
report, the two (2) sworn statements of Alfaro and the sworn statements
of Carlos Cristobal and Lolita Birrer as well as the counter-affidavits of
the petitioners. Apparently, the painstaking recital and analysis of the
parties' evidence made in the DOJ Panel Report satisfied both judges
that there is probable cause to issue warrants of arrest against
petitioners. Again, we stress that before issuing warrants of arrest,

judges merely determine personally the probability, not the certainty of

the guilt of an accused. In doing so, judges do not conduct a de
novo hearing to determine the existence of probable cause. They just
personally review the initial determination of the prosecutor finding a
probable cause to see if it is supported by substantial evidence. The
sufficiency of the review process cannot be measured by merely
counting minutes and hours. The fact that it took the respondent judges
a few hours to review and affirm the Probable cause determination of the
DOJ Panel does not mean they made no personal evaluation of the
evidence attached to the records of the case.(emphasis supplied)

The teachings then of Soliven, Inting, Lim, Allado, and Webb reject the
proposition that the investigating prosecutor's certification in an information or his
resolution which is made the basis for the filing of the information, or both, would
suffice in the judicial determination of probable cause for the issuance of a
warrant of arrest. In Webb, this Court assumed that since the respondent Judges
had before them not only the 26-page resolution of the investigating panel but
also the affidavits of the prosecution witnesses and even the counter-affidavits of
the respondents, they (judges) made personal evaluation of the evidence
attached to the records of the case.
Unfortunately, in Criminal Case No. Q-93-43198, nothing accompanied the
information upon its filing on 12 April 1993 with the trial court. As found by the
Court of Appeals in its resolution of 1 July 1993, a copy of the Joint Resolution
was forwarded to, and received by, the trial court only on 22 April 1993. And as
revealed by the certification 71 of Branch Clerk of Court Gibson Araula, Jr., no
affidavits of the witnesses, transcripts of stenographic notes of the proceedings
during the preliminary investigation, or other documents submitted in the course
thereof were found in the records of Criminal Case No. Q-93-43198 as of 19 May
1993. Clearly, when respondent Judge Asuncion issued the assailed order of 17
May 1993 directing, among other things, the issuance of warrants of arrest, he
had only the information, amended information, and Joint Resolution as bases
thereof. He did not have the records or evidence supporting the prosecutor's
finding of probable cause. And strangely enough, he made no specific finding of
probable cause; he merely directed the issuance of warrants of arrest "after June
21, 1993." It may, however, be argued that the directive presupposes a finding of

probable cause. But then compliance with a constitutional requirement for the
protection of individual liberty cannot be left to presupposition, conjecture, or
even convincing logic.
III.
As earlier stated, per its 1st Indorsement of 21 April 1993, the DOJ gave due
course to the petitioners' petition for review pursuant to the exception provided for
in Section 4 of Circular No. 7, and directed the Office of the City Prosecutor of
Quezon City to forward to the Department the records of the cases and to file in
court a motion for the deferment of the proceedings. At the time it issued the
indorsement, the DOJ already knew that the information had been filed in court,
for which reason it directed the City Prosecutor to inform the Department whether
the accused have already been arraigned and if not yet arraigned, to move to
defer further proceedings. It must have been fully aware that, pursuant to Crespo
vs. Mogul, a motion to dismiss a case filed by the prosecution either as a
consequence of a reinvestigation or upon instructions of the Secretary of Justice
after a review of the records of the investigation is addressed to the trial court,
which has the option to grant or to deny it. Also, it must have been still fresh in its
mind that a few months back it had dismissed for lack of probable cause other
similar complaints of holders of "349" Pepsi crowns. 72 Thus, its decision to give
due course to the petition must have been prompted by nothing less than an
honest conviction that a review of the Joint Resolution was necessary in the
highest interest of justice in the light of the special circumstances of the case.
That decision was permissible within the "as far as practicable" criterion
in Crespo.

Hence, the DOJ committed grave abuse of discretion when it executed on 23 July
1993 a unilateral volte-face, which was even unprovoked by a formal pleading to
accomplish the same end, by dismissing the petition for review. It dismissed the
petition simply because it thought that a review of the Joint Resolution would be
an exercise in futility in that any further action on the part of the Department
would depend on the sound discretion of the trial court, and that the latter's denial
of the motion to defer arraignment filed at the instance of the DOJ was clearly an
exercise of that discretion or was, in effect, a signal to the Department that the

determination of the case is within the court's exclusive jurisdiction and

competence. This infirmity becomes more pronounced because the reason
adduced by the respondent Judge for his denial of the motions to suspend
proceedings and hold in abeyance issuance of warrants of arrest and to defer
arraignment finds, as yet, no support in Crespo.
IV.
If the only issue before the Court of Appeals were the denial of the petitioners'
Motion to Suspend Proceedings and to Hold in Abeyance Issuance of Warrants
of Arrest and the public prosecutor's Motion to Defer Arraignment, which were
both based on the pendency before the DOJ of the petition for the review of the
Joint Resolution, the dismissal of CA-G.R. SP No. 31226 on the basis of the
dismissal by the DOJ of the petition for review might have been correct. However,
the petition likewise involved the issue of whether respondent Judge Asuncion
gravely abused his discretion in ordering the issuance of warrants of arrest
despite want of basis. The DOJ's dismissal of the petition for review did not
render moot and academic the latter issue.
In denying in its resolution of 1 July 1993 the petitioner's application for a writ of
preliminary injunction to restrain respondent Judge Asuncion from issuing
warrants of arrest, the Court of Appeals, justified its action in this wise:
The Joint Resolution was sufficient in itself to have been relied upon by
respondent Judge in convincing himself that probable cause indeed
exists for the purpose of issuing the corresponding warrants of arrest.
The mere silence of the records or the absence of any express
declaration in the questioned Order of May 17, 1993 as to where the
respondent Judge based his finding of probable cause does not give rise
to any adverse inference on his part. The fact remains that the Joint
Resolution was at respondent Judge's disposal at the time he issued the
Order for the issuance of the warrants of arrest. After all, respondent
Judge enjoys in his favor the presumption of regularity in the
performance of official actuations. And this presumption prevails until it is
overcome by clear and convincing evidence to the contrary. Every
reasonable intendment will be made in support of the presumption, and
in case of doubt as to an officer's act being lawful or unlawful it should be
construed to be lawful. (31 C.J.S., 808-810. See also Mahilum, et al. vs.

Court of Appeals, 17 SCRA 482; People vs. Cortez, 21 SCRA

1228; Government of the P.I. vs. Galarosa, 36 Phil. 338).

We are unable to agree with this disquisition, for it merely assumes at least two
things: (1) that respondent Judge Asuncion had read and relied on the Joint
Resolution and (2) he was convinced that probable cause exists for the issuance
of the warrants of arrest against the petitioners. Nothing in the records provides
reasonable basis for these assumptions. In his assailed order, the respondent
Judge made no mention of the Joint Resolution, which was attached to the
records of Criminal Case No. Q-93-43198 on 22 April 1993. Neither did he state
that he found probable cause for the issuance of warrants of arrest. And, for an
undivinable reason, he directed the issuance of warrants of arrest only "after
June 21, 1993." If he did read the Joint Resolution and, in so reading, found
probable cause, there was absolutely no reason at all to delay for more than one
month the issuance of warrants of arrest. The most probable explanation for such
delay could be that the respondent Judge had actually wanted to wait for a little
while for the DOJ to resolve the petition for review.
It is, nevertheless, contended in the dissenting opinion of Mr. Justice Reynato S.
Puno that whatever doubts may have lingered on the issue of probable cause
was dissolved when no less than the Court of Appeals sustained the finding of
probable cause made by the respondent Judge after an evaluation of the Joint
Resolution. We are not persuaded with that opinion. It is anchored on erroneous
premises. In its 1 July 1993 resolution, the Court of Appeals does not at all state
that it either sustained respondent Judge Asuncion's finding of probable cause,
or found by itself probable cause. As discussed above, it merely presumed that
Judge Asuncion might have read the Joint Resolution and found probable cause
from a reading thereof. Then too, that statement in the dissenting opinion
erroneously assumes that the Joint Resolution can validly serve as sufficient
basis for determining probable cause. As stated above, it is not.
V.
In criminal prosecutions, the determination of probable cause may either be an
executive or a judicial prerogative. In People vs. Inting, 73 this Court aptly stated:

And third, Judges and Prosecutors alike should distinguish the

preliminary inquiry which determines probable cause for the issuance of
a warrant of arrest from a preliminary investigation proper which
ascertains whether the offender should be held for trial or released. Even
if the two inquiries are conducted in the course of one and the same
proceeding, there should be no confusion about the objectives. The
determination of probable cause for the warrant of arrest is made by the
Judge. The preliminary investigation proper whether or not there is
reasonable ground to believe that the accused is guilty of the offense
charged and, therefore, whether or not he should be subjected to the
expense, rigors and embarrassment of trial is the function of the
Prosecutor.
xxx xxx xxx
We reiterate that preliminary investigation should be distinguished as to
whether it is an investigation for the determination of a sufficient ground
for the filing of the information or it is an investigation for the
determination of a probable cause for the issuance of a warrant of arrest.
The first kind of preliminary investigation is executive in nature. It is part
of the prosecution's job. The second kind of preliminary investigation
which is more properly called preliminary examination is judicial in nature
and is lodged with the judge. . .

Ordinarily, the determination of probable cause is not lodged with this Court. Its
duty in an appropriate case is confined to the issue of whether the executive or
judicial determination, as the case may be, of probable cause was done without
or in excess of jurisdiction or With grave abuse of discretion amounting to want of
jurisdiction. This is consistent with the general rule that criminal prosecutions may
not be restrained or stayed by injunction, preliminary or final. There are, however,
exceptions to this rule. Among the exceptions are enumerated in Brocka vs.
Enrile 74 as follows:
a. To afford adequate protection to the constitutional rights of the
accused (Hernandez vs. Albano, et al., L-19272, January 25, 1967, 19
SCRA 95);
b. When necessary for the orderly administration of justice or to avoid
oppression or multiplicity of actions (Dimayuga, et al. vs. Fernandez, 43

Phil. 304; Hernandez vs. Albano, supra; Fortun vs. Labang, et al., L38383, May 27, 1981, 104 SCRA 607);
c. When there is a pre-judicial question which is sub judice (De Leon vs.
Mabanag, 70 Phil. 202);
d. When the acts of the officer are without or in excess of authority
(Planas vs. Gil, 67 Phil. 62);
e. Where the prosecution is under an invalid law, ordinance or regulation
(Young vs. Rafferty, 33 Phil. 556; Yu Cong Eng vs. Trinidad, 47 Phil. 385,
389);
f. When double jeopardy is clearly apparent (Sangalang vs. People and
Avendia, 109 Phil. 1140);
g. Where the court has no jurisdiction over the offense (Lopez vs. City
Judge, L-25795, October 29, 1966, 18 SCRA 616);
h. Where it is a case of persecution rather than prosecution (Rustia vs.
Ocampo, CA-G.R. No. 4760, March 25, 1960);
i. Where the charges are manifestly false and motivated by the lust for
vengeance (Recto vs. Castelo, 18 L.J. [1953], cited in Raoa vs.
Alvendia, CA-G.R. No. 30720-R, October 8, 1962; Cf. Guingona, et al.
vs. City Fiscal, L-60033, April 4, 1984, 128 SCRA 577); and
j. When there is clearly no prima facie case against the accused and a
motion to quash on that ground has been denied (Salonga vs. Pao, et
al., L-59524, February 18, 1985, 134 SCRA 438).
7. Preliminary injunction has been issued by the Supreme Court to
prevent the threatened unlawful arrest of petitioners (Rodriguez vs.
Castelo, L-6374, August 1, 1953). (cited in Regalado, Remedial Law
Compendium, p. 188, 1988 Ed.)

In these exceptional cases, this Court may ultimately resolve the existence or
non-existence of probable cause by examining the records of the preliminary
investigation, as it did in Salonga vs. Pao, 75 Allado, and Webb.
There can be no doubt that, in light of the several thousand private complainants
in Criminal Case No. Q-93-43198 and several thousands more in different parts

of the country who are similarly situated as the former for being holders of "349"
Pepsi crowns, any affirmative holding of probable cause in the said case may
cause or provoke, as justly feared by the petitioners, the filing of several thousand
cases in various courts throughout the country. Inevitably, the petitioners would
be exposed to the harassments of warrants of arrest issued by such courts and to
huge expenditures for premiums on bailbonds and for travels from one court to
another throughout the length and breadth of the archipelago for their
arraignments and trials in such cases. Worse, the filing of these staggering
number of cases would necessarily affect the trial calendar of our overburdened
judges and take much of their attention, time, and energy, which they could
devote to other equally, if not more, important cases. Such a frightful scenario
would seriously affect the orderly administration of justice, or cause oppression or
multiplicity of actions a situation already long conceded by this Court to be an
exception to the general rule that criminal prosecutions may not be restrained or
stayed by injunction. 76

We shall not, however, reevaluate the evidence to determine if indeed there is

probable cause for the issuance of warrants of arrest in Criminal Case No. Q-9343298. For, as earlier stated, the respondent Judge did not, in fact, find that
probable cause exists, and if he did he did not have the basis therefor as
mandated by Soliven, Inting, Lim, Allado, and even Webb. Moreover, the records
of the preliminary investigation in Criminal Case No. Q-93-43198 are not with this
Court. They were forwarded by the Office of the City Prosecutor of Quezon City
to the DOJ in compliance with the latter's 1st Indorsement of 21 April 1993. The
trial court and the DOJ must be required to perform their duty.
WHEREFORE, the instant petition is granted and the following are hereby SET
ASIDE:
(a) Decision of 28 September 1993 and Resolution of 9 February 1994 of
respondent Court of Appeals in CA-G.R. SP No. 31226;
(b) The Resolution of the "349" Committee of the Department of Justice of 23
July 1993 dismissing the petitioners' petition for review and of 3 February 1994
denying the motion to reconsider the dismissal; and

(c) The Order of respondent Judge Maximiano C. Asuncion of 17 May 1993 in

Criminal Case No. Q-93-43198.
The Department of Justice is DIRECTED to resolve on the merits, within sixty
(60) days from notice of this decision, the petitioners' petition for the review of the
Joint Resolution of Investigating Prosecutor Ramon Gerona and thereafter to file
the appropriate motion or pleading in Criminal Case No. Q-93-43198, which
respondent Judge Asuncion shall then resolve in light of Crespo vs.
Mogul, Soliven vs. Makasiar, People vs. Inting, Lim vs. Felix, Allado vs. Diokno,
and Webb vs. De Leon.
In the meantime, respondent Judge Asuncion is DIRECTED to cease and desist
from further proceeding with Criminal Case No. Q-93-43198 and to defer the
issuance of warrants of arrest against the petitioners.
No pronouncement as to costs.
SO ORDERED.
Padilla, Bellosillo and Hermosisima, Jr., JJ., concur.
Narvasa, C.J., see separate concurring opinion.
Regalado, J., joins the dissent of J. Puno, pro hac vice.
Romero, Melo and Mendoza, JJ., join in the dissent of Justice Puno.
Puno, J., dissents.
Vitug, J., concurs in the opinions of the ponente and the Chief Justice.
Francisco, J., took no part; ponente of the assailed decision.
Kapunan, J., concurs in the result.
Panganiban, J., took no part; Daughter is a management officer of Pepsi Cola,
Head Office, NY, USA.

Separate Opinions
NARVASA, C.J., separate opinion:

I agree with the disposition of the case proposed by Mr. Justice Hilario G. Davide
in his dissenting opinion, that the determination of whether or not probable cause
exists to warrant the prosecution in court of the petitioners should be consigned
and entrusted to the Department of Justice, as reviewer of the findings of the
public prosecutors concerned.
In this special civil action, this Court is being asked to assume the function of a
public prosecutor. It is being asked to determine whether probable cause exists
as regards petitioners. More concretely, the Court is being asked to examine and
assess such evidence as has thus far been submitted by the parties and, on the
basis thereof, make a conclusion as to whether or not it suffices "to engender a
well founded belief that a crime has been committed and that the respondent is
probably guilty thereof and should be held for trial." 1
It is a function that this Court should not be called upon to perform. It is a function
that properly pertains to the public prosecutor, 2 one that, as far as crimes
cognizable by a Regional Trial Court are concerned, and notwithstanding that it
involves an adjudicative process of a sort, 3 exclusively pertains, by law, to said
executive officer, the public prosecutor. 4 It is moreover a function that in the
established scheme of things, is supposed to be performed at the very genesis
of, indeed, prefatorily to, the formal commencement of a criminal action. 5 The
proceedings before a public prosecutor, it may well be stressed, are essentially
preliminary, prefatory, and cannot lead to a final, definite and authoritative
adjudgment of the guilt or innocence of the persons charged with a felony or
crime. 6
Whether or not that function has been correctly discharged by the public
prosecutor i.e., whether or not he has made a correct ascertainment of the
existence of probable cause in a case is a matter that the trial court itself does
not and may not be compelled to pass upon. 7 There is no provision of law
authorizing an aggrieved party to petition for such a determination. It is not for
instance permitted for an accused, upon the filing of an information against him
by the public prosecutor, to preempt trial by filing a motion with the Trial Court
praying for the quashal or dismissal of the indictment on the ground that the
evidence upon which the same is based is inadequate. Nor is it permitted, on the
antipodal theory that the evidence is in truth adequate, for the complaining party

to present a petition before the Court praying that the public prosecutor be
compelled to file the corresponding information against the accused. 8
Besides, the function that this Court is asked to perform is that of a trier of facts
which it does not generally do, 9 and if at all, only exceptionally, as in an appeal in
a criminal action where the penalty of life imprisonment, reclusion perpetua, or
death has been imposed by a lower court (after due trial, of course), 10 or upon a
convincing showing of palpable error as regards a particular factual conclusion in
the judgment of such lower court. 11
What, in sum, is being attempted in this Court is to reverse the established and
permanent order of things for the Court to act before trial and judgment by a
lower tribunal; to require it to perform the role of trier of facts which, to repeat,
it does not generally do, the issues properly cognizable by it being normally
limited exclusively to questions of law; 12 to make it do something that even the
trial court may not do at this stage of the proceedings itself to determine the
existence of probable cause, to usurp a duty that exclusively pertains to an
executive official 13 to conduct a preliminary investigation or review the findings
and conclusions of the public prosecutor who conducted one.
The matter is not within the review jurisdiction of the Court as this is clearly
specified in the Constitution 14 a jurisdiction which even the Congress may not
increase "without . . . (the Court's) advice and concurrence. 15
From the pragmatic aspect, it is also an undesirable thing, for the result could
well be an increase to the already considerable work load of the Court.
Furthermore, any judgment of this Court in this action would be inconclusive, as
above intimated. It would not necessarily end the case. It would not, for instance,
prevent the complaining witnesses from presenting additional evidence in an
effort to have the information ultimately filed in the proper court against the
accused, or the respondents from asking for a reinvestigation and presenting
additional or other evidence warranting the dropping of the case. The Court
would thus have wielded judicial power without a definite settlement of rights and
liabilities.
There are set rules, and procedural mechanisms in place for the determination of
probable cause at the level of the public prosecutor, the Department of Justice

and, to a certain extent, the Regional Trial Court. No recourse to this Court
should normally be allowed to challenge their determinations and dispositions. I
therefore vote to refer to the Department of Justice for resolution, the petition for
the review of the Joint Resolution issued by Investigating Prosecutor Ramon
Gerona.
Vitug, J., concurs.
PUNO, J., dissenting:
I
The constitutional policy of speedy adjudication of cases demand that
we now affirm or reverse the judicial finding of probable cause to hold petitioners
for trial on the charge of estafa. Pepsi's Number Fever Promotion, the root cause
of the case at bar, was held way back in 1992. Since 1993, City Prosecutor
Candido Rivera of Quezon City, RTC Judge Maximiano Asuncion and the Court
of Appeals have uniformly found the existence of probable cause against
petitioners. It is now 1996 and petitioners have yet to be tried in court. Three (3)
long years of expensive litigation on the part of private respondents, mostly
belonging to the powerless of our people, will go to naught by remanding the
case to the Department of Justice for another executive determination of the
issue of probable cause.
To be sure, the case at bar is deeply impressed with public interest. On one hand
are some 12,000 people holding "349" Pepsi crowns and who have long been
clamoring for payment of their prize money. Their collective claim runs to billions
of pesos. On the other hand is petitioners' business integrity which needs a shield
from false and malicious charges. We should decide this dispute with dispatch
and with little resort to procedural technicalities, otherwise, our people's search
for justice will be too wearisome a toil.
II
Pursuant to this precis, I will skip capillary issues and immediately go to the heart
of the case i.e., determine whether the respondent Court of
Appeals committed reversible error in affirming the respondent trial judge who
found probable cause to hold petitioners for trial on the charge of estafa. The

concept of probable cause isnot a high level legal abstraction to be the subject of
warring thoughts. It is well established that "a finding of probable cause needs
only to rest on evidence showing that more likely than not a crime has been
committed and was committed by the suspects. Probable cause need not be
based on clear and convincing evidence of guilt, neither on evidence establishing
guilt beyond reasonable doubt, and definitely not on evidence establishing
absolute certainty of guilt." 1

On the basis of the evidence presented by the parties in a long and exhaustive
preliminary investigation, Quezon City Prosecutor Rivera determined that there is
a sufficient ground to engender a well founded belief that petitioners committed
estafa. City Prosecutor Rivera approved the findings of First Assistant City
Prosecutor Ramon M. Gerona contained in a 17-page Joint Resolution. I quote in
extenso the factual findings relied upon by the prosecutors in finding probable
cause, viz:
xxx xxx xxx
"The complaints-affidavits and replies by complainant and counteraffidavits and rejoinder by respondents as well as arguments and
counter-arguments from both sides may be summed up to three simple
but comprehensive issues, to wit:
1. Was there fraud or deceit committed by Pepsi through respondents
prior to or simultaneously with their deliberate act of refusal to pay
complainants the prizes indicated in their crown/caps?
2. Did Pepsi officials, herein respondents, comply with the rules and
regulations imposed by the DTI especially on the mechanics of
the promotion, or deviation, modification, addition or deletion of
aforenamed mechanics?
3. Was there a way respondents could have avoided the fraud?
Relative to the first and second issues, respondents insist that they had
complied with all the requirements or conditions imposed by the DTI
particularly with respect to the prior approval of the latter of the
mechanics of the promotion. Respondent likewise contend that the

deviation of the duly approved mechanics of the promotion was also

approved by the DTI. In this regard, Section 10.1 of the Ministry Order
No. 33 reads as follows:
10.1 All advertisements, brochures or any printed material
indicating or describing the mechanics of the promotion shall
conform with the mechanics approved by this Bureau. Any
deviation, modification, addition or deletion shall first be submitted
to this Bureau for approval.
Parenthetically, the contention by respondents that the mechanics of the
promotion was approved by the DTI is not in question, but, the additional
contention that the deviation thereof was likewise approved by the DTI is
not supported by or does not jibe with the facts. The report of Task Force
DTI, page 14 thereof, says and we quote:
"It appears that after the "349" controversy which came
about during the extension period of Pepsi "Number Fever" promo,
the significance of the security code as a measure against
tampering and faking of the crowns or caps has been modified. For
after May 26, 1992, the "349" number surfaced to have both
winning and non-winning security codes." (emphasis supplied)

Page 15 of the same Task Force Report reads:

'The DTI-NRC records show that the modification/deviation
on the use of security code as explained in the trade posters and
other joint advertisements was never submitted for approval in
violation of the specific requirements of 10.1 of Memorandum Order
No. 33.
As to why only number "349" has both a winning and nonwinning security code, Mr. Q.J. Gomez Jr. could not amplify the
same except by testifying that the supplier from Mexico gives them
the list of winning numbers and security codes together with the
master list of the non-winning number which were done through a
computer program.'
Respondents admit that only "349" was given two kinds of security
codes, winning and non-winning. This condition was added by
respondents while the promo was going on and after "349" had been

announced as winner. The modification sans approval by the DTI as

shown in the preceding DTI findings to the extent that the holders of the
"349" crowns are prejudiced or damaged after said number had been
drawn and announced as winner constitutes deceit, commencing from
the date of the launching of the promotion sometime in February 1992 up
to the present with Pepsi's refusal to honor complainants' demand for
payment.
The alteration was found to be factual by the DTI in the last portion of the
Task Force Report which says with specificity:
'3. . . .
'The TF (Task Force) however noted it was only for No. "349" that
a deviation in the use of security code from what was originally
approved by the DTI-NCR was made. In all the other winning
numbers PPCPI and PCI complied with the approved mechanics.'
(Emphasis supplied)

Indeed, the mechanics mentioned the use of a '3 digit security code as a
measure against tampering or faking the crowns' and that 'each and every
number has its own unique, matching security code. (counter-affidavit, Rosemarie
Vera, p. 13).
It is worth reproducing complainants' discussion of these two points in their
Memorandum.
'Let us analyze these two rules:
4.2 The first rule defines the purposes of the security code, which
is to provide the basis for detecting whether or not a crown
containing a winning number is fake, spurious or tampered with.
By the wording of this rule, a genuine, true and real Pepsi,
Mirinda, 7-Up or Mountain Dew crown bearing a winning number,
as drawn and announced, could not possibly lose in the promo.
The genuineness of the crown will be assured by the security
code and the drawn winning number it bears will make it win.
In other words, the certainty about the genuineness of the crown that is,
not fake or tampered with is the objective of the security code, not the
crown's number being a winning number. Stated otherwise, the rule, as

published makes the security code the determinant of the genuineness

of the crown, not the winning quality of the number it bears.
Deliberately, however, Pepsi is now applying this rule nay, bending it
(see par. 4.6.1. Counter-Affidavit) to make the security code
determinant of which, among the crowns bearing the winning number
"349," is really a winner! By giving the rule unwarranted and on-second
thought' application, Pepsi has effectively defrauded complainants of
their prices. Is this not deceit?
4.3 The second rule above-stated must be tackled in conjunction
with par. 4.6 of the Counter-Affidavit which shows the meaning of
the 'term number' as used in this rule. It means 'A 3-digit number
ranging from 001 to 999' found under the specially-marked crowns
of softdrinks manufactured and sold by Pepsi.
The rule uses the term 'unique' which the dictionary defines as 'Being
the only one of its kind' (Funk and Wagnalls Standard) and 'without
another of the same kind' (Webster's). A contextual and syntactical
appreciation of the rule would tell us that there is only one security code
of each number under the crown for insuring the genuineness of the
crown.
It is thus clear under the rule in question that "349" has its own unique 7digit security code to insure that the crown bearing it is not fake or
tampered with, do all the other winning numbers have or should have.
But what did Pepsi do after "349" was drawn as a winner on May 25,
1992? Pepsi announced that "349" did not have only one unique security
code, but that it had both 'winning' and 'non-winning' security codes. The
security code of "349" was not the one unique, but "349" itself became
unique because it became a winning and non-winning number at the
same time. Was this unique 'uniqueness' of "349" announced at the start
of the promo? No! When was the revelation made? Only after "349" was
drawn as a winner and numerous-thousands of winning crown holders
had stormed the Pepsi plants all over the country, specially along Aurora
Boulevard, Quezon City, claiming their prizes.
The actuations of Pepsi vis-a-vis the above-stated two rules are
indubitable cases of 'changing the rules as the game is being played' to

defraud the winners of the prizes. If DECEIT has many faces, this is one
of the ugliest among them.'
We also concur with the argument of complainants that additional
deceit was committed by respondents when they attempted to substitute
number "123" for number "349" as the winning number announced and
drawn on May 24, 1992 and the closure of Pepsi Plant along Aurora
Boulevard previously announced as redemption center for winning
crowns. The acts of respondents were described by complainants as a
continuation of their adamant refusal to pay and even hear the claims of
complainants who thereby sustained damage not for their expenses for
transportation but for the amounts of prizes absolutely denied them, let
alone their expense in buying Pepsi softdrinks in quantities beyond their
normal needs. There is merit in the description.
The third issue is could Pepsi have remedied the fraud? Definitely, by
taking reasonable steps in paying the "349" holders. Pepsi could not
have succeeded in requesting approval by DTI of the deviation from
and/or modification of the mechanics previously approved as an
alternative remedy since sanctioning such deviation or modification could
have placed DTI in equal footing with respondents, making them coconspirators to the fraud.
The pertinent provision of the Revised Penal Code reads as follows:
Art. 318: Other Deceits. The penalty of Arresto Mayor and a
fine of not less than the amount of the damage caused and not
more than twice such amount shall be imposed upon any person
who shall defraud or damage another by any other deceit not
mentioned in the preceding Articles of this Chapter.'
As aptly contended by complainants 'any other kind of conceivable
deceit may fall under this Article. As in other cases of estafa, damage to
the offended party is required (Reyes, Revised Penal Code, p. 775, Book
2, 11th Ed. 1977)
Fraudulently obtaining a loan on the promise that realty would be
mortgaged as security for said loan which promise was not fulfilled
because the borrower sold the property would constitute estafa under
Article 31 . . . .

Complainants have, to our mind, succeeded in proving deceit and fraud

by respondents to avoid payment of prizes complainants are claiming in
the 'Number Fever Promotion' for the "349" winning number to hold
respondents, whose names we will hereinafter enumerate, liable for
estafa (Art. 318 RPC)."

The prosecutors' finding of probable cause rests on two (2) critical facts
established by substantial evidence: one, that petitioners deviated from the
Department of Trade and Industry (DTI) rules when they required that only
"349" crowns with security codes can win, and two, that petitioners attempted
to substitute "134" for "349" as the winning number. These acts were
interpreted by the prosecutors as prima facie deceitful and fraudulent. I do not
see how the resolution of the prosecutors finding sufficient ground to charge
petitioners with estafa can be successfully assailed as grave abuse of
discretion.
III
To be sure, respondent judge Asuncion affirmed the prosecutors' finding when
petitioners challenged its validity. He found probable cause against the petitioners
and ordered their arrest. The majority opinion faults the procedure followed by
Judge Asuncion in issuing the warrants of arrest against petitioners. It cites two
(2) reasons,viz: (1) that Judge Asuncion issued the warrants merely on the basis
of the Information, Amended Information and Joint Resolution of the City
Prosecutors of Quezon City; he did not check and consult the complete
records of the case which include the affidavits of the witnesses, transcripts of
stenographic notes and other documents submitted in the preliminary
investigation; and (2) Judge Asuncion did not expressly make any finding of
probable cause.
The procedure to be followed by a judge in reviewing the finding of probable
cause by a prosecutor has long been a quiescent area. In Soliven vs.
Makasiar, 2 we laid down the following procedure viz:
xxx xxx xxx

"The second issue, raised by Beltran, calls for an interpretation of the

constitutional provision on the issuance of warrants of arrest. The
pertinent provision reads:
'Art. III, Sec. 2. The right of the people to be secure in their
persons, houses, papers and effects against unreasonable
searches and seizures of whatever nature and for any purpose shall
be inviolable, and no search warrant or warrant of arrest shall issue
except upon probable cause to be determined personally by the
judge after examination under oath or affirmation of the complainant
and the witnesses he may produce, and particularly describing the
place to be searched and the persons or things to be seized.'
The addition of the word 'personally' after the word 'determined' and the
deletion of the grant of authority by the 1973 Constitution to issue
warrants to 'other responsible officers as may be authorized by law,' has
apparently convinced petitioner Beltran that the Constitution now
requires the judge to personally examine the complainant and his
witnesses in his determination of probable cause for the issuance of
warrants of arrest. This is not an accurate interpretation.
What the Constitution underscores is the exclusive and personal
responsibility of the issuing judge to satisfy himself of the existence of
probable cause. In satisfying himself of the existence of probable cause
for the issuance of a warrant of arrest, the judge is not required to
personally examine the complainant and his witnesses.Following
established doctrine and procedure, he shall: (1) personally evaluate the
report and the supporting documents submitted by the fiscal regarding
the existence of probable cause and, on the basis thereof, issue a
warrant of arrest; or (2) if on the basis thereof he finds no probable
cause, he may disregard the fiscal's report and require the submission of
supporting affidavits of witnesses to aid him in arriving at a conclusion as
to the existence of probable cause.
Sound policy dictates this procedure, otherwise judges would be unduly
laden with the preliminary examination and investigation of criminal
complaints instead of concentrating on hearing and deciding cases filed
before their courts."

Soliven and other related 3 cases did not establish the absolute rule that
unless a judge has the complete records of the preliminary investigation
before him, he cannot lawfully determine probable cause and issue a warrant
of arrest. Soliven only held that it is the personal responsibility of the judge to
determine probable cause on the basis of the report and supporting
documents submitted by the fiscal; that he must independently evaluate the
report and supporting documents submitted by the fiscal; and, if he finds no
probable cause on the basis thereof, he can require submission
of additional supporting affidavits of witnesses. There is nothing
in Soliven that requires prosecutors to submit to the judge
the complete records of the preliminary investigation especially if they are
voluminous. Nor is there anything in Soliven that holds that the omission to
physically submit the complete records of the case would constitutionally
infirm a finding of probable cause by a judge even if it was made on the basis
of an exhaustive prosecutor's report or resolution. Indeed, in Webb vs. de
Leon, 4 we sustained the finding of probable cause made by the trial judge
even if the complete records of the preliminary investigation were not elevated
to the said judge.
A revisit of our case law will reveal that what we condemned in the past as
constitutionally impermissible was the practice of judges of totally relying on pro
formacertifications of fiscals that they conducted a preliminary investigation and
found probable cause that the accused committed the crime charged in the
Information. These pro forma certifications usually consisted of a short sentence.
They did not relate the relevant proceedings in the preliminary investigation nor
did they calibrate the weight of diverse and dueling evidence submitted by the
parties. These bare certifications carried no findings of fact and made no legal
analysis which could be used by judges as a rational basis for a determination of
probable cause. Thus, we laid down the jurisprudence that a judge who
determines probable cause by relying on such meaningless certifications violates
the constitutional provision prohibiting issuance of warrants of arrest '. . . except
upon probable cause to be determined personally by the judge . . . ."
The case at bar does not involve these outlawed certifications. The
respondent Court of Appeals found that the 17-page Joint Resolution of the
prosecutors provided thetrial judge with sufficient factual basis to find probable

cause and to issue warrants of arrest against the petitioners. To repeat, the
finding of probable cause against petitioners rests on two (2) critical facts
established by evidence: one, that petitioners deviated from the Department of
Trade and Industry rules when they required that only "349" crowns with security
codes could win, and two, that petitioners attempted to substitute "134" for "349"
as the winning number. The finding of deviation is based on the Task Force
Report of the DTI, the relevant portion of which was liberally quoted in the
prosecutors' Joint Resolution. The finding of attempt at substitution was taken
from the affidavits of witnesses of the private respondents. Petitioners do not
charge that the Task Force Report of the DTI and the affidavits of witnesses of
the private respondents were incorrectly quoted by the prosecutors in their Joint
Resolution. Thus, respondent judge need not be burdened by the duty of
ordering the elevation of the complete records of the preliminary investigation to
check the accuracy of the critical evidence as stated in the Joint Resolution.
The majority opinionalso flays Judge Asuncion allegedly because ". . . he made
no finding of probable cause . . . ." I am not disposed to make this serious
charge. When Judge Asuncion issued the warrants of arrest against petitioners, I
assume as did the respondent Court of Appeals, that he had studied the
Information and 17-page Resolution of the prosecutors and that he agreed with
the prosecutors' finding of probable cause. It is unnecessary for him to issue an
Order just to reiterate the findings of the prosecutors. It ought to be likewise
underscored that before Judge Asuncion issued the warrants of arrest, the matter
of probable cause was the subject of exhaustive pleadings before him. Thus, the
parties submitted the following for the respondent judge's consideration: (1)
Motions to Suspend Proceedings and to Hold Abeyance Issuance of Warrants of
Arrest; (2) Motion for Issuance of Warrants of Arrest; (3) Supplemental Urgent
Motion to Hold in Abeyance Issuance of Warrants of Arrest and to Suspend
Proceedings; (4) Opposition to Motion to Defer Arraignment; (5) Objection and
Opposition to Motion to Suspend Proceedings and to Hold in Abeyance the
Issuance of Warrants of Arrest; and (6) Memorandum in Support of the Motion to
Suspend Proceedings and to Hold in Abeyance the Issuance of the Warrants of
Arrest. In these pleadings, the parties, especially the petitioners, discussed in
length and in depth the findings of the prosecutors as contained in their 17-page
Joint Resolution. It is, thus, erroneous to assume that the respondent judge had

nothing before him when he ruled that there is probable cause to charge
petitioners with estafa.
With due respect to the majority, the ruling that a judge should always order the
elevation of the complete records of a preliminary investigation before proceeding
with the task of reviewing the finding of probable cause made by prosecutors
will exacerbate the mischief of delays in the disposition of criminal cases. This will
not sit well with our people who are complaining that their continuing calls for
speedy justice are only receiving dial tones from courts. The transcription of
stenographic notes and the transfer of physical and documentary evidence,
especially when voluminous, will consume time, result in loss of valuable
evidence and aggravate the burden of litigants. It is my humble submission that
the forwarding of complete records is not necessary when the prosecutor's report
is exhaustive and accurate as in the case at bar.

