G.R. No.

172829 July 18, 2012

ROSA H. FENEQUITO, CORAZON E. HERNANDEZ, and LAURO H. RODRIGUEZ, Petitioners,
vs.
BERNARDO VERGARA, JR., Respondent.
DECISION
PERALTA, J.:
Assailed in the present petition for review on certiorari under Rule 45 of the Rules of Court are
the Resolutions1 dated March 9, 2006 and May 22, 2006 of the Court of Appeals (CA) in CA-G.R.
CR No. 29648. The CA Resolution of March 9, 2006 dismissed petitioners' petition for review,
while the CA Resolution dated May 22, 2006 denied petitioners' Motion for Reconsideration.
The present petition arose from a criminal complaint for falsification of public documents filed by
herein respondent against herein petitioners with the Office of the City Prosecutor of Manila.
On February 11, 2004, an Information for falsification of public documents was filed with the
Metropolitan Trial Court (MeTC) of Manila by the Assistant City Prosecutor of Manila against
herein petitioners.2
On April 23, 2004, herein petitioners filed a Motion to Dismiss the Case Based on Absence of
Probable Cause.3
After respondent's Comment/Opposition4 was filed, the MeTC issued an Order5 dated July 9, 2004
dismissing the case on the ground of lack of probable cause.
Aggrieved, respondent, with the express conformity of the public prosecutor, appealed the case
to the Regional Trial Court (RTC) of Manila.6
On July 21, 2005, the RTC rendered judgment setting aside the July 9, 2004 Order of the MeTC
and directing the said court to proceed to trial.7
Petitioners then elevated the case to the CA via a petition for review.
On March 9, 2006, the CA rendered its presently assailed Resolution8 dismissing the petition.
The CA ruled that the Decision of the RTC is interlocutory in nature and, thus, is not appealable.
Petitioners filed a Motion for Reconsideration, but the CA denied it in its Resolution9 dated May
22, 2006.
Hence, the instant petition based on the following grounds:
The Honorable Court of Appeals erred in outrightly dismissing the Petition for Review on the
ground that the remedy availed of by petitioners is improper.
Strict enforcement of the Rules may be suspended whenever the purposes of justice so require.10
In their first assigned error, petitioners contend that the Decision of the RTC is final as it disposes
with finality the issue of whether the MeTC erred in granting their Motion to Dismiss.
The Court does not agree.
The Court notes at the outset that one of the grounds relied upon by the CA in dismissing
petitioners' petition for review is the latter's failure to submit copies of pleadings and documents
relevant and pertinent to the petition filed, as required under Section 2,11 Rule 42 of the Rules of
Court. While petitioners filed a Motion for Reconsideration, they, however, failed to comply with
these requirements. Worse, they did not even mention anything about it in the said Motion.
Section 3, Rule 42 of the same Rules provides:
Sec. 3. Effect of failure to comply with requirements. – The failure of the petitioner to comply with
any of the foregoing requirements regarding the payment of the docket and other lawful fees, the
deposit for costs, proof of service of the petition, and the contents of and the documents which
should accompany the petition shall be sufficient ground for the dismissal thereof.
Moreover, it is a settled rule that the right to appeal is neither a natural right nor a part of due
process; it is merely a statutory privilege, and may be exercised only in the manner and in
accordance with the provisions of law.12 An appeal being a purely statutory right, an appealing
party must strictly comply with the requisites laid down in the Rules of Court.13 Deviations from
the Rules cannot be tolerated.14 The rationale for this strict attitude is not difficult to appreciate as
the Rules are designed to facilitate the orderly disposition of appealed cases.15 In an age where
courts are bedeviled by clogged dockets, the Rules need to be followed by appellants with greater
fidelity.16 Their observance cannot be left to the whims and caprices of appellants.17 In the instant
case, petitioners had all the opportunity to comply with the Rules. Nonetheless, they remained
obstinate in their non-observance even when they sought reconsideration of the ruling of the CA
dismissing their petition. Such obstinacy is incongruous with their late plea for liberality in
construing the Rules.
On the above basis alone, the Court finds that the instant petition is dismissible.
Even if the Court bends its Rules to allow the present petition, the Court still finds no cogent
reason to depart from the assailed ruling of the CA.
The factual and legal situations in the present case are essentially on all fours with those involved
in Basa v. People.18 In the said case, the accused were charged with swindling and falsification
of public documents. Subsequently, the accused filed a Joint Motion to Quash on the ground that
the facts charged in each Information do not constitute an offense. Thereafter, the MeTC issued
an order in favor of the accused and, accordingly, quashed the Informations. The private
complainant, with the conformity of the public prosecutor, filed a motion for reconsideration but
the MeTC denied it. On appeal, the RTC reversed the order of the MeTC and directed the
continuation of the proceedings. The accused then filed a petition for review with the CA. In its
assailed decision, the CA dismissed the petition on the ground that the remedy of appeal from
the RTC decision is improper, because the said decision is actually interlocutory in nature.
In affirming the ruling of the CA, this Court held that:
Petitioners erroneously assumed that the RTC Decision is final and appealable, when in fact it is
interlocutory. Thus, they filed a petition for review with the Court of Appeals under Section 3 (b),
Rule 122 of the Revised Rules of Criminal Procedure, which provides:
xxxx
(b) The appeal to the Court of Appeals in cases decided by the Regional Trial Court in the exercise
of its appellate jurisdiction shall be by petition for review under Rule 42.
xxxx
Section 1, Rule 42 of the 1997 Rules of Civil Procedure, as amended, states:
Sec. 1. How appeal taken; time for filing. – A party desiring to appeal from a decision of the
Regional Trial Court rendered in the exercise of its appellate jurisdiction, may file a verified petition
for review with the Court of Appeals, x x x.
The above provisions contemplate of an appeal from a final decision or order of the RTC in the
exercise of its appellate jurisdiction.
Thus, the remedy of appeal under Rule 42 resorted to by petitioners is improper. To repeat, the
RTC Decision is not final, but interlocutory in nature.
A final order is one that which disposes of the whole subject matter or terminates a particular
proceeding or action, leaving nothing to be done but to enforce by execution what has been
determined. Upon the other hand, an order is interlocutory if it does not dispose of a case
completely, but leaves something more to be done upon its merits.
Tested against the above criterion, the RTC Decision is beyond cavil interlocutory in nature. It is
essentially a denial of petitioners' motion to quash because it leaves something more to
be done x x x, i.e ., the continuation of the criminal proceedings until the guilt or innocence
of the accused is determined. Specifically, the MeTC has yet to arraign the petitioners, then
proceed to trial and finally render the proper judgment.
It is axiomatic that an order denying a motion to quash on the ground that the allegations in the
Informations do not constitute an offense cannot be challenged by an appeal. This Court generally
frowns upon this remedial measure as regards interlocutory orders. The evident reason for such
rule is to avoid multiplicity of appeals in a single action. To tolerate the practice of allowing appeals
from interlocutory orders would not only delay the administration of justice but also would unduly
burden the courts.19 (Emphases supplied)
In the present case, the assailed Decision of the RTC set aside the Order of the MeTC and
directed the court a quo to proceed to trial by allowing the prosecution to present its evidence.
Hence, it is clear that the RTC Decision is interlocutory as it did not dispose of the case
completely, but left something more to be done on its merits.
In their second assigned error, petitioners claim that assuming for the sake of argument that the
remedy they availed of is not proper, the facts of the case would readily show that there exist just
and compelling reasons to warrant the relaxation of the rules in the interest of substantial justice.
Petitioners contend that the PNP Crime Laboratory Questioned Document Report, submitted as
evidence by respondent to the prosecutor's office, showed that the findings therein are not
conclusive and, thus, insufficient to support a finding of probable cause.
The Court is not persuaded.
It is clear from a perusal of the cited PNP Crime Laboratory Questioned Document Report No.
048-03 that the document examiner found that the signatures appearing in the questioned Deed
of Sale as compared to the standard signatures "reveal divergences in the manner of execution
and stroke structure [which is] an indication that they WERE NOT WRITTEN BY ONE AND THE
SAME PERSON."20 The Court agrees with the prosecutor's pronouncement in its Resolution21
dated September 22, 2003, that although the findings of the PNP Crime Laboratory were qualified
by the statement contained in the Report that "no definite conclusion can be rendered due to the
fact that questioned signatures are photocopies wherein minute details are not clearly
manifested," the fact that an expert witness already found that the questioned signatures were
not written by one and the same person already creates probable cause to indict petitioners for
the crime of falsification of public document.
In Reyes v. Pearlbank Securities, Inc.,22 this Court held:
Probable cause, for the purpose of filing a criminal information, has been defined as such facts
as are sufficient to engender a well-founded belief that a crime has been committed and that
respondent is probably guilty thereof. The term does not mean "actual and positive cause" nor
does it import absolute certainty. It is merely based on opinion and reasonable belief. Probable
cause does not require an inquiry into whether there is sufficient evidence to procure a conviction.
It is enough that it is believed that the act or omission complained of constitutes the offense
charged.
A finding of probable cause needs only to rest on evidence showing that, more likely than not, a
crime has been committed by the suspects. It need not be based on clear and convincing
evidence of guilt, not on evidence establishing guilt beyond reasonable doubt, and definitely not
on evidence establishing absolute certainty of guilt. 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. What is determined is
whether there is sufficient ground to engender a well-founded belief that a crime has been
committed, and that the accused is probably guilty thereof and should be held for trial. It does not
require an inquiry as to whether there is sufficient evidence to secure a conviction.23
In the instant case, the Court finds no justification to depart from the ruling of the RTC that the
offense charged was committed and that herein petitioners are probably guilty thereof.
With respect to respondent's legal personality to appeal the July 9, 2004 Order of the MeTC,
suffice it to say that the appeal filed with the RTC was made with the express conformity of the
public prosecutor who handles the case.
It is wrong for petitioners to argue that it is the OSG which has authority to file an appeal with the
RTC.1âwphi1 Section 35 (l), Chapter 12, Title III of Book IV of Executive Order No. 292, otherwise
known as the Administrative Code of 1987, mandates the OSG to represent "the Government in
the Supreme Court and the Court of Appeals in all criminal proceedings." On the other hand,
Section 11 of Presidential Decree No. 1275, entitled "Reorganizing the Prosecution Staff of the
Department of Justice and the Offices of the Provincial and City Fiscals, Regionalizing the
Prosecution Service, and Creating the National Prosecution Service," which was the law in force
at the time the appeal was filed, provides that the provincial or the city fiscal (now referred to as
prosecutor) "shall have charge of the prosecution of all crimes, misdemeanors and violations
of city or municipal ordinances in the courts of such province or city and shall therein
discharge all the duties incident to the institution of criminal prosecutions."24 In consonance
with the above-quoted provision, it has been held by this Court that the fiscal represents the
People of the Philippines in the prosecution of offenses before the trial courts at the
metropolitan trial courts, municipal trial courts, municipal circuit trial courts and the regional trial
courts.25 Since the appeal, in the instant case was made with the RTC of Manila, it is clear that
the City Prosecutor or his assistant (in this case, the Assistant City Prosecutor) had authority to
file the same.
Moreover, petitioners' reliance on Presidential Decree No. 911 is misplaced, as the cited provision
refers only to cases where the assistant fiscal or state prosecutor's power to file an information or
dismiss a case is predicated or conditioned upon the prior authority or approval of the provincial
or city fiscal or the Chief State Prosecutor. There is nothing in the said law which provides that in
cases of appeal an Assistant City Prosecutor or a State Prosecutor may file the same only upon
prior authority or approval of the City Prosecutor or the Chief State Prosecutor. Stated differently,
unless otherwise ordered, an Assistant City Prosecutor or a State Prosecutor may file an appeal
with the RTC, questioning the dismissal by the MeTC of a case for lack of probable cause, even
without prior authority or approval of the City Prosecutor or the Chief State Prosecutor.
WHEREFORE, the instant petition is DENIED. The Resolutions of the Court of Appeals, dated
March 9, 2006 and May 22, 2006 in CA-G.R. CR No. 29648, are AFFIRMED.
SO ORDERED.

G.R. No. 181021 December 10, 2012

BURGUNDY REALTY CORPORATION, Petitioner,
vs.
JOSEFA "JING" C. REYES and SECRETARY RAUL GONZALEZ of the DEPARTMENT OF
JUSTICE, Respondents.
DECISION
PERALTA, J.:
For resolution of this Court is the Petition for Review on Certiorari, dated February 13, 2008, of
petitioner Burgundy Realty Corporation, seeking to annul and set aside the Decision 1 and
Resolution of the Court of Appeals (CA), dated September 14, 2007 and December 20, 2007,
respectively.
The facts follow.
Private respondent Josefa "Jing" C. Reyes (Reyes), sometime in 1996, offered her services to
petitioner as the latter's real estate agent in buying parcels of land in Calamba, Laguna, which
are to be developed into a golf course. She informed petitioner that more or less ten (10) lot
owners are her clients who were willing to sell their properties. Convinced of her representations,
petitioner released the amount of ₱23,423,327.50 in her favor to be used in buying those parcels
of land. Reyes, instead of buying those parcels of land, converted and misappropriated the money
given by petitioner to her personal use and benefit. Petitioner sent a formal demand for Reyes to
return the amount of ₱23,423,327.50, to no avail despite her receipt of the said demand. As such,
petitioner filed a complaint for the crime of Estafa against Reyes before the Assistant City
Prosecutor's Office of Makati City.
Reyes, while admitting that she acted as a real estate agent for petitioner, denied having
converted or misappropriated the involved amount of money. She claimed that the said amount
was used solely for the intended purpose and that it was petitioner who requested her services in
procuring the lots. According to her, it was upon the petitioner's prodding that she was constrained
to contact her friends who were also into the real estate business, including one named Mateo
Elejorde. She alleged that prior to the venture, Mateo Elejorde submitted to her copies of
certificates of title, vicinity plans, cadastral maps and other identifying marks covering the
properties being offered for sale and that after validating and confirming the prices as well as the
terms and conditions attendant to the projected sale, petitioner instructed her to proceed with the
release of the funds. Thus, she paid down payments to the landowners during the months of
February, March, July, August, September and October of 1996. Reyes also insisted that
petitioner knew that the initial or down payment for each lot represented only 50% of the purchase
price such that the remaining balance had to be paid within a period of thirty (30) days from the
date of receipt of the initial payment. She added that she reminded petitioner, after several
months, about the matter of unpaid balances still owing to the lot owners, but due to lack of funds
and non-infusion of additional capital from other investors, petitioner failed to pay the landowners
of their remaining unpaid balances. Meanwhile, Reyes received information that her sub-broker
Mateo Elejorde had been depositing the involved money entrusted to him under his personal
account. On March 28, 2000, through a board resolution, petitioner allegedly authorized Reyes to
institute, proceed, pursue and continue with whatever criminal or civil action against Mateo
Elejorde, or such person to whom she may have delivered or entrusted the money she had
received in trust from the firm, for the purpose of recovering such money. Thus, Reyes filed a
complaint for the crime of estafa against Mateo Elejorde before the City Prosecutor's Office of
Makati City docketed as I.S. No. 98-B-5916-22, and on March 30, 2001, Mateo Elejorde was
indicted for estafa.
After a preliminary investigation was conducted against Reyes, the Assistant Prosecutor of Makati
City issued a Resolution2 dated April 27, 2005, the dispositive portion of which reads:
In view thereof, it is most respectfully recommended that respondent be indicted of the crime of
Estafa defined and penalized under the Revised Penal Code. It could not be said that she has
violated the provision of PD 1689 for it was not shown that the money allegedly given to her were
funds solicited from the public. Let the attached information be approved for filing in court. Bail
recommendation at Php40,000.00.3
Thereafter, an Information for the crime of Estafa under Article 315, par. 1 (b) of the Revised
Penal Code (RPC) was filed against Reyes and raffled before the RTC, Branch 149, Makati City.
Undeterred, Reyes filed a petition for review before the Department of Justice (DOJ), but it was
dismissed by the Secretary of Justice through State Prosecutor Jovencito Zuño on June 1, 2006.
Aggrieved, Reyes filed a motion for reconsideration, and in a Resolution4 dated July 20, 2006, the
said motion was granted. The decretal text of the resolution reads:
Finding the grounds relied upon in the motion to be meritorious and in the interest of justice, our
Resolution of June 1, 2006 is hereby RECONSIDERED and SET ASIDE. Accordingly, the petition
for review filed by respondent-appellant Josefa Reyes is hereby given due course and will be
reviewed on the merits and the corresponding resolution will be issued in due time.
SO ORDERED.
On September 22, 2006, Secretary of Justice Raul Gonzalez issued a Resolution5 granting the
petition for review of Reyes, the fallo of which reads:
WHEREFORE, the assailed resolution is hereby REVERSED and SET ASIDE. The City
Prosecutor of Makati City is directed to cause the withdrawal of the information for estafa filed in
court against respondent Josefa "Jing" C. Reyes and to report the action taken within five (5) days
from receipt hereof.
SO ORDERED.6
Petitioner filed a motion for reconsideration, but was denied by the Secretary of Justice in a
Resolution dated December 14, 2006. Eventually, petitioner filed a petition for certiorari under
Rule 65 of the Rules of Court with the CA. The latter, however, affirmed the questioned
Resolutions of the Secretary of Justice. The dispositive portion of the Decision dated September
14, 2007 reads:
WHEREFORE, premises considered, the assailed Resolutions, dated 22 September 2006 and
14 December 2006[,] both rendered by public respondent Secretary of Justice, are hereby
AFFIRMED in toto.
SO ORDERED.7
Its motion for reconsideration having been denied by the CA in a Resolution dated December 20,
2007, petitioner filed the present petition and the following are the assigned errors:
I
THE COURT OF APPEALS SERIOUSLY ERRED IN NOT FINDING THAT THE DOJ
SECRETARY, RAUL GONZALEZ, CAPRICIOUSLY, ARBITRARILY AND WHIMSICALLY
DISREGARDED THE EVIDENCE ON RECORD SHOWING THE [EXISTENCE] OF PROBABLE
CAUSE AGAINST PRIVATE RESPONDENT FOR ESTAFA UNDER ARTICLE 315 1(b) OF THE
REVISED PENAL CODE.
II
THE COURT OF APPEALS GRIEVOUSLY ERRED IN NOT FINDING BUT INSTEAD
CONCURRED IN WITH THE DOJ SECRETARY, RAUL GONZALEZ, WHO BY GRAVE ABUSE
OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION HELD THAT NOT
ALL OF THE ELEMENTS OF ESTAFA UNDER ARTICLE 315 1 (b), PARTICULARLY THE
ELEMENT OF MISAPPROPRIATION, WERE NOT SUFFICIENTLY ESTABLISHED IN THIS
CASE.
III
THE COURT OF APPEALS SERIOUSLY ERRED IN NOT FINDING THAT THE DOJ
SECRETARY, RAUL GONZALEZ, ACTED WITH GRAVE ABUSE OF DISCRETION IN
ACCEPTING AS TRUTH WHAT WERE MATTERS OF DEFENSE BY PRIVATE RESPONDENT
IN HER COUNTER-AFFIDAVIT WHICH SHOULD HAVE BEEN PROVEN AT THE TRIAL ON
THE MERITS.8
The petition is meritorious.
It is not disputed that decisions or resolutions of prosecutors are subject to appeal to the Secretary
of Justice who, under the Revised Administrative Code,9 exercises the power of direct control and
supervision over said prosecutors; and who may thus affirm, nullify, reverse or modify their rulings.
Review as an act of supervision and control by the justice secretary over the fiscals and
prosecutors finds basis in the doctrine of exhaustion of administrative remedies which holds that
mistakes, abuses or negligence committed in the initial steps of an administrative activity or by an
administrative agency should be corrected by higher administrative authorities, and not directly
by courts.10
In the present case, after review and reconsideration, the Secretary of Justice reversed the
investigating prosecutor's finding of probable cause that all the elements of the crime of estafa
are present. Estafa, under Article 315 (1) (b) of the Revised Penal Code, is committed by –
ART. 315. Swindling (estafa). – Any person who shall defraud another by any of the means
mentioned hereinbelow:
xxxx
1. With unfaithfulness or abuse of confidence, namely:
(a) x x x
(b) By misappropriating or converting, to the prejudice of another, money, goods, or any other
personal property received by the offender in trust or on commission, or for administration, or
under any other obligation involving the duty to make delivery of or to return the same, even
though such obligation be totally or partially guaranteed by a bond; or by denying having received
such money, goods, or other property; x x x
The elements are:
1) that money, goods or other personal property be received by the offender in trust, or on
commission, or for administration, or under any other obligation involving the duty to make
delivery of, or to return, the same;
2) that there be misappropriation or conversion of such money or property by the offender, or
denial on his part of such receipt;
3) that such misappropriation or conversion or denial is to the prejudice of another; and
4) that there is demand made by the offended party on the offender.11
The essence of estafa under Article 315, par. 1 (b) is the appropriation or conversion of money or
property received to the prejudice of the owner. The words "convert" and "misappropriate"
connote an act of using or disposing of another's property as if it were one's own, or of devoting
it to a purpose or use different from that agreed upon. To misappropriate for one's own use
includes not only conversion to one's personal advantage, but also every attempt to dispose of
the property of another without right.12
In reversing the finding of probable cause that the crime of estafa has been committed, the
Secretary of Justice reasoned out that, [the] theory of conversion or misappropriation is difficult
to sustain and that under the crime of estafa with grave abuse of confidence, the presumption is
that the thing has been devoted to a purpose or is different from that for which it was intended but
did not take place in this case.1âwphi1 The CA, in sustaining the questioned resolutions of the
Secretary of Justice, ruled that the element of misappropriation or conversion is wanting. It further
ratiocinated that the demand for the return of the thing delivered in trust and the failure of the
accused to account for it, are circumstantial evidence of misappropriation, however, the said
presumption is rebuttable and if the accused is able to satisfactorily explain his failure to produce
the thing delivered in trust, he may not be held liable for estafa.1âwphi1
It must be remembered that the finding of probable cause was made after conducting a
preliminary investigation. A preliminary investigation constitutes a realistic judicial appraisal of the
merits of a case.13 Its purpose is to determine whether (a) a crime has been committed; and (b)
whether there is a probable cause to believe that the accused is guilty thereof.14
This Court need not overemphasize that in a preliminary investigation, the public prosecutor
merely determines whether there is probable cause or sufficient ground 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 does not call for the application of rules and standards of proof that
a judgment of conviction requires after trial on the merits.15 The complainant need not present at
this stage proof beyond reasonable doubt.16 A preliminary investigation does not require a full and
exhaustive presentation of the parties' evidence.17 Precisely, there is a trial to allow the reception
of evidence for both parties to substantiate their respective claims.18
A review of the records would show that the investigating prosecutor was correct in finding the
existence of all the elements of the crime of estafa. Reyes did not dispute that she received in
trust the amount of ₱23,423,327.50 from petitioner as proven by the checks and vouchers to be
used in purchasing the parcels of land. Petitioner wrote a demand letter for Reyes to return the
same amount but was not heeded. Hence, the failure of Reyes to deliver the titles or to return the
entrusted money, despite demand and the duty to do so, constituted prima facie evidence of
misappropriation. The words convert and misappropriate connote the act of using or disposing of
another's property as if it were one's own, or of devoting it to a purpose or use different from that
agreed upon.19 To misappropriate for one's own use includes not only conversion to one's
personal advantage, but also every attempt to dispose of the property of another without right.20
In proving the element of conversion or misappropriation, a legal presumption of misappropriation
arises when the accused fails to deliver the proceeds of the sale or to return the items to be sold
and fails to give an account of their whereabouts.21 Thus, the mere presumption of
misappropriation or conversion is enough to conclude that a probable cause exists for the
indictment of Reyes for Estafa. As to whether the presumption can be rebutted by Reyes is
already a matter of defense that can be best presented or offered during a full-blown trial.
To reiterate, 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.22
Probable cause is a reasonable ground of presumption that a matter is, or may be, well founded
on such a state of facts in the mind of the prosecutor as would lead a person of ordinary caution
and prudence to believe, or entertain an honest or strong suspicion, that a thing is so.23 The term
does not mean "actual or positive cause" nor does it import absolute certainty.24 It is
merely based on opinion and reasonable belief.25 Thus, a finding of probable cause does
not require an inquiry into whether there is sufficient evidence to procure a conviction.26 It
is enough that it is believed that the act or omission complained of constitutes the offense
charged.27
WHEREFORE, premises considered, the present Petition is hereby GRANTED and, accordingly,
the Decision and Resolution of the Court of Appeals, dated September 14, 2007 and December
20, 2007, respectively, are hereby REVERSED and SET ASIDE. Consequently, the Regional
Trial Court, Branch 149, Makati City, where the Information was filed against private respondent
Josefa "Jing" C. Reyes, is hereby DIRECTED to proceed with her arraignment. SO ORDERED.

