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G.R. No. 159747 April 13, 2004 the AFP and the Government of President Gloria Macapagal
Arroyo and they are willing to risk their lives in order to achieve
GREGORIO B. HONASAN II, petitioner, the National Recovery Agenda of Sen. Honasan, which they
vs. believe is the only program that would solve the ills of society. . .
THE PANEL OF INVESTIGATING PROSECUTORS OF THE DEPARTMENT . (Emphasis supplied).
OF JUSTICE (LEO DACERA, SUSAN F. DACANAY, EDNA A. VALENZUELA
AND SEBASTIAN F. CAPONONG, JR.), CIDG-PNP- P/DIRECTOR EDUARDO The Sworn Statement of AFP Major Perfecto Ragil referred to by PNP/P Director
MATILLANO, and HON. OMBUDSMAN SIMEON V. MARCELO, respondents. Matillano is quoted verbatim, to wit:

1. That I am a member of the Communication –Electronics and


Information Systems Services, Armed Forces of the Philippines with the
rank of Major;
DECISION
2. That I met a certain Captain Gary Alejano of the Presidential Security
Guard (PSG) during our Very Important Person (VIP) Protection Course
sometime in last week of March 2003;

AUSTRIA-MARTINEZ, J.: 3. That sometime in May 2003, Captain Alejano gave me a copy of the
pamphlet of the National Recovery Program (NRP) and told me that:
"Kailangan ng Bansa ng taong kagaya mo na walang bahid ng corruption
On August 4, 2003, an affidavit-complaint was filed with the Department of
Justice (DOJ) by respondent CIDG-PNP/P Director Eduardo Matillano. It reads in kaya basahin mo ito (referring to NRP) pamphlet. I took the pamphlet but
never had the time to read it;
part:

4. That sometime in the afternoon of June 4, 2003, Captain Alejano



invited me to join him in a meeting where the NRP would be discussed
and that there would be a special guest;
2. After a thorough investigation, I found that a crime of coup d'etat was
indeed committed by military personnel who occupied Oakwood on the
5. That Capt. Alejano and I arrived at the meeting at past 9 o'clock in the
27th day of July 2003 and Senator Gregorio "Gringo"Honasan, II …
evening of June 4, 2003 in a house located somewhere in San Juan,
Metro Manila;
3. …
6. That upon arrival we were given a document consisting of about 3-4
4. The said crime was committed as follows: pages containing discussion of issues and concerns within the
framework of NRP and we were likewise served with dinner;
4.1 On June 4, 2003, at on or about 11 p.m., in a house located in San
Juan, Metro Manila, a meeting was held and presided by Senator 7. That while we were still having dinner at about past 11 o'clock in the
Honasan. Attached as Annex "B" is the affidavit of Perfecto Ragil evening, Sen. Gregorio "Gringo" Honasan arrived together with another
and made an integral part of this complaint. fellow who was later introduced as Capt. Turingan;

… 8. That after Sen. Honasan had taken his dinner, the meeting proper
started presided by Sen. Honasan;
4.8 In the early morning of July 27, 2003, Capt. Gerardo
Gambala, for and in behalf of the military rebels occupying
Oakwood, made a public statement aired on nation television,
stating their withdrawal of support to the chain of command of
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9. That Sen. Honasan discussed the NRP, the graft and corruption in the 14. That I did not like to participate in the rites but I had the fear for my
government including the military institution, the judiciary, the executive life with what Senator HONASAN said that "…kaya nating pumatay ng
branch and the like; kasamahan";

10. That the discussion concluded that we must use force, violence and 15. That after the rites, the meeting was adjourned and we left the place;
armed struggle to achieve the vision of NRP. At this point, I raised the
argument that it is my belief that reforms will be achieved through the 16. That I avoided Captain Alejano after that meeting but I was extra
democratic processes and not thru force and violence and/or armed cautious that he would not notice it for fear of my life due to the threat
struggle. Sen. Honasan countered that "we will never achieve reforms made by Senator HONASAN during the meeting on June 4, 2003 and
through the democratic processes because the people who are in power the information relayed to me by Captain Alejano that their group had
will not give up their positions as they have their vested interests to already deeply established their network inside the intelligence
protect." After a few more exchanges of views, Sen. Honasan appeared community;
irritated and asked me directly three (3) times: "In ka ba o out?" I then
asked whether all those present numbering 30 people, more or less, are
17. That sometime in the first week of July 2003, Captain Alejano came
really committed, Sen. Honasan replied: "Kung kaya nating pumatay sa
to see me to return the rifle that he borrowed and told me that when the
ating mga kalaban, kaya din nating pumatay sa mga kasamahang
group arrives at the Malacañang Compound for "D-DAY", my task is to
magtataksil." I decided not to pursue further questions;
switch off the telephone PABX that serves the Malacañang complex. I
told him that I could not do it. No further conversation ensued and he left;
11. That in the course of the meeting, he presented the plan of action to
achieve the goals of NRP, i.e., overthrow of the government under the
18. That on Sunday, July 27, 2003, while watching the television, I saw
present leadership thru armed revolution and after which, a junta will be
flashed on the screen Lieutenant Antonio Trillanes, Captain Gerardo
constituted and that junta will run the new government. He further said Gambala, Captain Alejano and some others who were present during the
that some of us will resign from the military service and occupy civilian June 4th meeting that I attended, having a press conference about their
positions in the new government. He also said that there is urgency that
occupation of the Oakwood Hotel. I also saw that the letter "I" on the arm
we implement this plan and that we would be notified of the next
bands and the banner is the same letter "I" in the banner which was
activities.
displayed and on which we pressed our wound to leave the imprint of the
letter "I";
12. That after the discussion and his presentation, he explained the rites
that we were to undergo-some sort of "blood compact". He read a prayer
19. That this Affidavit is being executed in order to attest the veracity of
that sounded more like a pledge and we all recited it with raised arms
the foregoing and in order to charge SENATOR GREGORIO "GRINGO"
and clenched fists. He then took a knife and demonstrated how to make
HONASAN, Capt. FELIX TURINGAN, Capt. GARY ALEJANO, Lt.
a cut on the left upper inner arm until it bleeds. The cut was in form of the
ANTONIO TRILLANES, Capt. GERARDO GAMBALA and others for
letter "I" in the old alphabet but was done in a way that it actually looked violation of Article 134-A of the Revised Penal Code for the offense of
like letter "H". Then, he pressed his right thumb against the blood and "coup d'etat". (Emphasis supplied)
pressed the thumb on the lower middle portion of the copy of the Prayer.
He then covered his thumb mark in blood with tape. He then pressed the
cut on his left arm against the NRP flag and left mark of letter "I" on it. The affidavit-complaint is docketed as I.S. No. 2003-1120 and the Panel of
Everybody else followed; Investigating Prosecutors of the Department of Justice (DOJ Panel for brevity)
sent a subpoena to petitioner for preliminary investigation.
13. That when my turn came, I slightly made a cut on my upper inner
arm and pricked a portion of it to let it bleed and I followed what Senator On August 27, 2003, petitioner, together with his counsel, appeared at the DOJ.
HONASAN did; He filed a Motion for Clarification questioning DOJ's jurisdiction over the case,
asserting that since the imputed acts were committed in relation to his public
office, it is the Office of the Ombudsman, not the DOJ, that has the jurisdiction to
conduct the corresponding preliminary investigation; that should the charge be
filed in court, it is the Sandiganbayan, not the regular courts, that can legally take
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cognizance of the case considering that he belongs to the group of public officials clarify jurisdiction considering the claim of the petitioner that the DOJ
with Salary Grade 31; and praying that the proceedings be suspended until final Panel has no jurisdiction to conduct preliminary investigation.
resolution of his motion.
After the oral arguments, the parties submitted their respective memoranda. The
Respondent Matillano submitted his comment/opposition thereto and petitioner arguments of petitioner are:
filed a reply.
1. The Office of the Ombudsman has jurisdiction to conduct the
On September 10, 2003, the DOJ Panel issued an Order, to wit: preliminary investigation over all public officials, including petitioner.

On August 27, 2003, Senator Gregorio B. Honasan II filed through 2. Respondent DOJ Panel is neither authorized nor deputized under
counsel a "Motion to Clarify Jurisdiction". On September 1, 2003, OMB-DOJ Joint Circular No. 95-001 to conduct the preliminary
complainant filed a Comment/Opposition to the said motion. investigation involving Honasan.

The motion and comment/opposition are hereby duly noted and shall be 3. Even if deputized, the respondent DOJ Panel is still without authority
passed upon in the resolution of this case. since OMB-DOJ Joint Circular No. 95-001 is ultra vires for being violative
of the Constitution, beyond the powers granted to the Ombudsman by
In the meantime, in view of the submission by complainant of additional R.A. 6770 and inoperative due to lack of publication, hence null and void.
affidavits/evidence and to afford respondents ample opportunity to
controvert the same, respondents, thru counsel are hereby directed to 4. Since petitioner is charged with coup de 'etat in relation to his office, it
file their respective counter-affidavits and controverting evidence on or is the Office of the Ombudsman which has the jurisdiction to conduct the
before September 23, 2003.1 preliminary investigation.

Hence, Senator Gregorio B. Honasan II filed the herein petition 5. The respondent DOJ Panel gravely erred in deferring the resolution of
for certiorari under Rule 65 of the Rules of Court against the DOJ Panel and its petitioner's Motion to Clarify Jurisdiction since the issue involved therein
members, CIDG-PNP-P/Director Eduardo Matillano and Ombudsman Simeon V. is determinative of the validity of the preliminary investigation.
Marcelo, attributing grave abuse of discretion on the part of the DOJ Panel in
issuing the aforequoted Order of September 10, 2003 on the ground that the 6. Respondent DOJ Panel gravely erred when it resolved petitioner's
DOJ has no jurisdiction to conduct the preliminary investigation. Motion in the guise of directing him to submit Counter-Affidavit and yet
refused and/or failed to perform its duties to resolve petitioner's Motion
Respondent Ombudsman, the Office of Solicitor General in representation of stating its legal and factual bases.
respondents DOJ Panel, and Director Matillano submitted their respective
comments. The arguments of respondent DOJ Panel are:

The Court heard the parties in oral arguments on the following issues: 1. The DOJ has jurisdiction to conduct the preliminary investigation on
petitioner pursuant to Section 3, Chapter I, Title III, Book IV of the
1) Whether respondent Department of Justice Panel of Investigators has Revised Administrative Code of 1987 in relation to P.D. No. 1275, as
jurisdiction to conduct preliminary investigation over the charge of coup amended by P.D. No. 1513.
d'etat against petitioner;
2. Petitioner is charged with a crime that is not directly nor intimately
2) Whether Ombudsman-DOJ Circular No. 95-001 violates the related to his public office as a Senator. The factual allegations in the
Constitution and Republic Act No. 6770 or Ombudsman Act of 1989; and complaint and the supporting affidavits are bereft of the requisite nexus
between petitioner's office and the acts complained of.
3) Whether respondent DOJ Panel of Investigators committed grave
abuse of discretion in deferring the resolution of the petitioner's motion to
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3. The challenge against the constitutionality of the OMB-DOJ Joint agency necessary to discharge its functions, as well as from the statutory
Circular, as a ground to question the jurisdiction of the DOJ over the authority to so deputize said DOJ prosecutors under Sec. 31 of RA 6770.
complaint below, is misplaced. The jurisdiction of the DOJ is a statutory
grant under the Revised Administrative Code. It is not derived from any 4. The Joint Circular which is an internal arrangement between the DOJ
provision of the joint circular which embodies the guidelines governing and the Office of the Ombudsman need not be published since it neither
the authority of both the DOJ and the Office of the Ombudsman to contains a penal provision nor does it prescribe a mandatory act or
conduct preliminary investigation on offenses charged in relation to prohibit any under pain or penalty. It does not regulate the conduct of
public office. persons or the public, in general.

4. Instead of filing his counter-affidavit, petitioner opted to file a motion to The Court finds the petition without merit.
clarify jurisdiction which, for all intents and purposes, is actually a motion
to dismiss that is a prohibited pleading under Section 3, Rule 112 of the The authority of respondent DOJ Panel is based not on the assailed OMB-DOJ
Revised Rules of Criminal Procedure. The DOJ Panel is not required to Circular No. 95-001 but on the provisions of the 1987 Administrative Code under
act or even recognize it since a preliminary investigation is required
Chapter I, Title III, Book IV, governing the DOJ, which provides:
solely for the purpose of determining whether there is a 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. The Sec. 1. Declaration of policy - It is the declared policy of the State to
DOJ panel did not outrightly reject the motion of petitioner but ruled to provide the government with a principal law agency which shall be both
pass upon the same in the determination of the probable cause; thus, it its legal counsel and prosecution arm; administer the criminal justice
has not violated any law or rule or any norm of discretion. system in accordance with the accepted processes thereof consisting in
the investigation of the crimes, prosecution of offenders and
administration of the correctional system; …
The arguments of respondent Ombudsman are:
Sec. 3. Powers and Functions - To accomplish its mandate, the
1. The DOJ Panel has full authority and jurisdiction to conduct
Department shall have the following powers and functions:
preliminary investigation over the petitioner for the reason that the crime
of coup d'etat under Article No. 134-A of the Revised Penal Code (RPC)
may fall under the jurisdiction of the Sandiganbayan only if the same is …
committed "in relation to office" of petitioner, pursuant to Section 4, P.D.
No. 1606, as amended by R.A. No. 7975 and R.A. No. 8249. (2) Investigate the commission of crimes, prosecute offenders and
administer the probation and correction system; (Emphasis
2. Petitioner's premise that the DOJ Panel derives its authority to conduct supplied)
preliminary investigation over cases involving public officers solely from
the OMB-DOJ Joint Circular No. 95-001 is misplaced because the DOJ's and Section 1 of P.D. 1275, effective April 11, 1978, to wit:
concurrent authority with the OMB to conduct preliminary investigation of
cases involving public officials has been recognized in Sanchez vs. SECTION 1. Creation of the National Prosecution Service; Supervision
Demetriou (227 SCRA 627 [1993]) and incorporated in Section 4, Rule and Control of the Secretary of Justice. – There is hereby created and
112 of the Revised Rules of Criminal Procedure. established a National Prosecution Service under the supervision and
control of the Secretary of Justice, to be composed of the Prosecution
3. Petitioner's assertion that the Joint Circular is ultra vires and the DOJ Staff in the Office of the Secretary of Justice and such number of
cannot be deputized by the Ombudsman en masse but must be given in Regional State Prosecution Offices, and Provincial and City Fiscal's
reference to specific cases has no factual or legal basis. There is no rule Offices as are hereinafter provided, which shall be primarily
or law which requires the Ombudsman to write out individualized responsible for the investigation and prosecution of all cases
authorities to deputize prosecutors on a per case basis. The power of the involving violations of penal laws. (Emphasis supplied)
Ombudsman to deputize DOJ prosecutors proceeds from the
Constitutional grant of power to request assistance from any government
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Petitioner claims that it is the Ombudsman, not the DOJ, that has the jurisdiction Sec. 15. Powers, Functions and Duties. - The Office of the Ombudsman
to conduct the preliminary investigation under paragraph (1), Section 13, Article shall have the following powers, functions and duties:
XI of the 1987 Constitution, which confers upon the Office of the Ombudsman the
power to investigate on its own, or on complaint by any person, any act or (1) Investigate and prosecute on its own or on complaint by any person,
omission of any public official, employee, office or agency, when such act or any act or omission of any public officer or employee, office or agency,
omission appears to be illegal, unjust, improper, or inefficient. Petitioner when such act or omission appears to be illegal, unjust, improper or
rationalizes that the 1987 Administrative Code and the Ombudsman Act of 1989 inefficient. It has primary jurisdiction over cases cognizable by the
cannot prevail over the Constitution, pursuant to Article 7 of the Civil Code, which Sandiganbayan and, in the exercise of this primary jurisdiction, it
provides: may take over, at any stage, from any investigatory agency of the
government, the investigation of such cases.
Article 7. Laws are repealed only by subsequent ones, and their violation
or non-observance shall not be excused by disuse, or custom or practice …. (Emphasis supplied)
to the contrary.
Pursuant to the authority given to the Ombudsman by the Constitution and the
When the courts declare a law to be inconsistent with the Constitution, Ombudsman Act of 1989 to lay down its own rules and procedure, the Office of
the former shall be void and the latter shall govern. the Ombudsman promulgated Administrative Order No. 8, dated November 8,
1990, entitled, Clarifying and Modifying Certain Rules of Procedure of the
Administrative or executive acts, orders and regulations shall be valid only when Ombudsman, to wit:
they are not contrary to the laws or the Constitution.
A complaint filed in or taken cognizance of by the Office of the
and Mabanag vs. Lopez Vito.2 Ombudsman charging any public officer or employee including those in
government-owned or controlled corporations, with an act or omission
The Court is not convinced. Paragraph (1) of Section 13, Article XI of the alleged to be illegal, unjust, improper or inefficient is an Ombudsman
Constitution, viz: case. Such a complaint may be the subject of criminal or administrative
proceedings, or both.
SEC. 13. The Office of the Ombudsman shall have the following powers,
functions, and duties: For purposes of investigation and prosecution, Ombudsman cases
involving criminal offenses may be subdivided into two classes, to
wit: (1) those cognizable by the Sandiganbayan, and (2) those
1. Investigate on its own, or on complaint by any person, any act or
falling under the jurisdiction of the regular courts. The difference
omission of any public official, employee, office or agency, when such
between the two, aside from the category of the courts wherein they
act or omission appears to be illegal, unjust, improper, or inefficient.
are filed, is on the authority to investigate as distinguished from the
authority to prosecute, such cases.
does not exclude other government agencies tasked by law to investigate and
prosecute cases involving public officials. If it were the intention of the framers of
The power to investigate or conduct a preliminary investigation on
the 1987 Constitution, they would have expressly declared the exclusive
any Ombudsman case may be exercised by an investigator or
conferment of the power to the Ombudsman. Instead, paragraph (8) of the same
prosecutor of the Office of the Ombudsman, or by any Provincial or
Section 13 of the Constitution provides:
City Prosecutor or their assistance, either in their regular capacities
or as deputized Ombudsman prosecutors.
(8) Promulgate its rules of procedure and exercise such other powers or
perform such functions or duties as may be provided by law.
The prosecution of cases cognizable by the Sandiganbayan shall be
under the direct exclusive control and supervision of the Office of
Accordingly, Congress enacted R.A. 6770, otherwise known as "The the Ombudsman. In cases cognizable by the regular Courts, the
Ombudsman Act of 1989." Section 15 thereof provides: control and supervision by the Office of the Ombudsman is only in
Ombudsman cases in the sense defined above. The law recognizes
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a concurrence of jurisdiction between the Office of the Ombudsman authorized to conduct a preliminary investigation under Section 2,
and other investigative agencies of the government in the Rule 112 of the 1985 Rules of Criminal Procedure with the only
prosecution of cases cognizable by regular courts. (Emphasis qualification that the Ombudsman may take over at any stage of
supplied) such investigation in the exercise of his primary
jurisdiction.4 (Emphasis supplied)
It is noteworthy that as early as 1990, the Ombudsman had properly
differentiated the authority to investigate cases from the authority to prosecute A little over a month later, the Court, in Deloso vs. Domingo,5 pronounced that
cases. It is on this note that the Court will first dwell on the nature or extent of the the Ombudsman, under the authority of Section 13 (1) of the 1987 Constitution,
authority of the Ombudsman to investigate cases. Whence, focus is directed to has jurisdiction to investigate any crime committed by a public official, elucidating
the second sentence of paragraph (1), Section 15 of the Ombudsman Act which thus:
specifically provides that the Ombudsman has primary jurisdiction over cases
cognizable by the Sandiganbayan, and, in the exercise of this primary As protector of the people, the office of the Ombudsman has the power,
jurisdiction, it may take over, at any stage, from any investigating agency of the function and duty to "act promptly on complaints filed in any form or
government, the investigation of such cases. manner against public officials" (Sec. 12) and to "investigate x x x any act
or omission of any public official x x x when such act or omission
That the power of the Ombudsman to investigate offenses involving public appears to be illegal, unjust, improper or inefficient." (Sec. 13[1].) The
officers or employees is not exclusive but is concurrent with other similarly Ombudsman is also empowered to "direct the officer concerned," in this
authorized agencies of the government such as the provincial, city and state case the Special Prosecutor, "to take appropriate action against a public
prosecutors has long been settled in several decisions of the Court. official x x x and to recommend his prosecution" (Sec. 13[3]).

In Cojuangco, Jr. vs. Presidential Commission on Good Government, decided in The clause "any [illegal] act or omission of any public official" is broad
1990, the Court expressly declared: enough to embrace any crime committed by a public official. The law
does not qualify the nature of the illegal act or omission of the public
A reading of the foregoing provision of the Constitution does not show official or employee that the Ombudsman may investigate. It does not
that the power of investigation including preliminary investigation vested require that the act or omission be related to or be connected with or
on the Ombudsman is exclusive.3 arise from, the performance of official duty. Since the law does not
distinguish, neither should we.
Interpreting the primary jurisdiction of the Ombudsman under Section 15 (1) of
the Ombudsman Act, the Court held in said case: The reason for the creation of the Ombudsman in the 1987 Constitution
and for the grant to it of broad investigative authority, is to insulate said
office from the long tentacles of officialdom that are able to penetrate
Under Section 15 (1) of Republic Act No. 6770 aforecited, the
Ombudsman has primary jurisdiction over cases cognizable by the judges' and fiscals' offices, and others involved in the prosecution of
Sandiganbayan so that it may take over at any stage from any erring public officials, and through the exertion of official pressure and
influence, quash, delay, or dismiss investigations into malfeasances and
investigatory agency of the government, the investigation of such
cases. The authority of the Ombudsman to investigate offenses misfeasances committed by public officers. It was deemed necessary,
therefore, to create a special office to investigate all criminal complaints
involving public officers or employees is not exclusive but is
concurrent with other similarly authorized agencies of the against public officers regardless of whether or not the acts or omissions
government. Such investigatory agencies referred to include the complained of are related to or arise from the performance of the duties
PCGG and the provincial and city prosecutors and their assistants, of their office. The Ombudsman Act makes perfectly clear that the
jurisdiction of the Ombudsman encompasses "all kinds of malfeasance,
the state prosecutors and the judges of the municipal trial courts
misfeasance, and non-feasance that have been committed by any officer
and municipal circuit trial court.
or employee as mentioned in Section 13 hereof, during his tenure of
office" (Sec. 16, R.A. 6770).
In other words the provision of the law has opened up the authority
to conduct preliminary investigation of offenses cognizable by the
Sandiganbayan to all investigatory agencies of the government duly .........
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Indeed, the labors of the constitutional commission that created the and the Presidential Commission on Good Government, in ill gotten
Ombudsman as a special body to investigate erring public officials would wealth cases, may conduct the investigation.9 (Emphasis supplied)
be wasted if its jurisdiction were confined to the investigation of minor
and less grave offenses arising from, or related to, the duties of public In Natividad vs. Felix,10 a 1994 case, where the petitioner municipal mayor
office, but would exclude those grave and terrible crimes that spring from contended that it is the Ombudsman and not the provincial fiscal who has the
abuses of official powers and prerogatives, for it is the investigation of authority to conduct a preliminary investigation over his case for alleged Murder,
the latter where the need for an independent, fearless, and honest the Court held:
investigative body, like the Ombudsman, is greatest.6
The Deloso case has already been re-examined in two cases,
At first blush, there appears to be conflicting views in the rulings of the Court in namely Aguinaldo vs. Domagas andSanchez vs. Demetriou. However,
the Cojuangco, Jr. case and theDeloso case. However, the contrariety is more by way of amplification, we feel the need for tracing the history of the
apparent than real. In subsequent cases, the Court elucidated on the nature of legislation relative to the jurisdiction of Sandiganbayan since the
the powers of the Ombudsman to investigate. Ombudsman's primary jurisdiction is dependent on the cases cognizable
by the former.
In 1993, the Court held in Sanchez vs. Demetriou,7 that while it may be true that
the Ombudsman has jurisdiction to investigate and prosecute any illegal act or In the process, we shall observe how the policy of the law, with reference
omission of any public official, the authority of the Ombudsman to investigate is to the subject matter, has been in a state of flux.
merely a primary and not an exclusive authority, thus:
These laws, in chronological order, are the following: (a) Pres. Decree
The Ombudsman is indeed empowered under Section 15, paragraph (1) No. 1486, -- the first law on the Sandiganbayan; (b) Pres. Decree No.
of RA 6770 to investigate and prosecute any illegal act or omission of 1606 which expressly repealed Pres. Decree No. 1486; (c) Section 20 of
any public official. However as we held only two years ago in the case of Batas Pambansa Blg. 129; (d) Pres. Decree No. 1860; and (e) Pres.
Aguinaldo vs. Domagas,8 this authority "is not an exclusive authority but Decree No. 1861.
rather a shared or concurrent authority in respect of the offense
charged."
The latest law on the Sandiganbayan, Sec. 1 of Pres. Decree No. 1861
reads as follows:
Petitioners finally assert that the information and amended information
filed in this case needed the approval of the Ombudsman. It is not
"SECTION 1. Section 4 of Presidential Decree No. 1606 is
disputed that the information and amended information here did not have
hereby amended to read as follows:
the approval of the Ombudsman. However, we do not believe that such
approval was necessary at all. In Deloso v. Domingo, 191 SCRA 545
(1990), the Court held that the Ombudsman has authority to investigate 'SEC. 4. Jurisdiction. – The Sandiganbayan shall exercise:
charges of illegal acts or omissions on the part of any public official, i.e.,
any crime imputed to a public official. It must, however, be pointed out '(a) Exclusive original jurisdiction in all cases involving:
that the authority of the Ombudsman to investigate "any [illegal] act
or omission of any public official" (191 SCRA 550) is not an ...
exclusive authority but rather a shared or concurrent authority in
respect of the offense charged, i.e., the crime of sedition. Thus, the (2) Other offenses or felonies committed by public
non-involvement of the office of the Ombudsman in the present case officers and employees in relation to their office,
does not have any adverse legal consequence upon the authority of the including those employed in government-owned or
panel of prosecutors to file and prosecute the information or amended controlled corporation, whether simple or complexed
information. with other crimes, where the penalty prescribed by law is
higher thatprision correccional or imprisonment for six
In fact, other investigatory agencies of the government such as the (6) years, or a fine of P6,000: PROVIDED, HOWEVER,
Department of Justice in connection with the charge of sedition, that offenses or felonies mentioned in this paragraph
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where the penalty prescribed by law does not are deemed in accord with existing statute, specifically, Pres.
exceed prision correccional or imprisonment for six (6) Decree No. 1861.12 (Emphasis supplied)
years or a fine of P6,000 shall be tried by the proper
Regional Trial Court, Metropolitan Trial Court, Municipal R.A. No. 8249 which amended Section 4, paragraph (b) of the Sandiganbayan
Trial Court and Municipal Circuit Trial Court." Law (P.D. 1861) likewise provides that for other offenses, aside from those
enumerated under paragraphs (a) and (c), to fall under the exclusive jurisdiction
A perusal of the aforecited law shows that two requirements must concur of the Sandiganbayan, they must have been committed by public officers or
under Sec. 4 (a) (2) for an offense to fall under the Sandiganbayan's employees in relation to their office.
jurisdiction, namely: the offense committed by the public officer must be
in relation to his office and the penalty prescribed be higher then prision In summation, the Constitution, Section 15 of the Ombudsman Act of 1989 and
correccional or imprisonment for six (6) years, or a fine of P6,000.00.11 Section 4 of the Sandiganbayan Law, as amended, do not give to the
Ombudsman exclusive jurisdiction to investigate offenses committed by public
Applying the law to the case at bench, we find that although the second officers or employees. The authority of the Ombudsman to investigate offenses
requirement has been met, the first requirement is wanting. A review of involving public officers or employees is concurrent with other government
these Presidential Decrees, except Batas Pambansa Blg. 129, would investigating agencies such as provincial, city and state prosecutors. However,
reveal that the crime committed by public officers or employees must be the Ombudsman, in the exercise of its primary jurisdiction over cases cognizable
"in relation to their office" if it is to fall within the jurisdiction of the by the Sandiganbayan, may take over, at any stage, from any investigating
Sandiganbayan. This phrase which is traceable to Pres. Decree No. agency of the government, the investigation of such cases.
1468, has been retained by Pres. Decree No. 1861 as a requirement
before the Ombudsman can acquire primary jurisdiction on its power to In other words, respondent DOJ Panel is not precluded from conducting any
investigate. investigation of cases against public officers involving violations of penal laws but
if the cases fall under the exclusive jurisdiction of the Sandiganbayan, then
It cannot be denied that Pres. Decree No. 1861 is in pari materia to respondent Ombudsman may, in the exercise of its primary jurisdiction take over
Article XI, Sections 12 and 13 of the 1987 Constitution and the at any stage.
Ombudsman Act of 1989 because, as earlier mentioned, the
Ombudsman's power to investigate is dependent on the cases Thus, with the jurisprudential declarations that the Ombudsman and the DOJ
cognizable by the Sandiganbayan. Statutes are in pari materia when have concurrent jurisdiction to conduct preliminary investigation, the respective
they relate to the same person or thing or to the same class of heads of said offices came up with OMB-DOJ Joint Circular No. 95-001 for the
persons or things, or object, or cover the same specific or proper guidelines of their respective prosecutors in the conduct of their
particular subject matter. investigations, to wit:

It is axiomatic in statutory construction that a statute must be OMB-DOJ JOINT CIRCULAR NO. 95-001
interpreted, not only to be consistent with itself, but also to
harmonize with other laws on the same subject matter, as to form a
Series of 1995
complete, coherent and intelligible system. The rule is expressed in
the maxim, "interpretare et concordare legibus est optimus
interpretandi," or every statute must be so construed and TO: ALL GRAFT INVESTIGATION/SPECIAL PROSECUTION
harmonized with other statutes as to form a uniform system of OFFICERS OF THE OFFICE OF THE OMBUDSMAN
jurisprudence. Thus, in the application and interpretation of Article
XI, Sections 12 and 13 of the 1987 Constitution and the Ombudsman ALL REGIONAL STATE PROSECUTORS AND THEIR ASSISTANTS,
Act of 1989, Pres. Decree No. 1861 must be taken into PROVINCIAL/CITY PROSECUTORS AND THEIR ASSISTANTS,
consideration. It must be assumed that when the 1987 Constitution STATE PROSECUTORS AND PROSECUTING ATTORNEYS OF THE
was written, its framers had in mind previous statutes relating to DEPARTMENT OF JUSTICE.
the same subject matter. In the absence of any express repeal or
amendment, the 1987 Constitution and the Ombudsman Act of 1989 SUBJECT: HANDLING COMPLAINTS FILED AGAINST PUBLIC
OFFICERS AND EMPLOYEES, THE CONDUCT OF PRELIMINARY
9

INVESTIGATION, PREPARATION OF RESOLUTIONS AND 3. Preparation of criminal information shall be the responsibility of the
INFORMATIONS AND PROSECUTION OF CASES BY PROVINCIAL investigating officer who conducted the preliminary investigation.
AND CITY PROSECUTORS AND THEIR ASSISTANTS. Resolutions recommending prosecution together with the duly
accomplished criminal informations shall be forwarded to the appropriate
x----------------------------------------------------------------------------------------------- approving authority.
--------x
4. Considering that the office of the ombudsman has jurisdiction over
In a recent dialogue between the OFFICE OF THE OMBUDSMAN and public officers and employees and for effective monitoring of all
the DEPARTMENT OF JUSTICE, discussion centered around the latest investigations and prosecutions of cases involving public officers and
pronouncement of the supreme court on the extent to which the employees, the office of the provincial/city prosecutor shall submit to the
ombudsman may call upon the government prosecutors for assistance in office of the ombudsman a monthly list of complaints filed with their
the investigation and prosecution of criminal cases cognizable by his respective offices against public officers and employees.
office and the conditions under which he may do so. Also discussed was
Republic Act No. 7975 otherwise known as "an act to strengthen the Manila, Philippines, October 5, 1995.
functional and structural organization of the sandiganbayan, amending
for the purpose presidential decree no. 1606, as amended" and its
implications on the jurisdiction of the office of the Ombudsman on (signed) (signed)
criminal offenses committed by public officers and employees.
TEOFISTO T. GUINGONA, JR. ANIANO A. DESIERTO
Concerns were expressed on unnecessary delays that could be caused Secretary Ombudsman
by discussions on jurisdiction between the OFFICE OF THE Department of Justice Office of the Ombudsman
OMBUDSMAN and the department of justice, and by procedural conflicts
in the filing of complaints against public officers and employees, the A close examination of the circular supports the view of the respondent
conduct of preliminary investigations, the preparation of resolutions and Ombudsman that it is just an internal agreement between the Ombudsman and
informations, and the prosecution of cases by provincial and city the DOJ.
prosecutors and their assistants as deputized prosecutors of the
ombudsman.
Sections 2 and 4, Rule 112 of the Revised Rules on Criminal Procedure on
Preliminary Investigation, effective December 1, 2000, to wit:
Recognizing the concerns, the office of the ombudsman and the
department of justice, in a series of consultations, have agreed on the
SEC. 2. Officers authorized to conduct preliminary investigations-
following guidelines to be observed in the investigation and prosecution
of cases against public officers and employees:
The following may conduct preliminary investigations:
1. Preliminary investigation and prosecution of offenses committed by
public officers and employees in relation to office whether cognizable by (a) Provincial or City Prosecutors and their assistants;
the sandiganbayan or the regular courts, and whether filed with the office
of the ombudsman or with the office of the provincial/city prosecutor shall (b) Judges of the Municipal Trial Courts and Municipal Circuit
be under the control and supervision of the office of the ombudsman. Trial Courts;

2. Unless the Ombudsman under its Constitutional mandate finds reason (c) National and Regional State Prosecutors; and
to believe otherwise, offenses not in relation to office and cognizable by
the regular courts shall be investigated and prosecuted by the office of (d) Other officers as may be authorized by law.
the provincial/city prosecutor, which shall rule thereon with finality.
10

Their authority to conduct preliminary investigation shall include all confirm the authority of the DOJ prosecutors to conduct preliminary investigation
crimes cognizable by the proper court in their respective territorial of criminal complaints filed with them for offenses cognizable by the proper court
jurisdictions. within their respective territorial jurisdictions, including those offenses which
come within the original jurisdiction of the Sandiganbayan; but with the
SEC. 4. Resolution of investigating prosecutor and its review. - If the qualification that in offenses falling within the original jurisdiction of the
investigating prosecutor finds cause to hold the respondent for trial, he Sandiganbayan, the prosecutor shall, after their investigation, transmit the
shall prepare the resolution and information, He shall certify under oath records and their resolutions to the Ombudsman or his deputy for
in the information that he, or as shown by the record, an authorized appropriate action. Also, the prosecutor cannot dismiss the complaint without
officer, has personally examined the complainant and his witnesses; that the prior written authority of the Ombudsman or his deputy, nor can the
there is reasonable ground to believe that a crime has been committed prosecutor file an Information with the Sandiganbayan without being deputized
and that the accused is probably guilty thereof; that the accused was by, and without prior written authority of the Ombudsman or his deputy.
informed of the complaint and of the evidence submitted against him;
and that he was given an opportunity to submit controverting evidence. Next, petitioner contends that under OMB-Joint Circular No. 95-001, there is no
Otherwise, he shall recommend the dismissal of the complaint. showing that the Office of the Ombudsman has deputized the prosecutors of the
DOJ to conduct the preliminary investigation of the charge filed against him.
Within five (5) days from his resolution, he shall forward the record of the
case to the provincial or city prosecutor or chief state prosecutor, or to We find no merit in this argument. As we have lengthily discussed, the
the Ombudsman or his deputy in cases of offenses cognizable by Constitution, the Ombudsman Act of 1989, Administrative Order No. 8 of the
the Sandiganbayan in the exercise of its original jurisdiction. They Office of the Ombudsman, the prevailing jurisprudence and under the Revised
shall act on the resolution within ten (10) days from their receipt thereof Rules on Criminal Procedure, all recognize and uphold the concurrent jurisdiction
and shall immediately inform the parties of such action. of the Ombudsman and the DOJ to conduct preliminary investigation on charges
filed against public officers and employees.
No complaint or information may be filed or dismissed by an
investigating prosecutor without the prior written authority or To reiterate for emphasis, the power to investigate or conduct preliminary
approval of the provincial or city prosecutor or chief state investigation on charges against any public officers or employees may be
prosecutor or the Ombudsman or his deputy. exercised by an investigator or by any provincial or city prosecutor or their
assistants, either in their regular capacities or as deputized Ombudsman
Where the investigating prosecutor recommends the dismissal of the prosecutors. The fact that all prosecutors are in effect deputized Ombudsman
complaint but his recommendation is disapproved by the provincial or prosecutors under the OMB-DOJ Circular is a mere superfluity. The DOJ Panel
city prosecutor or chief state prosecutor or the Ombudsman or his deputy need not be authorized nor deputized by the Ombudsman to conduct the
on the ground that a probable cause exists, the latter may, by himself file preliminary investigation for complaints filed with it because the DOJ's authority
the information against the respondent, or direct another assistant to act as the principal law agency of the government and investigate the
prosecutor or state prosecutor to do so without conducting another commission of crimes under the Revised Penal Code is derived from the Revised
preliminary investigation. Administrative Code which had been held in the Natividad case13 as not being
contrary to the Constitution. Thus, there is not even a need to delegate the
conduct of the preliminary investigation to an agency which has the jurisdiction to
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 do so in the first place. However, the Ombudsman may assert its primary
jurisdiction at any stage of the investigation.
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 Petitioner's contention that OMB-DOJ Joint Circular No. 95-001 is ineffective on
investigation, or to dismiss or move for dismissal of the complaint or the ground that it was not published is not plausible. We agree with and adopt
information with notice to the parties. The same Rule shall apply in the Ombudsman's dissertation on the matter, to wit:
preliminary investigations conducted by the officers of the Office of the
Ombudsman. (Emphasis supplied) Petitioner appears to be of the belief, although NOT founded on a proper
reading and application of jurisprudence, that OMB-DOJ Joint Circular
11

No. 95-001, an internal arrangement between the DOJ and the Office of jurisdiction of the Sandiganbayan will not be resolved in the present petition so
the Ombudsman, has to be published. as not to pre-empt the result of the investigation being conducted by the DOJ
Panel as to the questions whether or not probable cause exists to warrant the
As early as 1954, the Honorable Court has already laid down the rule in filing of the information against the petitioner; and to which court should the
the case of People vs. Que Po Lay, 94 Phil. 640 (1954) that only information be filed considering the presence of other respondents in the subject
circulars and regulations which prescribe a penalty for its violation should complaint.
be published before becoming effective, this, on the general principle
and theory that before the public is bound by its contents, especially its WHEREFORE, the petition for certiorari is DISMISSED for lack of merit.
penal provision, a law, regulation or circular must first be published and
the people officially and specifically informed of said contents and its SO ORDERED.
penalties: said precedent, to date, has not yet been modified or reversed.
OMB-DOJ Joint Circular No. 95-001 DOES NOT contain any penal ALFREDO C. MENDOZA, Petitioner,
provision or prescribe a mandatory act or prohibit any, under pain or vs.
penalty. PEOPLE OF THE PHILIPPINES AND JUNO CARS, INC., Respondents.