IV
The majority has deviated from the general rule when it is set aside the finding of
probable cause made by the respondent Court of Appeals and the respondent
trial judge. To be sure, this Court can restrain the prosecution of criminal cases
These exceptional cases are: 5
"a. To afford adequate protection to the constitutional rights of the
accused (Hernandez vs. Albano, et al., L-19272, January 25,
1967, 19 SCRA 95);
b. When necessary for the orderly administration of justice or to avoid
oppression or multiplicity of actions (Dimayuga, et al. vs.
Fernandez, 43 Phil. 304; Hernandez vs. Albano, supra; Fortun vs.
Labang, et al., L-38383, May 27, 1981, 104 SCRA 607);
c. When there is a prejudicial question which is sub judice (De Leon vs.
Mabanag, 70 Phil. 202);
d. When the acts of the officer are without or in excess of authority
(Planas vs. Gil, 67 Phil. 62);

e. Where the prosecution is under an invalid law, ordinance or regulation

(Young vs. Rafferty, 33 Phil. 556; Yu Cong Eng vs. Trinidad, 47
Phil. 385, 389);
f. When double jeopardy is clearly apparent (Sangalang vs. People and
Avendia, 109 Phil. 1140);
g. Where the court has no jurisdiction over the offense (Lopez vs. City
Judge, L-25795, October 29, 1966, 18 SCRA 616);
h. Where it is a case of persecution rather than prosecution (Rustia vs.
Ocampo, CA-G.R. 4760, March 25, 1960);
i. Where the charges are manifestly false and motivated by the lust for
vengeance (Recto vs. Castelo, 18 L. J. [1953], cited in Ranoa vs.
Alvendia, CA-G.R. No. 30720-R, October 8, 1962, cf. Guingona,
et al. vs. City Fiscal, L-60033, April 4, 1984, 128 SCRA 577); and
j. Where there is clearly no prima facie case against the accused and a
motion to quash on that ground has been denied (Salonga vs.
Pano, et al., L-59524, February 19, 1985, 134 SCRA 438).
7. Preliminary injunction has been issued by the Supreme Court to
prevent the threatened unlawful arrest of petitioners (Rodriguez
vs. Castelo, L-6374, August 1, 1953). (cited in Regalado,
Remedial Law Compendium, p. 188, 1988 Ed.)"

It must be stressed, however, that in these exceptional cases, the Court took
the extraordinary step of annulling findings of probable cause either to prevent
the misuse of the strong arm of the law or to protect the orderly administration
of justice. The constitutional duty of this Court in criminal litigations is not only
to acquit the innocent after trial but to insulate, from the start, the innocent
from unfounded charges. For the Court is aware of the strains of a criminal
accusation and the stresses of litigation which should not be suffered by the
clearly innocent. The filing of an unfounded criminal information in court
exposes the innocent to severe distress especially when the crime is not
bailable. Even an acquittal of the innocent will not fully bleach the dark and
deep stains left by a baseless accusation for reputation once tarnished
remains tarnished for a long length of time. The expense to establish
innocence may also be prohibitive and can be more punishing especially to

the poor and the powerless. Innocence ought to be enough and the business
of this Court is to shield the innocent from senseless suits right from the start.
I respectfully submit, however, that the peculiar facts obtaining in the case at bar
do not warrant us to take the exceptional step of setting aside the finding of
probable cause made by the respondent appellate court and the trial court. Their
finding is supported by substantial evidence and the issuance of warrants of
arrest against the petitioners to hold them for trial for estafa does not constitute
misuse of prosecutorial powers. To be sure, petitioners will be exposed to the
inconvenience of facing numerous similar criminal suits but so long as the
inconvenience is no more than what is necessary to dispense justice, they have
no cause to gripe for justice equally belongs to the private respondents.
V
It is also respectfully submitted that the Department of Justice did not act with
grave abuse of discretion when it refused to review the City Prosecutor's Joint
Resolution and dismissed petitioners' appeal. The applicable case law is Crespo
vs. Mogul, et al., 6 where we held:
"xxx xxx xxx
The rule therefore in this jurisdiction is that once a complaint or
information is filed in Court any disposition of the case as its dismissal or
the conviction or acquittal of the accused rests in the sound discretion of
the Court. Although the fiscal retains the direction and control of the
prosecution of criminal cases even while the case is already in Court he
cannot impose his opinion on the trial court. The Court is the best and
sole judge on what to do with the case before it. The determination of the
case is within its exclusive jurisdiction and competence. A motion to
dismiss the case filed by the fiscal should be addressed to the Court who
has the option to grant or deny the same. It does not matter if this is
done before or after the arraignment of the accused or that the motion
was filed after a reinvestigation or upon instructions of the Secretary of
Justice who reviewed the records of the investigation.
In order therefore to avoid such a situation whereby the opinion of the
Secretary of Justice who reviewed the action of the fiscal may be
disregarded by the trial court, the Secretary of Justice should, as far as

practicable, refrain from entertaining a petition for review or appeal from

the action of the fiscal, when the complaint or information has already
been filed in Court. The matter should be left entirely for the
determination of the Court."

I concede that respondent judge Asuncion misread Crespo when he denied

the prosecution's Motion to Defer Further Proceedings on the ground that ". . .
to follow whatever opinion the Secretary of Justice may have on the matter
would undermine the independence and integrity of this Court." I agree
that Crespo did not prohibit the Department of Justice from reviewing
resolutions of its prosecutors even if the proper informations have already
been filed with the courts. Crespomerely counselled the Secretary of Justice
to refrain from exercising said power of review "as far as practicable" taking
into account the broader interest for a more orderly administration of justice. In
exceptional instances where it is practicable for the Secretary of Justice to
exercise the power of review, courts should not be heard to complain that their
independence will be undermined. The dispensation of justice is not the
monopoly of courts. It is as much the responsibility of the two other great
branches of our government, the Executive and the Legislative.
Nevertheless, the refusal of the respondent Judge Asuncion to defer proceedings
based on a misperception of Crespo is now of de minimis importance. The initial
decision of the DOJ to review petitioners' case was due to its impression that the
finding of probable cause made by the prosecutors of Quezon City was, at that
time, open to honest contentions. This doubt, however, dissolved when no less
than the respondent Court of Appeals sustained the finding of probable cause
made by the respondent judge after an evaluation of the Joint Resolution of the
Quezon City prosecutors. With the imprimatur of the respondent Court of Appeals
on the existence of probable cause and following Crespo, it is no longer
"practicable" for the DOJ to further review petitioners' case. Contrary to the
impression of the majority, the appellate court affirmed the ruling of respondent
judge on probable cause only after a long and deliberate study of the issue. The
issue of probable cause was the subject of oral arguments and extensive
pleadings before the appellate court which even directed the elevation of the
original records of Criminal Case No. Q-93-43198.The probability that the DOJ

will reach a finding different from the appellate court is nil considering that it will
be reviewing the same set of evidence.
Finally, petitioners justify the need for DOJ to review their case in view of the
latter's alleged contradictory rulings on cases brought by different parties
involving the same controversy. The DOJ has denied the charge that it has
issued contradictory rulings. But if these contradictory rulings were truly rendered
by DOJ, there is more reason for DOJ to let the issue be resolved by the courts.
As ultimate arbiters of rights in conflict, only the courts can write finis to the
controversy between petitioners and private respondents.
I vote to dismiss the petition.
Regalado, J., pro hac vice.
Romero, Melo and Mendoza, JJ., concur.
|||

(Roberts, Jr. v. Court of Appeals, G.R. No. 113930, [March 5, 1996], 324 PHIL

568-642)

21
[G.R. No. 82585. November 14, 1988.]
MAXIMO V. SOLIVEN, ANTONIO V. ROCES, FREDERICK K.
AGCAOILI,
and
GODOFREDO
L.
MANZANAS, petitioners, vs. THE HON. RAMON P. MAKASIAR,
Presiding Judge of the Regional Trial Court of Manila, Branch
35, UNDERSECRETARY SILVESTRE BELLO III, of the
Department of Justice, LUIS C. VICTOR, THE CITY FISCAL OF
MANILA AND PRESIDENT CORAZON C. AQUINO, respondents.
[G.R. No. 82827. November 14, 1988.]
LUIS D. BELTRAN, petitioner, vs. THE HON. RAMON P.
MAKASIAR, Presiding Judge of Branch 35 of the Regional

Trial Court, at Manila, THE HON. LUIS VICTOR CITY FISCAL

OF
MANILA,
PEOPLE
OF
THE
PHILIPPINES,
SUPERINTENDENT OF THE WESTERN POLICE DISTRICT,
AND THE MEMBERS OF THE PROCESS SERVING UNIT AT
THE REGIONAL TRIAL COURT OF MANILA, respondents.
[G.R. No. 83979. November 14, 1988.]
LUIS D. BELTRAN, petitioner, vs. EXECUTIVE SECRETARY
CATALINO MACARAIG, SECRETARY OF JUSTICE SEDFREY
ORDOEZ, UNDERSECRETARY OF JUSTICE SILVESTRE
BELLO III, THE FISCAL OF MANILA JESUS F. GUERRERO,
AND JUDGE RAMON P. MAKASIAR, Presiding Judge of
Branch 35 of the Regional Trial Court, at Manila, respondents.
Angara, Abello, Concepcion, Regala and Cruz for petitioners in G.R. No. 82585.
Perfecto V . Fernandez, Jose P. Fernandez and Cristobal
petitioner in G.R. No. 82827 and 83979.

P. Fernandez for

SYLLABUS
1. CONSTITUTIONAL LAW; BILL OF RIGHTS; DUE PROCESS OF LAW;
RESPONDENT IN A CRIMINAL CASE NEED NOT FILE HIS COUNTERAFFIDAVITS BEFORE PRELIMINARY INVESTIGATION IS DEEMED
COMPLETED. Due process of law does not require that the respondent in a
criminal case actually file his counter-affidavits before the preliminary
investigation is deemed completed. All that is required is that the respondent be
given the opportunity to submit counter-affidavits if he is so minded.
2. ID.; ID.; RIGHT OF THE PEOPLE TO BE SECURE IN THEIR PERSONS,
HOUSES, PAPERS AND EFFECTS; ISSUANCE OF WARRANT OF ARREST;
PROBABLE CAUSE; THE JUDGE HAS EXCLUSIVE AND PERSONAL
RESPONSIBILITY TO DETERMINE EXISTENCE OF; THE PRESIDENT. This
case is not a simple prosecution for libel. We have as complainant a powerful and

popular President who heads the investigation and prosecution service and
appoints members of appellate courts but who feels so terribly maligned that she
has taken the unorthodox step of going to court inspite of the invocations of
freedom of the press which would inevitably follow.
3. ID.; ID.; ID.; ID.; HARASSMENT INHERENT IN ANY CRIMINAL
PROSECUTION; SUPREME COURT SHOULD DRAW THE DEMARCATION
LINE WHERE HARASSMENT GOES BEYOND USUAL DIFFICULTIES
ENCOUNTERED BY ANY ACCUSED. There is always bound to be
harassment inherent in any criminal prosecution. Where the harassment goes
beyond the usual difficulties encountered by any accused and results in an
unwillingness of media to freely criticize government or to question government
handling of sensitive issues and public affairs, this Court and not a lower tribunal
should draw the demarcation line.
4. CONSTITUTIONAL LAW; BILL OF RIGHTS; FREEDOM OF SPEECH; WHILE
DEFAMATION IS NOT AUTHORIZED, CRITICISM IS TO BE EXPECTED AND
SHOULD BE BORNE FOR THE COMMON GOOD. As early as March 8,
1918, the decision in United States v. Bustos (37 Phil. 731) stated that
"(c)omplete liberty to comment on the conduct of public men is a scalpel in the
case of free speech. The sharp incision of its probe relieves the abscesses of
officialdom. Men in public life may suffer under a hostile and unjust accusation;
the wound can be assuaged with the balm of a clear conscience." The Court
pointed out that while defamation is not authorized, criticism is to be expected
and should be borne for the common good.
5. REMEDIAL LAW; CRIMINAL PROCEDURE; PROSECUTION OF
OFFENSES; LIBEL; RULES THEREON SHOULD BE EXAMINED FROM
VARIOUS PERSPECTIVES IF DIRECTED AT A HIGH GOVERNMENT
OFFICIAL; THE SUPREME COURT SHOULD DRAW A FINE LINE INSTEAD
OF LEAVING IT TO A LOWER TRIBUNAL. In fact, the Court observed that
high official position, instead of affording immunity from slanderous and libelous
charges would actually invite attacks by those who desire to create sensation. It
would seem that what would ordinarily be slander if directed at the typical person
should be examined from various perspectives if directed at a high government

official. Again, the Supreme Court should draw this fine line instead of leaving it
to lower tribunals.
6. ID.; ID.; FREEDOM OF EXPRESSION; SAFEGUARDS IN THE NAME
THEREOF SHOULD BE FAITHFULLY APPLIED IN TRIAL OF LIBEL CASE.
In the trial of the libel case against the petitioners, the safeguards in the name of
freedom of expression should be faithfully applied.
GUTIERREZ, JR., J., concurring:
1. REMEDIAL LAW; CRIMINAL PROCEDURE; MOTION TO QUASH; COURT
SHOULD NOT HESITATE TO QUASH A CRIMINAL PROSECUTION IN
INTEREST OF MORE ENLIGHTENED AND SUBSTANTIAL JUSTICE.
Consistent with our decision in Salonga v. Cruz Pao (134 SCRA 438 [1985]), the
Court should not hesitate to quash a criminal prosecution in the interest of more
enlightened and substantial justice where it is not alone the criminal liability of an
accused in a seemingly minor libel case which is involved but broader
considerations of governmental power versus a preferred freedom.
2. ID.; ID.; PROSECUTION OF OFFENSES; LIBEL; CASE NOT A SIMPLE
PROSECUTION THEREFOR WHERE COMPLAINANT IS THE PRESIDENT;
JUDGE NOT REQUIRED TO PERSONALLY EXAMINE COMPLAINANT AND
HIS WITNESSES. What the Constitution underscores is the exclusive and
personal responsibility of the issuing judge to satisfy himself the existence of
probable cause. In satisfying himself of the existence of probable cause for the
issuance of a warrant of arrest, the judge is not required to personally examine
the complainant and his witnesses. Following established doctrine and
procedure, he shall: (1) personally evaluate the report and the supporting
documents submitted by the fiscal regarding the existence of probable cause
and, on the basis thereof, issue a warrant of arrest; or (2) if on the basis thereof
he finds no probable cause, he may disregard the fiscal's report and require the
submission of supporting affidavits of witnesses to aid him in arriving at a
conclusion as to the existence of probable cause.
3. ID.; EXECUTIVE DEPARTMENT; PRESIDENT; IMMUNITY FROM SUIT;
RATIONALE. The rationale for the grant to the President of the privilege of
immunity from suit is to assure the exercise of Presidential duties and functions

free from any hindrance or distraction, considering that being the Chief Executive
of the Government is a job that, aside from requiring all of the office-holder's time,
also demands undivided attention.
4. ID.; ID.; ID.; ID.; PRIVILEGE PERTAINS TO PRESIDENT BY VIRTUE OF THE
OFFICE AND MAY BE INVOKED ONLY BY HOLDER OF OFFICE. But this
privilege of immunity from suit, pertains to the President by virtue of the office
and may be invoked only by the holder of the office; not by any other person in
the President's behalf. Thus, an accused in a criminal case in which the
President is complainant cannot raise the presidential privilege as a defense to
prevent the case from proceeding against such accused.
5. ID.; ID.; ID.; ID.; EXERCISE OF PRIVILEGE IS SOLELY THE PRESIDENT'S
PREROGATIVE. Moreover, there is nothing in our laws that would prevent the
President from waiving the privilege. Thus, if so minded the President may shed
the protection afforded by the privilege and submit to the court's jurisdiction. The
choice of whether to exercise the privilege or to waive it is solely the President's
prerogative. It is a decision that cannot be assumed and imposed by any other
person.
RESOLUTION
PER CURIAM :
p

In these consolidated cases, three principal issues were raised: (1) whether or
not petitioners were denied due process when informations for libel were filed
against them although the finding of the existence of a prima facie case was still
under review by the Secretary of Justice and, subsequently, by the President; (2)
whether or not the constitutional rights of Beltran were violated when respondent
RTC judge issued a warrant for his arrest without personally examining the
complainant and the witnesses, if any, to determine probable cause; and (3)
whether or not the President of the Philippines, under the Constitution, may
initiate criminal proceedings against the petitioners through the filing of a
complaint-affidavit.

Subsequent events have rendered the first issue moot and academic. On March
30, 1988, the Secretary of Justice denied petitioners' motion for reconsideration
and upheld the resolution of the Undersecretary of Justice sustaining the City
Fiscal's finding of a prima facie case against petitioners. A second motion for
reconsideration filed by petitioner Beltran was denied by the Secretary of Justice
on April 7, 1988. On appeal, the President, through the Executive Secretary,
affirmed the resolution of the Secretary of Justice on May 2, 1988. The motion for
reconsideration was denied by the Executive Secretary on May 16, 1988. With
these developments, petitioner's contention that they have been denied the
administrative remedies available under the law has lost factual support.
It may also be added that with respect to petitioner Beltran, the allegation of
denial of due process of law in the preliminary investigation is negated by the fact
that instead of submitting his counter-affidavits, he filed a "Motion to Declare
Proceeding Closed", in effect waiving his right to refute the complaint by filing
counter-affidavits. Due process of law does not require that the respondent in a
criminal case actually file his counter-affidavits before the preliminary
investigation completed. All that is required is that the respondent be given the
opportunity to submit counter-affidavits if he is so minded.
The second issue, raised by petitioner Beltran, calls for an interpretation of the
constitutional provision on the issuance of warrants of arrest. The pertinent
provision reads:

Art. III, Sec. 2. The right of the people to be secure in their persons,
houses, papers and effects against unreasonable searches and seizures
of whatever nature and for any purpose shall be inviolable, and no
search warrant or warrant of arrest shall issue except upon probable
cause to be determined personally by the judge after examination under
oath or affirmation of the complainant and the witnesses he may
produce, and particularly describing the place to be searched and the
persons or things to be seized.

The addition of the word "personally" after the word "determined" and the deletion
of the grant of authority by the 1973 Constitution to issue warrants to "other
responsible officers as may be authorized by law", has apparently convinced

petitioner Beltran that the Constitution now requires the judge to personally
examine the complainant and his witnesses determination of probable cause for
the issuance of warrants of arrest. This is not an accurate interpretation.
What the Constitution underscores is the exclusive and personal responsibility of
the issuing judge to satisfy himself the existence of probable cause. In satisfying
himself of the existence of probable cause for the issuance of a warrant of arrest,
the judge is not required to personally examine the complainant and his
witnesses. Following established doctrine and procedure, he shall: (1) personally
evaluate the report and the supporting documents submitted by the fiscal
regarding the existence of probable cause and, on the basis thereof, issue a
warrant of arrest; or (2) if on the basis thereof he finds no probable cause, he
may disregard the fiscal's report and require the submission of supporting
affidavits of witnesses to aid him in arriving at a conclusion as to the existence of
probable cause.
Sound policy dictates this procedure, otherwise judges would be unduly laden
with the preliminary examination and investigation of criminal complaints instead
of concentrating on hearing and deciding cases filed before their courts.
On June 30, 1987, the Supreme Court unanimously adopted Circular No. 12,
setting down guidelines for the issuance of warrants of arrest. The procedure
therein provided is reiterated and clarified in this resolution.
It has not been shown that respondent judge has deviated from the prescribed
procedure. Thus, with regard to the issuance of the warrants of arrest, a finding of
grave abuse of discretion amounting to lack or excess of jurisdiction cannot be
sustained.
Anent the third issue, petitioner Beltran argues that "the reasons which
necessitate presidential immunity from suit impose a correlative disability to file
suit". He contends that if criminal proceedings ensue by virtue of the President's
filing of her complaint-affidavit, she may subsequently have to be a witness for
the prosecution, bringing her under the trial court's jurisdiction. This, continues
Beltran, would in an indirect way defeat her privilege of immunity from suit, as by
testifying on the witness stand, she would be exposing herself to possible
contempt of court or perjury.

The rationale for the grant to the President of the privilege of immunity from suit
is to assure the exercise of Presidential duties and functions free from any
hindrance or distraction, considering that being the Chief Executive of the
Government is a job that, aside from requiring all of the office-holder's time, also
demands undivided attention.
But this privilege of immunity from suit, pertains to the President by virtue of the
office and may be invoked only by the holder of the office; not by any other
person in the President's behalf Thus, an accused in a criminal case in which the
President is complainant cannot raise the presidential privilege as a defense to
prevent the case from proceeding against such accused.
Moreover, there is nothing in our laws that would prevent the President from
waiving the privilege. Thus, if so minded the President may shed the protection
afforded by the privilege and submit to the court's jurisdiction. The choice of
whether to exercise the privilege or to waive it is solely the President's
prerogative. It is a decision that cannot be assumed and imposed by any other
person.
As regards the contention of petitioner Beltran that he could not be held liable for
libel because of the privileged character or the publication, the Court reiterates
that it is not a trier of facts and that such a defense is best left to the trial court to
appreciate after receiving the evidence of the parties.
As to petitioner Beltran's claim that to allow the libel case to proceed would
produce a "chilling effect" on press freedom, the Court finds no basis at this stage
to rule on the point.
The petitions fail to establish that public respondents, through their separate acts,
gravely abused their discretion as to amount to lack of jurisdiction. Hence, the
writs of certiorari and prohibition prayed for cannot issue.
WHEREFORE, finding no grave abuse of discretion amounting to excess or lack
of jurisdiction on the part of the public respondents, the Court Resolved to
DISMISS the petitions in G. R. Nos. 82585, 82827 and 83979. The Order to
maintain status quo contained in the Resolution of the Court en banc dated April
7, 1988 and reiterated in the Resolution dated April 26, 1988 is LIFTED.

Fernan, C.J., Narvasa, Melencio-Herrera, Cruz, Paras, Feliciano, Gancayco,

Padilla, Bidin, Sarmiento, Cortes, Grio-Aquino, Medialdea and Regalado,
JJ., concur.

Separate Opinions
GUTIERREZ, JR., J ., concurring:
I concur with the majority opinion insofar as it revolves the three principal issues
mentioned in its opening statement. However, as to the more important issue on
whether or not the prosecution of the libel case would produce a "chilling effect"
on press freedom, I beg to reserve my vote. I believe this is the more important
issue in these petitions and it should be resolved now rather that later.
Consistent with our decision in Salonga v. Cruz Pao (134 SCRA 438 [1985]), the
Court should not hesitate to quash a criminal prosecution in the interest of more
enlightened and substantial justice where it is not alone the criminal liability of an
accused in s seemingly minor libel case which is involved but broader
considerations of governmental power versus a preferred freedom.
We have in these four petitions the unusual situation where the highest official of
the Republic and one who enjoys unprecedented public support asks for the
prosecution of a newspaper columnist, the publisher and chairman of the editorial
board, the managing editor and the business manager in a not too indubitable a
case for alleged libel.
I am fully in accord with an all out prosecution if the effect will be limited to
punishing a newspaperman who, instead of observing accuracy and fairness,
engages in unwarranted personal attacks, irresponsible twisting of facts, of
malicious distortions of half-truths which tend to cause dishonor, discredit, or
contempt of the complainant. However, this case is not a simple prosecution for
libel. We have as complainant a powerful and popular President who heads the
investigation and prosecution service and appoints members of appellate courts
but who feels so terribly maligned that she has taken the unorthodox step of
going to court inspite of the invocations of freedom of the press which would
inevitably follow.

I believe that this Court should have acted on this issue now instead of leaving
the matter to fiscals and defense lawyers to argue before a trial judge.
There is always bound to be harassment inherent in any criminal prosecution.
Where the harassment goes beyond the usual difficulties encountered by any
accused and results in an unwillingness of media to freely criticize government or
to question government handling of sensitive issues and public affairs, this Court
and not a lower tribunal should draw the demarcation line.
As early as March 8, 1918, the decision in United States v. Bustos (37 Phil. 731)
stated that "(c)omplete liberty to comment on the conduct of public men is a
scalpel in the case of free speech. The sharp incision of its probe relieves the
abscesses of officialdom. Men in public life may suffer under a hostile and unjust
accusation; the wound can be assuaged with the balm of a clear conscience."
The Court pointed out that while defamation is not authorized, criticism is to be
expected and should be borne for the common good.
In People v. Perfecto (43 Phil. 887 [1922]), the Court stated:
xxx xxx xxx
". . . No longer is there a Minister of the Crown or a person in authority of
such exalted position that the citizen must speak of him only with bated
breath. 'In the eye of our Constitution and laws, every man is a
sovereign, a ruler and a freeman, and has equal rights with every other
man." (at p. 900)

In fact, the Court observed that high official position, instead of affording
immunity from slanderous and libelous charges would actually invite attacks
by those who desire to create sensation. It would seem that what would
ordinarily be slander if directed at the typical person should be examined from
various perspectives if directed at a high government official. Again, the
Supreme Court should draw this fine line instead of leaving it to lower
tribunals.
This Court has stressed as authoritative doctrine in Elizalde v. Gutierrez (76
SCRA 448 [1977]) that a prosecution for libel lacks justification if the offending
words find sanctuary within the shelter of the free press guaranty. In other words,
a prosecution for libel should not be allowed to continue, where after discounting

the possibility that the words may not be really that libelous, there is likely to be a
chilling effect, a patently inhibiting factor on the willingness of newspapermen,
especially editors and publishers to courageously perform their critical role in
society. If, instead of merely reading more carefully what a columnist writes in his
daily column, the editors tell their people to lay off certain issues or certain
officials, the effect on a free press would be highly injurious.

Because many questions regarding press freedom are left unanswered by our
resolution, I must call attention to our decisions which caution that "no inroads on
press freedom should be allowed in the guise of punitive action visited on what
otherwise should be characterized as libel." (Lopez v. Court of Appeals, 34 SCRA
117 [1970]; See also the citations in Elizalde v. Gutierrez, supra).
The United States Supreme Court is even more emphatic, to wit:
"In deciding the question now, we are compelled by neither precedent
nor policy to give any more weight to the epithet 'libel' than we have to
other 'mere labels' of state law. N.A.A.C.P. v. Button, 371 US 415, 429,
9L ed 2d 405, 415, 83 S Ct 328. Like insurrection, contempt, advocacy of
unlawful acts, breach of the peace, obscenity, solicitation of legal
business, and the other various other formulae for the repression of
expression that have been challenged in this Court, libel can claim no
talismanic immunity from constitutional limitations. It must be measured
by standards that satisfy the First Amendment.
xxx xxx xxx
"Those who won our independence believed .. that public discussion is a
political duty; and that this should be a fundamental principle of the
American government. They recognized the risk to which all human
institutions are subject. But they knew that order cannot be secured
merely through fear of punishment for its infraction; that it is hazardous
to discourage thought, hope and imagination; that fear breeds
repression; that repression breeds hate; that hate menaces stable
government; that the path of safety lies in the opportunity to discuss
freely supposed grievances and proposed remedies; and that the fitting
remedy for evil counsel is good ones. Believing in the power of reason

as applied through public discussion, they eschewed silence coerced by

law the argument of force in its worst form. . . .
"Thus we consider this case against the background of a profound
national commitment to the principle that debate on public issues should
be uninhibited, robust, and wide open, and that it may well include
vehement, caustic, and sometimes unpleasantly sharp attacks on
government and public officials. . . " (at pp. 700-701)

Shunting aside the individual liability of Mr. Luis Beltran, is there a prima
facie showing that Messrs. Maximo Soliven, Antonio V. Roces, Frederick K.
Agcaoili, and Godofredo L. Manzanas knowingly participated in a wilful purveying
of falsehood? Considering the free speech aspects of these petitions, should not
a differentiated approach to their particular liabilities be taken instead of lumping
up everybody with the offending columnist? I realize that the law includes
publishers and editors but perhaps the "chilling effect" issue applies with singular
effectivity to publishers and editors vis-a-vis newspaper columnists. There is no
question that, ordinarily, libel is not protected by the free speech clause but we
have to understand that some provocative words, which if taken literally may
appear to shame or disparage a public figure, may really be intended to provoke
debate on public issues when uttered or written by a media personality. Will not a
criminal prosecution in the type of case now before us dampen the vigor and limit
the variety of public debate? There are many other questions arising from this
unusual case which have not been considered.
I, of course, concur with the Court's opinion because it has decided to limit the
issues to narrowly drawn ones. I see no reason to disagree with the way the
Court has resolved them. The first issue on prematurity is moot. The second
issue discusses a procedure now embodied in the recently amended Rules of
Court on how a Judge should proceed before he issues a warrant of arrest.
Anent the third issue, considerations of public policy dictate that an incumbent
President should not be sued. At the same time, the President cannot stand by
helplessly bereft of legal remedies if somebody vilifies or maligns him or her.
The Court has decided to deter the "chilling effect" issue for a later day. To this, I
take exception. I know that most of our fiscals and judges are courageous
individuals who would not allow any considerations of possible consequences to

their careers stand in the way of public duty. But why should we subject them to
this problem? And why should we allow possibility of the trial court treating and
deciding the case as one for ordinary libel without bothering to fully explore the
more important areas of concern, the extremely difficult is involving government
power and freedom of expression.
However, since we have decided to defer the "chilling effect" issue for a later day,
I limit myself to reiterating the dissenting words of Mr. Justice Jackson in the
American case of Beaurnhais v. Illinois (343 U. S. 250) when he said.
"If one can claim to announce the judgment of legal history on any
subject, it is that criminal libel laws are consistent with the concept of
ordered liberty only when applied with safeguards evolved to prevent
their invasion of freedom of expression."

In the trial of the libel case against the petitioners, the safeguards in the name of
freedom of expression should be faithfully applied.
|||

(Soliven v. Makasiar, G.R. No. 82585, 82827, 83979 (Resolution), [November

14, 1988], 249 PHIL 394-406)

22
[G.R. No. 162144-54. November 13, 2012.]
PEOPLE OF THE PHILIPPINES, petitioner, vs. HON. MA.
THERESA L. DELA TORRE-YADAO, in her capacity as
Presiding Judge, Branch 81, Regional Trial Court of Quezon
City, HON. MA. NATIVIDAD M. DIZON, in her capacity as
Executive Judge of the Regional Trial Court of Quezon City,
PANFILO M. LACSON, JEWEL F. CANSON, ROMEO M. ACOP,
FRANCISCO G. ZUBIA, JR., MICHAEL RAY B. AQUINO, CEZAR
O. MANCAO II, ZOROBABEL S. LAURELES, GLENN G.
DUMLAO, ALMARIO A. HILARIO, JOSE ERWIN T.
VILLACORTE, GIL C. MENESES, ROLANDO ANDUYAN,
JOSELITO T. ESQUIVEL, RICARDO G. DANDAN, CEASAR

TANNAGAN, VICENTE P. ARNADO, ROBERTO T.

LANGCAUON, ANGELITO N. CAISIP, ANTONIO FRIAS,
CICERO S. BACOLOD, WILLY NUAS, JUANITO B. MANAOIS,
VIRGILIO V. PARAGAS, ROLANDO R. JIMENEZ, CECILIO T.
MORITO, REYNALDO C. LAS PIAS, WILFREDO G.
CUARTERO, ROBERTO O. AGBALOG, OSMUNDO B. CARIO,
NORBERTO LASAGA, LEONARDO GLORIA, ALEJANDRO G.
LIWANAG, ELMER FERRER and ROMY CRUZ,respondents.
DECISION
ABAD, J :
p

This case, which involves the alleged summary execution of suspected members
of the Kuratong Baleleng Gang, is once again before this Court this time
questioning, among other things, the trial court's determination of the absence of
probable cause and its dismissal of the criminal actions. 1
The Facts and the Case
In the early morning of May 18, 1995, the combined forces of the Philippine
National Police's Anti-Bank Robbery and Intelligence Task Group (PNP ABRITG)
composed of Task Force Habagat (then headed by Police Chief Superintendent
Panfilo M. Lacson), Traffic Management Command ([TMC] led by then Police
Senior Superintendent Francisco G. Zubia, Jr.), Criminal Investigation Command
(led by then Police Chief Superintendent Romeo M. Acop), and National Capital
Region Command (headed by then Police Chief Superintendent Jewel F.
Canson) killed 11 suspected members of the Kuratong Baleleng Gang 2 along
Commonwealth Avenue in Quezon City.
Subsequently, SPO2 Eduardo Delos Reyes of the Criminal Investigation
Command told the press that it was a summary execution, not a shoot-out
between the police and those who were slain. After investigation, the Deputy
Ombudsman for Military Affairs absolved all the police officers involved, including
respondents Panfilo M. Lacson, Jewel F. Canson, Romeo M. Acop, Francisco G.

Zubia, Jr., Michael Ray B. Aquino, Cezar O. Mancao II, and 28 others
(collectively, the respondents). 3 On review, however, the Office of the
Ombudsman reversed the finding and filed charges of murder against the police
officers involved before the Sandiganbayan in Criminal Cases 23047 to 57,
except that in the cases of respondents Zubia, Acop, and Lacson, their liabilities
were downgraded to mere accessory. On arraignment, Lacson pleaded not
guilty.
CAcDTI

Upon respondents' motion, the Sandiganbayan ordered the transfer of their cases
to the Regional Trial Court (RTC) of Quezon City on the ground that none of the
principal accused had the rank of Chief Superintendent or higher. Pending the
resolution of the Office of the Special Prosecutor's motion for reconsideration of
the transfer order, Congress passed Republic Act (R.A.) 8249 that expanded the
Sandiganbayan's jurisdiction by deleting the word "principal" from the phrase
"principal accused" to apply to all pending cases where trial had not begun. As a
result of this new law, the Sandiganbayan opted to retain and try the Kuratong
Baleleng murder cases.
Respondent Lacson challenged the constitutionality of R.A. 8249 in G.R.
128096 4 but this Court upheld its validity. Nonetheless, the Court ordered the
transfer of the trial of the cases to the RTC of Quezon City since the amended
informations contained no allegations that respondents committed the offenses
charged in relation to, or in the discharge of, their official functions as required
by R.A. 8249.
Before the RTC of Quezon City, Branch 81, then presided over by Judge
Wenceslao Agnir, Jr., could arraign respondents in the re-docketed Criminal
Cases Q-99-81679 to 89, however, SPO2 Delos Reyes and the other prosecution
witnesses recanted their affidavits. Some of the victims' heirs also executed
affidavits of desistance. These prompted the respondents to file separate motions
for the determination of probable cause before the issuance of warrants of
arrests.
On March 29, 1999 the RTC of Quezon City ordered the provisional dismissal of
the cases for lack of probable cause to hold the accused for trial following the

recantation of the principal prosecution witnesses and the desistance of the

private complainants.
DHAcET

Two years later or on March 27, 2001 PNP Director Leandro R. Mendoza sought
to revive the cases against respondents by requesting the Department of Justice
(DOJ) to conduct another preliminary investigation in their cases on the strength
of the affidavits of P/Insp. Ysmael S. Yu and P/S Insp. Abelardo Ramos. In
response, then DOJ Secretary Hernando B. Perez constituted a panel of
prosecutors to conduct the requested investigation.
Invoking their constitutional right against double jeopardy, Lacson and his coaccused filed a petition for prohibition with application for temporary restraining
order and writ of preliminary injunction before the RTC of Manila in Civil Case 01100933. In an Order dated June 5, 2001, that court denied the plea for temporary
restraining order. Thus, on June 6, 2001 the panel of prosecutors found probable
cause to hold Lacson and his co-accused liable as principals for 11 counts of
murder, resulting in the filing of separate informations against them in Criminal
Cases 01-101102 to 12 before the RTC of Quezon City, Branch 81, now presided
over by respondent Judge Ma. Theresa L. Yadao.
On the same day, respondent Lacson filed a petition for certiorari before the
Court of Appeals (CA), assailing the RTC of Manila's order which allowed the
renewed preliminary investigation of the murder charges against him and his coaccused. Lacson also filed with the RTC of Quezon City a motion for judicial
determination of probable cause. But on June 13, 2001 he sought the suspension
of the proceedings in that court.
In the meantime, the CA issued a temporary restraining order enjoining the RTC
of Quezon City from issuing warrants of arrest or conducting any proceeding in
Criminal Cases 01-101102 to 12 before it. On August 24, 2001 the CA rendered
a Decision, granting Lacson's petition on the ground of double jeopardy since,
although the dismissal of Criminal Cases Q-99-81679 to 89 was provisional, such
dismissal became permanent two years after when they were not revived.
CTcSAE

Upon the prosecution's appeal to this Court in G.R. 149453, 5 the Court ruled
that, based on the record, Lacson failed to prove compliance with the
requirements of Section 8, Rule 117 governing provisional dismissals. The

records showed that the prosecution did not file a motion for provisional dismissal
and, for his part, respondent Lacson had merely filed a motion for judicial
determination of probable cause. Nowhere did he agree to some proposal for a
provisional dismissal of the cases. Furthermore, the heirs of the victims had no
notice of any motion for such provisional dismissal.
The Court thus set aside the CA Decision of August 24, 2001 and directed the
RTC of Quezon City to try the cases with dispatch. On motion for reconsideration
by respondent Lacson, the Court ordered the re-raffle of the criminal cases to a
heinous crimes court. Upon re-raffle, however, the cases still went to Branch 81,
which as already stated was now presided over by Judge Yadao.
On October 12, 2003 the parents of two of the victims submitted birth certificates
showing that they were minors. Apparently reacting to this, the prosecution
amended the informations to show such minority and asked respondent
Executive Judge Ma. Natividad M. Dizon to recall the assignment of the cases to
Branch 81 and re-raffle them to a family court. The request for recall was denied.
On October 20, 2003 the prosecution filed an omnibus motion before Branch 81,
praying for the re-raffle of Criminal Cases 01-101102 to 12 to the family courts in
view of the changes in the two informations. On October 24, 2003 the
prosecution also filed its consolidated comment ex-abundanti cautela on the
motions to determine probable cause.
On November 12, 2003 6 Judge Yadao issued an order, denying the
prosecution's motion for re-raffle to a family court on the ground that Section 5
of R.A. 8369 applied only to living minors. She also granted the motions for
determination of probable cause and dismissed the cases against the
respondents since the affidavits of the prosecution witnesses were inconsistent
with those they submitted in the preliminary investigations before the
Ombudsman for the crime of robbery.
DTAHSI

On November 25, 2003 the prosecution filed a verified motion to recuse or

disqualify Judge Yadao and for reconsideration of her order. It also filed an
administrative complaint against her for dishonesty, conduct prejudicial to the
best interests of the service, manifest partiality, and knowingly rendering an
unjust judgment. 7 On January 14, 2004, the prosecution filed an urgent

supplemental motion for compulsory disqualification with motion for cancellation

of the hearing on motion for reconsideration.
On January 21, 2004 Judge Yadao issued an order, denying the motion to recuse
her, prompting the prosecution to appeal from that order. Further, on January 22,
2004 Judge Yadao issued another order, denying the prosecution's motion for
reconsideration of the Order dated November 12, 2003 that dismissed the action
against the respondents. In response, the prosecution filed a notice of appeal
from the same. Finally, on January 26, 2004 Judge Yadao issued an order,
denying the prosecution's motion for reconsideration of its January 16, 2004
Order not only for lack of merit but also for having become moot and academic.
On February 16, 2004 the prosecution withdrew ex-abundanti cautela the notices
of appeal that it filed in the cases. Subsequently, on March 3, 2004 it filed the
present special civil action of certiorari.
The Issues Presented
The prosecution presents the following issues:
1. Whether or not Executive Judge Dizon gravely abused her
discretion in allowing Criminal Cases 01-101102 to 12 to be
re-raffled to other than among the RTC of Quezon City's
family courts.
2. Whether or not Judge Yadao gravely abused her discretion when
she took cognizance of Criminal Cases 01-101102 to 12
contrary to the prosecution's view that such cases fell under
the jurisdiction of family courts.
3. Whether or not Judge Yadao gravely abused her discretion when
she did not inhibit and disqualify herself from taking
cognizance of the cases.
HDAECI

4. Whether or not Judge Yadao gravely abused her discretion when

she dismissed the criminal actions on the ground of lack of
probable cause and barred the presentation of additional
evidence in support of the prosecution's motion for
reconsideration.