G.R. No. 175887 November 24, 2010

HEIRS OF THE LATE NESTOR TRIA, Petitioners,
vs.
ATTY. EPIFANIA OBIAS, Respondent.
DECISION
VILLARAMA, JR., J.:
Before this Court is a petition for review on certiorari under Rule 45 of the 1997 Rules of Civil
Procedure, as amended, seeking to reverse and set aside the Decision1 dated August 14, 2006
and Resolution2 dated December 11, 2006 of the Court of Appeals (CA) in CA-G.R. SP No. 86210.
The CA denied the petition for mandamus/certiorari filed by the petitioners which assailed the
Order3 dated March 24, 2004 of the Office of the President (OP) dismissing the murder charge
against the respondent.
The factual antecedents are as follows:
On May 22, 1998, at around 10:00 o’clock in the morning at the Pili Airport in Camarines Sur,
Engr. Nestor Tria, Regional Director of the Department of Public Works and Highways (DPWH),
Region V and concurrently Officer-In-Charge of the 2nd Engineering District of Camarines Sur,
was shot by a gunman while waiting to board his flight to Manila. He was brought to a hospital but
died the following day from the lone gunshot wound on his nape. Subsequently, the incident was
investigated by the National Bureau of Investigation (NBI).
On July 31, 1998, NBI Regional Director Alejandro R. Tenerife, Chairman of Task Force Tria,
recommended to the Provincial Prosecutor of Camarines Sur the indictment of Roberto "Obet"
Aclan y Gulpo, Juanito "Totoy" Ona y Masalonga and Atty. Epifania "Fanny" Gonzales-Obias, for
the murder of Engr. Tria.
On the basis of statements given by twenty-six (26) individuals, autopsy and ballistic examination
reports, and relevant documents gathered,4 the NBI submitted its findings, as follows:
Our investigation disclosed that about two weeks before the incident ACLAN and ONA had been
conducting an almost daily stakeout at the DPWH 2nd Engineering District of Camarines Sur in
Sta. Elena, Iriga City where Regional Director TRIA was holding office from time to time as District
Engineer in concurrent capacity. Alternately ACLAN and ONA would ask the security guard on
duty if Director TRIA had already arrived and the usual days and time of his coming to the office.
At noontime or early afternoon, after waiting vainly for TRIA’s arrival, the duo would leave, riding
tandem on a red motorcycle. During their surveillance it was ONA who frequently sat on the couch
at the lobby of the Engineering Building while ACLAN was waiting near their motorcycle at the
parking space. At times ONA would approach ACLAN to whisper a message and the latter would
relay the message to someone else through a hand-held radio. There were also some instances
when ACLAN would wait at the lobby while ONA was staying near the parked motorcycle. At one
instance an employee had noticed a gun tucked on the waistline of ACLAN.
Around 8:00 o’clock in the morning of May 22, 1998, ACLAN and ONA were spotted in their usual
places at the 2nd Engineering District in Iriga City. ONA was wearing a loose, yellow long sleeved
shirt, maong pants and a pair of sneakers; ACLAN was in a white and gray striped shirt and a pair
of maong pants. Shortly before 9:00 a.m. on that day, THEO RUBEN CANEBA, a DPWH
employee and newly elected Municipal Councilor of Buhi, Camarines Sur, arrived. He was warmly
greeted and congratulated by his former co-employees outside the engineering building. It was at
this point when CANEBA noticed a man about 5’4" in height, sturdy, with semi-curly hair, wearing
a white and gray-striped shirt with maong pants and about 40 years old. The man (later identified
through his photograph as ROBERTO ACLAN) was looking intensely at him and was shifting
position from left to right to get a better view of him. Obviously, ACLAN was trying to figure out
whether CANEBA was Director TRIA. After about 20 minutes, Administrative Officer JOSE
PECUNDO announced to those who had some documents for signature of Director TRIA to
proceed to Pili Airport where TRIA would sign them before leaving for Manila. Upon hearing this,
ACLAN and ONA left hurriedly on board a red motorcycle. No sooner had ACLAN and ONA left
that CANEBA cautioned the guards to be extra alert because he had some sense of foreboding
about that man (referring to ACLAN).
Shortly after 10:00 a.m. on that day, Director TRIA arrived at the Airport. After signing some
documents at the parking lot he proceeded towards the pre-departure area on the second floor of
the airport building. ONA, who was waiting on the stairway, immediately followed TRIA as the
latter was going up the stairs. As TRIA was approaching the pre-departure area he was met by
Atty. [E]PIFANIA OBIAS who shook his hands and started conversing with him. It was at this
juncture that a gunshot rang out and TRIA dropped like a log on the floor, bleeding profusely from
a gunshot wound at the back of his head. As a commotion ensued, ONA was seen running down
the stairway while tucking a gun on his waistline. Even before ONA could come out of the
doorway, ACLAN was already outside the building, pointing a handgun at everybody – obviously
to discourage any attempt of pursuit – while swiftly stepping backward to where their motorcycle
was parked. He then fired shots at an army man who tried to chase ONA. The army man, who
was then unarmed, sought cover behind a parked van. ACLAN and ONA then boarded a red
motorcycle and sped away. Director TRIA died from a lone gunshot wound on his nape at the
Mother Seton Hospital in Naga City the following day.
Atty. EPIFANIA OBIAS, on the other hand, admitted that she was with ROBERTO "OBET" ACLAN
in the early morning of May 22, 1998; that at about 7:00 a.m. on that day she went to the residence
of Director TRIA at Liboton, Naga City, had a brief talk with the latter and left immediately. She
also volunteered the information that ROBERTO ACLAN was not the gunman who had fired the
fatal shot at Director TRIA. She was also the last person seen talking with Director TRIA when
the latter was gunned down. A practicing lawyer, Atty. OBIAS also engages herself in real estate
business on the side. In 1997 she had brokered a sale of real estate between and among spouses
PRUDENCIO and LORETA JEREMIAS, as Vendors, and Spouses NESTOR and PURA TRIA,
as Vendees, over a .9165 hectare of land in Balatas, Naga City. It was Atty. OBIAS who received,
for and in behalf of the vendors, the full payment of P2.8 Million of the sale from the TRIAs with
the agreement that Atty. OBIAS would take care of all legal processes and documentations until
the Deed of Absolute Sale is delivered to the TRIA family. After the death of TRIA, the surviving
spouse and heirs made several attempts to contact Atty. OBIAS to demand immediate delivery
of the deed of sale, but the latter deliberately avoided the TRIA family and, despite verbal and
written demands, she failed and refused, as she still fails and refuses, to fulfill her legal obligation
to the TRIA family. At one instance, a representative of the TRIA family had chanced upon Atty.
OBIAS at her residence and demanded of her to deliver the deed of sale to the TRIA family
immediately. But Atty. OBIAS replied that Director TRIA had already disposed of the property
before his death, a claim that can no longer be disputed by Director TRIA as his lips had already
been sealed forever, except for the fact that neither the surviving spouse nor anyone of the heirs
had given any consent to the purported subsequent sale.
During the lifetime of Director TRIA, Atty. OBIAS was one of the frequent visitors of the TRIA
family and had been known to the family members as a friend and a close associate of Director
TRIA. Yet, she never attended the wake of Director TRIA nor made any gesture of sympathy or
condolence to the TRIA family up to the present time.5
During the preliminary investigation conducted by the Office of the Provincial Prosecutor,
respondent filed her Counter-Affidavit denying that she was in anyway involved with the killing of
Engr. Tria. Respondent admitted that Engr. Tria was a longtime friend and that she went to his
residence at about 7:30 o’clock in the morning of May 22, 1998. Since Engr. Tria had many visitors
at that time, they just agreed to see each other at the airport later. Respondent denied having
admitted to NBI Supervising Agent (SA) Atty. Manuel Eduarte that she was with Aclan then, and
neither did she volunteer the information that Aclan was not the triggerman. Respondent
submitted the sworn statement of Edgar Awa, one of those witnesses interviewed by the NBI,
who declared that Aclan and Ona were at the Iriga City DPWH Office in the morning of May 22,
1998 at 8:00 o’clock in the morning. Such is also corroborated by the sworn statement of another
NBI witness, Theo Ruben Caneba, who declared that when he arrived at the DPWH Iriga office
at about 8:30 o’clock in the morning of May 22, 1998, he noticed the presence of Aclan who was
supposedly eyeing him intensely, and that after it was announced that those who have some
transactions with Engr. Tria should just proceed to the airport, Caneba saw Aclan with a
companion later identified as Ona, immediately left the compound in a motorcycle.6
Respondent likewise denied that she met Engr. Tria as the latter was approaching the pre-
departure area of the airport and that she supposedly shook his hands. The truth is that when she
and Engr. Tria met at the airport, the latter took her by the arm and led her to a place where they
talked. Respondent asserted that from the totality of evidence gathered by the NBI, it has not
established prima facie the existence of conspiracy as to implicate her in the death of Engr. Tria.7
On July 2, 1999, the Office of the Provincial Prosecutor of Camarines Sur issued a resolution8
directing the filing of an information for murder against Aclan and Ona but dismissing the case for
insufficiency of evidence as against herein respondent, Atty. Epifania Obias.
Petitioners appealed to the Department of Justice (DOJ) assailing the Provincial Prosecutor’s
order to dismiss the charge against respondent.9 On January 25, 2000, then Justice Secretary
Serafin Cuevas issued a Resolution10 modifying the July 2, 1999 resolution of the Provincial
Prosecutor and directing the latter to include respondent in the information for murder filed against
Aclan and Ona.
The DOJ agreed with the contention of petitioners that there is interlocking circumstantial
evidence sufficient to show that respondent conspired with Aclan and Ona in the killing of Engr.
Tria. It cited the following circumstances: (1) Despite respondent’s admission regarding her
friendship and close association with Engr. Tria, her visit at his house early morning of the same
day, and her presence at the airport where she met Engr. Tria and was the person last seen with
him, respondent never lifted a finger to help Engr. Tria when he was gunned down and neither
did she volunteer to help in the investigation of Engr. Tria’s murder nor visit the grieving family to
give her account of the fatal shooting of Engr. Tria, which behavior negates her claim of
innocence; (2) In the sworn statement of NBI SA Manuel Eduarte, he declared that respondent
admitted to him that she and Aclan were together when she went to the residence of Engr. Tria
at 7:30 in the morning of May 22, 1998 and that while she later denied such admission and
explained that Aclan could not have been with her as the latter was at the DPWH Regional office
at about 8:00 a.m., such does not render impossible the fact of Aclan’s presence at the residence
of Engr. Tria considering that the time given was mere approximation by respondent not to
mention the possibility that Aclan could have easily gotten to the DPWH office after coming from
the house of Engr. Tria using the same motorcycle which Aclan used as get-away vehicle at the
airport; (3) SA Eduarte’s statement cannot be simply disregarded as he had no ill motive to impute
upon respondent the said admission; and (4) The double sale of the property wherein the Tria
spouses already paid ₱2.8 million to respondent who brokered the sale, only to sell it to another
buyer for ₱3.3 million, without turning over to the Tria family the deed of sale and her failure to
attend to the registration of the land in the name of the Tria spouses – this strongly establishes
the fact that respondent had the strongest motive to have Engr. Tria murdered by Aclan and Ona
who were obviously guns for hire. Also mentioned was the respondent’s representation of Aclan
as the latter’s defense lawyer in a frustrated murder case which was dismissed. Such client-lawyer
relationship could have spawned respondent’s ascendancy over Aclan.11
The DOJ was thus convinced that the sequence of events and respondent’s conduct before,
during and after the killing of Engr. Tria undeniably points to her complicity with Aclan and Ona.
Moreover, it pointed out that respondent’s defense consisted merely of denial which cannot
prevail over the positive allegations of witnesses showing her complicity with the gunmen in the
perpetration of the crime.12
Respondent along with Aclan and Ona filed a motion for reconsideration of the DOJ’s January
25, 2000 resolution.13 On February 18, 2000, Justice Secretary Artemio G. Tuquero issued a
directive to State Prosecutor Josefino A. Subia who was the Acting Provincial Prosecutor of
Camarines Sur, to defer, until further orders, the filing of the information for the inclusion of
respondent, in order not to render moot the resolution of the motion for reconsideration of the
January 25, 2000 resolution.14
On September 17, 2001, then Justice Secretary Hernando B. Perez issued a resolution denying
respondent’s motion for reconsideration.15
In the meantime, the information charging Aclan and Ona has already been filed with the Regional
Trial Court (RTC) of Pili, dCamarines Sur. Upon request however, the venue was transferred to
the RTC Quezon City by resolution of this Court in A.M. No. 00-3145-RTC.16
Sometime in October 2001, the prosecution filed with the RTC Quezon City a Motion to Admit
Amended Information to include respondent as one of the accused for the murder of Tria.17
On October 8, 2001, respondent filed a Notice of Appeal with the DOJ under the provisions of
Administrative Order No. 18, series of 1987.18 In a letter dated December 3, 2001 addressed to
respondent’s counsel, the DOJ denied respondent’s notice of appeal on the ground that pursuant
to Memorandum Circular No. 1266 dated November 4, 1983, as amended by Memorandum
Circular No. 58 dated June 30, 1993, appeals to the OP where the penalty prescribed for the
offense charged is "reclusion perpetua to death," shall be taken by petition for review.19
Respondent filed a motion for reconsideration of the denial of her notice of appeal.20
It appears that on January 28, 2002, the RTC Quezon City issued an order admitting the amended
information which includes respondent. The latter then filed with the RTC a Motion for
Reconsideration with Prayer for the Suspension of the Issuance of a Warrant of Arrest dated
February 28, 2002, a copy of which was furnished to the Legal Office of the OP on March 6,
2002.21
On February 6, 2002, the DOJ denied respondent’s motion for reconsideration stating that the
proper procedure is the filing of an appeal or petition for review with the OP and not before the
DOJ. Hence, the case was considered closed and terminated.22 However, the DOJ directed the
Provincial Prosecutor to forward the records of the case to the OP in compliance with the Order
dated October 18, 2001 of Deputy Executive Secretary Jose Tale.23 It turned out that respondent
filed on October 1, 2001 a notice of appeal before the OP (O.P. Case No. 01-J-118).24
On June 27, 2003, Senior Deputy Executive Secretary Waldo Q. Flores adopted the findings of
facts and conclusions of law in the appealed Resolutions dated January 25, 2000 and September
17, 2001 of the DOJ, and affirmed the same.25 Respondent filed a motion for reconsideration on
September 17, 2003.26 On December 3, 2003, respondent filed a Supplemental Pleading and
Submission of Newly Discovered Evidence.27
In his Order dated March 24, 2004, Presidential Assistant Manuel C. Domingo granted
respondent’s motion for reconsideration and reversed the DOJ resolutions. It was held that mere
close relationship without any corroborative evidence showing intent to perpetrate the crime is
not enough probable cause. The conclusion that respondent was the only one interested in the
death of Engr. Tria because of the double sale from which respondent supposedly wanted to get
away from her obligation to the Tria spouses, was based merely on the opinion of SA Eduarte.
Also, since Mrs. Pura Tria admitted she knew of the said transaction, she could very well file a
civil case for collection such that even with the death of Engr. Tria, respondent will not be able to
evade her obligation. As to the presence of both Aclan and respondent at the house of Engr. Tria
early morning before the incident took place, the same was not sufficiently established, as shown
by the affidavit of Felix Calayag. The OP thus concluded there was no interlocking circumstantial
evidence of respondent’s acts before, during and after the killing of Engr. Tria that would establish
conspiracy among Aclan, Ona and respondent to commit the crime. Accordingly, the case against
respondent was dismissed for insufficiency of evidence.28
Petitioners filed a motion for reconsideration29 which was denied by the OP in its Order30 dated
June 10, 2004. Before the CA, petitioners filed a petition for mandamus/certiorari under Rule 65
of the 1997 Rules of Civil Procedure, as amended.
On August 14, 2006, the CA rendered the assailed Decision denying the petition. On the issue of
the alleged grave abuse committed by the OP in modifying the findings of the DOJ instead of
ordering the Secretary of Justice to reopen/review the case in accordance with Memorandum
Circular No. 58, the CA held that it was not mandatory for the OP to do so. As for the evaluation
of factual matters and credence to be accorded to the testimonies of respondent and her
witnesses, the CA declared that these are not proper grounds in a petition for certiorari which is
confined only to the correction of errors of jurisdiction. Neither will mandamus lie to compel the
performance of a discretionary duty in view of the failure of petitioners to show a clear and certain
right to justify the grant of relief.31
Their motion for reconsideration having been denied by the CA, petitioners are now before us
contending that the CA manifestly overlooked relevant facts which, if properly considered, would
justify a different conclusion. They maintain that the CA decision is contrary to law and established
jurisprudence.
Petitioners argue that since the preliminary investigation and review of the resolution finding
probable cause have already been terminated years before respondent’s appeal to the OP --
more so with the earlier denial of the said appeal for failing to raise any new issue not raised
before the DOJ -- the alleged new affidavits should have been referred to the DOJ for
reinvestigation. As to the affidavits of Calayag and Jennis Nidea, said witnesses have not been
confronted by the petitioners in violation of the latter’s right to due process. Thus, the CA decision
affirmed the OP’s dismissal of the case against respondent at the level of the DOJ without referral
to the said office and without consideration of the pendency of the case at RTC of Quezon City,
Branch 76. Lacking such authority on appeal to appreciate newly submitted affidavits of Calayag
and Nidea, Presidential Assistant Manuel C. Domingo arrogated unto himself the judicial task of
analyzing the said documents without confrontation of the witnesses by the other party. Further,
the CA overlooked the fact that such affidavits submitted by respondent as newly discovered
evidence was merely a ploy in order for her appeal to qualify as raising new and material issues
which were supposedly not raised before the DOJ.32
Petitioners further argue that the CA should not have affirmed the OP’s dismissal of the murder
charge against the respondent pursuant to Crespo v. Mogul33 that once an information has been
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.
On the procedural issue raised by the petitioners, we hold that the OP did not err in taking
cognizance of the appeal of respondent, and that the CA likewise had jurisdiction to pass upon
the issue of probable cause in a petition challenging the OP’s ruling.
Memorandum Circular No. 5834 provides:
xxxx
No appeal from or petition for review of decisions/orders/resolutions of the Secretary of Justice
on preliminary investigations of criminal cases shall be entertained by the Office of the President,
except those involving offenses punishable by reclusion perpetua to death wherein new and
material issues are raised which were not previously presented before the Department of Justice
and were not ruled upon in the subject decision/order/resolution, in which case the President may
order the Secretary of Justice to reopen/review the case, provided, that, the prescription of the
offense is not due to lapse within six (6) months from notice of the questioned
resolution/order/decision, and provided further, that, the appeal or petition for review is filed within
thirty (30) days from such notice.
Henceforth, if an appeal or petition for review does not clearly fall within the jurisdiction of the
Office of the President, as set forth in the immediately preceding paragraph, it shall be dismissed
outright and no order shall be issued requiring the payment of the appeal fee, the submission of
appeal brief/memorandum or the elevation of the records to the Office of the President from the
Department of Justice.
If it is not readily apparent from the appeal or petition for review that the case is within the
jurisdiction of the Office of the President, the appellant/petitioner shall be ordered to prove the
necessary jurisdictional facts, under penalty of outright dismissal of the appeal or petition, and no
order to pay the appeal fee or to submit appeal brief/memorandum or to elevate the records of
the case to the Office of the President shall be issued unless and until the jurisdictional
requirements shall have been satisfactorily established by the appellant/petitioner.
x x x x (Emphasis supplied.)
The offense for which respondent was charged is punishable by reclusion perpetua to death,
which is clearly within the jurisdiction of the OP in accordance with Memorandum Circular No. 58.
Respondent’s appeal was initially dismissed when Senior Deputy Executive Secretary Waldo Q.
Flores issued the Resolution dated June 27, 2003 affirming in toto the appealed resolutions of the
Secretary of Justice and adopting the latter’s findings and conclusions. However, subsequent to
her filing of a motion for reconsideration of the said June 27, 2003 Resolution, respondent filed a
Supplemental Pleading and Submission of Newly Discovered Evidence. The arguments of
respondent in support of her motion for reconsideration were duly considered by the OP in
reexamining the appealed resolutions. As the word "may" in the second paragraph of
Memorandum Circular No. 58 signifies, it is not mandatory for the President to order the DOJ to
reopen or review respondent’s case even if it raised "new and material issues" allegedly not yet
passed upon by the DOJ. Hence, the OP acted well within its authority in reexamining the merits
of respondent’s appeal in resolving the motion for reconsideration.
In arguing that the CA gravely abused its discretion when it affirmed the OP’s dismissal of the
murder charge against respondent, petitioner invoked our ruling in Crespo v. Mogul that any
disposition of the case rests on the sound discretion of the court once an information has been
filed with it.
A refinement of petitioners’ understanding of the Crespo ruling is in order. In Crespo, we ruled
that after the information has already been filed in court, the court’s permission must be secured
should the fiscal find it proper that reinvestigation be made. Thereafter, the court shall consider
and act upon the findings and recommendations of the fiscal.
In Ledesma v. Court of Appeals,35 we clarified that the justice secretary is not precluded from
exercising his power of review over the investigating prosecutor even after the information has
already been filed in court. However, the justice secretary’s subsequent resolution withdrawing
the information or dismissing the case does not cause the court to lose jurisdiction over the case.
In fact, the court is duty-bound to exercise judicial discretion and its own independent judgment
in assessing the merits of the resulting motion to dismiss filed by the prosecution, to wit:
When confronted with a motion to withdraw an information on the ground of lack of probable
cause based on a resolution of the secretary of justice, the bounded duty of the trial court is to
make an independent assessment of the merits of such motion. Having acquired jurisdiction over
the case, the trial court is not bound by such resolution but is required to evaluate it before
proceeding further with the trial. While the secretary’s ruling is persuasive, it is not binding on
courts. A trial court, however, commits reversible error or even grave abuse of discretion if it
refuses/neglects to evaluate such recommendation and simply insists on proceeding with the trial
on the mere pretext of having already acquired jurisdiction over the criminal action. (Underscoring
supplied.)
Further, it is well within the court’s sound discretion to suspend arraignment to await the result of
the justice secretary’s review of the correctness of the filing of the criminal information.36 There
are exceptional cases, such as in Dimatulac v. Villon37 wherein we have suggested that it would
have been wiser for the court to await the justice secretary’s resolution before proceeding with
the case to avert a miscarriage of justice. Evidently however, this is not a hard and fast rule, for
the court has complete control over the case before it.
Petitioners’ argument that the non-referral by the OP to the DOJ of the appeal or motion for
reconsideration filed by the respondent had deprived them of the opportunity to confront and
cross-examine the witnesses on those affidavits belatedly submitted by the respondent is likewise
untenable. Under the procedure for preliminary investigation provided in Section 3, Rule 112 of
the Revised Rules of Criminal Procedure, as amended,38 in case the investigating prosecutor
conducts a hearing where there are facts and issues to be clarified from a party or witness, "[t]he
parties can be present at the hearing but without the right to examine or cross-examine. They
may, however, submit to the investigating officer questions which may be asked to the party or
witness concerned."39 Hence, the non-referral by the OP to the DOJ of the motion for
reconsideration of respondent, in the exercise of its discretion, did not violate petitioners’ right to
due process.
In resolving the issue of whether the CA gravely abused its discretion in affirming the OP’s
reversal of the ruling of the Secretary of Justice, it is necessary to determine whether probable
cause exists to charge the respondent for conspiracy in the murder of Engr. Tria.
A prosecutor, by the nature of his office, is under no compulsion to file a particular criminal
information where he is not convinced that he has evidence to prop up its averments, or that the
evidence at hand points to a different conclusion. The decision whether or not to dismiss the
criminal complaint against respondent is necessarily dependent on the sound discretion of the
investigating prosecutor and ultimately, that of the Secretary of Justice.40
The findings of the prosecutor with respect to the existence or non-existence of probable cause
is subject to the power of review by the DOJ. Indeed, the Secretary of Justice may reverse or
modify the resolution of the prosecutor, after which 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.41
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 abuse of
discretion amounting to want of jurisdiction.
However, this Court may ultimately resolve the existence or non-existence of probable cause by
examining the records of the preliminary investigation when necessary for the orderly
administration of justice,42 or to avoid oppression or multiplicity of actions.43
In reversing the DOJ’s finding of probable cause, the OP found merit in the argument of the
respondent that the DOJ’s finding that she was with Aclan when she went to the residence of
Engr. Tria early in the morning of May 22, 1998, was not sufficiently established. The OP gave
more weight to the affidavit44 of Calayag (attached to respondent’s supplemental pleading on
motion for reconsideration) -- stating that Aclan was not around when they and respondent,
among other visitors, were at Engr. Tria’s house at that time -- than that account given by SA
Eduarte which was uncorroborated. As to the double sale allegedly committed by the respondent
from which the latter’s strong motive to liquidate Engr. Tria was inferred, the OP found this as a
mere expression of opinion by the investigators considering that Engr. Tria’s widow, Mrs. Pura
Tria, categorically admitted her knowledge of the said transaction. Neither was the OP persuaded
by the NBI’s "kiss of death" theory since it is but a customary way of greeting a friend to shake
hands and hence it cannot imply that respondent utilized this as a signal or identification for the
gunman to shoot Engr. Tria. Respondent’s alleged indifference immediately after Engr. Tria was
gunned down while conversing with her, was also negated by the affidavit of an employee of
Philippine Air Lines based at the Pili Airport, stating that right after the incident took place he saw
respondent in the radio room in shock and was being given water by another person.
Considering the totality of evidence, the OP was convinced there was nothing suspicious or
abnormal in respondent’s behavior before, during and after the fatal shooting of Engr. Tria as to
engender a well-founded belief of her complicity with the killing of Engr. Tria, thus:
The act of Obias in failing to help the deceased when the latter was shot should not be taken
against her. In a tragic moment such as the incident, it is safe to assume that one could be
overtaken by shock, grief or fear especially if the one involved is an acquaintance or a friend,
leaving the former unable to act or think properly. Obias could have been overtaken by shock or
grief making her body unable to function or think properly.
Moreover, the act of Obias in failing to contact or to visit the family of the deceased during the
wake of the latter should not be taken against her. With rumors circulating that she is a possible
primary suspect over the death of Engr. Tria, and to avoid any unnecessary confrontation with
the family of the latter, whose emotions could be uncontrollable or animated by anger or revenge,
Obias’ act in keeping her silence and distance is permissive.
The behavior of Obias before, during and after the incident should not be taken against her. It is
worthy to note that Obias was confronted with extraordinary situations or circumstances wherein
a definite or common behavior could not be easily formulated or determined. One’s behavior or
act during said extraordinary situations should not prejudice the actor if the latter failed to act or
behave in such a manner acceptable to all or which, upon reflection afterwards, could be deemed
the more appropriate, common or acceptable reaction.
Obias’ actions could be presumed common or acceptable considering the attendant
circumstances surrounding the same, and they do not evince or show any malice or intent
whatsoever.45
The relevant portion of SA Eduarte’s affidavit reads:
3. That our first meeting was on or about 10:00 AM of May 25, 1998 at our office. She was
accompanied by a certain RODEL who was introduced as her Office Assistant. On said meeting
she verbally admitted the fact that she was the last person conversing with Dir. Tria when shot at
the airport on or about 10:20 AM of May 22, 1998; that the shooting took place even before her
first step after their short talk, but she could not identify the assailant/s because she had blacked
out or became senseless because of fear;
4. That our second meeting was on or about 11:20 AM of May 28, 1998 at our office and she was
alone then. That she stood pat on her claim that she was overwhelmed with fear and became
oblivious of her surroundings after the gunshot that hit Dir TRIA. When asked about the veracity
of the information that she was seen at TRIA’s residence at Molave St., Liboton, Naga City, Atty.
Obias admitted that she was indeed at the residence of Director TRIA at around 7:30 AM of May
22, 1998, claiming her visit as official matter, she being the lawyer of the victim in some cases;
5. That finally we met on or about 5:00 PM of June 1, 1998 at the restaurant of Villa Caceres
Hotel, Magsaysay Avenue, Naga City, upon arrangement made by our former Assistant Regional
Director FRANCISCO "FRANK" OBIAS of NBI (now retired) and father-in-law of Atty. FANNY
OBIAS; That said meeting materialized when on the morning of the said date, Atty. FRANK OBIAS
visited me at the office asking why her daughter-in-law FANNY was being implicated in the case
of TRIA. Verbally, he said, FANNY had admitted to him that our suspect ROBERTO "OBET"
ACLAN was with her at the residence of TRIA at about 7:30 AM on 22 May 1998, but he (Aclan)
was not the triggerman. During this meeting, ATTY. FRANK OBIAS was also around. Atty. FANNY
OBIAS said she was worried because two (2) men who introduced themselves as NBI Agents
visited her mother at Godofredo Reyes, Sr., (GRS) Ragay, Camarines Sur, telling the latter that
she, (FANNY) was being tagged as the finger (identifier of the victim to the assailant) in the case
of TRIA. This matter causes anxiety to her mother, she said. On said meeting, she admitted OBET
ACLAN was with her at the residence of TRIA on or about 7:30 AM on May 22, 1998, and further,
that OBET ACLAN was actually at the Pili Airport on that morning but insisted that ROBERTO
"OBET" ACLAN was not the triggerman; x x x.46 (Emphasis supplied.)
In its Comment filed before the CA, the Solicitor General argued that the alleged "interlocking
circumstantial evidence" is pure speculation. To render even a preliminary finding of culpability
based thereon does not sit well with the cherished "right to be presumed innocent" under Section
14 (2), Article III of the 1987 Constitution. Moreover, the case for the prosecution must stand or
fall on its own merit and cannot be allowed to draw strength from the weakness of evidence for
the defense.47
Petitioners, however, maintain that the records are replete with abundant proof of respondent’s
complicity in the murder of Engr. Tria. They cite the following circumstances showing the
existence of probable cause against the respondent: (1) In a radio interview in Naga City
sometime in August 1998, respondent admitted that Aclan is her relative and that she is close to
the family of Ona; (2) Respondent was present at the residence of Engr. Tria in the morning of
May 22, 1998 between 7:00 to 7:30 a.m. with passengers in her vehicle waiting outside, and when
later she was invited by the NBI as possible witness considering that she was the last person
seen talking to Engr. Tria before the latter was gunned down at the airport, respondent admitted
to SA Eduarte that Aclan was with her that morning at the residence of Engr. Tria; (3) The pre-
arranged signal provided by respondent was in the form of a handshake while Ona was at the
stairway observing the two, and thereupon Ona waited for the right moment to shoot Engr. Tria
from behind; (4) Respondent despite having claimed to be a friend of the Tria family, just left the
scene of the crime without asking for help to render assistance to her fallen friend; instead, she
just boarded the plane as if no astounding event took place before her very eyes which snuffed
the life of her longtime client-friend; and (5) In a conduct unbecoming of Filipinos, respondent
never bothered to see the grieving family of Engr. Tria at anytime during the wake, burial or
thereafter, and neither did she give them any account of what she saw during the shooting
incident, which does not constitute normal behavior.
Probable cause is 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.48 It is a reasonable ground
of presumption that a matter is, or may be, well-founded, such a state of facts in the mind of the
prosecutor as would lead a person of ordinary caution and prudence to believe, or entertain an
honest or strong suspicion, that a thing is so. The term does not mean "actual and positive cause"
nor does it import absolute certainty. It is merely based on opinion and reasonable belief.49 A
finding of probable cause merely binds over the suspect to stand trial; it is not a pronouncement
of guilt.50
On the other hand, conspiracy exists when two or more persons come to an agreement
concerning the commission of a felony and decide to commit it.51 Direct proof of previous
agreement to commit a crime is not necessary. Conspiracy may be shown through circumstantial
evidence, deduced from the mode and manner in which the offense was perpetrated, or inferred
from the acts of the accused themselves when such lead to a joint purpose and design, concerted
action, and community of interest.52
We reverse the OP’s ruling that the totality of evidence failed to establish a prima facie case
against the respondent as a conspirator in the killing of Engr. Tria.
To begin with, whether or not respondent actually conspired with Aclan and Ona need not be fully
resolved during the preliminary investigation. The absence or presence of conspiracy is factual in
nature and involves evidentiary matters. The same is better left ventilated before the trial court
during trial, where the parties can adduce evidence to prove or disprove its presence.53
Preliminary investigation is executive in character. It does not contemplate a judicial function. It is
essentially an inquisitorial proceeding, and often, the only means of ascertaining who may be
reasonably charged with a crime.54 Prosecutors control and direct the prosecution of criminal
offenses, including the conduct of preliminary investigation, subject to review by the Secretary of
Justice. The duty of the Court in appropriate cases is merely to determine whether the executive
determination was done without or in excess of jurisdiction or with grave abuse of discretion.
Resolutions of the Secretary of Justice are not subject to review unless made with grave abuse.
55