What is more, in the case of Tanada v. Tuvera, 146 SCRA 453 (1986),
DECISION
the Honorable Court ruled that:
LEONEN, J.:
Interpretative regulations and those merely internal in nature, that is,
regulating only the personnel of the administrative agency and not the
public, need not be published. Neither is publication required of the so- While the determination of probable cause to charge a person of a crime is the
called letters of instructions issued by administrative superiors sole function of the. prosecutor, the trial court may, in the protection of one's
concerning the rules or guidelines to be followed by their subordinates in fundamental right to liberty, dismiss the case if, upon a personal assessment of
the performance of their duties. (at page 454. emphasis supplied) the evidence, it finds that the evidence does not establish probable cause.

OMB-DOJ Joint Circular No. 95-001 is merely an internal circular This is a petition for review on certiorari1 assailing the Court of Appeals'
between the DOJ and the Office of the Ombudsman, outlining authority decision2 dated January 14, 2011, which reversed the Regional Trial Court's
and responsibilities among prosecutors of the DOJ and of the Office of dismissal of the complaint against petitioner Alfredo C. Mendoza for qualified
the Ombudsman in the conduct of preliminary investigation. OMB-DOJ theft and estafa.
Joint Circular No. 95-001 DOES NOT regulate the conduct of persons or
the public, in general. This case stems from a complaint-affidavit filed by Juno Cars, Inc. through its
representative, Raul C. Evangelista, on January 8, 2008 for qualified theft and
Accordingly, there is no merit to petitioner's submission that OMB-DOJ estafa against Alfredo.3
Joint Circular No. 95-001 has to be published.14
In the complaint-affidavit, Juno Cars alleged that on June 2, 2007, it hired Alfredo
Petitioner insists that the Ombudsman has jurisdiction to conduct the preliminary as Trade-In/Used Car Supervisor. On November 19, 2007, its Dealer/Operator,
investigation because petitioner is a public officer with salary Grade 31 so that Rolando Garcia, conducted a partial audit of the used cars and discovered that
the case against him falls exclusively within the jurisdiction of the five (5) cars had been sold and released by Alfredo without Rolando’s or the
Sandiganbayan. Considering the Court's finding that the DOJ has concurrent finance manager’s permission.4
jurisdiction to investigate charges against public officers, the fact that petitioner
holds a Salary Grade 31 position does not by itself remove from the DOJ Panel The partial audit showed that the buyers of the five cars made payments, but
the authority to investigate the charge of coup d'etat against him. Alfredo failed to remit the payments totalling P886,000.00. It was further alleged
that while there were 20 cars under Alfredo’s custody, only 18 were accounted
The question whether or not the offense allegedly committed by petitioner is one for. Further investigation revealed that Alfredo failed to turn over the files of a
of those enumerated in the Sandiganbayan Law that fall within the exclusive 2001 Hyundai Starex and a Honda City 1.5 LXI. Juno Cars alleged that taking
12

into account the unremitted amounts and the acquisition cost of the Honda City, the trial court acted without or in excess of its jurisdiction "in supplanting the
Alfredo pilfered a total amount of P1,046,000.00 to its prejudice and damage.5 public prosecutor’s findings of probable cause with her own findings of
insufficiency of evidence and lack of probable cause."20
In his counter-affidavit, Alfredo raised, among others, Juno Cars’ supposed
failure to prove ownership over the five (5) cars or its right to possess them with Aggrieved, Alfredo filed a petition for review under Rule 45 before this court. In
the purported unremitted payments. Hence, it could not have suffered damage.6 essence, he argued that the trial court was correct in finding that there was no
probable cause as shown by the evidence on record. He argued that "judicial
On March 4, 2008, Provincial Prosecutor Rey F. Delgado issued a determination of probable cause is broader than [the] executive determination of
Resolution7 finding probable cause and recommending the filing of an information probable cause"21and that "[i]t is not correct to say that the determination of
against Alfredo for qualified theft and estafa. probable cause is exclusively vested on the prosecutor x x x."22

Alfredo moved for reconsideration, but the motion was denied.8 He then filed a In its comment,23 Juno Cars argued that Alfredo presented questions, issues,
petition for review with the Department of Justice on May 16, 2008.9 and arguments that were a mere rehash of those already considered and passed
upon by the appellate court.
While Alfredo’s motion for reconsideration was still pending before the Office of
the City Prosecutor of Mandaluyong, two informations for qualified theft 10 and The Office of the Solicitor General, arguing for public respondent, stated in its
estafa11 were filed before the Regional Trial Court, Branch 212, Mandaluyong comment24 that the appellate court correctly sustained the public prosecutor in
City. On March 31, 2008, Alfredo filed a motion for determination of probable his findings of probable cause against Alfredo. Since there was no showing of
cause12 before the trial court. On April 28, 2008, he also filed a motion to defer grave abuse of discretion on the part of Prosecutor Rey F. Delgado, the trial
arraignment. court should respect his determination of probable cause.

Several clarificatory hearings were scheduled but were not conducted.13 On In his reply,25 Alfredo reiterated that "judicial determination of probable cause[,]
February 4, 2009, the parties agreed to submit all pending incidents, including while not a superior faculty[,] covers a broader encompassing perspective in the
the clarificatory hearing, for resolution.14 disposition of the issue on the existence of probable cause."26He argued that the
findings of the trial court should be accorded greater weight than the appellate
On March 3, 2009, the trial court, through Presiding Judge Rizalina Capco-Umali, court’s. It merely reviewed the findings of the trial court.
issued an order15 dismissing the complaint, stating that:
The primordial issue is whether the trial court may dismiss an information filed by
the prosecutor on the basis of its own independent finding of lack of probable
After conducting an independent assessment of the evidence on record which
cause.
includes the assailed Resolution dated 04 March 2008, the court holds that the
evidence adduced does not support a finding of probable cause for the offenses
of qualified theft and estafa. x x x.16 Time and again, this court has been confronted with the issue of the difference
between the determination of probable cause by the prosecutor on one hand and
the determination of probable cause by the judge on the other. We examine
Juno Cars filed a motion for reconsideration, which the trial court denied on July
these two concepts again.
3, 2009.17

Juno Cars filed a complaint against Alfredo for qualified theft27 and estafa under
Juno Cars then filed a petition for certiorari with the Court of Appeals, arguing
Article 315, fourth paragraph, no. 3(c)28 of the Revised Penal Code. Since
that the trial court acted without or in excess of its jurisdiction and with grave
qualified theft is punishable by reclusion perpetua, a preliminary investigation
abuse of discretion when it dismissed the complaint. It argued that "the
must first be conducted "to determine whether there is sufficient ground to
determination of probable cause and the decision whether or not to file a criminal
case in court, rightfully belongs to the public prosecutor."18 engender a well-founded belief that a crime has been committed and the
respondent is probably guilty thereof, and should be held for trial," in accordance
with Rule 112, Section 1 of the Rules on Criminal Procedure.
On January 14, 2011, the Court of Appeals rendered a decision, 19 reversed the
trial court, and reinstated the case. In its decision, the appellate court ruled that
13

At this stage, the conduct of the preliminary investigation and the subsequent and, therefore, whether or not he should be subjected to the expense, rigors and
determination of the existence of probable cause lie solely within the discretion of embarrassment of trial—is the function of the Prosecutor.34 (Emphasis supplied)
the public prosecutor.29 If upon evaluation of the evidence, the prosecutor finds
sufficient basis to find probable cause, he or she shall then cause the filing of the While it is within the trial court’s discretion to make an independent assessment
information with the court. 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
Once the information has been filed, the judge shall then "personally evaluate the of the prosecutor and has no capacity to review the prosecutor’s determination of
resolution of the prosecutor and its supporting evidence"30 to determine whether probable cause; rather, the judge makes a determination of probable cause
there is probable cause to issue a warrant of arrest. At this stage, a judicial independent of the prosecutor’s finding.
determination of probable cause exists.
People v. Court of Appeals and Jonathan Cerbo35 discussed the rationale. In that
In People v. Castillo and Mejia,31 this court has stated: case, Jonathan Cerbo allegedly shot Rosalinda Dy in the presence of his father,
Billy Cerbo. An information for murder was filed against Jonathan Cerbo. The
There are two kinds of determination of probable cause: executive and judicial. daughter of Rosalinda Dy, as private complainant, executed a complaint-affidavit
The executive determination of probable cause is one made during preliminary charging Billy Cerbo with conspiracy. The prosecutor then filed a motion to
investigation. It is a function that properly pertains to the public prosecutor who is amend the information, which was granted by the court. The information was
given a broad discretion to determine whether probable cause exists and to then amended to include Billy Cerbo as one of the accused, and a warrant of
charge those whom he believes to have committed the crime as defined by law arrest was issued against him.
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 Billy Cerbo filed a motion to quash the warrant arguing that it was issued without
court. Whether or not that function has been correctly discharged by the public probable cause. The trial court granted this motion, recalled the warrant, and
prosecutor, i.e., whether or not he has made a correct ascertainment of the dismissed the case against him. The Court of Appeals affirmed this dismissal.
existence of probable cause in a case, is a matter that the trial court itself does This court, however, reversed the Court of Appeals and ordered the
not and may not be compelled to pass upon. reinstatement of the amended information against Billy Cerbo, stating that:

The judicial determination of probable cause, on the other hand, is one made by In granting this petition, we are not prejudging the criminal case or the guilt or
the judge to ascertain whether a warrant of arrest should be issued against the innocence of Private Respondent Billy Cerbo. We are simply saying that, as a
accused. The judge must satisfy himself that based on the evidence submitted, general rule, if the information is valid on its face and there is no showing of
there is necessity for placing the accused under custody in order not to frustrate manifest error, grave abuse of discretion or prejudice on the part of the public
the ends of justice. If the judge finds no probable cause, the judge cannot be prosecutor, courts should not dismiss it for ‘want of evidence,’ because
forced to issue the arrest warrant.32 evidentiary matters should be presented and heard during the trial. The functions
and duties of both the trial court and the public prosecutor in "the proper scheme
The difference is clear: The executive determination of probable cause concerns of things" in our criminal justice system should be clearly understood.
itself with whether there is enough evidence to support an Information being filed.
The judicial determination of probable cause, on the other hand, determines The rights of the people from what could sometimes be an "oppressive" exercise
whether a warrant of arrest should be issued. In People v. Inting:33 of government prosecutorial powers do need to be protected when
circumstances so require. But just as we recognize this need, we also
x x x Judges and Prosecutors alike should distinguish the preliminary inquiry acknowledge that the State must likewise be accorded due process. Thus, when
which determines probable cause for the issuance of a warrant of arrest from the there is no showing of nefarious irregularity or manifest error in the performance
preliminary investigation proper which ascertains whether the offender should be of a public prosecutor’s duties, courts ought to refrain from interfering with such
held for trial or released. Even if the two inquiries are conducted in the course of lawfully and judicially mandated duties.
one and the same proceeding, there should be no confusion about the
objectives. The determination of probable cause for the warrant of arrest is made In any case, if there was palpable error or grave abuse of discretion in the public
by the Judge. The preliminary investigation proper—whether or not there is prosecutor’s finding of probable cause, the accused can appeal such finding to
reasonable ground to believe that the accused is guilty of the offense charged
14

the justice secretary and move for the deferment or suspension of the judge may order the prosecutor to present additional evidence within five (5)
proceedings until such appeal is resolved.36 (Emphasis supplied) days from notice and the issue must be resolved by the court within thirty (30)
days from the filing of the complaint of information.
In this case, the resolution dated March 4, 2008 of Prosecutor Rey F. Delgado
found that the facts and evidence were "sufficient to warrant the indictment of In People v. Hon. Yadao:38
[petitioner] x x x."37 There was nothing in his resolution which showed that he
issued it beyond the discretion granted to him by law and jurisprudence. Section 6, Rule 112 of the Rules of Court gives the trial court three options upon
the filing of the criminal information: (1) dismiss the case if the evidence on
While the information filed by Prosecutor Delgado was valid, Judge Capco-Umali record clearly failed to establish probable cause; (2) issue a warrant of arrest if it
still had the discretion to make her own finding of whether probable cause finds probable cause; and (3) order the prosecutor to present additional evidence
existed to order the arrest of the accused and proceed with trial. within five days from notice in case of doubt as to the existence of probable
cause.
Jurisdiction over an accused is acquired when the warrant of arrest is served.
Absent this, the court cannot hold the accused for arraignment and trial. But the option to order the prosecutor to present additional evidence is not
mandatory.1âwphi1 The court’s first option under the above is for it to
Article III, Section 2 of the Constitution states: "immediately dismiss the case if the evidence on record clearly fails to establish
probable cause." That is the situation here: the evidence on record clearly fails to
establish probable cause against the respondents.39 (Emphasis supplied)
The right of the people to be secure in their persons, houses, papers, and effects
against unreasonable searches and seizures of whatever nature and for any
purpose shall be inviolable, and no search warrant or warrant of arrest shall issue It is also settled that "once a complaint or information is filed in court, any
except upon probable cause to be determined personally by the judge after disposition of the case, whether as to its dismissal or the conviction or the
examination under oath or affirmation of the complainant and the witnesses he acquittal of the accused, rests in the sound discretion of the court."40
may produce, and particularly describing the place to be searched and the
persons or things to be seized. In this case, Judge Capco-Umali made an independent assessment of the
evidence on record and concluded that "the evidence adduced does not support
The Constitution prohibits the issuance of search warrants or warrants of arrest a finding of probable cause for the offenses of qualified theft and
where the judge has not personally determined the existence of probable cause. estafa."41 Specifically, she found that Juno Cars "failed to prove by competent
The phrase "upon probable cause to be determined personally by the judge after evidence"42 that the vehicles alleged to have been pilfered by Alfredo were
examination under oath or affirmation of the complainant and the witnesses he lawfully possessed or owned by them, or that these vehicles were received by
may produce" allows a determination of probable cause by the judge ex parte. Alfredo, to be able to substantiate the charge of qualified theft. She also found
that the complaint "[did] not state with particularity the exact value of the alleged
For this reason, Section 6, paragraph (a) of Rule 112 of the Rules on Criminal office files or their valuation purportedly have been removed, concealed or
destroyed by the accused,"43 which she found crucial to the prosecution of the
Procedure mandates the judge to "immediately dismiss the case if the evidence
crime of estafa under Article 315, fourth paragraph, no. 3(c) of the Revised Penal
on record fails to establish probable cause." Section 6, paragraph (a) of Rule 112
Code. She also noted that:
reads:

Section 6. When warrant of arrest may issue. — (a) By the Regional Trial Court. x x x As a matter of fact, this court had even ordered that this case be set for
clarificatory hearing to clear out essential matters pertinent to the offense
— Within ten (10) days from the filing of the complaint or information, the judge
charged and even directed the private complainant to bring documents relative to
shall personally evaluate the resolution of the prosecutor and its supporting
the same/payment as well as affidavit of witnesses/buyers with the end view of
evidence. He may immediately dismiss the case if the evidence on record clearly
satisfying itself that indeed probable cause exists to commit the present case
fails to establish probable cause. If he finds probable cause, he shall issue a
warrant of arrest, or a commitment order if the accused has already been which private complainant failed to do.44
arrested pursuant to a warrant issued by the judge who conducted the
preliminary investigation or when the complaint or information was filed pursuant Accordingly, with the present laws and jurisprudence on the matter, Judge
to section 7 of this Rule. In case of doubt on the existence of probable cause, the Capco-Umali correctly dismissed the case against Alfredo.
15

Although jurisprudence and procedural rules allow it, a judge must always Villanueva. 6Despite the hacking, Durana continued challenging Diosdado to a
proceed with caution in dismissing cases due to lack of probable cause, fight. He even taunted the victim, "You cannot bear a wound." 7 Villanueva and
considering the preliminary nature of the evidence before it. It is only when he or Durana then ran away.
she finds that the evidence on hand absolutely fails to support a finding of
probable cause that he or she can dismiss the case. On the other hand, if a Elenita Meniano, sister-in-law and neighbor of Diosdado, also witnessed the
judge finds probable cause, he or she must not hesitate to proceed with hacking incident. She testified that on 12 November 1992 she and her husband
arraignment and trial in order that justice may be served. were awakened by the shouts of Mamerto Durana challenging Diosdado to a
fight; 8 that they watched the incident through the window and saw Diosdado
WHEREFORE, the petition is GRANTED. The decision dated January 14, 2011 hacked by Villanueva after the former went down from his house; that after
of the Court of Appeals in CA-G.R. SP. No. 110774 is REVERSED and SET Diosdado was slain, she saw Durana brandishing a bolo near the crime scene. 9
ASIDE. Criminal Case Nos. MC08-11604-05 against Alfredo C. Mendoza are
DISMISSED. The body of Diosdado Meniano was examined by Dr. Angel A. Cordero, Medico-
Legal Officer, Camp Kangleion, Palo, Leyte, who ascribed the cause of death to
SO ORDERED. "shock and hemorrhage due to hacking wounds of the right basal portion of the
skull, lacerating the spinal column." 10
G.R. No. 114266 December 4, 1996
The defense is alibi. Mamerto Durana claims that in the evening of 12 November
PEOPLE OF THE PHILIPPINES, plaintiff, 1992 he was in the store of a certain Rogelio Baganio some 30 meters from the
vs. house of the deceased to buy cigarettes 11 and to fetch his children who were
ROGELIO VILLANUEVA and MAMERTO DURANA, accused. watching television in the store. Baganio's store was about half a kilometer away
from his residence.
MAMERTO DURANA, accused-appellant.
The defense of appellant was not sustained by the trial court.

In this appeal appellant contends that the court a quo erred (a) in failing to
BELLOSILLO, J.:p consider the fact that he was not a party respondent during the preliminary
investigation of the case and (b) in giving credence to the testimony of Gloria
Meniano. 12
DIOSDADO MENIANO was hacked dead for which ROGELIO VILLANUEVA and
MAMERTO DURANA were charged with murder. Villanueva however remained
at large so that only Durana was tried. Thereafter Durana was sentenced Accused-appellant argues that the instant case was filed in court for murder only
to reclusion perpetua and ordered to indemnify the heirs of their victim in the against the other accused, Rogelio Villanueva, on the basis of the resolution of
amount of P50,000.00. 1 the prosecutor in I.S. No. 92-1524; that he was not made a respondent in the
investigation; that despite the sworn statements of witnesses Gloria Meniano and
Elenita Meniano who pointed to him as co-conspirator, he was not included in the
On 12 November 1992, around ten-thirty in the evening, at Barangay Tagpuro, charge for murder because, according to the police, he would be used as a
Tacloban City, Diosdado Meniano and his wife Gloria were awakened by a loud witness against the accused Villanueva.
voice from outside their house challenging Diosdado to a flight. Gloria Meniano
readily recognized the voice as that of accused Mamerto Durana. 2 The
The argument is without merit. It is settled that the absence of a preliminary
challenge was hurled a number of times by Durana. It was not heeded initially by
investigation does not impair the validity of the information or otherwise render
the Diosdado until after Durana threatened to go up the house if the former would
the same defective; neither does it affect the jurisdiction of the court over the
not go down. Diosdado decided finally to go down but not without arming himself
with a short bolo. Gloria remained inside the house. She peeped through the case, nor does it constitute a ground for quashing the
bamboo slats which served as external walls of their house. 3 Since the moon information. 13 If no preliminary investigation has been held, or if it is flawed, the
was bright she was able to see Durana clearly as the intruder. 4 She also saw the trial court may, on motion of the accused, order an investigation or
reinvestigation and hold the proceedings on the criminal case in abeyance. 14 In
accused Rogelio Villanueva hiding near the San Francisco plants. 5 As soon as
this case, accused-appellant failed to invoke such right to preliminary
Diosdado went out of his house he was immediately hacked by
16

15
investigation before or at the time he entered his plea at arraignment. He can Q. Now, here you said that Mamerto Durana
no longer invoke that right at this late stage of the proceedings. was asking from your husband a stick of
cigarette. Did you say this to the police.
Appellant likewise cites what he believes are inconsistencies in the testimony of
prosecution witness Gloria Meniano which cast serious doubt on its truthfulness: A. I did not say that to the police.
(a) her statement that when her husband was hacked appellant and his co-
accused were still there 16 although she later testified that the other accused was Q. Then how could the police state it here if not
able to run away when her husband was felled after the attack, 17 and, (b) that given that information by you?
during the investigation Gloria informed the police authorities that her husband
went out of the house because appellant asked her for a stick of cigarette but in
A. I was still confused at that time because of
court she swore that appellant challenged her husband to a
the death of my husband.
fight. 18
Q. Now, here in this excerpt of the blotter the
It is the policy of the Court, founded on reason and experience, to sustain the
person you identified to the police who hacked
factual findings of the trial court in criminal cases on the rational assumption that
your husband was not Rogelio Villanueva but
it is in a better position to assess the evidence before it; consequently, findings of
Mamerto Durana and apparently this is the
the trial court are entitled to the highest degree of respect and will not be information you gave to the police?
disturbed on appeal in the absence of any showing that the court overlooked,
misunderstood or misapplied some facts or circumstances of weight and
substance which if considered would have affected the result of the case. It is the A. No, sir, that is not what I told to (sic) the
trial court and not any court on appeal that can best ascertain the credibility of police.
witnesses.
Q. What did you tell to (sic) the police?
Discrepancies on minor matters do not impair the essential integrity of the
evidence for the prosecution as a whole nor reflect on the honesty of the A. I told the policemen that it was Rogelio
witness. 19 The alleged inconsistencies on the testimony of Gloria Meniano dwell Villanueva who hacked my husband.
on minor and trivial matters which only serve to strengthen than weaken her
credibility. The most honest witness may sometimes commit mistakes but such Q. Why did you not tell the police that the
honest lapses do not necessarily impair his credibility especially when minor accused here Mamerto Durana was asking for a
details are involved. Human memory may be temporarily paralyzed by a startling stick of cigarette from your husband that is the
event especially if the same involves a person close to the witness. reason why your husband went out of the
house?
Contrary to the allegations of the accused-appellant, there was no such
inconsistency in the testimony of Gloria Meniano concerning the former's A. Maybe I was still confused at that time, I do
participation in the killing of her husband. To the questions of the trial court, the not know.
witness clearly testified as to the existence of conspiracy between appellant and
his co-accused. Thus — Q. But even if you were confused the fact that
the dead man here is your husband you cannot
Court: be confused which one killed your husband and
what preceded?
Q. I will ask some clarificatory questions. The
police would have not known the incident if you A. I would not be confused on the person who
did not give information to the police, right? killed my husband.

A. Yes, sir.
17

Q. The court feels that the situation is like this, accused Rogelio Villanueva still has to be apprehended and then tried before he
that either you are telling the truth or this can be declared guilty as the evidence may warrant.
complaint was only based on suspicion that it
was the two accused who conspired to kill your The penalty for murder under Art. 248 of the Revised Penal Code is reclusion
husband or maybe you did not see the actual temporal in its maximum period to death. There being no mitigating or
killing? aggravating circumstances that attended the commission of the offense, the trial
court therefore correctly imposed the penalty of reclusion perpetua upon accused
A. It is not only my suspicion because I saw that Mamerto Durana.
it was Rogelio Villanueva who hacked my
husband. WHEREFORE, the decision finding accused-appellant MAMERTO DURANA
guilty of murder and imposing upon him a prison term of reclusion perpetua, as
Q. So it is clear now that what you told the police well as ordering him to indemnify the heirs of Diosdado Meniano in the amount of
was that Mamerto Durana challenged your P50,000.00 is AFFIRMED, with costs against accused-appellant.
husband to a fight and not that Mamerto Durana
was asking for a stick of cigarette from your SO ORDERED.
husband?
ERDITO QUARTO, G.R. No. 169042
A. Yes sir. 20 Petitioner,
Present:
Gloria Meniano's testimony in court jibes with the sworn statement she executed
on 16 November 1992 before the police authorities. 21 This statement as well as - versus - CARPIO, J.,
her testimony clearly points to the appellant as the person who challenged and Chairperson,
drew Diosdado Meniano out of his house so that the latter could be hacked BRION,
without warning by his co-accused. The inconsistency alleged by accused- THE HONORABLE OMBUDSMAN SIMEON PEREZ,
appellant referred merely to a police investigation report stating that Meniano MARCELO, CHIEF SPECIAL PROSECUTOR DENNIS SERENO, and
allegedly told the police authorities that appellant asked for a cigarette stick from VILLA IGNACIO, LUISITO M. TABLAN, RAUL B. REYES, JJ.
the deceased prompting the latter to go out of his house. This cannot prevail over BORILLO, and LUIS A. GAYYA,
the positive identification in court by the witnesses for the prosecution that Respondents. Promulgated:
appellant was one of two culprits criminally responsible for the death of Diosdado
Meniano. October 5, 2011

We hold that the trial court correctly found the existence of conspiracy between x------------------------------------------------------------------------------------x
the two accused in killing the deceased with the employment of treachery.
Conspiracy can be inferred from and established by the acts of the accused
themselves when said acts point to a joint purpose and design, concerted action DECISION
and community of interests. 22 In the instant case, it was clearly shown that while
appellant purposely challenged the deceased to go out of his house, his co- BRION, J.:
accused secretly hid among the plants outside of the house to await Diosdado
and when the latter finally appeared, the former suddenly and without warning
pounched upon the victim and hacked him to death. Indeed Villanueva and
Durana gave their victim no chance to defend himself nor even to repel the
assault on him considering the unexpected attack on his person to ensure the
accomplishment of their objective without risk to themselves. Conspiracy
between appellant and his co-accused having been established, the guilt or Before the Court is a petition for certiorari and mandamus[1] filed by
culpability of one is imputable to both of them in equal degree 23 although
Erdito Quarto (petitioner) assailing the Ombudsmans January 7, 2004[2] and
18

November 4, 2004[3] resolutions which granted Luisito M. Tablan, Raul B. Borillo, b. Based on the Job Order, the SIT conducts a pre-
and Luis A. Gayya (collectively, respondents) immunity from prosecution, repair inspection (to determine the necessity of
repair and whether the repair is emergency in
resulting in the respondents exclusion from the criminal informations filed before nature) and prepares a Pre-Repair Inspection
the Sandiganbayan. The petitioner seeks to nullify the immunity granted to the Report, with a recommendation for its approval by
the CESPD Chief.
respondents, and to compel the Ombudsman to include them as accused in the
informations for estafa through falsification of public documents[4] and for
II. Preparation and Approval of Requisition for Supplies
violation of Section 3(e), Republic Act (RA) No. 3019.[5] and/or Equipment with accompanying documents (Job
Order and Pre-Inspection Report)

FACTUAL ANTECEDENTS
a. The Procurement Section, Administrative
Manpower Management Service (AMMS) prepares
The petitioner is the Chief of the Central Equipment and Spare Parts the Requisition for Supplies and Equipment (RSE),
the Canvass Quotation of three Suppliers, the
Division (CESPD),[6] Bureau of Equipment (BOE), Department of Public Works Certificate of Emergency Purchase, and the
and Highways (DPWH), Port Area, Manila. As CESPD Chief, he is also the Head Certificate of Fair Wear and Tear;

of the Special Inspectorate Team (SIT) of the DPWH.[7] The respondents are b. The end-user signs the RSE with the
recommending approval of the concerned head of
members of the SIT.[8]
office; and

c. The AMMS Director approves the RSE.


On January 9, 2002, DPWH Secretary Simeon Datumanong created a committee
to investigate alleged anomalous transactions involving the repairs and/or
III. Repair of Vehicles
purchase of spare parts of DPWH service vehicles in 2001. [9] On January 17,
2002, the committee designated the DPWH Internal Audit Service (IAS) as its
a. The end-user selects the repair shop/auto supply
Technical Working Group to conduct the actual investigation.[10] from accredited establishments;

b. The selected repair shop/auto supply repairs the


In the course of its investigation, the DPWH-IAS[11] learned that the emergency service vehicle and issues the corresponding sales
invoice and/or official receipt;
repairs and/or purchase of spare parts of DPWH service vehicles basically
undergo the following documentary process: c. The end-user accepts the repair and executes a
Certificate of Acceptance;
I. Determination of repairs and/or spare parts needed d. The SIT conducts a post-repair inspection (to check
if the vehicle was repaired and whether the repair
conformed to specifications) and prepares a Post-
a. The end-user requesting repair brings the service Repair Inspection Report, with a recommendation
vehicle to the Motorpool Section, CESPD for initial for its approval by the CESPD Chief. The Motorpool
inspection and preparation of Job Order; and
19

and the end-user would prepare the Report of Waste Equipment (RSE) x x x[,] and participated in the approval of the
Materials also for the signature of the CESPD Chief; disbursement voucher authorizing payment of said repairs as
and necessary and lawful [even if said vehicle was never referred to
the Motorpool Section, CESPD for repair].
e. The Assets and Supply Management and Control
Division recommends payment of the expense/s The documents relating to [this vehicle] were filed within a period
incurred. of one month (between September to October 2001) [and] were
used to authorize the payment of said non existent ghost repairs
to the damage and prejudice of the [DPWH.][17] (emphases ours)

The processing of the payment of claims for reimbursement follows the above

process. On the other hand, Atty. Ofilada charged the respondents with the following:

With dishonesty and grave misconduct, [respondents] as


Based on this procedure, the DPWH-IAS discovered that from March to members of the [SIT] xxx accomplished and signed Pre-
Repair Inspection and Post Repair Inspection Reports in
December 2001, several emergency repairs and/or purchase of spare parts of support of the four job orders [and made] it appear that the
hundreds of DPWH service vehicles, which were approved and paid by the vehicle was inspected prior and after the alleged repair
[although they knew that the vehicle was never turned over
government, did not actually take place, resulting in government losses of for inspection]. The accomplishment of the Pre-Repair and
approximately P143 million for this ten-month period alone.[12] Post-Repair Inspection Report[s] led to the preparation of the
Request for Supplies and Equipment which was the basis of the
preparation of the disbursement vouchers ultimately authorizing
the payment of the said repairs thru reimbursement scheme to
Thus, Atty. Irene D. Ofilada of the DPWH-IAS filed before the Office of the
the damage and prejudice of the DPWH.
Ombudsman[13] a Complaint-Affidavit[14] and a Supplemental Complaint-
x x x the [P]re-[R]epair and [P]ost-[R]epair [I]nspection
Affidavit[15] charging several high-ranking DPWH officials and employees [R]eports of the [SIT] xxx are fictitious and falsified as no actual
including the petitioner, the respondents, and other private individuals who inspection could have transpired[.][18] (emphasis ours)

purportedly benefited from the anomalous transactions with Plunder, Money


Laundering, Malversation, and violations of RA No. 3019 and the Administrative The petitioner denied the allegations against him, claiming that he merely
Code.[16] relied on his subordinates when he signed the job orders and the inspection
reports.[19] In contrast, the respondents admitted the existence of irregularities in
Atty. Ofilada imputed the following acts to the petitioner: the repairs and/or purchase of spare parts of DPWH service vehicles, and
offered to testify and to provide evidence against the DPWH officials and
With dishonesty and grave misconduct, [the petitioner] x x
x approved four (4) job orders for [the] repairs [and/or] employees involved in the anomaly in exchange for their immunity from
purchase of spare parts of [the vehicle assigned to Atty. Ofilada,] prosecution. The respondents submitted:
noted the certificate of urgency of said repairs [and/or]
purchase[,] concurred with both the pre-repair and post
repair inspection reports thereon, participated in the 5.2 x x x since we assumed our duties as members of
accomplishment of the supporting Requisition for Supplies and the SIT xxx, we observed that [the] DPWH vehicles were being
20

sent to the repair shop in violation of the prescribed guidelines


governing the emergency repair of a service vehicle. In most 6. In our attempts to perform our sworn duties, however, we incurred the
instances, service vehicles are immediately brought to a car displeasure of the suppliers, the head of [SIT] and other officials
repair shop of the end-users choice without bringing it first of the DPWH who threatened various administrative sanctions
to the [Motorpool Section, CESPD, BOE] for the preparation against us if we should not accede to their wishes. x x x
of the required job order by [Gayya] of the Motorpool
Section and the pre-repair inspection to be conducted by 7. In addition to the foregoing, there are other factors
the SIT. After the purported repairs are done, SIT members which conspired to prevent us from properly performing our
are made to sign a post-repair inspection report which duties. For one, the DPWH processes an average of 3,000
already includes a typed-in recommendation for the repairs per calendar year. Given the staggering number and
payment of repairs, and the signature of the Head of the extent of repairs, including the volume of paperwork, it was
[SIT] indicating his alleged concurrence with the findings of practically impossible for [us] to implement the rules which
the SIT despite the absence of an actual inspection. The proved too tedious under the circumstance. As such, a short-cut
post-repair inspection report is accompanied by the following of the rules was necessary to accommodate the demands of the
attachments, to wit: a) a falsified job order signed by the head of end-user, the suppliers, our superiors, and other executives of
the [SIT] and the Chief of the Motorpool Section x x x [and] e) an the DPWH. x x x
empty or falsified [p]re-repair inspection report[.]
8. The anomalous practices of the DPWH executives
5.3 Initially[,] we tried to curb the above anomalous and suppliers in the purported repair of DPWH service vehicles
practices being perpetrated by suppliers and officials of the were indeed more widespread and rampant in the year 2001. As
DPWH x x x [by making] known [our] objections to the a precautionary measure, we took the initiative of photocopying
questionable job orders for the proposed repairs of DPWH these sets of falsified documents as they were presented to us
service vehicles[,] thus: before we affixed our respective signatures thereon. We grouped
these documents into Sets A and B[.]
a. On July, 9, 1999, [Tablan] wrote the Head of
the SIT a memorandum x x x stating that the job xxxx
orders for [several identified vehicles] x x x
violated the prohibition against splitting of job 11. x x x That the service vehicle x x x has not been
orders x x x. [Tablan recommended for public actually inspected by [Tablan and Borillo] is attested to by the
bidding the proposed repairs for the said pre and post repair inspection reports initially bearing the
vehicles]. signature of the head of the SIT as concurring official without the
required signatures of Borillo and Tablan. More importantly,
b. In connection with the job orders involving these DPWH officials did not bother, in a majority of cases, to
[several identified vehicles] x x x Tablan and cover their tracks when they prepared and signed the pre and
Borillo wrote the Head of the SIT a post repair inspection reports on the same dates. Based on
Memorandum x x x recommending that the proper procedure, a post repair inspection report is to be
whereabouts of the end-user be verified, and the accomplished only after the preparation and approval of the Job
service vehicle be re-inspected and/or disposed Order, pre-repair inspection report, RSE, Cash Invoice and
of. Acceptance by the end-user. In this case, the RSE, Cash Invoice
and Certificate of Acceptance are dated much later than the
c. Since the July 9, 1999 Memorandum was post-repair inspection report. Since xxx there was no actual pre-
returned to x x x Tablan without any action being repair and post-repair inspection conducted, the foregoing
undertaken by the SIT Chief, [Tablan and sample instances paved the way for the ghost repairs of DPWH
Borillo] reiterated the recommendation for the service vehicles, to the detriment and prejudice of the
public bidding of the proposed repairs described government.
therein[.]
21

12. Because of the anomalous transactions, the joke


circulating around the DPWH is that we are actually the directors
of the DPWH since we are the last to sign, so to speak. That the The petitioner argues that the Ombudsman should have included the
signature[s] of the [respondent] SIT members are merely pro
forma is all the more pronounced in a sample set consisting of a respondents in the informations since it was their inspection reports that actually
number of pre-repair inspection reports for a particular month in paved the way for the commission of the alleged irregularities. [24] The petitioner
2001. The pre-repair inspection reports of the service vehicles
indicated therein are empty of any findings and bear the asserts that the respondents criminal complicity clearly appears since no repair
signature of the head of the SIT as concurring official. All the could have started and no payment for repairs, ghost or not, could have been
foregoing documents above detailed negate the convenient
excuse proffered by DPWH executives that they sign the made without the respondents pre-repair and post-repair inspection reports. By
documents only after the SIT had inspected the service
excluding the respondents in the informations, the Ombudsman is engaged in
vehicle and prepared the pre and post repair inspection
reports. selective prosecution which is a clear case of grave abuse of discretion.

xxxx
The petitioner claims that before the Ombudsman may avail of the
14.1 xxx the above examples are only a representative
sampling of the extent of the anomalous transactions involving respondents as state witnesses, they must be included first in the informations
DPWH service vehicles which can be considered ghost repairs. filed with the court. Thereafter, the Ombudsman can ask the court for their
There are more instances wherein [we] are willing to testify to in
exchange for immunity from prosecution.[20] (emphases ours) discharge so that they can be utilized as state witnesses under the conditions
laid down in Section 17, Rule 119 of the Rules of Court since the court has the
sole province to determine whether these conditions exist.
After conducting preliminary investigation, the Ombudsman filed with the
Sandiganbayan[21] several informations charging a number of DPWH officials and
These conditions require, inter alia, that there should be absolute
employees with plunder,[22] estafa through falsification of official/commercial
necessity for the testimony of the proposed witness and that he/she should not
documents and violation of Section 3(e), RA No. 3019. On the other hand, the
appear to be the most guilty. The petitioner claims that the respondents failed to
Ombudsman granted the respondents request for immunity in exchange for their
comply with these conditions as the Ombudsmans evidence, which became the
testimonies and cooperation in the prosecution of the cases filed.
basis of the informations subsequently filed, shows that the respondents
testimony is not absolutely necessary; in fact, the manner of the respondents
The petitioner initially filed a certiorari petition with the Sandiganbayan,
participation proves that they are the most guilty in the premises.
questioning the Ombudsmans grant of immunity in the respondents favor. The
Sandiganbayan, however, dismissed the petition for lack of jurisdiction and
THE COMMENTS OF THE OMBUDSMAN AND THE RESPONDENTS
advised the petitioner to instead question the Ombudsmans actions before this
Court.[23] Hence, this present petition.
The Ombudsman counters that RA No. 6770 (the Ombudsman Act of 1989)
expressly grants him the power to grant immunity from prosecution to witnesses.
THE PETITION
Given this power, the Ombudsman asserts that Section 17, Rule 119 of the
22

Rules of Court, which presupposes that the witness is originally included in the respondents guilty of dishonesty and grave misconduct involving the same set of
information, is inapplicable to the present case since the decision on whom to facts.[31]
prosecute is an executive, not a judicial, prerogative.[25]
OUR RULING

The Ombudsman invokes this Courts policy of non-interference in the


Ombudsmans exercise of his discretion in matters involving his investigatory and We dismiss the petition on two grounds: first, the petitioner did not avail of the
prosecutorial powers.[26] The petitioners claim that the respondents are the most remedies available to him before filing this present petition; and, second, within
guilty is a matter of defense which the petitioner may raise not in this proceeding, the context of the Courts policy of non-interference with the Ombudsmans
but in the trial proper.[27] exercise of his investigatory and prosecutory powers, the petitioner failed to
establish that the grant of immunity to the respondents was attended by grave
On the other hand, the respondents submit that the Ombudsman has ample abuse of discretion.
discretion in determining who should be included in the information on the basis
I. The petitioner did not
of his finding of probable cause. The courts can only interfere in the exhaust remedies available in
Ombudsmans exercise of his discretion in case of a clear showing of grave the ordinary course of law

abuse of discretion, which the petitioner failed to establish. [28]


As extraordinary writs, both Sections 1 (certiorari) and 3 (mandamus),
THE PETITIONERS REPLY[29]
Rule 65 of the Rules of Court require, as a pre-condition for these remedies, that
there be no other plain, speedy and adequate remedy in the ordinary course of
While conceding that the Ombudsman has the power and the discretion to grant law. In the present case, the petitioner has not shown that he moved for a
immunity to the respondents, the petitioner asserts that this power must be reconsideration of the assailed resolutions based substantially on the same
exercised within the confines of Section 17, Rule 119 of the Rules of Court which grounds stated in this present petition.[32] Neither did the petitioner file a motion
requires, inter alia, that the proposed witness must not appear to be the most for the inclusion of the respondents in the informations before filing the present
guilty. By ignoring this provision and extending immunity to the respondents petition.[33] These are adequate remedies that the petitioner chose to forego; he
whose false reports ultimately led to the payment for supposed repairs, and who bypassed these remedies and proceeded to seek recourse through the present
are, thus, the real culprits,[30] the Ombudsman gravely abused his discretion a petition.[34]
fatal defect correctible by certiorari.