5. Whether or not Judge Yadao gravely abused her discretion when

she adopted certain policies concerning the conduct of
hearings in her court.
The Court's Rulings
Before addressing the above issues, the Court notes respondents' contention that
the prosecution's resort to special civil action of certiorari under Rule 65 is
improper. Since the trial court dismissed the criminal actions against
respondents, the prosecution's remedy was to appeal to the CA from that order of
dismissal.
Ordinarily, the proper remedy from an order dismissing an action is an
appeal. 8 Here, the prosecution in fact filed a notice of appeal from such an order
issued in the subject cases. But it reconsidered its action and withdrew that
notice, believing that appeal was not an effective, speedy, and adequate
remedy. 9 In other words, the prosecution's move was not a case of forgotten
remedy but a conscious resort to another based on a belief that respondent
Judge Yadao gravely abused her discretion in issuing her various orders and
that certiorari under Rule 65 was the proper and all-encompassing remedy for the
prosecution. The Court is not prepared to say that the remedy is altogether
implausible as to throw out the petition outright.
Still, the Court notes that the prosecution skipped the CA and filed its action
directly with this Court, ignoring the principle of judicial hierarchy of courts.
Although the Supreme Court, the CA, and the RTCs have concurrent jurisdiction
to issue a writ of certiorari, such concurrence does not give the People the
unrestricted freedom of choice of forum. 10 In any case, the immense public
interest in these cases, the considerable length of time that has passed since the
crime took place, and the numerous times these cases have come before this
Court probably warrant a waiver of such procedural lapse.
DASCIc

1. Raffle of the Cases

The prosecution points out that the RTC of Quezon City Executive Judge gravely
abused her discretion when she placed Criminal Cases 01-101102 to 12 under a
separate category which did not restrict their raffle to the city's special criminal
and family courts in accordance with SC Administrative Order 36-96. Further, the

prosecution points out that she violated Administrative Order 19-98 when
Branches 219 and 102 were left out of the raffle. The presiding judges of these
two branches, both heinous crimes courts eligible to receive cases by raffle, had
just been appointed to the CA.
The records of the cases show nothing irregular in the conduct of the raffle of the
subject cases. The raffle maintained a separate list for criminal and civil cases.
Criminal cases cognizable by special criminal courts were separately listed.
Criminal Cases 01-101102 to 12 were given a separate heading, "Re-Raffle," but
there was nothing irregular in this since it merely indicated that the cases were
not being raffled for the first time.
The Executive Judge did not err in leaving out Branches 219 and 102 from raffle
since these branches remained without regularly appointed judges. Although the
pairing judges of these branches had authority to act on incidental, interlocutory,
and urgent matters, this did not mean that such branches should already be
included in the raffle of cases.
Parenthetically, the prosecution was represented during the raffle yet it did not
then object to the manner by which it was conducted. The prosecution raised the
question only when it filed this petition, a clear afterthought.
2. Jurisdiction of Family Courts
The prosecution points out that, although this Court's October 7, 2003 Resolution
directed a re-raffle of the cases to a heinous crimes court, the prosecution in the
meantime amended the informations to reflect the fact that two of the murder
victims were minors. For this reason, the Executive Judge should have raffled the
cases to a family court pursuant to Section 5 of R.A. 8369.
The Court is not impervious to the provisions of Section 5 of R.A. 8369, that vests
in family courts jurisdiction over violations of R.A. 7610, which in turn covers
murder cases where the victim is a minor. Thus:
aTcSID

Sec. 5. Jurisdiction of Family Courts. The Family Courts shall have

exclusive original jurisdiction to hear and decide the following cases:
a) Criminal cases where one or more of the accused is below eighteen
(18) years of age but not less than nine (9) years of age, or where one

or more of the victims is a minor at the time of the commission of

the offense: Provided, That if the minor is found guilty, the court shall
promulgate sentence and ascertain any civil liability which the
respondent may have incurred. (Emphasis supplied)

Undoubtedly, in vesting in family courts exclusive original jurisdiction over criminal

cases involving minors, the law but seeks to protect their welfare and best
interests. For this reason, when the need for such protection is not compromised,
the Court is able to relax the rule. In several cases, 11 for instance, the Court has
held that the CA enjoys concurrent jurisdiction with the family courts in hearing
petitions for habeas corpus involving minors.
Here, the two minor victims, for whose interests the people wanted the murder
cases moved to a family court, are dead. As respondents aptly point out, there is
no living minor in the murder cases that require the special attention and
protection of a family court. In fact, no minor would appear as party in those
cases during trial since the minor victims are represented by their parents who
had become the real private offended parties.
3. Inhibition of Judge Yadao
The prosecution claims that Judge Yadao committed grave abuse of discretion in
failing to inhibit herself from hearing the cases against the respondents.
The rules governing the disqualification of judges are found, first, in Section 1,
Rule 137 of the Rules of Court, which provides:
Sec. 1. Disqualification of judges. No judge or judicial officer 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 affinity, 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.
aCcSDT

and in Rule 3.12, Canon 3 of the Code of Judicial Conduct, which states:
Rule 3.12. A judge should take no part in a proceeding where the
judge's impartiality might reasonably be questioned. These cases
include among others, proceedings where:
(a) the judge has personal knowledge of disputed evidentiary facts
concerning the proceeding;
xxx xxx xxx
(e) the judge knows the judge's spouse or child has a financial interest,
as heir, legatee, creditor, fiduciary, or otherwise, in the subject matter in
controversy or in a party to the proceeding, or any other interest that
could be substantially affected by the outcome of the proceeding. In
every instance, the judge shall indicate the legal reason for inhibition.

The first paragraph of Section 1, Rule 137 and Rule 3.12, Canon 3 provide for the
compulsory disqualification of a judge while the second paragraph of Section 1,
Rule 137 provides for his voluntary inhibition.
The matter of voluntary inhibition is primarily a matter of conscience and sound
discretion on the part of the judge since he is in a better position to determine
whether a given situation would unfairly affect his attitude towards the parties or
their cases. The mere imputation of bias, partiality, and prejudgment is not
enough ground, absent clear and convincing evidence that can overcome the
presumption that the judge will perform his duties according to law without fear or
favor. The Court will not disqualify a judge based on speculations and surmises
or the adverse nature of the judge's rulings towards those who seek to inhibit
him. 12
Here, the prosecution contends that Judge Yadao should have inhibited herself
for improperly submitting to a public interview on the day following her dismissal
of the criminal cases against the respondents. But the Court finds nothing
basically reprehensible in such interview. Judge Yadao's dismissal of the multiple
murder cases aroused natural public interest and stirred the media into frenzy for
correct information. Judge Yadao simply accommodated, not sought, the
requests for such an interview to clarify the basis of her order. There is no
allegation that she gave out false information. To be sure, the prosecution never

once accused her of making public disclosures regarding the merits of those
cases prior to her order dismissing such cases.
TDCaSE

The prosecution also assails as constituting bias Judge Yadao's statement that a
very close relative stood to be promoted if she was to issue a warrant of arrest
against the respondents. But this statement merely shows that she cannot be
dissuaded by some relative who is close to her. How can this constitute bias?
Besides, there is no evidence that the close relative she referred to was her
spouse or child which would be a mandatory ground for disqualification.
Further, the prosecution claims that Judge Yadao prejudged its motion for
reconsideration when she said in her comment to the administrative complaint
against her that such motion was merely the prosecution's stubborn insistence on
the existence of probable cause against the respondents. The comment could of
course not be regarded as a prejudgment of the issue since she had precisely
already issued an order holding that the complainant's evidence failed to
establish probable cause against the respondents. And there is nothing wrong
about characterizing a motion for reconsideration as a "stubborn" position taken
by the party who filed it. Judge Yadao did not characterize the motion as wholly
unjustified at the time she filed her comment.
4. Dismissal of the Criminal Cases
The prosecution claims that Judge Yadao gravely abused her discretion when
she set the motions for determination of probable cause for hearing, deferred the
issuance of warrants of arrest, and allowed the defense to mark its evidence and
argue its case. The prosecution stresses that under Section 6, Rule 112 of the
Rules of Court Judge Yadao's duty was to determine probable cause for the
purpose of issuing the arrest warrants solely on the basis of the investigating
prosecutor's resolution as well as the informations and their supporting
documents. And, if she had some doubts as to the existence of probable cause,
the rules required her to order the investigating prosecutor to present additional
evidence to support the finding of probable cause within five days from notice.
Rather than take limited action, said the prosecution, Judge Yadao dug up and
adopted the Ombudsman's findings when the latter conducted its preliminary
investigation of the crime of robbery in 1996. Judge Yadao gave weight to the

affidavits submitted in that earlier preliminary investigation when such documents

are proper for presentation during the trial of the cases. The prosecution added
that the affidavits of P/S Insp. Abelardo Ramos and SPO1 Wilmor B. Medes
reasonably explained the prior inconsistent affidavits they submitted before the
Ombudsman.
The general rule of course is that the judge is not required, when determining
probable cause for the issuance of warrants of arrests, to conduct a de
novo hearing. The judge only needs to personally review the initial determination
of the prosecutor finding a probable cause to see if it is supported by substantial
evidence. 13
DcHSEa

But here, the prosecution conceded that their own witnesses tried to explain in
their new affidavits the inconsistent statements that they earlier submitted to the
Office of the Ombudsman. Consequently, it was not unreasonable for Judge
Yadao, for the purpose of determining probable cause based on those affidavits,
to hold a hearing and examine the inconsistent statements and related
documents that the witnesses themselves brought up and were part of the
records. Besides, she received no new evidence from the respondents. 14
The public prosecutor submitted the following affidavits and documents along
with the criminal informations to enable Judge Yadao to determine the presence
of probable cause against the respondents:
1. P/Insp. Ysmael S. Yu's affidavit of March 24, 2001 15 in which he said that on
May 17, 1995 respondent Canson, NCR Command Head, ordered him to form
two teams that would go after suspected Kuratong Baleleng Gang members who
were seen at the Superville Subdivision in Paraaque City. Yu headed the
assault team while Marlon Sapla headed the perimeter defense. After the police
team apprehended eight men inside the safe house, it turned them over to their
investigating unit. The following day, Yu just learned that the men and three
others were killed in a shoot-out with the police in Commonwealth Avenue in
Quezon City.
2. P/S Insp. Abelardo Ramos' affidavit of March 24, 2001 16 in which he said that
he was part of the perimeter defense during the Superville operation. After the
assault team apprehended eight male suspects, it brought them to Camp Crame

in two vans. Ramos then went to the office of respondent Zubia, TMC Head,
where he saw respondents Lacson, Acop, Laureles, Villacorte and other police
officers.
aSAHCE

According to Ramos, Zubia said that the eight suspects were to be brought to
Commonwealth Avenue and killed in a supposed shoot-out and that this action
had been cleared with higher authorities, to which remark Lacson nodded as a
sign of approval. Before Ramos left the meeting, Lacson supposedly told
him, "baka may mabuhay pa diyan." Ramos then boarded an L-300 van with his
men and four male suspects. In the early morning of May 18, 1995, they
executed the plan and gunned down the suspects. A few minutes later, P/S Insp.
Glenn G. Dumlao and his men arrived and claimed responsibility for the incident.
3. SPO1 Wilmor B. Medes' affidavit of April 24, 2001 17 in which he corroborated
Ramos' statements. Medes said that he belonged to the same team that arrested
the eight male suspects. He drove the L-300 van in going to Commonwealth
Avenue where the suspects were killed.
4. Mario C. Enad's affidavit of August 8, 1995 18 in which he claimed having
served as TMC civilian agent. At around noon of May 17, 1995, he went to
Superville Subdivision together with respondents Dumlao, Tannagan, and Nuas.
Dumlao told Enad to stay in the car and observe what went on in the house
under surveillance. Later that night, other police officers arrived and apprehended
the men in the house. Enad went in and saw six men lying on the floor while the
others were handcuffed. Enad and his companions left Sucat in the early morning
of May 18, 1995. He fell asleep along the way but was awaken by gunshots. He
saw Dumlao and other police officers fire their guns at the L-300 van containing
the apprehended suspects.
5. SPO2 Noel P. Seno's affidavit of May 31, 2001 19 in which he corroborated
what Ramos said. Seno claimed that he was part of the advance party in
Superville Subdivision and was also in Commonwealth Avenue when the
suspected members of the Kuratong Baleleng Gang were killed.
6. The PNP ABRITG After Operations Report of May 31, 1995 20 which narrated
the events that took place on May 17 and 18, 1995. This report was submitted by
Lacson, Zubia, Acop and Canson.

7. The PNP Medico-Legal Reports 21 which stated that the suspected members
of the Kuratong Baleleng Gang tested negative for gunpowder nitrates.
The Court agrees with Judge Yadao that the above affidavits and reports, taken
together with the other documents of record, fail to establish probable cause
against the respondents.
AHCaED

First. Evidently, the case against respondents rests on the testimony of Ramos,
corroborated by those of Medes, Enad, and Seno, who supposedly heard the
commanders of the various units plan the killing of the Kuratong Baleleng Gang
members somewhere in Commonwealth Avenue in Quezon City and actually
execute such plan. Yu's testimony is limited to the capture of the gang members
and goes no further. He did not see them killed.
Second. Respecting the testimonies of Ramos, Medes, Enad, and Seno, the
prosecution's own evidence the PNP ABRITG's After Operations Report of
May 31, 1995 shows that these men took no part in the operations against
the Kuratong Baleleng Gang members. The report included a comprehensive list
of police personnel from Task Force Habagat (Lacson), Traffic Management
Command (Zubia), Criminal Investigation Command (Acop), and National Capital
Region Command (Canson) who were involved. The names of Ramos, Medes,
Enad, and Seno were not on that list. Notably, only Yu's name, among the new
set of witnesses, was on that list. Since an after-battle report usually serves as
basis for commendations and promotions, any omitted name would hardly have
gone unchallenged.
Third. Ramos, whose story appeared to be the most significant evidence against
the respondents, submitted in the course of the preliminary investigation that the
Office of the Ombudsman conducted in a related robbery charge against the
police officers involved a counter-affidavit. He claimed in that counter-affidavit that
he was neither in Superville Subdivision nor Commonwealth Avenue during
the Kuratong Baleleng operations since he was in Bulacan on May 17, 1995 and
at his home on May 18. 22 Notably, Medes claimed in a joint counter-affidavit that
he was on duty at the TMC headquarters at Camp Crame on May 17 and 18. 23
Fourth. The Office of the Ombudsman, looking at the whole picture and giving
credence to Ramos and Medes' statements, dismissed the robbery case. More, it

excluded Ramos from the group of officers that it charged with the murder of the
suspected members of the Kuratong Baleleng Gang. Under the circumstances,
the Court cannot be less skeptical than Judge Yadao was in doubting the sudden
reversal after six years of testimony of these witnesses.
Of course, Yu may have taken part in the subject operation but, as he narrated,
his role was limited to cornering and arresting the suspected Kuratong
Baleleng Gang members at their safe house in Superville Subdivision. After his
team turned the suspects over to an investigating unit, he no longer knew what
happened to them.
HIaSDc

Fifth. True, the PNP Medico-Legal Reports showed that the Kuratong
Baleleng Gang members tested negative for gunpowder nitrates. But this finding
cannot have any legal significance for the purpose of the preliminary investigation
of the murder cases against the respondents absent sufficient proof that they
probably took part in gunning those gang members down.
The prosecution points out that, rather than dismiss the criminal action outright,
Judge Yadao should have ordered the panel of prosecutors to present additional
evidence pursuant to Section 6, Rule 112 of the Rules of Court which provides:
Sec. 6. When warrant of arrest may issue. (a) By the Regional Trial
Court. Within ten (10) days from the filing of the complaint or
information, the judge shall personally evaluate the resolution of the
prosecutor and its supporting evidence. He may immediately dismiss the
case if the evidence on record clearly fails to establish probable cause. If
he finds probable cause, he shall issue a warrant of arrest, or a
commitment order if the accused has already been arrested pursuant to
a warrant issued by the judge who conducted the preliminary
investigation or when the complaint or information was filed pursuant to
section 7 of this Rule. In case of doubt on the existence of probable
cause, the judge may order the prosecutor to present additional
evidence within five (5) days from notice and the issue must be resolved
by the court within thirty (30) days from the filing of the complaint of
information.

Section 6, Rule 112 of the Rules of Court gives the trial court three options upon
the filing of the criminal information: (1) dismiss the case if the evidence on

record clearly failed to establish probable cause; (2) issue a warrant of arrest if it
finds probable cause; and (3) order the prosecutor to present additional evidence
within five days from notice in case of doubt as to the existence of probable
cause. 24
ETCcSa

But the option to order the prosecutor to present additional evidence is not
mandatory. The court's first option under the above is for it to "immediately
dismiss the case if the evidence on record clearly fails to establish probable
cause." That is the situation here: the evidence on record clearly fails to establish
probable cause against the respondents.
It is only "in case of doubt on the existence of probable cause" that the judge may
order the prosecutor to present additional evidence within five days from notice.
But that is not the case here. Discounting the affidavits of Ramos, Medes, Enad,
and Seno, nothing is left in the record that presents some doubtful probability that
respondents committed the crime charged. PNP Director Leandro Mendoza
sought the revival of the cases in 2001, six years after it happened. It would have
been ridiculous to entertain the belief that the police could produce new
witnesses in the five days required of the prosecution by the rules.
In the absence of probable cause to indict respondents for the crime of multiple
murder, they should be insulated from the tribulations, expenses and anxiety of a
public trial. 25
5. Policies Adopted for Conduct of Court Hearing
The prosecution claims that Judge Yadao arbitrarily recognized only one public
prosecutor and one private prosecutor for all the offended parties but allowed
each of the counsels representing the individual respondents to be heard during
the proceedings before it. She also unjustifiably prohibited the prosecution's use
of tape recorders.
But Section 5, Rule 135 of the Rules of Court gives the trial court ample inherent
and administrative powers to effectively control the conduct of its proceedings.
Thus:
HaSEcA

Sec. 5. Inherent powers of court. Every court shall have power:

xxx xxx xxx

(b) To enforce order in proceedings before it, or before a person or

persons empowered to conduct a judicial investigation under its
authority;
xxx xxx xxx
(d) To control, in furtherance of justice, the conduct of its ministerial
officers, and of all other persons in any manner connected with a case
before it, in every manner appertaining thereto;
xxx xxx xxx
(g) To amend and control its process and orders so as to make them
conformable to law and justice;
xxx xxx xxx

There is nothing arbitrary about Judge Yadao's policy of allowing only one public
prosecutor and one private prosecutor to address the court during the hearing for
determination of probable cause but permitting counsels representing the
individual accused to do so. A criminal action is prosecuted under the direction
and control of the public prosecutor. 26 The burden of establishing probable
cause against all the accused is upon him, not upon the private prosecutors
whose interests lie solely in their clients' damages claim. Besides, the public and
the private prosecutors take a common position on the issue of probable cause.
On the other hand, each of the accused is entitled to adopt defenses that are
personal to him.
As for the prohibition against the prosecution's private recording of the
proceedings, courts usually disallows such recordings because they create an
unnecessary distraction and if allowed, could prompt every lawyer, party, witness,
or reporter having some interest in the proceeding to insist on being given the
same privilege. Since the prosecution makes no claim that the official recording
of the proceedings by the court's stenographer has been insufficient, the Court
finds no grave abuse of discretion in Judge Yadao's policy against such
extraneous recordings.
cICHTD

WHEREFORE, the Court DISMISSES this petition and AFFIRMS the following
assailed Orders of the Regional Trial Court of Quezon City, Branch 81 in Criminal
Cases 01-101102 to 12:

1. the Order dated November 12, 2003 which denied the prayer for
re-raffle, granted the motions for determination of probable
cause, and dismissed the criminal cases;
2. the Order dated January 16, 2004 which granted the motion of
the respondents for the immediate resolution of the three
pending incidents before the court;
3. the Order dated January 21, 2004 which denied the motion to
recuse and the urgent supplemental motion for compulsory
disqualification;
4. the Order dated January 22, 2004 which denied the motion for
reconsideration of the Order dated November 12, 2003; and
5. the Order dated January 26, 2004 which denied the motion for
reconsideration of the January 16, 2004 Order.
SO ORDERED.
|||

(People v. Dela Torre-Yadao, G.R. No. 162144-54, [November 13, 2012], 698

PHIL 471-495)

23
[G.R. No. 180064. September 16, 2013.]
JOSE U. PUA and BENJAMIN HANBEN U. PUA, petitioners, vs.
CITIBANK, N.A., respondent.
DECISION
PERLAS-BERNABE, J :
p

Assailed in this petition for review on certiorari 1 are the Decision 2 dated May 21,
2007 and Resolution 3 dated October 16, 2007 of the Court of Appeals (CA) in
CA-G.R. SP No. 79297, which reversed and set aside the Orders dated May 14,
2003 4 and July 16, 2003 5 of the Regional Trial Court of Cauayan City, Isabela,
Branch 19 (RTC), dismissing petitioners Jose (Jose) and Benjamin Hanben U.
Pua's (petitioners) complaint against respondent Citibank, N.A. (respondent).
The Facts
On December 2, 2002, petitioners filed before the RTC a Complaint 6 for
declaration of nullity of contract and sums of money with damages against
respondent, 7docketed as Civil Case No. 19-1159. 8 In their complaint, petitioners
alleged that they had been depositors of Citibank Binondo Branch (Citibank
Binondo) since 1996. Sometime in 1999, Guada Ang, Citibank Binondo's Branch
Manager, invited Jose to a dinner party at the Manila Hotel where he was
introduced to several officers and employees of Citibank Hongkong Branch
(Citibank Hongkong). 9 A few months after, Chingyee Yau (Yau), Vice-President
of Citibank Hongkong, came to the Philippines to sell securities to Jose. They
averred that Yau required Jose to open an account with Citibank Hongkong as it
is one of the conditions for the sale of the aforementioned securities. 10 After
opening such account, Yau offered and sold to petitioners numerous
securities 11 issued by various public limited companies established in Jersey,
Channel Islands. The offer, sale, and signing of the subscription agreements of
said securities were all made and perfected at Citibank Binondo in the presence
of its officers and employees. 12 Later on, petitioners discovered that the
securities sold to them were not registered with the Securities and Exchange
Commission (SEC) and that the terms and conditions covering the subscription
were not likewise submitted to the SEC for evaluation, approval, and
registration. 13 Asserting that respondent's actions are in violation of Republic Act
No. 8799, entitled the "Securities Regulation Code" (SRC), they assailed the
validity of the subscription agreements and the terms and conditions thereof for
being contrary to law and/or public policy. 14
For its part, respondent filed a motion to dismiss 15 alleging, inter alia, that
petitioners' complaint should be dismissed outright for violation of the doctrine of
primary jurisdiction. It pointed out that the merits of the case would largely

depend on the issue of whether or not there was a violation of the SRC, in
particular, whether or not there was a sale of unregistered securities. In this
regard, respondent contended that the SRC conferred upon the SEC jurisdiction
to investigate compliance with its provisions and thus, petitioners' complaint
should be first filed with the SEC and not directly before the RTC. 16
Petitioners opposed 17 respondent's motion to dismiss, maintaining that the RTC
has jurisdiction over their complaint. They asserted that Section 63 of
the SRCexpressly provides that the RTC has exclusive jurisdiction to hear and
decide all suits to recover damages pursuant to Sections 56 to 61 of the same
law. 18
IATHaS

The RTC Ruling

In an Order 19 dated May 14, 2003, the RTC denied respondent's motion to
dismiss. It noted that petitioners' complaint is for declaration of nullity of contract
and sums of money with damages and, as such, it has jurisdiction to hear and
decide upon the case even if it involves the alleged sale of securities. It
ratiocinated that the legal questions or issues arising from petitioners' causes of
action against respondent are more appropriate for the judiciary than for an
administrative agency to resolve. 20
Respondent filed an omnibus motion 21 praying, among others, for the
reconsideration of the aforesaid ruling, which petitioners, in turn, opposed. 22 In
an Order 23dated July 16, 2003, the RTC denied respondent's omnibus motion
with respect to its prayer for reconsideration. Dissatisfied, respondent filed a
petition for certioraribefore the CA. 24
The CA Ruling
In a Decision 25 dated May 21, 2007, the CA reversed and set aside the RTC's
Orders and dismissed petitioners' complaint for violation of the doctrine of
primary jurisdiction. The CA agreed with respondent's contention that since the
case would largely depend on the issue of whether or not the latter violated the
provisions of the SRC, the matter is within the special competence or knowledge
of the SEC. Citing the case of Baviera v. Paglinawan 26 (Baviera), the CA opined
that all complaints involving violations of the SRC should be first filed before the
SEC. 27

Aggrieved, petitioners moved for reconsideration, 28 which was, however, denied

by the CA in a Resolution 29 dated October 16, 2007. Hence, this petition.
The Issue Before the Court
The essential issue in this case is whether or not petitioners' action falls within
the primary jurisdiction of the SEC.
Petitioners reiterate their original position that the SRC itself provides that civil
cases for damages arising from violations of the same law fall within the exclusive
jurisdiction of the regional trial courts. 30
On the contrary, respondent maintains that since petitioners' complaint would
necessarily touch on the issue of whether or not the former violated certain
provisions of the SRC, then the said complaint should have been first filed with
the SEC which has the technical competence to resolve such dispute. 31
The Court's Ruling
The petition is meritorious.
At the outset, the Court observes that respondent erroneously relied on
the Baviera ruling to support its position that all complaints involving purported
violations of the SRC should be first referred to the SEC. A careful reading of
the Baviera case would reveal that the same involves a criminal prosecution of a
purported violator of the SRC, and not a civil suit such as the case at bar. The
pertinent portions of the Baviera ruling thus read:
A criminal charge for violation of the Securities Regulation Code is
a specialized dispute. Hence, it must first be referred to an
administrative agency of special competence, i.e., the SEC. Under
the doctrine of primary jurisdiction, courts will not determine a
controversy involving a question within the jurisdiction of the
administrative tribunal, where the question demands the exercise of
sound administrative discretion requiring the specialized knowledge and
expertise of said administrative tribunal to determine technical and
intricate matters of fact. The Securities Regulation Code is a special law.
Its enforcement is particularly vested in the SEC. Hence, all complaints
for any violation of the Code and its implementing rules and
regulations should be filed with the SEC. Where the complaint is

criminal in nature, the SEC shall indorse the complaint to the DOJ for
preliminary investigation and prosecution as provided in Section 53.1
earlier quoted.
We thus agree with the Court of Appeals that petitioner committed
a fatal procedural lapse when he filed his criminal complaint
directly with the DOJ. Verily, no grave abuse of discretion can be

ascribed to the DOJ in dismissing petitioner's complaint. 32 (Emphases

and underscoring supplied)

cIDHSC

Records show that petitioners' complaint constitutes a civil suit for declaration of
nullity of contract and sums of money with damages, which stemmed from
respondent's alleged sale of unregistered securities, in violation of the various
provisions of the SRC and not a criminal case such as that involved in Baviera.
In this light, when the Court ruled in Baviera that "all complaints for any violation
of the [SRC] . . . should be filed with the SEC," 33 it should be construed as to
apply only to criminal and not to civil suits such as petitioners' complaint.
Moreover, it is a fundamental rule in procedural law that jurisdiction is conferred
by law; 34 it cannot be inferred but must be explicitly stated therein. Thus, when
Congress confers exclusive jurisdiction to a judicial or quasi-judicial entity over
certain matters by law, this, absent any other indication to the contrary, evinces
its intent to exclude other bodies from exercising the same.
It is apparent that the SRC provisions governing criminal suits are separate and
distinct from those which pertain to civil suits. On the one hand, Section 53 of
the SRCgoverns criminal suits involving violations of the said law, viz.:
SEC. 53. Investigations, Injunctions and Prosecution of Offenses.
53.1. The Commission may, in its discretion, make such investigations
as it deems necessary to determine whether any person has violated or
is about to violate any provision of this Code, any rule, regulation or
order thereunder, or any rule of an Exchange, registered securities
association, clearing agency, other self-regulatory organization, and may
require or permit any person to file with it a statement in writing, under
oath or otherwise, as the Commission shall determine, as to all facts and
circumstances concerning the matter to be investigated. The

Commission may publish information concerning any such violations,

and to investigate any fact, condition, practice or matter which it may
deem necessary or proper to aid in the enforcement of the provisions of
this Code, in the prescribing of rules and regulations thereunder, or in
securing information to serve as a basis for recommending further
legislation concerning the matters to which this Code relates: Provided,
however, That any person requested or subpoenaed to produce
documents or testify in any investigation shall simultaneously be notified
in writing of the purpose of such investigation: Provided, further, That all
criminal complaints for violations of this Code, and the implementing
rules and regulations enforced or administered by the Commission shall
be referred to the Department of Justice for preliminary investigation and
prosecution before the proper court: Provided, furthermore, That in
instances where the law allows independent civil or criminal proceedings
of violations arising from the same act, the Commission shall take
appropriate action to implement the same: Provided, finally, That the
investigation, prosecution, and trial of such cases shall be given priority.

On the other hand, Sections 56, 57, 58, 59, 60, 61, 62, and 63 of the SRC pertain
to civil suits involving violations of the same law. Among these, the applicable
provisions to this case are Sections 57.1 and 63.1 of the SRC which provide:
SEC. 57. Civil Liabilities Arising in Connection with Prospectus,
Communications and Reports. 57.1. Any person who:
(a) Offers to sell or sells a security in violation of Chapter III; or
(b) Offers to sell or sells a security, whether or not exempted by the
provisions of this Code, by the use of any means or instruments of
transportation or communication, by means of a prospectus or other
written or oral communication, which includes an untrue statement of a
material fact or omits to state a material fact necessary in order to make
the statements, in the light of the circumstances under which they were
made, not misleading (the purchaser not knowing of such untruth or
omission), and who shall fail in the burden of proof that he did not know,
and in the exercise of reasonable care could not have known, of such
untruth or omission, shall be liable to the person purchasing such
security from him, who may sue to recover the consideration paid
for such security with interest thereon, less the amount of any

income received thereon, upon the tender of such security, or for

damages if he no longer owns the security.
xxx xxx xxx
SEC. 63. Amount of Damages to be Awarded. 63.1. All suits to
recover damages pursuant to Sections 56, 57, 58, 59, 60 and 61 shall
be brought before the Regional Trial Court which shall have
exclusive jurisdiction to hear and decide such suits. The Court is
hereby authorized to award damages in an amount not exceeding triple
the amount of the transaction plus actual damages.
AEaSTC

xxx xxx xxx (Emphases and underscoring supplied)

Based on the foregoing, it is clear that cases falling under Section 57 of the SRC,
which pertain to civil liabilities arising from violations of the requirements for
offers to sell or the sale of securities, as well as other civil suits under Sections
56, 58, 59, 60, and 61 of the SRC shall be exclusively brought before the
regional trial courts. It is a well-settled rule in statutory construction that the
term "shall" is a word of command, and one which has always or which must be
given a compulsory meaning, and it is generally imperative or
mandatory. 35 Likewise, it is equally revelatory that no SRC provision of similar
import is found in its sections governing criminal suits; quite the contrary,
the SRC states that criminal cases arising from violations of its provisions should
be first referred to the SEC.
Therefore, based on these considerations, it stands to reason that civil suits
falling under the SRC are under the exclusive original jurisdiction of the regional
trial courts and hence, need not be first filed before the SEC, unlike criminal
cases wherein the latter body exercises primary jurisdiction.
All told, petitioners' filing of a civil suit against respondent for purported violations
of the SRC was properly filed directly before the RTC.
WHEREFORE, the petition is GRANTED. Accordingly, the Court of Appeals'
Decision dated May 21, 2007 and Resolution dated October 16, 2007 in CA-G.R.
SP No. 79297 are hereby REVERSED and SET ASIDE. Let Civil Case No. 191159 be REINSTATED and REMANDED to the Regional Trial Court of Cauayan
City, Isabela, Branch 19 for further proceedings.
aDSHCc

SO ORDERED.
|||

(Pua v. Citibank, N.A., G.R. No. 180064, [September 16, 2013], 718 PHIL 1-10)

24
[A.M. No. RTJ-01-1642. March 6, 2002.]
(Formerly OCA IPI No. 00-921-RTJ)
P/SUPT. SEVERINO CRUZ and FRANCISCO
MONEDERO, complainants, vs. JUDGE PEDRO M. AREOLA and
BRANCH CLERK OF COURT JANICE YULOANTERO, respondents.
SYNOPSIS
A warrant of arrest was issued by respondent Judge and released by respondent
Branch Clerk of Court against the accused in the criminal case for estafa pending
before the sala of respondent Judge. Respondent Judge issued another order
deferring the implementation of the warrant of arrest against the accused pending
the resolution of her motion for reinvestigation. Respondent Judge granted
accused's motion for reconsideration and directed the Branch Trial Prosecution to
conduct a reinvestigation of the case. The Office of the City Prosecutor
recommended that the case be set for trial. Accused filed an urgent exparte motion to suspend proceedings and to hold in abeyance the issuance of a
warrant of arrest as she intended to file a motion for reconsideration of the
resolution of the reinvestigation or a petition for review before the Secretary of
Justice. Respondent Judge granted accused's motion and suspended further
proceedings in the said case. On the basis of the foregoing orders issued by
respondent Judge, complainants filed the instant complaint charging both
respondent Judge and his Branch Clerk of Court with ignorance of the law.