After a careful evaluation of the entire evidence on record, we find no such grave abuse when the
Secretary of Justice found probable cause to charge the respondent with murder in conspiracy
with Aclan and Ona. The following facts and circumstances established during preliminary
investigation were sufficient basis to incite reasonable belief in respondent’s guilt: (a) Motive -
respondent had credible reason to have Engr. Tria killed because of the impending criminal
prosecution for estafa from her double sale of his lot prior to his death, judging from the strong
interest of Engr. Tria’s family to run after said property and/or proceeds of the second sale to a
third party; (b) Access - respondent was close to Engr. Tria’s family and familiar with his work
schedule, daily routine and other transactions which could facilitate in the commission of the crime
eventually carried out by a hired gunmen, one of whom (Aclan) she and her father categorically
admitted being in her company while she visited Engr. Tria hours before the latter was fatally shot
at the airport; (c) Suspicious Behavior -- respondent while declaring such close personal
relationship with Engr. Tria and even his family, failed to give any satisfactory explanation why
she reacted indifferently to the violent killing of her friend while they conversed and shook hands
at the airport. Indeed, a relative or a friend would not just stand by and walk away from the place
as if nothing happened, as what she did, nor refuse to volunteer information that would help the
authorities investigating the crime, considering that she is a vital eyewitness. Not even a call for
help to the people to bring her friend quickly to the hospital. She would not even dare go near
Engr. Tria’s body to check if the latter was still alive.
All the foregoing circumstances, in our mind, and from the point of view of an ordinary person,
lead to a reasonable inference of respondent’s probable participation in the well-planned
assassination of Engr. Tria. We therefore hold that the OP in reversing the DOJ Secretary’s ruling,
and the CA in affirming the same, both committed grave abuse of discretion. Clearly, the OP and
CA arbitrarily disregarded facts on record which established probable cause against the
respondent.
WHEREFORE, premises considered, the petition is hereby GRANTED. The Decision dated
August 14, 2006 and Resolution dated December 11, 2006 of the Court of Appeals in CA-G.R.
SP No. 86210 are REVERSED and SET ASIDE. The January 25, 2000 Resolution of then Justice
Secretary Serafin Cuevas modifying the July 2, 1999 resolution of the Provincial Prosecutor of
Camarines Sur and directing the latter to include respondent in the information for murder filed
against Aclan and Ona is hereby REINSTATED and UPHELD.
No costs.
SO ORDERED.