Similarly, the petitioner has not shown that he filed the present petition
Amplifying on the respondents guilt, the petitioner cites the DPWHs decision in with this Court within the sixty-day reglementary period[35] from notice of the
an administrative case which the Civil Service Commission affirmed, finding the assailed Ombudsmans resolutions. He did not do so, of course, since he initially
23

and erroneously filed a certiorari petition with the Sandiganbayan. We remind the impleading all others, the remedy of mandamus lies[44] since he is duty-bound, as
petitioner that the remedy from the Ombudsmans orders or resolutions in criminal a rule, to include in the information all persons who appear responsible for the
cases is to file a petition for certiorari under Rule 65[36] with this Court.[37] offense involved.[45]

The petition likewise fails even on the merits.


Citing the cases of Guiao v. Figueroa[46] and Castro, Jr., et al. v.
Castaeda and Liceralde,[47] the petitioner argues for the inclusion of the
II. The respondents exclusion
in the informations is respondents in the criminal informations, pointing out that the respondents
grounded on the accomplished the inspection reports that allegedly set in motion the documentary
Ombudsmans grant of
immunity process in the repair of the DPWH vehicles; these reports led to the payment by
the government and the consequent losses.

Mandamus is the proper remedy to compel the performance of a


In Guiao and Castro, we ruled that mandamus lies to compel a
ministerial duty imposed by law upon the respondent. [38] In matters involving the
prosecutor who refuses (i) to include in the information certain persons, whose
exercise of judgment and discretion, mandamus may only be resorted to, to
participation in the commission of a crime clearly appears, and (ii) to follow the
compel the respondent to take action; it cannot be used to direct the manner or
proper procedure for the discharge of these persons in order that they may be
the particular way discretion is to be exercised.[39]
utilized as prosecution witnesses.

In the exercise of his investigatory and prosecutorial powers, the


These cited cases, however, did not take place in the same setting as
Ombudsman is generally no different from an ordinary prosecutor in determining
the present case as they were actions by the public prosecutor, not by the
who must be charged.[40] He also enjoys the same latitude of discretion in
Ombudsman. In the present case, the Ombudsman granted the respondents
determining what constitutes sufficient evidence to support a finding of probable
immunity from prosecution pursuant to RA No. 6770 which specifically empowers
cause (that must be established for the filing of an information in court) [41] and the
the Ombudsman to grant immunity in any hearing, inquiry or proceeding being
degree of participation of those involved or the lack thereof. His findings and
conducted by the Ombudsman or under its authority, in the performance or in the
conclusions on these matters are not ordinarily subject to review by the courts
furtherance of its constitutional functions and statutory objectives. The pertinent
except when he gravely abuses his discretion,[42] i.e., when his action amounts to
provision Section 17 of this law provides:
an evasion of a positive duty or a virtual refusal to perform a duty enjoined by
law, or when he acts outside the contemplation of law.[43] Sec. 17. Immunities. x x x.

Under such terms and conditions as it may determine, taking


If, on the basis of the same evidence, the into account the pertinent provisions of the Rules of Court,
Ombudsman arbitrarily excludes from an indictment some individuals while the Ombudsman may grant immunity from criminal prosecution
to any person whose testimony or whose possession and
24

production of documents or other evidence may be necessary to


determine the truth in any hearing, inquiry or proceeding being manner, the state interest is satisfied while respecting the individuals
conducted by the Ombudsman or under its authority, in the constitutional right against self-incrimination.
performance or in the furtherance of its constitutional functions
and statutory objectives. The immunity granted under this and
the immediately preceding paragraph shall not exempt the III. Nature of the power to grant
witness from criminal prosecution for perjury or false testimony immunity
nor shall he be exempt from demotion or removal from
office. [emphasis ours]
The power to grant immunity from prosecution is essentially a legislative
prerogative.[55] The exclusive power of Congress to define crimes and their
To briefly outline the rationale for this provision, among the most
nature and to provide for their punishment concomitantly carries the power to
important powers of the State is the power to compel testimony from its
immunize certain persons from prosecution to facilitate the attainment of state
residents; this power enables the government to secure vital information
interests, among them, the solution and prosecution of crimes with high political,
necessary to carry out its myriad functions.[48] This power though is not absolute.
social and economic impact.[56] In the exercise of this power, Congress
The constitutionally-enshrined right against compulsory self-incrimination is a
possesses broad discretion and can lay down the conditions and the extent of
leading exception. The states power to compel testimony and the production of a
the immunity to be granted.[57]
persons private books and papers run against a solid constitutional wall when the
person under compulsion is himself sought to be penalized. In balancing
Early on, legislations granting immunity from prosecution were
between state interests and individual rights in this situation, the principles of free
few.[58] However, their number escalated with the increase of the need to secure
government favor the individual to whom the state must yield.[49]
vital information in the course and for purposes of prosecution. These

A state response to the constitutional exception to its vast powers, statutes[59] considered not only the importance of the testimony sought, but also

especially in the field of ordinary criminal prosecution and in law enforcement and the unique character of some offenses and of some situations where the criminal

administration, is the use of an immunity statute.[50] Immunity statutes seek a participants themselves are in the best position to give useful testimony. [60] RA

rational accommodation between the imperatives of an individuals constitutional No. 6770 or the Ombudsman Act of 1989 was formulated along these lines and

right against self-incrimination[51] (considered the fount from which all statutes reasoning with the vision of making the Ombudsman the protector of the people

granting immunity emanate[52]) and the legitimate governmental interest in against inept, abusive and corrupt government officers and

securing testimony.[53] By voluntarily offering to give information on the employees.[61] Congress saw it fit to grant the Ombudsman the power to directly

commission of a crime and to testify against the culprits, a person opens himself confer immunity to enable his office to effectively carry out its constitutional and

to investigation and prosecution if he himself had participated in the criminal act. statutory mandate of ensuring effective accountability in the public service. [62]

To secure his testimony without exposing him to the risk of prosecution, the law
IV. Considerations in the grant
recognizes that the witness can be given immunity from prosecution. [54] In this of immunity
25

(b) There is no other direct evidence available for the


While the legislature is the source of the power to grant immunity, the proper prosecution of the offense committed, except the
authority to implement is lodged elsewhere. The authority to choose the testimony of said accused;
individual to whom immunity would be granted is a constituent part of the process (c) The testimony of said accused can be substantially
and is essentially an executive function. Mapa, Jr. v. Sandiganbayan[63] is corroborated in its material points;

instructive on this point: (d) Said accused does not appear to be the most guilty;
and

The decision to grant immunity from prosecution forms a (e) Said accused has not at any time been convicted of
constituent part of the prosecution process. It is essentially a any offense involving moral turpitude.
tactical decision to forego prosecution of a person for
government to achieve a higher objective. It is a deliberate
renunciation of the right of the State to prosecute all who appear
to be guilty of having committed a crime. Its justification lies in This Rule is itself unique as, without detracting from the executive nature
the particular need of the State to obtain the conviction of the of the power to prosecute and the power to grant immunity, it clarifies that in
more guilty criminals who, otherwise, will probably elude the long
arm of the law. Whether or not the delicate power should be cases already filed with the courts,[65] the prosecution merely makes a proposal
exercised, who should be extended the privilege, the timing and initiates the process of granting immunity to an accused-witness in order to
of its grant, are questions addressed solely to the sound
judgment of the prosecution. The power to prosecute utilize him as a witness against his co-accused.[66] As we explained in Webb v.
includes the right to determine who shall be prosecuted and
De Leon[67] in the context of the Witness Protection, Security and Benefit Act:
the corollary right to decide whom not to prosecute. In
reviewing the exercise of prosecutorial discretion in these areas,
the jurisdiction of the respondent court is limited. For the The right to prosecute vests the prosecutor with a wide range of
business of a court of justice is to be an impartial tribunal, and discretion the discretion of whether, what and whom to charge,
not to get involved with the success or failure of the prosecution the exercise of which depends on a smorgasbord of factors
to prosecute. Every now and then, the prosecution may err in the which are best appreciated by prosecutors. We thus hold that it
selection of its strategies, but such errors are not for neutral is not constitutionally impermissible for Congress to enact R.A.
courts to rectify, any more than courts should correct the No. 6981 vesting in the Department of Justice the power to
blunders of the defense. [emphasis ours] determine who can qualify as a witness in the program and who
shall be granted immunity from prosecution. Section 9 of Rule
119 does not support the proposition that the power to choose
who shall be a state witness is an inherent judicial prerogative.
RA No. 6770 fully recognizes this prosecutory prerogative by
Under this provision, the court is given the power to
empowering the Ombudsman to grant immunity, subject to such terms and discharge a state witness only because it has already
acquired jurisdiction over the crime and the accused. The
conditions as he may determine. The only textual limitation imposed by law on discharge of an accused is part of the exercise of
this authority is the need to take into account the pertinent provisions of the jurisdiction but is not a recognition of an inherent judicial
function. [emphasis ours]
Rules of Court, i.e., Section 17, Rule 119 of the Rules of Court.[64] This provision
Thus, it is the trial court that determines whether the prosecutions preliminary
requires that:
(a) There is absolute necessity for the testimony of the assessment of the accused-witness qualifications to be a state witness satisfies
accused whose discharge is requested; the procedural norms.[68] This relationship is in reality a symbiotic one as the trial
26

court, by the very nature of its role in the administration of justice, [69] largely given by law to the Ombudsmans purpose and objective to focus on offenses
exercises its prerogative based on the prosecutors findings and evaluation. On
committed by public officers and employees to ensure accountability in the public
this point, the Courts pronouncement in the 1918 case of United States v.
service. This accounts for the Ombudsmans unique power to grant immunity by
Abanzado[70] is still very much relevant:
itself and even prior to the filing of information in court, a power that the public
A trial judge cannot be expected or required to inform prosecutor himself generally does not enjoy.[73]
himself with absolute certainty at the very outset of the trial as to
everything which may be developed in the course of the trial in
regard to the guilty participation of the accused in the V. Extent of judicial review of
commission of the crime charged in the complaint. If that were a bestowed immunity
practicable or possible there would be little need for the formality
of a trial. He must rely in large part upon the suggestions and the
information furnished by the prosecuting officer in coming to his
conclusions as to the "necessity for the testimony of the accused An immunity statute does not, and cannot, rule out a review by this Court
whose discharge is requested"; as to the availability or
nonavailability of other direct or corroborative evidence; as to of the Ombudsmans exercise of discretion. Like all other officials under our
which of the accused is "most guilty," and the like.
constitutional scheme of government, all their acts must adhere to the

Constitution.[74] The parameters of our review, however, are narrow. In the first
Notably, this cited case also observes that the Rules-provided guidelines
place, what we review are executive acts of a constitutionally independent
are mere express declarations of the conditions which the courts ought to have in
Ombudsman.[75] Also, we undertake the review given the underlying reality that
mind in exercising their sound discretion in granting the prosecutions motion for
this Court is not a trier of facts. Since the determination of the requirements
the discharge of an accused.[71] In other words, these guidelines are necessarily
under Section 17, Rule 119 of the Rules of Court is highly factual in nature, the
implied in the discretion granted to the courts.
Court must, thus, generally defer to the judgment of the Ombudsman who is in a

better position (than the Sandiganbayan or the defense) to know the relative
RA No. 6770 recognizes that these same principles should apply when
strength and/or weakness of the evidence presently in his possession and the
the Ombudsman directly grants immunity to a witness.The same consideration to
kind, tenor and source of testimony he needs to enable him to prove his
achieve the greater and higher purpose of securing the conviction of the most
case.[76] It should not be forgotten, too, that the grant of immunity effectively but
guilty and the greatest number among the accused[72] is involved whether the
conditionally results in the extinction of the criminal liability the accused-
grant is secured by the public prosecutor with active court intervention, or by the
witnesses might have incurred, as defined in the terms of the grant. [77] This point
Ombudsman. If there is any distinction at all between the public prosecutor and
is no less important as the grant directly affects the individual and enforces his
the Ombudsman in this endeavor, it is in the specificity of and the higher priority
right against self-incrimination. These dynamics should constantly remind us that
27

we must tread softly, but not any less critically, in our review of the Ombudsmans Based on these considerations, we shall now proceed to determine
whether the petitioner has clearly and convincingly shown that the Ombudsman
grant of immunity.
gravely abused his discretion in granting immunity to the respondents.

From the point of view of the Courts own operations, we are Va. Absolute necessity for
testimony of the respondents
circumscribed by the nature of the review powers granted to us under the

Constitution and the Rules of Court. We rule on the basis of a petition


Under the factual and legal situation before us, we find that the petitioner
for certiorari under Rule 65 and address mainly the Ombudsmans exercise of
miserably failed to clearly and convincingly establish that the Ombudsman
discretion. Our room for intervention only occurs when a clear and grave abuse
gravely abused his discretion in granting immunity to the respondents. While he
of the exercise of discretion is shown. Necessarily, this limitation similarly reflects
claims that both conditions (a) and (d) of Section 17, Rule 119 of the Rules of
on the petitioner who comes to us on the allegation of grave abuse of discretion;
Court are absent, we observe his utter lack of argument addressing the absolute
the petitioner himself is bound to clearly and convincingly establish that the
necessity of the respondents testimony. In fact, the petitioner simply concluded
Ombudsman gravely abused his discretion in granting immunity in order to
that the requirement of absolute necessity does not exist based on the
fully establish his case.[78]
Ombudsmans evidence, without even attempting to explain how he arrived at this

conclusion.
As a last observation, we note the unique wording of the grant of the
power of immunity to the Ombudsman. It is not without significance that the law
We note in this regard that the respondents proposed testimony tends to
encompassed (and appears to have pointedly not separated) the consideration of
counteract the petitioners personal defense of good faith (i.e., that he had no
Section 17, Rule 119 of the Rules of Court within the broader context of such
actual participation and merely relied on his subordinates) in approving the job
terms and conditions as the Ombudsman may determine. This deliberate
orders and in his concurrence with the inspection reports. In their Joint Counter-
statutory wording, to our mind, indicates the intent to define the role of Section
Affidavit, the respondents narrated the accused DPWH officials/employees
17, Rule 119 in the Ombudsmans exercise of discretion. It suggests a broad
flagrant disregard of the proper procedure and the guidelines in the repair of
grant of discretion that allows the Ombudsmans consideration of factors other
DPWH service vehicles which culminated in losses to the government.
than those outlined under Section 17, Rule 119; the wording creates the opening
Particularly telling is the respondents statement that a number of pre-repair
for the invocation, when proper, of the constitutional and statutory intents behind
inspection reports for a particular month in 2001 bear the petitioners signature
the establishment of the Ombudsman.
despite the fact that these reports are not supported by findings from the
respondents as SIT members.[79] This kind of statement cannot but impact on
28

how the Ombudsman viewed the question of absolute necessity of the In considering the respondents possible degree of guilt, we are keenly
respondents testimony since this testimony meets the defense of good faith aware of their admission that they resorted to a short-cut[81] in the procedure to
head-on to prove the prosecutions allegations. Under these circumstances, we be observed in the repairs and/or purchase of emergency parts of DPWH service
cannot preempt, foreclose, nor replace with our own the Ombudsmans position vehicles. To our mind, however, this admission does not necessarily result in
on this point as it is clearly not without basis. making the respondents the most guilty in the premises; not even a semblance of
being the most guilty can be deduced therefrom.
Vb. The respondents do not
appear to be the most guilty
In sum, the character of the respondents involvement vis--vis the crimes
filed against the DPWH officials/employees, coupled with the substance of the
Similarly, far from concluding that the respondents are the most guilty,
respondents disclosures, compels this Court to take a dim view of the position
we find that the circumstances surrounding the preparation of the inspection
that the Ombudsman gravely abused his discretion in granting immunity to the
reports can significantly lessen the degree of the respondents criminal complicity
respondents. The better view is that the Ombudsman simply saw the higher
in defrauding the government. Again, this is a matter that the Ombudsman, in the
value of utilizing the respondents themselves as witnesses instead of prosecuting
exercise of his discretion, could not have avoided when he considered the grant
them in order to fully establish and strengthen its case against those mainly
of immunity to the respondents.
responsible for the criminal act, as indicated by the available evidence.

We note, too, that while the petitioner incessantly harped on the VI. The respondents
administrative liability has
respondents role in the preparation of the inspection reports, yet, as head of the
no bearing at all on the
SIT, he was eerily silent on the circumstances surrounding this preparation, immunity granted to the
respondents
particularly on the respondents explanation that they tried to curb the anomalous
practices[80] in the DPWH. We are aware, of course, that the present petition
merely questions the immunity granted to the respondents and their consequent The fact that the respondents had previously been found administratively liable,
exclusion from the informations; it does not assail the finding of probable cause based on the same set of facts, does not necessarily make them the most
against the petitioner himself. This current reality may explain the petitioners guilty. An administrative case is altogether different from a criminal case, such
silence on the respondents assertions; the respondents allegations, too, still have that the disposition in the former does not necessarily result in the same
to be proven during the trial. However, these considerations are not sufficient to disposition for the latter, although both may arise from the same set of
save the petitioner from the necessity of controverting the respondents facts.[82] The most that we can read from the finding of liability is that the
allegations, even for the limited purpose of the present petition, since his counter- respondents have been found to be administratively guilty bysubstantial
assertion on this basic ground (that the respondents bear the most guilt) is evidence the quantum of proof required in an administrative proceeding. The
essential and critical to the viability of his petition. requirement of the Revised Rules of Criminal Procedure (which RA No. 6770
29

compelled to review the exercise of discretion on the part of the


adopted by reference) that the proposed witness should not appear to be the fiscals or prosecuting attorneys each time they decide to file an
most guilty is obviously in line with the character[83] and purpose[84] of a criminal information in court or dismiss a complaint by a private
complainant.
proceeding, and the much stricter standards[85] observed in these cases. They
are standards entirely different from those applicable in administrative
proceedings. Following this policy, we deem it neither appropriate nor advisable to interfere
with the Ombudsmans grant of immunity to the respondents, particularly in this
VII. The policy of non- case, where the petitioner has not clearly and convincingly shown the grave
interference with the
Ombudsmans abuse of discretion that would call for our intervention.
investigatory and
prosecutory powers
cautions a stay of judicial WHEREFORE, the petition is hereby DISMISSED. Costs against the
hand
petitioner.

The Constitution and RA No. 6770 have endowed the Office of the G.R. No. 196842 October 9, 2013
Ombudsman with a wide latitude of investigatory and prosecutory powers, freed,
ALFREDO ROMULO A. BUSUEGO, Petitioner,
to the extent possible within our governmental system and structure, from vs.
legislative, executive, or judicial intervention, and insulated from outside pressure OFFICE OF THE OMBUDSMAN MINDANAO and ROSA S.
BUSUEGO, Respondents.
and improper influence.[86] Consistent with this purpose and subject to the
command of paragraph 2, Section 1, Article VIII of the 1987 Constitution, [87] the DECISION

Court reiterates its policy of non-interference with the Ombudsmans exercise of


PEREZ, J.:
his investigatory and prosecutory powers (among them, the power to grant
Before us is a petition for certiorari seeking to annul and set aside the Resolution
immunity to witnesses[88]), and respects the initiative and independence inherent
of the Ombudsman dated 17 April 20091 and Order dated October 2010,2 which
in the Ombudsman who, beholden to no one, acts as the champion of the people directed the tiling of an Information for Concubinage under Article 334 of the
Revised Penal Code against petitioner Alfredo Romulo A. Busuego (Alfredo).
and the preserver of the integrity of the public service.[89] Ocampo IV v.
Ombudsman[90] best explains the reason behind this policy: We chronicle the facts thus.

The rule is based not only upon respect for the investigatory and Private respondent Rosa S. Busuego (Rosa) filed a complaint for: (1)
prosecutory powers granted by the Constitution to the Office of Concubinage under Article 334 of the Revised Penal Code; (2) violation of
the Ombudsman but upon practicality as well. Otherwise, the Republic Act No. 9262 (Anti-Violence Against Women and Their Children); and
functions of the courts will be grievously hampered by (3) Grave Threats under Article 282 of the Revised Penal Code, before the Office
innumerable petitions assailing the dismissal of investigatory of the Ombudsman against her husband, Alfredo, with designation Chief of
proceedings conducted by the Office of the Ombudsman with Hospital, Davao Regional Hospital, Apokon, Tagum City.
regard to complaints filed before it, in much the same way that
the courts would be extremely swamped if they could be In her complaint, Rosa painted a picture of a marriage in disarray.
30

She and Alfredo were married on 12 July 1975 at the Assumption Church, Davao In October 2005, Rosa finally learned of Alfredo’s extra-marital relationships.
City. Their union was blessed with two (2) sons, Alfred and Robert, born in 1976 Robert, who was already living in Davao City, called Rosa to complain of
and 1978, respectively. Sometime in 1983, their marriage turned sour. At this Alfredo’s illicit affairs and shabby treatment of him. Rosa then rang up Alfredo
time, Rosa unearthed photographs of, and love letters addressed to Alfredo from, which, not surprisingly, resulted in an altercation. Robert executed an affidavit,
other women. Rosa confronted Alfredo who claimed ignorance of the existence corroborating his mother’s story and confirming his father’s illicit affairs:
of these letters and innocence of any wrongdoing.
1. In varying dates from July 1997 to January 1998, Robert found it
Purportedly, Alfredo very rarely stayed at home to spend time with his family. He strange that Sia slept with his father in the conjugal bedroom.
would come home late at night on weekdays and head early to work the next
day; his weekends were spent with his friends, instead of with his family. Rosa 2. He did not inform his mother of that odd arrangement as he did not
considered herself lucky if their family was able to spend a solid hour with want to bring trouble to their family.
Alfredo.
3. Eventually, Sia herself confirmed to Robert that she was Alfredo’s
Around this time, an opportunity to work as nurse in New York City, United States mistress.
of America (US) opened up for Rosa. Rosa informed Alfredo, who vehemently
opposed Rosa’s plan to work abroad. Nonetheless, Rosa completed the
4. During this period of concubinage, Sia was hospitalized and upon her
necessary requirements to work in the US and was scheduled to depart the discharge, she and Alfredo resumed their cohabitation.
Philippines in March 1985.
5. The relationship between Alfredo and Sia ended only when the latter
Before leaving, Rosa took up the matter again with Alfredo, who remained
found another boyfriend. 6. His father next took up an affair with Julie de
opposed to her working abroad. Furious with Rosa’s pressing, Alfredo took his
Leon (de Leon) whom Robert met when de Leon fetched Alfredo on one
loaded gun and pointed it at Rosa’s right temple, threatening and taunting Rosa occasion when their vehicle broke down in the middle of the road.
to attempt to leave him and their family. Alfredo was only staved off because
Rosa’s mother arrived at the couple’s house. Alfredo left the house in a rage:
Rosa and her mother heard gun shots fired outside. 7. Robert read various Short Message Service (SMS) exchanges
between Julie and Alfredo on Alfredo’s mobile phone.
Because of that incident, Rosa acted up to her plan and left for the US. While in
the US, Rosa became homesick and was subsequently joined by her children 8. On 23, 24, 30 and 31 December 2004, de Leon stayed in Rosa’s and
who were brought to the US by Alfredo. Rosa singularly reared them: Alfred, from Alfredo’s conjugal dwelling and stayed in the conjugal room the entire
grade school to university, while Robert, upon finishing high school, went back to nights thereof.
Davao City to study medicine and lived with Alfredo.
The househelpers, Melissa S. Diambangan and Liza S. Diambangan, likewise
During that time his entire family was in the US, Alfredo never sent financial executed a joint affidavit in support of Rosa’s allegations:
support. In fact, it was Rosa who would remit money to Alfredo from time to time,
believing that Alfredo had stopped womanizing. Rosa continued to spend her 1. They had seen Sia sleep and stay overnight with Alfredo in the
annual vacation in Davao City. conjugal bedroom.

Sometime in 1997, Rosa learned that a certain Emy Sia (Sia) was living at their 2. Sia herself, who called Alfredo "Papa," confirmed the two’s sexual
conjugal home. When Rosa asked Alfredo, the latter explained that Sia was a relationship.
nurse working at the Regional Hospital in Tagum who was in a sorry plight as
she was allegedly being raped by Rosa’s brother-in-law. To get her out of the 3. On 23, 24, 30 and 31 December 2004, de Leon stayed in the conjugal
situation, Alfredo allowed Sia to live in their house and sleep in the maids’ dwelling and slept overnight with Alfredo in the conjugal room.
quarters. At that time, Rosa gave Alfredo the benefit of the doubt.
31

As a result, Rosa and their other son Alfred forthwith flew to Davao City without Alfredo in Davao City. Those instances ought to be construed as
informing Alfredo of their impending return. Upon Rosa’s return, she gathered condonation of the concubinage.
and consolidated information on her husband’s sexual affairs.
8. Significantly, the alleged concubines, Sia and de Leon, were not
Pursuant to her charges of violation of Republic Act No. 9262 and Grave Threats, impleaded along with Alfredo as party-respondents in the complaint in
Rosa averred that during the course of their marriage, apart from the marital violation of Article 344 of the Revised Penal Code.
infidelity, Alfredo physically and verbally abused her and her family. On one
occasion after Rosa confirmed the affairs, Alfredo threatened their family, Alfredo made short shrift of Rosa’s charges of violation of Republic Act No. 9262
including other members of their household that he will gun them down should he and Grave Threats. He claimed that, at no time, did he threaten, the lives or, to
chance upon them in Tagum City. Lastly, on 22 March 2006, Alfredo purportedly harm his wife, their family and members of their household. He only berated the
dismissed house helper Liza Diambangan and threatened her. help for perpetrating gossip about his behavior and conduct.

As expected, Alfredo, in his counter-affidavit, denied all accusations against him In their subsequent exchange of responsive pleadings, Rosa maintained
and alleged that: Alfredo’s culpability, and naturally, Alfredo claimed innocence.

1. Rosa, despite his pleas for them to remain and raise their family in the In the course thereof, the procedural issue of Rosa’s failure to implead Sia and
Philippines, chose to live in the US, separate from him. de Leon as respondents cropped up. Alfredo insisted that Rosa’s complaint
ought to be dismissed for failure to implead his alleged concubines as
2. Rosa’s allegations that he had kept photographs of, and love letters respondents.
from, other women, were only made to create a cause of action for the
suit for Legal Separation which Rosa filed sometime in 1998. Specifically to dispose of that issue, the Ombudsman scheduled a clarificatory
hearing where both Rosa and Alfredo were represented by their respective
3. It was highly improbable that he committed acts of concubinage with counsels:
Sia and de Leon since from the time he became Chief of Hospital of the
Davao Regional Hospital in Tagum City, he practically stayed all days of x x x Rosa was apprised of the need to implead the two alleged mistresses in the
the work week in the hospital. The instances he went home were few complaint for Concubinage pursuant to Article 344 of the Revised Penal Code.
and far between, only to check on the house and provide for household Although Alfredo objected to the amendment of the complaint, at this point in
expenses. time, due to the alleged procedural lapse committed by Rosa, this Office
explained to the parties that the position of Alfredo would just prolong the
4. When Robert returned to Davao City and lived with him, it became conduct of the preliminary investigation since Rosa can just re-file her complaint.
more impossible for him to have shacked up with Sia and de Leon in the The doctrine of res judicata does not apply in the preliminary investigation stage.
conjugal dwelling. Hence, the counsel for Rosa was directed to submit to this Office the addresses
of the alleged mistresses so that they could be served with the Order directing
5. With respect to his alleged relationship with Sia, without admitting to them to file their counter-affidavits.
anything, that Sia, for a time, may have lived in his and Rosa’s conjugal
house, staying at the maids’ quarters. However, at no instance did he Rosa submitted an Ex-Parte Manifestation on the last known addresses of Julie
keep Sia as his mistress in the conjugal dwelling. de Leon and Emy Sia. x x x.3

6. As regards the dates of December 23, 24, 30 and 31, 2004 when he On 24 June 2008, the Ombudsman issued a Joint Order4 impleading Sia and de
supposedly stayed with de Leon in the conjugal room, Alfredo pointed Leon as party-respondents in the complaint for Concubinage and directing them
out that said dates were busiest days of the year in the hospital where to submit their respective counter-affidavits within a period of time. Copies of the
his presence as Chief of Hospital is most required. Joint Order were mailed to Sia’s and de Leon’s last known addresses, as
provided by Rosa to the Ombudsman.
7. By Rosa’s own admission, she first learned of Alfredo’s alleged
concubinage in 1997, and yet she still continued with her yearly visits to
32

Sia and de Leon did not submit their respective counter-affidavits: a copy of the and re-file this case since the doctrine of res judicata does not apply in the
Joint Order sent to Sia’s last known address was returned to the Ombudsman preliminary investigation stage of the proceedings.
with the notation on the Registry Return Receipt No. 1624 "Return to Sender;
removed," while a copy thereof to de Leon was received on 3 September 2008 On the second issue, the motion of Busuego to refer this case to the Office of the
by Ananias de Leon.5 City Prosecutor was belatedly filed. Record would show that the motion praying
for the referral of this case to the Office of the City Prosecutor was filed on 17
Apparently still opposed to the Ombudsman’s ruling to simply amend the July 2008, after the parties have already filed all their pleadings and the case is
complaint and implead therein Alfredo’s alleged mistresses, Alfredo filed his now ripe for resolution. Further, referral to the said office is not mandatory as
Comment to the 24 June 2008 Order with Motion to Dismiss and/or Refer the cited in the said Joint Circular.7
charges to the Appropriate Provincial/City Prosecutor 6 praying for dismissal of
the complaint for: (1) failure to implead the two mistresses in violation of Article In the same Resolution, the Ombudsman, ultimately, found probable cause to
344 of the Revised Penal Code; and in the alternative, (2) referral of the indict only Alfredo and Sia of Concubinage and directed the filing of an
complaint to the Office of the City Prosecutor as provided in OMB-DOJ Circular Information against them in the appropriate court:
No. 95-001.
WHEREFORE, in view of the foregoing, this Office finds a prima facie case for
Rosa filed a Reply to that latest pleading of Alfredo. violation of Article 334 of the Revised Penal Code (concubinage) and that
petitioner ALFREDO ROMULO BUSUEGO y ABRIO, and EMY SIA, are probably
On 17 April 2009, the Ombudsman issued the herein assailed Resolution, guilty thereof.
disposing of the procedural issues:
Let the herewith Information be filed in the appropriate court.
Before dwelling into the merits of the case, this Office finds an urgent need to
resolve the ancillary issues raised by petitioner Dr. Busuego on: 1.) the alleged The charges for: 1.) Concubinage against Alfredo Romulo Busuego y Abrio and
legal infirmity of Rosas’s initiatory pleading by resorting to a procedural short cut Julie de Leon; 2.) Grave Threats against Alfredo Romulo y Abrio; and 3.)
which would result to the delay in the disposition of this case; and 2.) the criminal violation of RA 9262 (Anti-Violence Against Women and Children Act), are
charges imputed are not in relation to office, hence, the Office of the hereby DISMISSED for lack of merit.8
Provincial/City Prosecutor shall investigate and prosecute this case pursuant to
OMB-DOJ Joint Circular No. 95-001, Series of 1995. Alfredo filed a Partial Motion for Reconsideration excepting to the Ombudsman’s
ruling on the automatic inclusion of Sia as respondent in the complaint and their
On the first issue, this Office observed that Busuego had already pointed out in indictment for the crime of Concubinage. Alfredo is adamant that Rosa’s
his counter-Affidavit the alleged deficiency in the complaint. Rosa also explained complaint should have, at the outset, impleaded his alleged concubines. Failing
in her Reply that the names of the mistresses were categorically mentioned in such, the Ombudsman cannot resort to automatic inclusion of party-respondents,
the complaint. She averred that this Office is empowered to investigate and erroneously finding him and Sia prima facie culpable for Concubinage. For good
prosecute any act or omission of a public official or employee to the exclusion of measure, Alfredo pointed out that from Rosa’s own allegations, she had
non-government employees. She stated that the inclusion of the alleged condoned or pardoned Alfredo’s supposed concubinage. Alfredo likewise
concubines in the Information to be filed in court is a matter of procedure, within submitted Liza S. Diambangan’s affidavit, recanting her previous affidavit
the competence of the investigating prosecutor. corroborating Rosa’s charges.

In order to clarify some matters, including the said issue, with the parties, the Nonetheless, the Ombudsman stood pat on its ruling, declared that the Partial
clarificatory hearing was conducted. It was explained in the said hearing the need Motion for Reconsideration was filed out of time, and gave scant attention to Liza
to implead the alleged concubines in this case pursuant to Article 344 of the S. Diambangan’s affidavit of recantation:
Revised Penal Code and to obviate the proceedings, Rosa was directed to
submit the addresses of the alleged concubines. Busuego’s position that the said WHEREFORE, all the foregoing considered, this instant Motion for
short cut procedure would delay the proceedings is misplaced. If the case will be Reconsideration is hereby DENIED. The findings in the questioned Resolution
dismissed based on procedural infirmity, Rosa could still amend her complaint
hereby remains undisturbed. Let the Information for Concubinage be filed in the
proper court against herein Busuego.9
33

Alfredo now comes to us on petition for certiorari alleging grave abuse of Art. 344. Prosecution of the crimes of adultery, concubinage, seduction,
discretion in the Ombudsman’s finding of probable cause to indict him and Sia for abduction, rape and acts of lasciviousness. — The crimes of adultery and
Concubinage. Alfredo’s badges of grave abuse of discretion are the following: concubinage shall not be prosecuted except upon a complaint filed by the
offended spouse.
1. The Ombudsman railroaded the inclusion of Sia and de Leon as party-
respondents in the complaint; The offended party cannot institute criminal prosecution without including both
the guilty parties, if they are both alive, nor, in any case, if he shall have
2. The Ombudsman did not refer the complaint to the Department of consented or pardoned the offenders.
Justice, considering that the offense of Concubinage is not committed in
relation to his office as Chief of Hospital; Section 5. Who must prosecute criminal action. – xxx.

3. The Ombudsman glossed over Rosa’s condonation of Alfredo’s The crimes of adultery and concubinage shall not be prosecuted except upon a
supposed Concubinage when she alleged in the complaint that she had complaint filed by the offended spouse. The offended party cannot institute
known of Alfredo’s womanizing and believed him to have changed his criminal prosecution without including the guilty parties, if both are alive, nor, in
ways; any case, if the offended party has consented to the offense or pardoned the
offenders.
4. The Ombudsman did not take into consideration the affidavit of
recantation of Liza Diambangan; and We do not agree.

5. The Ombudsman found probable cause to indict Alfredo and Sia for The submission of Alfredo is belied by the fact that the Ombudsman merely
Concubinage. followed the provisions of its Rules of Procedure. Thus:

We sustain the Ombudsman. Rule II


PROCEDURE IN CRIMINAL CASES
The Ombudsman has full discretionary authority in the determination of probable
cause during a preliminary investigation.10 This is the reason why judicial review xxxx
of the resolution of the Ombudsman in the exercise of its power and duty to
investigate and prosecute felonies and/or offenses of public officers is limited to a Section 2. Evaluation – Upon evaluating the complaint, the investigating officer
determination of whether there has been a grave abuse of discretion amounting shall recommend whether it may be:
to lack or excess of jurisdiction. Courts are not empowered to substitute their
judgment for that of the Ombudsman.11
a) dismissed outright for want of palpable merit;

By grave abuse of discretion is meant such capricious and whimsical exercise of


b) referred to respondent for comment;
judgment tantamount to lack of jurisdiction.12 The abuse of discretion must be so
patent and gross as to amount to an evasion of a positive duty or a virtual refusal
to perform a duty enjoined by law, or to act at all in contemplation of law, as c) indorsed to the proper government office or agency which has
where the power is exercised in an arbitrary and despotic manner by reason of jurisdiction over the case;
passion or hostility.13 In this regard, petitioner failed to demonstrate the
Ombudsman's abuse, much less grave abuse, of discretion. d) forwarded to the appropriate office or official for fact-finding
investigation;
First. Alfredo insists that the Ombudsman’s automatic inclusion, over his
vehement objections of Sia and de Leon as party-respondents, violates Article e) referred for administrative adjudication; or
344 of the Revised Penal Code and Section 5, Rule 110 of the Rules of Court,
which respectively provide: f) subjected to a preliminary investigation.
34

xxxx concerned who shall be required to answer the same in writing and
under oath.
Section 4. Procedure – The preliminary investigation of cases falling under the
jurisdiction of the Sandiganbayan and Regional Trial Courts shall be conducted g) Upon the termination of the preliminary investigation, the investigating
in the manner prescribed in Section 3, Rule 112 of the Rules of Court, subject to officer shall forward the records of the case together with his resolution
the following provisions: to the designated authorities for their appropriate action thereon.

a) x x x No information may be filed and no complaint may be dismissed without the


written authority or approval of the ombudsman in cases falling within the
b) After such affidavits have been secured, the investigating officer shall jurisdiction of the Sandiganbyan, or of the proper Deputy Ombudsman in all other
issue an order, attaching thereto a copy of the affidavits and other cases. (Emphasis supplied).
supporting documents, directing the respondents to submit, within ten
(10) days from receipt thereof, his counter-affidavits and controverting Notably, Rosa’s complaint contained not just the Concubinage charge, but other
evidence with proof of service thereof on the complainant. The charges: violation of Republic Act No. 9262 and Grave Threats. Upon the
complainant may file reply affidavits within ten (10) days after service of Ombudsman’s perusal, the complaint was supported by affidavits corroborating
the counter-affidavits. Rosa’s accusations. Thus, at that stage, the Ombudsman properly referred the
complaint to Alfredo for comment. Nonetheless, while the Ombudsman found no
c) If the respondents does not file a counter-affidavit, the investigating reason for outright dismissal, it deemed it fit to hold a clarificatory hearing to
officer may consider the comment filed by him, if any, as his answer to discuss the applicability of Article 344 of the Revised Penal Code, the issue
the complaint. In any event, the respondent shall have access to the having been insisted upon by Alfredo.
evidence on record.
Surely the procedural sequence of referral of the complaint to respondent for
d) No motion to dismiss shall be allowed except for lack of jurisdiction. comment and thereafter the holding of a clarificatory hearing is provided for in
paragraph b, Section 2 and paragraphs d and f, Section 4 of Rule II, which we
have at the outset underscored. Thus did the Ombudsman rule:
Neither may a motion for a bill of particulars be entertained.