The administrative complaint was referred to Justice Romeo A. Brawner of the

Court of Appeals, who recommended the dismissal of the complaint against the
respondents.
The Supreme Court agreed with the findings and recommendation of the
investigating Justice. The arrest of the accused can be ordered only in the event
the prosecutor files the case and the judge of the Regional Trial Court finds
probable cause for the issuance of a warrant of arrest. It is not obligatory, but
merely discretionary, upon the investigating judge to issue a warrant for the arrest
of the accused, even after having personally examined the complainant and his
witnesses in the form of searching questions and answers, for the determination
of whether a probable cause exists and whether it is necessary to arrest the
accused in order not to frustrate the ends of justice, is left to his sound judgment
or discretion.
On her part, respondent Branch Clerk of Court cannot be faulted for performing a
ministerial function, that is, releasing orders duly signed by respondent Judge.
SYLLABUS
1. REMEDIAL LAW; CRIMINAL PROCEDURE; PRELIMINARY INVESTIGATION;
KINDS. The 1987 Constitution provides that no warrant of arrest shall issue
except upon probable cause to be determined personally by the judge after
examination under oath or affirmation of the complainant and the witnesses he
may produce. In numerous instances, this Court had ruled that: ". . . Judges and
Prosecutors alike should distinguish the preliminary inquiry which determines
probable cause for the issuance of a warrant of arrest from the preliminary
investigation proper which ascertains whether the offender should be held for trial
or released. . . The determination of probable cause for the warrant of arrest is
made by the judge. The preliminary investigation proper whether or not there
is reasonable ground to believe that the accused is guilty of the offense charged
and, therefore, whether or not he should be subjected to the expense, rigors and
embarrassment of trial is the function of the Prosecutor. . . . We reiterate that
preliminary investigation should be distinguished as to whether it is an
investigation for the determination of a sufficient ground for the filing of the

information or it is an investigation for the determination of a probable cause for

the issuance of a warrant of arrest. The first kind of preliminary investigation is
executive in nature. It is part of the prosecution's job. The second kind of
preliminary investigation which is more properly called preliminary examination is
judicial in nature and is lodged with the judge." In making the required personal
determination, a judge is not precluded from relying on the evidence earlier
gathered by responsible officers. The extent of the reliance depends on the
circumstances of each case and is subject to the judge's sound discretion.
SAHITC

2. ID.; ID.; ARREST; WARRANT OF ARREST; ISSUANCE THEREOF MERELY

DISCRETIONARY UPON THE INVESTIGATING JUDGE. The arrest of the
accused can be ordered only in the event the prosecutor files the case and the
judge of the Regional Trial Court finds probable cause for the issuance of a
warrant of arrest. It is not obligatory, but merely discretionary, upon the
investigating judge to issue a warrant for the arrest of the accused, even after
having personally examined the complainant and his witnesses in the form of
searching questions and answers, for the determination of whether a probable
cause exists and whether it is necessary to arrest the accused in order not to
frustrate the ends of justice, is left to his sound judgment or discretion.
DECISION
PUNO, J :
p

This is an administrative complaint filed by P/Supt. Severino Cruz and Francisco

Monedero against Judge Pedro M. Areola of Regional Trial Court, Branch 85,
Quezon City and his Branch Clerk of Court for Ignorance of the Law relative to
Criminal Case No. Q-99-80446 entitled "People of the Philippines vs. Marilyn A.
Carreon" for Estafa pending before the sala of the respondent Judge.
The records show that on November 26, 1998, the Evaluation and Preliminary
Investigation Bureau of the Office of the Ombudsman issued a
Resolution 1recommending the filing of an Information for Estafa as defined and
penalized under Art. 315, par. 1 (b) of the Revised Penal Code against Marilyn

Carreon, an employee of the Land Transportation Office based on the complaint

filed by herein complainants. Upon the filing of the Information, the case was
docketed as Criminal Case No. Q-99-80446 and was raffled to Branch 85.
On January 19, 1999, accused Marilyn Carreon filed with the trial court an Urgent
Motion for Reinvestigation. In his Order dated January 25, 1999, the respondent
Judge considered the said motion a mere scrap of paper for non-compliance
with Sections 4 and 5, Rule 15 of the 1997 Rules of Civil Procedure. On the
same date, a Warrant of Arrest was issued by the respondent Judge and
released by respondent Branch Clerk of Court.
On February 10, 1999, respondent Judge issued another Order deferring the
implementation of the Warrant of Arrest against the accused pending the
resolution of her Motion for Reinvestigation. On June 16, 1999, respondent Judge
granted Carreon's Motion for Reconsideration and directed the Branch Trial
Prosecutor to conduct a reinvestigation of the case. 2
The Office of the City Prosecutor issued a Resolution finding no cogent reason to
reverse, modify, or alter the resolution of the Office of the Ombudsman and
recommended that the case be set for trial.
On September 20, 1999, Carreon filed an Urgent Ex-Parte Motion to Suspend
Proceedings and to Hold in Abeyance the Issuance of Warrant of Arrest as she
intended to file a Motion for Reconsideration of the Resolution of the
Reinvestigation or a petition for review before the Secretary of Justice. In his
Order dated September 27, 1999, respondent Judge granted Carreon's motion
and suspended further proceedings in the said case. 3
On the basis of the foregoing Orders issued by the respondent Judge,
complainants filed the instant complaint 4 charging both respondent Judge and
his Branch Clerk of Court with ignorance of the law.
In their Joint Comment, 5 respondent Judge manifests that the issuance of a
warrant of arrest is not a ministerial function of a judge as he is mandated to
determine the existence of probable cause before issuing a warrant. Respondent
Branch Clerk of Court, on the other hand, claims that it is a ministerial duty on her
part to release duly signed orders, resolutions and decisions of the presiding
judge of her branch.

The sole issue in this case is whether or not the orders of respondent Judge and
the release thereof by respondent Branch Clerk of Court constitute ignorance of
the law.
On August 6, 2001, we referred the administrative complaint to Justice Romeo A.
Brawner of the Court of Appeals for investigation, report and recommendation. 6
In compliance with the Court's Resolution, Justice Brawner submitted his Report
and Recommendation dated February 5, 2002. In recommending the dismissal of
the complaint against the respondents, Justice Brawner elucidates, thus:
cDCSET

"Complainants take issue of the fact that although respondent Judge

already issued a warrant of arrest, he still deferred its implementation to
give way to a reinvestigation of the case on motion of the accused.
Moreover, complainants argued, the Office of the City Prosecutor already
resolved the issue of the existence of probable cause against the
accused three times but respondent Judge still suspended the
proceedings pending the petition for review filed by the accused.
It must be stressed that the 1987 Constitution requires the judge to
determine probable cause 'personally,' making it the exclusive and
personal responsibility of the issuing judge to satisfy himself of the
existence of probable cause. In satisfying himself of the existence of
probable cause for the issuance of a warrant of arrest, the judge is not
required to personally examine the complainant and his witnesses.
Following established doctrine and procedure, he shall: (1) personally
evaluate the report and the supporting documents submitted by the fiscal
regarding the existence of probable cause and, on the basis thereof,
issue a warrant of arrest; or (2) if on the basis thereof he finds no
probable cause, he may disregard the prosecutor's report and require
the submission of supporting affidavits of witnesses to aid him in arriving
at a conclusion as to the existence of probable cause (Mayor Abdula vs.
Judge Guiani, G.R. No. 118821, February 18, 2000, 326 SCRA 1).

What complainants believe is that there is no longer any reason why the
respondent Judge should withhold the issuance of a warrant of arrest

considering that the Office of the City Prosecutor already made a finding
that there exists probable cause to indict the accused.
The determination of probable cause by the prosecutor is for a purpose
different from that which is to be made by the judge. Whether there is
reasonable ground to believe that the accused is guilty of the offense
charged and should be held for trial is what the prosecutor passes upon.
The judge, on the other hand, determines whether a warrant of arrest
should be issued against the accused, i.e., whether there is a necessity
for placing him under immediate custody in order not to frustrate the
ends of justice. Thus, even if both should base their findings on one and
the same proceeding or evidence, there should be no confusion as to
their distinct objectives.
Second, since their objectives are different, the judge cannot rely solely
on the report of the prosecutor in finding probable cause to justify the
issuance of a warrant of arrest. Obviously and understandably, the
contents of the prosecutor's report will support his own conclusion that
there is reason to charge the accused for an offense and hold him for
trial. However, the judge must decide independently. Hence, he must
have supporting evidence, other than the prosecutor's bare report, upon
which to legally sustain his own findings on the existence (or
nonexistence) of probable cause to issue an arrest order. This
responsibility of determining personally and independently the existence
or nonexistence of probable cause is lodged in him by no less than the
most basic law of the land.
Although the prosecutor enjoys the legal presumption of regularity in the
performance of his official duties, which in turn gives his report the
presumption of accuracy, nothing less than the fundamental law of the
land commands the judge to personally determine probable cause in the
issuance of warrants of arrest. A judge fails in this constitutionally
mandated duty if he relies merely on the certification or report of the
investigating officer (Mayor Abdula vs. Judge Guiani, supra).
As it could not be determined beforehand how cursory or exhaustive a
judge's examination of the records should be, the extent of his
examination depends on the exercise of his sound discretion as the
circumstances of the case require.

In the case at bar, the fact that the respondent Judge ordered the reinvestigation of the case does not in any way make him liable for
ignorance of the law. In the exercise of his discretion, he believed that a
re-investigation was called for and thus held in abeyance the
implementation of the warrant of arrest. There is no showing that he
abused such discretion as it was part of the performance of his duty
under the Constitution and he could not be faulted for it. Much more
could we find fault with respondent Branch Clerk of Court who acts
under the direction of the presiding Judge and whose only role in this
complaint charged against her was to release the duly signed orders of
the respondent Judge." 7

We agree with the findings and recommendation of the investigating Justice.

The 1987 Constitution provides that no warrant of arrest shall issue except upon
probable cause to be determined personally by the judge after examination under
oath or affirmation of the complainant and the witnesses he may produce. 8 In
numerous instances, 9 this Court had ruled that:
". . . Judges and Prosecutors alike should distinguish the preliminary
inquiry which determines probable cause for the issuance of a warrant of
arrest from the preliminary investigation proper which ascertains whether
the offender should be held for trial or released. . . The determination of
probable cause for the warrant of arrest is made by the judge. The
preliminary investigation proper whether or not there is reasonable
ground to believe that the accused is guilty of the offense charged and,
therefore, whether or not he should be subjected to the expense, rigors
and embarrassment of trial is the function of the Prosecutor.
EICSDT

xxx xxx xxx

We reiterate that preliminary investigation should be distinguished as to
whether it is an investigation for the determination of a sufficient ground
for the filing of the information or it is an investigation for the
determination of a probable cause for the issuance of a warrant of arrest.
The first kind of preliminary investigation is executive in nature. It is part
of the prosecution's job. The second kind of preliminary investigation
which is more properly called preliminary examination is judicial in nature
and is lodged with the judge." 10

In making the required personal determination, a judge is not precluded from

relying on the evidence earlier gathered by responsible officers. The extent of the
reliance depends on the circumstances of each case and is subject to the judge's
sound discretion. 11
The arrest of the accused can be ordered only in the event the prosecutor files
the case and the judge of the Regional Trial Court finds probable cause for the
issuance of a warrant of arrest. It is not obligatory, but merely discretionary, upon
the investigating judge to issue a warrant for the arrest of the accused, even after
having personally examined the complainant and his witnesses in the form of
searching questions and answers, for the determination of whether a probable
cause exists and whether it is necessary to arrest the accused in order not to
frustrate the ends of justice, is left to his sound judgment or discretion. 12
It appears from the records that the challenged Orders issued by the respondent
Judge were not at all baseless. The respondent Judge merely exercised his
sound discretion in not immediately issuing the warrant of arrest and in
suspending further proceedings pending reinvestigation of the case. On her part,
respondent Branch Clerk of Court cannot be faulted for performing a ministerial
function, that is, releasing Orders duly signed by the respondent Judge.
IN VIEW WHEREOF, the administrative complaint against respondents Judge
Pedro M. Areola and Branch Clerk of Court Janice Yulo-Antero is DISMISSED for
lack of merit.
SO ORDERED.
|||

(Cruz v. Areola, A.M. No. RTJ-01-1642, [March 6, 2002], 428 PHIL 373-381)

25.
[G.R. Nos. 169727-28. August 18, 2006.]
BRIG. GEN. (Ret.) JOSE S. RAMISCAL, JR., petitioner, vs.
SANDIGANBAYAN (4th Division) and PEOPLE OF THE
PHILIPPINES, respondents.

DECISION
CALLEJO, SR., J :
p

Before the Court is a Petition for Certiorari under Rule 65 of the Rules of Court
for the nullification of the Resolution 1 of the Sandiganbayan (4th Division) in
Criminal Case Nos. 28022 and 28023, as well as its Resolution denying the
motion for reconsideration thereof.
In 1998, the Senate Committees on Accountability of Public Officers and
Investigation (Blue Ribbon) and on National Defense and Security (collectively,
Senate Blue Ribbon Committee) carried out an extensive joint inquiry into the
"coup rumors and the alleged anomalies" in the Armed Forces of the PhilippinesPhilippine Retirement Benefits Systems (AFP-RSBS). In its Report dated
December 23, 1998, the Senate Blue Ribbon Committee outlined, among others,
the anomalies in the acquisition of lots in Tanauan, Batangas, Calamba, Laguna
and Iloilo City by the AFP-RSBS, and described the modus operandi of the
perpetrators as follows:
The modus operandi in the buying of the lots was to cover the same
transactions with two deeds of sale. One deed of sale would be signed
only by the seller or sellers (unilateral deed). Another deed of sale would
be signed by the seller or seller and the buyer, AFP-RSBS (bilateral
deed).
The devious gimmicking was uncovered by your Committee which also
found out that the buying prices stated in the unilateral deeds did not
match those stated in the bilateral deeds. To borrow a word from
lawyers, the "consideration" (i.e., prices) in the unilateral deeds of
sale and the bilateral deeds of sale did not tally even if they covered
the same transaction.
Without exception, the deed(s) signed by the seller(s) only
(unilateral deeds) were the one registered with the registrar (sic) of
deeds. These Unilateral Deeds of Sale recorded lower
consideration paid by the System to the buyer(s) than those stated
in the Bilateral Deeds. The motivation was obviously to evade

payment of the correct taxes to the government and save money for
the seller(s), broker(s) and who knows, probably even for the
kickbacks going to certain officials of RSBS, the buyer.
STECAc

xxx xxx xxx

The bilateral deeds were kept in the dark files [of] the System over the
years. They were uncovered only recently as a result of your
Committee's investigation. Your Committee submits that the reason
why the bilateral deeds were kept in the vaults of the System was to
justify the huge lot payments made by the System just in case any
soldier-member of RSBS would be bold or curious enough to
inquire about the matter directly with the System. The curious
soldier would then be shown the bilateral deed to impress upon
him/her that indeed the System has spent huge amounts for the
purchase of the lots in question.
Until the investigation uncovered the anomaly, the matter of the two sets
of documents covering the purchases of the same parcels of land made
by the System were, like the Clinton-Lewinsky trysts, kept from the
prying eyes officials of the System but so unfair because the public
continues to shoulder, in behalf of the RSBS, the payments for the
pension and retirement benefits of the soldiers." (Emphasis supplied)

The Initial Report of the Senate Blue Ribbon Committee, which was cited by the
Feliciano Commission in its Report to the President of the Philippines, included
the following discussion:
Essentially, the Blue Ribbon Committee found that the real estate
purchases by RSBS were uniformly documented, by two (2) sets of
instruments: Firstly, a unilateral covering the same piece of land,
executed both by the seller and by RSBS as buyer. The price stated in
the second bilateral instrument was invariably much higher than the price
reflected in the unilateral deed of sale. The discrepancies between the
purchase price booked by RSBS and the purchase price reflected in the
unilateral deed of sale actually registered in the relevant Registry of
Deeds, totaled about seven hundred three million pesos (P703 Million).
The two sets of purchase price figures obviously could not both be
correct at the same time. Either the purchase price booked and paid out

by RSBS was the true purchase price of the land involved, in which case
RSBS had obviously assisted or abetted the seller in grossly
understating the capital gains realized by him and in defrauding the
National treasury; or the purchase price in the unilateral deed of sale
was the consideration actually received by the seller from RSBS, in
which case, the buyer-RSBS had grossly overpaid, with the differential,
in the belief of the Senate Blue Ribbon Committee, going into the
pockets of RSBS officials. A third possibility was that the differential
between the purchase price booked and paid by the buyer-RSBS and
the selling price admitted by the seller of the land, had been shared by
the buyer and seller in some undisclosed ratio. 2

Pursuant to the recommendation of the Senate Blue Ribbon Committee to

"prosecute and/or cause the prosecution of Gen. Jose Ramiscal Jr. (Ret), past
AFP-RSBS President, who had signed the unregistered deeds of sale covering
the acquisition of certain parcels of land," Ombudsman Investigators Ricardo
Sullano, Rodil Buenaventura and Anatolio Alejandrino of the Office of the Deputy
Ombudsman for the Military conducted a fact-finding investigation. They executed
a Joint Affidavit-Complaint, 3 stating that based on their findings, the following
may be charged with falsification of public documents and violation of Section
3(e) and (g) of Republic Act (R.A.) No. 3019: petitioner B/Gen. Jose Ramiscal,
Jr., former AFP-RSBS president; Atty. Meinrado Enrique Bello, Head of the AFPRSBS Legal Department in charge of Land Acquisition; Capt. Perfecto Enrique
Quilicot, AFP-RSBS Project Officer, Tanauan, Batangas, Land Acquisition; and
Notaries Public Alfredo Nasser and Manuel Satuito.
The matter was further looked into by a panel of Ombudsman Investigators,
which issued on March 30, 2001 a Joint Resolution 4 finding probable cause to
file the corresponding Informations for 148 counts of violation of Article 315, in
relation to Article 171, paragraph 4 of the Revised Penal Code, and Section 3 (e)
of R.A. No. 3019against Meinrado Bello and Atty. Manuel Satuito. However, it
was likewise recommended that the complaint against petitioner be dismissed,
without prejudice to a thorough fact-finding investigation on his liability in light of
this Court's ruling in Arias v. Sandiganbayan. 5
The Ombudsman did not act on this recommendation. Instead, another panel of
prosecutors was directed to review the Joint Resolution and conduct a thorough

investigation of the case. After conducting clarificatory hearings, the investigating

panel issued a Memorandum 6 dated June 15, 2004, recommending to the
Ombudsman that petitioner be charged with 148 counts of estafa through
falsification of public documents, and one count violation of Section 3(e) of R.A.
No. 3019. Petitioner's allegation that he merely relied on the legal staff of the
AFP-RSBS when he signed the unregistered bilateral deeds of sale was
considered untenable. The panel declared that the deeds were used purposely to
facilitate the payment of amounts in excess of that paid to the landowners.
Moreover, petitioner, as AFP-RSBS president, could not claim that he was merely
involved in top- level policy implementation.
The Memorandum also stated that the AFP-RSBS had an Investment Committee
tasked to screen project proposals, which was headed by petitioner, Oscar
Martinez and other AFP-RSBS officers; these potential investments were then
elevated for further screening and approval to the Executive Committee, of which
petitioner and Martinez were also members. The panel found that petitioner knew
of the unilateral deeds of sale, considering that they were duly registered with the
Register of Deeds and titles were issued on the basis thereof. The investigating
panel clarified that the ruling of this Court in Arias does not apply because
petitioner's participation consisted of signing and approving documents prepared
by his subordinates relative to the transactions, from the time of conceptualization
until payment by AFP-RSBS.
The panel further found that the culpability of petitioner, Quilicot, Bello and
Satuito is evidenced by the fact that they signed documents in manifest bad faith,
with full knowledge of the anomalous transactions. The bilateral deeds of
absolute sale were prepared by the Legal Department of AFP-RSBS where Bello
and Satuito were assigned, later enabling them to amass enormous profits. The
investigating panel "confirmed" the observations of the Senate Blue Ribbon
Committee as follows:
We have also noted that in all the 148 transactions of lot acquisition, the
Bilateral Deeds of Sale never bore the marks/annotations of the Bureau
of Internal Revenue and the Register of Deeds of Tanauan, Batangas, as
would always appear, if they were used as basis for transfer of title.
These Bilateral Deeds of Sale were attached to the payment vouchers to

justify the payment of the much higher price considerations of the

acquired lots, yet, no one of the respondents and the concerned AFPRSBS officials and employees questioned the fact that the Bilateral
Deeds of Sale never bore the marks and annotations of the Bureau of
Internal Revenue indicative that the proper taxes have been paid nor that
of the Register of Deeds of Tanauan, Batangas particularly the assigned
Entry Number and the date of said entry as reflected in its Primary Entry
Book.
From the concerted silence and inaction of the respondents on the
glaring irregularities attendant to the transaction, we can draw the
conclusion that these officers of the AFP-RSBS who passed upon the
Disbursement Voucher and the Status Transaction Forms were aware of
the forgeries and the result thereof. All the respondents were acting
under a common design and purpose to give a semblance of regularity
to the acquisition of the subject one hundred forty eight (148) lots at a
price very much higher than what was actually paid to the individual lot
owners. The element of conspiracy was therefore present. 7

The panel opined that the AFP-RSBS funds used to purchase the parcels of land
were trust funds and for administration purposes. 8 Moreover, Presidential Decree
(P.D.) No. 361, the charter of the AFP-RSBS, intended to create a trust fund for
the specific purpose of benefiting the members of the armed forces, hence
contributions thereto were compulsory. Since soldiers and military personnel rely
on the administration of the AFP-RSBS for their retirement, pension and
separation benefits, petitioner and his co-officers occupy positions of trust, with
obligations and responsibilities akin to those imposed on directors and officers of
a corporation; and considering that the responsible officers are not mere directors
but trustees, there is all the more reason to apply the fiduciary relationship
principle in this case.
The Ombudsman approved the recommendation of the Panel of Prosecutors
without prejudice to the liability of the landowners involved in the transactions.

Petitioner and his co-accused filed their respective Motions for Reconsideration
of the investigating panel's June 15, 2004 Memorandum. Petitioner alleged the
following:
1. RESPONDENT RAMISCAL'S PARTICIPATION IN THE SUBJECT
SALE TRANSACTIONS, WHICH WERE DULY APPROVED BY
THE RSBS BOARD, WAS PURELY MINISTERIAL AS PART OF
HIS LIMITED FUNCTIONS AS PRESIDENT OF RSBS.
2. THE CONSPIRACY THEORY LINKING RESPONDENT RAMISCAL
TO THE CHARGES IS DEVOID OF FACTUAL AND/OR LEGAL
BASIS. IN FACT, THE MEMORANDUM FAILED TO SHOW, AS
THERE IS NONE (SIC) ANY OVERT ACT OF CONSPIRACY
COMMITTED BY RESPONDENT RAMISCAL.
3. IN ANY EVENT, THE CHARGES OF FALSIFICATION BASED ON
THE BILATERAL DEEDS HAVE NO LEGAL LEG TO STAND ON
AS AGAINST RESPONDENT RAMISCAL.
4. MORE THAN THAT, THE CHARGES OF ESTAFA AND VIOLATION
OF SECTION 3(E) R.A. 3019 HAVE NO FACTUAL AND/OR
LEGAL BASES INASMUCH AS THE AMOUNTS PAID BY AFPRSBS TO THE VENDORS ARE THOSE THAT WERE
INDICATED IN THE BILATERAL DEEDS OF SALE, HENCE, NO
UNWARRANTED BENEFITS WERE AFFORDED THE SELLERS
NOR DID THE [AFP-RSBS] AND THE GOVERNMENT SUFFER
UNDUE INJURY INCIDENT THERETO. 9

On September 27, 2004, the Panel of Prosecutors issued a Memorandum 10 to

the Ombudsman recommending that the motion be denied, which the latter duly
approved.
Thereafter, the panel of Prosecutors and the Special Prosecutors had a series of
meetings with the Ombudsman, where it was agreed upon that only five
Informations for estafa through falsification of public documents and five
Informations for violation of Section 3(e) of R.A. No. 3019 would be initially filed
with the Sandiganbayan instead of the 148 counts previously recommended by
the Ombudsman. This was due to the lack of prosecutors who would handle the
voluminous cases. 11

Of the Informations filed, two were raffled to the Fourth Division of the
Sandiganbayan, one of which was docketed as Criminal Case No. 28022 for
violation of Section 3(e) of R.A. No. 3019. The accusatory portion reads:
That on April 23, 1997 and sometime prior or subsequent thereto, in the
Province of Batangas and Quezon City, Philippines, and within the
jurisdiction of this Honorable Court, the abovenamed accused public
officers, namely: Brigadier General Jose Servando Ramiscal, Jr., a
high-ranking public official, being then the President of the Armed Forces
of the Philippines-Retirement, Separation and Benefit System (AFPRSBS); Atty. Meinrado Enrique A. Bello, Head of Legal Division;Atty.
Manuel Se Satuito, Chief of Documentation, Legal Division; Captain
Perfecto O. Quilicot, Jr., Project Officer, and certain John and John
Does, also of the AFP-RSBS, a government entity, being a government
owned or controlled corporation, while in the performance of their official
functions and committing the offense in relation to their office, acting with
evident bad faith, conspiring, confederating and mutually helping one
another, with private individuals John Does and Jane Does, did then
and there willfully, unlawfully and criminally cause undue injury to AFPRSBS and its members by purchasing a parcel of land covering an area
of seven thousand five hundred eighty-two square meters (7,582 sq. m.),
more or less, situated at Tanauan, Batangas, registered in the name of
Marianito V. Plaza, Glicerio V. Plaza and Petra Maunahan and covered
by OCT-11835 and TCT 65973 of the Registry of Deeds of Tanauan,
Batangas, under a bilateral Deed of Absoute Sale dated April 23, 1997,
making it appear therein that the afore-described real property was sold
by the said owners and purchased by the AFP-RSBS, represented by
accused BGen. Jose Servando Ramiscal, Jr., for the amount of ONE
MILLION FIVE HUNDRED THIRTY-ONE THOUSAND FIVE HUNDRED
SIXTY-FOUR PESOS (P1,531,564.00), Philippine Currency, paid under
AFP-RSBS General Voucher No. 61789 dated May 28, 1997 with
corresponding Philippine National Bank Check No. 72789 dated June 3,
1997, when in truth and in fact, accused knew fully well that the true and
real consideration thereof is only TWO HUNDRED TWENTY-SEVEN
THOUSAND FOUR HUNDRED SIXTY PESOS (P227,460.00),
Philippine Currency, as correctly indicated in a unilateral Deed of
Absolute Sale dated April 14, 1997 executed by the said owners, thereby

resulting to an overprice of ONE MILLION THREE HUNDRED FOUR

THOUSAND ONE HUNDRED FOUR PESOS (P1,304,104.00) to the
damage and prejudice of AFP-RSBS and its members.
CONTRARY TO LAW. 12

The other, for estafa thru falsification of public documents, was docketed as
Criminal Case No. 28023. The accusatory portion reads:
That on April 23, 1997 and sometime prior or subsequent thereto, in the
Province of Batangas and Quezon City, Philippines, and within the
jurisdiction of this Honorable Court, the abovenamed accused public
officers, namely: Brigadier General Jose Servando Ramiscal, Jr., a
high ranking public official, being then the President of the Armed Forces
of the Philippines-Retirement Separation and Benefit System (AFPRSBS); Atty. Meinrado Enrique A. Bello, Head of Legal Division; Atty.
Manuel Se Satuito, Chief of Documentation, Legal Division; Captain
Perfecto O. Quilicot, Jr., Project Officer, and certain John and Jane
Does, also of the AFP-RSBS, a government entity, being a government
owned or controlled corporation, while in the performance of their official
functions and committing the offense in relation to their office, acting with
unfaithfulness and abuse of confidence, conspiring, confederating and
mutually helping one another, with private individuals John
Does andJane Does, and with intent to defraud the AFP-RSBS and its
members, did then and there willfully, unlawfully and feloniously falsify or
cause to be falsified a bilateral Deed of Absolute Sale dated April 23,
1997 covering seven thousand five hundred eighty-two square meters
(7,582 sq. m.), more or less, of real property situated at Tanauan,
Batangas, registered in the name of Marianito V. Plaza, Glicerio V. Plaza
and Petra Maunahan and covered by OCT-11835 and TCT 65973 of the
Registry of Deeds of Tanauan, Batangas, by making it appear therein
that the aforedescribed real property was sold by the said owners and
purchased by the AFP-RSBS, represented by accused BGen. Jose
Servando Ramiscal, Jr., for the overpriced amount of ONE MILLION
FIVE HUNDRED THIRTY-ONE THOUSAND FIVE HUNDRED SIXTYFOUR PESOS (P1,531,564.00), Philippine Currency, from its funds held
by the accused AFP-RSBS officials in trust and for administration, when
in truth and in fact, accused knew fully well that the true and real

consideration thereof is only TWO HUNDRED TWENTY-SEVEN

THOUSAND FOUR HUNDRED SIXTY PESOS (P227,460.00),
Philippine Currency, as correctly indicated in a unilateral Deed of
Absolute Sale dated April 14, 1997 executed by the said owners, and
thereafter, to facilitate the payment of the said overpriced amount by the
AFP-RSBS, the accused used the said falsified bilateral Deed of
Absolute Sale as supporting document, among others, to the AFP-RSBS
General Voucher No. 61789 dated May 28, 1997, and relying on said
fraudulent acts, AFP-RSBS released the amount of ONE MILLION FIVE
HUNDRED THIRTY-ONE THOUSAND FIVE HUNDRED SIXTY-FOUR
PESOS (P1,531,564.00) by way of Philippine National Bank Check No.
72789 dated June 3, 1997, which amount included the overprice of ONE
MILLION THREE HUNDRED FOUR THOUSAND ONE HUNDRED
FOUR PESOS (P1,304,104.00) and which the accused subsequently
misappropriated and converted to their personal use and benefit, to the
damage and prejudice of the AFP-RSBS and its members.
CONTRARY TO LAW. 13

Raffled to the First Division of the anti-graft court were two other cases docketed
as Criminal Case No. 28026 14 for violation of Section 3(e) of R.A. 3019, and
Criminal Case No. 28027 15 for estafa through falsification of public documents.
Criminal Case No. 28028 16 for violation of Section 3(e), R.A. No. 3019 and
Criminal Case No. 28029 17 for estafa through falsification of public documents
were raffled to the Second Division, while Criminal Case No. 28021 18 for estafa
through falsification of public documents was raffled to the Third Division.
Criminal Case No. 28024 19 for violation of Section 3(e) of R.A. No. 3019 and
Criminal Case No. 28025 20 for estafa through falsification of public documents
were raffled to the Fifth Division.
Petitioner filed in the Fourth Division of the anti-graft court (in Criminal Case Nos.
28022 and 28023) an "Urgent Motion for Hearing to Determine Probable Cause
and Consolidate All Cases in One Information with Prayer to Defer Issuance of
An Arrest Warrant Pending Resolution Hereof." 21 The Sandiganbayan denied the
motion on January 17, 2005, holding that the judicial determination of probable
cause is not an adversarial proceeding but summary in nature. While it ordered
the issuance of warrants of arrest against the accused, it resolved to hold in

abeyance the resolution on the matter of consolidation of all the cases until after
it had acquired jurisdiction over their persons. 22 After petitioner posted bail for
his provisional release, the Sandiganbayan denied the motion for the
consolidation of the cases, considering that the other cases filed were pending in
its other divisions.
CIaASH

Petitioner filed a motion for reconsideration of the resolution and sought to have
the cases dismissed for lack of probable cause. 23 He alleged that, in finding
probable cause, the Sandiganbayan merely relied on the findings of the
Ombudsman and did not take into account the other affidavits on record. The
Sandiganbayan again denied the motion on February 22, 2005. 24
Undaunted, petitioner filed a Motion to Quash 25 in Criminal Cases Nos. 28022
and 28023 on the following grounds:
I. This Court has no jurisdiction over the offenses charged in both
Informations;
II. In Criminal Case No. 28023 (estafa through falsification), the facts
charged being an essential part of the continuing crime of Estafa
separately charged in Criminal Cases Nos. 28021, 28025, 28027
and 28029, pending in the 3rd, 1st, 5th and 2nd divisions,
respectively, only one Information must be filed for all these cases
including those covered by the OSP memorandum dated June 15,
2004; and,
III. In Criminal Case No. 20822 (violation of RA No. 3019), the said case
is abated by Criminal Case No. 20823 (Estafa through
falsification) because the very facts alleged in the former are also
the very facts alleged in the latter. 26

On June 2, 2005, the Sandiganbayan resolved to deny the motion, holding that
contrary to petitioner's claim, it had jurisdiction over the crimes
charged. 27 Petitioner filed a motion for reconsideration which was also denied on
August 17, 2005. 28 Petitioner then posted bail for his provisional liberty.
When arraigned on September 1, 2005, petitioner refused to enter a plea,
prompting the anti-graft court to enter a plea of not guilty in both cases. 29

On October 7, 2005, petitioner filed the instant petition for certiorari under Rule
65, praying that the said Resolution be nullified on the following grounds:
I. THE RESPONDENT COURT COMMITTED GRAVE ABUSE OF
DISCRETION AMOUNTING TO LACK AND/OR EXCESS OF
JURISDICTION IN SUSTAINING THE OMBUDSMAN'S FINDING OF
PROBABLE CAUSE FOR THE COMMISSION OF ONE HUNDRED
FORTY EIGHT (148) COUNTS OF ESTAFA THRU FALSIFICATION OF
PUBLIC DOCUMENT AND ANOTHER ONE HUNDRED FORTY EIGHT
(148) COUNTS OF VIOLATION OF REPUBLIC ACT NO. 3019 AND IN
NOT DISMISSING THE INFORMATIONS.
II. THE RESPONDENT COURT COMMITTED GRAVE ABUSE OF
DISCRETION AMOUNTING TO LACK AND/OR EXCESS OF
JURISDICTION IN NOT QUASHING THE INFORMATIONS AND IN
NOT DISMISSING THE CASES NOTWITHSTANDING THAT IT HAD NO
JURISDICTION OVER THE OFFENSE CHARGED IN THE
INFORMATION.
III. THE RESPONDENT COURT COMMITTED GRAVE ABUSE OF
DISCRETION AMOUNTING TO LACK AND/OR EXCESS OF
JURISDICTION IN NOT QUASHING THE INFORMATION IN CRIMINAL
CASE NO. 28023 (ESTAFA THROUGH FALSIFICATION),
NOTWITHSTANDING THAT THE FACTS CHARGED THEREIN WERE
AN ESSENTIAL PART OF ONE CONTINUING CRIME OF ESTAFA
SEPARATELY CHARGED IN CRIMINAL CASES NOS. 28021, 28025,
28027 AND 28029, PENDING IN THE THIRD, FIRST, FIFTH AND
SECOND DIVISIONS OF THE SANDIGANBAYAN, RESPECTIVELY,
CONSIDERING THAT BASED ON THE DOCUMENTS ADDUCED BY
THE PEOPLE AND FOR OBVIOUS WANT OF RELIABLE EVIDENCE,
ONLY ONE INFORMATION FOR ESTAFA SHOULD HAVE BEEN FILED
FOR ALL THESE CASES INCLUDING THE REMAINING ONE
HUNDRED FORTY THREE (143) COUNTS COVERED BY THE OSP
MEMORANDUM DATED JUNE 15, 2004, ANNEX T;
IV. THE RESPONDENT COURT COMMITTED GRAVE ABUSE OF
DISCRETION AMOUNTING TO LACK AND/OR EXCESS OF
JURISDICTION IN NOT QUASHING THE INFORMATION IN CRIMINAL
CASE NO. 20822 (VIOLATION OF RA NO. 3019) NOTWITHSTANDING

THAT THE SAID CASE WAS ABATED BY CRIMINAL CASE NO. 20823
(ESTAFA THROUGH FALSIFICATION) BECAUSE THE VERY FACTS
ALLEGED IN THE FORMER WERE ALSO THE VERY FACTS
ALLEGED IN THE LATTER, THUS VIOLATING THE RULE ON
DOUBLE JEOPARDY. 30

Petitioner insists that, in finding probable cause against him for estafa through
falsification of public document and violation of Section 3(e) of R.A. 3019, the
Sandiganbayan committed grave abuse of discretion amounting to lack of
jurisdiction, as it relied solely on the Memorandum of the investigation panel of
Ombudsman Prosecutors. He posits that it behooved the anti-graft court to
review the Ombudsman's findings and scrutinize the evidence, the affidavits on
record, including the transcript of stenographic notes. As gleaned from the Joint
Resolution dated March 30, 2001, the initial finding of the Ombudsman
Prosecutors was that there was no probable cause to charge him for the acts
complained of, in the light of the Court's ruling in the Arias case. He asserts that
there was no evidence of bad faith on his part relative to the deeds of sale
subject of the Informations filed against him. He insists that based on the Joint
Resolution, and even the report of the Senate Blue Ribbon Committee, he had no
part whatsoever in the commission of the crimes charged. The disparity of the
prices of the properties in the bilateral deeds of sale, vis--vis the unilateral
deeds of sale, do not support the finding of probable cause against him made by
the investigating panel of Ombudsman Prosecutors. Petitioner asserts that there
is no evidence on record that he conspired with the other accused in the
commission of the crimes charged.
ADcHES

Petitioner further posits that the Sandiganbayan likewise committed grave abuse
of its discretion when it found probable cause for the issuance of a warrant of
arrest against him instead of setting the case for hearing. He insists that the antigraft court failed to consider the other evidence on record and erred in relying
solely on the evaluation and resolution of the investigating panel of Prosecutors;
the fact that he posted bail bonds for his provisional liberty does not estop him
from raising the issue in his Motion to Quash.
Petitioner avers that the Sandiganbayan has no jurisdiction over the crimes
charged as provided in Section 4 of R.A. 8249. He insists that the AFP-RSBS is

not a government-owned or controlled corporation and that he does not fall under
Salary Grade 27 as required in Section 4 of the law, inasmuch as his position as
AFP-RSBS President is not even included under the Compensation and
Classification Act of 1989. Petitioner cites the ruling of this Court in Inding v.
Sandiganbayan 31 to support his claim.
Petitioner asserts that the charges filed against him constitute only one crime of
estafa through falsification of public document, in the nature of delito continuado,
or a series of repetition of the same acts arising from one and the same criminal
intent. He maintains that while there are 148 bilateral deeds of sale signed by him
and 145 unilateral deeds of sale signed by the sellers, it cannot thereby be
concluded that he is criminally liable for each deed executed. The number of
transactions purportedly entered into is not a gauge in ascertaining criminal intent
for the several transactions. The best test should be the presence of clear,
convincing and positive evidence showing distinct criminal intent for each sales
transaction, which in any event, is wanting in this case. Petitioner further alleges
that for multiple transactions to be considered as separate and distinct crimes,
there must be a series of acts with individual sellers such as (a) negotiations; (b)
discussion of the terms of the sale; (c) finalizing the terms thereof; and (d)
instruction to prepare payment and (e) actual payment. He points out that there is
no evidence that he and the other accused involved ever met with any of the
sellers. While he admits the possibility that he could have signed the bilateral
deeds of sale in one sitting, he insists that these documents were notarized
separately; there is even no evidence on record that the sellers of the property
transacted separately with him. He points out that the corporate officers of AFPRSBS, especially its President, do not personally deal with any of the sellers. The
bare fact that he executed the bilateral deeds of sale and that the project was
approved by the higher level of the management, cannot lead to the conclusion
that he took part in the implementation of the transactions.
Petitioner maintains that the Sandiganbayan committed grave abuse of discretion
amounting to lack of or excess of jurisdiction in filing the charges against him. He
insists that the delictual acts contained in the two Informations, Criminal Case
No. 28022 (for violation of R.A. 3019) and Criminal Case No. 28023 (for estafa
through falsification of public document), are one and the same; to charge him

under Section 3(e) of R.A. 3019 despite his indictment for estafa is to duplicate
the very same charge under another name, which under the principle of double
jeopardy, is proscribed. He further argues that while it is true that, in Section 3(e)
of R.A. 3019, the charge against him for said crime is "in addition" to his criminal
liability under the Revised Penal Code, the phrase connotes cumulativeness and
simultaneity of liability.
Petitioner points out that the panel of Ombudsman Prosecutors recommended
the filing of only one count of violation of Section 3(e) of R.A. No. 3019, but the
Ombudsman filed five (5) counts thereof.
The issues are the following: (1) whether the Ombudsman committed grave
abuse of discretion amounting to excess or lack of jurisdiction in finding probable
cause against petitioner for estafa through falsification of public document and for
violation of Section 3(e) of R.A. No. 3019; (2) whether the Sandiganbayan
committed grave abuse of discretion amounting to excess of jurisdiction in finding
probable cause against petitioner for the issuance of warrants for petitioner's
arrest without first conducting a hearing; (3) whether petitioner may be charged
and prosecuted for five (5) counts of estafa thru falsification of public documents;
and (4) whether petitioner may be prosecuted for both estafa through falsification
of a public document and violation of Section 3(e) of R.A. No. 3019 without
violating his right against double jeopardy.