A.M. No. MTJ-07-1666 September 5, 2012

(Formerly A.M. OCA I.P.I. No. 05-1761-MTJ)
GERLIE M. UY and MA. CONSOLACION T. BASCUG, Complainants,
vs.
JUDGE ERWIN B. JAVELLANA, MUNICIPAL TRIAL COURT, LA CASTELLANA, NEGROS
OCCIDENTAL, Respondent.
DECISION
LEONARDO-DE CASTRO, J.:
This administrative case arose from a verified complaint1 for "gross ignorance of the law and
procedures, gross incompetence, neglect of duty, conduct improper and unbecoming of a judge,
grave misconduct and others," filed by Public Attorneys Gerlie2 M. Uy (Uy) and Ma. Consolacion
T. Bascug (Bascug) of the Public Attorney’s Office (PAO), La Carlotta District, against Presiding
Judge Erwin3 B. Javellana (Javellana) of the Municipal Trial Court (MTC), La Castellana, Negros
Occidental.
Public Attorneys Uy and Bascug alleged the following in their complaint:
First, Judge Javellana was grossly ignorant of the Revised Rule on Summary Procedure. Public
Attorneys Uy and Bascug cited several occasions as examples: (a) In Crim. Case No. 04-097,
entitled People v. Cornelio, for Malicious Mischief, Judge Javellana issued a warrant of arrest
after the filing of said case despite Section 16 of the Revised Rule on Summary Procedure; (b) In
Crim. Case No. 04-075, entitled People v. Celeste, et al., for Trespass to Dwelling, Judge
Javellana did not grant the motion to dismiss for non-compliance with the Lupon requirement
under Sections 18 and 19(a) of the Revised Rule on Summary Procedure, insisting that said
motion was a prohibited pleading; (c) Also in People v. Celeste, et al., Judge Javellana refused
to dismiss outright the complaint even when the same was patently without basis or merit, as the
affidavits of therein complainant and her witnesses were all hearsay evidence; and (d) In Crim.
Case No. 02-056, entitled People v. Lopez, et al., for Malicious Mischief, Judge Javellana did not
apply the Revised Rule on Summary Procedure and, instead, conducted a preliminary
examination and preliminary investigation in accordance with the Revised Rules of Criminal
Procedure, then set the case for arraignment and pre-trial, despite confirming that therein
complainant and her witnesses had no personal knowledge of the material facts alleged in their
affidavits, which should have been a ground for dismissal of said case.Second, Judge Javellana
gave the impression that he was a co-agent in a surety company with a certain Leilani "Lani"
Manunag (Manunag). Judge Javellana had conveyed to the public on several occasions that
Manunag was in a special position to influence him in granting provisional liberty to the accused.4
In different cases, Judge Javellana (a) instructed the wife of an accused to file the Motion to
Reduce Bond prepared by the PAO with Manunag, leading the wife to believe that Manunag was
a court personnel, hence, said Motion was never filed with the MTC and, instead of the cash bond
the accused intended to post, the accused was released on a surety bond issued by Manunag’s
company for which the accused still had to pay premium;5 (b) reduced the bail from ₱ 40,000.00
to ₱ 30,000.00, consistent with the reduced bail amount Manunag instructed the representative
of the accused to seek, not to ₱ 10,000.00 as prayed for by the PAO in the Motion for Reduction
of Bail or to ₱ 20,000.00 as recommended by the Chief of Police;6 (c) did not warn Manunag
against getting involved in court processes as she was engaged in surety insurance and did not
even question a counter-affidavit of an accused prepared by "Lani;"7 (d) instructed the relatives of
the accused to go to Manunag who knew how to "process" an affidavit of desistance, and when
said relatives did approach Manunag, the latter charged them fees;8 (e) did not set the Motion to
Reduce Bail for hearing but granted the same because it was filed by "the intimate friend of judge
who is an agent of surety" and took cognizance of the amount of premium for the surety bond in
determining the amount of bail;9 (f) denied the Motion to Extend Time to File Counter-Affidavit for
violation of the three-day notice rule, but granted the Motion to Reduce Bail facilitated by Manunag
even when it was filed in violation of the same rule;10 and (g) issued warrants of arrest under
questionable circumstances, more particularly described in the immediately succeeding
paragraph, in which cases, the bail bonds of the accused were facilitated by Manunag.
Third, Judge Javellana violated Section 6(b), Rule 112 of the Revised Rules of Criminal Procedure
and issued warrants of arrest without propounding searching questions to the complainants and
their witnesses to determine the necessity of placing the accused under immediate custody. As a
result, Judge Javellana issued warrants of arrest even when the accused had already voluntarily
surrendered or when a warrantless arrest had been effected.
Fourth, Judge Javellana failed to observe the constitutional rights of the accused as stated in
Section 12(1), Article III of the Constitution. Judge Javellana set Crim. Case No. 03-097, entitled
People v. Bautista,11 for preliminary investigation even when the accused had no counsel, and
proceeded with said investigation without informing the accused of his rights to remain silent and
to have a counsel.
Fifth, Judge Javellana was habitually tardy. The subpoena in Civil Case No. 05-001, entitled
Villanueva v. Regalado,12 only stated that the hearing would be "in the morning," without indicating
the time. Judge Javellana failed to arrive for the pre-trial of the case set in the morning of April
14, 2005. Judge Javellana was still a no-show when the pre-trial was reset in the morning of April
15, 2005 and May 3, 2005. Finally, anticipating Judge Javellana’s tardiness, the pre-trial was
rescheduled at 1:30 in the afternoon of another date.
Sixth, Judge Javellana whimsically or inconsistently implemented laws and rules depending on
stature of the parties, persons accompanying the parties, lawyers of the parties, and his personal
relations with the parties/lawyers. Judge Javellana, in several cases,13 denied or refused to
receive Motions for Extension of Time to File Counter-Affidavits signed only by the accused, yet
in other cases,14 granted such motions. In another case,15 Judge Javellana denied the Motion to
Extend Time to File Counter-Affidavit for violation of the three-day notice rule, but granted the
Motion to Reduce Bail, which was in violation of the same rule. Judge Javellana’s inconsistent
and irregular ruling could be due to the fact that the former motion was filed by Public Attorney
Bascug, with whom Judge Javellana had an axe to grind, while the latter motion was facilitated
by Manunag.
Seventh, Judge Javellana also adopted the mantra that the "litigants are made for the courts"
instead of "courts for the litigants." In Crim. Case No. 03-104, entitled People v. Fermin, the
accused, assisted by Public Attorney Uy, pleaded guilty to the crime of attempted homicide. The
accused filed a Petition/Application for Probation, prepared by the PAO but signed only by the
accused. Judge Javellana refused to accept said Petition/Application and required the father of
the accused to return the Petition/Application all the way from the MTC in La Castellana to the
PAO in La Carlota, despite the great distance between these two cities. The PAO already adopted
the practice of preparing the motions for extension of time to file counter-affidavit, motions for
release of minor, or applications for probation, but letting the accused themselves or their parents
(in case the accused were minors) sign the motions/applications, thus, enabling the PAO to serve
as many clients as possible despite the lack of lawyers. Such practice is not prohibited considering
that under Rule 138, Section 34 of the Rules of Court, a party may conduct his litigation in a
municipal court "in person, with an aid of an agent or friend appointed by him for the purpose or
with aid of an attorney."16
Eighth, Judge Javellana did not observe the proper procedure in airing his complaints against
public attorneys. Judge Javellana rebuked the public attorneys in the Orders he issued. In one
such Order,17 Judge Javellana misleadingly stated that Public Attorney Uy "has already expressed
her desire not to attend today’s hearing," when Public Attorney Uy actually waived her personal
appearance at said hearing as she had to attend the hearing of a criminal case at the MTC of
Pontevedra. In another Order,18 Judge Javellana reported, prior to confirmation, that the PAO
lawyer refused to prepare the motion for extension of time to file counter-affidavit, thus, prompting
the accused to hire a special counsel. Additionally, Judge Javellana improperly filed his
complaints against the public attorneys appearing before his court with the Department of Justice
or the District Public Attorney (DPA) of Bacolod City, instead of the appropriate authorities,
namely, the DPA of La Carlota City or the PAO Regional Director. Moreover, Judge Javellana
had required Public Attorney Bascug to explain why she allowed the accused in Crim. Case No.
03-090, entitled People v. Earnshaw, to sign the Motion for Extension of Time to File Counter-
Affidavits, even when she was the one who prepared said Motion. Judge Javellana did not verify
first whether it was indeed Public Attorney Bascug who prepared the Motion in question, thus,
violating her right to due process. Also, Judge Javellana was already encroaching upon the
domain of the PAO. It is the concern of the PAO and not the court "as to how the Public Attorney’s
Office will be managed, specifically, what policies to use in the acceptance of cases brought to its
Office, how one could avail of its legal services, at what point in time one is considered a client of
said Office x x x ."19
Lastly, to support their complaint, Public Attorneys Uy and Bascug attached a hand-written note20
relating the observations of an anonymous member of Judge Javellana’s staff, viz:
Page One
1. Honorable Judge reports to duty at past 11:00 A.M. and hurriedly conducts preliminary
investigations or preliminary examinations after making party litigants wait from 8:00 A.M. until
11:00 A.M. There had been occasions when litigants became impatient for waiting for several
hours for the Judge’s arrival and would leave the court. Judge then would forego the examination.
2. Judge spends more time conversing in cafeterias than stay in the court. Litigants who are in a
hurry to go home would bring the affidavits to the cafeteria for Judge’s signature.
3. Most of the time, in Court, in front of litigants as audience and even while solemnizing civil
marriage Judge would keep repeating these remarks:
I am a criminal lawyer.
I did not come from the DAR or the COMELEC.
I am an intelligent Judge.
I am the counsel of the famous Gargar-Lumangyao and Spider
Hunter cases and I have caused the execution of Col. Torres.
I am not under the Mayor or the Chief of Police.
and other remarks as if he is the only intelligent, credible and qualified judge in the whole world.
4. Judge tolerates the negligence of duty of his court utility worker. Said utility worker never reports
to open or close the court; he never cleans the courtroom; most of the time he stays in his Karaoke
bar which is some few meters away from the MTC of La Castellana. As a matter of fact the MTC
of La Castellana is the dirtiest of all the courtrooms in the whole province.
Page Two
5. Motion for Extension of Time to File Counter Affidavit in CC 03-090-Pp. vs. Efraim Earnshaw
made by Atty. Bascug was denied by Judge on the ground that it was the accused who signed
the Motion and Atty. Bascug was ordered to explain. Other motions had been denied for not
meeting the 3-day rule but others were granted.
6. Motion to Reduce Bail received by court on January 7, 2004 was not set for hearing but was
ordered granted because it was filed by the intimate friend of the judge who is an agent of Surety.
This did not meet the 3-day rule CC 03-108 Pp. vs. Lowell Panaguiton for "Homicide."
Page Three
1. Criminal Case No. 03-102- Julius Villanueva "Frustrated Homicide" Urgent Motion to Stay
Transfer to Provincial Jail - Filed 1/21/2004 was not heard but order was issued January 21, 2004
also.
2. Criminal Case No. 03-090- Efraim Earnshaw "Less Serious Physical Injuries" January 26, 2004
- Scheduled for arraignment but upon order of Judge on affidavit of Desistance of Melanie Pabon
and Motion to Dismiss was filed and case dismissed.
3. Deonaldo Lopez Case - Motion for Extension of Time to File Counter Affidavit dated 10-3-02
was signed by accused namely Deonaldo Lopez, Jojo Balansag, Junnel Jorge, and Bernie Bello
- granted by judge.21
Based on the foregoing, Public Attorneys Uy and Bascug prayed that Judge Javellana be
removed from the MTC of La Castellana.
In his Comment22 on the complaint against him, Judge Javellana discounted the allegations of
Public Attorneys Uy and Bascug as "baseless, untruthful, intrigues, malicious and a harassment
tending to intimidate him," and countered as follows:
First, Judge Javellana asserted that he was not grossly ignorant of the rules of procedure and
explained his actions in particular cases: (a) In People v. Cornelio, Judge Javellana issued a
warrant of arrest for the two accused charged with Malicious Mischief in the exercise of his judicial
discretion, and the necessity of holding the accused in detention became evident when it was
revealed during trial that the same accused were wanted for Attempted Homicide in Crim. Case
No. 04-096; (b) In People v. Celeste, et al., Judge Javellana insisted that referral of the dispute
(involving an alleged Trespass to Dwelling) to the Lupong Tagapamayapa was not a jurisdictional
requirement and the Motion to Dismiss on said ground was a prohibited pleading under the
Revised Rule on Summary Procedure; (c) Still in People v. Celeste, et al., Judge Javellana
refused to dismiss outright the complaint as prayed for by Public Attorney Uy as the Judge had to
accord due process to the complainant in said case; and (d) In People v. Lopez, et al. another
case for Malicious Mischief, Judge Javellana reiterated that a motion to dismiss is a prohibited
pleading under the Revised Rule on Summary Procedure and added that he could not dismiss
the case outright since the prosecution has not yet fully presented its evidence.
Second, Judge Javellana denied acting as the co-agent of Manunag. Manunag was an Authorized
Surety Bond Agent of Commonwealth Insurance and Surety Bond Company, a bonding company
duly accredited by the Office of the Court Administrator (OCA). The relationship between Judge
Javellana and Manunag was "purely on official business." That Manunag influenced Judge
Javellana in fixing the amount of bail in several cases was a malicious and deliberate lie, based
on mere speculation and suspicion. Judge Javellana had consistently granted the reduction of
the amount of bail to only 75%, and not as low as 25%, of the amount stated in Department
Circular No. 89 dated August 29, 2000 of the Department of Justice (DOJ). Judge Javellana even
chided Public Attorneys Uy and Bascug that as officers of the court, said public attorneys were
duty bound not to demand outrageous reduction of bail. In addition, Judge Javellana could not
warn Manunag to stay away from "the processes (sic) premises in the Court" because "everybody
are allowed to attend Court proceedings unless otherwise the attendance of the public is
prohibited."23 Judge Javellana likewise stated that he could not interfere with the processing of
surety insurance and bond for such was a private matter between the insurance and bonding
company and its authorized agents. Referring to case records, Judge Javellana pointed out that
he only granted the motions to reduce bail that complied with the three-day notice rule.
Third, Judge Javellana claimed to have conducted preliminary examination, asking the
complainants and their witnesses searching questions, before issuing warrants of arrest.
According to Judge Javellana, he would sign the official form of the warrant of arrest right after
the preliminary examination. In some cases, Judge Javellana was not aware that the accused
had already voluntarily surrendered or was already taken into custody by virtue of a warrantless
arrest because police officers did not timely inform the court of such fact.
Fourth, Judge Javellana did not violate the constitutional rights of the accused in People v.
Bautista. Judge Javellana argued that while a judge can ask clarificatory questions during the
preliminary investigation, a preliminary investigation is mandatory only when the law imposes the
penalty of imprisonment of at least four years, two months, and one day. Judge Javellana further
averred that he always advised litigants to secure the services of a counsel or that of a public
attorney from the PAO. However, even when the public attorney failed or refused to appear before
the court, Judge Javellana still proceeded with his clarificatory questions since there was yet no
full blown trial for which the accused already needed the services of a competent lawyer.
Fifth, Judge Javellana explained his failure to arrive for the pre-trial in Villanueva v. Regalado
scheduled on April 14, 2005. Judge Javellana averred that he had been suffering from diabetes,
as evinced by his medical records from the Supreme Court Health and Welfare Plan, and on said
date, his blood sugar rose to 300, which caused him to be lethargic, weak, and drowsy.
Sixth, Judge Javellana repudiated the allegation that he applied the law and ruled whimsically
and inconsistently. Judge Javellana asserted that he "applied the law and the rules according to
what he believes is fair, just and equitable in the exercise of his judicial discretion."24 Judge
Javellana never favored Manunag and in all criminal cases involving homicide, he had granted
the reduction of bail to ₱ 30,000.00 (75% of the recommended bail of ₱ 40,000.00).
Seventh, Judge Javellana admitted not accepting petitions, applications, and motions prepared
by the PAO but signed only by the accused, asseverating that public attorneys should affix their
signatures and state their Roll of Attorneys number in every pleading they file in court. Judge
Javellana asked that "if all courts admits (sic) any pleading filed by any litigant then what will
happen to the practice of law?"25
Eighth, Judge Javellana emphasized that government lawyers, such as Public Attorneys Uy and
Bascug, are paid with people’s money, so they should be sincere and dedicated to their work and,
whenever possible, go the extra mile to serve poor litigants. Thus, Judge Javellana reported
Public Attorneys Uy and Bascug to higher PAO officials to guide said public attorneys and not to
interfere with the performance of their functions.
And ninth, Judge Javellana identified the member of his staff who wrote the note containing more
allegations against him as Mr. Ray D. Pineda (Pineda), Process Server. Judge Javellana
described Pineda as "very abnormal, eccentric and queer in his relationship with his fellow staff
as shown by his quarrelsome attitude and fond of inciting litigants to criticize the Clerk of Court
and other personnel and most of all his loyalty to the Official of the Municipality rather than to this
Court x x x."26 Judge Javellana clarified that he often mentioned the Gargar-Lumangyao
Kidnapping with Double Murder Case and the Spider Hunters Multiple Murder and Multiple
Frustrated Murder Case not to boast but to relay the impression that he meant business as
Presiding Judge. These cases were dubbed as the "Case of the Century" by then Executive Judge
Bernardo Ponferrada of the Regional Trial Court of Bacolod City (who later became Deputy Court
Administrator) because the same involved big time personalities. Judge Javellana mentioned the
said cases even when solemnizing marriages because he would then be reading the Holy
Scriptures and he had to highlight that he survived the trials and threats to his life because of the
Holy Bible. Judge Javellana also did not have a Court Aide who owned a Karaoke Bar whose
negligence the judge was tolerating. Pineda was just "jealous" because he was not designated
by Judge Javellana as Acting Docket Clerk in lieu of Mr. Vee Caballero who was already on
terminal leave prior to retirement. Judge Javellana further narrated that he had reprimanded
Pineda several times, even in open court. In one of these instances, it was because Pineda
submitted a falsified information sheet to the Supreme Court Personnel Division, stating therein
that he had never been charged with a criminal offense, when in truth, he was previously charged
with "Physical Injury." Judge Javellana advised Pineda to rectify the latter’s records by executing
an affidavit to be submitted to the Supreme Court Personnel Division, but Pineda did not heed
the same.
In the end, Judge Javellana stressed that the charges against him were baseless and malicious;
and the acts being complained of involved judicial discretion and, thus, judicial in nature and not
the proper subject of an administrative complaint. Judge Javellana hinted about a conspiracy
between the Municipal Mayor, on one hand, and Public Attorneys Uy and Bascug, on the other.
The Municipal Mayor was purportedly angry at Judge Javellana because the latter caused the
arrest of and heard the cases against the former’s supporters and employees; while Public
Attorney Bascug was suffering from a "Losing Litigant’s Syndrome" and "Prosecution Complex,"
and was influencing Public Attorney Uy, a neophyte lawyer.
Consequently, Judge Javellana sought the dismissal of the instant complaint against him.
The Office of the Court Administrator (OCA), in its report27 dated January 2, 2006, found Judge
Javellana liable for gross ignorance of the law or procedure when he did not apply the Revised
Rule on Summary Procedure in cases appropriately covered by said Rule; and (2) gross
misconduct when he got involved in business relations with Manunag, implemented the law
inconsistently, and mentioned his accomplishments for publicity. The OCA thus recommended
that:
1. The instant administrative complaint be REDOCKETED as a regular administrative matter; and
2. Judge Edwin B. Javellana, MTC, La Castellana, Negros Occidental be SUSPENDED from
office without salary and other benefits for three (3) months with a STERN WARNING that
repetition of the same or similar acts in the future shall be dealt with more severely.28
In a Resolution29 dated February 5, 2007, the Court re-docketed the complaint as a regular
administrative matter and required parties to manifest their willingness to submit the case for
resolution on the basis of the pleadings filed.
On separate dates,30 the parties manifested their willingness to submit the case for resolution
based on the pleadings already filed.
We agree with the findings and conclusions of the OCA, except for the penalty imposed.
I