In order to clarify some matters, including the said issue, with the parties, the
If respondent desires any matter in the complainant’s affidavit to be
clarificatory hearing was conducted. It was explained in the said hearing the need
clarified, the particularization thereof may be done at the time of the
to implead the alleged concubines in this case pursuant to Article 344 of the
clarificatory questioning in the manner provided in paragraph (f) of this
Revised Penal Code and to obviate the proceedings, Rosa was directed to
section.
submit the addresses of the alleged concubines. Busuego’s position that the said
short cut procedure would delay the proceedings is misplaced. If the case will be
e) If the respondents cannot be served with the order mentioned in dismissed based on procedural infirmity, Rosa could still amend her complaint
paragraph 6 hereof, or having been served, does not comply therewith, and re-file this case since the doctrine of res judicata does not apply in the
the complaint shall be deemed submitted for resolution on the basis of preliminary investigation stage of the proceedings.14
the evidence on the record.
The Ombudsman merely facilitated the amendment of the complaint to cure the
f) If, after the filing of the requisite affidavits and their supporting defect pointed out by Alfredo. We agree with the Ombudsman that it would be
evidences, there are facts material to the case which the investigating superfluous to dismiss the complaint when amendment thereof is allowed by its
officer may need to be clarified on, he may conduct a clarificatory Rules of Procedure15 and the Rules of Court.16
hearing during which the parties shall be afforded the opportunity to be
present but without the right to examine or cross-examine the witness
being questioned. Where the appearance of the parties or witnesses is Second. Alfredo claims that the Ombudsman should have referred Rosa’s
complaint to the Department of Justice (DOJ), since the crime of Concubinage is
impracticable, the clarificatory questioning may be conducted in writing,
not committed in relation to his being a public officer. This is not a new argument.
whereby the questions desired to be asked by the investigating officer or
a party shall be reduced into writing and served on the witness
35

The Ombudsman’s primary jurisdiction, albeit concurrent with the DOJ, to x--------------------------------------------------------------------------------------- x
conduct preliminary investigation of crimes involving public officers, without
regard to its commission in relation to office, had long been settled in Sen. In a recent dialogue between the OFFICE OF THE OMBUDSMAN and the
Honasan II v. The Panel of Investigating Prosecutors of DOJ, 17 and affirmed in DEPARTMENT OF JUSTICE, discussion centered around the latest
subsequent cases: pronouncement of the SUPREME COURT on the extent to which the
OMBUDSMAN may call upon the government prosecutors for assistance in the
The Constitution, Section 15 of the Ombudsman Act of 1989 and Section 4 of the investigation and prosecution of criminal cases cognizable by his office and the
Sandiganbayan Law, as amended, do not give to the Ombudsman exclusive conditions under which he may do so. Also discussed was Republic Act No. 7975
jurisdiction to investigate offenses committed by public officers or employees. otherwise known as "AN ACT TO STRENGTHEN THE FUNCTIONAL AND
The authority of the Ombudsman to investigate offenses involving public officers STRUCTURAL ORGANIZATION OF THE SANDIGANBAYAN, AMENDING FOR
or employees is concurrent with other government investigating agencies such THE PURPOSE PRESIDENTIAL DECREE NO. 1606, AS AMENDED" and its
as provincial, city and state prosecutors. However, the Ombudsman, in the implications on the jurisdiction of the office of the Ombudsman on criminal
exercise of its primary jurisdiction over cases cognizable by the Sandiganbayan, offenses committed by public officers and employees.
may take over, at any stage, from any investigating agency of the government,
the investigation of such cases. Concerns were expressed on unnecessary delays that could be caused by
discussions on jurisdiction between the OFFICE OF THE OMBUDSMAN and the
In other words, respondent DOJ Panel is not precluded from conducting any DEPARTMENT OF JUSTICE, and by procedural conflicts in the filing of
investigation of cases against public officers involving violations of penal laws but complaints against public officers and employees, the conduct of preliminary
if the cases fall under the exclusive jurisdiction of the Sandiganbayan, the investigations, the preparation of resolutions and informations, and the
respondent Ombudsman may, in the exercise of its primary jurisdiction take over prosecution of cases by provincial and city prosecutors and their assistants as
at any stage. DEPUTIZED PROSECUTORS OF THE OMBUDSMAN.

Thus, with the jurisprudential declarations that the Ombudsman and the DOJ Recognizing the concerns, the OFFICE OF THE OMBUDSMAN and the
have concurrent jurisdiction to conduct preliminary investigation, the respective DEPARTMENT OF JUSTICE, in a series of consultations, have agreed on the
heads of said offices came up with OMB-DOJ Joint Circular No. 95-001 for the following guidelines to be observed in the investigation and prosecution of cases
proper guidelines of their respective prosecutors in the conduct of their against public officers and employees:
investigations, to wit:
1. Preliminary investigation and prosecution of offenses committed by
OMB-DOJ JOINT CIRCULAR NO. 95-001 public officers and employees IN RELATION TO OFFICE whether
Series of 1995 cognizable by the SANDIGANBAYAN or the REGULAR COURTS, and
whether filed with the OFFICE OF THE OMBUDSMAN or with the
ALL GRAFT INVESTIGATION/SPECIAL PROSECUTIONOFFICERS OF THE OFFICE OF THE PROVINCIAL/CITY PROSECUTOR shall be under the
OFFICE OF THE OMBUDSMAN control and supervision of the office of the OMBUDSMAN.

TO: ALL REGIONAL STATE PROSECUTORS AND THEIR ASSISTANTS, 2. Unless the Ombudsman under its Constitutional mandate finds reason
PROVINCIAL/CITY PROSECUTORS AND THEIR ASSISTANTS, STATE to believe otherwise, offenses NOT IN RELATION TO OFFICE and
PROSECUTORS ANDPROSECUTING ATTORNEYS OF THE DEPARTMENT cognizable by the REGULAR COURTS shall be investigated and
OFJUSTICE. prosecuted by the OFFICE OF THE PROVINCIAL/CITY PROSECUTOR,
which shall rule thereon with finality.
SUBJECT: HANDLING COMPLAINTS FILED AGAINST PUBLICOFFICERS
AND EMPLOYEES, THE CONDUCT OFPRELIMINARY INVESTIGATION, 3. Preparation of criminal information shall be the responsibility of the
PREPARATION OFRESOLUTIONS AND INFORMATIONS AND investigating officer who conducted the preliminary investigation.
PROSECUTION OF CASES BY PROVINCIAL AND CITY PROSECUTORS AND Resolutions recommending prosecution together with the duly
THEIR ASSISTANTS. accomplished criminal informations shall be forwarded to the appropriate
approving authority.
36

4. Considering that the OFFICE OF THE OMBUDSMAN has jurisdiction Within five (5) days from his resolution, he shall forward the record of the case to
over public officers and employees and for effective monitoring of all the provincial or city prosecutor or chief state prosecutor, or to the Ombudsman
investigations and prosecutions of cases involving public officers and or his deputy in cases of offenses cognizable by the Sandiganbayan in the
employees, the OFFICE OF THE PROVINCIAL/CITY PROSECUTOR exercise of its original jurisdiction. They shall act on the resolution within ten (10)
shall submit to the OFFICE OF THE OMBUDSMAN a monthly list of days from their receipt thereof and shall immediately inform the parties of such
complaints filed with their respective offices against public officers and action.
employees.
No complaint or information may be filed or dismissed by an investigating
xxxx prosecutor without the prior written authority or approval of the provincial or city
prosecutor or chief state prosecutor or the Ombudsman or his deputy.
A close examination of the circular supports the view of the respondent
Ombudsman that it is just an internal agreement between the Ombudsman and Where the investigating prosecutor recommends the dismissal of the complaint
the DOJ. but his recommendation is disapproved by the provincial or city prosecutor or
chief state prosecutor or the Ombudsman or his deputy on the ground that a
Sections 2 and 4, Rule 112 of the Revised Rules on Criminal Procedure on probable cause exists, the latter may, by himself file the information against the
Preliminary Investigation, effective December 1, 2000, to wit: respondent, or direct another assistant prosecutor or state prosecutor to do so
without conducting another preliminary investigation.
SEC. 2. Officers authorized to conduct preliminary investigations –
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
The following may conduct preliminary investigations:
resolution of the provincial or city prosecutor or chief state prosecutor, he shall
direct the prosecutor concerned either to file the corresponding information
(a) Provincial or City Prosecutors and their assistants; without conducting another preliminary investigation, or to dismiss or move for
dismissal of the complaint or information with notice to the parties. The same
(b) Judges of the Municipal Trial Courts and Municipal Circuit Trial Rule shall apply in preliminary investigations conducted by the officers of the
Courts; Office of the Ombudsman.

(c) National and Regional State Prosecutors; and confirm the authority of the DOJ prosecutors to conduct preliminary investigation
of criminal complaints filed with them for offenses cognizable by the proper court
(d) Other officers as may be authorized by law. within their respective territorial jurisdictions, including those offenses which
come within the original jurisdiction of the Sandiganbayan; but with the
Their authority to conduct preliminary investigation shall include all crimes qualification that in offenses falling within the original jurisdiction of the
cognizable by the proper court in their respective territorial jurisdictions. Sandiganbayan, the prosecutor shall, after their investigation, transmit the
records and their resolutions to the Ombudsman or his deputy for appropriate
action. Also, the prosecutor cannot dismiss the complaint without the prior written
SEC. 4. Resolution of investigating prosecutor and its review. - If the
authority of the Ombudsman or his deputy, nor can the prosecutor file an
investigating prosecutor finds cause to hold the respondent for trial, he shall
Information with the Sandiganbayan without being deputized by, and without
prepare the resolution and information. He shall certify under oath in the
prior written authority of the Ombudsman or his deputy.
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 xxxx
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 To reiterate for emphasis, the power to investigate or conduct preliminary
submit controverting evidence. Otherwise, he shall recommend the dismissal of investigation on charges against any public officers or employees may be
the complaint. exercised by an investigator or by any provincial or city prosecutor or their
assistants, either in their regular capacities or as deputized Ombudsman
37

prosecutors. The fact that all prosecutors are in effect deputized Ombudsman A detailed examination of the testimony of the plaintiff-husband, especially those
prosecutors under the OMB-DOJ circular is a mere superfluity. The DOJ Panel portions quoted above, clearly shows that there was a condonation on the part of
need not be authorized nor deputized by the Ombudsman to conduct the the husband for the supposed ‘acts of rank infidelity amounting to adultery’
preliminary investigation for complaints filed with it because the DOJ’s authority committed by defendant-wife. Admitting for the sake of argument that the
to act as the principal law agency of the government and investigate the infidelities amounting to adultery were committed by the defendant, a
commission of crimes under the Revised Penal Code is derived from the Revised reconciliation was effected between her and the plaintiff. The act of the latter in
Administrative Code which had been held in the Natividad case citation omitted persuading her to come along with him, and the fact that she went with him and
as not being contrary to the Constitution. Thus, there is not even a need to consented to be brought to the house of his cousin Pedro Bugayong and
delegate the conduct of the preliminary investigation to an agency which has the together they slept there as husband and wife for one day and one night, and the
jurisdiction to do so in the first place. However, the Ombudsman may assert its further fact that in the second night they again slept together in their house
primary jurisdiction at any stage of the investigation. (Emphasis supplied). likewise as husband and wife — all these facts have no other meaning in the
opinion of this court than that a reconciliation between them was effected and
In Honasan II, although Senator Gregorio "Gringo" Honasan was a public officer that there was a condonation of the wife by the husband. The reconciliation
who was charged with coup d’etat for the occupation of Oakwood on 27 July occurred almost ten months after he came to know of the acts of infidelity
2003, the preliminary investigation therefor was conducted by the DOJ. Honasan amounting to adultery.
questioned the jurisdiction of the DOJ to do so, proferring that it was the
Ombudsman which had jurisdiction since the imputed acts were committed in In Shackleton vs. Shackleton, 48 N. J. Eq. 364; 21 Atl. 935, it has been held that
relation to his public office. We clarified that the DOJ and the Ombudsman have ‘condonation is implied from sexual intercourse after knowledge of the other
concurrent jurisdiction to investigate offenses involving public officers or infidelity. Such acts necessarily implied forgiveness. It is entirely consonant with
employees. Nonetheless, we pointed out that the Ombudsman, in the exercise of reason and justice that if the wife freely consents to sexual intercourse after she
its primary jurisdiction over cases cognizable by the Sandiganbayan, may take has full knowledge of the husband's guilt, her consent should operate as a
over, at any stage, from any investigating agency of the government, the pardon of his wrong.’
investigation of such cases. Plainly, applying that ruling in this case, the
Ombudsman has primary jurisdiction, albeit concurrent with the DOJ, over In Tiffany’s Domestic and Family Relations, section 107 says:
Rosa’s complaint, and after choosing to exercise such jurisdiction, need not defer
to the dictates of a respondent in a complaint, such as Alfredo. In other words,
‘Condonation. Is the forgiveness of a marital offense constituting a ground for
the Ombudsman may exercise jurisdiction to the exclusion of the DOJ.
divorce and bars the right to a divorce. But it is on the condition, implied by the
law when not express, that the wrongdoer shall not again commit the offense;
Third. Alfredo next argues that Rosa had pardoned his concubinage, having and also that he shall thereafter treat the other spouse with conjugal kindness. A
admitted to knowing of his womanizing and yet continuing with their relationship breach of the condition will revive the original offense as a ground for divorce.
as demonstrated in Rosa’s annual visits to him in Davao City. Condonation may be express or implied.’

We are not convinced. It has been held in a long line of decisions of the various supreme courts of the
different states of the U. S. that 'a single voluntary act of sexual intercourse by
Old jurisprudence has held that the cynosure in the question of whether the wife the innocent spouse after discovery of the offense is ordinarily sufficient to
condoned the concubinage lies in the wife’s "line of conduct under the constitute condonation, especially as against the husband'. (27 Corpus Juris
assumption that she really believed [her husband] guilty of concubinage:" Secundum, section 61 and cases cited therein).

Condonation is the forgiveness of a marital offense constituting a ground for legal In the lights of the facts testified to by the plaintiff-husband, of the legal provisions
separation or, as stated in I Bouver's Law Dictionary, p. 585, condonation is the above quoted, and of the various decisions above-cited, the inevitable conclusion
‘conditional forgiveness or remission, by a husband or wife of a matrimonial is that the present action is untenable.
offense which the latter has committed.’
Although no acts of infidelity might have been committed by the wife, We agree
xxxx with the trial judge that the conduct of the plaintiff-husband above narrated
despite his belief that his wife was unfaithful, deprives him, as alleged the
38

offended spouse, of any action for legal separation against the offending wife, contradictory statement x x x not that a previous statement is presumed to be
because his said conduct comes within the restriction of Article 100 of the Civil false merely because a witness now says that the same is not true. The
Code. jurisprudence of this Court has always been otherwise, i.e., that contradictory
testimony given subsequently does not necessarily discredit the previous
The only general rule in American jurisprudence is that any cohabitation with the testimony if the contradictions are satisfactorily explained. [Citations omitted].
guilty party, after the commission of the offense, and with the knowledge or belief
on the part of the injured party of its commission, will amount to conclusive Indeed, it is a dangerous rule to set aside a testimony which has been solemnly
evidence of condonation; but this presumption may be rebutted by evidence (60 taken before a court of justice in an open and free trial and under conditions
L. J. Prob. 73).18 precisely sought to discourage and forestall falsehood simply because one of the
witnesses who had given the testimony later on changed his mind. Such a rule
Although the foregoing speaks of condonation of concubinage as a ground for will make solemn trials a mockery and place the investigation of the truth at the
legal separation, the holding therein applies with equal force in a prosecution for mercy of unscrupulous witnesses. Unless there be special circumstances which,
concubinage as a felony. Indeed, Rosa’s admission was that she believed her coupled with the retraction of the witness, really raise doubt as to the truth of the
husband had stopped womanizing, not that she had knowledge of Alfredo’s testimony given by him at the trial and accepted by the trial judge, and only if
specific acts of concubinage with Sia and de Leon, specifically keeping them in such testimony is essential to the judgment of conviction, or its elimination would
the conjugal dwelling. This admission set against the specific acts of lead the trial judge to a different conclusion, an acquittal of the accused based on
concubinage listed in Article 33419 of the Revised Penal Code does not amount such a retraction would not be justified.22
to condonation. Their continued cohabitation as husband and wife construed
from Rosa’s annual visits to Davao City is not acquiescence to Alfredo’s relations In this case, Liza S. Diambangan’s testimony merely corroborates the still
with his concubines. On that score, we have succinctly held: standing story of Robert and Melissa Diambangan, the other helper in the
Busuego household. Clearly, the two’s consistent story may still be the basis of
We can find nothing in the record which can be construed as pardon or the Ombudsman’s finding of a prima facie case of concubinage against Alfredo
condonation. It is true that the offended party has to a considerable extent been and Sia.
patient with her husband's shortcomings, but that seems to have been due to his
promises of improvement; nowhere does it appear that she has consented to her Finally. Despite his vigorous arguments, Alfredo claims that there is simply no
husband's immorality or that she has acquiesced in his relations with his basis for indicting him and Sia for concubinage.
concubine.20
Article 334 of the Revised Penal Code lists three (3) specific acts of concubinage
Fourth. Alfredo next grasps at Liza S. Diambangan’s affidavit of recantation to by a husband:
eliminate his probable culpability for concubinage.
(1) keeping a mistress in the conjugal dwelling; (2) sexual intercourse, under
Again, we are not swayed by Alfredo’s asseverations. scandalous circumstances, with a woman who is not his wife; and (3) cohabiting
with a woman who is not his wife in any other place.
We have generally looked with disfavor upon retraction of testimonies previously
given in court. Affidavits of recantation are unreliable and deserve scant The Ombudsman found a prima facie case against Alfredo and Sia based on the
consideration. The asserted motives for the repudiation are commonly held testimony of Robert, Melissa S. Diambangan and Liza S. Diambangan that
suspect, and the veracity of the statements made in the affidavit of repudiation Alfredo had kept Sia in the conjugal dwelling where Sia even stayed at the
are frequently and deservedly subject to serious doubt.21 conjugal room. We completely agree with the Ombudsman’s disquisition:

In Firaza v. People, we intoned: x x x. It is ingrained in human behavior that a child has love, respect and loyalty
to his family and would strive to keep the family harmonious and united. This is
Merely because a witness says that what he had declared is false and that what the very reason why Robert did not inform his mother about his father’s
he now says is true, is not sufficient ground for concluding that the previous infidelities during the time when his father was keeping his mistress at the
testimony is false. No such reasoning has ever crystallized into a rule of conjugal dwelling. A son would never turn against his father by fabricating such a
credibility. The rule is that a witness may be impeached by a previous serious story which will cause his home to crumble, if such is not true. His natural
39

instinct is to protect his home, which he did when he kept silent for a long time. BENJAMIN S. ABALOS, SR., Petitioner,
What broke the camel’s back was the abusive treatment he allegedly suffered vs.
and the thought that things would change for the better if his mom would HON. LEILA DE LIMA, in capacity as Secretary of Justice; HON. SIXTO S.
intervene. BRILLANTES, JR., in his capacity as COMELEC Chairperson; RENE V.
SARMIENTO, LUCENITO N. TAGLE, ARMANDO V. VELASCO, ELIAS R.
The story of Robert in his Affidavit was reinforced by the two house helpers YUSOPH, CHRISTIAN ROBERT S. LIM AND AUGUSTO C. LAGMAN, in their
Melissa S. Diambangan and Liza S. Diambangan, who were employed by the capacity as COMELEC COMMISSIONERS; CLARO A. ARELLANO, GEORGE
family. Melissa was with the Busuego family in their conjugal home in 1997. She C. DEE, JACINTO G. ANG, ROMEO B. FORTES AND MICHAEL D.
left the family in 2005 but returned in 2006.1âwphi1 Liza started working with the VILLARET, in their capacity as CHAIRPERSON AND MEMBERS,
family in 2002. Melissa revealed that it was Emy Sia who recruited her to work RESPECTIVELY, OF THE JOINT DOJ-COMELEC PRELIMINARY
with the Busuego family. They both attested to the fact that Alfredo and Emy Sia INVESTIGATION COMMITTEE ON THE 2004 AND 2007 ELECTION
slept together in the bedroom of Alfredo but Emy Sia would sleep in the maid’s FRAUD, Respondents.
quarter when Rosa and Alfred came home for a visit in 1997. They recalled that
Emy Sia calls Alfredo "papa". They narrated that Emy Sia would even confide to x-----------------------x
them some private matters relating to her sexual proclivities with Alfredo.23
G.R. No. 199118
We further note that the presence of Sia at the Busuego household and her
interim residence thereat was not disputed nor explained. Alfredo just cavalierly GLORIA MACAPAGAL-ARROYO, Petitioner,
declares that Sia may have stayed in the conjugal dwelling, but never as his vs.
mistress, and Sia supposedly slept in the maids’ quarters. COMMISSION ON ELECTIONS, represented by Chairperson Sixto S.
Brillantes, Jr., DEPARTMENT OF JUSTICE, represented by Secretary Leila
While such a claim is not necessarily preposterous we hold that such is a matter M. De Lima, JOINT DOJ-COMELEC PRELIMINARY INVESTIGATION
of defense which Alfredo should raise in court given that Rosa s complaint and its COMMITTEE, SENATOR AQUILINO M. PIMENTEL III, and DOJ-COMELEC
accompanying affidavits have created a prima facie case for Concubinage FACT FINDING TEAM, Respondents.
against Alfredo and Sia.
RESOLUTION
WHEREFORE the petition is DISMISSED The Resolutions of the Ombudsman
dated 17 April 2009 and 11 October 2010 are AFFIRMED. PERALTA, J.:

SO ORDERED. For resolution are the separate motions for reconsideration filed by movants
Gloria Macapagal Arroyo (GMA)1 in G.R. No. 199118 and Jose Miguel T. Arroyo
G.R. No. 199082 July 23, 2013 (Mike Arroyo )2 in G.R. No. 199082 praying that the Court take a second look at
our September 18, 2012 Decision3 dismissing their petitions and supplemental
JOSE MIGUEL T. ARROYO, Petitioner, petitions against respondents Commission on Elections (Comelec), the
vs. Department of Justice (DOJ), Senator Aquilino M. Pimentel III (Senator
DEPARTMENT OF JUSTICE; COMMISSION ON ELECTIONS; HON. LEILA Pimentel), Joint DOJ-Comelec Preliminary Investigation Committee (Joint
DE LIMA, in her capacity as Secretary of the Department of Justice; HON. Committee) and DOJ-Comelec Fact-Finding Team (Fact-Finding Team), et al.
SIXTO BRILLANTES, JR., in his capacity as Chairperson of the
Commission on Elections; and the JOINT DOJ-COMELEC PRELIMINARY For a better perspective, we briefly state the relevant factual and procedural
INVESTIGATION COMMITTEE and FACT-FINDING TEAM, Respondents. antecedents as found by the Court in the assailed decision, to wit:

x-----------------------x On August 15, 2011, the Comelec and the DOJ issued Joint Order No. 001-2011
creating and constituting a Joint Committee and Fact-Finding Team (referred to
G.R. No. 199085 as Joint Panel) on the 2004 and 2007 National Elections electoral fraud and
manipulation cases. The Joint Committee was mandated to conduct the
40

necessary preliminary investigation on the basis of the evidence gathered and In an Order18 dated November 15, 2011, the Joint Committee denied the
the charges recommended by the Fact-Finding Team. The Fact-Finding Team, aforesaid motions of petitioners. GMA, subsequently, filed a motion for
on the other hand, was created for the purpose of gathering real, documentary, reconsideration.19
and testimonial evidence which can be utilized in the preliminary investigation to
be conducted by the Joint Committee. Pursuant to Section 74 of the Joint Order, On November 16, 2011, the Joint Committee promulgated a Joint Resolution
on August 23, 2011, the Joint Committee promulgated its Rules of Procedure. which was later indorsed to the Comelec.20 On November 18, 2011, the Comelec
en banc issued a Resolution21 approving and adopting the Joint Resolution
In its Initial Report5 dated October 20, 2011, the Fact-Finding Team concluded subject to modifications. The Comelec resolved, among others, that an
that manipulation of the results in the May 14, 2007 senatorial elections in the information for electoral sabotage be filed against GMA and Abalos, while the
provinces of North and South Cotabato, and Maguindanao was indeed charges against Mike Arroyo be dismissed for insufficiency of evidence.
perpetrated.6 The Fact-Finding Team recommended, among others, that
petitioner Benjamin S. Abalos, Sr. (Abalos) be subjected to preliminary On even date, pursuant to the above Resolution, the Comelec’s Law Department
investigation for electoral sabotage for conspiring to manipulate the election filed with the Regional Trial Court (RTC), Pasay City, an Information against
results in North and South Cotabato; that GMA and Abalos be subjected to petitioner GMA, Governor Andal Ampatuan, Sr., and Atty. Lintang H. Bedol, for
another preliminary investigation for manipulating the election results in violation of Section 42(b)(3) of Republic Act (RA) No. 9369, amending Section 27
Maguindanao;7 and, that Mike Arroyo be subjected to further investigation.8 The (b) of RA 6646, docketed as Criminal Case No. RPSY-11-04432-CR.22 The case
case was docketed as DOJ-Comelec Case No. 001-2011. was raffled to Branch 112 and the corresponding Warrant of Arrest was issued
which was served on GMA on the same day.23
Meanwhile, on October 17, 2011, Senator Pimentel filed a ComplaintAffidavit9 for
Electoral Sabotage against petitioners and twelve others, and several John Does On November 18, 2011, GMA filed with the RTC an Urgent Omnibus Motion Ad
and Jane Does. The case was docketed as DOJ-Comelec Case No. 002-2011. Cautelam24 with leave to allow the Joint Committee to resolve the motion for
reconsideration filed by GMA, to defer issuance of a warrant of arrest and a hold
On October 24, 2011, the Joint Committee issued two subpoenas against departure order, and to proceed to judicial determination of probable cause. She,
petitioners in DOJ-Comelec Case Nos. 001-2011 and 002-2011.10 On November likewise, filed with the Comelec a Motion to Vacate Ad Cautelam 25 praying that
3, 2011, petitioners, through counsel, appeared before the Joint Committee 11 and its Resolution be vacated for being null and void. The RTC, nonetheless, issued
respondents therein were ordered to submit their Counter-Affidavits by a Warrant for her arrest which was duly served. GMA was later arraigned and
November 14, 2011.12 she entered a plea of "not guilty." She was, for some time, on hospital arrest but
was able to obtain temporary liberty when her motion for bail was granted. At
Thereafter, petitioners filed before the Court separate Petitions for Certiorari and present, she is again on hospital arrest by virtue of a warrant issued in another
Prohibition with Prayer for the Issuance of a Temporary Restraining Order (TRO) criminal case.
and/or Writ of Preliminary Injunction assailing the creation of the Joint
Panel.13 The petitions were eventually consolidated. On September 18, 2012, the Court rendered the assailed Decision, the
dispositive portion of which reads:
On November 14, 2011, Mike Arroyo filed a Motion to Defer
Proceedings14 before the Joint Committee, in view of the pendency of his petition WHEREFORE, premises considered, the petitions and supplemental petitions
before the Court. On the same day, GMA filed before the Joint Committee an are DISMISSED. Comelec Resolution No. 9266 dated August 2, 2011, Joint
Omnibus Motion Ad Cautelam 15 to require Senator Pimentel to furnish her with Order No. 001-2011 dated August 15, 2011, and the Fact- Finding Team’s Initial
documents referred to in his complaint-affidavit and for the production of election Report dated October 20, 2011, are declared VALID. However, the Rules of
documents as basis for the charge of electoral sabotage. GMA prayed that she Procedure on the Conduct of Preliminary Investigation on the Alleged Election
be allowed to file her counter-affidavit within ten (10) days from receipt of the Fraud in the 2004 and 2007 National Elections is declared INEFFECTIVE for lack
requested documents.16 Petitioner Abalos, for his part, filed a Motion to Suspend of publication.
Proceedings (Ex Abundante Ad Cautelam),17 in view of the pendency of his
petition brought before the Court. In view of the constitutionality of the Joint Panel and the proceedings having
been conducted in accordance with Rule 112 of the Rules on Criminal Procedure
41

and Rule 34 of the Comelec Rules of Procedure, the conduct of the preliminary respondents maintain that no rights were violated as GMA was afforded the
investigation is hereby declared VALID. opportunity to defend herself, submit her counter-affidavit and other
countervailing evidence.36 They, thus, consider GMA’s claim of availing of the
Let the proceedings in the Regional Trial Court of Pasay City, Branch 112, where remedial measures as "delaying tactics" employed to thwart the investigation of
the criminal cases for electoral sabotage against petitioners GMA and Abalos are charges against her by the Joint Committee.37
pending, proceed with dispatch.
The Court’s Ruling
SO ORDERED.26
Clearly from the above discussion, movants raise issues that have been
Hence, these motions for reconsideration. thoroughly explained by the Court in the assailed decision. The issues were all
addressed and the explanation was exhaustive, thus, we find no reason to
Issues disturb the Court’s conclusions.

At any rate, if only to address the motions of the movants herein and to put an
Mike Arroyo reiterates his arguments on the independence of the Comelec as
end to the questions attached to the creation of the Joint Panel and,
basis in nullifying the subject joint DOJ-Comelec resolutions. Echoing Justice
Arturo Brion in his Dissenting and Concurring Opinion, 27 Mike Arroyo insists that consequently, to the performance of their assigned tasks, we hereby reiterate our
the creation of the Joint Panel undermines the decisional independence of the findings and conclusions made in the assailed decision.
Comelec.28
This is not the first time that the Court is confronted with the issue of whether the
Comelec has the exclusive power to investigate and prosecute cases of
Mike Arroyo also maintains that the DOJ should conduct preliminary investigation
only when deputized by the Comelec but not exercise concurrent violations of election laws. In Barangay Association for National Advancement
and Transparency (BANAT) Party-List v. Commission on Elections,38 the
jurisdiction.29 Finally, as has been repeatedly pointed out in his earlier pleadings
constitutionality of Section 4339 of RA 936940 had already been raised by
before the Court, Mike Arroyo claims that the proceedings involving the electoral
petitioners therein and addressed by the Court. While recognizing the Comelec’s
sabotage case were rushed because of pressures from the executive branch of
exclusive power to investigate and prosecute cases under Batas Pambansa
the government.30
Bilang 881 or the Omnibus Election Code, the Court pointed out that the framers
of the 1987 Constitution did not have such intention. This exclusivity is thus a
For her part, GMA claims that in availing of the procedural remedies available, legislative enactment that can very well be amended by Section 43 of RA 9369.
she merely exercised her earnest efforts to defend herself and should not have Therefore, under the present law, the Comelec and other prosecuting arms of the
been deemed by the Court as acts which purportedly tend to demonstrate that government, such as the DOJ, now exercise concurrent jurisdiction in the
she either waived or forfeited her right to submit her counter-affidavit and investigation and prosecution of election offenses.
countervailing evidence.31 Citing several cases decided by the Court, she
likewise faults the Court in not upholding her right to ask for additional time within
Indeed, as aptly pointed out by GMA, there is a discrepancy between Comelec
which to submit her counter-affidavit and countervailing evidence.32 GMA
Resolution No. 346741 dated January 12, 2001 and Joint Order No. 001-2011,
highlights that the subject Comelec Resolution creating the Joint Panel is
dated August 15, 2011, creating and constituting a Joint Committee and Fact-
different from the previous Comelec resolutions requesting the DOJ Secretary to
Finding Team on the 2004 and 2007 National Elections electoral fraud and
assign prosecutors to assist the Comelec, as the latter emphasize the role of the
DOJ as deputized agency in the conduct of preliminary investigation. She manipulation cases. However, GMA seemed to miss the date when these two
maintains that it is the Comelec and not the Joint Committee that has the resolutions were promulgated by the Comelec. It is noteworthy that Comelec
Resolution No. 3467 was issued when Section 265 of the Omnibus Election
primary, if not exclusive, authority to conduct preliminary investigation of election
Code was still effective, while Joint Order No. 001-2011 as well as Comelec
cases.33
Resolution Nos. 873342 and 905743 mentioned in the assailed decision but
missed out by GMA in her motion, were issued during the effectivity of Section 43
In their Consolidated Comment,34 respondents defend the creation of the Joint of RA 9369, giving the Comelec and other prosecuting arms of the government
Committee and argue that it does not undermine the independence of the the concurrent jurisdiction to investigate and prosecute election offenses. This
Comelec as a constitutional body because it is still the Comelec that ultimately amendment paved the way for the discrepancy. In Comelec Resolution No. 3467,
determines probable cause.35 As to the conduct of the preliminary investigation,
42

the Comelec maintained the continuing deputation of prosecutors and the Notwithstanding the grant of concurrent jurisdiction, the Comelec and the DOJ
Comelec Law Department was tasked to supervise the investigatory and nevertheless included a provision in the assailed Joint Order whereby the
prosecutory functions of the task force pursuant to the mandate of the Omnibus resolutions of the Joint Committee finding probable cause for election offenses
Election Code. However, with the amendment, the Comelec likewise changed shall still be approved by the Comelec in accordance with the Comelec Rules of
the tenor of the later resolutions to reflect the new mandate of the Comelec and Procedure.45 With more reason, therefore, that we cannot consider the creation
other prosecuting arms of the government now exercising concurrent jurisdiction. of the Joint Committee as an abdication of the Comelec’s independence
Thus, the Comelec Law Department and the Office of the Chief State Prosecutor enshrined in the 1987 Constitution.
of the DOJ were tasked to jointly supervise the investigatory and prosecutory
functions of the Comelec-DOJ Task Force. Considering, therefore, that the later Finally, we focus on the validity of the preliminary investigation conducted by the
resolutions, including Joint Order No. 001-2011, were issued pursuant to Section Joint Committee.
43 of RA 9369 amending Section 265 of BP 881 which was declared
"constitutional" in Banat, there is no reason for us to declare otherwise. To
The procedure in conducting the preliminary investigation is governed by Rule
maintain the previous role of other prosecuting arms of the government as mere 112 of the Revised Rules on Criminal Procedure and Rule 34 of the Comelec
deputies despite the amendment would mean challenging Section 43 of RA 9369 Rules of Procedure. Under both Rules,46 the respondent shall submit his counter-
anew which has already been settled in Banat.
affidavit and that of his witnesses and other supporting documents relied upon for
his defense, within ten (10) days from receipt of the subpoena, with the complaint
To be sure, the creation of a Joint Committee is not repugnant to the concept of and supporting affidavits and documents.47Also in both Rules, respondent is
"concurrent jurisdiction" authorized by the amendatory law. As we explained in given the right to examine evidence, but such right of examination is limited only
our September 18, 2012 Decision: to the documents or evidence submitted by complainants which she may not
have been furnished and to copy them at her expense. 48
x x x The doctrine of concurrent jurisdiction means equal jurisdiction to deal with
the same subject matter. Contrary to the contention of the petitioners, there is no As to the alleged denial of GMA’s right to examine documents, we maintain that
prohibition on simultaneous exercise of power between two coordinate bodies. no right was violated in view of the limitation of such right as set forth above. We
What is prohibited is the situation where one files a complaint against a reiterate our explanation in the assailed decision, to wit:
respondent initially with one office (such as the Comelec) for preliminary
investigation which was immediately acted upon by said office and the re-filing of
While it is true that Senator Pimentel referred to certain election documents
substantially the same complaint with another office (such as the DOJ). The
which served as bases in the allegations of significant findings specific to the
subsequent assumption of jurisdiction by the second office over the cases filed protested municipalities involved, there were no annexes or attachments to the
will not be allowed. Indeed, it is a settled rule that the body or agency that first complaint filed. As stated in the Joint Committee’s Order dated November 15,
takes cognizance of the complaint shall exercise jurisdiction to the exclusion of
2011 denying GMA’s Omnibus Motion Ad Cautelam, Senator Pimentel was
the others.
ordered to furnish petitioners with all the supporting evidence. However, Senator
Pimentel manifested that he was adopting all the affidavits attached to the Fact-
xxxx Finding Team’s Initial Report. Therefore, when GMA was furnished with the
documents attached to the Initial Report, she was already granted the right to
None of these problems would likely arise in the present case. The Comelec and examine as guaranteed by the Comelec Rules of Procedure and the Rules on
the DOJ themselves agreed that they would exercise their concurrent jurisdiction Criminal Procedure. Those were the only documents submitted by the
jointly. Although the preliminary investigation was conducted on the basis of two complainants to the Committee. If there are other documents that were referred
complaints – the initial report of the Fact-Finding Team and the complaint of to in Senator Pimentel’s complaint but were not submitted to the Joint
Senator Pimentel – both complaints were filed with the Joint Committee. Committee, the latter considered those documents unnecessary at that point
Consequently, the complaints were filed with and the preliminary investigation (without foreclosing the relevance of other evidence that may later be presented
was conducted by only one investigative body. Thus, we find no reason to during the trial) as the evidence submitted before it were considered adequate to
disallow the exercise of concurrent jurisdiction jointly by those given such find probable cause against her. x x x491âwphi1
authority. This is especially true in this case given the magnitude of the crimes
allegedly committed by petitioners. The joint preliminary investigation also serves Neither was GMA’s right violated when her motion for extension of time within
to maximize the resources and manpower of both the Comelec and the DOJ for which to submit her counter-affidavit and countervailing evidence was
the prompt disposition of the cases.44
43

consequently denied. The Rules use the term "shall" in requiring the respondent case to the Comelec. The latter, in turn, performed its task and filed the
to submit counter-affidavit and other countervailing evidence within ten (10) days information in court. Indeed, petitioners were given the opportunity to be heard.
from receipt of the subpoena. It is settled that the use of the word "shall" which is They even actively participated in the proceedings and in fact filed several
a word of command, underscores the mandatory character of the rule.50 As in motions before the Joint Committee. Consistent with the constitutional mandate
any other rule, though, liberality in the application may be allowed provided that of speedy disposition of cases, unnecessary delays should be avoided. 52
the party is able to present a compelling justification for the non-observance of
the mandatory rules. In the 2008 Revised Manual for Prosecutors, investigating Finally, in our assailed decision, we already took judicial notice that not only did
prosecutors allow or grant motions or requests for extension of time to submit GMA enter a plea of "not guilty," she also filed a Motion for Bail and after due
counter-affidavits when the interest of justice demands that respondent be given hearing, it was granted. Apparently, she benefited from the RTC Order giving her
reasonable time or sufficient opportunity to engage the services of counsel; temporary liberty. In filing the motion before the RTC and actively participating
examine voluminous records submitted in support of the complaint or undertake therein, she has chosen to seek judicial remedy before the RTC where the
research on novel, complicated or technical questions or issues of law and facts electoral sabotage case is pending instead of the executive remedy of going
of the case.51 back to the Joint Committee for the submission of her counter-affidavit and
countervailing evidence. Besides, as thoroughly discussed in the assailed
In this case, GMA claimed that she could not submit her counteraffidavit within decision, the irregularity or even the absence of preliminary investigation does
the prescribed period because she needed to examine documents mentioned in not impair the validity of the information filed against her.
Senator Pimentel’s complaint-affidavit. It appeared, however, that said
documents were not submitted to the Joint Committee and the only supporting WHEREFORE, premises considered, the Motions for Reconsideration are
documents available were those attached to the Initial Report of the Fact-Finding DENIED for lack of merit.
Team. Admittedly, GMA was furnished those documents. Thus, at the time she
asked for the extension of time within which to file her counter-affidavit, she very
SO ORDERED.
well knew that the documents she was asking were not in the record of the case.
Obviously, she was not furnished those documents because they were not
submitted to the Joint Committee. Logically, she has no right to examine said DIOSDADO M. PERALTA
documents. We cannot, therefore, fault the Joint Committee in consequently Associate Justice
denying her motion for extension to file counter-affidavit as there was no
compelling justification for the non-observance of the period she was earlier G.R. No. 176033, March 11, 2015
required to follow.
FELILIBETH AGUINALDO AND BENJAMIN
And as we held in the assailed decision: PEREZ, Petitioners, v. REYNALDO P. VENTUS AND JOJO B.
JOSON, Respondent.
There might have been overzealousness on the part of the Joint Committee in
terminating the investigation, endorsing the Joint Resolution to the Comelec for DECISION
approval, and in filing the information in court.
PERALTA, J.:
However, speed in the conduct of proceedings by a judicial or quasijudicial officer
cannot per se be instantly attributed to an injudicious performance of functions. Before the Court is a Petition for Review on Certiorari under Rule 45 of the Rules
The orderly administration of justice remains the paramount consideration with of Court, seeking to nullify and set aside the Decision1 dated August 11, 2006 of
particular regard to the peculiar circumstances of each case. To be sure, the Court of Appeals (CA) and its December 4, 2006 Resolution2 in CA-G.R. SP
petitioners were given the opportunity to present countervailing evidence. Instead No. 92094. The CA dismissed for lack of merit the Petition for Certiorari under
of complying with the Joint Committee’s directive, several motions were filed but Rule 65 filed by petitioners Felilibeth Aguinaldo and Benjamin Perez, praying for
were denied by the Joint Committee. Consequently, petitioners’ right to submit the following reliefs: (1) the issuance of a Writ of Preliminary Injunction and/or
counter-affidavit and countervailing evidence was forfeited. Taking into account Temporary Restraining Order to enjoin the public respondent Judge Felixberto T.
the constitutional right to speedy disposition of cases and following the Olalia from implementing the Orders dated May 16, 2005 and August 23, 2005;
procedures set forth in the Rules on Criminal Procedure and the Comelec Rules (2) the issuance of a Writ ofCertiorari to annul the said Orders, and (3) the
of Procedure, the Joint Committee finally reached its conclusion and referred the dismissal of the estafa case against them for having been prematurely filed and
44

for lack of cause of action. Recall or Quash Warrants of Arrest,10 alleging that the Resolution dated February
25, 2003 has not yet attained finality, and that they intended to file a motion for
The procedural antecedents are as follows: reconsideration.