The petition has no merit.

On the first issue, the rule is that as far as crimes cognizable by the
Sandiganbayan are concerned, the determination of probable cause during the
preliminary investigation, or reinvestigation for that matter, is a function that
belongs to the Office of the Ombudsman. The Ombudsman is empowered to
determine, in the exercise of his discretion, whether probable cause exists, and to
charge the person believed to have committed the crime as defined by law.
Whether or not the Ombudsman has correctly discharged his function, i.e.,
whether or not he has made a correct assessment of the evidence of probable
cause in a case, is a matter that the trial court may not be compelled to pass
upon.

As a rule, courts should not interfere with the Ombudsman's investigatory power,
exercised through the Ombudsman Prosecutors, and the authority to determine
the presence or absence of probable cause, 32 except when the finding is tainted
with grave abuse of discretion amounting to lack or excess of jurisdiction. In such
case, the aggrieved party may file a petition for certiorari under Rule 65 of the
Rules of Court. 33 Indeed, if the Ombudsman does not take essential facts into
consideration in the determination of probable cause, there is abuse of
discretion. 34 As we ruled in Mendoza-Arce v. Office of the Ombudsman
(Visayas), 35 a writ of certiorari may issue in any of the following instances:
1. When necessary to afford adequate protection to the constitutional
rights of the accused;
2. When necessary for the orderly administration of justice or to avoid
oppression or multiplicity of actions;
3. When there is a prejudicial question which is sub judice;
4. When the acts of the officer are without or in excess of authority;
5. Where the prosecution is under an invalid law, ordinance or regulation;
6. When double jeopardy is clearly apparent;
7. Where the court has no jurisdiction over the offense;
8. Where it is a case of persecution rather than prosecution;
9. Where the charges are manifestly false and motivated by the lust for
vengeance;
10. When there is clearly no prima facie case against the accused and a
motion to quash on that ground has been denied. 36

In this case, however, petitioner failed to establish that the Ombudsman

committed grave abuse of discretion amounting to excess or lack of jurisdiction in
finding probable cause to charge him with violation of Section 3(e) of R.A. No.
3019 and for estafa through falsification of a public document.
We are not convinced by petitioner's claim that there is no probable cause on
record for the filing of the Information against him. It bears stressing that probable
cause need not be based on clear and convincing evidence of guilt, neither on

evidence establishing guilt beyond reasonable doubt and definitely not on

evidence establishing absolute certainty of guilt. It implies probability of guilt and
requires more than bare suspicion but less than evidence which would justify
conviction. 37 The Ombudsman's finding of probable cause against petitioner is
buttressed by his encompassing and comprehensive resolution, independent of
the findings of the Senate Committees, as well as the documents appended to
the Informations. Petitioner's bare claim to the contrary cannot prevail over such
positive findings of the Ombudsman. In fine, the Ombudsman's finding of
probable cause prevails over petitioner's bare allegations of grave abuse of
discretion; that he was not involved in the step-by-step consummation of the
anomalous transaction; and that as President he was involved only in the top
level policy formulation and implementation.
It is true that in the Joint Resolution dated March 30, 2001, the Panel of
Ombudsman Prosecutors found no sufficient evidence that petitioner acted in bad
faith and that he merely relied on the recommendations of his subordinates.
However, after a thorough investigation, another panel of Ombudsman
Prosecutors found that, indeed, petitioner not merely relied on the
recommendations of his subordinates but likewise perpetrated overt acts, which,
along with those of the other accused, resulted in the consummation of the
crimes charged. Thus, as maintained by the respondents in their Comment on
the petition, petitioner signed documents, indicating his evident bad faith on the
highly anomalous transactions; petitioner was aware of the forgeries and
anomalies in the buying of the parcels of land, yet gave his conformity thereto,
causing grave injury to its members and to the public in general. Thus, it was also
found that petitioner, together with his cohorts, conspired to perpetuate clear
fraud on the government and the AFP-RSBS members by giving a semblance of
regularity to real estate acquisitions at bloated prices.
The fact alone that petitioner was aware, in each transaction, that the two (2)
deeds of sale contain contradictory costs for every acquisition, and that he failed
to rectify the same eloquently speak of his participation in the criminal
malevolence. He was a member of the Investment Committee of the AFP-RSBS,
which screened potential investments, that were thereafter subjected to further
screening and approval by the Executive Committee of which he was also a

member; hence, petitioner had full knowledge of the transactions, from the time
they were conceptualized until the properties were paid for. The records show
that the Tanauan, Batangas properties alone were overpriced by about 600%.
Thus, petitioner consented to the crimes charged by the following overt acts:
(1) Petitioner and his co-accused prepared or caused to be prepared two (2)
deeds of sale covering the same transactions: a deed of sale with the seller or
sellers as the sole signatory or signatories therein (unilateral deeds); and a deed
of sale with the seller or sellers and the buyer, AFP-RSBS, represented by
petitioner (bilateral deeds);
(2) The considerations in the unilateral deeds of sale and the bilateral deeds of
sale did not tally, notwithstanding the fact that they covered the same subject
matter and transaction, with the bilateral deeds of sale bearing a bloated price;
and,
(3) Of these two deeds, the unilateral deeds of sale bore the correct value given
to the seller(s) as evinced, among others, by the fact that the same were the
ones registered with the Registry of Deeds.
The bilateral deeds of sale could not possibly be the basis of the transfer of the
properties because the supporting bilateral deeds carried dates much later than
the date of issue of the titles, which were likewise not filed with the Bureau of
Internal Revenue (BIR) and the Registry of Deeds of Tanauan, Batangas. The
Court cannot supplant the findings of the Ombudsman that the unilateral deeds of
sale were prepared by the Legal Department of AFP-RSBS, in as much as both
the unilateral and bilateral deeds of sale have exactly the same print and form.
The residence certificate number of petitioner which is indicated in the bilateral
deeds of sale is likewise printed in the unilateral deeds. Petitioner's fraudulent
intent is further proven by the fact that the Status of Transaction Form (STF),
where the subject lots were endorsed for payment, bore his signature. The
unilateral deeds of sale resulted in the issuance of the titles, which were also the
supporting documents enumerated in the STF. In many instances, the bilateral
deeds of sale carry dates much later than the dates their corresponding titles
were issued.

Petitioner was likewise unable to establish his claim that the Sandiganbayan
committed grave abuse of discretion in finding probable cause for the issuance of
a warrant for his arrest. His bare claim that the Sandiganbayan merely relied on
the Memoranda of the Panel of Prosecutors to the Ombudsman and did not
scrutinize the evidence appended thereto is not supported by the records. In the
first place, the Sandiganbayan is presumed to have performed its duty as
provided in the Revised Rules of Criminal Procedure, which can likewise be
gleaned from its February 22, 2005 Resolution:
[1] While accused Ramiscal is correct in stating that this Court, in
determining the existence of probable cause for the issuance of the
warrant of arrest against the accused, had evaluated the resolution of the
Office of the Ombudsman and its supporting documents, he is, however,
wrong in presuming that such process failed to consider the evidence the
accused adduced during preliminary investigation. It should be noted
that the supporting documents submitted by the Office of the
Ombudsman to this Court included, among others, the counteraffidavits submitted by the accused at the preliminary investigation.
Parenthetically, there is no need, and the rules do not require this Court,
to enumerate in detail what were the supporting documents it considered
in determining the existence of probable cause for the issuance of the
warrant of arrest because the same are matters of record that the parties
can easily verify. 38

We agree with the Sandiganbayan's ruling that the Revised Rules of Criminal
Procedure do not require cases to be set for hearing to determine probable cause
for the issuance of a warrant for the arrest of the accused before any warrant may
be issued. Section 6, Rule 112 mandates the judge to personally evaluate the
resolution of the Prosecutor (in this case, the Ombudsman) and its supporting
evidence, and if he/she finds probable cause, a warrant of arrest or commitment
order may be issued within 10 days from the filing of the complaint or Information;
in case the Judge doubts the existence of probable cause, the prosecutor may be
ordered to present additional evidence within five (5) days from notice. The
provision reads in full:
SEC. 6. When warrant of arrest may issue. (a) By the Regional Trial
Court. Within ten (10) days from the filing of the complaint or

information, the judge shall personally evaluate the resolution of the

prosecutor and its supporting evidence. He may immediately dismiss the
case if the evidence on record clearly fails to establish probable cause. If
he finds probable cause, he shall issue a warrant of arrest, or a
commitment order if the accused has already been arrested pursuant to
a warrant issued by the judge who conducted the preliminary
investigation or when the complaint or information was filed pursuant to
section 7 of this Rule. In case of doubt on the existence of probable
cause, the judge may order the prosecutor to present additional
evidence within five (5) days from notice and the issue must be resolved
by the court within thirty (30) days from the filing of the complaint of
information. 39

The periods provided in the Revised Rules of Criminal Procedure are mandatory,
and as such, the judge must determine the presence or absence of probable
cause within such periods. The Sandiganbayan's determination of probable
cause is made ex parte and is summary in nature, not adversarial. The Judge
should not be stymied and distracted from his determination of probable cause by
needless motions for determination of probable cause filed by the accused.
HDTcEI

We hold that petitioner likewise failed to establish his claim that the
Sandiganbayan committed a grave abuse of authority in denying his motion to
quash the Information.
First. The anti-graft court correctly ruled that it has jurisdiction over the crimes
charged.
In People v. Sandiganbayan 40 and Ramiscal, Jr. v. Sandiganbayan, 41 this Court
ruled that the AFP-RSBS is a government-owned and controlled corporation, and
that its funds are in the nature of public funds. Under Section 4(a)(1)(g) of R.A.
No. 8249, the Sandiganbayan has exclusive jurisdiction over offenses committed
by presidents, directors, trustees or managers of government owned or controlled
corporations. 42 Under Section 4(b) of R.A. No. 8249, the Sandiganbayan has
exclusive jurisdiction over offenses committed by public officers and employees in
relation to their office, whether simple or complexed with other crimes. 43

As gleaned from the material averments of the Information in Criminal Case No.
28023, the charge against petitioner is estafa through falsification of public
document in the performance of his duties and in relation to his position as
president of the AFP-RSBS.
Second. On petitioner's claim that he should be charged with only one count of
estafa through falsification of public document instead of five (5) charges,
respondents counter that the criminal acts petitioner and his co-accused are not
continuous crimes. Respondents argue that a continuous crime may exist only if
there is only a single criminal intent and the commission of diverse acts is merely
a partial execution of said single criminal resolution. In the instant cases, the
requirement of singularity of criminal intent does not exist because there are as
many criminal intents as there are anomalous transactions, causing grave
damage to the government at each instance. There was no need for the accused
to perform another or other delictual acts to consummate the felony.
Respondents maintain that petitioner was motivated by separate intents as he
signed each document, all of which are criminal in character; hence, it is but
proper that corresponding Informations be filed against him for each and every
act of falsification committed.
The Sandiganbayan, for its part, sustained the contention of respondents and
ruled that the determination of (a) the charge/s and the person/s against whom
the charge is filed are addressed to the sound discretion of the Prosecutors
based on the facts before them; and (b) the crimes committed by petitioner are
separate, and not a single crime consisting of series of acts arising from a single
criminal resolution. Thus:
In the first place, the question of the number of criminal charges that
must be instituted against a criminal respondent (whether one count or
multiple counts of the same offense) is one addressed to the sound
discretion of the prosecution service. It is enough, as this Court has
already ruled, that the informations filed in these cases are based on
facts establishing probable cause for the offenses charged. This Court
will not compel the Office of the Ombudsman to file only one information
for Estafa through Falsification of Public Documents when its preliminary
investigation established the commission of several counts thereof as
such action on the part of this Court would constitute undue interference

with the Office of the Ombudsman's control over the prosecution of these
cases.
In the second place, this Court is not persuaded that what is involved in
these cases is a continuous crime, that is to say, a single crime
consisting of a series of acts arising from a single criminal resolution or
intent not susceptible of division, with each act in that series being
merely the partial execution of a single delict. On the contrary, the Court
is of the view that what is involved herein are several completed and
distinct purported criminal acts which should be prosecuted as multiple
counts of the same type of offense. Thus, as correctly perceived by the
prosecution, there are as many alleged offenses as there are alleged
anomalous transactions involved in these cases. 44

When required to comment on the motion of petitioner and his co-accused for a
consolidation of the charges filed against them before the Sandiganbayan, the
Special Prosecutor objected thereto, insisting that there were as many crimes
committed by the accused as there were sales contracts forged by them.
Indeed, the determination of what charges to file and who are to be charged are
matters addressed to the discretion of the Ombudsman, including the matter of
whether the crime perpetrated by petitioner and his co-accused under the
Informations pending in the Divisions of the Sandiganbayan constitute delito
continuado or classified as concurso de delitos; or involve separate crimes under
the category of concurso real delito involve factual issues. 45 Such factual issues
should be resolved after trial on the merits, and not in this case. The Court is
being tasked to determine whether the several sales contracts executed by
petitioner and his co-accused were set afoot or triggered by a single impulse and
operated by an uninterrupted force however long a time it may occupy, which,
however, is a matter best left to the determination of the trial court, in this case,
the Sandiganbayan. 46
Thus, the present petition for certiorari under Rule 65 of the Revised Rules of
Court is hardly the appropriate remedy and forum for petitioner to ventilate the
issues he has raised, as only jurisdictional issues can be resolved therein. As
eloquently expressed by Justice Florenz D. Regalado, speaking for this Court
in Iligan v. Court of Appeals: 47

If, as petitioners seem to apprehend, the adverse actions of two lower

courts could create a scenario of multiple prosecutions for the same
offense or, more candidly expressed, of double jeopardy, then this is
neither the procedural stage nor the proper occasion to pass upon that
possibility. For, squarely imputable to petitioners is the evident lack of
factual basis for and a grossly defective presentation of that issue for this
Court to rule thereon in this proceeding and at this time. 48

It must be stressed that our disposition of the matters in the present recourse will
not foreclose petitioner's right to ventilate the same in the Sandiganbayan, for as
declared in Iligan:
However, this observation would not foreclose relief to petitioners if at the
trial of this case the evidence presented and the developments therein
suffice to establish the supervening fact that indeed there could possibly
be a breach of the rule of double jeopardy. Under Section 8 of Rule 117,
they can still hereafter raise that defense of non bis in idem, provided
that they can lay the evidentiary bases therefor and refute from the
standpoint of substantive penal law what was earlier said on the nature
and the non-identity of the several crimes of Estafa involved which, to
repeat, we pronounced purely on the bases of existing records sans the
benefit of any evidentiary fact since none has been adduced. 49

On the last issue, we agree with the contention of respondents that the crimes
committed by public officers and employees in relation to their offices defined and
penalized under the Anti-Graft Law do not exclude prosecution for felonies
defined and penalized under the Revised Penal Code and vice versa. Section 3
of R.A. No. 3019 reads:
Section 3. Corrupt practices of public officers. In addition to acts or
omissions of public officers already penalized by existing law, the
following shall constitute corrupt practices of any public officer and are
hereby declared to be unlawful: . . . (Emphasis supplied)

It is clear then that one may be charged of violation of R.A. No. 3019 in addition
to a felony under the Revised Penal Code for the same delictual act, that is,
either concurrently or subsequent to being charged with a felony under the Code.

IN LIGHT OF ALL THE FOREGOING, the petition is DENIED. Costs against the
petitioner.
CAaSHI

SO ORDERED.
|||

(Ramiscal, Jr. v. Sandiganbayan, G.R. Nos. 169727-28, [August 18, 2006], 530

PHIL 773-802)

26
[G.R. No. 150185. May 27, 2004.]
TERESITA TANGHAL OKABE, petitioner, vs. HON. PEDRO DE
LEON GUTIERREZ, in his capacity as Presiding Judge of RTC,
Pasay City, Branch 119; PEOPLE OF THE PHILIPPINES; and
CECILIA MARUYAMA, respondents.
DECISION
CALLEJO, SR., J :
p

Before us is a petition for review on certiorari, under Rule 45 of the Rules of

Court, as amended, that part of the Decision 1 of the Court of Appeals in CA-G.R.
SP No. 60732 dismissing her petition for certiorari under Rule 65 of the Rules of
Court, as amended, for the nullification of the August 25 and 28, 2000 Orders of
the respondent judge in Criminal Case No. 00-0749.
The Antecedents
Cecilia Maruyama executed a fifteen-page affidavit-complaint 2 and filed the
same with the Office of the City Prosecutor of Pasay City, on December 29, 1999,
charging Lorna Tanghal and petitioner Teresita Tanghal Okabe, a.k.a. Shiela
Okabe, with estafa. In her affidavit, Maruyama alleged, inter alia, that on
December 11, 1998, she entrusted 11,410,000 with the peso equivalent of

P3,993,500 to the petitioner, who was engaged in the business of door-to-door

delivery from Japan to the Philippines. It was alleged that the petitioner failed to
deliver the money as agreed upon, and, at first, denied receiving the said amount
but later returned only US$1,000 through Lorna Tanghal.
During the preliminary investigation, the complainant, respondent Maruyama,
submitted the affidavit of her witnesses, namely, Hermogena Santiago, Wilma
Setsu and Marilette G. Izumiya and other documentary evidence. In her affidavit,
Setsu alleged that the money which was entrusted to the petitioner for delivery to
the Philippines belonged to her and her sister Annie Hashimoto, and their mother
Hermogena Sanchez-Quicho, who joined respondent Maruyama in her complaint
against petitioner Okabe and Tanghal. Respondent Maruyama, likewise,
submitted a reply 3 to the petitioners counter-affidavit. After the requisite
preliminary investigation, 2nd Assistant City Prosecutor Joselito J. Vibandor
came out with a resolution dated March 30, 2000, finding probable cause
for estafa against the petitioner. 4 Attached to the resolution, which was submitted
to the city prosecutor for approval, was the Information 5 against the petitioner
and Maruyama's affidavit-complaint. The city prosecutor approved the resolution
and the Information dated March 30, 2000 attached thereto. 6
On May 15, 2000, an Information against the petitioner was filed in the Regional
Trial Court of Pasay City, docketed as Criminal Case No. 00-0749. The case was
raffled to Branch 119 of the court presided by Judge Pedro de Leon
Gutierrez. 7 The accusatory portion of the Information reads:
That on or about December 12, 1998 in Pasay City, Metro Manila,
Philippines, and within the jurisdiction of this Honorable Court, the
above-named accused defrauded Cecilia Maruyama and Conchita
Quicho, complainant herein, in the following manner, to wit: said accused
received in trust from Cecilia Maruyama the amount of Japanese Yen
1141 (sic) with peso equivalent to P3,839,465.00 under obligation to
deliver the money to Conchita Quicho at the NAIA International Airport,
Pasay City, immediately upon accused arrival from Japan, but herein
accused once in possession of the same, did, then and there willfully,
unlawfully and feloniously misappropriate and convert to her own
personal benefit the said amount, and despite demands accused failed

and refused to do so, to the damage and prejudice of the complainants

in the aforesaid amount.
Contrary to law. 8

Appended to the Information was the affidavit-complaint of respondent Maruyama

and the resolution of Investigating Prosecutor Vibandor. On May 19, 2000, the
trial court issued a warrant for the arrest of the petitioner with a recommended
bond of P40,000. On June 15, 2000, the petitioner posted a personal bail bond in
the said amount, duly approved by Judge Demetrio B. Macapagal, the Presiding
Judge of Branch 79 of the RTC of Quezon City, who forthwith recalled the said
warrant. The approved personal bail bond of the petitioner was transmitted to the
RTC of Pasig City on June 21, 2000. Upon her request, the petitioner was
furnished with a certified copy of the Information, the resolution and the criminal
complaint which formed part of the records of the said case. The petitioner left
the Philippines for Japan on June 17, 2000 without the trial courts permission,
and returned to the Philippines on June 28, 2000. She left the Philippines anew
on July 1, 2000, and returned on July 12, 2000.
On July 14, 2000, the trial court issued an Order setting the petitioners
arraignment and pre-trial at 2:00 p.m. of July 16, 2000. On the same day, the
private prosecutor filed an urgent ex parte motion for the issuance of the hold
departure order, alleging as follows:
3. It has come to the knowledge of private complainant that there is an
impending marriage within the Philippines of either the son or daughter
of the above-named accused and that the above-named accused who
has businesses in Japan, and is presently in Japan will soon exit
Japan and enter the Philippines to precisely attend said wedding;
4. Given [a] the bail was fixed at merely P40,000.00 and [b] the
considerable financial capability of the accused, it is a foregone
conclusion that the above-named accused will, upon arrest, readily and
immediately post bond, and leave for Japan thereby frustrating and
rendering inutile the administration of criminal justice in our country. The
speed with which accused Teresita Sheila Tanghal Okabe can post bond
and leave for Japan effectively evading arraignment and plea thus

necessitates the immediate issuance of a Hold Departure Order even

before her arrival here in the Philippines; 9

The trial court issued an order on the same day, granting the motion of the private
prosecutor for the issuance of a hold departure order and ordering the
Commission on Immigration and Deportation (CID) to hold and prevent any
attempt on the part of the petitioner to depart from the Philippines. 10 For her
part, the petitioner filed on July 17, 2000 a verified motion for judicial
determination of probable cause and to defer proceedings/arraignment, alleging
that the only documents appended to the Information submitted by the
investigating prosecutor were respondent Maruyama's affidavit-complaint for
estafa and the resolution of the investigating prosecutor; the affidavits of the
witnesses of the complainant, the respondents counter-affidavit and the other
evidence adduced by the parties were not attached thereto. The petitioner further
alleged that the documents submitted by the investigating prosecutor were not
enough on which the trial court could base a finding of probable cause
for estafa against her. She further averred that conformably to the rulings of
this Court in Lim v. Felix 11 and Roberts, Jr. v. Court of Appeals, 12 it behooved
the investigating prosecutor to submit the following to the trial court to enable it to
determine the presence or absence of probable cause: (a) copies of the affidavits
of the witnesses of the complainant; (b) the counter-affidavit of Okabe and those
of her witnesses; (c) the transcripts of stenographic notes taken during the
preliminary investigation; and, (d) other documents presented during the said
investigation.
On July 19, 2000, the petitioner filed a Very Urgent Motion To Lift/Recall Hold
Departure Order dated July 17, 2000 and/or allow her to regularly travel to Japan
alleging, thus:
3. Accused is (sic) widow and the legitimate mother of three (3) children,
two (2) of whom are still minors, namely:
3.1. Okabe, Jeffrey - 18 years old born on 13 August 1981.
3.2. Okabe, Masatoshi - 14 years old and born on 16 October
1985, 3rd year High School student at Hoshikuki, Chiba City,
Matsugaoka, High School, residing at Chiba City, Chuo-Ku,
Yahagi-cho, 205, Telephone No. 043-224-5804.

3.3. Okabe, Tomoki - 13 years old and born on 13 March 1986,

2nd year High School student at Hoshikuki, Chiba City,
Matsugaoka, High School, residing at Chiba City, Chuo-Ku,
Yahagi-cho, 205, Telephone No. 043-224-5804.
3.4. The accused has to attend the Parents Teachers Association
(PTA) at the Hoshikuki High School where her two (2) minor sons
aforesaid are presently enrolled and studying because Okabe,
Masatoshi's graduation will take place on 26 July 2000.
3.5. The two (2) minor children of the accused absolutely depend
their support (basic necessities) for foods, clothings, medicines,
rentals, schooling and all other expenses for their survival to their
legitimate mother who is the accused herein.
3.6. The issuance of the hold departure order (HDO) will impair
the inherent custodial rights of the accused as the legitimate
mother over these two (2) minor children which is repugnant to
law.
ADaEIH

3.7. The issuance of the hold departure order (HDO) will unduly
restrict the accused to her custodial rights and visitation over her
aforesaid minor children who are permanently living in Japan.
3.8. The issuance of the hold departure order (HDO) will unduly
deprived (sic) these minor children to their right to obtain
education and survival.
4. Accused's only source of income and livelihood is door-to-door
delivery from Japan to the Philippines and vice versa which has been
taking place for a very long period of time and in the process she has
been constantly departing from the Philippines on a weekly basis and
arriving in Japan on the same frequency, as evidenced by xerox copies
of the pages of her Philippine Passports which are hereto attached as
Annexes A, A-1, A-2 up to A-30, respectively. To deprive her of this
only source of her livelihood to which the aforesaid two (2) minor children
are deriving their very survival in a foreign land will (sic) tantamount to
oppression rather than prosecution and depriving the said minor sons of
their right to live even before trial on the merits of this case that will (sic)
tantamount to the destruction of the future of these minor children. 13

The private prosecutor opposed the petitioners motions during the hearing on
July 21, 2000 which was also the date set for her arraignment. The hearing of the
motions as well as the arraignment was reset to 2:00 p.m. of July 26, 2000. On
the said date, the petitioner filed a manifestation objecting to her arraignment
prior to the resolution of her pending motions. She alleged that her arraignment
for the crime charged should not be made a condition for the granting of her
motion to recall the hold departure order issued against her. The arraignment of
the petitioner was again reset to 2:00 p.m. of August 28, 2000, pending the
resolution of her two motions. On August 25, 2000, the petitioner filed a motion
for the postponement of her arraignment alleging that, in case the trial court ruled
adversely thereon, she would refuse to enter a plea and seek relief from the
appellate court. The court denied the petitioners motions on the following
grounds:
(a) Based on its personal examination and consideration of the Information, the
affidavit-complaint of respondent Maruyama and the resolution of the
investigating prosecutor duly approved by the city prosecutor, the court found
probable cause for the petitioners arrest. Since the petitioners motion for a
determination of probable cause was made after the court had already found
probable cause and issued a warrant for the petitioners arrest, and after the
latter filed a personal bail bond for her provisional liberty, such motion was a
mere surplusage;
(b) When the petitioner posted a personal bail bond for her provisional liberty, she
thereby waived her right to question the courts finding of the existence of
probable cause for her arrest and submitted herself to the jurisdiction of the court,
more so when she filed the motion for the lifting of the hold departure order the
court issued, and the motion to defer the proceedings and her arraignment; and
(c) The hold departure order issued by the trial court was in accord with Supreme
Court Circular No. 39-97 dated June 19, 1997, as well as the ruling of this Court
inManotoc, Jr. v. Court of Appeals. 14
When the case was called for the petitioners arraignment at 2:00 p.m., on August
28, 2000, she refused to plead. 15 Her counsel advised her, in open court, not to

enter a plea and, with leave of court, left the courtroom. The court then entered a
not guilty plea for the petitioner. 16 It also issued an order, on the said date,
setting the pre-trial and initial presentation of the evidence of the prosecution at
8:30 a.m. of September 20, 2000. 17
The petitioner then filed with the Court of Appeals a petition for certiorari under
Rule 65 of the Rules of Court with a plea for a writ of preliminary injunction. The
case was docketed as CA-G.R. SP No. 60732. The petitioner ascribed the
following errors to the trial court:
I
RESPONDENT COURT GRAVELY ERRED WHEN IT ISSUED
WARRANT OF ARREST DESPITE OF (SIC) LACK OF PROBABLE
CAUSE
II
RESPONDENT COURT HAS VIOLATED THE RIGHT OF THE
PETITIONER TO DUE PROCESS
III
RESPONDENT COURT HAS ALREADY PRE-JUDGED THE
CONVICTION OF THE PETITIONER FOR ESTAFA
IV
RESPONDENT COURT HAS EXHIBITED ITS APPARENT PARTIALITY
TOWARDS THE PROSECUTION AND AGAINST THE PETITIONER
V
RESPONDENT COURT GRAVELY ERRED WHEN IT DENIES (SIC)
THE MOTION FOR JUDICIAL DETERMINATION OF PROBABLE
CAUSE PURSUANT TO THE DOCTRINE OF ROBERTS, JR.
VI
RESPONDENT COURT GRAVELY ERRED WHEN IT DENIES (SIC)
THE LIFTING/RECALL OF THE HDO AND/OR ALLOWING THE
PETITIONER TO TRAVEL TO JAPAN REGULARLY FOR
HUMANITARIAN CONSIDERATION

VII
RESPONDENT COURT COMMITTED GRAVE ABUSE OF
DISCRETION AMOUNTING TO LACK OF JURISDICTION WHEN IT
ISSUED THE QUESTIONED ORDERS. . . . 18

On January 31, 2001, the CA rendered a Decision 19 partially granting the

petition in that the assailed order of the trial court denying the petitioners motion
to lift/recall the hold departure order was set aside. However, the petitioners
motion for reconsideration of the trial courts decision was denied and her petition
for the nullification of the August 25, 2000 Order of the respondent judge was
dismissed. The CA ruled that by posting bail and praying for reliefs from the trial
court, the petitioner waived her right to assail the respondent judges finding of
the existence of probable cause. The appellate court cited the ruling of this Court
in Cojuangco, Jr. v. Sandiganbayan.20 Thus, the appellate court affirmed the
assailed order of the RTC, based on the respondent judges personal
examination of respondent Maruyama's affidavit-complaint, the resolution of the
investigating prosecutor and the Information approved by the city prosecutor, a
finding of probable cause was in order. However, the appellate court allowed the
petitioner to travel to Japan under the following conditions:
(1) That petitioner post a bond double the amount of her alleged
monetary liability under the Information filed against her, as
recommended by the Office of the Solicitor General;
(2) That petitioner inform respondent Court of each and all of her travel
itinerary prior to leaving the country;
(3) That petitioner make periodic reports with respondent Court;
(4) That petitioner furnish respondent Court with all the addresses of her
possible place of residence, both here and in Japan; and
(5) Such other reasonable conditions which respondent Court may deem
appropriate under the circumstances. 21

The appellate court did not resolve the issue of whether the trial court had
prejudged the case and was partial to the prosecution. The decretal portion of the
decision of the CA reads:

WHEREFORE, premises considered, the instant special civil action for

certiorari is hereby PARTIALLY GRANTED insofar as the denial of
petitioners Motion to Lift/Recall Hold Departure Order dated 14 July,
2000 and/or Allow the accused to Regularly Travel to Japan is
concerned. In all other respect, the same is hereby DENIED.
SO ORDERED. 22

On March 6, 2001, the petitioner filed a motion for a partial reconsideration of the
decision of the CA contending that the appellate court erred in applying the ruling
of this court in Cojuangco, Jr. v. Court of Appeals 23 instead of Section 26, Rule
114 of the Revised Rules on Criminal Procedure. The petitioner posited that the
said rule, which took effect on December 1, 2000, before the court rendered its
decision, had superseded the ruling of this Court in the Cojuangco case.
However, the appellate court held that Section 26, Rule 114 of the Revised Rules
on Criminal Procedure cannot be applied retroactively, because the petitioner had
posted bail on June 15, 2000 before the Revised Rules on Criminal Procedure
took effect.
Hence, the instant petition for review on certiorari for the reversal of the decision
and resolution of the CA and praying that after due proceedings, judgment be
rendered in her favor, thus:
WHEREFORE, it is respectfully prayed of this Honorable Supreme Court
that after due proceedings judgment be rendered in favor of the
petitioner and against the respondents as follows:
(a) GIVING DUE COURSE to the instant petition;
(b) ORDERING the REVERSAL and PARTIALLY SETTING
ASIDE of the Decision promulgated on 31 January 2001 (Annex
A hereof) of the Honorable Court of Appeals in CA-G.R. SP No.
60732 as well as its Resolution promulgated on 27 September
2001 (Annex B hereof);
(c) ORDERING the DISMISSAL of Crim. Case No. 00-0749 for
lack of probable cause;
(d) DECLARING the entire proceedings in Crim. Case No. 000749 as null and void;

(e) ORDERING the private respondents to pay the petitioners the

following amount:
(i) at least P1,000,000.00 as moral damages;
(ii) at least P1,000,000.00 as exemplary damages;
(iii) at least P500,000.00 as attorneys fees and for other
expenses of litigation.
(f) ORDERING the private respondent to pay the costs of this suit.
(g) Petitioner further prays for such other reliefs just and equitable
under the premises. 24

The petitioner asserts that the CA committed the following reversible errors:
I
THE HONORABLE COURT OF APPEALS MADE A REVERSIBLE
ERROR WHEN IT COMPLETELY DISREGARDED THE APPLICATION
OF SECTION 26, RULE 114 OF THE REVISED RULES ON CRIMINAL
PROCEDURE WHICH TOOK EFFECT ON 01 DECEMBER 2000
WHICH IS FAVORABLE TO THE PETITIONER/ACCUSED.
II
THE HONORABLE COURT OF APPEALS MADE A REVERSIBLE
ERROR IN RULING THAT WHATEVER INFIRMITY THERE WAS IN
THE ISSUANCE OF THE WARRANT OF ARREST, THE SAME WAS
CURED WHEN PETITIONER VOLUNTARILY SUBMITTED TO THE
RESPONDENT COURTS JURISDICTION WHEN SHE POSTED BAIL
AND FILED MOTIONS SEEKING AFFIRMATIVE RELIEF SUCH AS
MOTION TO LIFT/RECALL HOLD DEPARTURE ORDER AND TO
ALLOW PETITIONER TO TRAVEL REGULARLY TO JAPAN (Last
paragraph, Page 9 DECISION dated 31 January 2001).
III
THE HONORABLE COURT OF APPEALS MADE A REVERSIBLE
ERROR WHEN IT RELIED UPON THE RULING IN THE CASE OF
COJUANGCO, JR. VS. SANDIGANBAYAN, [300 SCRA 367 (1998)]

WHEN IN FACT SAID RULING IS NOW OBSOLETE AND NO LONGER

APPLICABLE.
IV
THE HONORABLE COURT OF APPEALS MADE A REVERSIBLE
ERROR IN RULING THAT RESPONDENT COURT COMPLIED WITH
THE CONSTITUTIONAL REQUIREMENTS ON THE ISSUANCE OF
WARRANT OF ARREST WITHOUT PROBABLE CAUSE, WHEN THE
RESPONDENT COURT MERELY RELIED ON [THE] (i) COMPLAINTAFFIDAVIT OF CECILIA MARUYAMA; (ii) RESOLUTION OF THE
INVESTIGATING PROSECUTOR; AND (iii) CRIMINAL INFORMATION.
V
THE HONORABLE COURT OF APPEALS MADE A REVERSIBLE
ERROR WHEN IT FAILED TO RULE ON THE PARTIALITY OF THE
RESPONDENT JUDGE IN HANDLING THE CASE BELOW WHICH IS
VIOLATIVE OF THE PETITIONERS RIGHT TO DUE PROCESS.
VI
THE FILING OF CRIM. CASE NO. 4297 (MTC, ANGAT, BULACAN)
FOR ESTAFA ENTITLED PEOPLE VS. SHEILA OKABE; CIVIL CASE
NO. 331-M-98 (RTC, MALOLOS, BULACAN) FOR SUM OF MONEY
WITH PRELIMINARY ATTACHMENT ENTITLED CONCHITA
SANCHEZ-QUICHO VS. SHEILA TERESITA TANGHAL OKABE; AND
CRIM. CASE NO. 00-07-19 (RTC, PASAY CITY, BRANCH 119)
ENTITLED PEOPLE VS. TERESITA TANGHAL OKABE CONSTITUTE
A VIOLATION OF THE RULE ON NON-FORUM SHOPPING. 25

By way of comment, the Office of the Solicitor General refuted the petitioners
assigned errors, contending as follows:
I
The Court of Appeals did not commit a reversible error in not applying
Section 26, Rule 114 of the Revised Rules on Criminal Procedure.
II

The Court of Appeals did not commit a reversible error in ruling that the
infirmity, if any, in the issuance by the respondent Judge of the warrant of
arrest against petitioner was cured when petitioner voluntarily submitted
to the trial courts jurisdiction when she posted bail and filed motions
seeking for affirmative reliefs from the trial court, such as the motion to
lift/recall Hold Departure Order (HDO) and to allow petitioner to travel
regularly to Japan.
III
The Court of Appeals did not commit a reversible error in applying the
ruling in the Cojuangco case.
IV
The Court of Appeals did not commit a reversible error in finding that
respondent Judge complied with the constitutional requirements on the
issuance of a warrant of arrest.
V
The Court of Appeals did not commit a reversible error when it did not
rule on the partiality of the respondent Judge in handling Criminal Case
No. 00-0749.
VI
The Honorable Court of Appeals did not commit a reversible error when
it did not rule on petitioners claim of forum shopping. 26

The Court shall resolve the assigned errors simultaneously as they are
interrelated.
The petitioner asserts that the respondent judge could not have determined the
existence of probable cause for her arrest solely on the resolution of the
investigating prosecutor and the undated affidavit-complaint of respondent
Maruyama. She posits that the respondent judge should have ordered the
investigating prosecutor to submit the affidavits of the witnesses of respondent
Maruyama and the latter's documentary evidence, as well as the counter-affidavit
of the petitioner and the transcripts of the stenographic notes, if any, taken during
the preliminary investigation. The petitioner adds that the respondent judge

should have personally reviewed the said documents, conformably to the rulings
of this Court in Lim v. Felix, 27 Roberts, Jr. v. Court of Appeals 28 and Ho v.
People, 29 before determining the presence or absence of probable cause. She
posits that the respondent judge acted with grave abuse of discretion amounting
to excess or lack of jurisdiction in denying her motion for a determination of
probable cause, and the alternative motion for a dismissal of the case against her
for lack of probable cause.
The petitioner further asserts that the appellate court erred in affirming the ruling
of the respondent judge that, by posting a personal bail bond for her provisional
liability and by filing several motions for relief, she thereby voluntarily submitted
herself to the jurisdiction of the trial court and waived her right to assail the
infirmities that infected the trial court's issuance of the warrant for her arrest. She
avers that the appellate courts reliance on the ruling of this Court in Cojuangco,
Jr. v. Sandiganbayan 30 is misplaced, and submits that the appellate court should
have applied Section 26, Rule 114 of the Revised Rules of Court retroactively, as
it rendered the ruling of this Court in the Cojuangco, Jr. case obsolete.
The Office of the Solicitor General, on the other hand, asserts that the
respondent judge did not commit any grave abuse of discretion when he found
probable cause against the petitioner for estafa, and thereafter issued a warrant
for her arrest. It argues that the respondent judge personally determined the
existence of probable cause independently of the certification of the investigating
prosecutor, and only after examining the Information, the resolution of the
investigating prosecutor, as well as the affidavit-complaint of the private
complainant. It asserts that such documents are sufficient on which to anchor a
finding of probable cause. It insists that the appellate court correctly applied the
ruling of this Court in the Cojuangco, Jr. v. Court of Appeals case, and that the
respondent judge complied with both the requirements of the constitution
and those set forth in the Rules of Court before issuing the said warrant. 31
We agree with the contention of the petitioner that the appellate court erred in not
applying Section 26, Rule 114 of the Revised Rules on Criminal
Procedure, viz:
TcSHaD

SEC. 26. Bail not a bar to objections on illegal arrest, lack of or irregular
preliminary investigation. An application for or admission to bail shall

not bar the accused from challenging the validity of his arrest or the
legality of the warrant issued therefor, or from assailing the regularity or
questioning the absence of a preliminary investigation of the charge
against him, provided that he raises them before entering his plea. The
court shall resolve the matter as early as practicable but not later than
the start of the trial of the case.