Gross Ignorance of the Law
The Revised Rule of Summary Procedure shall govern the following criminal cases:
SECTION 1. Scope. – This Rule shall govern the summary procedure in the Metropolitan Trial
Courts, the Municipal Trial Courts in Cities, the Municipal Trial Courts, and the Municipal Circuit
Trial Courts in the following cases falling within their jurisdiction.
xxxx
B. Criminal Cases:
(1) Violations of traffic laws, rules and regulations;
(2) Violations of the rental law;
(3) Violations of municipal or city ordinances;
(4) Violations of Batas Pambansa Bilang 22 (Bouncing Checks Law).
(5) All other criminal cases where the penalty prescribed by law for the offense charged is
imprisonment not exceeding six months, or a fine not exceeding one thousand pesos (₱
1,000.00), or both, irrespective of other imposable penalties, accessory or otherwise, or of the
civil liability arising therefrom: Provided, however, That in offenses involving damage to property
through criminal negligence, this Rule shall govern where the imposable fine does not exceed ten
thousand pesos (₱ 10,000.00). (Emphasis supplied.)
The cases People v. Cornelio31 and People v. Lopez, et al.32 pending before Judge Javellana were
both for malicious mischief.
The crime of malicious mischief is committed by any person who deliberately causes damage to
the property of another through means not constituting arson.33 There are special cases of
malicious mischief which are specifically covered by Article 328 of the Revised Penal Code, which
provides:
ART. 328. Special cases of malicious mischief. – Any person who shall cause damage to obstruct
the performance of public functions, or using any poisonous or corrosive substance; or spreading
any infection or contagion among cattle; or who causes damage to the property of the National
Museum or National Library, or to any archive or registry, waterworks, road, promenade, or any
other thing used in common by the public, shall be punished:
1. By prision correccional in its minimum and medium periods, if the value of the damage caused
exceeds 1,000 pesos;
2. By arresto mayor, if such value does not exceed the above- mentioned amount but is over 200
pesos; and
3. By arresto menor, if such value does not exceed 200 pesos. (Emphasis ours.)
All other cases of malicious mischief shall be governed by Article 329 of the same Code, which
reads:
ART. 329. Other mischiefs. – The mischiefs not included in the next preceding article shall be
punished:
1. By arresto mayor in its medium and maximum periods, if the value of the damage caused
exceeds 1,000 pesos;
2. By arresto mayor in its minimum and medium periods, if such value is over 200 pesos but does
not exceed 1,000 pesos; and
3. By arresto menor or fine of not less than the value of the damage caused and not more than
200 pesos, if the amount involved does not exceed 200 pesos or cannot be estimated. (Emphasis
ours.)
Without any showing that the accused in People v. Cornelio and People v. Lopez, et al. were
charged with the special cases of malicious mischief particularly described in Article 328 of the
Revised Penal Code, then Article 329 of the same Code should be applied. If the amounts of the
alleged damage to property in People v. Cornelio and People v. Lopez, et al., ₱ 6,000.0034 and ₱
3,000.00,35 respectively, are proven, the appropriate penalty for the accused would be arresto
mayor in its medium and maximum periods which under Article 329(a) of the Revised Penal Code,
would be imprisonment for two (2) months and one (1) day to six (6) months. Clearly, these two
cases should be governed by the Revised Rule on Summary Procedure.
Judge Javellana’s issuance of a Warrant of Arrest for the accused in People v. Cornelio is in
violation of Section 16 of the Revised Rule on Summary Procedure, categorically stating that "the
court shall not order the arrest of the accused except for failure to appear whenever required."
Judge Javellana never claimed that the accused failed to appear at any hearing. His justification
that the accused was wanted for the crime of attempted homicide, being tried in another case,
Crim. Case No. 04-096, is totally unacceptable and further indicative of his ignorance of law.
People v. Cornelio, pending before Judge Javellana’s court as Crim. Case No. 04-097, is for
malicious mischief, and is distinct and separate from Crim. Case No. 04-096, which is for
attempted homicide, although both cases involved the same accused. Proceedings in one case,
such as the issuance of a warrant of arrest, should not be extended or made applicable to the
other.
In People v. Lopez, et al., Judge Javellana conducted a preliminary investigation even when it
was not required or justified.36
The Revised Rule on Summary Procedure does not provide for a preliminary investigation prior
to the filing of a criminal case under said Rule. A criminal case within the scope of the Rule shall
be commenced in the following manner:
SEC. 11. How commenced. – The filing of criminal cases falling within the scope of this Rule shall
be either by complaint or by information; Provided, however, That in Metropolitan Manila and in
Chartered Cities, such cases shall be commenced only by information, except when the offense
cannot be prosecuted de oficio.
The complaint or information shall be accompanied by the affidavits of the complainant and of his
witnesses in such number of copies as there are accused plus two (2) copies for the court’s files.
If this requirement is not complied with within five (5) days from date of filing, the case may be
dismissed.
SEC. 12. Duty of Court. –
(a) If commenced by complaint. – On the basis of the complaint and the affidavits and other
evidence accompanying the same, the court may dismiss the case outright for being patently
without basis or merit and order the release of the accused if in custody.
(b) If commenced by information. – When the case is commenced by information, or is not
dismissed pursuant to the next preceding paragraph, the court shall issue an order which,
together with copies of the affidavits and other evidence submitted by the prosecution, shall
require the accused to submit his counter-affidavit and the affidavits of his witnesses as well as
any evidence in his behalf, serving copies thereof on the complainant or prosecutor not later than
ten (10) days from receipt of said order. The prosecution may file reply affidavits within ten (10)
days after receipt of the counter-affidavits of the defense.
SEC. 13. Arraignment and trial. – Should the court, upon a consideration of the complaint or
information and the affidavits submitted by both parties, find no cause or ground to hold the
accused for trial, it shall order the dismissal of the case; otherwise, the court shall set the case for
arraignment and trial.
If the accused is in custody for the crime charged, he shall be immediately arraigned and if he
enters a plea of guilty, he shall forthwith be sentenced.
Section 1, Rule 112 of the Revised Rules of Criminal Procedure only requires that a preliminary
investigation be conducted before the filing of a complaint or information for an offense where the
penalty prescribed by law is at least four (4) years, two (2) months and one (1) day without regard
to the fine. As has been previously established herein, the maximum penalty imposable for
malicious mischief in People v. Lopez, et al. is just six (6) months.
Judge Javellana did not provide any reason as to why he needed to conduct a preliminary
investigation in People v. Lopez, et al. We stress that the Revised Rule on Summary Procedure
was precisely adopted to promote a more expeditious and inexpensive determination of cases,
and to enforce the constitutional rights of litigants to the speedy disposition of cases.37
Judge Javellana cannot be allowed to arbitrarily conduct proceedings beyond those specifically
laid down by the Revised Rule on Summary Procedure, thereby lengthening or delaying the
resolution of the case, and defeating the express purpose of said Rule.
We further agree with the OCA that Judge Javellana committed a blatant error in denying the
Motion to Dismiss filed by the accused in People v. Celeste, et al. and in insisting that said Motion
was a prohibited pleading, even though the case was never previously referred to the Lupong
Tagapamayapa as required by Sections 18 and 19(a) of the Revised Rule on Summary
Procedure.
The pertinent provisions of the Revised Rule on Summary Procedure read:
Sec. 18. Referral to Lupon. — Cases requiring referral to the Lupon for conciliation under the
provisions of Presidential Decree No. 1508 where there is no showing of compliance with such
requirement, shall be dismissed without prejudice, and may be revived only after such
requirement shall have been complied with. This provision shall not apply to criminal cases where
the accused was arrested without a warrant.
Sec. 19. Prohibited pleadings and motions. — The following pleadings, motions, or petitions shall
not be allowed in the cases covered by this Rule:
(a) Motion to dismiss the complaint or to quash the complaint or information except on the ground
of lack of jurisdiction over the subject matter, or failure to comply with the preceding section.
(Emphases ours.)
We see no ambiguity in the aforequoted provisions. A case which has not been previously referred
to the Lupong Tagapamayapa shall be dismissed without prejudice. A motion to dismiss on the
ground of failure to comply with the Lupon requirement is an exception to the pleadings prohibited
by the Revised Rule on Summary Procedure. Given the express provisions of the Revised Rule
on Summary Procedure, we find irrelevant Judge Javellana’s argument that referral to the Lupon
is not a jurisdictional requirement. The following facts are undisputed: People v. Celeste, et al.
was not referred to the Lupon, and the accused filed a Motion to Dismiss based on this ground.
Judge Javellana should have allowed and granted the Motion to Dismiss (albeit without prejudice)
filed by the accused in People v. Celeste, et al.
The Revised Rule on Summary Procedure has been in effect since November 15, 1991. It finds
application in a substantial number of civil and criminal cases pending before Judge Javellana’s
court. Judge Javellana cannot claim to be unfamiliar with the same.
Every judge is required to observe the law. When the law is sufficiently basic, a judge owes it to
his office to simply apply it; and anything less than that would be constitutive of gross ignorance
of the law. In short, when the law is so elementary, not to be aware of it constitutes gross
ignorance of the law.38
In Agunday v. Judge Tresvalles,39 we called the attention of Judge Tresvalles to Section 2 of the
Revised Rule on Summary Procedure which states that a "patently erroneous determination to
avoid the application of the Revised Rule on Summary Procedure is a ground for disciplinary
action." We went on further to interpret said provision as follows:
Although the said provision states that "patently erroneous determination to avoid the application
of the Revised Rule on Summary Procedure is a ground for disciplinary action," the provision
cannot be read as applicable only where the failure to apply the rule is deliberate or malicious.
Otherwise, the policy of the law to provide for the expeditious and summary disposition of cases
covered by it could easily be frustrated. Hence, requiring judges to make the determination of the
applicability of the rule on summary procedure upon the filing of the case is the only guaranty that
the policy of the law will be fully realized. x x x.40 (Emphasis ours.)
Resultantly, Judge Javellana cannot invoke good faith or lack of deliberate or malicious intent as
a defense. His repeated failure to apply the Revised Rule on Summary Procedure in cases so
obviously covered by the same is detrimental to the expedient and efficient administration of
justice, for which we hold him administratively liable.
As for Judge Javellana’s refusal to dismiss People v. Lopez, et al. and People v. Celeste, et al.,
however, we exonerate him of the administrative charges for the same. Judge Javellana is correct
that the appreciation of evidence is already within his judicial discretion.41 Any alleged error he
might have committed in this regard is the proper subject of an appeal but not an administrative
complaint. We remind Judge Javellana though to adhere closely to the Revised Rule on Summary
Procedure in hearing and resolving said cases.
II
Gross Misconduct
Judges are enjoined by the New Code of Judicial Conduct for the Philippine Judiciary42 to act and
behave, in and out of court, in a manner befitting their office, to wit:
Canon 2
INTEGRITY
Integrity is essential not only to the proper discharge of the judicial office but also to the personal
demeanor of judges.
SECTION 1. Judges shall ensure that not only is their conduct above reproach, but that it is
perceived to be so in the view of a reasonable observer.
SECTION 2. The behavior and conduct of judges must reaffirm the people's faith in the integrity
of the judiciary. Justice must not merely be done but must also be seen to be done.
xxxx
Canon 3
IMPARTIALITY
Impartiality is essential to the proper discharge of the judicial office. It applies not only to the
decision itself but also to the process by which the decision is made.
SECTION 1. Judges shall perform their judicial duties without favor, bias or prejudice.
SECTION 2. Judges shall ensure that his or her conduct, both in and out of court, maintains and
enhances the confidence of the public, the legal profession and litigants in the impartiality of the
judge and of the judiciary.
xxxx
Canon 4
PROPRIETY
Propriety and the appearance of propriety are essential to the performance of all the activities of
a judge.
SECTION 1. Judges shall avoid impropriety and the appearance of impropriety in all of their
activities.
SECTION 2. As a subject of constant public scrutiny, judges must accept personal restrictions
that might be viewed as burdensome by the ordinary citizen and should do so freely and willingly.
In particular, judges shall conduct themselves in a way that is consistent with the dignity of the
judicial office.
xxxx
SECTION 8. Judges shall not use or lend the prestige of the judicial office to advance their private
interests, or those of a member of their family or of anyone else, nor shall they convey or permit
others to convey the impression that anyone is in a special position improperly to influence them
in the performance of judicial duties.
xxxx
SECTION 14. Judges shall not knowingly permit court staff or others subject to their influence,
direction or authority, to ask for, or accept, any gift, bequest, loan favor in relation to anything
done or to be done or omitted to be done in connection with their duties or functions.
xxxx
Canon 5
EQUALITY
Ensuring equality of treatment to all before the courts is essential to the due performance of the
judicial office.
xxxx
SECTION 2. Judges shall not, in the performance of judicial duties, by words or by conduct,
manifest bias or prejudice towards any person or group on irrelevant grounds.
xxxx
SECTION 2. Judges shall not, in the performance of judicial duties, by words or conduct, manifest
bias or prejudice towards any person or group on irrelevant grounds.
SECTION 3. Judges shall carry out judicial duties with appropriate consideration for all persons,
such as the parties, witnesses, lawyers, court staff and judicial colleagues, without differentiation
on any irrelevant ground, immaterial to the proper performance of such duties.
xxxx
Canon 6
COMPETENCE AND DILIGENCE
Competence and diligence are prerequisites to the due performance of judicial office.
xxxx
SECTION 5. Judges shall perform all judicial duties, including the delivery of reserved decisions,
efficiently, fairly and with reasonable promptness.
SECTION 6. Judges shall maintain order and decorum in all proceedings before the court and be
patient, dignified and courteous in relation to litigants, witnesses, lawyers and others with whom
the judge deals in an official capacity. Judges shall require similar conduct of legal
representatives, court staff and others subject to their influence, direction or control.
Judge Javellana had violated the aforequoted canons/standards in several instances.
Judge Javellana did not admit having a business relationship with Manunag, contrary to the
finding of the OCA. What Judge Javellana stated in his Comment was that his relationship with
Manunag was "purely on official business," since Manunag was a duly authorized agent of a
credited bonding company. Nonetheless, Judge Javellana, by referring the accused who
appeared before his court directly to Manunag for processing of the bail bond of said accused,
gave the impression that he favored Manunag and Manunag’s bonding company, as well as the
reasonable suspicion that he benefitted financially from such referrals. Judge Javellana should
remember that he must not only avoid impropriety, but the "appearance of impropriety" as well.
Moreover, Judge Javellana was conspicuously inconsistent in Granting43 or denying44 motions for
extension of time to file pleadings which were signed only by the accused. Judge Javellana
reasoned in his Comment that the PAO lawyers who prepared the motions should have signed
the same as counsels for the accused, but this only explained Judge Javellana’s denial of said
motions. It did not address why, in other cases, Judge Javellana had granted similar motions
signed only by the accused. Without any satisfactory basis for the difference in his ruling on these
motions, Judge Javellana had acted arbitrarily to the prejudice of the PAO lawyers.
Judge Javellana himself admitted that he often mentioned his previous accomplishments as
counsel in big and controversial cases, claiming that he only did so to impress upon the parties
that he meant business and that he relied greatly upon God to survive the trials and threats to his
life. We are not persuaded.
The previous Code of Judicial Conduct specifically warned the judges against seeking publicity
for personal vainglory.45 Vainglory, in its ordinary meaning, refers to an individual’s excessive or
ostentatious pride especially in one’s own achievements.46 Even no longer explicitly stated in the
New Code of Judicial Conduct, judges are still proscribed from engaging in self-promotion and
indulging their vanity and pride by Canons 1 (on Integrity) and 2 (on Propriety) of the New Code.
We have previously strongly reminded judges in that:
Canon 2, Rule 2.02 of the Code of Judicial Conduct says in no uncertain terms that "a judge
should not seek publicity for personal vainglory." A parallel proscription, this time for lawyers in
general, is found in Rule 3.01 of the Code of Professional Responsibility: "a lawyer shall not use
or permit the use of any false, fraudulent, misleading, deceptive, undignified, self-laudatory or
unfair statement or claim regarding his qualifications or legal services." This means that lawyers
and judges alike, being limited by the exacting standards of their profession, cannot debase the
same by acting as if ordinary merchants hawking their wares. As succinctly put by a leading
authority in legal and judicial ethics, "(i)f lawyers are prohibited from x x x using or permitting the
use of any undignified or self-laudatory statement regarding their qualifications or legal services
(Rule 3.01, Code of Professional Responsibility), with more reasons should judges be prohibited
from seeking publicity for vanity or self-glorification. Judges are not actors or actresses or
politicians, who thrive by publicity.47
Judge Javellana’s actuations as described above run counter to the mandate that judges behave
at all times in such a manner as to promote public confidence in the integrity and impartiality of
the judiciary.48 We cannot stress enough that "judges are the visible representations of law and
justice. They ought to be embodiments of competence, integrity and independence. In particular,
municipal judges are frontline officers in the administration of justice. It is therefore essential that
they live up to the high standards demanded by the Code of Judicial Conduct."49
For his violations of the New Code of Professional Conduct, Judge Javellana committed gross
misconduct. We have defined gross misconduct as a "transgression of some established and
definite rule of action, more particularly, unlawful behavior or gross negligence by the public
officer."50
There is no sufficient evidence to hold Judge Javellana administratively liable for the other
charges against him contained in the complaint. Yet, we call Judge Javellana’s attention to several
matters pointed out by the OCA, that if left unchecked, may again result in another administrative
complaint against the judge: (1) notices of hearing issued by Judge Javellana’s court must state
the specific time, date, and place51 ; (2) in case Judge Javellana is unable to attend a hearing for
any reason, he must inform his Clerk of Court as soon as possible so that the latter can already
cancel the hearing and spare the parties, counsels, and witnesses from waiting52 ; and (3) he must
take care in ascertaining the facts and according due process to the parties concerned before
levying charges of incompetence or indifference against the PAO lawyers appearing before his
court.53
III
Penalty
Gross ignorance of the law54 and gross misconduct constituting violations of the Code of Judicial
Conduct55 are classified as serious charges under Rule 140, Section 8 of the Revised Rules of
Court, and penalized under Rule 140, Section 11(a) of the same Rules by:
1) Dismissal from the service, forfeiture of all or part of the benefits as the Court may determine,
and disqualification from reinstatement or appointment to any public office, including government-
owned or controlled corporations. Provided, however, that the forfeiture of benefits shall in no
case include accrued leave credits;
2) Suspension from office without salary and other benefits for more than three (3) but not
exceeding six (6) months; or
3) A fine of more than ₱ 20,000.00 but not exceeding ₱ 40,000.00
The OCA recommended that Judge Javellana be suspended without salary and benefits for three
months.1ªvvph!1 Given the gravity and number of violations committed by Judge Javellana, we
deem it appropriate to impose suspension without salary and benefits for a period of three months
and one day.
WHEREFORE, Judge Erwin B. Javellana is found GUILTY of gross ignorance of the law and
gross misconduct. He is SUSPENDED from office without salary and other benefits for a period
of three (3) months and one (1) day with a STERN WARNING that the repetition of the same or
similar acts in the future shall be dealt with more severely. Let a copy of this Decision be attached
to his records with this Court.
SO ORDERED.
TERESITA J. LEONARDO-DE CASTRO
Associate Justice