On December 2, 2002, private respondents Reynaldo P. Ventus and Jojo B. On August 4, 2003, petitioners jointly filed with the OCP of Manila their “Motion
Joson filed a Complaint-Affidavit3 for estafa against petitioners Aguinaldo and for Reconsideration and Motion for the Withdrawal of the Information Prematurely
Perez before the Office of the City Prosecutor (OCP) of Manila. Claiming to be Filed With the Regional Trial Court, Branch 8, City of Manila.”11 Citing the
business partners in financing casino players, private respondents alleged that Counter-Affidavit and Rejoinder-Affidavit of Perez, Aguinaldo asserted, among
sometime in March and April 2002, petitioners connived in convincing them to others, that no deceit or false pretenses was committed because private
part with their Two Hundred Sixty Thousand (P260,000.00) Pesos in respondents were fully aware that she does not own the pledged motor vehicles.
consideration of a pledge of two motor vehicles which the latter had
misrepresented to be owned by Aguinaldo, but turned out to be owned by one On August 6, 2003, the public respondent issued an Order 12 granting the motion
Levita De Castro, manager/operator of LEDC Rent-A-Car. for withdrawal of information, and directing the recall of the arrest warrant only
insofar as Aguinaldo was concerned, pending resolution of her motion for
On January 15, 2003, Perez filed his Counter-Affidavit,4 denying the accusation reconsideration with the OCP.
against him, and claiming that his only participation in the transaction between
private respondents and Aguinaldo was limited to having initially introduced them On August 9, 2003, petitioners filed an Urgent Motion for Cancellation of
to each other. Arraignment, pending resolution of their motion for reconsideration filed with the
OCP of Manila. Upon the prosecution's motion,13 the public respondent ordered
On January 22, 2003, private respondents filed their Reply-Affidavit,5 asserting the proceedings to be deferred until the resolution of petitioners' motion for
that Perez was the one who showed them photocopies of the registration paper reconsideration.14
of the motor vehicles in the name of Aguinaldo, as well as the one who
personally took them out from the rent-a-car company. On December 23, 2003, the public respondent ordered the case archived
pending resolution of petitioners' motion for reconsideration with the OCP of
On January 29, 2003, Perez filed his Rejoinder-Affidavit,6 stating that neither Manila.15
original nor photocopies of the registration was required by private respondents
to be submitted to them because from the very start, they were informed by On January 16, 2004, the OCP of Manila, through ACP Antonio M. Israel, filed a
Aguinaldo that she merely leased the vehicles from LEDC Rent-a-Car. Motion to Set Case for Trial,16 considering that petitioners' motions for
reconsideration and for withdrawal of the information have already been denied
On February 25, 2003, Assistant City Prosecutor (ACP) Renato F. Gonzaga for lack of merit.
issued a Resolution7recommending both petitioners to be indicted in court for
estafa under Article 315, paragraph (2) of the Revised Penal Code (RPC). He On February 27, 2004, petitioners filed with the Department of Justice (DOJ) a
also noted that Aguinaldo failed to appear and to submit any controverting petition for review17 in I.S. No. 02L-51569 for estafa, entitled “Benjamin Perez
evidence despite the subpoena. and Felilibeth Aguinaldo v. Reynaldo P. Ventus and Jojo B. Joson.”

On July 16, 2003, an Information8 (I.S. No. 02L-51569) charging petitioners with Acting on the prosecution's recommendation for the denial of petitioners' motions
the crime of estafa under Article 315, paragraph 2 (a) of the RPC was filed with for reconsideration and withdrawal of the information, and its motion to set the
the Regional Trial Court of Manila. Docketed as Criminal Case No. 03-216182, case for trial, the public respondent issued an Order18 dated March 15, 2004
entitled “People of the Philippines v. Felilibeth Aguinaldo and Benjamin Perez,” directing the issuance of a warrant of arrest against Aguinaldo and the setting of
the case was raffled to the public respondent. the case for arraignment.

On July 31, 2003, Perez was arrested, so he filed an Urgent Motion for On March 26, 2004, petitioners filed an Urgent Motion to Cancel Arraignment and
Reduction of Bail to be Posted in Cash, which the public respondent granted in Suspend Further Proceedings,19 until their petition for review before the DOJ is
an Order of even date.9 resolved with finality. Petitioners reiterated the same prayer in their Urgent
Motion for Reconsideration20 of the Order dated March 15, 2004.
On the same day, petitioners filed through counsel a Very Urgent Motion to
45

On April 16, 2004, the public respondent granted petitioners' urgent motion to show that the DOJ has resolved the petition for review, although photocopies
cancel arraignment and suspend proceedings, and motion for reconsideration. 21 were presented by De Castro.

On June 23, 2004, Levita De Castro, through the Law Firm of Lapeña and Aggrieved, petitioners filed with the CA a Petition for Certiorari under Rule 65 of
Associates, filed a Motion to Reinstate Case and to Issue Warrant of Arrest.22 De the Rules of Court, attributing grave abuse of discretion amounting to lack or
Castro alleged that she was the private complainant in the estafa case that had excess of jurisdiction on the part of the public respondent in issuing the Orders
been ordered archived. Petitioners filed an Opposition with Motion to dated May 16, 2005 and August 23, 2005. On August 11, 2006, the CA
Expunge,23 alleging that De Castro is not a party to the said case, which is in dismissed the petition for lack of merit. Petitioners filed a motion for
active file, awaiting the resolution of their petition for review before the DOJ. reconsideration, but the CA denied it in a Resolution29 dated December 4, 2006.
Hence, this instant petition for review on certiorari.
On October 15, 2004, De Castro filed a Manifestation24 informing the public
respondent that the DOJ had already promulgated a Resolution dated Petitioners raise the following issues:
September 6, 2004 denying petitioners' petition for review in I.S. No. 02G-29349
& 02G-28820 for estafa, entitled “Levita De Castro v. Felilibeth Aguinaldo.”25 I.

On May 16, 2005, the public respondent issued an Order granting the Motion to THE HONORABLE COURT OF APPEALS FAILED TO APPRECIATE THAT
Reinstate Case and to Issue Warrant of Arrest, thus: THE MOTION TO REINSTATE THE CASE AND ISSUE A WARRANT OF
ARREST WAS FILED BY ONE LEVITA DE CASTRO WHO IS NOT A PARTY
Pending with this Court are (1) Motion to Reinstate Case and to Issue Warrant of TO CRIMINAL CASE NO. 03-21[6]182.
Arrest against accused Aguinaldo filed by private prosecutor with conformity of
the public prosecutor. x x x II.

It appears from the records that: A PROCEDURAL TECHINICALITY THAT THE SUSPENSION ALLOWED FOR
ARRAIGNMENT IS ALREADY BEYOND THE 60-DAY PERIOD MAY BE
(1) the warrant of arrest issued against accused Aguinaldo was recalled pending RELAXED IN THE INTEREST OF AN ORDERLY AND SPEEDY
resolution of the Petition for Review filed with the DOJ; x x x ADMINISTRATION OF JUSTICE.
(2) the Petition for Review was subsequently dismissed x x x
(3) accused Aguinaldo has not yet posted bail bond. III.

In view of the foregoing, (the) Motion to Reinstate Case and to Issue Warrant of THE PRELIMINARY INVESTIGATION ON THE I.S. NO. 02L-51569 (CRIMINAL
Arrest is GRANTED. Let this case be REINSTATED and let warrant of arrest be CASE NO. 03-21[6]182) BY THE OFFICE OF THE CITY PROSECUTOR OF
issued against accused Aguinaldo. MANILA HAS NOT YET BEEN COMPLETED.30

xxxx On the first issue, petitioners argue that the public respondent erred in issuing
the Order dated May 16, 2005 reinstating the case and issuing an arrest warrant
SO ORDERED.26 against Aguinaldo. They point out that the Motion to Reinstate the Case and to
Issue a Warrant of Arrest against Aguinaldo was filed by De Castro who is not a
On May 30, 2005, petitioners filed a Motion for Reconsideration with Motion to party in Criminal Case No. 03-216182, entitled “People of the Philippines v.
Quash Warrant of Arrest.27 Felilibeth Aguinaldo and Benjamin Perez,” instead of private complainants
Reynaldo P. Ventus and Jojo B. Joson. They also assert that said motion was
On August 23, 2005, the public respondent issued an Order denying petitioners' erroneously granted based on the purported denial of their petition for review by
Motion for Reconsideration with Motion to Quash Warrant of Arrest, and setting the DOJ, despite a Certification showing that their actual petition in I.S. Number
petitioners' arraignment, as the Revised Rules on Criminal Procedure (or Rules 02L-51569, entitled “Reynaldo Ventus, et al. v. Felilibeth Aguinaldo,” has not yet
of Court) allows only a 60-day period of suspension of arraignment. been resolved and is still pending with the DOJ.
Citing Crespo v. Mogul,28 he also ruled that the issuance of the warrant of arrest
is best left to the discretion of the trial court. He also noted that records do not On the second issue, petitioners argue that the provision of Section 11, Rule 116
46

of the Rules of Court limiting the suspension for arraignment to only sixty (60) the interlocutory orders assailed before the CA, and now before the Court.
days is merely directory; thus, it cannot deprive petitioners of their procedural
right to due process, as their petition for review has not yet been resolved by the On the second issue, the Court disagrees with petitioners' contention that the
DOJ. provision of Section 11 (c),33 Rule 116 of the Rules of Court limiting the
suspension for arraignment to only sixty (60) days is merely directory; thus, the
On the third issue, petitioners take exception that even before they could receive estafa case against them cannot proceed until the DOJ resolves their petition for
a copy of the DOJ resolution denying their petition for review, and thus move for review with finality.
its reconsideration, the Information in Criminal Case No. 03-216182 had already
been filed with the RTC on July 16, 2003. They contend that such precipitate In Samson v. Judge Daway,34 the Court explained that while the pendency of a
filing of the Information and issuance of a warrant of arrest put petitioners at the petition for review is a ground for suspension of the arraignment, the aforecited
risk of incarceration without the preliminary investigation having been completed provision limits the deferment of the arraignment to a period of 60 days reckoned
because they were not afforded their right to file a motion for reconsideration of from the filing of the petition with the reviewing office. It follows, therefore, that
the DOJ resolution. In support of their contention, they raise the following after the expiration of said period, the trial court is bound to arraign the accused
arguments: that the right to preliminary investigation is a substantive, not merely or to deny the motion to defer arraignment.35
a procedural right; that an Information filed without affording the respondent his
right to file a motion for reconsideration of an adverse resolution, is fatally In Diño v. Olivarez,36 the Court held that it did not sanction an indefinite
premature; and, that a denial of a complete preliminary investigation deprives the suspension of the proceedings in the trial court. Its reliance on the reviewing
accused of the full measure of his right to due process and infringes on his authority, the Justice Secretary, to decide the appeal at the soonest possible time
constitutional right to liberty. was anchored on the rule provided under Department Memorandum Order No.
12, dated 3 July 2000, which mandates that the period for the disposition of
The petition is denied for lack of merit. appeals or petitions for review shall be seventy- five (75) days.37

On the first issue, petitioners are correct in pointing out that the Motion to In Heirs of Feraren v. Court of Appeals,38 the Court ruled that in a long line of
Reinstate the Case and Issue a Warrant of Arrest31 was filed by one Levita De decisions, it has repeatedly held that while rules of procedure are liberally
Castro who is not a party to Criminal Case No. 03-216182. Records show that construed, the provisions on reglementary periods are strictly applied,
De Castro is not even a private complainant, but a mere witness for being the indispensable as they are to the prevention of needless delays, and are
owner of the vehicles allegedly used by petitioners in defrauding and convincing necessary to the orderly and speedy discharge of judicial business. After all,
private respondents to part with their P260,000.00. Thus, the public respondent rules of procedure do not exist for the convenience of the litigants, and they are
should have granted petitioners' motion to expunge, and treated De Castro's not to be trifled with lightly or overlooked by the mere expedience of invoking
motion as a mere scrap of paper with no legal effect, as it was filed by one who is “substantial justice.” Relaxation or suspension of procedural rules, or the
not a party to that case. exemption of a case from their operation, is warranted only by compelling
reasons or when the purpose of justice requires it.39
Petitioners are also correct in noting that De Castro's motion was granted based
on the purported dismissal of their petition for review with the DOJ. In reinstating Consistent with the foregoing jurisprudence, and there being no such reasons
the case and issuing the arrest warrant against Aguinaldo, the public respondent shown to warrant relaxation of procedural rules in this case, the CA correctly
erroneously relied on the DOJ Resolution dated September 6, 2004 dismissing ruled, thus:
the petition for review in a different case, i.e., I.S. No. 02G-29349 & 02G-28820,
entitled “Levita De Castro v. Felilibeth Aguinaldo, for two (2) counts of estafa.” As In the case at bar, the petitioners' petition for review was filed with the Secretary
correctly noted by petitioners, however, their petition for review with the DOJ is of Justice on February 27, 2004. As early as April 16, 2004, upon the petitioners'
still pending resolution. In particular, Assistant Chief State Prosecutor Miguel F. motion, the arraignment of the petitioners herein was ordered deferred by the
Guido, Jr. certified that based on available records of the Office of the Chief State public respondent. We believe that the period of one year and one month from
Prosecutor, their petition for review filed in I.S. Number 02L-51569, entitled April 16, 2004 to May 16, 2005 when the public respondent ordered the issuance
“Reynaldo Ventus, et al. v. Felilibeth Aguinaldo” for estafa, is still pending of a warrant for the arrest of petitioner Aguinaldo, was more than ample time to
resolution as of May 27, 2005.32 It bears stressing that their petition stemmed give the petitioners the opportunity to obtain a resolution of their petition for
from Criminal Case No. 03-216812, entitled “People of the Philippines v. review from the DOJ. The petitioners though submitted a Certification from the
Felilibeth Aguinaldo and Benjamin Perez” wherein the public respondent issued DOJ dated May 30, 2005 stating that their petition for review is pending
47

resolution by the Department as of May 27, 2005. However, such delay in the had been very liberal with petitioners in applying Section 11 (c), Rule 116 of the
resolution does not extend the period of 60 days prescribed under the afore- Rules of Court which limits the suspension of arraignment to a 60-day period
quoted Section 11(c), Rule 116 of the Revised Rules on Criminal Procedure. from the filing of such petition. Indeed, with more than eleven (11) years having
Besides, the petitioners may be faulted for the delay in the resolution of their elapsed from the filing of the petition for review and petitioners have yet to be
petition. According to their counsel, she received the letter dated April 15, 2004 arraigned, it is now high time for the continuation of the trial on the merits in the
from the DOJ requiring her to submit the pertinent pleadings relative to criminal case below, as the 60-day period counted from the filing of the petition
petitioners' petition for review; admittedly, however, the same was complied with for review with the DOJ had long lapsed.
only on October 15, 2004. We therefore find that the trial court did not commit
grave abuse of discretion in issuing the assailed orders.40 On whether petitioners were accorded their right to a complete preliminary
investigation as part of their right to due process, the Court rules in the
On the third issue, the Court is likewise unconvinced by petitioners' argument affirmative. Having submitted his Counter-Affidavit and Rejoinder-Affidavit to the
that the precipitate filing of the Information and the issuance of a warrant of arrest OCP of Manila before the filing of Information for estafa, Perez cannot be heard
put petitioners at the risk of incarceration without the preliminary investigation to decry that his right to preliminary investigation was not completed. For her
having been completed because they were not afforded their right to file a motion part, while Aguinaldo was not personally informed of any notice of preliminary
for reconsideration of the DOJ resolution. investigation prior to the filing of the Information, she was nonetheless given
opportunity to be heard during such investigation. In petitioners' motion for
While they are correct in stating that the right to preliminary investigation is a reconsideration47 of the February 25, 2003 Resolution of ACP Gonzaga,
substantive, not merely a procedural right, petitioners are wrong in arguing that Aguinaldo relied mostly on the Counter-Affidavit and Rejoinder-Affidavit of Perez
the Information filed, without affording the respondent his right to file a motion for to assail the recommendation of the prosecutor to indict her for estafa. Since the
reconsideration of an adverse DOJ resolution, is fatally premature. In support of filing of such motion for reconsideration was held to be consistent with the
their argument, petitioners cite Sales v. Sandiganbayan41 wherein it was held that principle of due process and allowed under Section 56 of the Manual for
since filing of a motion for reconsideration is an integral part of the preliminary Prosecutors,48 she cannot complain denial of her right to preliminary
investigation proper, an Information filed without first affording the accused his investigation.
right to a motion for reconsideration, is tantamount to a denial of the right itself to
a preliminary investigation. Both petitioners cannot, therefore, claim denial of their right to a complete
preliminary investigation as part of their right to due process. After all, “[d]ue
The Court finds petitioners' reliance on Sales42 as misplaced. A closer look into process simply demands an opportunity to be heard. Due process is satisfied
said case would reveal that the accused therein was denied his right to move for when the parties are afforded a fair and reasonable opportunity to explain their
a reconsideration or a reinvestigation of an adverse resolution in a preliminary respective sides of the controversy. Where an opportunity to be heard either
investigation under the Rules of Procedure of the Ombudsman before the filing of through oral arguments or through pleadings is accorded, there is no denial of
an Information. In contrast, petitioners in this case were afforded their right to procedural due process.”49
move for reconsideration of the adverse resolution in a preliminary investigation
when they filed their “Motion for Reconsideration and Motion for the Withdrawal In fine, the Court holds that public respondent erred in issuing the May 16, 2005
of Information Prematurely Filed with the Regional Trial Court, Branch 8, City of Order granting the Motion to Reinstate Case and to Issue Warrant of Arrest, as it
Manila,”43 pursuant to Section 3 of the 2000 National Prosecution Service (NPS was filed by one who is not a party to the case, and it was based on the DOJ's
Rule on Appeal)44 and Section 56 of the Manual for Prosecutors45. dismissal of a petition for review in a different case. Nevertheless, the Court
upholds the CA ruling that the public respondent committed no grave abuse of
With the Information for estafa against petitioners having been filed on July 16, discretion when he issued the August 23, 2005 Order denying petitioners' motion
2003, the public respondent cannot be faulted with grave abuse of discretion in to quash warrant of arrest, and setting their arraignment, despite the pendency of
issuing the August 23, 2005 Order denying their motion to quash warrant of their petition for review with the DOJ. For one, the public respondent had been
arrest, and setting their arraignment, pending the final resolution of their petition very liberal in applying Section 11 (c), Rule 116 of the Rules of Court which
for review by the DOJ. The Court believes that the period of almost one (1) year allows suspension of arraignment for a period of 60 days only. For another,
and seven (7) months from the time petitioners filed their petition for review with records show that petitioners were given opportunity to be heard during the
the DOJ on February 27, 2004 to September 14, 2005 46 when the trial court preliminary investigation of their estafa case.
finally set their arraignment, was more than ample time to give petitioners the
opportunity to obtain a resolution of their petition. In fact, the public respondent Considering that this case had been held in abeyance long enough without
48

petitioners having been arraigned, the Court directs the remand of this case to
the trial court for trial on the merits with strict observance of Circular No. 38-98 SO ORDERED.
dated August 11, 1998, or the “Implementing the Provisions of Republic Act No.
8493, entitled 'An Act to Ensure a Speedy Trial of All Criminal Cases Before the G.R. No. 101837 February 11, 1992
Sandiganbayan, Regional Trial Court, Metropolitan Trial Court, Municipal Trial
Court in Cities, Municipal Trial Court and Municipal Circuit Trial Court, ROLITO GO y TAMBUNTING, petitioner,
Appropriating Funds Therefor, and for Other Purposes.'” In this regard, suffice it vs.
to state that petitioners cannot invoke violation of their right to speedy trial THE COURT OF APPEALS, THE HON. BENJAMIN V. PELAYO, Presiding
because Section 9 (3) of Circular No. 38-98 excludes in computing the time Judge, Branch 168, Regional Trial Court, NCJR Pasig, M.M., and PEOPLE
within which trial must commence the delay resulting from extraordinary OF THE PHILIPPINES, respondents.
remedies against interlocutory orders, such as their petitions before the CA and
the Court.

Finally, in order to avoid delay in the proceedings, judges are reminded that the
pendency of a motion for reconsideration, motion for reinvestigation, or petition FELICIANO, J.:
for review is not a cause for the quashal of a warrant of arrest previously issued
because the quashal of a warrant of arrest may only take place upon the finding According to the findings of the San Juan Police in their Investigation Report, 1 on
that no probable cause exists. Moreover, judges should take note of the 2 July 1991, Eldon Maguan was driving his car along Wilson St., San Juan,
following: Metro Manila, heading towards P. Guevarra St. Petitioner entered Wilson St.,
where it is a one-way street and started travelling in the opposite or "wrong"
1. If there is a pending motion for reconsideration or motion for direction. At the corner of Wilson and J. Abad Santos Sts., petitioner's and
reinvestigation of the resolution of the public prosecutor, the court may Maguan's cars nearly bumped each other. Petitioner alighted from his car,
suspend the proceedings upon motion by the parties. However, the court walked over and shot Maguan inside his car. Petitioner then boarded his car and
should set the arraignment of the accused and direct the public left the scene. A security guard at a nearby restaurant was able to take down
prosecutor to submit the resolution disposing of the motion on or before petitioner's car plate number. The police arrived shortly thereafter at the scene of
the period fixed by the court, which in no instance could be more than the shooting and there retrieved an empty shell and one round of live ammunition
the period fixed by the court counted from the granting of the motion to for a 9 mm caliber pistol. Verification at the Land Transportation Office showed
suspend arraignment, otherwise the court will proceed with the that the car was registered to one Elsa Ang Go.
arraignment as scheduled and without further delay.
The following day, the police returned to the scene of the shooting to find out
2. If there is a pending petition for review before the DOJ, the court may where the suspect had come from; they were informed that petitioner had dined
suspend the proceedings upon motion by the parties. However, the court at Cravings Bake Shop shortly before the shooting. The police obtained a
should set the arraignment of the accused and direct the DOJ to submit facsimile or impression of the credit card used by petitioner from the cashier of
the resolution disposing of the petition on or before the period fixed by the bake shop. The security guard of the bake shop was shown a picture of
the Rules which, in no instance, could be more than sixty (60) days from petitioner and he positively identified him as the same person who had shot
the filing of the Petition for Review before the DOJ, otherwise, the court Maguan. Having established that the assailant was probably the petitioner, the
will proceed with the arraignment as scheduled and without further delay. police launched a manhunt for petitioner.

On 8 July 1991, petitioner presented himself before the San Juan Police Station
WHEREFORE, premises considered, the petition is DENIED. The Decision dated to verify news reports that he was being hunted by the police; he was
August 11, 2006 of the Court of Appeals and its Resolution dated December 4, accompanied by two (2) lawyers. The police forthwith detained him. An
2006 in CA-G.R. SP No. 92094, areAFFIRMED. Considering that the eyewitness to the shooting, who was at the police station at that time, positively
proceedings in this criminal case had been held in abeyance long enough, let the identified petitioner as the gunman. That same day, the police promptly filed a
records of this case be remanded to the trial court which is hereby directed to try complaint for frustrated homicide 2 against petitioner with the Office of the
the case on the merits with dispatch in accordance with the Court's Circular No. Provincial Prosecutor of Rizal. First Assistant Provincial Prosecutor Dennis Villa
38-98 dated August 11, 1998. Ignacio ("Prosecutor") informed petitioner, in the presence of his lawyers, that he
49

could avail himself of his right to preliminary investigation but that he must first was recalled; petitioner was given 48 hours from receipt of the Order to surrender
sign a waiver of the provisions of Article 125 of the Revised Penal Code. himself; (2) the 16 July 1991 Order which granted leave to the prosecutor to
Petitioner refused to execute any such waiver. conduct preliminary investigation was recalled and cancelled; (3) petitioner's
omnibus motion for immediate release and preliminary investigation dated 11
On 9 July 1991, while the complaint was still with the Prosecutor, and before an July 1991 was treated as a petition for bail and set for hearing on 23 July 1991.
information could be filed in court, the victim, Eldon Maguan, died of his gunshot
wound(s). On 19 July 1991, petitioner filed a petition for certiorari, prohibition
and mandamus before the Supreme Court assailing the 17 July 1991 Order,
Accordingly, on 11 July 1991, the Prosecutor, instead of filing an information for contending that the information was null and void because no preliminary
frustrated homicide, filed an information for murder 3 before the Regional Trial investigation had been previously conducted, in violation of his right to due
Court. No bail was recommended. At the bottom of the information, the process. Petitioner also moved for suspension of all proceedings in the case
Prosecutor certified that no preliminary investigation had been conducted pending resolution by the Supreme Court of his petition; this motion was,
because the accused did not execute and sign a waiver of the provisions of however, denied by respondent Judge.
Article 125 of the Revised Penal Code.
On 23 July 1991, petitioner surrendered to the police.
In the afternoon of the same day, 11 July 1991, counsel for petitioner filed with
the Prosecutor an omnibus motion for immediate release and proper preliminary By a Resolution dated 24 July 1991, this Court remanded the petition
investigation, 4 alleging that the warrantless arrest of petitioner was unlawful and for certiorari, prohibition and mandamus to the Court of Appeals.
that no preliminary investigation had been conducted before the information was
filed. Petitioner also prayed that he be released on recognizance or on bail. On 16 August 1991, respondent Judge issued an order in open court setting the
Provincial Prosecutor Mauro Castro, acting on the omnibus motion, wrote on the arraignment of petitioner on 23 August 1991.
last page of the motion itself that he interposed no objection to petitioner being
granted provisional liberty on a cash bond of P100,000.00.
On 19 August 1991, petitioner filed with the Court of Appeals a motion to restrain
his arraignment.
On 12 July 1991, petitioner filed an urgent ex-parte motion for special raffle 5 in
order to expedite action on the Prosecutor's bail recommendation. The case was On 23 August 1991, respondent judge issued a Commitment Order directing the
raffled to the sala of respondent Judge, who, on the same date, approved the Provincial Warden of Rizal to admit petitioner into his custody at the Rizal
cash bond 6 posted by petitioner and ordered his release. 7 Petitioner was in fact
Provincial Jail. On the same date, petitioner was arraigned. In view, however, of
released that same day.
his refusal to enter a plea, the trial court entered for him a plea of not guilty. The
Trial court then set the criminal case for continuous hearings on 19, 24 and 26
On 16 July 1991, the Prosecutor filed with the Regional Trial Court a motion for September; on 2, 3, 11 and 17 October; and on 7, 8, 14, 15, 21 and 22
leave to conduct preliminary investigation 8 and prayed that in the meantime all November 1991. 11
proceedings in the court be suspended. He stated that petitioner had filed before
the Office of the Provincial Prosecutor of Rizal an omnibus motion for immediate On 27 August 1991, petitioner filed a petition for habeas corpus 12 in the Court of
release and preliminary investigation, which motion had been granted by
Appeals. He alleged that in view of public respondent's failure to join issues in the
Provincial Prosecutor Mauro Castro, who also agreed to recommend cash bail of petition for certiorari earlier filed by him, after the lapse of more than a month,
P100,000.00. The Prosecutor attached to the motion for leave a copy of thus prolonging his detention, he was entitled to be released on habeas corpus.
petitioner's omnibus motion of 11 July 1991.
On 30 August 1991, the Court of Appeals issued the writ of habeas
Also on 16 July 1991, the trial court issued an Order 9 granting leave to conduct
corpus. 13 The petition for certiorari, prohibition and mandamus, on the one hand,
preliminary investigation and cancelling the arraignment set for 15 August 1991 and the petition for habeas corpus, upon the other, were subsequently
until after the prosecution shall have concluded its preliminary investigation. consolidated in the Court of Appeals.

On 17 July 1991, however, respondent Judge motu proprio issued an


Order, 10 embodying the following: (1) the 12 July 1991 Order which granted bail
50

The Court of Appeals, on 2 September 1991, issued a resolution denying Police in respect of petitioner Go; and second, whether petitioner had effectively
petitioner's motion to restrain his arraignment on the ground that that motion had waived his right to preliminary investigation. We consider these issues seriatim.
become moot and academic.
In respect of the first issue, the Solicitor General argues that under the facts of
On 19 September 1991, trial of the criminal case commenced and the the case, petitioner had been validly arrested without warrant. Since petitioner's
prosecution presented its first witness. identity as the gunman who had shot Eldon Maguan on 2 July 1991 had been
sufficiently established by police work, petitioner was validly arrested six (6) days
On 23 September 1991, the Court of Appeals rendered a consolidated later at the San Juan Police Station. The Solicitor General invokes Nazareno
decision 14 dismissing the two (2) petitions, on the following grounds: v. Station Commander, etc., et al., 16 one of the seven (7) cases consolidated
with In the Matter of the Petition for Habeas Corpus of Roberto Umil, etc.,
v. Ramos, et al. 17 where a majority of the Court upheld a warrantees arrest as
a. Petitioner's warrantless arrest was valid because the offense
for which he was arrested and charged had been "freshly valid although effected fourteen (14) days after the killing in connection with
committed." His identity had been established through which Nazareno had been arrested. Accordingly, in the view of the Solicitor
General, the provisions of Section 7, Rule 112 of the Rules of Court were
investigation. At the time he showed up at the police station,
applicable and because petitioner had declined to waive the provisions of Article
there had been an existing manhunt for him. During the
125 of the Revised Penal Code, the Prosecutor was legally justified in filing the
confrontation at the San Juan Police Station, one witness
information for murder even without preliminary investigation.
positively identified petitioner as the culprit.

On the other hand, petitioner argues that he was not lawfully arrested without
b. Petitioner's act of posting bail constituted waiver of any
warrant because he went to the police station six (6) days after the shooting
irregularity attending his arrest. He waived his right to preliminary
which he had allegedly perpetrated. Thus, petitioner argues, the crime had not
investigation by not invoking it properly and seasonably under
the Rules. been "just committed" at the time that he was arrested. Moreover, none of the
police officers who arrested him had been an eyewitness to the shooting of
Maguan and accordingly none had the "personal knowledge" required for the
c. The trial court did not abuse its discretion when it issued the lawfulness of a warrantees arrest. Since there had been no lawful warrantless
17 July 1991 Order because the trial court had the inherent arrest. Section 7, Rule 112 of the Rules of Court which establishes the only
power to amend and control its processes so as to make them exception to the right to preliminary investigation, could not apply in respect of
conformable to law and justice. petitioner.

d. Since there was a valid information for murder against The reliance of both petitioner and the Solicitor General upon Umil v. Ramos is,
petitioner and a valid commitment order (issued by the trial judge in the circumstances of this case, misplaced. In Umil v. Ramos, by an eight-to-six
after petitioner surrendered to the authorities whereby petitioner vote, the Court sustained the legality of the warrantless arrests of petitioners
was given to the custody of the Provincial Warden), the petition made from one (1) to fourteen days after the actual commission of the offenses,
for habeas corpus could not be granted. upon the ground that such offenses constituted "continuing crimes." Those
offenses were subversion, membership in an outlawed organization like the New
On 3 October 1991, the prosecution presented three (3) more witnesses at the People's Army, etc. In the instant case, the offense for which petitioner was
trial. Counsel for petitioner also filed a "Withdrawal of Appearance" 15 with the arrested was murder, an offense which was obviously commenced and
trial court, with petitioner's conformity. completed at one definite location in time and space. No one had pretended that
the fatal shooting of Maguan was a "continuing crime."
On 4 October 1991, the present Petition for Review on Certiorari was filed. On 14
October 1991, the Court issued a Resolution directing respondent Judge to hold Secondly, we do not believe that the warrantees "arrest" or detention of petitioner
in abeyance the hearing of the criminal case below until further orders from this in the instant case falls within the terms of Section 5 of Rule 113 of the 1985
Court. Rules on Criminal Procedure which provides as follows:

In this Petition for Review, two (2) principal issues need to be addressed: first,
whether or not a lawful warrantless arrest had been effected by the San Juan
51

Sec. 5 Arrest without warrant; when lawful. — A peace officer or conducted, on the basis of the affidavit of the offended party or
a private person may, without warrant, arrest a person: arresting office or person

(a) When, in his presence, the person to be arrested has However, before the filing of such complaint or information, the
committed, is actually committing, or is attempting to commit an person arrested may ask for a preliminary investigation by a
offense; proper officer in accordance with this Rule, but he must sign a
waiver of the provisions of Article 125 of the Revised Penal
(b) When an offense has in fact just been committed, and he has Code, as amended, with the assistance of a lawyer and in case
personal knowledge of facts indicating that the person to be of non-availability of a lawyer, a responsible person of his
arrested has committed it; and choice. Notwithstanding such waiver, he may apply for bail as
provided in the corresponding rule and the investigation must be
(c) When the person to be arrested is a prisoner who has terminated within fifteen (15) days from its inception.
escaped from a penal establishment or place where he is serving
final judgment or temporarily confined while his case is pending, If the case has been filed in court without a preliminary
or has escaped while being transferred from one confinement to investigation having been first conducted, the accused
another. may within five (5) days from the time he learns of the filing of
the information, ask for a preliminary investigation with the same
In cases falling under paragraphs (a) and (b) hereof, the person right to adduce evidence in his favor in the manner prescribed in
this Rule. (Emphasis supplied)
arrested without a warrant shall be forthwith delivered to the
nearest police station or jail, and he shall be proceed against in
accordance with Rule 112, Section 7. is also not applicable. Indeed, petitioner was not arrested at all. When he walked
into San Juan Police Station, accompanied by two (2) lawyers, he in fact placed
himself at the disposal of the police authorities. He did not state that he was
Petitioner's "arrest" took place six (6) days after the shooting of Maguan. The
"surrendering" himself, in all probability to avoid the implication he was admitting
"arresting" officers obviously were not present, within the meaning of Section
that he had slain Eldon Maguan or that he was otherwise guilty of a crime. When
5(a), at the time petitioner had allegedly shot Maguan. Neither could the "arrest"
the police filed a complaint for frustrated homicide with the Prosecutor, the latter
effected six (6) days after the shooting be reasonably regarded as effected "when
[the shooting had] in fact just been committed" within the meaning of Section should have immediately scheduled a preliminary investigation to determine
5(b). Moreover, none of the "arresting" officers had any "personal knowledge" of whether there was probable cause for charging petitioner in court for the killing of
Eldon Maguan. Instead, as noted earlier, the Prosecutor proceed under the
facts indicating that petitioner was the gunman who had shot Maguan. The
erroneous supposition that Section 7 of Rule 112 was applicable and required
information upon which the police acted had been derived from statements made
petitioner to waive the provisions of Article 125 of the Revised Penal Code as a
by alleged eyewitnesses to the shooting — one stated that petitioner was the
condition for carrying out a preliminary investigation. This was substantive error,
gunman; another was able to take down the alleged gunman's car's plate number
which turned out to be registered in petitioner's wife's name. That information did for petitioner was entitled to a preliminary investigation and that right should have
not, however, constitute "personal knowledge." 18 been accorded him without any conditions. Moreover, since petitioner had not
been arrested, with or without a warrant, he was also entitled to be released
forthwith subject only to his appearing at the preliminary investigation.
It is thus clear to the Court that there was no lawful warrantless arrest of
petitioner within the meaning of Section 5 of Rule 113. It is clear too that Section
7 of Rule 112, which provides: Turning to the second issue of whether or not petitioner had waived his right to
preliminary investigation, we note that petitioner had from the very beginning
demanded that a preliminary investigation be conducted. As earlier pointed out,
Sec. 7 When accused lawfully arrested without warrant. — When on the same day that the information for murder was filed with the Regional Trial
a person is lawfully arrested without a warrant for an offense Court, petitioner filed with the Prosecutor an omnibus motion for immediate
cognizable by the Regional Trial Court the complaint or release and preliminary investigation. The Solicitor General contends that that
information may be filed by the offended party, peace officer or omnibus motion should have been filed with the trial court and not with the
fiscal without a preliminary investigation having been first Prosecutor, and that the petitioner should accordingly be held to have waived his
right to preliminary investigation. We do not believe that waiver of petitioner's
52

statutory right to preliminary investigation may be predicated on such a slim was crystal clear was that petitioner did ask for a preliminary
basis. The preliminary investigation was to be conducted by the Prosecutor, not investigation on the very day that the information was filed without such
by the Regional Trial Court. It is true that at the time of filing of petitioner's preliminary investigation, and that the trial court was five (5) days later
omnibus motion, the information for murder had already been filed with the apprised of the desire of the petitioner for such preliminary investigation.
Regional Trial Court: it is not clear from the record whether petitioner was aware Finally, the trial court did in fact grant the Prosecutor's prayer for leave to
of this fact at the time his omnibus motion was actually filed with the Prosecutor. conduct preliminary investigation. Thus, even on the (mistaken)
In Crespo v. Mogul, 19 this Court held: supposition apparently made by the Prosecutor that Section 7 of Rule
112 of the Revised Court was applicable, the 5-day reglementary period
The preliminary investigation conducted by the fiscal for the in Section 7, Rule 112 must be held to have been substantially complied
purpose of determining whether a prima facie case exists to with.
warranting the prosecution of the accused is terminated upon the
filing of the information in the proper court. In turn, as above We believe and so hold that petitioner did not waive his right to a preliminary
stated, the filing of said information sets in motion the criminal investigation. While that right is statutory rather than constitutional in its
action against the accused in Court. Should the fiscal find it fundament, since it has in fact been established by statute, it is a component part
proper to conduct a reinvestigation of the case, at such stage, of due process in criminal justice. 21 The right to have a preliminary investigation
the permission of the Court must be secured. After such conducted before being bound over to trial for a criminal offense and hence
reinvestigation the finding and recommendations of the fiscal formally at risk of incarceration or some other penalty, is not a mere formal or
should be submitted to the Court for appropriate action. While it technical right; it is a substantive right. The accused in a criminal trial is inevitably
is true that the fiscal has the quasi-judicial discretion to exposed to prolonged anxiety, aggravation, humiliation, not to speak of expense;
determine whether or not a criminal case should be filed in court the right to an opportunity to avoid a process painful to any one save, perhaps, to
or not, once the case had already been brought to Court hardened criminals, is a valuable right. To deny petitioner's claim to a preliminary
whatever disposition the fiscal may feel should be proper in the investigation would be to deprive him the full measure of his right to due process.
case thereafter should be addressed for the consideration of the
Court. The only qualification is that the action of the Court must The question may be raised whether petitioner still retains his right to a
not impair the substantial rights of the accused., or the right of preliminary investigation in the instant case considering that he was already
the People to due process of law. arraigned on 23 August 1991. The rule is that the right to preliminary
investigation is waived when the accused fails to invoke it before or at the time of
xxx xxx xxx entering a plea at arraignment.22 In the instant case, petitioner Go had vigorously
insisted on his right to preliminary investigation before his arraignment.At the
The rule therefore in this jurisdiction is that once a complaint or time of his arraignment, petitioner was already before the Court of Appeals
information is filed in Court any disposition of the case [such] as on certiorari, prohibition and mandamusprecisely asking for a preliminary
its dismissal or the conviction or acquittal of the accused rests in investigation before being forced to stand trial.
the sound discretion of the Court. Although the fiscal retains the
direction and control of the prosecution of criminal cases even Again, in the circumstances of this case, we do not believe that by posting bail
while the case is already in Court he cannot impose his opinion petitioner had waived his right to preliminary investigation. In People
on the trial court. The Court is the best and sole judge on what to v. Selfaison, 23 we did hold that appellants there had waived their right to
do with the case before it. . . . 20 (Citations omitted; emphasis preliminary investigation because immediately after their arrest, they filed bail
supplied) and proceeded to trial "without previously claiming that they did not have the
benefit of a preliminary investigation." 24 In the instant case, petitioner Go asked
Nonetheless, since petitioner in his omnibus motion was asking for for release on recognizance or on bail and for preliminary investigation in one
preliminary investigation and not for a re-investigation (Crespo v. Mogul omnibus motion. He had thus claimed his right to preliminary
involved a re-investigation), and since the Prosecutor himself did file with investigation before respondent Judge approved the cash bond posted by
the trial court, on the 5th day after filing the information for murder, a petitioner and ordered his release on 12 July 1991. Accordingly, we cannot
motion for leave to conduct preliminary investigation (attaching to his reasonably imply waiver of preliminary investigation on the part of petitioner. In
motion a copy of petitioner's omnibus motion), we conclude that fact, when the Prosecutor filed a motion in court asking for leave to conduct
petitioner's omnibus motion was in effect filed with the trial court. What
53

preliminary investigation, he clearly if impliedly recognized that petitioner's claim counsel de oficio. During the trial, before the prosecution called its first witness,
to preliminary investigation was a legitimate one. petitioner through counsel once again reiterated his objection to going to trial
without preliminary investigation: petitioner's counsel made of record his
We would clarify, however, that contrary to petitioner's contention the failure to "continuing objection." 29 Petitioner had promptly gone to the appellate court
accord preliminary investigation, while constituting a denial of the appropriate on certiorari and prohibition to challenge the lawfulness of the procedure he was
and full measure of the statutory process of criminal justice, did not impair the being forced to undergo and the lawfulness of his detention. 30 If he did not walk
validity of the information for murder nor affect the jurisdiction of the trial court. 25 out on the trial, and if he cross-examined the prosecution's witnesses, it was
because he was extremely loath to be represented by counsel de oficio selected
by the trial judge, and to run the risk of being held to have waived also his right to
It must also be recalled that the Prosecutor had actually agreed that petitioner
use what is frequently the only test of truth in the judicial process.
was entitled to bail. This was equivalent to an acknowledgment on the part of the
Prosecutor that the evidence of guilt then in his hands was not strong.
Accordingly, we consider that the 17 July 1991 order of respondent Judge In respect of the matter of bail, we similarly believe and so hold that petitioner
recalling his own order granting bail and requiring petitioner to surrender himself remains entitled to be released on bail as a matter of right. Should the evidence
within forty-eight (48) hours from notice, was plainly arbitrary considering that no already of record concerning petitioner's guilt be, in the reasonable belief of the
evidence at all — and certainly no new or additional evidence — had been Prosecutor, strong, the Prosecutor may move in the trial court for cancellation of
submitted to respondent Judge that could have justified the recall of his order petitioner's bail. It would then be up to the trial court, after a careful and objective
issued just five (5) days before. It follows that petitioner was entitled to be assessment of the evidence on record, to grant or deny the motion for
released on bail as a matter of right. cancellation of bail.