It bears stressing that Section 26, Rule 114 of the Revised Rules on Criminal
Procedure is a new one, intended to modify previous rulings of this Court that an
application for bail or the admission to bail by the accused shall be considered as
a waiver of his right to assail the warrant issued for his arrest on the legalities or
irregularities thereon. 32 The new rule has reverted to the ruling of this Court in
People v. Red. 33 The new rule is curative in nature because precisely, it was
designed to supply defects and curb evils in procedural rules. Hence, the rules
governing curative statutes are applicable. Curative statutes are by their essence
retroactive in application. 34Besides, procedural rules as a general rule operate
retroactively, even without express provisions to that effect, to cases pending at
the time of their effectivity, in other words to actions yet undetermined at the time
of their effectivity. 35 Before the appellate court rendered its decision on January
31, 2001, the Revised Rules on Criminal Procedure was already in effect. It
behooved the appellate court to have applied the same in resolving the
petitioners petition for certiorari and her motion for partial reconsideration.
Moreover, considering the conduct of the petitioner after posting her personal bail
bond, it cannot be argued that she waived her right to question the finding of
probable cause and to assail the warrant of arrest issued against her by the
respondent judge. There must be clear and convincing proof that the petitioner
had an actual intention to relinquish her right to question the existence of
probable cause. 36 When the only proof of intention rests on what a party does,
his act should be so manifestly consistent with, and indicative of, an intent to
voluntarily and unequivocally relinquish the particular right that no other
explanation of his conduct is possible. 37 In this case, the records show that a
warrant was issued by the respondent judge in Pasay City for the arrest of the
petitioner, a resident of Guiguinto, Bulacan. When the petitioner learned of the
issuance of the said warrant, she posted a personal bail bond to avert her arrest
and secure her provisional liberty. Judge Demetrio B. Macapagal of the RTC of

Quezon City approved the bond and issued an order recalling the warrant of
arrest against the petitioner. Thus, the posting of a personal bail bond was a
matter of imperative necessity to avert her incarceration; it should not be deemed
as a waiver of her right to assail her arrest. So this Court ruled in People v.
Red: 38
. . . The present defendants were arrested towards the end of January,
1929, on the Island and Province of Marinduque by order of the judge of
the Court of First Instance of Lucena, Tayabas, at a time when there
were no court sessions being held in Marinduque. In view of these
circumstances and the number of the accused, it may properly be held
that the furnishing of the bond was prompted by the sheer necessity of
not remaining in detention, and in no way implied their waiver of any
right, such as the summary examination of the case before their
detention. That they had no intention of waiving this right is clear from
their motion of January 23, 1929, the same day on which they furnished
a bond, and the fact that they renewed this petition on February 23,
1929, praying for the stay of their arrest for lack of the summary
examination; the first motion being denied by the court on January 24,
1929 (G.R. No. 33708, page 8), and the second remaining undecided,
but with an order to have it presented in Boac, Marinduque.
Therefore, the defendants herein cannot be said to have waived the right
granted to them by section 13, General Order No. 58, as amended
by Act No. 3042. 39

Moreover, the next day, or on June 16, 2000, the petitioner, through counsel,
received certified true copies of the Information, the resolution of the investigating
prosecutor, the affidavit-complaint of the private complainant, respondent
Maruyama, and a certification from the branch clerk of court that only the
Information, resolution and affidavit-complaint formed part of the entire records of
the case. The next day, June 17, 2000, the petitioner, through counsel, filed a
verified motion for judicial determination of probable cause and to defer the
proceedings and her arraignment. All the foregoing are inconsistent with a waiver
of her right to assail the validity of her arrest and to question the respondent
judges determination of the existence of probable cause for her arrest.

Neither can the petitioners filing of a motion for the lifting of the hold departure
order and for leave to go to Japan be considered a waiver of her right to assail
the validity of the arrest warrant issued by the respondent judge. It bears
stressing that when the petitioner filed the motion to lift the hold departure order
issued against her by the respondent judge, her motion for a determination of
probable cause was still unresolved. She sought a lifting of the hold departure
order on July 14, 2000 and filed a motion for leave to go to Japan, to give the
respondent judge an opportunity to reconsider the said order, preparatory to
assailing the same in the appellate court in case her motion was denied.

The issue that now comes to fore is whether or not the respondent judge
committed a grave abuse of his discretion amounting to excess or lack of
jurisdiction in issuing his August 25, 2000 Order. By grave abuse of discretion is
meant such patent and gross abuse of discretion as to amount to an evasion of
positive duty or a virtual refusal to perform a duty enjoined by law, or to act at all
in contemplation of law, as where the power is exercised in an arbitrary and
despotic manner by reasons of passion or personal hostility. 40 Hence, when the
court has jurisdiction over the case, its questioned acts, even if its findings are
not correct, would at most constitute errors of law and not abuse of discretion
correctible by the extraordinary remedy of certiorari. 41
We agree with the petitioner that before the RTC judge issues a warrant of arrest
under Section 6, Rule 112 of the Rules of Court 42 in relation to Section 2, Article
III of the 1987 Constitution, the judge must make a personal determination of the
existence or non-existence of probable cause for the arrest of the accused. The
duty to make such determination is personal and exclusive to the issuing judge.
He cannot abdicate his duty and rely on the certification of the investigating
prosecutor that he had conducted a preliminary investigation in accordance with
law and the Rules of Court, as amended, and found probable cause for the filing
of the Information.
Under Section 1, Rule 112 of the Rules on Criminal Procedure, the investigating
prosecutor, in conducting a preliminary investigation of a case cognizable by the
RTC, is tasked to determine whether there is sufficient ground to engender a well-

founded belief that a crime has been committed and the respondent therein is
probably guilty thereof and should be held for trial. A preliminary investigation is
for the purpose of securing the innocent against hasty, malicious and oppressive
prosecution, and to protect him from an open and public accusation of a crime,
from the trouble, expense and anxiety of a public trial. 43
If the investigating prosecutor finds probable cause for the filing of the Information
against the respondent, he executes a certification at the bottom of the
Information that from the evidence presented, there is a reasonable ground to
believe that the offense charged has been committed and that the accused is
probably guilty thereof. Such certification of the investigating prosecutor is, by
itself, ineffective. It is not binding on the trial court. Nor may the RTC rely on the
said certification as basis for a finding of the existence of probable cause for the
arrest of the accused. 44
In contrast, the task of the presiding judge when the Information is filed with the
court is first and foremost to determine the existence or non-existence of
probable cause for the arrest of the accused. Probable cause is meant such set
of facts and circumstances which would lead a reasonably discreet and prudent
man to believe that the offense charged in the Information or any offense
included therein has been committed by the person sought to be arrested. 45 In
determining probable cause, the average man weighs facts and circumstances
without resorting to the calibrations of the rules of evidence of which he has no
technical knowledge. He relies on common sense. 46 A finding of probable cause
needs only to rest on evidence showing that more likely than not a crime has
been committed and that it was committed by the accused. Probable cause
demands more than bare suspicion, it requires less than evidence which would
justify conviction. 47
The purpose of the mandate of the judge to first determine probable cause for the
arrest of the accused is to insulate from the very start those falsely charged of
crimes from the tribulations, expenses and anxiety of a public trial:
It must be stressed, however, that in these exceptional cases, the Court
took the extraordinary step of annulling findings of probable cause either
to prevent the misuse of the strong arm of the law or to protect the
orderly administration of justice. The constitutional duty of this Court in

criminal litigations is not only to acquit the innocent after trial but to
insulate, from the start, the innocent from unfounded charges. For the
Court is aware of the strains of a criminal accusation and the stresses of
litigation which should not be suffered by the clearly innocent. The filing
of an unfounded criminal information in court exposes the innocent to
severe distress especially when the crime is not bailable. Even an
acquittal of the innocent will not fully bleach the dark and deep stains left
by a baseless accusation for reputation once tarnished remains
tarnished for a long length of time. The expense to establish innocence
may also be prohibitive and can be more punishing especially to the poor
and the powerless. Innocence ought to be enough and the business of
this Court is to shield the innocent from senseless suits right from the
start. 48

In determining the existence or non-existence of probable cause for the arrest of

the accused, the RTC judge may rely on the findings and conclusions in the
resolution of the investigating prosecutor finding probable cause for the filing of
the Information. After all, as the Court held in Webb v. De Leon, 49 the judge just
personally reviews the initial determination of the investigating prosecutor finding
a probable cause to see if it is supported by substantial evidence. 50 However, in
determining the existence or non-existence of probable cause for the arrest of the
accused, the judge should not rely solely on the said report. 51 The judge should
consider not only the report of the investigating prosecutor but also the
affidavit/affidavits and the documentary evidence of the parties, the counteraffidavit of the accused and his witnesses, as well as the transcript of
stenographic notes taken during the preliminary investigation, if any, submitted to
the court by the investigating prosecutor upon the filing of the
Information. 52 Indeed, in Ho v. People, 53 this Court held that:
Lastly, it is not required that the complete or entire records of the case
during the preliminary investigation be submitted to and examined by the
judge. We do not intend to unduly burden trial courts by obliging them to
examine the complete records of every case all the time simply for the
purpose of ordering the arrest of an accused. What is required, rather, is
that the judge must have sufficient supporting documents (such as the
complaint, affidavits, counter-affidavits, sworn statements of witnesses or
transcripts of stenographic notes, if any) upon which to make his

independent judgment or, at the very least, upon which to verify the
findings of the prosecutor as to the existence of probable cause. The
point is: he cannot rely solely and entirely on the prosecutors
recommendation, as Respondent Court did in this case. Although the
prosecutor enjoys the legal presumption of regularity in the performance
of his official duties and functions, which in turn gives his report the
presumption of accuracy, the Constitution, we repeat, commands the
judge to personally determine probable cause in the issuance of
warrants of arrest. This Court has consistently held that a judge fails in
his bounden duty if he relies merely on the certification or the report of
the investigating officer. 54

The rulings of this Court are now embedded in Section 8(a), Rule 112 of the
Revised Rules on Criminal Procedure which provides that an Information or
complaint filed in court shall be supported by the affidavits and counter-affidavits
of the parties and their witnesses, together with the other supporting evidence of
the resolution:
SEC. 8. Records. (a) Records supporting the information or
complaint. An information or complaint filed in court shall be supported
by the affidavits and counter-affidavits of the parties and their witnesses,
together with the other supporting evidence and the resolution on the
case.

If the judge is able to determine the existence or non-existence of probable cause

on the basis of the records submitted by the investigating prosecutor, there would
no longer be a need to order the elevation of the rest of the records of the case.
However, if the judge finds the records and/or evidence submitted by the
investigating prosecutor to be insufficient, he may order the dismissal of the case,
or direct the investigating prosecutor either to submit more evidence or to submit
the entire records of the preliminary investigation, to enable him to discharge his
duty. 55 The judge may even call the complainant and his witness to themselves
answer the courts probing questions to determine the existence of probable
cause. 56 The rulings of this Court in Soliven v. Makasiar 57 and Lim v. Felix 58 are
now embodied in Section 6, Rule 112 of the Revised Rules on Criminal
Procedure, with modifications, viz:

SEC. 6. When warrant of arrest may issue. (a) By the Regional Trial
Court. Within ten (10) days from the filing of the complaint or
information, the judge shall personally evaluate the resolution of the
prosecutor and its supporting evidence. He may immediately dismiss the
case if the evidence on record clearly fails to establish probable cause. If
he finds probable cause, he shall issue a warrant of arrest, or a
commitment order if the accused has already been arrested pursuant to
a warrant issued by the judge who conducted the preliminary
investigation or when the complaint or information was filed pursuant to
section 7 of this Rule. In case of doubt on the existence of probable
cause, the judge may order the prosecutor to present additional
evidence within five (5) days from notice and the issue must be resolved
by the court within thirty (30) days from the filing of the complaint of
information.

In this case, the investigating prosecutor submitted to the respondent judge only
his resolution after his preliminary investigation of the case and the affidavitcomplaint of the private complainant, and failed to include the affidavits of the
witnesses of the private complainant, and the latter's reply affidavit, the counteraffidavit of the petitioner, as well as the evidence adduced by the private
complainant as required by case law, and now by Section 8(a), Rule 112 of the
Revised Rules on Criminal Procedure. The aforecited affidavits, more specifically
the fax message of Lorna Tanghal and the document signed by her covering the
amount of US$1,000, are of vital importance, as they would enable the
respondent judge to properly determine the existence or non-existence of
probable cause.
First. When respondent Maruyama handed the money to the petitioner, she did
not require the latter to sign a document acknowledging receipt of the amount.
The petitioner avers that it is incredible that Maruyama would entrust P3,993,500
in Japanese Yen to her without even requiring her to sign a receipt therefor,
especially since respondent Maruyama was not even the owner of the money;
Second. The affidavit of Hermogena Santiago, a witness of the respondent, is
unreliable, because it is based on information relayed to her by Lorna Tanghal
that she (Tanghal) saw the petitioner carrying a Louis Vuitton bag while on board

a Mitsubishi L300 van with the petitioner. It appears that Tanghal failed to submit
any counter-affidavit to the investigating prosecutor;
Third. The affidavit of Marilette G. Izumiya, another witness of the respondent, is
also unreliable, as it was based on information relayed to her by Thelma
Barbiran, who used to work for the petitioner as a housemaid, that she (Barbiran)
had in her possession a fax message from Lorna Tanghal, implicating the
petitioner in the crime charged. Barbiran did not execute any affidavit;
Fourth. There is no indication in the resolution of the investigating prosecutor that
the petitioner received the fax message of Lorna Tanghal;
Fifth. The private complainant claims that the petitioner tried to reimburse the
P3,993,500 by remitting US$1,000 to her. However, the latter admitted in her
affidavit-complaint that the document evidencing the remittance was signed by
Lorna Tanghal, not by the petitioner. The petitioner claimed that Lorna Tanghal
had to remit US$1,000 to respondent Maruyama because the latter made it
appear to Tanghal that the police authorities were about to arrest the petitioner,
and Tanghal was impelled to give the amount to respondent Maruyama to avert
her arrest and incarceration;
Sixth. In her counter-affidavit, the petitioner alleged that respondent Maruyama
had no case against her because the crime charged in the latter's affidavitcomplaint was the same as that filed against her in the Metropolitan Trial Court of
Bulacan, which was withdrawn by the complainant herself;
Seventh. The investigating prosecutor stated in his resolution that the private
complainant established the element of deceit. However, the crime charged
against the petitioner as alleged in the Information is estafa with abuse of
confidence.
In sum, then, we find and so declare that the respondent judge committed a
grave abuse of his discretion amounting to excess or lack of jurisdiction in finding
probable cause for the petitioners arrest in the absence of copies of the affidavits
of the witnesses of the private complainant and her reply affidavit, the counteraffidavit of the petitioner, and the evidence adduced during the preliminary
investigation before the investigating prosecutor.

In view of the foregoing disquisitions, there is no more need to resolve the other
issues raised by the petitioner.
IN LIGHT OF ALL THE FOREGOING, the petition is GRANTED. The assailed
decision of the Court of Appeals is REVERSED and SET ASIDE. The assailed
Orders dated August 25 and 28, 2000 and the Warrant of Arrest issued by the
respondent judge in Criminal Case No. 00-0749 are SET ASIDE. The records are
REMANDED to the Regional Trial Court of Pasay City, Branch 119. The
respondent judge is hereby DIRECTED to determine the existence or nonexistence of probable cause for the arrest of the petitioner based on the complete
records, as required under Section 8(a), Rule 112 of the Revised Rules on
Criminal Procedure.
acCITS

SO ORDERED.
|||

(Okabe v. Gutierrez, G.R. No. 150185, [May 27, 2004], 473 PHIL 758-786)

27
[G.R. No. 182677. August 3, 2010.]
2:45 P.M.
JOSE ANTONIO C. LEVISTE, petitioner, vs. HON. ELMO M.
ALAMEDA, HON. RAUL M. GONZALEZ, HON. EMMANUEL Y.
VELASCO, HEIRS OF THE LATE RAFAEL DE LAS
ALAS, respondents.
DECISION
CARPIO MORALES, J :
p

Jose Antonio C. Leviste (petitioner) assails via the present petition for
review filed on May 30, 2008 the August 30, 2007 Decision 1 and the April 18,
2008 Resolution 2 of the Court of Appeals in CA-G.R. SP No. 97761 that

affirmed the trial court's Orders of January 24, 31, February 7, 8, all in 2007,
and denied the motion for reconsideration, respectively.
aHTEIA

Petitioner was, by Information 3 of January 16, 2007, charged

with homicide for the death of Rafael de las Alas on January 12, 2007 before
the Regional Trial Court (RTC) of Makati City. Branch 150 to which the case
was raffled, presided by Judge Elmo Alameda, forthwith issued a commitment
order 4 against petitioner who was placed under police custody while confined
at the Makati Medical Center. 5
After petitioner posted a P40,000 cash bond which the trial court
approved, 6 he was released from detention, and his arraignment was set on
January 24, 2007.
The private complainants-heirs of De las Alas filed, with the conformity
of the public prosecutor, an Urgent Omnibus Motion 7 praying, inter alia, for
the deferment of the proceedings to allow the public prosecutor to re-examine
the evidence on record or to conduct a reinvestigation to determine the proper
offense.
The RTC thereafter issued the (1) Order of January 24, 2007 8 deferring
petitioner's arraignment and allowing the prosecution to conduct a
reinvestigation to determine the proper offense and submit a recommendation
within 30 days from its inception, inter alia; and (2) Order of January 31,
2007 9 denying reconsideration of the first order. Petitioner assailed these
orders via certiorari and prohibition before the Court of Appeals.
Meantime, petitioner filed an Urgent Ex-Parte Manifestation and Motion
before the trial court to defer acting on the public prosecutor's
recommendation on the proper offense until after the appellate court resolves
his application for injunctive reliefs, or alternatively, to grant him time to
comment on the prosecutor's recommendation and thereafter set a hearing for
the judicial determination of probable cause. 10 Petitioner also separately
moved for the inhibition of Judge Alameda with prayer to defer action on the
admission of the Amended Information. 11
acIHDA

The trial court nonetheless issued the other assailed orders, viz.:
(1) Order of February 7, 2007 12 that admitted the Amended

Information 13 for murder and directed the issuance of a warrant of arrest; and
(2) Order of February 8, 2007 14 which set the arraignment on February 13,
2007. Petitioner questioned these two orders via supplemental petition before
the appellate court.
The appellate court dismissed petitioner's petition, hence, his present
petition, arguing that:
PRIVATE RESPONDENT DID NOT HAVE THE RIGHT TO CAUSE THE
REINVESTIGATION OF THE CRIMINAL CASE BELOW WHEN THE
CRIMINAL INFORMATION HAD ALREADY BEEN FILED WITH THE
LOWER COURT. HENCE, THE COURT OF APPEALS COMMITTED A
GRAVE ERROR IN FINDING THAT RESPONDENT JUDGE DID NOT
ACT WITH GRAVE ABUSE OF DISCRETION IN GRANTING SUCH
REINVESTIGATION DESPITE HAVING NO BASIS IN THE RULES OF
COURT[;]
RESPONDENT JUDGE ACTED WITH GRAVE ABUSE OF
DISCRETION IN ADMITTING STATE PROSECUTOR VELASCO'S
AMENDED INFORMATION, ISSUING A WARRANT OF ARREST, AND
SETTING THE CASE BELOW FOR ARRAIGNMENT, CONSIDERING
THAT THE VALIDITY AND LEGALITY OF HIS ORDERS DATED 24
AND 31 JANUARY 2007, WHICH LED TO THE QUESTIONABLE
REINVESTIGATION AND ILLEGAL AMENDED INFORMATION[,] ARE
YET TO BE RESOLVED BY THIS HONORABLE COURT (sic); [AND]
CONSIDERING THAT PROSECUTOR VELASCO'S FINDINGS IN HIS
RESOLUTION DATED 2 FEBRUARY 2007 ARE BLATANTLY BASED
ON MERE SPECULATIONS AND CONJECTURES, WITHOUT ANY
SUBSTANTIAL OR MATERIAL NEW EVIDENCE BEING ADDUCED
DURING THE REINVESTIGATION, RESPONDENT JUDGE SHOULD
HAVE AT LEAST ALLOWED PETITIONER'S MOTION FOR A HEARING
FOR
JUDICIAL
DETERMINATION
OF
PROBABLE
CAUSE. 15 (emphasis in the original omitted)

Records show that the arraignment scheduled on March 21, 2007

pushed through during which petitioner refused to plead, drawing the trial
court to enter a plea of "not guilty" for him.

Prior thereto or on February 23, 2007, petitioner filed an Urgent

Application for Admission to Bail Ex Abundanti Cautela 16 which the trial court,
after hearings thereon, granted by Order of May 21, 2007, 17 it finding that the
evidence of guilt for the crime of murder is not strong. It accordingly allowed
petitioner to post bail in the amount of P300,000 for his provisional liberty.
CHaDIT

The trial court, absent any writ of preliminary injunction from the
appellate court, went on to try petitioner under the Amended Information. By
Decision of January 14, 2009, the trial court found petitioner guilty of
homicide, sentencing him to suffer an indeterminate penalty of six years and
one day of prision mayor as minimum to 12 years and one day of reclusion
temporal as maximum. From the Decision, petitioner filed an appeal to the
appellate court, docketed as CA-G.R. CR No. 32159, during the pendency of
which he filed an urgent application for admission to bail pending appeal. The
appellate court denied petitioner's application which this Court, in G.R. No.
189122, affirmed by Decision of March 17, 2010.
The Office of the Solicitor General (OSG) later argued that the present
petition had been rendered moot since the presentation of evidence, wherein
petitioner actively participated, had been concluded. 18
Waiver on the part of the accused must be distinguished
from mootness of the petition, for in the present case, petitioner did not, by
his active participation in the trial, waive his stated objections.
Section 26, Rule 114 of the Rules of Court provides:
SEC. 26. Bail not a bar to objections on illegal arrest, lack of or irregular
preliminary investigation. An application for or admission to bail shall
not bar the accused from challenging the validity of his arrest or the
legality of the warrant issued therefor, or from assailing the regularity or
questioning the absence of a preliminary investigation of the charge
against him, provided that he raises them before entering his plea. The
court shall resolve the matter as early as practicable but not later than
the start of the trial of the case.

By applying for bail, petitioner did not waive his right to challenge the
regularity of the reinvestigation of the charge against him, the validity of the
admission of the Amended Information, and the legality of his arrest under the

Amended Information, as he vigorously raised them prior to his arraignment.

During the arraignment on March 21, 2007, petitioner refused to enter his plea
since the issues he raised were still pending resolution by the appellate court,
thus prompting the trial court to enter a plea of "not guilty" for him.
HcTIDC

The principle that the accused is precluded after arraignment from

questioning the illegal arrest or the lack of or irregular preliminary investigation
applies "only if he voluntarily enters his plea and participates during trial,
without previously invoking his objections thereto." 19 There must be clear and
convincing proofthat petitioner had an actual intention to relinquish his right to
question the existence of probable cause. When the only proof of intention
rests on what a party does, his act should be so manifestly consistent with,
and indicative of, an intent to voluntarily and unequivocally relinquish the
particular right that no other explanation of his conduct is possible. 20
From the given circumstances, the Court cannot reasonably infer a valid
waiver on the part of petitioner to preclude him from obtaining a definite
resolution of the objections he so timely invoked. Other than its allegation of
active participation, the OSG offered no clear and convincing proof that
petitioner's participation in the trial was unconditional with the intent to
voluntarily and unequivocally abandon his petition. In fact, on January 26,
2010, petitioner still moved for the early resolution of the present petition. 21
Whatever delay arising from petitioner's availment of remedies against
the trial court's Orders cannot be imputed to petitioner to operate as a valid
waiver on his part. Neither can the non-issuance of a writ of preliminary
injunction be deemed as a voluntary relinquishment of petitioner's principal
prayer. The non-issuance of such injunctive relief only means that the
appellate court did not preliminarily find any exception 22 to the long-standing
doctrine
that
injunction
will
not
lie
to
enjoin
a
criminal
prosecution. 23 Consequently, the trial of the case took its course.
The petition is now moot, however, in view of the trial court's rendition of
judgment.
A moot and academic case is one that ceases to present a justiciable
controversy by virtue of supervening events, so that a declaration thereon
would be of no practical use or value. 24
HTSAEa

The judgment convicting petitioner of homicide under the Amended

Information for murder operates as a supervening event that mooted the
present petition. Assuming that there is ground 25 to annul the finding of
probable cause for murder, there is no practical use or value in abrogating the
concluded proceedings and retrying the case under the original Information for
homicide just to arrive, more likely or even definitely, at the same conviction of
homicide. Mootness would have also set in had petitioner been convicted of
murder, for proof beyond reasonable doubt, which is much higher than
probable cause, would have been established in that instance.
Instead, however, of denying the petition outright on the ground of
mootness, the Court proceeds to resolve the legal issues in order to formulate
controlling principles to guide the bench, bar and public. 26 In the present
case,
there
is
compelling
reason
to
clarify
the
remedies
available before and after the filing of an information in cases subject of
inquest.
After going over into the substance of the petition and the assailed
issuances, the Court finds no reversible error on the part of the appellate court
in finding no grave abuse of discretion in the issuance of the four trial court
Orders.
In his first assignment of error, petitioner posits that the prosecution has
no right under the Rules to seek from the trial court an investigation or
reevaluation of the case except through a petition for review before the
Department of Justice (DOJ). In cases when an accused is arrested without a
warrant, petitioner contends that the remedy of preliminary investigation
belongs only to the accused.
The contention lacks merit.
Section 6, 27 Rule 112 of the Rules of Court reads:
When a person is lawfully arrested without a warrant involving an offense
which requires a preliminary investigation, the complaint or information
may be filed by a prosecutor without need of such investigation provided
an inquest has been conducted in accordance with existing rules. In the
absence or unavailability of an inquest prosecutor, the complaint may be
filed by the offended party or a peace officer directly with the proper

court on the basis of the affidavit of the offended party or arresting officer
or person.
IDAEHT

Before the complaint or information is filed, the person arrested may ask
for a preliminary investigation in accordance with this Rule, but he must
sign a waiver of the provisions of Article 125 of the Revised Penal Code,
as amended, in the presence of his counsel. Notwithstanding the waiver,
he may apply for bail and the investigation must be terminated within
fifteen (15) days from its inception.
After the filing of the complaint or information in court without a
preliminary investigation, the accused may, within five (5) days from the
time he learns of its filing, ask for a preliminary investigation with the
same right to adduce evidence in his defense as provided in this Rule.
(underscoring supplied)

A preliminary investigation is required before the filing of a complaint or

information for an offense where the penalty prescribed by law is at least four
years, two months and one day without regard to fine. 28 As an exception, the
rules provide that there is no need for a preliminary investigation in cases of a
lawful arrest without a warrant 29 involving such type of offense, so long as an
inquest, where available, has been conducted. 30
Inquest is defined as an informal and summary investigation conducted
by a public prosecutor in criminal cases involving persons arrested and
detained without the benefit of a warrant of arrest issued by the court for the
purpose of determining whether said persons should remain under custody
and correspondingly be charged in court. 31
It is imperative to first take a closer look at the predicament of both the
arrested person and the private complainant during the brief period of inquest,
to grasp the respective remedies available to them before and after the filing
of a complaint or information in court.
IacHAE

BEFORE THE FILING OF COMPLAINT OR INFORMATION IN

COURT, the private complainant may proceed in coordinating with the
arresting officer and the inquest officer during the latter's conduct of inquest.
Meanwhile, the arrested person has the option to avail of a 15-day preliminary
investigation, provided he duly signs a waiver of any objection against delay in

his delivery to the proper judicial authorities under Article 125 of the Revised
Penal Code. For obvious reasons, this remedy is not available to the private
complainant since he cannot waive what he does not have. The benefit of the
provisions of Article 125, which requires the filing of a complaint or information
with the proper judicial authorities within the applicable period, 32 belongs to
the arrested person.
The accelerated process of inquest, owing to its summary nature and
the attendant risk of running against Article 125, ends with either the prompt
filing of an information in court or the immediate release of the arrested
person. 33 Notably, the rules on inquest do not provide for a motion for
reconsideration. 34
Contrary to petitioner's position that private complainant should have
appealed to the DOJ Secretary, such remedy is not immediately available in
cases subject of inquest.
Noteworthy is the proviso that the appeal to the DOJ Secretary is by
"petition by a proper party under such rules as the Department of Justice may
prescribe." 35 The rule referred to is the 2000 National Prosecution Service
Rule on Appeal, 36 Section 1 of which provides that the Rule shall "apply to
appeals from resolutions . . . in cases subject of preliminary
investigation/reinvestigation." In cases subject of inquest, therefore, the private
party should first avail of a preliminary investigation or reinvestigation, if any,
before elevating the matter to the DOJ Secretary.
In case the inquest proceedings yield no probable cause, the private
complainant may pursue the case through the regular course of a preliminary
investigation.
ONCE A COMPLAINT OR INFORMATION IS FILED IN COURT, the
rules yet provide the accused with another opportunity to ask for a preliminary
investigation within five days from the time he learns of its filing. The Rules of
Court and the New Rules on Inquest are silent, however, on whether the
private complainant could invoke, as respondent heirs of the victim did in the
present case, a similar right to ask for a reinvestigation.
AaSCTD

The Court holds that the private complainant can move for
reinvestigation, subject to and in light of the ensuing disquisition.
All criminal actions commenced by a complaint or information shall be
prosecuted under the direction and control of the public prosecutor. 37 The
private complainant in a criminal case is merely a witness and not a party to
the case and cannot, by himself, ask for the reinvestigation of the
case after the information had been filed in court, the proper party for that
being the public prosecutor who has the control of the prosecution of the
case. 38 Thus, in cases where the private complainant is allowed to intervene
by counsel in the criminal action, 39 and is granted the authority to
prosecute, 40 the private complainant, by counsel and with the conformity of
the public prosecutor, can file a motion for reinvestigation.
In fact, the DOJ instructs that before the arraignment of the accused,
trial prosecutors must "examine the Information vis--vis the resolution of the
investigating prosecutor in order to make the necessary corrections or
revisions and to ensure that the information is sufficient in form and
substance." 41
. . . Since no evidence has been presented at that stage, the error would
appear or be discoverable from a review of the records of the preliminary
investigation. Of course, that fact may be perceived by the trial judge
himself but, again, realistically it will be the prosecutor who can
initially determine the same. That is why such error need not be
manifest or evident, nor is it required that such nuances as offenses
includible in the offense charged be taken into account. It necessarily
follows, therefore, that the prosecutor can and should institute
remedial measures[.] 42 (emphasis and underscoring supplied)

The prosecution of crimes appertains to the executive department of the

government whose principal power and responsibility is to see that our laws
are faithfully executed. A necessary component of this power to execute our
laws is the right to prosecute their violators. The right to prosecute vests the
prosecutor with a wide range of discretion the discretion of what and whom
to charge, the exercise of which depends on a smorgasbord of factors which
are best appreciated by prosecutors. 43
SCIacA

The prosecution's discretion is not boundless or infinite, however. 44 The

standing principle is that once an information is filed in court, any remedial
measure such as a reinvestigation must be addressed to the sound discretion
of the court. Interestingly, petitioner supports this view. 45 Indeed, the Court
ruled in one case that:
The rule is now well settled that once a complaint or information is filed
in court, any disposition of the case, whether as to its dismissal or the
conviction or the acquittal of the accused, rests in the sound discretion of
the court. Although the prosecutor retains the direction and control of the
prosecution of criminal cases even when the case is already in court, he
cannot impose his opinion upon the tribunal. For while it is true that the
prosecutor has the quasi-judicial discretion to determine whether or not a
criminal case should be filed in court, once the case had already been
brought therein any disposition the prosecutor may deem proper
thereafter should be addressed to the court for its consideration and
approval. The only qualification is that the action of the court must not
impair the substantial rights of the accused or the right of the People to
due process of law.
xxx xxx xxx
In such an instance, before a re-investigation of the case may be
conducted by the public prosecutor, the permission or consent of the
court must be secured. If after such re-investigation the prosecution finds
a cogent basis to withdraw the information or otherwise cause the
dismissal of the case, such proposed course of action may be taken but
shall likewise be addressed to the sound discretion of the
court. 46 (underscoring supplied)

While Abugotal v. Judge Tiro 47 held that to ferret out the truth, a trial is
to be preferred to a reinvestigation, the Court therein recognized that a trial
court may,where the interest of justice so requires, grant a motion for
reinvestigation of a criminal case pending before it.
Once the trial court grants the prosecution's motion for reinvestigation,
the former is deemed to have deferred to the authority of the prosecutorial arm
of the Government. Having brought the case back to the drawing board, the
prosecution is thus equipped with discretion wide and far reaching

regarding the disposition thereof, 48 subject to the trial court's approval of the
resulting proposed course of action.
SEIaHT

Since a reinvestigation may entail a modification of the criminal

information as what happened in the present case, the Court's holding is
bolstered by the rule on amendment of an information under Section 14, Rule
110 of the Rules of Court:
A complaint or information may be amended, in form or in
substance, without leave of court, at any time before the accused
enters his plea. After the plea and during the trial, a formal amendment
may only be made with leave of court and when it can be done without
causing prejudice to the rights of the accused.
However, any amendment before plea, which downgrades the nature of
the offense charged in or excludes any accused from the complaint or
information, can be made only upon motion by the prosecutor, with
notice to the offended party and with leave of court. The court shall state
its reasons in resolving the motion and copies of its order shall be
furnished all parties, especially the offended party.
If it appears at any time before judgment that a mistake has been made
in charging the proper offense, the court shall dismiss the original
complaint or information upon the filing of a new one charging the proper
offense in accordance with section 11, Rule 119, provided the accused
would not be placed in double jeopardy. The court may require the
witnesses to give bail for their appearance at the trial. (emphasis
supplied)

In fine, before the accused enters a plea, a formal or substantial

amendment of the complaint or information may be made without leave of
court. 49 After the entry of a plea, only a formal amendment may be made but
with leave of court and only if it does not prejudice the rights of the accused.
After arraignment, a substantial amendment is proscribed except if the same
is beneficial to the accused. 50
It must be clarified though that not all defects in an information are
curable by amendment prior to entry of plea. An information which is void ab
initio cannot be amended to obviate a ground for quashal. 51 An amendment

which operates to vest jurisdiction upon the trial court is likewise

impermissible. 52
CaDATc

Considering the general rule that an information may be amended even

in substance and even without leave of court at any time before entry of plea,
does it mean that the conduct of a reinvestigation at that stage is a mere
superfluity?
It is not.
Any remedial measure springing from the reinvestigation be it a
complete disposition or an intermediate modification 53 of the charge is
eventually addressed to the sound discretion of the trial court, which must
make an independent evaluation or assessment of the merits of the case.
Since the trial court would ultimately make the determination on the proposed
course of action, it is for the prosecution to consider whether a reinvestigation
is necessary to adduce and review the evidence for purposes of buttressing
the appropriate motion to be filed in court.
More importantly, reinvestigation is required in cases involving a
substantial amendment of the information. Due process of law demands that
no substantial amendment of an information may be admitted without
conducting another or a new preliminary investigation. In Matalam v. The 2nd
Division of the Sandiganbayan, 54 the Court ruled that a substantial
amendment in an information entitles an accused to another preliminary
investigation, unless the amended information contains a charge related to or
is included in the original Information.
The question to be resolved is whether the amendment of the
Information from homicide to murder is considered a substantial amendment,
which would make it not just a right but a duty of the prosecution to ask for a
preliminary investigation.
The Court answers in the affirmative.