G.R. No. L-39864 December 8, 1933

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,
vs.
MARCELINO VALENCIA, MELCHOR QUIJANO, and SOCORRO QUIJANO, defendants.
MARCELINO VALENCIA and SOCORRO QUIJANO, appellants.
B. Francisco for appellants.
Office of the Solicitor-General Hilado for appellee.

ABAD SANTOS, J.:

Appellants Marcelino Valencia and Socorro Quijano, together with Melchor Quijano, were
prosecuted in the Court of First Instance of Pampanga under the following information:
Que en a hacia el dia 21 de marzo de 1933, en el Municipio de Mabalacat, Provincia de
Pampanga, Islas Filipinas, los referidos acusados, Marcelino Valencia, Melchor Quijano y
Socorro Quijano, confabulandose entre si, de comun acuerdo, ayudandose mutuamente y en
connivencia con los fabricantes de billetes de banco falsos, quienes hasta ahora no han sido
identificados, voluntaria, ilegal y criminalmente, expendieron e hicieron pasar un billete de banco
falsificado a sabiendas de que lo era, en la forma y manera siguinte: se presentaron en la tienda
de la Sra. Maria Morales y compraron efectos de su tienda, cuyo valor es de P0.45 y para
pagarlos entregaron un billete de banco falsificado P10, No. D261487D del Banco de las Islas
Filipinas, haciendolo pasar como legitimo y expedido por el Banco de las Islas Filipinas, cuando
que a ellos les constaba y les consta positivamente de que era y es falsificado recibiendo de la
citada Sra. Maria Morales como cambio la cantidad de P9.55.lawphil.net
Upon arraignment, Marcelino Valencia pleaded guilty, while his two codefendants pleaded not
guilty. After due trial, Melchor Quijano was acquitted. Marcelino Valencia was found guilty of a
violation of article 166, of the Revised Penal Code, and sentenced to suffer ten years, eight
months and one day of prision mayor, with the accessories of the law, to pay a fine of P100, with
subsidiary imprisonment in case of insolvency, and to pay one-third of the costs. Socorro Quijano
was found guilty of a violation of article 168 of the Revised Penal Code, and sentenced to four
years, two months and one day of prision correccional, with the accessories of the law, and to
pay one-third of the costs.
The evidence shows that on the morning of March 21, 1933, appellants stopped their car in front
of a store belonging to Maria Morales and bought some cigarettes and corn beef, and gave the
seller a ten-peso bill. After receiving the change in the sum of P9.55, they hurriedly left the store.
This aroused the suspicion of the store owner who, upon examining the bill, found it to be a
counterfeit. Whereupon her brother Pedro Morales went in pursuit of appellants. Meanwhile,
appellants went to another store belonging to Eustaquia Suñga and bought cigars and some cans
of salmon, giving, in payment, another ten-peso counterfeit bill. Upon receiving the change, they
again hurriedly departed. They were, however, overtaken by Pedro Morales and, at his instance,
were detained by the authorities.
On this appeal, two questions are raised, one relates to the qualification of the crime committed
by Marcelino, while the other, to the sufficiency of evidence to sustain the conviction of Socorro.
As to the first question, counsel contends that article 168 of the Revised Penal Code should be
applied, instead of article 166, alleging that no evidence was presented that appellant Marcelino
was in connivance with the counterfeiters or forgers when he passed the counterfeit bills. This
contention is groundless, since, by his plea of guilty, Marcelino admitted all the material
allegations of the information, including that of connivance with the authors of the forgery, which
characterizes the crime defined by article 166 of the Revised Penal Code. (U.S. vs. Burlado, 42
Phil., 72,74; U.S. vs. Barba, 29 Phil., 206; U.S. vs. Tamarra, 21 Phil., 143.) His testimony at the
trial of, and as witness for, his co-appellant, could not affect the legal consequences of his plea.
As to the second question, counsel contends that Socorro did not know anything about the
counterfeit bills, but an examination of the evidence in this case convinces us to the contrary, and
so we are not disposed to interfere with the finding of the trial court on this point.
The crime committed by Marcelino Valencia falls within the purview of article 166, case 2, of the
Revised Penal Code. The penalty prescribed is prision mayor in its maximum degree and a fine
not to exceed P5,000. There being present the mitigating circumstance of plea of guilty, without
any aggravating circumstance to offset it, the penalty should be imposed in its minimum period.
Under the provisions of Act No. 4103 of the Philippine Legislature, otherwise known as the
Indeterminate Sentence Law, he should be sentenced to a term of imprisonment the minimum of
which shall not be less than the minimum of the penalty next lower in degree to that prescribed
by the Revised Penal Code, and the maximum shall be that which may be properly imposed, in
view of the attending circumstances. Consequently, the appellant Marcelino Valencia is hereby
sentenced to suffer a term of imprisonment of from eight years and one day to ten years and eight
months. The fine imposed by the lower court should be without any subsidiary imprisonment
pursuant to article 39, rule 3, of the Revised Penal Code.
The crime committed by Socorro Quijano falls under article 168 of the Revised Penal Code, and
the penalty prescribed is prision mayor in its medium degree, which should be applied in its
medium period, in the absence of any mitigating or aggravating circumstance in the commission
of the crime. Pursuant to the provisions of said Act No. 4103, she is hereby sentenced to suffer a
term of imprisonment of from six years and one day to nine years and four months. She is also
sentenced to pay a fine of P100, without any subsidiary imprisonment. (Article 168, in relation
with article 166, case 2, and article 39, rule 3, of the Revised Penal Code.)
Modified as above indicated, the judgment is affirmed with costs against the appellants. So
ordered.
Street, Vickers, Butte, and Diaz, JJ., concur.