The final question which the Court must face is this: how does the fact that, in the To reach any other conclusions here, that is, to hold that petitioner's rights to a
instant case, trial on the merits has already commenced, the Prosecutor having preliminary investigation and to bail were effectively obliterated by evidence
already presented four (4) witnesses, impact upon, firstly, petitioner's right to a subsequently admitted into the record would be to legitimize the deprivation of
preliminary investigation and, secondly, petitioner's right to be released on bail? due process and to permit the Government to benefit from its own wrong or
Does he continue to be entitled to have a preliminary investigation conducted in culpable omission and effectively to dilute important rights of accused persons
respect of the charge against him? Does petitioner remain entitled to be released well-nigh to the vanishing point. It may be that to require the State to accord
on bail? petitioner his rights to a preliminary investigation and to bail at this
point, could turn out ultimately to be largely a ceremonial exercise. But the Court
is not compelled to speculate. And, in any case, it would not be idle ceremony;
Turning first to the matter of preliminary investigation, we consider that petitioner
remains entitled to a preliminary investigation although trial on the merits has rather, it would be a celebration by the State of the rights and liberties of its own
people and a re-affirmation of its obligation and determination to respect those
already began. Trial on the merits should be suspended or held in abeyance and
a preliminary investigation forthwith accorded to petitioner. 26 It is true that the rights and liberties.
Prosecutor might, in view of the evidence that he may at this time have on hand,
conclude that probable cause exists; upon the other hand, the Prosecutor ACCORDINGLY, the Court resolved to GRANT the Petition for Review
conceivably could reach the conclusion that the evidence on hand does not on Certiorari. The Order of the trial court dated 17 July 1991 is hereby SET
warrant a finding of probable cause. In any event, the constitutional point is that ASIDE and NULLIFIED, and the Decision of the Court of Appeals dated 23
petitioner was not accorded what he was entitled to by way of procedural due September 1991 hereby REVERSED.
process. 27 Petitioner was forced to undergo arraignment and literally pushed to
trial without preliminary investigation, with extraordinary haste, to the applause The Office of the Provincial Prosecutor is hereby ORDERED to conduct forthwith
from the audience that filled the courtroom. If he submitted to arraignment at trial, a preliminary investigation of the charge of murder against petitioner Go, and to
petitioner did so "kicking and screaming," in a manner of speaking . During the complete such preliminary investigation within a period of fifteen (15) days from
proceedings held before the trial court on 23 August 1991, the date set for commencement thereof. The trial on the merits of the criminal case in the
arraignment of petitioner, and just before arraignment, counsel made very clear Regional Trial Court shall be SUSPENDED to await the conclusion of the
petitioner's vigorous protest and objection to the arraignment precisely because preliminary investigation.
of the denial of preliminary investigation. 28 So energetic and determined were
petitioner's counsel's protests and objections that an obviously angered court and
prosecutor dared him to withdraw or walkout, promising to replace him with
54

Meantime, petitioner is hereby ORDERED released forthwith upon posting of a In a complaint that he filed with the Tanodbayan in Manila on May 20, 1988,
cash bail bond of One Hundred Thousand Pesos (P100,000.00). This release Abao alleged that petitioner, in his capacity as PCSO Corporate Secretary,
shall be without prejudice to any lawful order that the trial court may issue, should personally and directly intervened in the operation of said lottery to his financial
the Office of the Provincial Prosecutor move for cancellation of bail at the benefit and advantage by committing the following acts:
conclusion of the preliminary investigation.
(1) Causing the employment of members of his family in the experimental STL
No pronouncement as to costs. This Decision is immediately executory. project that was under his supervision, in violation of Section 3 (d) of the Anti-
Graft Law;
SO ORDERED.
(2) Deciding on the dismissal of certain lottery employees and in bad faith driving
Narvasa, C.J., Bidin, Medialdea, Romero and Nocon, JJ., concur. Abao to sever from the management of lottery which at that time was grossing
about P250,000.00 daily under a profit-sharing agreement, thus causing Abao
damage and injury in the amount of P1,300,000.00, in violation of Section 3 (e) of
the Anti-Graft Law; and

(3) Regularly demanding from Abao amounts totaling more than P100,000.00 as
[G.R. No. 108431. July 14, 2000] his share in the experimental lottery, in violation of Section 3 (h) of the Anti-Graft
Law.

Abao maintained further that petitioner got mad at him when he gave
OSCAR G. RARO, petitioner, vs. THE HONORABLE SANDIGANBAYAN, petitioner a check instead of cash, which petitioner later used to accuse Abao of
(Second Division), THE HONORABLE OMBUDSMAN and PEOPLE issuing a bouncing check notwithstanding that the check was not
OF THE PHILIPPINES, respondents. encashed. Abao added that petitioner was not only dishonest but displayed such
dishonesty.[2] The complaint filed by Abaos counsel was verified and subscribed
before a notary public,[3] and docketed in the Office of the Ombudsman as OSP-
DECISION
88-01263.
YNARES-SANTIAGO, J.:
Overall Ombudsman Jose G. Colayco, on July 1, 1988, endorsed the
complaint to the National Bureau of Investigation (NBI). [4] On May 11, 1989, NBI-
The issue in this special civil action of certiorari and prohibition is whether or LED Officer-in-Charge Gerarda G. Galang submitted a report stating that the
not the Sandiganbayan gravely abused its discretion in denying a motion to investigation conducted by NBI Senior Agent Salvador A. Duka yielded the
quash an information on the ground that the preliminary investigation allegedly following findings:
violated the right of the accused to due process of law.
Petitioner Oscar G. Raro, a lawyer, was the Corporate Secretary of the (a) On the charge of employment of relatives, Abao charged that petitioner asked
Philippine Charity Sweepstakes Office (PCSO). As such, petitioner was the him to appoint his (petitioners) brother as station manager of the lottery in Labo,
Acting Manager of the Special Projects Department that was in charge of the Camarines Norte. Likewise according to Abao, petitioner imposed on him the
experimental Small Town Lottery (STL), which under PCSO Resolution No. 118, appointment of petitioners sister, Marissa Raro- Remigio as the STL provincial
dated April 1987, was to be operated in certain areas of the country. On July 30, cashier. Per the joint affidavit of Yoly Malubay, Ruben Galeon, Rosalio Poblete
1987, the PCSO, through Atty. Reynaldo E. Ilagan of the Special Projects and Francisco Villaluz, petitioners brother named Antonio, the lottery station
Department, authorized Elmec Trading and Management Corporation (ELMEC) manager, signed payrolls, vouchers and other pertinent papers using the name
to operate the STL in the province of Camarines Norte. ELMEC in turn employed Joel Remigio, Marissas husband. In 1988, Antonio Raro was appointed Assistant
Luis (Bing) F. Abao, a resident of Daet, Camarines Norte, as Provincial Manager Provincial Operations Manager of the STL in Camarines Norte. On the other
of the experimental STL in said province.[1] Abao allegedly invested P100,000.00 hand, Marissa Raro-Remigio claimed that it was ELMEC that offered her the
in the STL operation in that province. position of treasurer of the STL and that on January 27, 1988, ELMEC
terminated the employment of Abao and the employees he had hired. However,
55

the circumstances surrounding ELMECs employment of petitioners brother and It is therefore recommended that further investigation by NBI be conducted in
sister were not verified from the owners of ELMEC. order to determine the veracity of the charges.

(b) With respect to the charge that petitioner demanded from Abao the total The Memorandum was recommended for approval by Acting Director Gualberto
amount of P100,000.00, no receipt was shown to prove petitioners having in fact J. de la Llana and approved on March 22, 1990 by Ombudsman Vasquez. [8]
received that sum although Ruidera and Galeon, in their affidavits, confirmed that
said amount was given to petitioner and to Atty. Ilagan. Since the sworn On September 19, 1990, the NBI recommended the prosecution of
statements of Ilagan and Cordez and those of Fernando Carrascoso and Rustico petitioner based on Abaos complaint.[9] Thus, on May 14, 1991, GIO II Caraos
Manalo, who allegedly received 25% of the proceeds of the STL, had not yet formally directed petitioner to file his counter-affidavit and controverting evidence
been taken, there were certain aspects of the charge that should be considered. to the complaint of May 6, 1988, with a warning that his failure to do so shall be
Hence, no definite conclusion could be made thereon. construed as a waiver of his right to be heard and the preliminary investigation
shall proceed accordingly.[10]On petitioners motion, the Ombudsman granted him
until September 7, 1991 within which to file his counter-affidavit. On September
(c) The subject of dismissal of employees was not yet covered by the 7, 1991, petitioner sought another extension within which to file his counter-
investigation. affidavit.[11]

With these findings, Galang recommended that further investigation be Petitioner filed his counter-affidavit on October 25, 1991.[12] He asserted that
conducted and that a copy of the evaluation comment be furnished the he removed some employees from the lottery to avoid undue injury to the
Ombudsman with the information that further investigation (was) still being government. He denied that he hired or caused to be hired his brother and sister
conducted on some aspects of the case.[5]Accordingly, NBI Director J. Antonio M. in the experimental lottery research as they maintained their affairs without his
Carpio endorsed on May 11, 1989 the evaluation comment and the NBI agents interference. He also denied demanding or receiving any amount from Abao or
report to the Ombudsman.[6] from the lottery operator as it was impossible for him to demand bribe money in
the form of a check. He claimed that Abaos complaint was a desperate effort to
On July 12, 1989, NBI Agent Duka submitted a Disposition Form stating that malign him.[13]
per the joint affidavit of Yolly Manubay, Ruben Galeon, Rosario Poblete and
Francisco Villaluz, petitioners brother, Antonio Raro signed numerous vouchers, On November 29, 1991, GIO II Caraos issued a Resolution stating that:
payrolls and other papers in the name of Joel Remigio. The sworn statement of
Teddy Aguirre and xerox copies of vouchers supported this. However, the Evaluating the complaint, as well as the controverting evidence presented by the
original copies of the vouchers could not be secured on account of the cessation respondent, we find prima facie case against herein respondent for Violation of
of operation of the STL in Camarines Norte since July 1988. Neither could the R.A. 3019.
sworn statement of Antonio Raro be secured. Thus, NBI Agent Duka
recommended that further investigation be conducted in coordination with At the outset, it must be stressed that in a preliminary investigation, it is not
LUCSO in Lucena City.[7] required that all reasonable doubts on the accuseds guilt must be removed; what
Ombudsman Graft Investigation Officer II (GIO II) Theresa Medialdea- is required only is that evidence be sufficient to establish probable cause that the
Caraos submitted to Ombudsman Conrado Vasquez a Memorandum dated accused committed the offense charged. Moreover, as between the positive
March 15, 1990, with the following recommendation: assertions of complainant Abano and the mere denials of the respondent, the
former deserves more credence as it is acknowledged that the same has greater
evidentiary value than the latter. Probable cause has been established by the
RECOMMENDED ACTION: The initial report of the NBI points only to the clear and positive testimonies of the complainant and his witnesses pointing to
anomalies allegedly committed by the respondents brother, Antonio. The the herein respondent as responsible for various acts relative to the operation of
appointment of his sister which was supposedly imposed on the complainant is the lottery in Violation of the Anti-Graft law specifically Sec. 3 (a), (b), (c), (h) and
not supported by evidence other than the mere allegation of the latter. (k). Such finding is duly supported by the recommendation of the NBI report
which also recommended the filing of proper criminal charge against the
The misdeeds committed by respondent were not based on facts as presented respondent.
by NBI.
Furthermore, most of the allegations of the respondents as contained in his
counter-affidavit are matters of defense which can be best ventilated in court
56

during trial. In fact, the other allegations of respondents which are mere HUNDRED SIXTEEN THOUSAND SEVEN HUNDRED NINETY NINE PESOS
insinuations as to the motive of the complainant in filing the case, only deserve and NINETY NINE CENTAVOS (P116,799.99), Philippine Currency, from Mr.
scant consideration. Luis Bing F. Abao, Provincial Manager of the STL operations in Camarines
Norte, as his share in the net proceeds of the said STL which was not authorized
Wherefore, all legal premises considered, let an information be filed before the under the law but which amount was given to and received by him in his capacity
proper court against respondent Raro. as overseer and monitoring arm of the PCSO in the Small Town Lottery
operation in Camarines Norte.
SO RESOLVED.[14]
CONTRARY TO LAW.
Director Cesar T. Palana recommended approval of the above Resolution
on December 5, 1991.[15] However, on January 27, 1992, Assistant Ombudsman On July 6, 1992, the Sandiganbayan issued an order for petitioners arrest
Abelardo L. Aportadera, Jr., who reviewed the Resolution, recommended its and fixed bail in the amount of P12,000.00.[20] On the same day, petitioner
disapproval and the dismissal of the complaint, on the ground that the NBI report applied for bail before the Regional Trial Court of Cabanatuan City, Branch
was based merely on testimonial evidence that would not suffice to establish a 26,[21] which forthwith approved the application.[22] On July 8, 1992, petitioner filed
prima facie case against herein petitioner. He averred that more than oral with the Sandiganbayan a manifestation and motion for the lifting of the order of
evidence should support the charge of extortion and that petitioners witnesses arrest.[23] Accordingly, the Sandiganbayan recalled its order of arrest the following
had amply clarified the charge of nepotism.[16] day.[24]

On June 11, 1992, Special Prosecution Officer I (SPO I) Wendell E. Petitioner subsequently filed with the Sandiganbayan a motion for the
Barreras-Sulit, after reviewing the Resolution of GIO II Caraos, issued a reinvestigation of the Resolution of the Ombudsman dated 11 June
Memorandum finding that said Resolution did not fully discuss the evidence that 1992,[25] alleging that:
would support the particular charges recommended to be filed against
petitioner. After analyzing each of the charges, SPO I Barreras-Sulit concluded 1. The prejudicial and indecent delay in the preliminary investigation violated his
that petitioner should only be charged with violation of Section 3 (b) of R.A. 3019 rights to due process of law and to speedy disposition of the case because while
as there was prima facie case that petitioner received the total amount of the complaint was filed on May 20, 1988, the information against him was filed
P116,000.00 on four different occasions. Attached to the Memorandum was the more than four (4) years later.
information charging petitioner with violation of Section 3 (b) of Republic Act No.
3019.[17] 2. Despite the delay in filing the information, hastiness attended the proceedings
SPO I Barreras-Sulits Memorandum was approved by Deputy Special in that he was not furnished a copy of the resolution on which the information
Prosecutor Jose De G. Ferrer, Special Prosecutor Aniano A. Desierto and was based. Moreover, the information was dated May 19, 1992 or even before
Ombudsman Vasquez.[18] Hence, on July 2, 1992, an information dated May 19, the resolution that gave rise to it was finished on June 11, 1992. There was a
1992 prepared by SPO I Barreras-Sulit was filed with the need for a reinvestigation to protect him from hasty, malicious and oppressive
Sandiganbayan,[19] accusing petitioner with violation of Section 3 (b) of Republic prosecution.
Act No. 3019 committed as follows:
3. The resolution of June 11, 1992 was a picture of legal and factual infirmities.
That on or about the period from October, 1987 to January 1988, in Daet, While no evidence supported the complaint other than the reports of NBI Agents
Camarines Norte, Manila and Quezon City, Philippines, and within the jurisdiction Duka and Lasala and the affidavits dated June 30, 1988 of Rene Ruidera and
of this Honorable Court, the above named accused, a public officer being then Ben Galeon, these bases for the information were worthless pieces of
the Corporate Secretary and Acting Department Manager of the Special Projects documents. Moreover, he was not furnished a copy of the NBI report showing
Department of the Philippine Charity Sweepstakes Office (PCSO), San that he received P116,000.00 from the proceeds of the STL operation, and the
Marcelino, Malate, Metro Manila, tasked to monitor and oversee the Small Town NBI never conducted a reinvestigation as required by NBI Director Carpio.
Lottery Experimental Project of the PCSO in certain areas including Camarines
Norte, taking advantage of his said public position and while in the performance 4. The complaint was based solely on the affidavit of Abao and those of Ruidera
of his official duties as such, did then and there, wilfully, unlawfully and criminally and Galeon who were mere hearsay witnesses. The allegations in the complaint
demand and receive on four different occasions the amount totalling to ONE were facts to be established (factum probandum) requiring further evidentiary
facts (factum probans). The only source of the charges, therefore, were the bare
57

assertions of Abao who was not a credible witness. He was consumed by Order No. 09, issued by the Ombudsman on October 15, 1991, which amended
vengeance, because petitioner had him audited for unexplained disposition of Rule II, Section 7 of Rep. Act No. 6770 (sic), a respondent has five (5) days from
STL funds during Abaos campaign for mayor of Daet. Hence, to get back at receipt of the resolution finding a prima facie case against him within which to file
petitioner, Abao circulated fabrications and fairy tale against him even before the a motion for reconsideration. Likewise, under Section 7 of Rule II, supra, he may
Sandiganbayan. move for a reinvestigation based on errors or irregularities during the preliminary
investigation or on newly-discovered evidence.[26]
After hearing, the Sandiganbayan granted the petitioners motion for
reinvestigation in a Resolution dated July 28, 1992, and ordered the defense to Petitioner filed with the Sandiganbayan a motion for extension of time to file
file a motion for reconsideration and/or reinvestigation with the Office of the his motion for reinvestigation,[27] which was granted on August 13, 1992.[28]
Ombudsman within ten (10) days from July 29, 1992, and the prosecution to
conduct such reinvestigation and to terminate it on or before August 31, On August 12, 1992, complainant Abao wrote a letter addressed to Special
1992. Likewise, the Sandiganbayan required the prosecution to furnish petitioner Prosecution Officer III (SPO III) Roger Berbano, Sr. of the Sandiganbayan,
a copy of the NBI Report of September 18, 1990, and reset the arraignment to alleging that:
September 8, 1992 at 8:30 a.m. The Sandiganbayans directives were based on
the following findings: (1) Petitioner was not able to refute the charges against him of violation of
Section 3 (a), (b), (c), (h) and (k) of Republic Act No. 3019 except to discredit the
We have gone over the grounds and arguments alleged in accuseds aforesaid truth about the P116,000.00 he demanded and got from me;
motion and We do not subscribe to the claim that there was prejudicial and
indecent delay in the preliminary investigation, considering that the initial (2) Petitioner admitted in a press conference the existence of a check in the
complaint filed by complainant Luis F. Abalo (sic) on May 20, 1988 had been amount of P51,799.00 but his claim that it bounced was not true because the
referred to the National Bureau of Investigation on July 1, 1988 and the report of check with Atty. Reynaldo Ilagan as payee was in his (Abaos) possession;
the latter agency was only submitted on September 18, 1990. Thereafter, Graft
Investigator II Theresa M. Caraos conducted a preliminary investigation, wherein (3) The bribe money was good to the exact centavo because it was 25% of the
accused submitted his counter-affidavit denying the charges levelled against him, daily gross earnings of the lottery;
culminating in the issuance of a resolution dated November 29, 1991,
recommending the filing of the proper information with this Court. (4) He was not a dismissed employee of ELMEC because he financed and
managed the STL operation upon the prodding of PCSO through Atty. Raro and
The Caraos (sic) resolution was reviewed by proper officials in the Office of the he received commissions and percentages as late as March 1988 as shown by
Ombudsman, the latest of which was made by Special Prosecution Officer I vouchers signed by Marissa Raro-Remigio;
Wendell E. Barreras-Sulit, who adopted the recommendation for the filing only of
a charge under Section 3(b) of R.A. 3019 in her resolution of June 11, 1992. (5) His candidacy for mayor in the January 18, 1988 elections was never affected
However, the information, as prepared by Atty. Barreras-Sulit, is dated May 19, by allegations of mismanagement; he stayed as the general manager of ELMEC
1992 and approved by Ombudsman Conrado M. Vasquez on June 25, 1992 and until March 1988; and
filed with this Court on July 2, 1992. On this score, We find nothing irregular with
respect to the afore-cited dates, despite the contention of the accused that there
(6) The findings of Senator Maceda of the Senate Committee on Games and
was hastiness despite delay. Moreover, the doctrines enunciated in Tatad (159
Amusement that the operation of the STL was the source of corruption and
SCRA 70) are not entirely on all fours with the situation depicted in the case at
milking cow of corrupt PCSO officials and hence, its discontinuance upon the
bar, having been modified inLecaroz (G.R. Nos. 918223-35, promulgated June 7,
order of the President, was the best evidence of corruption perpetrated by
1990) and Gonzales (199 SCRA 298).
petitioner.
On the other hand, there appears to be some semblance of validity to accuseds
On August 14, 1992, SPO III Berbano issued an Order stating that the
other grounds, to wit, that he was not furnished a copy of the NBI report during
grounds and issues raised in petitioners motion for reinvestigation were clearly
the preliminary investigation, hence, he was not able to refute the allegations
matters of defense to be ventilated during the trial of the case on the merits.
contained therein and (2) (sic) that he was not furnished a copy of the resolution
Hence, he recommended the denial of the motion for reinvestigation, which
upon which the information was based before the filing thereof, thus, he was
deprived of his right to file a motion for reconsideration. Under Administrative
58

recommendation was approved by the Ombudsman, Conrado M. Vasquez, on certificate showing that petitioner was ill. The Sandiganbayan reset the
August 26, 1992.[29] arraignment for October 12, 1992.[34] Later, petitioner sought the reconsideration
of the Order for his arrest on the ground that he was then suffering from viral
In the meantime, on August 18, 1992, petitioner filed with the Office of the influenza and submitted a medical certificate to that effect. [35] The
Ombudsman a motion for the reconsideration of the Ombudsmans Resolution of Sandiganbayan considered that incident closed and terminated, and directed that
June 11, 1992. He asserted that SPO I Barreras-Sulit based her Resolution on the arraignment should proceed on October 12, 1992.[36]
the NBI Report of September 18, 1990 and the affidavits dated June 30, 1988 of
Rene Ruidera and Ben Galeon, all of which had no evidentiary value because On that date, petitioner filed with the Sandiganbayan a motion to quash the
they are hearsay and basically based on information furnished them by Abao. information,[37] on the ground that the court did not acquire jurisdiction in view of
According to petitioner, the said Report was incomplete and inconclusive violations of accuseds constitutional rights during the preliminary
because the findings therein needed further investigation. Reiterating his investigation. He argued that the determination of probable cause by the
arguments that factum probans is required during a preliminary investigation and prosecuting officer does not preclude the courts from demanding further proof
that Abao is not a credible witness, petitioner contended that he should be thereon. Citing Brocka v. Enrile[38]where this Court held that a sham and hastily
spared from the trouble, expense and anxiety as well as the stigma resulting from conducted preliminary investigation may be lawfully enjoined, petitioner pointed
an open and public accusation of a crime.[30] out the following as indicia of the falsity and hastiness of the proceedings before
the Ombudsman:
Subsequently, petitioner also filed with the Tanodbayan a Motion for a Last
Review of the Special Prosecutors Order of August 14, 1992. He alleged that the
Office of the Special Prosecutor (OSP) failed to take into consideration the very 1. While the Resolution recommending the filing of an information was issued on
motion for reconsideration that should have been the subject of that Order. He June 11, 1992, the information was already prepared on May 19, 1992 thereby
contended that the OSP might not have been aware of the motions he filed for showing that said Resolution was no more than a formality. For petitioner, the
extension of time within which to file the motion for reconsideration, and the situation was akin to birth preced(ing) pregnancy.
OSPs preparation of the Order of August 14, 1992 before it received the motion
for reconsideration constituted a gross procedural defect. Petitioner further 2. SPO III Berbano denied the motion for reconsideration in his Order of August
asserted that the minimum requirement for a meaningful determination of 14, 1992 or four (4) days before he filed the motion for reconsideration on August
probable cause should take into consideration the strength of the evidence of the 18, 1992 thereby showing that the prosecutors were hell-bent and determined,
accused and the inherent baselessness of the complainants. He thus prayed that come high or low waters, reason or no reason, to proceed with their
the Resolution of June 11, 1992 recommending the filing of an information determination to prosecute him. That procedure also made a mockery of the
against him be reversed, the complaint dismissed, and the information filed with Sandiganbayans Resolution of July 28, 1992 directing the Ombudsman to
the Sandiganbayan withdrawn.[31] conduct a reinvestigation of the case.

The scheduled arraignment of petitioner on September 8, 1992 was 3. At the hearing on September 8, 1992, SPO III Berbano confided to his
cancelled considering that the reinvestigation ordered by the Sandiganbayan had counsel, Atty. Tomas Z. Roxas, Jr., that on August 14, 1992, Abao had sent him
not yet been terminated. The Sandiganbayan granted SPO III Berbano a twenty- a letter with the admonition that Berbano should not be like petitioners U.P.
day extension within which to resolve the motion for reconsideration, and reset fraternity brothers who would cover up petitioners corrupt and foul
the arraignment for October 2, 1992.[32] deeds. Berbano was pressured by said letter as indicated by his denial on
On September 24, 1992, SPO III Berbano denied petitioners motion for August 14, 1992 of the motion for reconsideration yet to be filed on 18 August
reconsideration and the motion for a last review, upon a finding that the 1992. After all, Berbano was aspiring for the Bench and it was not a far-flung
November 21, 1991 Resolution of GIO II Caraos and the Memorandum of SPO I conclusion that a favorable consideration of said motion for reconsideration may
Barreras-Sulit, both of which bore the imprimatur of the Ombudsman, simply prompt Abao to accuse him of partiality, Berbano being the UP fraternity brother
signify that there exists a prima facie case or probable cause against of the accused. Berbano in fact admitted to Roxas that he was being pressured
petitioner. Hence, he reiterated that the issues raised were evidentiary in nature to deny petitioners motion for reconsideration.
and should be resolved by the Sandiganbayan.[33]
4. Because the crime charged was for violation of Section 3 (b) of Republic Act
Petitioner did not appear at his arraignment on October 2, 1992. Hence, No. 3019, Abao should be charged as the briber. Abao never applied for
upon motion of the prosecution, a warrant for his arrest was issued. However, immunity from prosecution because his testimony was uncorroborated on
petitioners counsel arrived late and undertook to bring the proper medical material points. Moreover, while petitioner was deprived information on what was
59

happening with the case, Abao was regularly furnished with progress reports the Resolution denying his motion to quash. The Sandiganbayan gave him fifteen
thereon. Abao publicized such reports in Camarines Norte in clear violation of (15) days within which to file the motion for reconsideration and the prosecution
P.D. No. 749 mandating that proceedings in preliminary investigations shall be ten (10) days from receipt of said motion within which to comment. Meanwhile,
strictly confidential to protect the reputation of the official involved. the arraignment was reset to January 11, 1993.[42]
Petitioners motion for reconsideration was filed on December 8, 1992. He
Petitioner alleged further that there was a jurally and constitutionally reiterated therein that the preliminary investigation conducted was sham and
defective determination of probable cause as the complainant and his witnesses attended by irregularities amounting to violation of the very purpose for which
were never personally examined by any of the officers at the Offices of the preliminary investigation was instituted in our statute books. He emphasized that
Ombudsman and the Special Prosecutor. Neither was the complaint ever sworn SPO III Berbano was indeed pressured into denying his motions because of his
to before them. He argued once again on the failure of the NBI to conduct a application for judgeship. He claimed that the Sandiganbayan erred when it ruled
reinvestigation of the case and the hearsay nature of the affidavits of Ruidera that the courts power to examine the conclusions drawn by the prosecutor after
and Galeon. the preliminary investigation is only for the purpose of determining the existence
On November 19, 1992, SPO III Berbano filed an opposition to the motion to of just and proper cause to issue a warrant of arrest. Relying on the ruling
quash, arguing that all the pleadings filed by petitioner were duly considered, as in Salonga v. Cruz Pao[43] wherein this Court reviewed the prosecutions findings
shown by the Orders of August 14, 1992 and September 24, 1992, both of which of a prima facie case against Salonga, petitioner averred that it is infinitely more
were approved by his superiors, including the Ombudsman. While Atty. Roxas is important than conventional adherence to general rules of criminal procedure to
himself a Fraternity Brod of the Alpha Phi Beta Fraternity of UP, Berbano denied respect the citizens right to be free not only from arbitrary arrest and punishment
that he was ever pressured into denying petitioners motion for reconsideration. but also from unwarranted and vexatious prosecution.
Furthermore, Berbano averred that petitioners ground for the motion to The prosecution did not file a comment or opposition to the motion for
quash, i.e., that the Sandiganbayan never acquired jurisdiction over an reconsideration. On January 5, 1993, the Sandiganbayan issued a Resolution
information that was the result of a highly anomalous preliminary investigation, denying said motion for lack of merit and setting petitioners arraignment on
may only be inferred from Section 3 (b) of Rule 117 of the 1985 Rules on January 11, 1993. The Sandiganbayan held that petitioners allegations that the
Criminal Procedure requiring the court to have jurisdiction over the offense preliminary investigation was sham and that SPO III Berbano was partial are not
charged or over the person of the accused. By filing a motion to quash, petitioner supported by competent proof. Brushing aside said allegations as mere
was deemed to have admitted the allegations in the information and hence, there speculations, the Sandiganbayan found no reason to depart from its earlier
was only one way clear under the circumstances, and that was to proceed with conclusion that there was no compelling justification to disturb the prosecutions
the trial of the case.[39] finding of a probable cause.[44]
The Sandiganbayan[40] denied the motion to quash for lack of merit. It found Hence, the instant petition for certiorari and prohibition with application for
no persuasive reason to depart from its earlier holding in the Resolution of July the issuance of a temporary restraining order to enjoin respondents
28, 1992 that there was no indecent delay in the manner by which the preliminary Sandiganbayan, the Ombudsman and the People of the Philippines from
investigation was held. It ruled that the long period of time that the preliminary proceeding with Criminal Case No. 17800. On February 4, 1993, this Court
investigation took was not meant to persecute petitioner. Neither was there clear denied the prayer for temporary restraining order and required respondents to
and convincing proof that SPO III Berbano succumbed to pressure and comment on the petition.[45]Petitioners arraignment proceeded on February 19,
considered petitioners pleadings with partiality. The Sandiganbayan stressed that 1993, where he entered a plea of not guilty to the crime charged. [46] On
its authority to determine probable cause is limited only for the purpose of issuing September 21, 1993, after respondents filed their comment and petitioner his
a warrant of arrest, and not for the purpose of justifying the filing or non-filing of reply thereto, this Court gave due course to the instant petition and required the
the Information. It found no compelling justification to disturb the findings made parties to file their respective memoranda.[47] Meanwhile, the Sandiganbayan
by the prosecution of the existence of probable cause that caused it to file the suspended proceedings in Criminal Case No. 17800 on account of the pendency
information, and that the objections raised by accused-movant on this point of the instant petition.[48]
involve matters which could be best passed upon by this Court during trial on the
merits. Thus, the Sandiganbayan set petitioners arraignment on November 23, Petitioner alleges in this petition for certiorari and prohibition that: (a) the
1992.[41] determination of probable cause in Criminal Case No. 17800 was constitutionally
defective because the Ombudsman, before filing the information, and the
Petitioners counsel once again moved for the resetting of the scheduled Sandiganbayan, before issuing the warrant of arrest, failed to examine the
arraignment on the ground that he was filing a motion for the reconsideration of complainant under oath; (b) the preliminary investigation was hasty, malicious,
60

persecutory and based on inadmissible evidence thereby violating his right to complaint filed by Abao against him was subscribed to before an ordinary notary
due process of law, and (c) the unexplained 4-year delay in resolving the public and that the sworn statements of witnesses against him were sworn to
preliminary investigation, coupled with the favorable consideration of the before a provincial fiscal, not deputized by the Ombudsman, but acting merely as
complaint albeit manifestly false and politically motivated, violated his an officer authorized to administer oaths.[54]
constitutional rights to speedy trial and to due process of law.[49]
Article XI, Section 12 of the 1987 Constitution, which was in force and effect
At the outset, it is settled that a special civil action for certiorari and when Abao filed the complaint against petitioner, provides:
prohibition is not the proper remedy to assail the denial of a motion to quash an
information. This is succinctly underscored in Quion v. Sandiganbayan as Sec. 12. The Ombudsman and his Deputies, as protectors of the people, shall
follows: act promptly on complaints filed in any form or manneragainst public officials or
employees of the Government, or any subdivision, agency or instrumentality
The special civil action of certiorari or prohibition is not the proper remedy against thereof, including government-owned or controlled corporations, and shall, in
interlocutory orders such as those assailed in these proceedings; i.e., an order appropriate cases, notify the complainants of the action taken and the result
denying a motion to quash the information, and one declaring the accused to thereof. (Underscoring supplied.)
have waived his right to present evidence and considering the case submitted for
decision. As pointed out by the Office of the Solicitor General (citing The mandate to act promptly on complaints filed in any form or
Nierras v. Dacuycuy, 181 SCRA 1 [1990]), and Acharon v. Purisima, et al., 13 manner against officers or employees of the Government is restated in Section
SCRA 309; People v. Madaluyo, 1 SCRA 990), the established rule is that when 13 of Republic Act No. 6770 (The Ombudsman Act of 1989), approved into law
such an adverse interlocutory order is rendered, the remedy is not to resort on November 17, 1989. The same authority to act on complaints in any form,
forthwith to certiorari or prohibition, but to continue with the case in due course either verbal or in writing, is also reiterated in Rule 1, Section 3 of the Rules of
and, when an unfavorable verdict is handed down to take an appeal in the Procedure of the Office of the Ombudsman, which is embodied in Administrative
manner authorized by law. It is only where there are special circumstances Order No. 07 dated April 10, 1990, issued pursuant to the rule-making power of
clearly demonstrating the inadequacy of an appeal that the special civil action the Ombudsman under Section 13 (8) of the 1987 Constitution and Sections 18,
of certiorari or prohibition may exceptionally be allowed. The Court has been 23 and 27 of The Ombudsman Act of 1989.
cited to no such special circumstances in the cases at bar.[50]
In accordance with the foregoing constitutional and statutory provisions, this
In the case at bar, there is no showing of such special circumstances. The Court, in Diaz v. Sandiganbayan,[55] held valid charges that were not made in
jurisdiction of the Ombudsman over the complaint is not even questioned by writing or under oath. This Court found as sufficient basis the Solicitor Generals
petitioner[51] as his motion to quash the information is based on the allegedly sworn testimony at the joint fact-finding investigation conducted by the Senate
highly anomalous preliminary investigation that amounted to a denial of his rights Blue Ribbon Committee and the Ombudsman for the latter to conduct an
to due process and to speedy disposition of the charge against him. However, an investigation. On the other hand, in Olivas v. Office of the Ombudsman,[56] where
incomplete preliminary investigation[52]or the absence thereof[53] may not warrant the complaint against petitioner was initiated by anonymous letters, this Court
the quashal of an information. In such cases, the proper procedure is for the held that the PCGG, to whom the letters were addressed and who became the
Sandiganbayan to hold in abeyance any further proceedings conducted and to complainant in the proceedings, should have reduced the evidence it had
remand the case to the Ombudsman for preliminary investigation or completion gathered into affidavits. The submission of affidavits, provided for in Rule II,
thereof. However, granting arguendo that the preliminary investigation was sham Section 4 (a) of Administrative Order No. 07, is also required by due process in
and highly anomalous in this case, that defect was cured when the above adversary proceedings.[57] However, the submission of affidavits is not mandatory
procedure was in fact observed by the Sandiganbayan. Hence, on the issue and jurisdictional. Rule 1, Section 3 of the same administrative order merely
alone of the propriety of the remedy sought by petitioner, the instant petition states that it is preferable that the complaint be in writing and under oath for its
for certiorari and prohibition must fail. However, in the interest of justice, we shall speedier disposition. Clearly in consonance with the provision that the complaint
resolve the issue of whether or not the Ombudsman conducted the preliminary may be in any form, the Ombudsman Rules of Procedure does not require that
investigation erroneously and irregularly. the complaint be subscribed only before the Ombudsman or his duly authorized
representative. In any event, the issue of the sufficiency in form of the complaint
Petitioner contends that both the Ombudsman and the Sandiganbayan was rendered moot and academic by petitioners filing of a counter-affidavit
failed to examine the complainant personally to determine the existence of wherein he controverted the allegations in the complaint.[58]
probable cause that would warrant the filing of an information against him and,
consequently, the issuance of a warrant of arrest. He rues the fact that the
61