TSaEcH

A substantial amendment consists of the recital of facts

constituting the offense charged and determinative of the
jurisdiction of the court. All other matters are merely of form. The
following have been held to be mere formal amendments: (1) new

allegations which relate only to the range of the penalty that the court
might impose in the event of conviction; (2) an amendment which does
not charge another offense different or distinct from that charged in the
original one; (3) additional allegations which do not alter the
prosecution's theory of the case so as to cause surprise to the accused
and affect the form of defense he has or will assume; (4) an amendment
which does not adversely affect any substantial right of the accused; and
(5) an amendment that merely adds specifications to eliminate
vagueness in the information and not to introduce new and material
facts, and merely states with additional precision something which is
already contained in the original information and which adds nothing
essential for conviction for the crime charged.
The test as to whether a defendant is prejudiced by the amendment is
whether a defense under the information as it originally stood would be
available after the amendment is made, and whether any evidence
defendant might have would be equally applicable to the information in
the one form as in the other. An amendment to an information which
does not change the nature of the crime alleged therein does not affect
the essence of the offense or cause surprise or deprive the accused of
an opportunity to meet the new averment had each been held to be one
of form and not of substance. 55 (emphasis and underscoring supplied)

Matalam adds that the mere fact that the two charges are related does
not necessarily or automatically deprive the accused of his right to another
preliminary investigation. Notatu dignum is the fact that both the original
Information and the amended Information in Matalam were similarly charging
the accused with violation of Section 3 (e) of the Anti-Graft and Corrupt
Practices Act.
In one case, 56 it was squarely held that the amendment of the
Information from homicide to murder is "one of substance with very serious
consequences." 57The amendment involved in the present case consists of
additional averments of the circumstances of treachery, evident premeditation,
and cruelty, which qualify the offense charged from homicide to murder. It
being a new and material element of the offense, petitioner should be given
the chance to adduce evidence on the matter. Not being merely clarificatory,
the amendment essentially varies the prosecution's original theory of the case

and certainly affects not just the form but the weight of defense to be
mustered by petitioner.
IcaHTA

The Court distinguishes the factual milieus in Buhat v. CA 58 and Pacoy

v. Cajigal, 59 wherein the amendment of the caption of the Information from
homicide to murder was not considered substantial because there was no real
change in the recital of facts constituting the offense charged as alleged in the
body of the Information, as the allegations of qualifying circumstances were
already clearly embedded in the original Information. Buhat pointed out that
the original Information for homicide already alleged the use of superior
strength, while Pacoy states that the averments in the amended Information
for murder are exactly the same as those already alleged in the original
Information for homicide. None of these peculiar circumstances obtains in the
present case.
Considering that another or a new preliminary investigation is required,
the fact that what was conducted in the present case was a reinvestigation
does not invalidate the substantial amendment of the Information. There is no
substantial distinction between a preliminary investigation and a
reinvestigation since both are conducted in the same manner and for the
same objective of determining whether there exists sufficient ground to
engender a well-founded belief that a crime has been committed and the
respondent is probably guilty thereof and should be held for trial. 60 What is
essential is that petitioner was placed on guard to defend himself from the
charge of murder 61 after the claimed circumstances were made known to him
as early as the first motion.
Petitioner did not, however, make much of the opportunity to present
countervailing evidence on the proposed amended charge. Despite notice of
hearing, petitioner opted to merely observe the proceedings and declined to
actively participate, even with extreme caution, in the reinvestigation. Mercado
v. Court of Appeals states that the rules do not even require, as a
condition sine qua non to the validity of a preliminary investigation, the
presence of the respondent as long as efforts to reach him were made and an
opportunity to controvert the complainant's evidence was accorded him. 62

In his second assignment of error, petitioner basically assails the

hurried issuance of the last two assailed RTC Orders despite the pendency
before the appellate court of the petition for certiorari challenging the first two
trial court Orders allowing a reinvestigation.
The Rules categorically state that the petition shall not interrupt the
course of the principal case unless a temporary retraining order or a writ of
preliminary injunction has been issued. 63 The appellate court, by Resolution
of February 15, 2007, 64 denied petitioner's application for a temporary
restraining order and writ of preliminary injunction. Supplementary efforts to
seek injunctive reliefs proved futile. 65 The appellate court thus did not err in
finding no grave abuse of discretion on the part of the trial court when it
proceeded with the case and eventually arraigned the accused on March 21,
2007, there being no injunction order from the appellate court. Moreover,
petitioner opted to forego appealing to the DOJ Secretary, a post-inquest
remedy that was available after the reinvestigation and which could have
suspended the arraignment. 66
CIcTAE

Regarding petitioner's protestations of haste, suffice to state that the

pace in resolving incidents of the case is not per se an indication of bias.
In Santos-Concio v. Department of Justice, 67 the Court held:
Speed in the conduct of proceedings by a judicial or quasi-judicial officer
cannot per se be instantly attributed to an injudicious performance of
functions. For one's prompt dispatch may be another's undue haste. The
orderly administration of justice remains as the paramount and constant
consideration, with particular regard of the circumstances peculiar to
each case.
The presumption of regularity includes the public officer's official
actuations in all phases of work. Consistent with such presumption, it
was incumbent upon petitioners to present contradictory evidence other
than a mere tallying of days or numerical calculation. This, petitioners
failed to discharge. The swift completion of the Investigating Panel's
initial task cannot be relegated as shoddy or shady without discounting
the presumably regular performance of not just one but five state
prosecutors. 68

There is no ground for petitioner's protestations against the DOJ

Secretary's sudden designation of Senior State Prosecutor Emmanuel
Velasco as Acting City Prosecutor of Makati City for the present case 69 and
the latter's conformity to the motion for reinvestigation.
In granting the reinvestigation, Judge Alameda cannot choose the
public prosecutor who will conduct the reinvestigation or preliminary
investigation. 70 There is a hierarchy of officials in the prosecutory arm of the
executive branch headed by the Secretary of Justice 71 who is vested with the
prerogative to appoint a special prosecutor or designate an acting prosecutor
to handle a particular case, which broad power of control has been recognized
by jurisprudence. 72
As for the trial court's ignoring the DOJ Secretary's uncontested
statements to the media which aired his opinion that if the assailant merely
intended to maim and not to kill the victim, one bullet would have sufficed
the DOJ Secretary reportedly uttered that "the filing of the case of homicide
against ano against Levistelintek naman eh I told you to watch over that
case. . . there should be a report about the ballistics, about the paraffin, etc.,
then that's not a complete investigation, that's why you should use that as a
ground" no abuse of discretion, much less a grave one, can be imputed to
it.
cdasia

The statements of the DOJ Secretary do not evince a "determination to

file the Information even in the absence of probable cause." 73 On the
contrary, the remarks merely underscored the importance of securing basic
investigative reports to support a finding of probable cause. The original
Resolution even recognized that probable cause for the crime of murder
cannot be determined based on the evidence obtained "[u]nless and until a
more thorough investigation is conductedand eyewitness/es [is/]are presented
in evidence[.] " 74
The trial court concluded that "the wound sustained by the victim at the
back of his head, the absence of paraffin test and ballistic examination, and
the handling of physical evidence," 75 as rationalized by the prosecution in its
motion, are sufficient circumstances that require further inquiry.

That the evidence of guilt was not strong as subsequently assessed in

the bail hearings does not affect the prior determination of probable cause
because, as the appellate court correctly stated, the standard of strong
evidence of guilt which is sufficient to deny bail to an accused is markedly
higher than the standard of judicial probable cause which is sufficient to
initiate a criminal case. 76
In his third assignment of error, petitioner faults the trial court for not
conducting, at the very least, a hearing for judicial determination of probable
cause, considering the lack of substantial or material new evidence adduced
during the reinvestigation.
Petitioner's argument is specious.
There are two kinds of determination of probable cause: executive and
judicial. The executive determination of probable cause is one made during
preliminary investigation. It is a function that properly pertains to the public
prosecutor who is given a broad discretion to determine whether probable
cause exists and to charge those whom he believes to have committed the
crime as defined by law and thus should be held for trial. Otherwise stated,
such official has the quasi-judicial authority to determine whether or not a
criminal case must be filed in court. Whether that function has been correctly
discharged by the public prosecutor, i.e., whether he has made a correct
ascertainment of the existence of probable cause in a case, is a matter that
the trial court itself does not and may not be compelled to pass upon. 77
The judicial determination of probable cause is one made by the judge
to ascertain whether a warrant of arrest should be issued against the accused.
The judge must satisfy himself that based on the evidence submitted, there is
necessity for placing the accused under custody in order not to frustrate the
ends of justice. If the judge finds no probable cause, the judge cannot be
forced to issue the arrest warrant. 78 Paragraph (a), Section 5, 79 Rule 112 of
the Rules of Court outlines the procedure to be followed by the RTC.
To move the court to conduct a judicial determination of probable cause
is a mere superfluity, for with or without such motion, the judge is duty-bound
to personally evaluate the resolution of the public prosecutor and the
supporting evidence. In fact, the task of the presiding judge when the

Information is filed with the court is first and foremost to determine the
existence or non-existence of probable cause for the arrest of the
accused. 80
DaTEIc

What the Constitution underscores is the exclusive and personal

responsibility of the issuing judge to satisfy himself of the existence of
probable cause. But the judge is not required to personally examine
the complainant and his witnesses. Following established doctrine
and procedure, he shall (1) personally evaluate the report and the
supporting documentssubmitted by the prosecutor regarding the
existence of probable cause, and on the basis thereof, he may already
make a personal determination of the existence of probable cause; and
(2) if he is not satisfied that probable cause exists, he may disregard the
prosecutor's report and require the submission of supporting affidavits of
witnesses to aid him in arriving at a conclusion as to the existence of
probable cause. 81 (emphasis and underscoring supplied)

The rules do not require cases to be set for hearing to determine

probable cause for the issuance of a warrant of arrest of the accused before
any warrant may be issued. 82 Petitioner thus cannot, as a matter of right,
insist on a hearing for judicial determination of probable cause. Certainly,
petitioner "cannot determine beforehand how cursory or exhaustive the
[judge's] examination of the records should be [since t]he extent of the judge's
examination depends on the exercise of his sound discretion as the
circumstances of the case require." 83 In one case, the Court emphatically
stated:
The periods provided in the Revised Rules of Criminal
Procedure are mandatory, and as such, the judge must determine the
presence or absence of probable cause within such periods. The
Sandiganbayan's determination of probable cause is made ex parte and
is summary in nature, not adversarial. The Judge should not be
stymied and distracted from his determination of probable cause
by needless motions for determination of probable cause filed by
the accused. 84 (emphasis and underscoring supplied)

Petitioner proceeds to discuss at length evidentiary matters, arguing

that no circumstances exist that would qualify the crime from homicide to
murder.
The allegation of lack of substantial or material new evidence deserves
no credence, because new pieces of evidence are not prerequisites for a valid
conduct of reinvestigation. It is not material that no new matter or evidence
was presented during the reinvestigation of the case. It should be stressed
that reinvestigation, as the word itself implies, is merely a repeat investigation
of the case. New matters or evidence are not prerequisites for a
reinvestigation, which is simply a chance for the prosecutor to review and reevaluate its findings and the evidence already submitted. 85
Moreover, under Rule 45 of the Rules of Court, only questions of law
may be raised in, and be subject of, a petition for review on certiorari since
this Court is not a trier of facts. The Court cannot thus review the evidence
adduced by the parties on the issue of the absence or presence of probable
cause, as there exists no exceptional circumstances to warrant a factual
review. 86
In a petition for certiorari, like that filed by petitioner before the appellate
court, the jurisdiction of the court is narrow in scope. It is limited to resolving
only errors of jurisdiction. It is not to stray at will and resolve questions and
issues beyond its competence, such as an error of judgment. 87 The court's
duty in the pertinent case is confined to determining whether the executive
and judicial determination of probable cause was done without or in excess of
jurisdiction or with grave abuse of discretion. Although it is possible that error
may be committed in the discharge of lawful functions, this does not render
the 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. 88
HEcaIC

WHEREFORE, the petition is DENIED. The assailed Decision and Resolution of

the Court of Appeals in CA-G.R. SP No. 97761 are AFFIRMED.
SO ORDERED.
|||

(Leviste v. Alameda, G.R. No. 182677, [August 3, 2010], 640 PHIL 620-651)

28
[G.R. No. 118435. June 20, 1997.]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. MARIO
SERZO, JR., accused-appellant.
The Solicitor General for plaintiff-appellee.
Carmelo I. Arcilla for accused-appellant.
SYLLABUS
1. CONSTITUTIONAL LAW; BILL OF RIGHTS; RIGHT OF AN ACCUSED TO
COUNSEL, AS GUARANTEED BY THE CONSTITUTION. The right of an
accused to counsel is guaranteed by the Constitution, the supreme law of the
land. This right is granted to minimize the imbalance in the adversarial system
where the accused is pitted against the awesome prosecutory machinery of the
state. In the words of Justice Black, this is a "recognition . . . that an average
(accused) does not have the professional skill to protect himself . . . before a
tribunal with power to take his life or liberty, wherein the (prosecutor) is . . . an
experienced and learned counsel." InPowell vs. Alabama, Mr. Justice Sutherland
wrote at greater length on why an accused needs a competent counsel: "Even
the intelligent and educated layman has small and sometimes no skill in the
science of law. If charged with crime, he is incapable, generally, of determining
for himself whether the indictment is good or bad. He is unfamiliar with the rules
of evidence. Left without the aid of counsel he may be put on trial without a
proper charge, and convicted upon incompetent evidence, or evidence irrelevant
to the issue or otherwise inadmissible. He lacks both the skill and knowledge
adequately to prepare his defense, even though he has a perfect one. He
requires the guiding hand of counsel at every step in the proceedings against

him. Without it, though he be not guilty, he faces the danger of conviction
because he does not know how to establish his innocence." The right covers the
period beginning from custodial investigation, well into the rendition of judgment,
and even on appeal. Article III of the 1987 Constitution provides this right to an
accused not only during trial but even before an information is filed.
HEcaIC

2. ID.; ID.; ID.; RIGHT TO COUNSEL DE PARTE; NOT ABSOLUTE. An

accused may exercise his right to counsel by electing to be represented either by
a court-appointed lawyer or by one of his own choice. While his right to be
represented by counsel is immutable, his option to secure the services of
counsel de parte, however, is not absolute. The court is obliged to balance the
privilege to retain a counsel of choice against the state's and the offended party's
equally important right to speedy and adequate justice. Thus, the court may
restrict the accused's option to retain a counsel de parte if the accused insists on
an attorney he cannot afford, or the chosen counsel is not a member of the bar,
or the attorney declines to represent the accused for a valid reason, e.g. conflict
of interest and the like.
3. ID.; ID.; ID.; ID.; WAIVABLE LIKE OTHER PERSONAL RIGHTS. The right
to counsel de parte is, like other personal rights, waivable so long as (1) the
waiver is not contrary to law, public order, public policy, morals or good customs;
or prejudicial to a third person with a right recognized by law" and (2) the waiver
is unequivocally, knowingly and intelligently made.
SHTEaA

4. ID.; ID.; ID.; ID.; APPELLANT WAS AFFORDED A CHANCE TO BE HEARD

BUT BY HIS OWN NEGLECT OR MISCHIEF, HE EFFECTIVELY WAIVED
SUCH RIGHT. Appellant did not demonstrate in what way the services of his
counsels de oficio were unsatisfactory. He did not cite any instance substantiating
his claim that he was not effectively represented. In short, he was afforded a
chance to be heard by counsel of his own choice, but by his own neglect or
mischief, he effectively waived such right. It taxes the mind to think that, almost
two years since appellant first invoked his right to be represented by counsel de
parte, he still could not find one who would suit his needs and desires. Neither
did he cooperate with his court-named lawyer.

5. ID.; ID.; ID.; ID.; THE FACTS OF THE PRESENT CASE DO NOT
CONSTITUTE A DEPRIVATION OF APPELLANT'S CONSTITUTIONAL RIGHT
TO COUNSEL. The facts of this case do not constitute a deprivation of
appellant's constitutional right to counsel because he was adequately
represented by three court-appointed lawyers: Atty. Lina-ac, Atty. Antonano and
Atty. Garcia. Courts are not required to await indefinitely the pleasure and
convenience of the accused as they are also mandated to promote the speedy
and orderly administration of justice. Nor should they countenance such an
obvious trifling with the rules. Indeed, public policy requires that the trial continue
as scheduled, considering that appellant was adequately represented by
counsels who were not shown to be negligent, incompetent or otherwise unable
to represent him.
EaTCSA

6. CRIMINAL LAW; MURDER; QUALIFYING CIRCUMSTANCES; TREACHERY;

THE MANNER OF THE ATTACK ON THE VICTIM ITSELF IS ENOUGH PROOF
OF ALEVOSIA; CASE AT BAR. Based on the facts established by the
prosecution which remains uncontested, the Court affirms the trial court's
appreciation of the qualifying circumstance of treachery. To constitute treachery,
two conditions must concur: (1) the employment of means of execution that gives
the person attacked no opportunity to defend himself or to retaliate and (2)
deliberate or conscious adoption of the means of execution. The manner of the
attack itself is proof enough ofalevosia. Widow Adelaida vividly described the
stabbing. According to her testimony, it appears that appellant waited for the
victim and his wife and pounced on them swiftly and without warning. The victim
and his wife were already on their way home after transferring appellant's
children to a safe place. They were unarmed as they had absolutely no idea that
appellant would attack them right then and from behind. The manner of the attack
tended directly and especially to insure the execution of the crime without risk to
appellant and virtually no chance for the victim to defend himself. Even
Adelaida's life would have been mortally threatened were it not for the timely
intervention of her neighbors.
7. ID.; CIVIL LIABILITY; DAMAGES; WITHOUT ANY FACTUAL BASIS, THE
AWARD OF MORAL DAMAGES IS NOT JUSTIFIED. Actual and moral
damages require the presentation of proof before they can be awarded by the

trial court. According to Adelaida, burial expenses in the amount of P2,000.00

were incurred. This is separate and distinct from civil indemnity awarded under
prevailing jurisprudence, which is granted without further proof beyond the fact of
death and the accused's responsibility therefor. Moral damages were not
discussed at all in Adelaida's testimony. Hence, without any factual basis, the
award of moral damages is not justified.
cSHATC

DECISION
PANGANIBAN, J :
p

The right to counsel of an accused is guaranteed by our Constitution,our laws

and our Rules of Court. During custodial investigation, arraignment, trial and even
on appeal, the accused is given the option to be represented by a counsel of his
choice. But when he neglects or refuses to exercise this option during
arraignment and trial, the court shall appoint one for him. While the right to be
represented by counsel is absolute, the accused's option to hire one of his own
choice is limited. Such option cannot be used to sanction reprehensible dilatory
tactics, to trifle with the Rules or to prejudice the equally important rights of the
state and the offended party to speedy and adequate justice.
This will be amplified in this appeal seeking the reversal of the August 23, 1994
Decision of the Regional Trial Court of Antipolo, Rizal, Branch 72, 1 in Criminal
Case No. 90-5997 convicting Appellant Mario Serzo, Jr. of murder under Article
248 of the Revised Penal Code.
Appellant was charged with murder in an Information dated September 4, 1990
filed by Rizal Assistant Provincial Prosecutor Filipinas Z. Aguilar-Ata, worded as
follows: 2
"That on or about the 22nd day of August, 1990, in the Municipality of
Antipolo, Province of Rizal, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, armed with bladed
weapon, with intent to kill, with treachery, did then and there willfully,
unlawfully and feloniously attack, assault and stab one Alfredo Alcantara

y Casabal at the back, thereby inflicting upon him stab wounds which
directly caused his death."

Thereafter, pre-trial was waived and the case proceeded to trial on the merits.
After arraignment and trial, appellant was found guilty as charged and sentenced
thus: 3
"WHEREFORE, on the basis of the foregoing, the Court finds accused
GUILTY BEYOND REASONABLE DOUBT of having committed the
crime of MURDER and as prescribed under Article 248 of the Revised
Penal Code, hereby sentences accused to suffer the penalty of reclusion
perpetua and to indemnify the victim's wife in the amount of FIFTY
THOUSAND PESOS (P50,000.00) as actual damages and TWENTY
FIVE THOUSAND PESOS (P25,000.00) as moral damages and costs."

The Antecedents
Summarizing the testimonies of Adelaida Alcantara (the victim's widow), MedicoLegal Officer Dario L. Gajardo and Epifania Andrade, the trial court found the
following facts: 4
"Alfredo Alcantara y Casabal never knew that death was just around the
corner inevitably meeting his way. That fateful night of August 22, 1990,
Alfredo together with his wife Adelaida Alcantara were (sic) staying
inside their house comfortably watching television when at around 11:30
in the evening, Susana Serzo, mother of the accused, and one Epifania
Bentilacion came knocking at their doorsteps and pleading for help to
bring out her grandchildren who were being held inside their house by
her son, the accused in this case. Unhesitatingly, the couple heeded
their call and went with them at (sic) their house, located just across the
private complainant's residence. The spouses were able to rescue the
grandchildren and to bring them to a safer place. When returning to their
house, Alfredo Alcantara who was walking just armslength ahead of his
wife, was attacked by accused Mario Serzo from behind. Accused
stabbed Alfredo at his back forcing the latter to scamper for his dear life.
However, accused was able to overpower him thereby causing his fall in
the canal where he was repeatedly stabbed by the accused. Adelaida
Alcantara shouted for help but was likewise attacked by the accused as
she was only half-meter away from her husband. However, Adelaida

fortunately was able to hold the hand of the knifewielder and persistently
fought the accused. (p. 05 TSN June 3, 1991) At that moment, the
commotion had already caught the attention of the residents within the
vicinity who responded to help her thereby causing the accused to flee.
The victim Alfredo Alcantara, who remained lying and motionless in the
canal, was rushed to the hospital where he was confirmed dead. (p. 06
TSN June 3, 1991) The Medico-legal Officer, Dr. Dario Gajardo, testified
in Court that the victim sustained three (3) stab wounds, two at the back
and one in his chest, which instantaneously caused the victim's death.
(p. 04 TSN May 13, 1991)"

In view of appellant's allegation that he was denied his right to counsel, a

narration of the proceedings before the trial court is now in order. Arraignment
was set by the trial court on January 8, 1991, during which appellant appeared
without counsel. Consequently, the trial court appointed Atty. Wilfredo Lina-ac as
counsel de oficio for the arraignment only. Appellant, however, moved that the
arraignment be reset and that he be given time to engage a counsel of his own
choice, which the trial court granted. 5
On February 11, 1991, appellant appeared without a counsel de parte. He was
nonetheless arraigned with the assistance of Counsel de oficio Wilfredo Linaac. 6 He pleaded "not guilty." Pre-trial was waived and trial was set on April 22,
May 6 and 13, 1991 for the reception of the prosecution evidence and June 3 and
17, 1991 for the defense.
The hearings scheduled on April 22, 1991 and May 6, 1991 were cancelled on
motion of Public Prosecutor Robert H. Tobia. 7 On both dates, appellant
appeared with Atty. Lina-ac. On May 13 and June 3, 1991, trial proceeded with
the testimonies of prosecution witnesses. On behalf of appellant, Atty. Lina-ac
cross-examined the said witnesses.
On June 17, 1991, trial was again cancelled as appellant appeared without
counsel. 8 On August 13, 1991, the prosecution rested its case. 9
On November 4 and 11, 1991, presentation of evidence for the defense was reset
as appellant was not ready to testify 10 and he manifested his intention to secure

the services of a counsel de parte. 11 On March 3, 1992, Atty. Lina-ac was

relieved as counsel de oficio in view of appellant's manifestation and refusal to
cooperate with said counsel. 12 On April 6, 1992 appellant appeared without
counsel, forcing the trial court to appoint another counsel de oficio, Bella
Antonano. Counsels for both parties agreed to reset the trial, but appellant
refused to sign the minutes of the proceedings. 13
On April 27, 1992, 14 over vehement objection from the prosecution, hearing was
reset for the last time as appellant was still looking for a counsel de parte. 15 On
August 25, 1992, appellant appeared without counsel; thus, the trial court
appointed Atty. Bonifacia Garcia of the Public Attorney's Office (PAO) as
appellant's counsel de oficio. Again, trial was postponed. 16 On September 1 and
October 19, 1992, trial was postponed on motion of Atty. Garcia. 17 Appellant
again refused to sign the minutes of the proceedings for both trial dates. On
November 5, 1992, appellant refused to cooperate with Atty. Garcia by declining
to take the witness stand, forcing the defense to rest its case. 18 Both parties
were ordered to submit their respective memoranda in ten days, after which the
case would be submitted for decision. Atty. Garcia was further ordered to
manifest within the same period whether appellant would change his mind and
cooperate with her. No memorandum or manifestation was ever filed by
appellant.
Appellant wrote Judge Angeles three times within the period beginning
December 16, 1992 until April 2, 1993, seeking legal advice and the early
resolution of the case. Branch Clerk of Court Melchisedek A. Guan replied to him
twice, informing him that Judge Angeles was prohibited by law from giving legal
advice to litigants in cases pending in his court and that a decision was
forthcoming. On July 13, 1994, appellant wrote Deputy Court Administrator
Reynaldo L. Suarez, asking for the early resolution of his case. 19 The latter
referred said letter to Judge Angeles for appropriate action.
Thereafter, the assailed Decision convicting appellant of murder was promulgated
on August 23, 1994.
Ruling of the Trial Court

In its Decision, the trial court noted that appellant simply refused to secure the
services of a counsel de parte and to present evidence in his defense despite
ample opportunity accorded to him. Said the trial court:
"The defense particularly the accused assisted by counsel however
refused to present any evidence despite several opportunities afforded
by the Court. As early as the arraignment stage, accused refused to be
assisted by a counsel de oficio from the Public Attorney's Office (PAO)
insisting that he be assisted by a counsel of his own choice. For several
settings, accused and her (sic) mother were allowed to secure the
services of a counsel de parte. However, they failed to present one.
Hence, the Court, to avoid further delay in the proceedings of the case,
was constrained to assign a counsel de oficio from the PAO.
During the presentation of evidence for the defense, accused and
counsel could not present any witness as accused refused to cooperate
and to testify in Court. Hence, the defense waived its right to present any
evidence.
Considering that this case has been dragging for several years
already . . . the court . . . afforded the defense another opportunity to
present its case by submitting its memorandum simultaneously with the
Prosecution. Thereafter, the case was submitted for decision." 20

Consequently, the trial court convicted appellant on the basis of the evidence
presented by the prosecution. Appellant was positively identified as the assailant
by the widow, Adelaida Alcantara, who survived his attack. In her distinct and
vivid narration of the sequence of events leading to the murder, she showed that
the attack was treacherous as the victim was stabbed at the back and without
warning.
Not satisfied with the trial court's Decision, appellant through Counsel Carmelo L.
Arcilla 21 appealed to this Court.
Assignment of Errors
In his Brief filed by Atty. Arcilla, appellant questions his conviction for murder
based on the following alleged errors on the part of the trial court: 22
"I

The lower court erred in not giving the defendant-appellant time to

engage counsel of his own choice.
"II
The lower court erred in not affording the defendant-appellant the
chance to present evidence for his defense.
"III
The lower court erred in not acquitting the defendant-appellant."

Mainly, appellant alleges that he had been denied effective legal representation.
His thesis is that the trial court did not give him enough time to engage a
counsel de parte, effectively depriving him of the chance to present evidence in
his defense. In fact, the scant five-page Appellant's Brief was dedicated entirely
to this argument without contesting the facts found by the trial court.
The Court's Ruling
The right of an accused to counsel is guaranteed by the Constitution, the
supreme law of the land. This right is granted to minimize the imbalance in the
adversarial system where the accused is pitted against the awesome prosecutory
machinery of the state. In the words of Justice Black, 23 this is a "recognition . . .
that an average (accused) does not have the professional skill to protect himself .
. . before a tribunal with power to take his life or liberty, wherein the (prosecutor)
is . . . an experienced and learned counsel." In Powell vs. Alabama, 24 Mr. Justice
Sutherland wrote at greater length on why an accused needs a competent
counsel:
"Even the intelligent and educated layman has small and sometimes no
skill in the science of law. If charged with crime, he is incapable,
generally, of determining for himself whether the indictment is good or
bad. He is unfamiliar with the rules of evidence. Left without the aid of
counsel he may be put on trial without a proper charge, and convicted
upon incompetent evidence, or evidence irrelevant to the issue or
otherwise inadmissible. He lacks both the skill and knowledge
adequately to prepare his defense, even though he has a perfect one.
He requires the guiding hand of counsel at every step in the proceedings

against him. Without it, though he be not guilty, he faces the danger of
conviction because he does not know how to establish his innocence."

prcd

The right covers the period beginning from custodial investigation, well into the
rendition of judgment, 25 and even on appeal. Article III of the 1987
Constitutionprovides this right to an accused not only during trial but even before
an information is filed. It provides:
"SEC. 12. (1) Any person under investigation for the commission of an
offense shall have the right to be informed of his right to remain silent
and to have competent and independent counsel preferably of his own
choice. If the person cannot afford the services of counsel, he must be
provided with one. These rights cannot be waived except in writing and
in the presence of counsel."
"SEC. 14 (1) No person shall be held to answer for a criminal offense
without due process of law.
(2) In all criminal prosecutions, the accused shall be presumed innocent
until the contrary is proved, and shall enjoy the right to be heard by
himself and counsel, . . ."

With these precepts as springboard, the Rules of Court grants an accused the
right to counsel under the following provisions, viz.:
"RULE 112
PRELIMINARY INVESTIGATION
xxx xxx xxx
SEC. 7. When accused lawfully arrested without warrant. . . .
However, before the filing of such complaint or information, the person
arrested may ask for a preliminary investigation by a proper officer in
accordance with this Rule, but he must sign a waiver of the provisions of
Article 125 of the Revised Penal Code, as amended, with the assistance
of a lawyer and in case of non-availability of a lawyer, a responsible
person of his choice. . . .
xxx xxx xxx
RULE 113

ARREST
SEC. 14. Right of attorney or relative to visit person arrested. Any
member of the bar shall, at the request of the person arrested or of
another acting in his behalf, have the right to visit and confer privately
with such person, in the jail or any other place of custody at any hour of
the day or, in urgent cases, of the night. This right shall also be exercised
by any relative of the person arrested subject to reasonable regulation.

Rule 115
RIGHTS OF ACCUSED
SEC. 1. Rights of accused at the trial. In all criminal prosecutions, the
accused shall be entitled:
xxx xxx xxx
(c) To be present and defend in person and by counsel at every stage of
the proceedings, from the arraignment to the promulgation of the
judgment. . . .
xxx xxx xxx"

Rule 116 of the Rules of Court makes it compulsory that the trial court inform the
accused of his right to counsel prior to arraignment, thus:
"SEC. 6. Duty of court to inform accused of his right to counsel.
Before arraignment, the court shall inform the accused of his right to
counsel and shall ask him if he desires to have one. Unless the accused
is allowed to defend himself in person, or he has employed counsel of
his choice, the court must assign a counsel de oficioto defend him.
SEC. 7. Appointment of counsel de oficio. The court, considering the
gravity of the offense and the difficulty of the questions that may arise,
shall appoint as counsel de oficio only such members of the bar in good
standing who, by reason of their experience and ability may adequately
defend the accused. But in localities where such members of the bar are
not available, the court may appoint any person, resident of the province
and of good repute for probity and ability, to defend the accused."

Even on appeal, the accused is still afforded the right to counsel under Rule
122: 26
"SEC. 13. Appointment of counsel de oficio for accused on appeal. It
shall be the duty of the clerk of the trial court upon the presentation of a
notice of appeal in a criminal case, to ascertain from the appellant, if he
be confined in prison, whether he desires the Court of Appeals or the
Supreme Court to appoint a counsel to defend him de oficio and to
transmit with the record, upon a form to be prepared by the clerk of the
appellate court, a certificate of compliance with this duty and of the
response of the appellant to his inquiry."

The foregoing is buttressed by another provision in Rule 124:

"SEC. 2. Appointment of counsel de oficio for the accused. If it
appears from the record of the case as transmitted: (a) that the accused
is confined in prison, (b) without counsel de parte on appeal, and (c)
signed the notice of appeal himself, then the clerk of the Court of
Appeals shall designate a member of the bar to defend him, such
designation to be made by rotation, unless otherwise directed by order of
the court.
An accused-appellant not confined in prison shall not be entitled to a
counsel de oficio, unless the appointment of such counsel is requested
in the appellate court within ten (10) days from receipt of the notice to file
brief and the right thereto is established by affidavit."

Recently, Republic Act No. 7438 was enacted providing, inter alia, that any
person arrested, detained or under custodial investigation shall at all times be
assisted by counsel.
A deprivation of the right to counsel divests the accused of an equality in arms
resulting in the denial of a level playing field, so to speak. In a previous case, this
Court held that an accused was deprived of his right to counsel when he retained
the services of a person who misrepresented himself as a lawyer. 27 In People
vs. Malunsing,28 retrial was ordered on the ground that petitioner was denied his
constitutional right to counsel. Very old and unlettered, he was shown not to have
understood what was going on during the trial. In said case, although the lawyer
of his co-accused was appointed as his counsel, petitioner was not properly

apprised by said court of his right to be assisted by counsel. No evidence was

presented for and on his behalf and the trial court did not even bother to inquire
why he did not take the witness stand when all the other defendants were
presented as witnesses.
This is the legal backdrop against which appellant's allegation of deprivation of
his right to counsel shall be measured.
Right to Counsel De Parte Is Not Absolute
Accordingly, an accused may exercise his right to counsel by electing to be
represented either by a court-appointed lawyer or by one of his own choice.
While his right to be represented by counsel is immutable, his option to secure
the services of counsel de parte, however, is not absolute. The court is obliged to
balance the privilege to retain a counsel of choice against the state's and the
offended party's equally important right to speedy and adequate justice. Thus,
the court may restrict the accused's option to retain a counsel de parte if the
accused insists on an attorney he cannot afford, or the chosen counsel is not a
member of the bar, or the attorney declines to represent the accused for a valid
reason, e. g. conflict of interest and the like. 29
Also, the right to counsel de parte is, like other personal rights, waivable 30 so
long as (1) the waiver is not contrary to law, public order, public policy, morals or
good customs; or prejudicial to a third person with a right recognized by
law 31 and (2) the waiver is unequivocally, knowingly and intelligently made. 32
In Sayson vs. People, 33 this Court held that the duty of the court to appoint a
counsel de oficio is not mandatory where the accused has proceeded with the
arraignment and the trial with a counsel of his choice but, when the time for the
presentation of the evidence for the defense was due, he appears by himself
alone because of the inexcusable absence of his counsel. In another case, this
Court held that the right to be heard and to reopen the case (and send it to trial
anew) could not be allowed if doing so would sanction a plainly dilatory tactic and
a reprehensible trifling with the orderly administration of justice. 34
In the present case, appellant claims that he was not given sufficient time to
engage a counsel de parte, thereby preventing him from presenting evidence in
his defense. In his Brief he adds, but without giving particulars or proof, that

allegedly his counsels de oficio did not exert their "utmost efforts" in representing
him, thus: 35
". . . (T)he lower court afforded the accused the assistance of counsel de
oficio as early as the arraignment stage but failed to show that utmost
efforts were exerted by said counsel to defend the life and liberty of the
accused. The duty of the court is not ended with such appointment,
however, as it should also see to it that the counsel does his duty by the
defendant. Counsel de oficio should not merely make the motions of
defending the accused but exert his utmost efforts as if he were
representing a paying client."