G.R. No. 209330

SECRETARY LEILA DE LIMA, ASSISTANT STATE PROSECUTOR STEWART ALLAN A.
MARIANO, ASSISTANT STATE PROSECUTOR VIMAR M. BARCELLANO and ASSISTANT
STATE PROSECUTOR GERARD E. GAERLAN, Petitioners,
vs.
MARIO JOEL T. REYES, Respondent.
DECISION
LEONEN, J.:
The Secretary of Justice has the discretion, upon motion or motu proprio, to act on any matter
that may cause a probable miscarriage of justice in the conduct of a preliminary investigation.
This action may include, but is not limited to, the conduct of a reinvestigation. Furthermore, a
petition for certiorari under Rule 65 questioning the regularity of preliminary investigation becomes
moot after the trial court completes its determination of probable cause and issues a warrant of
arrest.
This Petition for Review on Certiorari assails the Decision1 dated March 19, 2013 and Resolution2
dated September 27, 2013 of the Court of Appeals, which rendered null and void Department of
Justice Order No. 7103 issued by the Secretary of Justice.4 The Department Order created a
second panel of prosecutors to conduct a reinvestigation of a murder case in view of the first
panel of prosecutors' failure to admit the complainant's additional evidence.
Dr. Gerardo Ortega (Dr. Ortega), also known as "Doc Gerry," was a veterinarian and anchor of
several radio shows in Palawan. On January 24, 2011, at around 10:30 am, he was shot dead
inside the Baguio Wagwagan Ukay-ukay in San Pedro, Puerto Princesa City, Palawan.5 After a
brief chase with police officers, Marlon B. Recamata was arrested. On the same day, he made an
extrajudicial confession admitting that he shot Dr. Ortega. He also implicated Rodolfo "Bumar" O.
Edrad (Edrad), Dennis C. Aranas, and Armando "Salbakotah" R. Noel, Jr.6
On February 6, 2011, Edrad executed a Sinumpaang Salaysay before the Counter-Terrorism
Division of the National Bureau of Investigation where he alleged that it was former Palawan
Governor Mario Joel T. Reyes (former Governor Reyes) who ordered the killing of Dr. Ortega.7
On February 7, 2011, Secretary of Justice Leila De Lima issued Department Order No: 0918
creating a special panel of prosecutors (First Panel) to conduct preliminary investigation. The First
Panel was composed of Senior Assistant Prosecutor Edwin S. Dayog, Assistant State Prosecutor
Bryan Jacinto S. Cacha, and Assistant State Prosecutor John Benedict D. Medina.9
On February 14, 2011, Dr. Patria Gloria Inocencio-Ortega (Dr. Inocencio-Ortega), Dr. Ortega's
wife, filed a Supplemental Affidavit-Complaint implicating former Governor Reyes as the
mastermind of her husband's murder. Former Governor Reyes' brother, Coron Mayor Mario T.
Reyes, Jr., former Marinduque Governor Jose T. Carreon, former Provincial Administrator Atty.
Romeo Seratubias, Marlon Recamata, Dennis Aranas, Valentin Lesias, Arturo D. Regalado;
Armando Noel, Rodolfo O. Edrad, and several John and Jane Does were also implicated.10
On June 8, 2011, the First Panel concluded its preliminary investigation and issued the
Resolution11 dismissing the Affidavit-Complaint.
On June 28, 2011, Dr. Inocencio-Ortega filed a Motion to Re-Open Preliminary Investigation,
which, among others, sought the admission of mobile phone communications between former
Governor Reyes and Edrad.12 On July 7, 2011, while the Motion to Re-Open was still pending,
Dr. Inocencio-Ortega filed a Motion for Partial Reconsideration Ad Cautelam of the Resolution
dated June 8, 2011. Both Motions were denied by the First Panel in the Resolution13 dated
September 2, 2011.14
On September 7, 2011, the Secretary of Justice issued Department Order No. 710 creating a new
panel of investigators (Second Panel) to conduct a reinvestigation of the case. The Second Panel
was composed of Assistant State Prosecutor Stewart Allan M. Mariano, Assistant State
Prosecutor Vimar M. Barcellano, and Assistant State Prosecutor Gerard E. Gaerlan.
Department Order No. 710 ordered the reinvestigation of the case "in the interest of service and
due process"15 to address the offer of additional evidence denied by the First Panel in its
Resolution dated September 2, 2011. The Department Order also revoked Department Order No.
091.16
Pursuant to Department Order No. 710, the Second Panel issued a Subpoena requiring former
Governor Reyes to appear before them on October 6 and 13, 2011 and to submit his counter-
affidavit and supporting evidence.17
On September 29, 2011, Dr. Inocencio-Ortega filed before the Secretary of Justice a Petition for
Review (Ad Cautelam) assailing the First Panel's Resolution dated September 2, 2011.18
On October 3, 2011, former Governor Reyes filed before the Court of Appeals a Petition for
Certiorari and Prohibition with Prayer for a Writ of Preliminary Injunction and/or Temporary
Restraining Order assailing the creation of the Second Panel. In his Petition, he argued that the
Secretary of Justice gravely abused her discretion when she constituted a new panel. He also
argued that the parties were already afforded due process and that the evidence to be addressed
by the reinvestigation was neither new nor material to the case.19
On March 12, 2012, the Second Panel issued the Resolution finding probable cause and
recommending the filing of informations on all accused, including former Governor Reyes.20
Branch 52 of the Regional Trial Court of Palawan subsequently issued warrants of arrest on March
27, 2012.21 However, the warrants against former Governor Reyes and his brother were
ineffective since the two allegedly left the country days before the warrants could be served.22
On March 29, 2012, former Governor Reyes filed before the Secretary of Justice a Petition for
Review Ad Cautelam23 assailing the Second Panel's Resolution dated March 12, 2012.
On April 2, 2012, he also filed before the Court of Appeals a Supplemental Petition for Certiorari
and Prohibition with Prayer for Writ of Preliminary Injunction and/or Temporary Restraining Order
impleading Branch 52 of the Regional Trial Court of Palawan.24
In his Supplemental Petition, former Governor Reyes argued that the Regional Trial Court could
not enforce the Second Panel's Resolution dated March 12, 2012 and proceed with the
prosecution of his case since this Resolution was void.25
On March 19, 2013, the Court of Appeals, in a Special Division of Five, rendered the Decision26
declaring Department Order No. 710 null and void and reinstating the First Panel's Resolutions
dated June 8, 2011 and September 2, 2011.
According to the Court of Appeals, the Secretary of Justice committed grave abuse of discretion
when she issued Department Order No. 710 and created the Second Panel. The Court of Appeals
found that she should have modified or reversed the Resolutions of the First Panel pursuant to
the 2000 NPS Rule on Appeal27 instead of issuing Department' Order No. 710 and creating the
Second Panel. It found that because of her failure to follow the procedure in the 2000 NPS Rule
on Appeal, two Petitions for Review Ad Cautelam filed by the opposing parties were pending
before her.28
The Court of Appeals also found that the Secretary of Justice's admission that the issuance of
Department Order No. 710 did not set aside the First Panel's Resolution dated June 8, 2011 and
September 2, 2011 "[compounded] the already anomalous situation."29 It also stated that
Department Order No. 710 did not give the Second Panel the power to reverse, affirm, or modify
the Resolutions of the First Panel; therefore, the Second Panel did not have the authority to
assess the admissibility and weight of any existing or additional evidence.30
The Secretary of Justice, the Second Panel, and Dr. Inocencio-Ortega filed a Motion for
Reconsideration of the Decision dated March 19, 2013. The Motion, however, was denied by the
Court of Appeals in the Resolution31 dated September 27, 2013.
In its Resolution, the Court of Appeals stated that the Secretary of Justice had not shown the
alleged miscarriage of justice sought to be prevented by the creation of the Second Panel since
both parties were given full opportunity to present their evidence before the First Panel. It also
ruled that the evidence examined by the Second Panel was not additional evidence but "forgotten
evidence"32 that was already available before the First Panel during the conduct of the preliminary
investigation.33
Aggrieved, the Secretary of Justice and the Second Panel filed the present Petition for Review on
Certiorari34 assailing the Decision dated March 19, 2013 and Resolution dated September 27,
2013 of the Court of Appeals. Respondent Mario Joel T. Reyes filed his Comment35 to the Petition
in compliance with this court's Resolution dated February 17, 2014.36 Petitioners' Reply37 to the
Comment was filed on October 14, 2014 in compliance with this court's Resolution dated June
23, 2014.38
Petitioners argue that the Secretary of Justice acted within her authority when she issued
Department Order No. 710. They argue that her issuance was a purely executive function and
not a quasi-judicial function that could be the subject of a petition for certiorari or prohibition.39 In
their submissions, they point out that under Republic Act No. 10071 and the 2000 NPS Rule on
Appeal, the Secretary of Justice has the power to create a new panel of prosecutors to
reinvestigate a case to prevent a miscarriage of justice.40
Petitioners' position was that the First Panel "appear[ed] to have ignored the rules of preliminary
investigation"41 when it refused to receive additional evidence that would have been crucial for
the determination of the existence of probable cause.42 They assert that respondent was not
deprived of due process when the reinvestigation was ordered since he was not prevented from
presenting controverting evidence to Dr. Inocencio-Ortega's additional evidence. 43 Petitioners
argue that since the Information had been filed, the disposition of the case was already within the
discretion of the trial court.44
Respondent, on the other hand, argues that the Secretary of Justice had no authority to order
motu proprio the reinvestigation of the case since Dr. Inocencio-Ortega was able to submit her
alleged new evidence to the First Panel when she filed her Motion for Partial Reconsideration. He
argues that all parties had already been given the opportunity to present their evidence before
the First Panel so it was not necessary to conduct a reinvestigation.45
Respondent argues that the Secretary of Justice's discretion to create a new panel of prosecutors
was not "unbridled"46 since the 2000 NPS Rule on Appeal requires that there be compelling
circumstances for her to be able to designate another prosecutor to conduct the reinvestigation.47
He argues that the Second Panel's Resolution dated March 12, 2012 was void since the Panel
was created by a department order that was beyond the Secretary of Justice's authority to issue.
He further argues that the trial court did not acquire jurisdiction over the case since the Information
filed by the Second Panel was void.48
The issues for this court's resolution are:
First, whether the Court of Appeals erred in ruling that the Secretary of Justice committed grave
abuse of discretion when she issued Department Order No. 710, and with regard to this:
a. Whether the issuance of Department Order No. 710 was an executive function beyond the
scope of a petition for certiorari or prohibition; and
b. Whether the Secretary of Justice is authorized to create motu proprio another panel of
prosecutors in order to conduct a reinvestigation of the case.
Lastly, whether this Petition for Certiorari has already been rendered moot by the filing of the
information in court, pursuant to Crespo v. Mogul.49
I
The determination by the Department of Justice of the existence of probable cause is not a quasi-
judicial proceeding. However, the actions of the Secretary of Justice in affirming or reversing the
findings of prosecutors may still be subject to judicial review if it is tainted with grave abuse of
discretion.
Under the Rules of Court, a writ of certiorari is directed against "any tribunal, board or officer
exercising judicial or quasi-judicial functions."50 A quasi-judicial function is "the action, discretion,
etc., of public administrative officers or bodies, who are required to investigate facts, or ascertain
the existence of facts, hold hearings, and draw conclusions from them, as a basis for their official
action and to exercise discretion of a judicial nature."51 Otherwise stated, an administrative agency
performs quasi-judicial functions if it renders awards, determines the rights of opposing parties,
or if their decisions have the same effect as the judgment of a court.52
In a preliminary investigation, the prosecutor does not determine the guilt or innocence of an
accused. The prosecutor only determines "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."53 As such, the prosecutor does not perform quasi-judicial functions.
In Santos v. Go:54
[T]he prosecutor in a preliminary investigation does not determine the guilt or innocence of the
accused. He does not exercise adjudication nor rule-making functions. Preliminary investigation
is merely inquisitorial, and is often the only means of discovering the persons who may be
reasonably charged with a crime and to enable the fiscal 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. While the fiscal makes that determination, he cannot be said to be acting as a quasi-
court, for it is the courts, ultimately, that pass judgment on the accused, not the fiscal.
Though some cases describe the public prosecutors power to conduct a preliminary investigation
as quasi-judicial in nature, this is true only to the extent that, like quasi-judicial bodies, the
prosecutor is an officer of the executive department exercising powers akin to those of a court,
and the similarity ends at this point. A quasi-judicial body is as an organ of government other than
a court and other than a legislature which affects the rights of private parties through either
adjudication or rule-making. A quasi-judicial agency performs adjudicatory functions such that its
awards, determine the rights of parties, and their decisions have the same effect as judgments of
a court. Such is not the case when a public prosecutor conducts a preliminary investigation to
determine probable cause to file an information against a person charged with a criminal offense,
or when the Secretary of Justice is reviewing the formers order or resolutions.55
In Spouses Dacudao v. Secretary of Justice,56 a petition for certiorari, prohibition, and. mandamus
was filed.against the Secretary of Justice's issuance of a department order. The assailed order
directed all prosecutors to forward all cases already filed against Celso de los Angeles of the
Legacy Group to the Secretariat of the Special Panel created by the Department of Justice.
This court dismissed the petition on the ground that petitions for certiorari and prohibition are
directed on]y to tribunals that exercise judicial or quasi-judicial functions. The issuance of the
department order was a purely administrative or executive function of the Secretary of Justice.
While the Department of Justice may perform functions similar to that of a court of law, it is not a
quasi-judicial agency:
The fact that the DOJ is the primary prosecution arm of the Government does not make it a quasi-
judicial office or agency. Its preliminary investigation of cases is not a quasi-judicial proceeding.
Nor does the DOJ exercise a quasi-judicial function when it reviews the findings of a public
prosecutor on the finding of probable cause in any case. Indeed, in Bautista v. Court of Appeals,
the Supreme Court has held that a preliminary investigation is not a quasi-judicial proceeding,
stating:
... [t]he prosecutor in a preliminary investigation does not determine the guilt or innocence of the
accused. He does not exercise adjudication nor rule-making functions. Preliminary investigation
is merely inquisitorial, and is often the only means of discovering the persons who may be
reasonably charged with a crime and to enable the fiscal 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. While the fiscal makes that determination, he cannot be said to be acting as a quasi-
court, for it is the courts, ultimately, that pass judgment on the accused, not the fiscal.
There may be some decisions of the Court that have characterized the public prosecutor's power
to conduct a preliminary investigation as quasi-judicial in nature. Still, this characterization is true
only to the extent that the public prosecutor, like a quasi-judicial body, is an officer of the executive
department exercising powers akin to those of a court of law.
But the limited similarity. between the public prosecutor and a quasi-judicial body quickly ends
there. For sure, a quasi-judicial body is an organ of government other than a court of law or a
legislative office that affects the rights of private parties through either adjudication or rulemaking;
it performs adjudicatory functions, and its awards and adjudications determine the rights of the
parties coming before it; its decisions have the same effect as the judgments of a court of law. In
contrast, that is not the effect whenever a public prosecutor conducts a preliminary investigation
to determine. probable cause in order to file a criminal information against a person properly
charged with the offense, or whenever the Secretary of Justice reviews the public prosecutor's
orders or resolutions.57 (Emphasis supplied)
Similarly, in Callo-Claridad v. Esteban,58 we have stated that a petition for review under Rule 43
of the Rules of Court cannot be brought to assail the Secretary of Justice's resolution dismissing
a complaint for lack of probable cause since this is an "essentially executive function":59
A petition for review under Rule 43 is a mode of appeal to be taken only to review the decisions,
resolutions or awards by the quasi-judicial officers, agencies or bodies, particularly those specified
in Section 1 of Rule 43. In the matter before us, however, the Secretary of Justice was not an
officer performing a quasi-judicial function. In reviewing the findings of the OCP of Quezon City
on the matter of probable cause, the Secretary of Justice performed an essentially executive
function to determine whether the crime alleged against the respondents was committed, and
whether there was 'probable cause to believe that the respondents _were guilty thereof.60
A writ of prohibition, on the other hand, is directed against "the proceedings of any tribunal,
corporation, board, officer or person, whether exercising judicial, quasi-judicial or ministerial
functions."61 The Department of Justice is not a court of law and its officers do not perform quasi-
judicial functions. The Secretary of Justice's review of the resolutions of prosecutors is also not a
ministerial function.
An act is considered ministerial if "an officer or tribunal performs in the context of a given set of
facts, in a prescribed manner and without regard for the exercise of his or its own judgment, upon
the propriety or impropriety of the act done."62 In contrast, an act is considered discretionary "[i]f
the law imposes a duty upon a public officer, and gives him the right to decide how or when the
duty shall be performed."63 Considering that "full discretionary authority has been delegated to
the executive branch in the determination of probable cause during a preliminary investigation,"64
the functions of the prosecutors and the Secretary of Justice are not ministerial.
However, even when an administrative agency does not perform a judicial, quasi-judicial, or
ministerial function, the Constitution mandates the exercise of judicial review when there is an
allegation of grave abuse of discretion.65 In Auto Prominence Corporation v. Winterkorn:66
In ascertaining whether the Secretary of Justice committed grave abuse of discretion amounting
to lack or excess of jurisdiction in his determination of the existence of probable cause, the party
seeking the writ of certiorari must be able to establish that the Secretary of Justice exercised his
executive power in an arbitrary and despotic manner, by reason of passion or personal hostility,
and the abuse of discretion must be so patent and gross as would amount to an evasion or to a
unilateral refusal to perform the duty enjoined or to act in contemplation of law. Grave abuse of
discretion is not enough; it must amount to lack or excess of jurisdiction. Excess of jurisdiction
signifies that he had jurisdiction over the case, but (he) transcended the same or acted without
authority.67
Therefore, any question on whether the Secretary of Justice committed grave abuse of discretion
amounting to lack or excess of jurisdiction in affirming, reversing, or modifying the resolutions of
prosecutors may be the subject of a petition for certiorari under Rule 65 of the Rules of Court.
II
Under existing laws, rules of procedure, and jurisprudence, the Secretary of Justice is authorized
to issue Department Order No. 710.
Section 4 of Republic Act No. 1007168 outlines the powers granted by law to the Secretary of
Justice. The provision reads:
Section 4. Power of the Secretary of Justice. - The power vested in the Secretary of Justice
includes authority to act directly on any matter involving national security or a probable
miscarriage of justice within the jurisdiction of the prosecution staff, regional prosecution office,
and the provincial prosecutor or the city prosecutor and to review, reverse, revise, modify or affirm
on appeal or petition for review as the law or the rules of the Department of Justice (DOJ) may
provide, final judgments and orders of the prosecutor general, regional prosecutors, provincial
prosecutors, and city prosecutors.
A criminal prosecution is initiated by the filing of a complaint to a prosecutor who shall then
conduct a preliminary investigation in order to determine whether there is probable cause to hold
the accused for trial in court.69 The recommendation of the investigating prosecutor on whether
to dismiss the complaint or to file the corresponding information in court is still subject to the
approval of the provincial or city prosecutor or chief state prosecutor.70
However, a party is not precluded from appealing the resolutions of the provincial or city
prosecutor or chief state prosecutor to the Secretary of Justice. Under the 2000 NPS Rule on
Appeal,71 appeals may be taken within 15 days within receipt of the resolution by filing a verified
petition for review before the Secretary of Justice.72
In this case, the Secretary of Justice designated a panel of prosecutors to investigate on the
Complaint filed by Dr. Inocencio-Ortega. The First Panel, after conduct of the preliminary
investigation, resolved to dismiss the Complaint on the ground that the evidence was insufficient
to support a finding of probable cause. Dr. Inocencio-Ortega filed a Motion to Re-Open and a
Motion for Partial Investigation, which were both denied by the First Panel. Before Dr. Inocencio-
Ortega could file a petition for review, the Secretary of Justice issued Department Order No. 710
and constituted another panel of prosecutors to reinvestigate the case. The question therefore is
whether, under the 2000 NPS Rule on Appeal, the Secretary of Justice may, even without a
pending petition for review, motu proprio order the conduct of a reinvestigation.
The 2000 NPS Rule on Appeal requires the filing of a petition for review before the Secretary of
Justice can reverse, affirm, or modify the appealed resolution of the provincial or city prosecutor
or chief state prosecutor.73 The Secretary of Justice may also order the conduct of a
reinvestigation in order to resolve the petition for review. Under Section 11:
SECTION 11. Reinvestigation. If the Secretary of Justice finds it necessary to reinvestigate the
case, the reinvestigation shall be held by the investigating prosecutor, unless, for compelling
reasons, another prosecutor is designated to conduct the same.
Under Rule 112, Section 4 of the Rules of Court, however, the Secretary of Justice may motu
proprio reverse or modify resolutions of the provincial or city prosecutor or the chief state
prosecutor even without a pending petition for review. Section 4 states:
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.
....
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.
(Emphasis supplied)
The Secretary of Justice exercises control and supervision over prosecutors and it is within her
authority to affirm, nullify, reverse, or modify the resolutions of her prosecutors. In Ledesma v.
Court of Appeals:74
Decisions or resolutions of prosecutors are subject to appeal to the secretary of justice who, under
the Revised Administrative Code, exercises the power of direct control and supervision over said
prosecutors; and who may thus affirm, nullify, reverse or modify their rulings.
Section 39, Chapter 8, Book IV in relation to Section 5, 8, and 9, Chapter 2, Title III of the Code
gives the secretary of justice supervision and control over the Office of the Chief Prosecutor and
the Provincial and City Prosecution Offices. The scope of his power of supervision and control is
delineated in Section 38, paragraph 1, Chapter 7, Book IV of the Code:
(1) Supervision and Control. Supervision and control shall include authority to act directly
whenever a specific function is entrusted by law or regulation to a subordinate; direct the
performance of duty; restrain the commission of acts; review, approve, reverse or modify acts and
decisions of subordinate officials or units[.]75
Similarly, in Rural Community Bank of Guimba v. Hon. Talavera: 76
The actions of prosecutors are not unlimited; they are subject to review by the secretary of justice
who may affirm, nullify, reverse or modify their actions or opinions. · Consequently the secretary
may direct them to file either a motion to dismiss the case or an information against the accused.
In short, the secretary of justice, who has the power of supervision and control over prosecuting
officers, is the ultimate authority who decides which of the conflicting theories of the complainants
and the respondents should be believed.77
Section 4 of Republic Act No. 10071 also gives the Secretary of Justice the authority to directly
act on any "probable miscarriage of justice within the jurisdiction of the prosecution staff, regional
prosecution office, and the provincial prosecutor or the city prosecutor." Accordingly, the
Secretary of Justice may step in and order a reinvestigation even without a prior motion or petition
from a party in order to prevent any probable miscarriage of justice.
Dr. Inocencio-Ortega filed a Motion to Re-Open the preliminary Investigation before the First
Panel in order to admit as evidence mobile phone conversations between Edrad and respondent
and argued that these phone conversations tend to prove that respondent was the mastermind of
her husband's murder. The First Panel, however, dismissed the Motion on the ground that it was
filed out of time. The First Panel stated:
Re-opening of the preliminary investigation for the purpose of receiving additional evidence
presupposes that the case has been submitted for resolution but no resolution has been
promulgated therein by the investigating prosecutor. Since a resolution has already been
promulgated by the panel of prosecutors in this case, the motion to re-open the. preliminary
investigation is not proper and has to be denied.78
In the same Resolution, the First Panel denied Dr. Inocencio-Ortega's Motion for Partial
Reconsideration on the ground that "the evidence on record does not suffice to establish probable
cause."79 It was then that the Secretary of Justice issued Department Order No. 710, which states:
In the interest of service and due process, and to give both parties all the reasonable opportunity
to present their evidence during the preliminary investigation, a new panel is hereby created
composed of the following for the purpose of conducting a reinvestigation ....
....
The reinvestigation in this case is hereby ordered to address the offer of additional evidence by
the complainants, which was denied by the former panel in its Resolution of 2 September 2011
on the ground that an earlier resolution has already been promulgated prior to the filing of the said
motion, and such other issues which may be raised before the present panel.80 (Emphasis
supplied)
In her reply-letter dated September 29, 2011 to respondent's counsel, the Secretary of Justice
further explained that:
The order to reinvestigate was dictated by substantial justice and our desire to have a
comprehensive investigation. We do not want any stone unturned, or any evidence overlooked.
As stated in D.O. No. 710, we want to give "both parties all the reasonable opportunity to present
their evidence. "81
Under these circumstances, it is clear that the Secretary of Justice issued Department Order No.
710 because she had reason to believe that the First Panel's refusal to admit the additional
evidence may cause a probable miscarriage of justice to the parties. The Second Panel was
created not to overturn the findings and recommendations of the First Panel but to make sure that
all the evidence, including the evidence that the First Panel refused to admit, was investigated.
Therefore, the Secretary of Justice did not act in an "arbitrary and despotic manner, by reason of
passion or personal hostility."82
Accordingly, Dr. Inocencio-Ortega's Petition for Review before the Secretary of Justice was
rendered moot with the issuance by the Second Panel of the Resolution dated March 12, 2012
and the filing of the Information against respondent before the trial court.
III
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:83
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.84 (Emphasis supplied)
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.85
A preliminary investigation .is "merely inquisitorial,"86 and is only conducted to aid the prosecutor
in preparing the information.87 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. In Salonga v. Cruz-Paño:88
The purpose of a preliminary investigation is 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.89
Moreover, a preliminary investigation is merely preparatory to a trial. It is not a trial on the merits.
An accused's right to a preliminary investigation is merely statutory; it is not a right guaranteed by
the Constitution. Hence, any alleged irregularity in an investigation's conduct does not render the
information void nor impair its validity. In Lozada v. Fernando:90
It has been said time and again that a preliminary investigation is not properly" a trial or any part
thereof but is merely preparatory thereto, its only purpose being to determine whether a crime
has been committed and whether there is probable cause to believe the accused guilty thereof.
The right to such investigation is not a fundamental right guaranteed by the constitution. At most,
it is statutory. And rights conferred upon accused persons to participate in preliminary
investigations concerning themselves depend upon the provisions of law by which such rights are
specifically secured, rather than upon the phrase "due process of law."91 (Citations omitted)
People V. Narca92 further states:
It must be emphasized that the preliminary investigation is not the venue for the full exercise of
the rights of the parties. This is why preliminary investigation is not considered as a part of trial
but merely preparatory thereto and that the records therein shall not form part of the records of
the case in court. Parties' may submit affidavits but have no right to examine witnesses though
they can propound questions through the investigating officer. In fact, a preliminary investigation
may even be conducted ex-parte in certain cases. Moreover, in Section 1 of Rule 112, the purpose
of a preliminary investigation is only to determine a well grounded belief if a crime was probably
committed by an accused. In any case, the invalidity or absence of a preliminary investigation
does not affect the jurisdiction of the court which may have taken cognizance of the information
nor impair the validity of the information or otherwise render it defective.93 (Emphasis supplied)
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:94
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.1âwphi1
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 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 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 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 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.95 (Emphasis supplied)
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.96
The issuance of the warrant signifies that the trial court has made an independent determination
of the existence of probable cause. In Mendoza v. People:97
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.98
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.
The Court of Appeals should have dismissed the Petition for Certiorari filed before them when the
trial court issued its warrant of arrest. Since the trial court has already acquired jurisdiction over
the case and the existence of probable cause has been judicially determined, a petition for
certiorari questioning the conduct of the preliminary investigation ceases to be the "plain, speedy,
and adequate remedy"99 provided by law. Since this Petition for Review is an appeal from .a moot
Petition for Certiorari, it must also be rendered moot.
The prudent course of action at this stage would be to proceed to trial. Respondent, however, is
not without remedies. He may still file any appropriate action before the trial court or question any
alleged irregularity in the preliminary investigation during pre-trial.
WHEREFORE, the Petition is DISMISSED for being moot. Branch 52 of the Regional Trial Court
of Palawan is DIRECTED to proceed with prosecution of Criminal Case No. 26839.
SO ORDERED.