The referral of the complaint to the NBI does not mean that the Ombudsman It must be stressed that a preliminary investigation is merely inquisitorial, and it is
abdicated its constitutional and statutory duty to conduct preliminary often the only means of discovering the persons who may be reasonably charged
investigations. Article XI, Section 13 of the 1987 Constitution vests in the with a crime, to enable the prosecutor to prepare his complaint or information. It
Ombudsman the powers, functions and duties to: 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
(2) Direct, upon complaint or at its own instance, any public official or employee cause to believe that the accused is guilty thereof, and it does not place the
of the Government, or any subdivision, agency or instrumentality thereof, as well persons against whom it is taken in jeopardy.
as of any government-owned or controlled corporation with original charter, to
perform and expedite any act or duty required by law, or to stop, prevent, and The established rule is that a preliminary investigation is not the occasion for the
correct any abuse or impropriety in the performance of duties. full and exhaustive display of the parties evidence; it is for the presentation of
such evidence only as may engender a well-grounded belief that an offense has
(3) Direct the officer concerned to take appropriate action against a public official been committed and that the accused is probably guilty thereof.
or employee at fault, and recommend his removal, suspension, demotion, fine,
censure, or prosecution, and ensure compliance therewith. (Underscoring x x x x x x x x x.
supplied.)
The main function of the government prosecutor during the preliminary
Thus, by referring Abanos complaint to the NBI, the Ombudsman did not investigation is merely to determine the existence of probable cause, and to file
thereby delegate the conduct of the preliminary investigation of the case to that the corresponding information if he finds it to be so. And, probable cause has
investigative bureau. What was delegated was only the fact-finding function, been defined as the existence of such facts and circumstances as would excite
preparatory to the preliminary investigation still to be conducted by the the belief, in a reasonable mind, acting on the facts within the knowledge of the
Ombudsman.[59] Notably, under Rule II, Section 2 (d) of Administrative Order No. prosecutor, that the person charged was guilty of the crime for which he was
07, the investigating officer has the option to forward the complaint to the prosecuted.[62]
appropriate office or official for fact-finding investigation. While Administrative
Order No. 07 took effect in mid-1990[60] or after the complaint in this case was In determining probable cause, an inquiry into the sufficiency of evidence to
referred to the NBI, the inclusion of that constitutionally sanctioned practice in the warrant conviction is not required. It is enough that it is believed that the act or
Ombudsman Rules of Procedure lends validity to the Ombudsmans action in this omission complained of constitutes the offense charged. The trial of a case is
case. conducted precisely for the reception of evidence of the prosecution in support of
Under the circumstances of this case, the Ombudsmans failure to personally the charge.[63] In the performance of his task to determine probable cause, the
administer oath to the complainant does not mean that the Ombudsman did not Ombudsmans discretion is paramount. Thus, in Camanag v. Guerrero, this Court
personally determine the existence of probable cause to warrant the filing of an said:
information.
x x x. (S)uffice it to state that this Court has adopted a policy of non-interference
Neither did the Sandiganbayan violate petitioners right to due process of law in the conduct of preliminary investigations, and leaves to the investigating
by its failure to personally examine the complainant before it issued the warrant prosecutor sufficient latitude of discretion in the exercise of determination of what
of arrest. In a preliminary examination for the issuance of a warrant of arrest, a constitutes sufficient evidence as will establish probable cause for filing of
court is not required to review in detail the evidence submitted during information against the supposed offender.[64]
the preliminary investigation. What is required is that the judge personally
evaluates the report and supporting documents submitted by the prosecution in Neither is there merit in petitioners contention that the preliminary
determining probable cause.[61] In the absence of evidence that the investigation conducted by the Ombudsman was hasty, malicious and
Sandiganbayan did not personally evaluate the necessary records of the case, persecutory and that it was based on inadmissible evidence.
the presumption of regularity in the conduct of its official business shall stand.
Petitioner emphasizes the fact that while the Resolution recommending the
At this juncture, it is apropos to state once again the nature of a preliminary filing of the information was issued on June 11, 1992, the information was
investigation. In Cruz, Jr. v. People, the Court said: already prepared almost a month earlier on May 19, 1992.[65] This may show
oversight in the handling of the documents pertinent to this case considering that
the date of the information should have been corrected to conform to the date of
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the resolution where its filing was approved by the prosecutors But such duty should not be mistaken with a hasty resolution of cases at the
superiors. However, such faux pas did not violate petitioners substantive expense of thoroughness and correctness. Judicial notice should be taken of the
rights. The error in the date of the information did not affect its validity, especially fact that the nature of the Office of the Ombudsman encourages individuals who
since the recommendation to file it was with the imprimatur of the Ombudsman clamor for efficient government service to freely lodge their Complaints against
himself. wrongdoings of government personnel, thus resulting in a steady stream of cases
reaching the Office of the Ombudsman.[68]
With respect to the denial by SPO III Berbano of the motion for
reinvestigation on August 14, 1992 or prior to petitioners filing of his motion for
reconsideration on August 18, 1992, the record shows that petitioner filed two Finally, there is no ground to give credence to petitioners claim that the
motions for extension of time to file the motion for reinvestigation without the complainant should be charged as a briber on account of his admission that he
knowledge of SPO III Berbano. What the latter resolved on August 14, 1992 was gave petitioner some sum of money; or that evidence presented during the
petitioners motion for reinvestigation before the Sandiganbayan. Likewise, preliminary investigation, specifically the affidavits of witnesses, were hearsay
petitioners allegation that SPO III Berbano was not an impartial prosecutor and inadmissible. As we stated earlier, this Court cannot supplant the
cannot be given credence for lack of sufficient proof thereon. SPO III Berbano is Ombudsmans discretion in the determination of what crime to charge an
presumed to have issued the Resolution denying the motion for reinvestigation in accused.
the regular performance of his duties. All told, this Court finds no reason to reverse the assailed Resolutions of the
Neither is there factual support to petitioners claim that the 4-year delay in Sandiganbayan. Petitioners insinuation that he was subjected to the proceedings
the completion of the preliminary investigation is unexplained. The record clearly before the Ombudsman and the Sandiganbayan for politically motivated reasons,
shows that the Ombudsman exerted utmost effort to determine the veracity of has not been established with sufficient evidence. In the absence of any
Abaos allegations against petitioner. That it took the NBI almost two years to imputation that public respondents were impelled by ill-motive in filing the case
complete its report on the matter does not mean that petitioners right to speedy against him, it is presumed that there is no such motive and that public
disposition of the charge was brushed aside. If delay may be imputed in the respondents merely filed the case to correct a public wrong.[69]
proceedings, the same should be reckoned only from October 25, 1991 when WHEREFORE, the instant petition for certiorari and prohibition is
petitioner filed his counter-affidavit.[66] Thirty-six (36) days thereafter or on DISMISSED for lack of merit. The assailed Resolutions of the Sandiganbayan
November 29, 1991, GIO II Caraos issued the Resolution recommending the are hereby AFFIRMED. The Sandiganbayan is DIRECTED to proceed with
filing of the information. Further delay, if indeed it could be called one, was deliberate dispatch in the disposition of Criminal Case No. 17800.
caused by the review of GIO II Caraos recommendation by her superiors. Some
seven and a half months later, or on June 11, 1992, the information was filed with SO ORDERED.
the Sandiganbayan. There is thus no reason to conclude that the Ombudsman
ran roughshod over the petitioners right to a speedy preliminary investigation. In G.R. No. 85468 September 7, 1989
the determination of whether or not that right has been violated, the factors that
may be considered and weighed are the length of delay, the reasons for such QUINTIN S. DOROMAL, petitioner,
delay, the assertion or failure to assert such right by the accused, and the vs.
prejudice caused by the delay.[67] SANDIGANBAYAN, OMBUDSMAN AND SPECIAL
The length of time it took before the conclusion of the preliminary PROSECUTOR, respondents.
investigation may only be attributed to the adherence of the Ombudsman and the
NBI to the rules of procedure and the rudiments of fair play. The allegations of
Abaos complaint had to be verified; the Ombudsman did not believe the same
hook, line and sinker. Recently, the Court held that while the Rules of Court GRIÑO-AQUINO, J.:
provides a ten-day period from submission of the case within which an
investigating officer must come out with a resolution, that period of time is merely Brought up for review before this Court is the order dated August 19, 1988 of the
directory.Thus: Sandiganbayan denying petitioner's motion to quash the information against him
in Criminal Case No. 12893, entitled "People of the Philippines vs. Hon. Quintin
The Court is not unmindful of the duty of the Ombudsman under the Constitution S. Doromal," and the Sandiganbayan's order suspending him from office during
and Republic Act No. 6770 to act promptly on Complaints brought before him. the pendency of the case.
63

In October 1987, Special Prosecution Officer II, Dionisio A. Caoili, conducted a February 2, 1 987. From that time, he has been divested of such
preliminary investigation of the charge against the petitioner, Quintin S. Doromal, authority.
a former Commissioner of the Presidential Commission on Good Government
(PCGG), for- violation of the Anti-Graft and Corrupt Practices Act (RA 3019), Upon the annulment of the information against the petitioner, the Special
Sec. 3(h), in connection with his shareholdings and position as president and Prosecutor sought clearance from the Ombudsman to refile it.
director of the Doromal International Trading Corporation (DITC) which submitted
bids to supply P61 million worth of electronic, electrical, automotive, mechanical In a Memorandum dated July 8,1988, the Ombudsman, Honorable Conrado
and airconditioning equipment to the Department of Education, Culture and Vasquez, granted clearance but advised that "some changes be made in the
Sports (or DECS) and the National Manpower and Youth Council (or NMYC).
information previously filed." (p. 107, Rollo.)

On January 25,1988, with the approval of Special Prosecutor Raul Gonzales,


Complying with that Memorandum, a new information, duly approved by the
Caoili filed in the Sandiganbayan an information against the petitioner (Criminal Ombudsman, was filed in the Sandiganbayan (Criminal Case No. 12893),
Case No. 12766) alleging : alleging that:

That in or about the period from April 28, 19866 to October 16,
..., the above-named accused [Doromal] a public officer, being
1987, in Metro Manila, Philippines and within the jurisdiction of
then a Commissioner of the Presidential Commission on Good
this Honorable Court, the above-named accused, a public officer, Government, did then and there wilfully and unlawfully,
being then Commissioner of the Presidential Commission on participate in a business through the Doromal International
Good Government, did then and there wilfully and Trading Corporation, a family corporation of which he is the
unlawfully have direct or indirect financial interest in the Doromal
President, and which company participated in the biddings
International Trading Corporation, an entity which transacted or
conducted by the Department of Education, Culture and Sports
entered into a business transaction or contract with the and the National Manpower & Youth Council, which act or
Department of Education, Culture and Sports and the National
participation is prohibited by law and the constitution. (p. 68,
Manpower and Youth Council, both agencies of the government
Rollo; Emphasis supplied.)
which business, contracts or transactions he is prohibited by law
and the constitution from having any interest. (pp. 246-247,
Rollo; Emphasis supplied.) On July 25, 1988, petitioner filed a "Motion to Quash" the information for being:

The petitioner filed a petition for certiorari and prohibition in this Court (a) invalid because there had been no preliminary investigation;
questioning the jurisdiction of the "Tanodbayan" to file the information without the and
approval of the Ombudsman after the effectivity of the 1987 Constitution (G.R.
No. 81766, entitled "Doromal vs. Sandiganbayan"). (b) defective because the facts alleged do not constitute the
offense charged (Annex C).
On June 30, 1988, this Court annulled the information in accordance with its
decision in the consolidated cases ofZaldivar vs. Sandiganbayan, G.R. Nos. The Sandiganbayan denied the motion to quash in its orders dated July 25,1988
79690-707 and Zaldivar vs. Gonzales, G.R. No. 80578, April 27, 1988 (160 and August 19,1988 (Annexes D, N and 0, pp. 81,173 & 179, Rollo).
SCRA 843), where it ruled that:
On August 22, 1988, the Special Prosecutor filed a "Motion to Suspend Accused
... the incumbent Tanodbayan (called Special Prosecutor under Pendente Lite" pursuant to Section 13 of the Anti- Graft and Corrupt Practices
the 1987 Constitution and who is supposed to retain powers and Act (R.A. 3019). Over the petitioner's objection (because the President had
duties NOT GIVEN to the Ombudsman) is clearly without earlier approved his application for indefinite leave of absence as PCGG
authority to conduct preliminary investigations and to direct the commissioner "effective immediately and until final decision of the courts in your
filing of criminal cases with the Sandiganbayan, except upon case" [Annex S-1, p. 189, Rollo]), the Sandiganbayan on September 5, 1988
orders of the Ombudsman. This right to do so was lost effective ordered his suspension pendente lite from his position as PCGG Commissioner
and from any other office he may be holding (Annex T). His motion for
reconsideration of that order was also denied by the Court (Annex Y). Hence, this
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petition for certiorari and prohibition alleging that the Sandiganbayan gravely Sports and the National Manpower & Youth Council, which act or
abused its discretion: (1) in denying the petitioner's motion to quash the participation is prohibited by law and the constitution. (p. 68,
information in Criminal Case No. 12893; and, (2) in suspending the petitioner Rollo.)
from office despite the President's having previously approved his indefinite leave
of absence " until final decision" in this case. The petitioner's right to a preliminary investigation of the new charge is secured
to him by the following provisions of Rule 112 of the 1985 Rules on Criminal
The petitioner contends that as the preliminary investigation that was conducted Procedure:
prior to the filing of the original information in Criminal Case No. 12766 was
nullified by this Court, another preliminary investigation should have been SEC. 3. Procedure. ... no complaint or information for an offense
conducted before the new information in Criminal Case No. 12893 was filed cognizable by the Regional Trial Court shall be filed without a
against him. The denial of his right to such investigation allegedly violates his preliminary investigation having been first conducted. .....
right to due process and constitutes a ground to quash the information.
SEC. 7. When accused lawfully arrested without warrant.- When
On the other hand, the public respondent argues that another preliminary a person is lawfully arrested without a warrant for an offense
investigation is unnecessary because both old and new informations involve the cognizable by the Regional Trial Court, the complaint or
same subject matter a violation of Section 3 (H) of R.A. No. 3019 (the Anti-Graft information may be filed by the offended party, peace officer or
and Corrupt Practices Act) in relation to Section 13, Article VII of the 1987 fiscal without a preliminary investigation having been first
Constitution. Moreover, the petitioner allegedly waived the second preliminary conducted; on the basis of the affidavit of the offended party or
investigation by his failure to comply with the Court's Order dated August 12, arresting officer or person.
1988 directing him to submit a statement of new or additional facts, duly
supported by photo copies of documents which he would present should a new However, before the filing of such complaint or information, the
preliminary investigation be ordered (Annex H, p. 94, Rollo). person arrested may ask for a preliminary investigation by a
proper officer in accordance with this Rules ....
The petition is meritorious. A new preliminary investigation of the charge against
the petitioner is in order not only because the first was a nullity (a dead limb on
If the case has been filed in court without a preliminary
the judicial tree which should be lopped off and wholly disregarded"-Anuran vs. investigation having been first conducted, the accused
Aquino, 38 Phil. 29) but also because the accused demands it as his right. may within five (5) days from the time he learns of the filing of
Moreover, the charge against him had been changed, as directed by the the information, ask for a preliminary investigation with the same
Ombudsman.
right to adduce evidence in his favor in the manner prescribed in
this Rule.
Thus, while the first information in Criminal Case No. 12766 charge that the
DITC- That right of the accused is "a substantial one." Its denial over his opposition is a
"prejudicial error, in that it subjects the accused to the loss of life, liberty, or
entered into a business transaction or contract with the property without due process of law" (U.S. vs. Marfori, 35 Phil. 666).
Department of Education, Culture and Sports and the National
Manpower and Youth Council, ... which business, contracts or
The need to conduct a new preliminary investigation when the defendant
transactions he [petitioner] is prohibited by law and the demands it and the allegations of the complaint have been amended, has been
constitution from having any interest. (P. 70, Rollo.) more than once affirmed by this Court:

the new information in Criminal Case No. 12883 alleges that the petitioner:
III. (a) ..., the Court finds that since the information for alleged
violation of the Anti-Graft Law was filed without any previous
unlawfully participate[d] in a business through the Doromal notice to petitioners and due preliminary investigation thereof,
International Trading Corporation, a family corporation of which and despite the dismissal of the original charge for falsification
he is the President, and which company participated in the as being 'without any factual or legal basis, 'petitioners are
biddings conducted by the Department of Education, Culture and entitled to a new preliminary investigation for the graft
65

charge, with all the rights to which they are entitled under section of the information or otherwise render it defective; but, if there
1 of Republic Act No. 5180, approved September 8, 1967, as were no preliminary investigations and the defendants, before
invoked by them anew from respondent court, viz, the submittal entering their plea, invite the attention of the court to their
of the testimonies in affidavit form of the complainant and his absence, the court, instead of dismissing the information should
witnesses duly sworn to before the investigating fiscal, and the conduct such investigation, order the fiscal to conduct it or
right of accused, through counsel, to cross-examine them and to remand the case to the inferior court so that the preliminary
adduce evidence in their defense. In line with the settled doctrine investigation may be conducted. (See People vs. Gomez, 117
as restated in People vs. Abejuela (38 SCRA 324), respondent SCRA 72, 77-78; citing People vs. Casiano, 1 SCRA 478). In this
court shall hold in abeyance all proceedings in the case before it case, the Tanodbayan has the duty to conduct the said
until after the outcome of such new preliminary investigation. investigation.
(Luciano vs. Mariano, 40 SCRA 187, 201; emphasis ours).
There is no merit in petitioner's insistence that the information should be quashed
The right of the accused not to be brought to trial except when because the Special Prosecutor admitted in the Sandiganbayan that he does not
remanded therefor as a result of a preliminary examination possess any document signed and/or submitted to the DECS by the petitioner
before a committing magistrate, it has been held is a substantial after he became a PCGG Commissioner (p. 49, Rollo). That admission allegedly
one. Its denial over the objections of the accused is prejudicial belies the averment in the information that the petitioner "participated' in the
error in that it subjects the accused to the loss of life, liberty or business of the DITC in which he is prohibited by the Constitution or by law from
property without due process of law. (Conde vs. Judge of Court having any interest. (Sec. 3-h, RA No. 3019).
of First Instance of Tayabas, 45 Phil. 173,176.)
The Sandiganbayan in its order of August 19, 1988 correctly observed that "the
The absence of a preliminary investigation if it is not waived may presence of a signed document bearing the signature of accused Doromal as
amount to a denial of due process. (San Diego vs. Hernandez, part of the application to bid ... is not a sine qua non" (Annex O, p. 179. Rollo),
24 SCRA 110, 114.) for, the Ombudsman indicated in his Memorandum/Clearance to the Special
Prosecutor, that the petitioner "can rightfully be charged ...with having
In this jurisdiction, the preliminary investigation in criminal cases participated in a business which act is absolutely prohibited by Section 13 of
is not a creation of the Constitution;its origin is statutory and it Article VII of the Constitution" because "the DITC remained a family corporation
exists and the right thereto can be invoked when so established in which Doromal has at least an indirect interest." (pp. 107-108, Rollo).
and granted by law. (Mariano Marcos, et al. vs. Roman A. Cruz,
68 Phil. 96; Emphasis supplied.) Section 13, Article VII of the 1987 Constitution provides that "the President, Vice-
President, the members of the Cabinet and their deputies or assistants shall
The Solicitor General's argument that the right to a preliminary investigation may not... during (their) tenure, ...directly or indirectly... participate in any business."
be waived and was in fact waived by the petitioner, impliedly admits that the right The constitutional ban is similar to the prohibition in the Civil Service Law (PD
exists. Since the right belongs to the accused, he alone may waive it. If he No. 807, Sec. 36, subpar. 24) that "Pursuit of private business ... without the
demands it, the State may not withhold it. permission required by Civil Service Rules and Regulations" shall be a ground for
disciplinary action against any officer or employee in the civil service.
However, as the absence of a preliminary investigation is not a ground to quash
the complaint or information (Sec. 3, Rule 117, Rules of Court), the proceedings On the suspension of the petitioner from office, Section 13 of the Anti-Graft and
upon such information in the Sandiganbayan should be held in abeyance and the Corrupt Practices Act (RA 3019) provides:
case should be remanded to the office of the Ombudsman for him or the Special
Prosecutor to conduct a preliminary investigation. Thus did We rule in Luciano SEC. 13. Suspension and loss of benefits.-Any public officer
vs. Mariano, 40 SCRA 187, 201; Ilagan vs. Enrile 139 SCRA 349 and more against whom any criminal prosecution under a valid information
recently in Sanciangco, Jr. vs. People, 149 SCRA 1, 3-4: under this Act or under the provisions of the Revised Penal Code
on bribery is pending in court, shall be suspended from office.
The absence of preliminary investigation does not affect the Should he be convicted by final judgment, he shall lose all
court's jurisdiction over the case. Nor do they impair the validity retirement or gratuity benefits under any law, but if he is
66

acquitted, he shall be entitled to reinstatement and to the Pursuant to the guarantee of equal protection of the laws in the Bill of Rights of
salaries and benefits which he failed to receive during our Constitution, that same ruling was applied in Deloso vs. Sandiganbayan,
suspension, unless in the meantime administrative proceedings G.R. Nos. 86899-903, May 15,1989.
have been filed against him.
The petitioner herein is no less entitled to similar protection. Since his preventive
Since the petitioner is an incumbent public official charged in a valid information suspension has exceeded the reasonable maximum period of ninety (90) days
with an offense punishable under the Constitution and the laws (RA 3019 and PD provided in Section 42 of the Civil Service Decree of the Philippines (P.D. 807), it
807), the law's command that he "shall be suspended from office"pendente should now be lifted.
lite must be obeyed. His approved leave of absence is not a bar to his preventive
suspension for, as indicated by the Solicitor General, an approved leave, whether WHEREFORE, the petition for certiorari and prohibition is granted. The
it be for a fixed or indefinite period, may be cancelled or shortened at will by the Sandiganbayan shall immediately remand Criminal Case No. 12893 to the Office
incumbent. of the Ombudsman for preliminary investigation and shall hold in abeyance the
proceedings before it pending the result of such investigation. The preventive
Nevertheless, as we held in Layno, Sr. vs. Sandiganbayan, 136 SCRA 536 suspension of the petitioner is hereby lifted. No costs.
(1985), a preventive suspension for an indefinite period of time, such as one that
would last until the case against the incumbent official shall have been finally SO ORDERED.
terminated, would (4 outrun the bounds of reason and result in sheer oppression"
and a denial of due process. CRISOSTOMO VILLARIN and G.R. No. 175289
In the case of Garcia vs. The Executive Secretary, 6 SCRA 1 (1962), this Court ANIANO LATAYADA,
ordered the immediate reinstatement, to his position as chairman of the National Petitioners, Present:
Science Development Board, of a presidential appointee whose preventive
suspension had lasted for nearly seven (7) months. Some members of the Court
held that the maximum period of sixty (60) days provided in Section 35 of the CORONA, C.J., Chairperson,
Civil Service Act of 1959 (Republic Act 2260) was applicable to the petitioner.
LEONARDO-DE CASTRO,
The others believed, however, that period may not apply strictly to cases of
presidential appointees, nevertheless, the preventive suspension shall be limited - versus - BERSAMIN,
to a reasonable period. Obviously, the Court found the petitioner's preventive DEL CASTILLO, and
suspension for seven (7) months to be unreasonable. The Court stated:
VILLARAMA, JR., JJ.
To adopt the theory of respondents that an officer appointed by
the President, facing administrative charges can be preventively PEOPLE OF THE PHILIPPINES, Promulgated:
suspended indefinitely, would be to countenance a situation
where the preventive suspension can, in effect, be the penalty Respondent. August 31, 2011
itself without a finding of guilt after due hearing; contrary to the
express mandate of the Constitution (No officer or employee in
the Civil Service shall be removed or suspended except for x--------------------------------------------------------x
cause as provided by law. [Art. XII, Sec. 4, Constitution of the
Philippines]) and the Civil Service Law (No officer or employee in DECISION
the Civil Service shall be removed or suspended except for
cause as provided by law and after due process). ... In the guise DEL CASTILLO, J.:
of a preventive suspension, his term of office could be shortened
and he could, in effect, be removed without a finding of a cause
duly established after due hearing, in violation of the
Constitution. ....
67

Mere possession of timber without the legal documents required under forest laws and Thus, on October 29, 1996, an Information[10] was filed against petitioners
regulations makes one automatically liable of violation of Section 68, Presidential Decree Villarin and Latayada and their co-accused Baillo and Boyatac, for violation of Section 68,
(P.D.) No. 705,[1] as amended. Lack of criminal intent is not a valid defense. P.D. No. 705 as follows:

This petition for review on certiorari seeks to reverse the June 28, 2005 That on or about January 13, 1996, in Pagalungan, Cagayan
de Oro City, Philippines, and within the jurisdiction of this Honorable
Decision[2] of the Court of Appeals (CA) in CA-G.R. CR No. 26720 which affirmed in all Court, pursuant to RA 7975, the accused, Crisostomo Villarin, a public
respects the Judgment[3] of the Regional Trial Court (RTC), Branch 38, Cagayan De Oro officer being the Barangay Captain of Pagalungan, this City, with salary
grade below 27, taking advantage of his official position and committing
City, finding petitioners guilty beyond reasonable doubt of violation of Section 68, P.D. the offense in relation to his office, and the other above-named
No. 705, as amended. Likewise assailed in this accused, all private individuals, namely: Marlon Baillo, Cipriano
Boyatac, and Aniano Latayada, confederating and mutually helping
petition is the September 22,2006 Resolution[4] denying petitioners Motion for one another did then and there, willfully, unlawfully and feloniously
Reconsideration.[5] gather and possess sixty-three (63) pieces flitches of varying sizes
belonging to the Apitong specie with a total volume of Four Thousand
Three Hundred Twenty Six (4,326) board feet valued at P108,150.00,
Factual Antecedents without any authority and supporting documents as required under
existing forest laws and regulation to the damage and prejudice of the
government.
In a Criminal Complaint[6] filed before the Municipal Trial Court in Cities, Branch
4, Cagayan de Oro City by Marcelino B. Pioquinto (Pioquinto), Chief of the Forest CONTRARY TO LAW.[11]
Protection and Law Enforcement Unit under the TL Strike Force Team of Department of
Environment and Natural Resources (DENR), petitioner Aniano Latayada (Latayada)
On January 14, 1997, Villarin, Boyatac and Baillo, filed a Motion for
and three others namely, Barangay Captain Camilo Sudaria (Sudaria) of Tagpangi,
Reinvestigation.[12] They alleged that the Joint Affidavit[13]of the personnel of the DENR
Cagayan de Oro City, Marlon Baillo (Baillo) and Cipriano Boyatac (Boyatac), were
which became one of the bases in filing the Information never mentioned Villarin as one
charged with violation of Section 68, P.D. No. 705 as amended by Executive Order No.
of the perpetrators of the crime while the accusations against Baillo and Boyatac were
277.[7]
not based on the personal knowledge of the affiants. They also asserted that their
indictment was based on polluted sources, consisting of the sworn statements of
Subsequently, however, the Office of the City Prosecutor of Cagayan de Oro
witnesses like Latayada and Sudaria, who both appeared to have participated in the
City issued a Resolution[8] dated March 13, 1996 recommending the filing of an
commission of the crime charged.
Information for the aforesaid charge not only against Latayada, Baillo and Boyatac but
Instead of resolving the Motion for Reinvestigation, the RTC, in its
also against petitioner Crisostomo Villarin (Villarin), then Barangay Captain of
Order[14] dated January 27, 1997, directed Villarin, Boyatac, and Baillo to file their Motion
Pagalungan, Cagayan de Oro City. The dismissal of the complaint against Sudaria was
for Reinvestigation with the Office of the Ombudsman-Mindanao, it being the entity which
likewise recommended. Said Resolution was then approved by the Office of the
filed the Information in Court. On March 31, 1997, only Villarin filed a Petition for
Ombudsman-Mindanao through a Resolution[9] dated May 9, 1996 ordering the filing of
Reinvestigation[15] but same was, however, denied by the Office of the Ombudsman-
the Information in the RTC of Cagayan de Oro City.
Mindanao in an Order[16] dated May 15, 1997 because the grounds relied upon were not
based on newly discovered evidence or errors of fact, law or irregularities that are
68

prejudicial to the interest of the movants, pursuant to Administrative Order No. 07 or the On January 13, 1996, at around ten oclock in the morning, prosecution witness Juan
Rules of Procedure of the Office of the Ombudsman in Criminal Cases. The Office of the Casenas (Casenas), a radio and TV personality of RMN-TV8, took footages of the
Ombudsman-Mindanao likewise opined that Villarin was directly implicated by Latayada, timber[25] hidden and covered by coconut leaves. Casenas also took footages of more
his co-accused. logs inside a bodega at the other side of the bridge. In the following evening, the footages
were shown in a news program on television.
The RTC thus proceeded with the arraignment of the accused who entered separate
pleas of not guilty.[17] Thereafter, trial ensued. On the same day, members of the DENR Region 10 Strike Force Team measured the
timber which consisted of 63 pieces of Apitong flitches and determined that it totaled
The Version of the Prosecution 4,326 board feet[26] and subsequently entrusted the same to Alarcon for safekeeping.

On December 31, 1995, at around five oclock in the afternoon, prosecution witness Upon further investigation, it was learned that the timber was requisitioned by Villarin,
Roland Granada (Granada) noticed that a public utility jeep loaded with timber stopped who was then Barangay Captain of Pagulangan, Cagayan de Oro City. Villarin gave
near his house. The driver, petitioner Latayada, was accompanied by four to five other Sudaria the specifications for the requisitioned timber. Thereafter, Boyatac informed
persons, one of whom was Boyatac while the rest could not be identified Villarin that the timber was already delivered on December 31, 1995.[27]
by Granada.[18] They alighted from the jeep and unloaded the timber 10 to 15 meters
away from the Batinay bridge at Barangay Pagalungan, Cagayan De Oro City. Another On January 18, 1996, Felix Vera Cruz (Vera Cruz), a security guard at the DENR Region
prosecution witness, Pastor Pansacala (Pansacala), also noticed the jeep with plate 10 Office, received and signed for the confiscated timber since the property custodian at
number MBB 226 and owned by Sudaria, loaded with timber.[19] Being then the president that time was not around.
of a community-based organization which serves as a watchdog of illegal cutting of
trees,[20] Pansacala even ordered a certain Mario Bael to count the timber.[21] The filing of the aforestated Information followed.
The Version of the Defense
At six oclock in the evening of the same day, Barangay Captain Angeles Alarcon
(Alarcon)[22] noticed that the pile of timber was already placed near the bridge. Since she In response to the clamor of the residents of Barangays Tampangan, Pigsag-an,
had no knowledge of any scheduled repair of the Batinay bridge she was surprised to Tuburan and Taglinao, all in Cagayan De Oro City, Villarin, decided to repair the
discover that the timber would be used for the repair. After inquiring from the people living impassable Batinay bridge. The project was allegedly with the concurrence of
near the bridge, she learned that Latayada and Boyatac delivered the timber.[23] the Barangay Council.

Another prosecution witness, Ariel Palanga (Palanga), testified that at seven Pressured to immediately commence the needed repairs, Villarin commissioned Boyatac
oclock in the morning of January 1, 1996, Boyatac bought a stick of cigarette from his to inquire from Sudaria about the availability of timber without first informing the City
store and requested him to cover the pile of timber near the bridge for a fee. Palanga Engineer. Sudaria asked for the specifications which Villarin gave. Villarin then asked
acceded and covered the pile with coconut leaves.[24] Baillo and Boyatac to attend to the same. When the timber was already available, it was
transported from Tagpangi to Batinay. However, the timber flitches were seized by the
69

DENR Strike Force Team and taken to its office where they were received by Vera Cruz, Petitioners filed a Motion for Reconsideration[31] which was denied by the
the security guard on duty.
RTC in its Order[32] dated August 20, 2002.
Ruling of the Regional Trial Court
Ruling of the Court of Appeals
In its Memorandum filed before the trial court, the defense notified the court of Boyatacs
demise.[28] However, the trial court did not act on such notice. Instead, it proceeded to rule Petitioners filed an appeal which was denied by the CA in its Decision dated June 28,
on the culpability of Boyatac. Thus, in its Judgment, the trial court found herein petitioners 2005. The dispositive portion of which reads:
and the deceased Boyatac guilty as charged. On the other hand, it found the evidence
WHEREFORE, in view of all the foregoing, the judgment of the court a
against Baillo insufficient. The dispositive portion of the Judgment reads:
quo finding [d]efendant-[a]ppellants Crisostomo Villarin, Cipriano
Boyatac and Aniano Latayada GUILTY beyond reasonable doubt for
WHEREFORE, in view of the foregoing findings, judgment is violating Sec. 68 of Presidential Decree 705 is hereby AFFIRMED in
hereby rendered finding the accused Crisostomo Villarin, Cipriano toto. No pronouncement as to cost.
Boyatac and Aniano Latayada guilty beyond reasonable doubt of
violating Section 68 of Presidential Decree No. 705 as amended, and SO ORDERED.[33]
hereby sentences each of them to suffer an indeterminate sentence of
twelve (12) years of prision mayor as minimum to seventeen (17) years
of reclusion temporal as maximum.
Petitioners filed a Motion for Reconsideration[34] which the appellate court denied
Accused Marlon Baillo is hereby acquitted for lack of for lack of merit in its Resolution[35] promulgated on September 22, 2006.
evidence.
SO ORDERED.[29]
Issues

In reaching said conclusions, the RTC noted that:


Undeterred, petitioners filed the instant petition raising the following issues:

Without an iota of doubt, accused Crisostomo Villarin, being then a


1. WHETHER X X X THE COURT OF APPEALS[,] ON [THE]
Barangay Captain of Pagalungan, Cagayan de Oro City, was the one
MATTER OF PRELIMINARY INVESTIGATION[,] DECIDED NOT
who procured the subject flitches, while accused Aniano Latayada and
IN ACCORD WITH JURISPRUDENCE OF THE SUPREME
Cipriano Boyatac mutually helped him and each other by transporting
COURT;
the flitches from Sitio Batinay to the Pagalungan Bridge. The accused
would like to impress upon the Court that the subject fltiches were
2. WHETHER X X X THE COURT OF APPEALS DEPARTED
intended for the repair of thePagalungan Bridge and were acquired by
FROM WHAT THE SUPREME COURT HAS ALWAYS BEEN
virtue of Barangay Resolution No. 110 of Barangay Pagalungan. The
SAYING, THAT, TO CONVICT AN ACCUSED ALL ELEMENTS
Court is not impressed by this lame excuse. There is no dispute that
OF THE CRIME MUST BE PROVEN BEYOND REASONABLE
the flitches were intended for the repair of the bridge. The Court finds it
DOUBT and;
a laudable motive. The fact remains though that the said forest
products were obtained without the necessary authority and legal
3. WHETHER X X X THE COURT OF APPEALS[,] IN
documents required under existing forest laws and regulations.[30]
AFFIRMING THE PENALTY IMPOSED BY THE COURT A
QUO[,] DEPARTED FROM JURISPRUDENCE THAT EVEN IN
70

CRIMES [INVOLVING] VIOLATION OF SPECIAL LAWS[,]


The subpoena issued to the accused and the copy of their counter-affidavits were also
SPECIAL CONSIDERATION SHOULD BE GIVEN TO
CIRCUMSTANCES THAT [CAN BE CONSIDERED AS not part of the record. Moreover, the complaint did not include Villarin as a
MITIGATING HAD THE VIOLATION BEEN PENALIZED UNDER respondent. However, said infirmities do not constitute denial of due process particularly
THE REVISED PENAL CODE, IN ORDER TO REDUCE
PENALTY].[36] on the part of Villarin.