The Solicitor General, in his eleven-page Brief, 36 rebuts this, arguing that
appellant's actions during the trial showed instead a "lackadaisical stance on his
own defense."
Appellant had been given ample time to secure the services of a counsel de
parte, but his subsequent appearances in court without such counsel and his act
of allowing this situation to continue until the presentation of his evidence betrays
his lack of intention to do so. It even appears that he was merely delaying his own
presentation of evidence on purpose to the prejudice of the offended party, the
trial court and the orderly administration of justice.
Furthermore, appellant did not demonstrate in what way the services of his
counsels de oficio were unsatisfactory. He did not cite any instance substantiating
his claim that he was not effectively represented. In short, he was afforded a
chance to be heard by counsel of his own choice, but by his own neglect or
mischief, he effectively waived such right. It taxes the mind to think that, almost
two years 37 since appellant first invoked his right to be represented by
counsel de parte, he still could not find one who would suit his needs and
desires. Neither did he cooperate with his court-named lawyers.
The facts of this case do not constitute a deprivation of appellant's constitutional
right to counsel because he was adequately represented by three courtappointed lawyers: Atty. Lina-ac, Atty. Antonano and Atty. Garcia. Courts are not
required to await indefinitely the pleasure and convenience of the accused as
they are also mandated to promote the speedy and orderly administration of
justice. Nor should they countenance such an obvious trifling with the rules.

Indeed, public policy requires that the trial continue as scheduled, considering
that appellant was adequately represented by counsels who were not shown to
be negligent, incompetent or otherwise unable to represent him.
Crime and Punishment
In spite of appellant's failure, either through negligence or unreasonable refusal,
to impute errors to the assailed Decision other than the alleged violation of his
right to counsel this Court nonetheless scoured the records of the trial,
perused the transcripts of the testimony of the witnesses for the prosecution,
evaluated the evidence and examined the applicable laws and jurisprudence to
determine the correctness of the trial court's Decision. We, however, find no
cogent reason to reverse the conviction of appellant. In a case of murder or
homicide, it is enough that the death of the victim and the responsibility of the
person who caused such death are proven 38 beyond reasonable doubt. Both
elements were duly established by the prosecution witnesses. Dr. Gajardo
testified to the fact of death while Widow Adelaida Alcantara positively identified
the appellant as the assailant.
Based on the facts established by the prosecution which remain uncontested, the
Court affirms the trial court's appreciation of the qualifying circumstance of
treachery. To constitute treachery, two conditions must concur: (1) the
employment of means of execution that gives the person attacked no opportunity
to defend himself or to retaliate and (2) deliberate or conscious adoption of the
means of execution. 39 The manner of the attack itself is proof enough
of alevosia. Widow Adelaida vividly described the stabbing as follows: 40

"Q. And you said a certain Suzana Serzo together with one Epifania
Bentilacion came to your house and asked for help from you, is
that right?
A. Yes, sir.
Q. And that you responded for help Mrs. witness?
A. Yes, sir.
Q. And you are together with your husband in helping Suzana Serzo?

A. Yes, sir.
Q. What was the help she was asking Mrs. witness?
xxx xxx xxx
A. She was asking to help her children being held by Mario Serzo by not
letting them go out of the house.
xxx xxx xxx
Q. Were you able to help the grandchildren of Suzana Serzo?
A. Yes, sir.
Q. And after you help (sic) them what happened next?
A. We brought them to where they could hide and then we went home.
Q. You said you heard somebody approaching you at the back through
the sound of his footsteps is that right?
A. Yes, sir.
xxx xxx xxx
Q. What happened next after you hear (sic) those footsteps at your
back?
A. My husband was just beside me.
Q. And immediately your husband was stabbed by the accused?
A. Yes, sir."

From this testimony, it appears that appellant waited for the victim and his wife
and pounced on them swiftly and without warning. The victim and his wife were
already on their way home after transferring appellant's children to a safe place.
They were unarmed as they had absolutely no idea that appellant would attack
them right then and from behind. The manner of the attack tended directly and
especially to insure the execution of the crime without risk to appellant and
virtually no chance for the victim to defend himself. 41 Even Adelaida's life would
have been mortally threatened were it not for the timely intervention of her
neighbors.

Damages and Indemnity

Actual and moral damages require the presentation of proof before they can be
awarded by the trial court. 42 According to Adelaida, burial expenses in the
amount of P2,000.00 were incurred. 43 This is separate and distinct from civil
indemnity awarded under prevailing jurisprudence, which is granted without
further proof beyond the fact of death and the accused's responsibility therefor.
Moral damages were not discussed at all in Adelaida's testimony. Hence, without
any factual basis, the award of moral damages is not justified.
WHEREFORE, the assailed Decision is hereby AFFIRMED, but the award of
moral damages is DELETED. Instead, appellant is ORDERED TO PAY the
amount of P50,000.00 as civil indemnity and actual damages of P2,000.00 as
burial expenses.
SO ORDERED.
|||

(People v. Serzo, Jr., G.R. No. 118435, [June 20, 1997], 340 PHIL 660-679)

29
[G.R. No. 160739. July 17, 2013.]
ANITA MANGILA, petitioner, vs. JUDGE HERIBERTO M.
PANGILINAN, ASST. CITY PROSECUTOR II LUCIA JUDY
SOLINAP, and NATIONAL BUREAU OF INVESTIGATION
(DIRECTOR REYNALDO WYCOCO), respondents.
DECISION
BERSAMIN, J :
p

Restraint that is lawful and pursuant to a court process cannot be inquired into
through habeas corpus.

Antecedents
On June 16, 2003, seven criminal complaints charging petitioner Anita Mangila
and four others with syndicated estafa in violation of Article 315 of the Revised
Penal Code, in relation to Presidential Decree No. 1689, and with violations of
Section 7 (b) of Republic Act No. 8042 (Migrant Workers and Overseas Filipino
Act of 1995) were filed in the Municipal Trial Court in Cities in Puerto Princesa
City (MTCC), docketed as Criminal Cases No. 16916 to No. 16922. The
complaints arose from the recruiting and promising of employment by Mangila
and the others to the private complainants as overseas contract workers in
Toronto, Canada, and from the collection of visa processing fees, membership
fees and on-line application the private complainants without lawful authority from
the Philippine Overseas Employment Administration (POEA). 1
On the following day, June 17, 2003, Judge Heriberto M. Pangilinan, Presiding
Judge of the MTCC, conducted a preliminary investigation on the complaints.
After examining Miguel Aaron Palayon, one of the complainants, Judge
Pangilinan issued a warrant for the arrest of Mangila and her cohorts without
bail. 2 On the next day, the entire records of the cases, including the warrant of
arrest, were transmitted to the City Prosecutor of Puerto Princesa City for further
proceedings and appropriate action in accordance with the prevailing rules. 3
As a consequence, Mangila was arrested on June 18, 2003 and detained at the
headquarters on Taft Avenue, Manila of the National Bureau of Investigation
(NBI). 4
Claiming that Judge Pangilinan did not have the authority to conduct the
preliminary investigation; that the preliminary investigation he conducted was not
yet completed when he issued the warrant of arrest; and that the issuance of the
warrant of arrest was without sufficient justification or without a prior finding of
probable cause, Mangila filed in the Court of Appeals (CA) a petition for habeas
corpus to obtain her release from detention. Her petition averred that the remedy
of habeas corpus was available to her because she could no longer file a motion
to quash or a motion to recall the warrant of arrest considering that Judge
Pangilinan had already forwarded the entire records of the case to the City
Prosecutor who had no authority to lift or recall the warrant. 5
STcHEI

In its resolution promulgated on October 14, 2003,

for habeas corpus for its lack of merit, explaining:

the CA denied the petition

As a general rule, a writ of habeas corpus will not be granted where relief
may be had or could have been procured by resort to another general
remedy. As pointed out in Luna vs. Plaza, if petitioner is detained by
virtue of a warrant of arrest, which is allegedly invalid, the remedy
available to her is not a petition for habeas corpusbut a petition to quash
the warrant of arrest or a petition for a reinvestigation of the case by the
Municipal Judge or by the Provincial Fiscal.
Section 5, Rule 112 of the Revised Rules of Criminal Procedure provides
that the Municipal Judge who conducted the preliminary investigation
shall transmit his resolution, together with the record of the case,
including the warrant of arrest, to the Provincial Prosecutor, who shall
review the same and order the release of an accused who is detained if
no probable cause is found against him. Thus, the proper remedy
available to petitioner is for her to file with the Provincial Prosecutor a
motion to be released from detention on the grounds alleged in the
instant petition.
WHEREFORE, the petition for habeas corpus is DENIED for lack of
merit.
SO ORDERED. 7

Mangila moved for the reconsideration of the denial of her petition for habeas
corpus, 8 but the CA denied the motion on November 19, 2003. 9
Hence, this appeal via petition for review on certiorari.
Issue
Did the CA err in ruling that habeas corpus was not the proper remedy to obtain
the release of Mangila from detention?
Ruling of the Court
The petition for review lacks merit.
The high prerogative writ of habeas corpus has been devised as a speedy and
effective remedy to relieve persons from unlawful restraint. In Caballes v. Court of

Appeals, 10 the Court discoursed on the nature of the special proceeding

of habeas corpus in the following manner:
A petition for the issuance of a writ of habeas corpus is a special
proceeding governed by Rule 102 of the Rules of Court,as amended.
In Ex Parte Billings, it was held that habeas corpus is that of a civil
proceeding in character. It seeks the enforcement of civil rights.
Resorting to the writ is not to inquire into the criminal act of which the
complaint is made, but into the right of liberty, notwithstanding the act
and the immediate purpose to be served is relief from illegal restraint.
The rule applies even when instituted to arrest a criminal prosecution
and secure freedom. When a prisoner petitions for a writ of habeas
corpus, he thereby commences a suit and prosecutes a case in that
court.
Habeas corpus is not in the nature of a writ of error; nor intended as
substitute for the trial court's function. It cannot take the place of
appeal, certiorari or writ of error. The writ cannot be used to investigate
and consider questions of error that might be raised relating to procedure
or on the merits. The inquiry in a habeas corpus proceeding is
addressed to the question of whether the proceedings and the
assailed order are, for any reason, null and void. The writ is not
ordinarily granted where the law provides for other remedies in the
regular course, and in the absence of exceptional circumstances.
Moreover, habeas corpus should not be granted in advance of trial.
The orderly course of trial must be pursued and the usual remedies
exhausted before resorting to the writ where exceptional
circumstances are extant. In another case, it was held that habeas
corpus cannot be issued as a writ of error or as a means of
reviewing errors of law and irregularities not involving the
questions of jurisdiction occurring during the course of the trial,
subject to the caveat that constitutional safeguards of human life
and liberty must be preserved, and not destroyed. It has also been
held that where restraint is under legal process, mere errors and
irregularities, which do not render the proceedings void, are not
grounds for relief by habeas corpus because in such cases, the
restraint is not illegal.
CIScaA

Habeas corpus is a summary remedy. It is analogous to a proceeding in

rem when instituted for the sole purpose of having the person of restraint
presented before the judge in order that the cause of his detention may
be inquired into and his statements final. The writ of habeas corpus does
not act upon the prisoner who seeks relief, but upon the person who
holds him in what is alleged to be the unlawful authority. Hence, the only
parties before the court are the petitioner (prisoner) and the person
holding the petitioner in custody, and the only question to be resolved is
whether the custodian has authority to deprive the petitioner of his
liberty. The writ may be denied if the petitioner fails to show facts that he
is entitled thereto ex merito justicias.
A writ of habeas corpus, which is regarded as a "palladium of liberty," is
a prerogative writ which does not issue as a matter of right but in the
sound discretion of the court or judge. It is, however, a writ of right on
proper formalities being made by proof. Resort to the writ is not to inquire
into the criminal act of which a complaint is made but unto the right of
liberty, notwithstanding the act, and the immediate purpose to be served
is relief from illegal restraint. The primary, if not the only object of the writ
of habeas corpus ad subjuciendum, is to determine the legality of the
restraint under which a person is held. 11 (Bold underscoring supplied

for emphasis)
The object of the writ of habeas corpus is to inquire into the legality of the
detention, and, if the detention is found to be illegal, to require the release of the
detainee. Equally well-settled however, is that the writ will not issue where the
person in whose behalf the writ is sought is out on bail, or is in the custody of an
officer under process issued by a court or judge with jurisdiction or by virtue of a
judgment or order of a court of record. 12
There is no question that when the criminal complaints were lodged against
Mangila and her cohorts on June 16, 2003, Judge Pangilinan, as the Presiding
Judge of the MTCC, was empowered to conduct preliminary investigations
involving "all crimes cognizable by the proper court in their respective territorial
jurisdictions." His authority was expressly provided in Section 2, Rule 112 of
the Revised Rules of Criminal Procedure, to wit:

Section 2. Officers authorized to conduct preliminary investigations.

The following may conduct preliminary investigations:
(a) Provincial or City Prosecutors and their assistants;
(b) Judges of the Municipal Trial Courts and Municipal Circuit Trial
Courts;
(c) National and Regional State Prosecutors; and
(d) Other officers as may be authorized by law.
Their authority to conduct preliminary investigations shall include
all crimes cognizable by the proper court in their respective
territorial jurisdictions. (2a)

Under Section 6 (b) of Rule 112 of the Revised Rules of Criminal Procedure, the
investigating judge could issue a warrant of arrest during the preliminary
investigation even without awaiting its conclusion should he find after an
examination in writing and under oath of the complainant and the witnesses in
the form of searching questions and answers that a probable cause existed, and
that there was a necessity of placing the respondent under immediate custody in
order not to frustrate the ends of justice. In the context of this rule, Judge
Pangilinan issued the warrant of arrest against Mangila and her cohorts.
Consequently, the CA properly denied Mangila's petition for habeas
corpus because she had been arrested and detained by virtue of the warrant
issued for her arrest by Judge Pangilinan, a judicial officer undeniably possessing
the legal authority to do so.
It is relevant to point out at this juncture that the authority of the MTC and MTCC
judges to conduct preliminary investigations was removed only effective on
October 3, 2005 pursuant to A.M. No. 05-8-26-SC.
With Mangila's arrest and ensuing detention being by virtue of the order lawfully
issued by Judge Pangilinan, the writ of habeas corpus was not an appropriate
remedy to relieve her from the restraint on her liberty. This is because the
restraint, being lawful and pursuant to a court process, could not be inquired into
through habeas corpus. To quote the dictum enunciated by Justice Malcolm
in Quintos v. Director of Prisons: 13

The writ of habeas corpus secures to a prisoner the right to have the
cause of his detention examined and determined by a court of justice,
and to have ascertained if he is held under lawful authority. The function
of habeas corpus, where the party who has appealed to its aid is in
custody under process, does not extend beyond an inquiry into the
jurisdiction of the court by which it was issued and the validity of
the process upon its face. It is not a writ of error. . . . (Bold
underscoring supplied for emphasis)

Accordingly, Section 4, Rule 102 of the Rules of Court explicitly states:

Section 4. When writ not allowed or discharge authorized. If it
appears that the person alleged to be restrained of his liberty is in
the custody of an officer under process issued by a court or judge
or by virtue of a judgment or order of a court of record, and that the
court or judge had jurisdiction to issue the process, render the
judgment, or make the order, the writ shall not be allowed; or if the
jurisdiction appears after the writ is allowed, the person shall not be
discharged by reason of any informality or defect in the process,
judgment, or order. Nor shall anything in this rule be held to authorize
the discharge of a person charged with or convicted of an offense in the
Philippines, or of a person suffering imprisonment under lawful
judgment. (Bold underscoring supplied for emphasis)

Still, Mangila harps on the procedural flaws supposedly committed by Judge

Pangilinan in her attempt to convince the Court on her entitlement to the
issuance of the writ of habeas corpus. She insists that the illegality and invalidity
of the warrant of arrest because of its having been issued without an exhaustive
examination of the complainants and the witnesses in writing and under oath;
without a prior finding of probable cause; and without consideration of the
necessity for its issuance in order not to frustrate the ends of justice were enough
reasons for granting the writ of habeas corpus. 14
Mangila fails to persuade.

ScaHDT

To begin with, Judge Pangilinan issued the order of arrest after examining
Palayon, one of the complainants against Mangila and her cohorts. If he, as the
investigating judge, considered Palayon's evidence sufficient for finding probable

cause against her and her cohorts, which finding the Court justifiably presumes
from his act of referring the case and its records to the Office of the City
Prosecutor on the day immediately following the preliminary investigation he
conducted, her petition forhabeas corpus could not be the proper remedy by
which she could assail the adequacy of the adverse finding. Even granting that
there was a failure to adhere to the law or rule, such failure would not be the
equivalent of a violation of her constitutional rights. 15
Secondly, it was not procedurally correct for her to impugn the issuance of the
warrant of arrest by hinting that the investigating judge did not at all consider the
necessity of determining the existence of probable cause for its issuance due to
time constraints and in order not to frustrate the ends of justice, for that
consideration was presumed.
And, lastly, it was clear that under Section 5, 16 Rule 112 of the Revised Rules of
Criminal Procedure, the resolution of the investigating judge was not final but was
still subject to the review by the public prosecutor who had the power to order the
release of the detainee if no probable cause should be ultimately found against
her. In the context of the rule, Mangila had no need to seek the issuance of the
writ of habeas corpus to secure her release from detention. Her proper recourse
was to bring the supposed irregularities attending the conduct of the preliminary
investigation and the issuance of the warrant for her arrest to the attention of the
City Prosecutor, who had been meanwhile given the most direct access to the
entire records of the case, including the warrant of arrest, following Judge
Pangilinan's transmittal of them to the City Prosecutor for appropriate
action. 17 We agree with the CA, therefore, that the writ of habeas corpus could
not be used as a substitute for another available remedy. 18
WHEREFORE, the Court AFFIRMS the resolutions promulgated on October 14,
2003 and November 19, 2003 in C.A.-G.R. SP No. 79745; and ORDERS the
petitioner to pay the costs of suit.
SO ORDERED.
|||

(Mangila v. Pangilinan, G.R. No. 160739, [July 17, 2013], 714 PHIL 204-214)

30
[G.R. No. 182497. June 29, 2010.]
NURHIDA JUHURI AMPATUAN, petitioner, vs. JUDGE VIRGILIO
V. MACARAIG, REGIONAL TRIAL COURT, MANILA, BRANCH
37, DIRECTOR GENERAL AVELINO RAZON, JR., DIRECTOR
GEARY BARIAS, PSSUPT. CO YEE M. CO, JR. and POLICE
CHIEF INSPECTOR AGAPITO QUIMSON, respondents.
DECISION
PEREZ, J :
p

Before this Court is a Petition for Certiorari under Rule 65 1 of the Rules
of Court assailing the Order dated 25 April 2008 of the Regional Trial Court
(RTC) of Manila, Branch 37, in Special Proceeding No. 08-119132 which
denied the petition for Habeas Corpus filed by herein Petitioner Nurhida Juhuri
Ampatuan in behalf of her husband Police Officer 1 Basser B.
Ampatuan 2 (PO1 Ampatuan).
Petitioner alleged in her petition that her husband PO1 Ampatuan was
assigned at Sultan Kudarat Municipal Police Station. On 14 April 2008, he was
asked by his Chief of Police to report to the Provincial Director of Shariff
Kabunsuan, Superintendent Esmael Pua Ali (Supt. Ali). The latter brought
PO1 Ampatuan to Superintendent Piang Adam, Provincial Director of the
Philippine National Police (PNP) Maguindanao. PO1 Ampatuan was directed
to stay at the Police Provincial Office of Maguindanao without being informed
of the cause of his restraint. The next day, 15 April 2008, PO1 Ampatuan was
brought to the General Santos City Airport and was made to board a
Philippine Airlines plane bound for Manila. Upon landing at the Manila
Domestic Airport, PO1 Ampatuan was turned over to policemen of Manila and
brought to Manila Mayor Alfredo Lim by Police Director Geary Barias and
General Roberto Rosales. A press briefing was then conducted where it was

announced that PO1 Ampatuan was arrested for the killing of two Commission
on Elections (COMELEC) Officials. He was then detained at the Police Jail in
United Nations Avenue, Manila. Thereafter, PO1 Ampatuan was brought to
inquest Prosecutor Renato Gonzaga of the Office of the City Prosecutor of
Manila due to the alleged murder of Atty. Alioden D. Dalaig, head of the Law
Department of the COMELEC. On 20 April 2008, PO1 Ampatuan was turnedover to the Regional Headquarters Support Group in Camp Bagong
Diwa, Taguig City. 3
acTDCI

Petitioner continues that on 21 April 2008, Chief Inquest Prosecutor

Nelson Salva ordered the release for further investigation of PO1
Ampatuan. 4 The Order was approved by the City Prosecutor of Manila. But
Police Senior Superintendent Co Yee Co, Jr., and Police Chief Inspector
Agapito Quimson refused to release PO1 Ampatuan.
This prompted Petitioner to file the petition for writ of habeas corpus in
the RTC of Manila, Branch 37. 5
Private respondents had another version of the antecedent facts. They
narrated that at around 7:08 o'clock in the evening of 10 November 2007, a
sixty-four-year-old man, later identified as Atty. Alioden D. Dalaig, Head of the
COMELEC Legal Department, was killed at the corner of M.H. del Pilar and
Pedro Gil Streets, Ermita, Manila. Investigation conducted by the Manila
Police District (MPD) Homicide Section yielded the identity of the male
perpetrator as PO1 Ampatuan. Consequently, PO1 Ampatuan was
commanded to the MPD District Director for proper disposition. Likewise,
inquest proceedings were conducted by the Manila Prosecutor's Office.
On 18 April 2008, Police Senior Superintendent Atty. Clarence V.
Guinto, rendered his Pre-Charge Evaluation Report against PO1 Ampatuan,
finding probable cause to charge PO1 Ampatuan with Grave Misconduct
(Murder) and recommending that said PO1 Ampatuan be subjected to
summary hearing.
On even date, a charge sheet for Grave Misconduct was executed
against PO1 Ampatuan, the accusatory portion of which reads:
CHARGE SHEET

THE UNDERSIGNED NOMINAL COMPLAINANT hereby charges

above-named respondent of the administrative offense of Grave
Misconduct (murder) pursuant to Section 52 of R.A. 8551 6 in relation to
NAPOLCOM Memorandum Circular 93-024, committed as follows:
That on or about 7:08 in the evening of November 10, 2007, in M.H. del
Pilar and Pedro Gil St., Ermita, Manila, above-named respondent while
being an active member of the PNP and within the jurisdiction of this
office, armed with a cal. 45 pistol, with intent to kill, did then and there
willfully, unlawfully and feloniously, shot Atty. Alioden D. Dalaig, Jr.,
COMELEC official on the different parts of his body, thereby inflicting
upon the latter mortal gunshot wounds which directly cause (sic) his
death.
Acts contrary to the existing PNP Laws Rules and Regulations. 7

Also, through a Memorandum dated 18 April 2008, Police Director

General Avelino I. Razon, Jr. directed the Regional Director of the National
Capital Regional Police Office (NCRPO) to place PO1 Ampatuan under
restrictive custody, thus:
EcATDH

1. Reference: Memo from that Office dated April 15, 2008 re Arrest of
PO1 Busser Ampatuan, suspect in the killing of Atty. Alioden
Dalaig and Atty. Wynee Asdala, both COMELEC Legal Officers.
2. This pertains to the power of the Chief, PNP embodied in Section 52
of RA 8551, to place police personnel under restrictive custody
during the pendency of a grave administrative case filed against
him or even after the filing of a criminal complaint, grave in nature,
against such police personnel.
3. In this connection, you are hereby directed to place PO1 Busser
Ampatuan, suspect in the killing of Atty. Alioden Dalaig and Atty.
Wynee Asdala, both COMELEC Legal Officers, under your
restrictive custody.
4. For strict compliance. 8

On 19 April 2008, through a Memorandum Request dated 18 April

2008, respondent Police Director Geary L. Barias requested for the creation of
the Summary Hearing Board to hear the case of PO1 Ampatuan. 9

On 20 April 2008, Special Order No. 921 was issued by Police Director
Edgardo E. Acua, placing PO1 Ampatuan under restrictive custody of the
Regional Director, NCRPO, effective 19 April 2008. Said Special Order No.
921, reads:
Restrictive Custody
PO1 Basser B. Ampatuan 128677, is placed under restrictive custody of
the Regional Director, NCRPO effective April 19, 2008. (Reference:
Memorandum from CPNP dated 18 April 2008).
BY COMMAND OF POLICE DIRECTOR GENERAL RAZON: 10

Meanwhile, on 21 April 2008, the City Prosecutor of Manila

recommended that the case against PO1 Ampatuan be set for further
investigation and that the latter be released from custody unless he is being
held for other charges/legal grounds. 11
Armed with the 21 April 2008 recommendation of the Manila City's
Prosecution Office, petitioner, who is the wife of PO1 Ampatuan, filed a
Petition for the Issuance of a Writ of Habeas Corpus before the RTC of Manila
on 22 April 2008. The petition was docketed as Special Proceeding No. 08119132 and was raffled to Branch 37.
aTcSID

On 24 April 2008, finding the petition to be sufficient in form and

substance, respondent Judge Virgilio V. Macaraig ordered the issuance of a
writ of habeas corpus commanding therein respondents to produce the body
of PO1 Ampatuan and directing said respondents to show cause why they are
withholding or restraining the liberty of PO1 Ampatuan. 12
On 25 April 2008, the RTC resolved the Petition in its Order which
reads:
Essentially, counsels for petitioner insists that PO1 Basser Ampatuan is
being illegally detained by the respondents despite the order of release
of Chief Inquest Prosecutor Nelson Salva dated April 21, 2008. They
further claim that as of April 23, 2008, no administrative case was filed
against PO1 Ampatuan.
Respondents, while admitting that to date no criminal case was filed
against PO1 Ampatuan, assert that the latter is under restrictive custody

since he is facing an administrative case for grave misconduct. They

submitted to this Court the Pre-charge Evaluation Report and Charge
Sheet. Further, in support of their position, respondents cited the case
of SPO2 Manalo, et al. v. Hon. Calderon, G.R. No. 178920 claiming
that habeas corpus will not lie for a PNP personnel under restrictive
custody. They claim that this is authorized under Section 52, Par. 4
of R.A. 8551 authorizing the Chief of PNP to place the PNP personnel
under restrictive custody during the pendency of administrative case for
grave misconduct.
Petitioner countered that the administrative case filed against PO1
Ampatuan was ante-dated to make it appear that there was such a case
filed before April 23, 2008.
The function of habeas corpus is to determine the legality of one's
detention, meaning, if there is sufficient cause for deprivation or
confinement and if there is none to discharge him at once. For habeas
corpus to issue, the restraint of liberty must be in the nature of illegal and
involuntary deprivation of freedom which must be actual and effective,
not nominal or moral.
Granting arguendo that the administrative case was ante-dated, the
Court cannot simply ignore the filing of an administrative case filed
against PO1 Ampatuan. It cannot be denied that the PNP has its own
administrative disciplinary mechanism and as clearly pointed out by the
respondents, the Chief PNP is authorized to place PO1 Ampatuan under
restrictive custody pursuant to Section 52, Par. 4 of R.A. 8551.
The filing of the administrative case against PO1 Ampatuan is a process
done by the PNP and this Court has no authority to order the release of
the subject police officer.
TacSAE

Lastly, anent the contention of the petitioner that the letter resignation of
PO1 Ampatuan has rendered the administrative case moot and
academic, the same could not be accepted by this Court. It must be
stressed that the resignation has not been acted (sic) by the appropriate
police officials of the PNP, and that the administrative case was filed
while PO1 Ampatuan is still in the active status of the PNP.

WHEREFORE, premises considered, the petition for habeas corpus is

hereby DISMISSED. 13

Distressed, petitioner is now before this Court via a Petition

for Certiorari under Rule 65 of the Rules of Court to question the validity of the
RTC Order dated 25 April 2008. The issues are:
I. THE RESPONDENT COURT GRAVELY ABUSED ITS DISCRETION
WHEN IT FAILED TO CONSIDER THAT THE ARREST AND
DETENTION OF PO1 BASSER B. AMPATUAN WAS MADE WITHOUT
ANY WARRANT AND THEREFORE, ILLEGAL;
II. THE RESPONDENT COURT GRAVELY ABUSED ITS DISCRETION
WHEN IT CONCEDED THE AUTHORITY OF RESPONDENT AVELINO
RAZON, JR. UNDER SEC. 52, PAR. 4, R.A. 8551 TO PLACE
AMPATUAN UNDER RESTRICTIVE CUSTODY FOR ADMINISTRATIVE
PROCEEDINGS;
III. THE RESPONDENT COURT GRAVELY ABUSED ITS DISCRETION
WHEN IT SHIRKED FROM ITS JUDICIAL DUTY TO ORDER THE
RELEASE OF PO1 AMPATUAN FROM THE CUSTODY OF
RESPONDENTS MAMANG PULIS. 14

Essentially, a writ of habeas corpus applies to all cases of illegal

confinement or detention by which any person is deprived of his liberty. 15
Rule 102 of the 1997 Rules of Court sets forth the procedure to be
followed in the issuance of the writ. The Rule provides:
RULE 102
HABEAS CORPUS
SEC. 1. To what habeas corpus extends. Except as otherwise
expressly provided by law, the writ of habeas corpus shall extend to all
cases of illegal confinement or detention by which any person is
deprived of his liberty, or by which the rightful custody of any person is
withheld from the person entitled thereto.
SEC. 2. Who may grant the writ. The writ of habeas corpus may be
granted by the Supreme Court, or any member thereof, on any day and
at any time, or by the Court of Appeals or any member thereof in the

instances authorized by law, and if so granted it shall be enforceable

anywhere in the Philippines, and may be made returnable before the
court or any member thereof, or before a Court of First Instance, or any
judge thereof for hearing and decision on the merits. It may also be
granted by a Court of First Instance, or a judge thereof, on any day and
at any time, and returnable before himself, enforceable only within his
judicial district.
CITaSA

xxx xxx xxx

SEC. 4. When writ not allowed or discharge authorized. If it appears
that the person alleged to be restrained of his liberty is in the custody of
an officer under process issued by a court or judge or by virtue of a
judgment or order of a court of record, and that the court or judge had
jurisdiction to issue the process, render the judgment, or make the order,
the writ shall not be allowed; or if the jurisdiction appears after the writ is
allowed, the person shall not be discharged by reason of any informality
or defect in the process, judgment, or order. Nor shall anything in this
rule be held to authorize the discharge of a person charged with or
convicted of an offense in the Philippines, or of a person suffering
imprisonment under lawful judgment.

The objective of the writ is to determine whether the confinement or

detention is valid or lawful. If it is, the writ cannot be issued. What is to be
inquired into is the legality of a person's detention as of, at the earliest, the
filing of the application for the writ of habeas corpus, for even if the detention
is at its inception illegal, it may, by reason of some supervening events, such
as the instances mentioned in Section 4 of Rule 102, be no longer illegal at
the time of the filing of the application. 16
Plainly stated, the writ obtains immediate relief for those who have been
illegally confined or imprisoned without sufficient cause. The writ, however,
should not be issued when the custody over the person is by virtue of a
judicial process or a valid judgment. 17
The most basic criterion for the issuance of the writ, therefore, is that
the individual seeking such relief is illegally deprived of his freedom of
movement or placed under some form of illegal restraint. If an individual's
liberty is restrained via some legal process, the writ of habeas corpus is

unavailing. 18 Fundamentally, in order to justify the grant of the writ of habeas

corpus, the restraint of liberty must be in the nature of an illegal and
involuntary deprivation of freedom of action. 19
In general, the purpose of the writ of habeas corpus is to determine
whether or not a particular person is legally held. A prime specification of an
application for a writ of habeas corpus, in fact, is an actual and effective, and
not merely nominal or moral, illegal restraint of liberty. The writ of habeas
corpus was devised and exists as a speedy and effectual remedy to relieve
persons from unlawful restraint, and as the best and only sufficient defense of
personal freedom. A prime specification of an application for a writ of habeas
corpus is restraint of liberty. The essential object and purpose of the writ
of habeas corpus is to inquire into all manner of involuntary restraint as
distinguished from voluntary, and to relieve a person therefrom if such
restraint is illegal. Any restraint which will preclude freedom of action is
sufficient. 20
IDcAHT

In passing upon a petition for habeas corpus, a court or judge must first
inquire into whether the petitioner is being restrained of his liberty. If he is not,
the writ will be refused. Inquiry into the cause of detention will proceed only
where such restraint exists. If the alleged cause is thereafter found to be
unlawful, then the writ should be granted and the petitioner discharged.
Needless to state, if otherwise, again the writ will be refused. 21
While habeas corpus is a writ of right, it will not issue as a matter of
course or as a mere perfunctory operation on the filing of the petition. Judicial
discretion is called for in its issuance and it must be clear to the judge to
whom the petition is presented that, prima facie, the petitioner is entitled to the
writ. It is only if the court is satisfied that a person is being unlawfully
restrained of his liberty will the petition for habeas corpus be granted. If the
respondents are not detaining or restraining the applicant or the person in
whose behalf the petition is filed, the petition should be dismissed. 22
Petitioner contends that when PO1 Ampatuan was placed under the
custody of respondents on 20 April 2008, there was yet no administrative case
filed against him. When the release order of Chief Inquest Prosecutor Nelson
Salva was served upon respondents on 21 April 2008, there was still no

administrative case filed against PO1 Ampatuan. She also argues that the
arrest on 14 April 2008 of PO1 Ampatuan in Shariff Kabunsuan was illegal
because there was no warrant of arrest issued by any judicial authority against
him.
On the other hand, respondents, in their Comment 23 filed by the Office
of the Solicitor General, argue that the trial court correctly denied the subject
petition. Respondents maintain that while the Office of the City Prosecutor of
Manila had recommended that PO1 Ampatuan be released from custody, said
recommendation was made only insofar as the criminal action for murder that
was filed with the prosecution office is concerned and is without prejudice to
other legal grounds for which he may be held under custody. In the instant
case, PO1 Ampatuan is also facing administrative charges for Grave
Misconduct. They cited the case of Manalo v. Calderon, 24 where this Court
held that a petition for habeas corpus will be given due course only if it shows
that petitioner is being detained or restrained of his liberty unlawfully, but a
restrictive custody and monitoring of movements or whereabouts of police
officers under investigation by their superiors is not a form of illegal detention
or restraint of liberty. 25
The Solicitor General is correct.
In this case, PO1 Ampatuan has been placed under Restrictive
Custody. Republic Act No. 6975 (also known as the Department of Interior
and Local Government Act of 1990), as amended by Republic Act No. 8551
(also known as the Philippine National Police Reform and Reorganization Act
of 1998), clearly provides that members of the police force are subject to the
administrative disciplinary machinery of the PNP. Section 41 (b) of the said
law enumerates the disciplinary actions, including restrictive custody that may
be imposed by duly designated supervisors and equivalent officers of the PNP
as a matter of internal discipline. The pertinent provision of Republic Act No.
8551 reads:
AIHDcC

Sec. 52.. . . .
xxx xxx xxx

4. The Chief of the PNP shall have the power to impose the disciplinary
punishment of dismissal from the service; suspension or forfeiture of
salary; or any combination thereof for a period not exceeding one
hundred eighty (180) days. Provided, further, That the Chief of the
PNP shall have the authority to place police personnel under
restrictive custody during the pendency of a grave administrative
case filed against him or even after the filing of a criminal
complaint, grave in nature, against such police personnel.
[Emphasis ours].

Given that PO1 Ampatuan has been placed under restrictive custody,
such constitutes a valid argument for his continued detention. This Court has
held that a restrictive custody and monitoring of movements or whereabouts of
police officers under investigation by their superiors is not a form of illegal
detention or restraint of liberty. 26
Restrictive custody is, at best, nominal restraint which is beyond the
ambit of habeas corpus. It is neither actual nor effective restraint that would
call for the grant of the remedy prayed for. It is a permissible precautionary
measure to assure the PNP authorities that the police officers concerned are
always accounted for. 27
Since the basis of PO1 Ampatuan's restrictive custody is the
administrative case filed against him, his remedy is within such administrative
process.
We likewise note that PO1 Ampatuan has been under restrictive
custody since 19 April 2008. To date, the administrative case against him
should have already been resolved and the issue of his restrictive custody
should have been rendered moot and academic, in accordance with Section
55 of Republic Act No. 8551, which provides:
SEC. 55. Section 47 of Republic Act No. 6975 is hereby amended to
read as follows:
Sec. 47. Preventive Suspension Pending Criminal Case. Upon the
filing of a complaint or information sufficient in form and substance
against a member of the PNP for grave felonies where the penalty
imposed by law is six (6) years and one (1) day or more, the court shall

immediately suspend the accused from office for a period not exceeding
ninety (90) days from arraignment: Provided, however, That if it can be
shown by evidence that the accused is harassing the complainant and/or
witnesses, the court may order the preventive suspension of the accused
PNP member even if the charge is punishable by a penalty lower than
six (6) years and one (1) day: Provided, further, That the preventive
suspension shall not be more than ninety (90) days except if the delay in
the disposition of the case is due to the fault, negligence or petitions of
the respondent: Provided, finally, That such preventive suspension may
be sooner lifted by the court in the exigency of the service upon
recommendation of the Chief, PNP. Such case shall be subject to
continuous trial and shall be terminated within ninety (90) days
from arraignment of the accused. (Emphasis supplied.)
DHaEAS

Having conceded that there is no grave abuse of discretion on the part

of the trial court, we have to dismiss the petition.
In sum, petitioner is unable to discharge the burden of showing that she
is entitled to the issuance of the writ prayed for in behalf of her husband, PO1
Ampatuan. The petition fails to show on its face that the latter is unlawfully
deprived of his liberty guaranteed and enshrined in the Constitution.
WHEREFORE, premises considered, the instant petition is DISMISSED for lack
of merit.
Costs against petitioner.
SO ORDERED.
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(Ampatuan v. Macaraig, G.R. No. 182497, [June 29, 2010], 636 PHIL 269-283)