A.M. No. MTJ-12-1804 July 30, 2012

(Formerly A.M. OCA I.P.I. No. 09-2179-MTJ)
CITY PROSECUTOR ARMANDO P. ABANADO, Complainant,
vs.
JUDGE ABRAHAM A. BA YONA, Presiding Judge, Municipal Trial Court in Cities, Branch
7, Bacolod City, Respondent.
DECISION
LEONARDO-DE CASTRO, J.:
The case now before this Court sprang from Criminal Case No. 09-03-164 7 4, entitled People of
the Philippines v. Cresencio Palo, Sr.1 On March 24, 2009, complainant City Prosecutor Armando
P. Abanado filed the Information2 in the Municipal Trial Court in Cities, Bacolod City, which was
eventually raffled to Branch 7 thereof presided by respondent Judge Abraham A. Bayona.
On April 13, 2009, respondent issued the following order in Criminal Case No. 09-03-16474 in
connection with the issuance of a warrant of arrest against the accused therein:
Pursuant to Section 6, paragraph (a) in relation to paragraph b, Rule 112 of the Revised Rules of
Criminal Procedure, the Office of the City Prosecutor of Bacolod City is hereby ordered to present
additional evidence, relevant records and documents to enable this Court to evaluate and
determine the existence of probable cause, to wit:
1. Copy of the Memorandum of Preliminary Investigation;
2. Resolution of the Investigating Prosecutor on Record, Prosecutor Dennis S. Jarder Jarder
Resolution;
3. Memorandum of the transfer of case assignment from designated Investigating Prosecutor to
the City Prosecutor; and
4. Exhibit to the Court, the copies of all documents submitted by the complainant and the
respondents therein for comparison, authentication and completeness of the photocopies
attached to the information.
Compliance is required within five (5) days from receipt of this Order.3
On April 29, 2009, the Office of the City Prosecutor submitted a copy of the Memorandum of
Preliminary Investigation and informed respondent that the documents submitted by the parties
for preliminary investigation were already appended to the complaint, thus, taking care of items
1, 2, and 4 required by the April 13, 2009 Order.
With respect to item 3 thereof, complainant, in a letter also dated April 29, 2009, explained that
there was no memorandum of transfer of the case from the investigating prosecutor, Assistant
City Prosecutor (ACP) Dennis S. Jarder, to him.4 In his aforementioned letter, complainant
discussed that the case was initially handled by ACP Jarder who found no probable cause against
Cresencio Palo, Sr., accused in Criminal Case No. 09-03-16474. However, complainant, upon
review pursuant to Section 4, Rule 112 of the Revised Rules of Criminal Procedure,5 found
otherwise; that is, there was probable cause against Palo. Thus, complainant disapproved ACP
Jarder’s Resolution and filed the Information in court.6
Respondent was nonetheless dissatisfied with the explanation of the Office of the City Prosecutor.
In an Order dated May 5, 2009,7 respondent stated that the Jarder Resolution (dismissing the
complaint) was part and parcel of the official records of the case and, for this reason, must form
part of the records of the preliminary investigation. He further stated that because there was a
conflict between Jarder’s and complainant’s resolutions, those documents were necessary in the
evaluation and appreciation of the evidence to establish probable cause for the issuance of a
warrant of arrest against Palo.
WHEREFORE, in view of the foregoing premises, complainant is hereby ordered to complete the
records of this case by producing in Court this official and public document (Resolution of the
Investigating Prosecutor Dennis S. Jarder), required by the Revised Rules of Criminal Procedure,
Rules of Court. Compliance is required within five (5) days from receipt hereof. Fail not under the
pain of Contempt.8
On May 11, 2009, in view of the foregoing order, the Office of the City Prosecutor again sent a
letter9 explaining the impossibility of submitting the Jarder Resolution to the court. The letter stated
that the Jarder Resolution was no longer part of the records of the case as it was disapproved by
complainant and it attached a letter of Chief State Prosecutor Jovencito Zuño which reads:
This refers to your letter dated April 18, 2008. For your information, all resolutions prepared by an
Investigating Prosecutor after preliminary investigation shall form part of the record of the case.
But if they have been disapproved by the Provincial/City Prosecutor, the same shall not be
released to the parties and/or their counsels. Thus, only resolutions approved by the
Provincial/City Prosecutor for promulgation and release to the parties shall be made known to the
parties and/or their counsel.10
Respondent did not accept the explanations made by the Office of the City Prosecutor and
insisted instead that the Jarder Resolution should form part of the records of the case. Thus, in
an Order11 dated May 14, 2009, he required complainant to explain within five days from the
receipt thereof why he should not be cited for contempt under Section 3, Rule 71 of the Rules of
Court.12
Complainant received the aforementioned order on May 15, 2009 and requested for a ten-day
extension to comply with it.13
In an Order14 dated May 19, 2009, respondent denied the request of a ten-day extension and set
the hearing for the contempt charges on May 26, 2009. He likewise ordered the Clerk of Court to
issue a subpoena duces tecum ad testificandum to ACP Jarder directing him to testify on the
existence of his resolution dismissing the case against Palo and to Office of the City Prosecutor’s
Records Officer Myrna Vañegas to bring the entire record of the preliminary investigation of the
Palo case.
Aggrieved, complainant immediately filed a motion for inhibition15 against respondent on May 20,
2009 claiming:
4. That Complainant is now in a quandary because despite the fact that the production of the
disapproved resolution is not required under Circular Resolution No. 12 for purposes of issuance
of warrant of arrest, the Court is very much interested in its production and adding insult to injury
in foisting to cite in contempt the City Prosecutor for its non-production.
5. That the issuance of said order is capricious and whimsical and issued with grave abuse of
discretion. Because as it appears now, the presiding judge is very much interested in the outcome
of this case, thereby showing bias and prejudice against the prosecution.16
Complainant likewise filed a petition for certiorari with a prayer for the issuance of a temporary
restraining order (TRO) to restrain respondent from proceeding17 with the May 26, 2009 hearing
of the contempt proceedings. Complainant’s prayer for a TRO was granted in an Order dated May
25, 2009 by Presiding Judge Pepito B. Gellada of the Regional Trial Court, Branch 53, Bacolod
City.
In an Order18 dated June 15, 2009, Judge Gellada granted the petition for certiorari (Gellada
Order) holding that:
When a city or provincial prosecutor reverses the investigating assisting city or provincial
prosecutor, the resolution finding probable cause replaces the recommendation of the
investigating prosecutor recommending the dismissal of the case. The result would be that the
resolution of dismissal no longer forms an integral part of the records of the case. It is no longer
required that the complaint or entire records of the case during the preliminary investigation be
submitted to and be examined by the judge.
The rationale behind this practice is that the rules do not intend to unduly burden trial judges by
requiring them to go over the complete records of the cases all the time for the purpose of
determining probable cause for the sole purpose of issuing a warrant of arrest against the
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. x x x.19
(Emphases supplied.)
The records thereafter make no mention of what happened in Criminal Case No. 09-03-16474.
On July 10, 2009, complainant executed the present administrative complaint and the same was
received by the Office of the Court Administrator (OCA) on August 20, 2009.20 Complainant
alleged therein that respondent was guilty of gross ignorance of the law or procedure,21 gross
misconduct,22 and violation of Supreme Court Circular No. 12 dated June 30, 1987.23 He
essentially asserted that respondent unduly burdened himself by obsessing over the production
of the records of the preliminary investigation, especially the Jarder Resolution.
Respondent, in his Comment with Counter-Complaint for Disbarment of Prosecutor Abanado,24
essentially reiterated the importance of the Jarder Resolution in deciding whether to issue a
warrant of arrest in Criminal Case No. 09-03-16474. He stated that the document was "material
and relevant in the proper conduct of preliminary investigation and the neutral, objective and
circumspect appreciation of the Judge of the evidence x x x for a proper and just determination
whether probable cause exist[s] or not for the possible issuance of a warrant of arrest."25 As for
respondent’s countercharge, he claimed complainant should be disbarred for (a) filing a malicious
and unfounded administrative complaint; (b) disrespect and disobedience to judicial authority; (c)
violation of the sanctity of public records; (d) infidelity in the custody of documents; and (e)
misconduct and insubordination.26
In a Reply27 dated October 8, 2009, complainant vehemently denied respondent’s charges against
him and claimed that they were merely meant to discourage him from pursuing his just and valid
administrative complaint.
On February 2, 2011, the OCA submitted its report and recommendation.28 It noted the June 15,
2009 Gellada Order which held that the resolution of the city or provincial prosecutor finding
probable cause replaces the recommendation of the investigating prosecutor. In such case, the
resolution recommending the dismissal is superseded, and no longer forms an integral part of the
records of the case and it need not be annexed to the information filed in court. Thus, the OCA
held that complainant cannot be held guilty of contempt. Nevertheless, because there was no
showing that respondent was motivated by bad faith and settled is the rule that the acts of a judge
in his judicial capacity are not subject to the disciplinary action, it recommended that:
(a) The administrative complaint against [respondent] be RE-DOCKETED as a regular
administrative case; and,
(b) [Respondent] be REPRIMANDED with STERN WARNING that a repetition of the same or
similar offenses will be dealt with more severely.29
We adopt the factual findings of the OCA but find reason not to impose the recommended penalty
of reprimand on respondent.
We are tasked to determine whether respondent was administratively liable for gross ignorance
of the law, gross misconduct and violation of Supreme Court Circular No. 12 dated June 30, 1987
for requiring the Office of the City Prosecutor to submit the Jarder Resolution to the court despite
the reversal thereof.
The conduct of a preliminary investigation is primarily an executive function.30 Thus, the courts
must consider the rules of procedure of the Department of Justice in conducting preliminary
investigations whenever the actions of a public prosecutor is put in question. An examination of
the 2008 Revised Manual for Prosecutors of the Department of Justice-National Prosecution
Service31 (DOJ-NPS Manual), therefore, is necessary.
The pertinent provisions of the DOJ-NPS Manual are as follows:
J. PREPARATION OF THE RESOLUTION
1. When There is Lack of Probable Cause
If the investigating prosecutor does not find sufficient basis for the prosecution of the respondent,
he shall prepare the resolution recommending the dismissal of the complaint.
xxxx
3. Form of the Resolution and Number of Copies
The resolution shall be written in the official language, personally and directly prepared and signed
by the investigating prosecutor. It shall be prepared in as many copies as there are parties, plus
five (5) additional copies.
xxxx
e. Contents of the Body of the Resolution
In general, the body of [the] resolution should contain:
1. a brief summary of the facts of the case;
2. a concise statement of the issues involved;
3. applicable laws and jurisprudence; and
4. the findings, including an enumeration of all the documentary evidence submitted by the parties
and recommendations of the investigating prosecutor.
All material details that should be found in the information prepared by the Investigating
Prosecutor shall be stated in the resolution.
xxxx
K. TRANSMITTAL OF THE RECOMMENDATORY RESOLUTION AND INFORMATION
TOGETHER WITH THE COMPLETE RECORD OF THE CASE
The investigating prosecutor shall forward his recommendation and Information, together with the
complete records of the case, to the Chief State/ Regional State/ Provincial/City Prosecutor
concerned within five (5) days from the date of his resolution.
xxxx
3. Documents to be Attached to the Information
An information that is filed in court shall, as far as practicable, be accompanied by a copy of the
resolution of the investigating prosecutor, the complainant’s affidavit, the sworn statements of the
prosecution’s witnesses, the respondent’s counter-affidavit and the sworn statements of his
witnesses and such other evidence as may have been taken into account in arriving at a
determination of the existence of probable cause.
4. Confidentiality of Resolutions
All resolutions prepared by an investigating prosecutor after preliminary investigation, whether his
recommendation be for the filing or dismissal of the case, shall be held in strict confidence and
shall not be made known to the parties, their counsels and/or to any unauthorized person until
the same shall have been finally acted upon by the Chief State/Regional State/Provincial/City
Prosecutor or his duly authorized assistant and approved for promulgation and release to the
parties.
xxxx
L. ACTION OF THE CHIEF STATE/REGIONAL STATE/PROVINCIAL OR CITY PROSECUTOR
ON THE RECOMMENDATORY RESOLUTION
The Chief State/Regional State/Provincial or City Prosecutor concerned shall act on all resolutions
within a period of thirty (30) days from receipt thereof, extendible for another thirty (30) days in
cases involving complex issues and/or heavy workload of the head of office, by either:
xxxx
3. reversing the recommendation of the investigating prosecutor, in which case, the Chief
State/Regional State/Provincial or City Prosecutor a. may file the corresponding Information in
court (except the Regional State Prosecutor); or
b. direct any other state prosecutor or assistant prosecutor, as the case may be, to do so.
In both instances, there is no more need for the head of office concerned to conduct another
preliminary investigation. (Emphases supplied.)
Based on the foregoing, the guidelines for the documentation of a resolution by an investigating
prosecutor, who after conducting preliminary investigation, finds no probable cause and
recommends a dismissal of the criminal complaint, can be summed as follows:
(1) the investigating prosecutor prepares a resolution recommending the dismissal and containing
the following:
a. summary of the facts of the case;
b. concise statement of the issues therein; and
c. his findings and recommendations.
(2) within five days from the date of his resolution, the investigating fiscal shall forward his
resolution to the provincial, city or chief state prosecutor, as the case may be, for review;
(3) if the resolution of the investigating prosecutor is reversed by the provincial, city or chief state
prosecutor, the latter may file the information himself or direct another assistant prosecutor or
state prosecutor to do so;
(4) the resolution of the investigating prosecutor shall be strictly confidential and may not be
released to the parties, their counsels and/or any other unauthorized person until the same shall
have been finally acted upon by the provincial, city or chief state prosecutor or his duly authorized
assistant and approved for promulgation and release to the parties; and
(5) that the resolution of the investigating prosecutor, the complainant's affidavit, the sworn
statements of the prosecution's witnesses, the respondent's counter-affidavit and the sworn
statements of his witnesses and such other evidence, as far as practicable, shall be attached to
the information.
We find that there is nothing in the DOJ-NPS Manual requiring the removal of a resolution by an
investigating prosecutor recommending the dismissal of a criminal complaint after it was reversed
by the provincial, city or chief state prosecutor.
Nonetheless, we also note that attaching such a resolution to an information filed in court is
optional under the aforementioned manual. The DOJ-NPS Manual states that the resolution of
the investigating prosecutor should be attached to the information only "as far as practicable."
Thus, such attachment is not mandatory or required under the rules.
In view of the foregoing, the Court finds that respondent erred in insisting on the production of the
Jarder Resolution when all other pertinent documents regarding the preliminary investigation have
been submitted to his court, and in going so far as to motu proprio initiating a proceeding for
contempt against complainant.
However, not every judicial error is tantamount to ignorance of the law and if it was committed in
good faith, the judge need not be subjected to administrative sanction.32 While complainant
admitted that he erred in insisting on the production of the Jarder Resolution despite the provisions
of the DOJ-NPS Manual, such error cannot be categorized as gross ignorance of the law as he
did not appear to be motivated by bad faith. Indeed, the rules of procedure in the prosecution
office were not clear as to whether or not an investigating prosecutor’s resolution of dismissal that
had been reversed by the city prosecutor should still form part of the records.
Neither did respondent’s action amount to gross misconduct.1âwphi1 Gross misconduct
presupposes evidence of grave irregularity in the performance of duty.33 In the case at bar,
respondent’s act of requiring complainant to explain why he should not be cited in contempt for
his failure to submit the Jarder Resolution in court was in accordance with established rules of
procedure. Furthermore, complainant did not abuse his contempt power as he did not pursue the
proceedings in view of the May 29, 2009 and June 15, 2009 Gellada orders.34 Lastly, as previously
discussed, respondent issued those orders in good faith as he honestly believed that they were
necessary in the fair and just issuance of the warrant of arrest in Criminal Case No. 09-03-16474.
As far as the disbarment charges against complainant are concerned, under the Rules of Court,
complaints for disbarment against a lawyer are ordinarily referred to an investigator who shall look
into the allegations contained therein.35 However, in the interest of expediency and convenience,
as the matters necessary for the complete disposition of the counter-complaint are found in the
records of the instant case, we dispose of the same here. We find no merit in the countercharges.
It appears from the records that complainant’s non-submission of the Jarder Resolution was
motivated by his honest belief that his action was in accord with the procedures in the prosecution
office. It likewise cannot be said that the filing of the present administrative case against Judge
Bayona was tainted with improper motive or bad faith.
ACCORDINGLY, the complaint against Judge Abraham A. Bayona of the Municipal Trial Court in
Cities, Bacolod City, Branch 7 is DISMISSED.
The counter-complaint against City Prosecutor Armando P. Abanado is likewise DISMISSED.
SO ORDERED.