It is evidently clear from the Resolution dated March 13, 1996 of the Office of the
Petitioners argue that the refusal of the Ombudsman to conduct a reinvestigation is
City Prosecutor that Villarin and all the accused participated in the scheduled preliminary
tantamount to a denial of the right to due process. As Villarin was indicted in the
investigation that was conducted prior to the filing of the criminal case.[39] They knew
Information despite his not being included in the criminal complaint filed by Pioquinto of
about the filing of the complaint and even denied any involvement in the illegal cutting of
the TL Strike Force Team of the DENR, they claim that he was not afforded a preliminary
timber. They were also given the opportunity to submit countervailing evidence to
investigation. They also bewail the fact that persons who appear to be equally guilty, such
convince the investigating prosecutor of their innocence.
as Sudaria, have not been included in the Information. Hence, they argue that the
Ombudsman acted with grave abuse of discretion in denying their petition for
Foregoing findings considered, there is no factual basis to the assertion that
reinvestigation because it deprived Villarin of his right to preliminary investigation and in
Villarin was not afforded a preliminary investigation.Accordingly, we find no grave abuse
refusing and to equally prosecute the guilty. They contend that the Ombudsman should
of discretion on the part of the Office of the Ombudsman-Mindanao in denying Villarins
not have relied on the prosecutors Certification[37] contained in the Information to the
motion for reconsideration. It validly relied on the certification contained in the Information
effect that a preliminary investigation was conducted in the case.
that a preliminary investigation was properly conducted in this case. The certification was
made under oath by no less than the public prosecutor, a public officer who is presumed
Moreover, petitioners contend that the evidence was insufficient to prove their
to have regularly performed his official duty.[40] Besides, it aptly noted that Villarin was
guilt beyond reasonable doubt since they had no intention to possess the timber and
implicated by x x x Latayada in his affidavit dated January 22, 1996 before Marcelino B.
dispose of it for personal gain. They likewise claim that there was failure on the part of the
Pioquinto, Chief, Forest Protection and Law Enforcement Unit. The denial of Villarin
prosecution to present the timber, which were the object of the offense.
cannot prevail over the declaration of witnesses.[41]

Our Ruling
Moreover, the absence of a proper preliminary investigation must be timely raised and
The petition is unmeritorious. must not have been waived. This is to allow the trial court to hold the case in abeyance
and conduct its own investigation or require the prosecutor to hold a reinvestigation,
Villarin was properly afforded
his right to due process. which, necessarily involves a re-examination and re-evaluation of the evidence already
submitted by the complainant and the accused, as well as the initial finding of probable
Records show that the investigating prosecutor received a criminal complaint charging cause which led to the filing of the Informations after the requisite preliminary
Sudaria, Latayada, Baillo and Boyatac with violation of Section 68 of P.D. No. 705, as investigation.[42]
amended.[38] The said complaint did not state the known addresses of the
accused. Neither was the notarized joint-affidavit of the complainants attached thereto.
71

ordered the cutting, gathering, collection or possession shall be liable,


Here, it is conceded that Villarin raised the issue of lack of a preliminary investigation in
and if such officers are aliens, they shall, in addition to the penalty, be
his Motion for Reinvestigation. However, when the Ombudsman denied the motion, he deported without further proceedings on the part of the Commission on
never raised this issue again. He accepted the Ombudsman's verdict, entered a plea of Immigration and Deportation.

not guilty during his arraignment and actively participated in the trial on the merits by
attending the scheduled hearings, conducting cross-examinations and testifying on his There are two distinct and separate offenses punished under Section 68 of P.D. No. 705,
own behalf. It was only after the trial court rendered judgment against him that he once to wit:
again assailed the conduct of the preliminary investigation in the Motion for
Reconsideration.[43] Whatever argument Villarin may have regarding the alleged absence (1) Cutting, gathering, collecting and removing timber or other forest products
of a preliminary investigation has therefore been mooted. By entering his plea, and from any forest land, or timber from alienable or disposable public land, or
actively participating in the trial, he is deemed to have waived his right to preliminary from private land without any authorization; and
investigation.
(2) Possession of timber or other forest products without the legal documents
Petitioners also contend that Sudaria should also have been included as a principal in the required under existing forest laws and regulations.[45]
commission of the offense. However, whether Sudaria should or should not be included
as co-accused can no longer be raised on appeal. Any right that the petitioners may have The Information charged petitioners with the second offense which is
in questioning the non-inclusion of Sudaria in the Information should have been raised in consummated by the mere possession of forest products without the proper documents.
a motion for reconsideration of the March 13, 1996 Resolution of the Office of the City
Prosecutor which recommended the dismissal of the complaint We reviewed the records and hold that the prosecution had discharged the
against Sudaria.[44] Having failed to avail of the proper burden of proving all the elements of the offense charged. The evidence of the
procedural remedy, they are now estopped from assailing his non-inclusion. prosecution proved beyond reasonable doubt that petitioners were in custody of timber
without the necessary legal documents. Incidentally, we note that several transcripts of
Two Offenses Penalized Under stenographic notes (TSNs) were not submitted by the trial court. No explanation was
Sec. 68 of Presidential Decree
No. 705. provided for these missing TSNs. Notwithstanding the incomplete TSNs, we still find that
the prosecution was able to prove beyond reasonable doubt petitioners culpability.
Section 68 of P.D. No. 705, as amended, provides:
The prosecution adduced several documents to prove that timber was
Section 68. Cutting, Gathering and/or Collecting Timber or
Other Forest Products Without License. Any person who shall cut, confiscated from petitioners. It presented a Tally Sheet[46] to prove that the DENR Strike
gather, collect, remove timber or other forest products from any forest Force Team examined the seized timber on January 13, 1996. The number, volume and
land, or timber from alienable or disposable public land, or from private
appraised value of said timber were also noted in the Tally Sheet. Seizure receipts were
land, without any authority, or possess timber or other forest products
without legal documents as required under existing forest laws and also presented to prove that the confiscated timber were placed in the custody of
regulations, shall be punished with the penalties imposed under Alarcon[47] and eventually taken to the DENR Office.[48] There was a photograph of the
Articles 309 and 310 of the Revised Penal Code: Provided, that in the
case of partnerships, associations, or corporations, the officers who timber taken by the television crew led by Casenas.[49]
72

Q And his arrest and the slackening of his activities of illegally cut
The prosecution likewise presented in evidence the testimonies of
lumber occurred prior to June 1995?
eyewitnesses Granada and Pansacala who testified that Latayada and Boyatac were the A Yes, sir.
ones who delivered the timber.[50]
Q [In spite] of your knowledge that he is engaged [in] illegally cut[ting]
forest products, you as Barangay Captain of Pagalungan
More significantly, Villarin admitted that he was the one who commissioned the transacted with him for the purpose of acquiring lumber [for]
procurement of the timber[51] for the repair of the Batinay bridge. He even deputized the bridge at Pagalungan?
A As we rode together in his jeep, he informed me that he has some
Boyatac to negotiate with Sudaria and gave Latayada P2,000.00 to transport the
lumber to be used to build his house and he told me he will
logs. Boyatac later informed him of the delivery of timber. However, he could not present sell it for the repair of the bridge in Pagalungan.
any document to show that his possession thereof was legal and pursuant to existing
forest laws and regulations. Q And because of that, in addition, you sent him the specifications of
materials for the repair of the bridge in Pagalungan?
Relevant portions of the testimony of Villarin are as follows: A I let Boyatac go to him and [inquire] from him if he has those
specifications.
Q As Barangay Captain of Pagalungan, of course, you heard reports
prior to the incident on December 31, 1995 that Barangay Q And he communicated to you that he has available lumber of those
Captain Camilo Sudaria was also engaged in supplying forest specification?
products like forest lumber? A Yes, because he sent to Boyatac some requirements of the
A Yes, because I always go to Cagayan de Oro and I can always ride specifications and he let me sign it.
on his jeepney.
Q And after that, you closed the [deal] with Sudaria?
Q And you were sure that information of yours was received by you A Yes, because I sent somebody to him and we did not talk anymore.
and not only by one but several persons from Barangay
Tagpangi even up to Barangay Pagalungan? Q And thereafter on December 31, 1995, according to your testimony
A Thats true because he even has a record with the police. before, Aniano Latayada delivered the lumber flitches you
ordered on board the passenger jeep of Camilo Sudaria?
Q And you learned [this] prior to January 1995? A When the specifications were given, we were informed that the
A Yes, Sir. lumber were already there. So, it was delivered.

Q And your information was even to the effect that Sudaria was Q Who informed you that the lumber were already delivered?
supplying illegally cut lumber regularly? A Boyatac.
A What I have noticed because I always ride on his jeep wherein
lumber was being loaded, the lumber will be taken when it Q And he is referring to those lumber placed alongside
arrived in Lumbia, kilometer 5. the Batinay Bridge.
A Yes, Sir.
Q Even if there were already raids being conducted to the person of
Camilo Sudaria, still he continued to load illegally cut lumber? Q And even without personally inspecting it, you immediately paid
A He slowed down after several arrest because maybe he was Latayada the compensation for the delivery of those lumber?
ashamed because he was the Barangay Captain of Tagpangi. A There was already an advance payment for his delivery.
73

As a special law, the nature of the offense is malum prohibitum and as such,
Q To whom did you give the advance?
criminal intent is not an essential element. However, the prosecution must prove that
A To Latayada.
petitioners had the intent to possess (animus possidendi) the timber.[53] Possession,
Q You have not given the amount to Camilo Sudaria? under the law, includes not only actual possession, but also constructive
A No, Sir.
possession. Actual possession exists when the [object of the crime] is in the immediate
Q In fact, the money that you paid to Latayada was specifically for the physical control of the accused. On the other hand, constructive possession exists when
transportation of the lumber from Tagpangi to Batinay bridge? the [object of the crime] is under the dominion and control of the accused or when he has
A Yes, Sir.
the right to exercise dominion and control over the place where it is found.[54]
PROS. GALARRITA:
Q And at that time, you paid Latayada P2,000 as payment of the There is no dispute that petitioners were in constructive possession of the timber
lumber? without the requisite legal documents. Villarin and Latayada were personally involved in
A Yes, Sir.
its procurement, delivery and storage without any license or permit issued by any
COURT: competent authority.Given these and considering that the offense is malum
Q Did you pay Latayada? prohibitum, petitioners contention that the possession of the illegally cut timber was not
A Yes, Sir.
for personal gain but for the repair of said bridge is, therefore, inconsequential.
Q How much?
A P2,000. Corpus Delicti is the Fact of the
Commission of the Crime
Q And you gave this to the conductor?
A Yes, Sir.
Petitioners argue that their convictions were improper because the corpus
Q You told the conductor to pay the money to Latayada? delicti had not been established. They assert that the failure to present the confiscated
A Yes, sir.
timber in court was fatal to the cause of the prosecution.

Q What did the conductor say?


A The conductor said that the money was for the payment for the We disagree. [C]orpus delicti refers to the fact of the commission of the crime
transporting of lumber from Tagpangi.[52] (Underscoring ours.) charged or to the body or substance of the crime. In its legal sense, it does not refer to
the ransom money in the crime of kidnapping for ransom or to the body of the person
Violation of Sec. 68 of murdered[55] or, in this case, to the seized timber. Since the corpus delicti is the fact of the
Presidential
Decree No. 705, as amended, i commission of the crime, this Court has ruled that even a single witness uncorroborated
s testimony, if credible, may suffice to prove it and warrant a conviction therefor. Corpus
malum prohibitum.
delicti may even be established by circumstantial evidence.[56]
74

Here, the trial court and the CA held that the corpus delicti was established by shall not exceed twenty years. In such cases, and in connection with
the accessory penalties which may be imposed and for the purpose of
the documentary and testimonial evidence on record.The Tally Sheet, Seizure Receipts the other provisions of this Code, the penalty shall be termed prision
issued by the DENR and photograph proved the existence of the timber and its mayor or reclusion temporal, as the case may be. x x x

confiscation. The testimonies of the petitioners themselves stating in no uncertain terms


the manner in which they consummated the offense they were charged with were
The Information filed against the petitioners alleged that the 63 pieces of timber
likewise crucial to their conviction.
without the requisite legal documents measuring 4,326 board feet were valued
at P108,150.00. To prove this allegation, the prosecution presented Pioquinto to testify,
We find no reason to deviate from these findings since it has been established
among others, on this amount. Tally Sheets and Seizure Receipts were also presented
that factual findings of a trial court are binding on us, absent any showing that it
to corroborate said amount. With the value of the timber exceeding P22,000.00, the basic
overlooked or misinterpreted facts or circumstances of weight and substance.[57] The
penalty is prision mayor in its minimum and medium periods to be imposed in its
legal precept applies to this case in which the trial courts findings were affirmed by the
maximum, the range of which is eight (8) years, eight (8) months and one (1) day to ten
appellate court.[58]
(10) years. Since none of the qualifying circumstances in Article 310 of the RPC was
alleged in the Information, the penalty cannot be increased two degrees higher.
The Proper Penalty

In determining the additional years of imprisonment, P22,000.00 is to be


Violation of Section 68 of P.D. No. 705, as amended, is penalized as qualified
deducted from P108,150.00, which results to P86,150.00.This remainder must be
theft under Article 310 in relation to Article 309 of the Revised Penal Code (RPC). The
divided by P10,000.00, disregarding any amount less than P10,000.00. Consequently,
pertinent portions of these provisions read:
eight (8) years must be added to the basic penalty. Thus the maximum imposable
penalty ranges from sixteen (16) years, eight (8) months and one (1) day to eighteen (18)
Art. 310. Qualified Theft The crime of theft shall be punished
by the penalties next higher by two degrees than those respectively years of reclusion temporal.
specified in the next preceding articles, if committed by a domestic
servant, or with grave abuse of confidence, or if the property stolen is
motor vehicle, mail matter or large cattle or consists of coconuts taken Applying the Indeterminate Sentence Law, the minimum imposable penalty
from the premises of the plantation or fish taken from a fishpond or should be taken anywhere within the range of the penalty next lower in degree, without
fishery, or if property is taken on the occasion of fire, earthquake,
typhoon, volcanic eruption, or any calamity, vehicular accident or civil considering the modifying circumstances. The penalty one degree lower from prision
disturbance. mayor in its minimum and medium periods is prision correccional in its medium and
maximum periods, the range of which is from two (2) years, four (4) months and one (1)
Art. 309. Penalties. Any person guilty of theft shall be punished
by: day to six (6) years. Thus, the RTC, as affirmed by the CA, erroneously fixed the
minimum period of the penalty at twelve (12) years of prision mayor.
1. The penalty of prision mayor in its minimum and medium
periods, if the value of the thing stolen is more than 12,000 pesos but
does not exceed 22,000 pesos; but if the value of the thing stolen Finally, the case against Boyatac must be dismissed considering his demise
exceeds the latter amount, the penalty shall be the maximum period of
the one prescribed in this paragraph, and one year for each additional even before the RTC rendered its Judgment.
ten thousand pesos, but the total of the penalty which may be imposed
75

WHEREFORE, the petition is DENIED. The assailed Decision dated June 28, 4. an urgent motion to change the venue and the officers
to conduct the preliminary investigation filed by petitioner
2005 and the Resolution dated September 22, 2006 in CA-G.R. CR No. 26720 on November 17, 1997.
are AFFIRMED with the MODIFICATIONS that petitioners Crisostomo Villarin and
The antecedent facts:
Aniano Latayada are each sentenced to suffer imprisonment of two (2) years, four (4)
months, and one (1) day of prision correccional, as minimum, to sixteen (16) years, eight Petitioner Francisco Juan Larranaga is charged with two counts of kidnapping
(8) months, and one (1) day of reclusion temporal, as maximum. The complaint against and serious illegal detention docketed as CBU-45303 and CBU-45304 pending
before the Regional Trial Court (RTC), Branch 7, Cebu City. He is presently
Cipriano Boyatac is herebyDISMISSED. detained at the Bagong Buhay Rehabilitation Center.

On October 1, 1997, petitioner, represented by his mother, Margarita G.


G.R. No. 130644 March 13, 1998 Larranaga, filed with this Court a petition for certiorari, prohibition
and mandamus with writs of preliminary prohibitory and mandatory injunction.
THE MINOR FRANCISCO JUAN LARRANAGA, Represented in this Suit by Petitioner alleged that he was denied the right to preliminary investigation and
his mother, MARGARITA G. LARRANAGA, petitioner, sought to annul the informations as well as the warrant of arrest issued in
vs. consequence thereof. In the alternative, petitioner prayed that a preliminary
COURT OF APPEALS and PEOPLE OF THE PHILIPPINES, respondents. investigation be conducted and that he be released from detention pending the
investigation.1 Petitioner filed a supplemental petition for habeas corpus or bail
RESOLUTION on October 6, 1997.2

On October 20, 1997, the Solicitor General filed a manifestation and motion in
lieu of comment submitting that petitioner should have been given a regular
PUNO, J.: preliminary investigation before the filing of the informations and the issuance of
the warrant of arrest. The Solicitor General recommended that petitioner be
accorded his right to preliminary investigation and that he be released from
The following are submitted before the Court for resolution: detention during the pendency thereof;3

1. an urgent motion to implement petitioner's release On October 27, 1997, we issued a resolution holding that petitioner was deprived
filed by petitioner on November 3, 1997; of his right to preliminary investigation when the City Prosecutor of Cebu insisted
that he was only entitled to an inquest investigation.4Hence, we resolved:
2. a motion for reconsideration of this Court's resolution
of October 27, 1997 filed on November 17, 1997 by the 1. to set aside the inquest investigation of petitioner and
counsels for the prosecution in Crim. Case No. CBU- to order the Office of the City Prosecutor of Cebu to
45303 and 45304; conduct a regular preliminary investigation of the
petitioner in accord with Section 3, Rule 112;
3. a complaint filed by Judge Martin A. Ocampo,
Presiding Judge, Regional Trial Court, Branch 7, Cebu 2. to annul the Order for Detention During The Pendency
City, against petitioner's counsels, Attorneys Raymundo of the Case issued by Executive Judge Priscila Agana
A. Armovit, Ramon R. Teleron and Bernardito Florido, against the petitioner in Crim. Case No. CBU-45303 and
for allegedly deliberately withholding from this Court the 45304;
omnibus order, supplemental order and order of
arraignment he issued on October 17, 1997, thus
misleading the Court into issuing its resolution of 3. to order the immediate release of petitioner pending
October 27, 1997; and his preliminary investigation; and
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4. to order the Presiding Judge of Br. VII, RTC of Cebu Judge Priscila S. Agana cured whatever defect there
City to cease and desist from proceeding with the was in petitioner's arrest and detention;
arraignment and trial of petitioner in Crim. Case No.
CBU-45303 and 45304, pending the result of petitioner's 4. Petitioner was validly arraigned on October 14, 1997
preliminary investigation. and the validity of such arraignment was not set aside by
this tribunal;
On October 30, 1997, petitioner filed with the RTC of Cebu an urgent ex
parte motion praying for his immediate release pursuant to our October 27 5. The case of Sanchez v. Demetriou squarely applies to
resolution.5 the instant case; and

The following day, on October 31, 1997, Judge Martin A. Ocampo, Presiding 6. Petitioner is no longer a minor pursuant to R.A. 6809.
Judge of RTC Branch 7, Cebu City, issued an order deferring the resolution of
petitioner's motion. It stated that it would be premature to act on the motion since
The Solicitor General, meanwhile, in its comment to petitioner's urgent motion for
the trial court has not yet received an official copy of our October 27 resolution release, modified its stance regarding the validity of petitioner's detention. 10 It
and that said resolution has not yet attained finality. Furthermore, Judge Ocampo
stated:
called the Court's attention to the fact that petitioner has been arraigned on
October 14, 1997 and waived his right to preliminary
investigation. 6 Considering that petitioner was arraigned (a supervening event after the
filing of the petition and before the issuance of the TRO), petitioner
should be kept in detention without prejudice to his right to preliminary
On November 3, 1997, petitioner filed with this Court an urgent motion praying, investigation.11
among others, that Judge Ocampo be directed to order petitioner's immediate
release upon receipt of our October 27 resolution.7
Petitioner also filed on November 17, 1997 an urgent motion to transfer the
venue of the preliminary investigation from Cebu City to Manila and to replace
Judge Ocampo filed with this Court a letter-complaint dated November 3, 1997
the Office of the City Prosecutor of Cebu with the Office of the State Prosecutor,
alleging that petitioner's counsels, Attorneys Raymundo A. Armovit, Ramon R.
Department of Justice, as the authority to conduct the preliminary investigation
Teleron and Bernardito Florido, deliberately withheld from this Court the omnibus because of the extensive coverage of the proceedings by the Cebu media which
order, supplemental order and order of arraignment, all issued by him on October allegedly influenced the people's perception of petitioner's character and guilt.12
14, 1997 in connection with Crim. Case No. CBU-45303 and 45304. Judge
Ocampo alleged that by withholding said orders, petitioner's counsels unwittingly
misled the Court in its October 27 resolution.8 The primary issues to be resolved are: (1) whether petitioner is entitled to a
regular preliminary investigation, and (2) whether petitioner should be released
from detention pending the investigation.
On November 17, 1997, the counsels for the prosecution in Crim. Case No.
CBU-45303 and 45304 filed a motion for reconsideration of our October 27
resolution. 9 They raised the following arguments: We resolve the first issue in the affirmative.

1. Petitioner is charged with a continuing offense; hence, The prosecutors argue that petitioner is entitled only to an inquest investigation
his arrest and detention about two months after the under Section 7 of Rule 112 since he was lawfully arrested without a warrant
abduction of the victims was lawful; under Section 5, Rule 113 of the Revised Rules of Court.

2. Since petitioner was arrested without a warrant, his The prosecutors' argument is bereft of merit. Section 7 of Rule 11213 applies only
case comes within the purview of Section 7 of Rule 112, to persons lawfully arrestedwithout a warrant. Petitioner in this case was, in the
not under Section 3 thereof; first place, not arrested either by a peace officer or a private person. The facts
show that on September 15, 1997, some members of the Philippine National
Police Criminal Investigation Group (PNP CIG) went to the Center for Culinary
3. The filing of the informations in court and the issuance Arts in Quezon City to arrest petitioner, albeitwithout warrant. Petitioner resisted
of the corresponding warrants of arrest by Executive
77

the arrest and immediately phoned his sister and brother-in-law. Petitioner's It does not appear in the case at bar that petitioner has just committed, is actually
sister sought the aid of Atty. Raymundo A. Armovit. Atty. Armovit, over the committing or is attempting to commit an offense when the police officers tried to
phone, dissuaded the police officers from carrying out the warrantless arrest and arrest him on September 15, 1997. In fact, petitioner was attending classes at the
proposed to meet with them at the CIG headquarters in Camp Crame, Quezon Center for Culinary Arts at that time.
City. The police officers, yielded and returned to the CIG headquarters.
Petitioner, together with his sister and brother-in-law also went to the CIG We reject the prosecutors' argument that petitioner was actually committing a
headquarters aboard their own vehicle. Atty. Armovit questioned the legality of crime at the time of the arrest since kidnapping with serious illegal detention is a
the warrantless arrest before CIG Legal Officer Ruben Zacarias. After consulting continuing crime. In the case of Parulan v. Director of Prisons17 cited by the
with his superiors, Legal Officer Zacarias ordered to stop the arrest and allowed prosecutors, kidnapping with illegal detention is considered a continuing crime
petitioner to go home. Atty. Armovit made an undertaking in writing that he and where the deprivation of liberty is persistent and continuing from one place to
petitioner would appear before the Cebu City Prosecutor on September 17, 1997 another. The facts show that the alleged kidnapping was committed on July 16,
for preliminary investigation. 1997. One of the victims, Marijoy Chiong, was found dead in Sitio Tanawan,
Barangay Guadalupe, Carcar, Cebu on July 18, 1997, while the other victim,
An arrest is defined as the taking of a person into custody in order that he may Jacqueline Chiong, remains missing to date. There is no showing that at the time
be bound to answer for the commission of an offense.14 It is made by an actual of the arrest on September 15, 1997, Jacqueline Chiong was being detained by
restraint of the person to be arrested, or by his submission to the custody of the petitioner who was then residing in Quezon City. Hence, the petitioner may not
person making the arrest. 15 An arrest signifies restraint on person, depriving one be considered as continually committing the crime of kidnapping with serious
of his own will and liberty, binding him to become obedient to the will of the illegal detention at the time of the arrest.
law.16 The foregoing facts show no restraint upon the person of petitioner.
Neither do they show that petitioner was deprived of his own will and liberty. Judge Martin Ocampo of RTC Branch 7, Cebu City, and the state prosecutors
Hence, Section 7 of Rule 112 does not apply to petitioner. assert that petitioner is no longer entitled to a preliminary investigation because
he had previously waived his right to such investigation. In his omnibus order
To be sure, even if petitioner were arrested by the PNP CIG personnel, such dated October 14, 1997, Judge Ocampo held that petitioner waived his right to
arrest would still be illegal because of the absence of a warrant. Section 5 of preliminary investigation when he failed to appear during the preliminary
Rule 113 states when a warrantless arrest is deemed lawful, thus: investigation set by the City Prosecutor in the afternoon of September 17, 1997,
despite the express warning that "failure of the counsel (to present the petitioner
Sec. 5. Arrest without a warrant; when lawful. — A peace officer or a to the Cebu City Prosecutor on said time and date) would be treated as a waiver
private person may, without a warrant, arrest a person: of his client's right to preliminary investigation."

(a) When, in his presence, the person to be arrested has committed, is We disagree. A waiver, whether express or implied, must be made in clear and
actually committing, or is attempting to commit an offense; unequivocal manner. Mere failure of petitioner and his counsel to appear before
the City Prosecutor in the afternoon of September 17, 1997 cannot be construed
(b) When an offense has in fact just been committed, and he has as a waiver of his right to preliminary investigation, considering that petitioner has
personal knowledge of facts indicating that the person to be arrested has been vigorously invoking his right to a regular preliminary investigation since the
start of the proceedings before the City Prosecutor. At 9:00 in the morning of
committed it; and
September 17, 1997, petitioner's counsel appeared before the City Prosecutor of
Cebu and moved that petitioner be accorded a regular preliminary investigation.
(c) When the person to be arrested is a prisoner who has escaped from The City Prosecutor, however, denied the motion, stating that petitioner is
a penal establishment or place where he is serving final judgment or entitled only to an inquest investigation. Petitioner orally moved for a
temporarily confined while his case is pending, or has escaped while reconsideration, to no avail. Petitioner assailed the decision of the City
being transferred from one confinement to another. Prosecutor before the Court of Appeals on a petition for certiorari, prohibition
and mandamus. After the Court of Appeals dismissed said petition, petitioner
In cases falling under paragraphs (a) and (b) hereof, the person arrested went to this Court, still asserting that he should be accorded a regular preliminary
without a warrant shall be forthwith delivered to the nearest police station investigation.
or jail, and he shall be proceeded against in accordance with Rule 112,
Section 7.
78

Furthermore, petitioner and his counsel cannot be faulted for their refusal to that ground. If, as in this case, the accused raises other grounds in the
comply with the City Prosecutor's directive to appear before him in the afternoon motion to quash, he is deemed to have waived that objection and to have
of September 17, 1997 for preliminary investigation. As stated above, petitioner's submitted his person to the jurisdiction of the court.
counsel appeared before the City Prosecutor earlier that day and specifically
demanded a regular preliminary investigation for his client. The City Prosecutor, The Court notes that on August 13, 1993, after the petitioner was
however, insisted that petitioner was entitled only to an inquest investigation unlawfully arrested, Judge Lanzanas issued a warrant of arrest against
which he scheduled in the afternoon of the same day. Petitioner and his counsel Antonio L. Sanchez in connection with Criminal Cases Nos. 93-124634
refused to submit to such investigation as it might be construed as a waiver of to 93-124637 for violation of R.A. No. 6713. Pending the issuance of the
petitioner's right to a regular preliminary investigation. warrant of arrest for the rape-slay cases, this first warrant served as the
initial justification for his detention.
Our ruling is not altered by the fact that petitioner has been arraigned on October
14, 1997. The rule is that the right to preliminary investigation is waived when the The Court also adverts to its uniform ruling that the filing of charges, and
accused fails to invoke it before or at the time of entering a plea at the issuance of the corresponding warrant of arrest, against a person
arraignment.18 Petitioner, in this case, has been actively and consistently invalidly detained will cure the defect of that detention or at least deny
demanding a regular preliminary investigation even before he was charged in him the right to be released because of such defect. Applicable by
court. Also, petitioner refused to enter a plea during the arraignment because analogy to the case at bar is Rule 102 Section 4 of the Rules of Court
there was a pending case in this Court regarding his right to avail of a regular that:
preliminary investigation.19Clearly, the acts of petitioner and his counsel are
inconsistent with a waiver. Preliminary investigation is part of procedural due Sec. 4. When writ is not allowed or discharge authorized.
process. It cannot be waived unless the waiver appears to be clear and informed.
— If it appears that the person alleged to be restrained
of his liberty is in the custody of an officer under process
The nest question is whether petitioner should be released from detention issued by a court or judge or by virtue of a judgment or
pending the investigation. order of a court of record, and that the court or judge had
jurisdiction to issue the process, render the judgment, or
We rule in the negative. make the order, the writ shall not be allowed; or if the
jurisdiction appears after the writ is allowed, the person
The records show that on September 17, 1997, two informations were filed shall not be discharged by reason of any informality or
against petitioner for kidnapping and serious illegal detention. 20 Executive Judge defect in the process, judgment, or order. Nor shall
Priscila Agana issued a warrant of arrest on September 19, 1997. 21Petitioner was anything in this rule be held to authorize the discharge of
arrested on September 22, 1997 by virtue of said warrant. We held in Sanchez a person charged with or convicted of an offense in the
v. Demetriou22 that the filing of charges and the issuance of the warrant of arrest Philippines or of a person suffering imprisonment under
against a person invalidly detained will cure the defect of that detention or at lawful judgment.
least deny him the right to be released because of such defect. The Court ruled:
In one case, the petitioner sued on habeas corpus on the ground that
The original warrantless arrest of the petitioner was doubtless illegal. she had been arrested by virtue of a John Doe warrant. In their return,
Nevertheless, the Regional Trial Court lawfully acquired jurisdiction over the respondents declared that a new warrant specifically naming her had
the person of the petitioner by virtue of the warrant of arrest it issued on been issued, thus validating her detention. While frowning at the tactics
August 26, 1993 against him and the other accused in connection with of the respondents, the Court said:
the rape-slay cases. It was belated, to be sure, but it was nonetheless
legal. The case has, indeed, become moot and academic
inasmuch as the new warrant of arrest complies with the
Even on the assumption that no warrant was issued at all, we find that requirements of the Constitution and the Rules of Court
the trial court still lawfully acquired jurisdiction over the person of the regarding the particular description of the person to be
petitioner. The rule is that if the accused objects to the jurisdiction of the arrested. While the first warrant was unquestionably
court over his person, he may move to quash the information, but only on void, being a general warrant, release of the petitioner
79

for that reason will be a futile act as it will be followed by Panel, for these are basically unbeknown and beyond knowing. To be
her immediate re-arrest pursuant to the new and valid sure, the DOJ Panel is composed of an Assistant Chief State Prosecutor
warrant, returning her to the same prison she will just and Senior State Prosecutors. Their long experience in criminal
have left. This Court will not participate in such a investigation is a factor to consider in determining whether they can
meaningless charade. easily be blinded by the klieg lights of publicity. Indeed, their 26-page
Resolution carries no indubitable indicia of bias for it does not appear
The same doctrine has been consistently followed by the Court more that they considered any extra-record evidence except evidence properly
recently in the Umil case. 23 (citations omitted) adduced by the parties. The length of time the investigation was
conducted despite its summary nature and the generosity with which
they accommodated the discovery motions of petitioners speak well of
We hold, therefore, that petitioner's detention at the Bagong Buhay Rehabilitation
their fairness. At no instance, we note, did petitioners seek the
Center is legal in view of the information and the warrant of arrest against him.
disqualification of any member of the DOJ Panel on the ground of bias
The absence of a preliminary investigation will not justify petitioner's release
resulting from their bombardment of prejudicial publicity. 29
because such defect did not nullify the information and the warrant of arrest
against him.24 We ruled in Sanciangco, Jr. v. People:25
We further held in People v. Teehankee:30
The absence of preliminary investigations does not affect the court's
jurisdiction over the case. Nor do they impair the validity of the We cannot sustain appellant's claim that he was denied the right to
information or otherwise render it defective; but, if there were no impartial trial due to prejudicial publicity. It is true that the print and
preliminary investigations and the defendants, before entering their plea, broadcast media gave the case at bar pervasive publicity, just like all
invite the attention of the court to their absence, the court, instead of high profile and high stake criminal trials. Then and now, we rule that the
dismissing the information, should conduct it or remand the case to the right of an accused to a fair trial is not incompatible to a free press. To be
inferior court so that the preliminary investigation may be conducted. 26 sure, responsible reporting enhances an accused's right to a fair trial for,
as well pointed out, "a responsible press has always been regarded as
the handmaiden of effective judicial administration, especially in the
As regards petitioner's motion to change the venue and the authority to conduct
criminal field . . . ." The press does not simply publish information about
the preliminary investigation, we are constrained to dismiss the same for lack of
trials but guards against the miscarriage of justice by subjecting the
jurisdiction. The holding of a preliminary investigation is a function of the
Executive Department and not of the Judiciary.27 Petitioner should therefore police, prosecutors, and judicial processes to extensive public scrutiny
address their plea to the Department of Justice that has control and supervision and criticism.
over the conduct of preliminary investigations.
Pervasive publicity is not per se prejudicial to the right of an accused to
fair trial. The mere fact that the trial of the appellant was given a day-to-
Nonetheless, even if the Court had jurisdiction over the issue, petitioner's motion
day, gavel-to-gavel coverage does not by itself prove that the publicity so
should still be denied because it failed to allege and prove that the City
Prosecutor of Cebu has been actually affected by the publicity. We held inWebb permeated the mind of the trial judge and impaired his impartiality. For
v. De Leon:28 one, it is impossible to seal the minds of members of the bench from pre-
trial and other off-court publicity of sensational criminal cases. The state
of the art of our communication system brings news as they happen
Be that as it may, we recognize that pervasive and prejudicial publicity straight to our breakfast tables and to our bedrooms. These news form
under certain circumstances can deprive an accused of his due process part of our everyday menu of the facts and fictions of life. For another,
right to fair trial. Thus, in Martelino, et al. vs. Alejandro, et al., we held our idea of a fair and impartial judge is not that of a hermit who is out of
that to warrant a finding of prejudicial publicity there must be allegation touch with the world. We have not installed the jury system whose
and proof that the judges have been unduly influenced, not simply that members are overly protected from publicity lest they lose their
they might be, by the barrage of publicity. In the case at bar, we find impartiality. Criticisms against the jury system are mounting and Mark
nothing in the records that will prove that the tone and content of the Twain's wit and wisdom put them all in better perspective when he
publicity that attended the investigation of petitioners fatally infected the observed: "When a gentleman of high social standing, intelligence, and
fairness and impartiality of the DOJ Panel. Petitioners cannot just rely on probity swears that testimony given under the same oath will outweigh
the subliminal effects of publicity on the sense of fairness of the DOJ with him, street talk and newspaper reports based upon mere hearsay,
80

he is worth a hundred jurymen who will swear to their own ignorance and Bernardito Florido; and (4) DENY petitioner's motion to change the venue and
stupidity . . . . Why could not the jury law be so altered as to give men of the authority to conduct the preliminary investigation.
brains and honesty an equal chance with fools and miscreants?" Our
judges are learned in the law and trained to disregard off-court evidence SO ORDERED.
and on-camera performances of parties to a litigation. Their mere
exposure to publications and publicity stunts does not per se fatally infect
G.R. No. 170288 September 22, 2006
their impartiality.
PEDRO E. BUDIONGAN, JR., Municipal Mayor; JOSIL E. TRABAJO,
At best, appellant can only conjure possibility of prejudice on the part of
Municipal Vice Mayor and Presiding Officer of the Sangguniang Bayan;
the trial judge due to the barrage of publicity that characterized the FULGENCIO V. PAÑA, Municipal Treasurer; TACIANA B. ESPEJO,
investigation and trial of the case. In Martelino, et al. v. Alejandro, et al.,
Municipal Budget Officer; and SB Members: RUFINO G. ADLAON, TITO R.
we rejected this standard of possibility of prejudice and adopted the test MONTAJES, MARIO M. SORIA, ALFONSO L. UNAJAN, CARLITO B.
of actual prejudice as we ruled that to warrant a finding or prejudicial TORREFRANCA, VICENTE A. TORREFRANCA, JR., etitioners,
publicity, there must be allegation and proof that the judges have been
vs.
unduly influenced, not simply that they might be, by the barrage of HON. JACINTO M. DELA CRUZ, JR., Asst. Special Prosecutor I; HON.
publicity. In the case at bar, the records do not show that the trial judge CORNELIO L. SONIDO, Acting Director, Prosecution Bureau IV; HON.
developed actual bias against appellant as a consequence of the ROBERT E. KALLOS, Deputy Special Prosecutor; HON. DENNIS M. VILLA
extensive media coverage of the pre-trial and trial of his case. The IGNACIO, The Special Prosecutor; HON. WENDELL E. BARRERAS-SULIT,
totality of circumstances of the case does not prove this actual bias and Acting Director, Case Assessment, Review and Re-investigation Bureau;
he has not discharged the burden.31
and OFFICE OF THE SPECIAL PROSECUTOR, public respondents.
VALERIANO U. NADALA, ARLENE PAINAGAN-PALGAN, private
We likewise dismiss the complaint filed by Judge Martin A. Ocampo against respondents.
Attorneys Raymundo A. Armovit, Ramon R. Teleron and Bernardito Florido for
lack of concrete evidence to prove that said lawyers deliberately withheld from
DECISION
the Court the orders he issued with intent to mislead the Court.
YNARES-SANTIAGO, J.:
Finally, we also deny the motion of the prosecutors to dismiss the petition on the
ground that it was not filed by the proper party. The prosecutors argue that
petitioner Francisco Juan Larranaga is no longer a minor under R.A. 6809, thus, This Petition for Certiorari under Rule 65 of the Rules of Court assails the
his mother, Margarita G. Larranaga, does not have the authority to file the instant Memorandum1 dated April 28, 2004 of the Office of the Special Prosecutor,
petition as his representative. It appears, however, that on October 6, 1997, Office of the Ombudsman, recommending that petitioners be charged with
petitioner's mother filed a supplemental petition forhabeas corpus on his behalf. violation of Section 3(e) of Republic Act (R.A.) No. 3019 and petitioner Pedro E.
This converted the petition at bar to one for habeas corpus. Section 3, Rule 102 Budiongan with violation of Section 3(h) of R.A. No. 3019. Also assailed is the
of the Revised Rules of Court states that a petition for habeas corpus may be Resolution2 dated October 19, 2005 denying petitioners' motion for
filed either by the party for whose relief it is intended or by some person on his reconsideration.
behalf.
The antecedent facts are as follows:
IN VIEW WHEREOF, we resolve to: (1) REITERATE our order to the Office of
the City Prosecutor of Cebu to conduct a regular preliminary investigation of By virtue of Municipal Ordinance No. 2, series of 2001, the Municipality of
petitioner and to the Presiding Judge of RTC, Branch 7, Cebu City to cease and Carmen, Bohol appropriated the amount of P450,000.00 for the purchase of a
desist from proceeding with the trial of petitioner until a preliminary investigation road roller for the municipality. However, on November 16, 2001, the Municipal
shall have been conducted; (2) SET ASIDE our order to immediately release Development Council through Resolution No. 3 recommended that the amount of
petitioner pending the preliminary investigation and thus DENY petitioner's urgent P450,000.00 be realigned and used for the asphalt laying of a portion of the Tan
motion to implement petitioner's release; (3) DISMISS Judge Ocampo's Modesto Bernaldez Street.3 The proposed realignment was included in the
complaint against Attorneys Raymundo A. Armovit, Ramon R. Teleron and December 21, 2001 agenda of the Sangguniang Bayan of Carmen but
discussion thereon was deferred.
81

On February 6, 2002, petitioner Municipal Treasurer, Fulgencio V. Paña, issued Thereafter, petitioners filed a Motion to Quash9 the information charging them
a Certificate of Availability of Funds for the project. Thereafter, the Office of the with violation of Sec. 3(e) of R.A. No. 3019. In a Resolution10 dated June 10,
Municipal Engineer prepared a Program of Works and Cost Estimates duly 2005, the Sandiganbayan granted the motion to quash and remanded Criminal
noted/approved by Municipal Budget Officer Taciana B. Espejo and Mayor Case No. 28075 to the Office of the Ombudsman for amendment of the
Budiongan. Information. It held that although Malmis benefited from the contract, the same is
not unwarranted considering that the project was implemented, executed and
Bidding was conducted on March 5, 2002. The next day, March 6, 2002, Mayor completed.
Budiongan issued the Notice of Award and Notice to Commence Work in favor of
Herbert Malmis General Merchandise and Contractor, Inc. who emerged as the On June 27, 2005, an Amended Information11 was filed charging petitioners with
lowest complying bidder. On March 22, 2002, the Sangguniang Bayan passed violation of Sec. 3(e) of R.A. No. 3019, alleging that petitioners, by prematurely
Resolution No. 60,4 series of 2002, authorizing Mayor Budiongan to sign and awarding to Malmis the project despite the absence of funds specifically
enter into contract with Malmis relative to the above project in the amount of appropriated for such purpose, and thereafter paying the contract price from the
P339,808.00. With such authority, Malmis commenced with the project. Municipal Treasury which was originally appropriated for the purchase of a road
roller, caused damage and undue injury to the government.
Thereafter, it was discovered that there was yet no ordinance approving the
realignment of the funds. Thus, on May 17, 2002, the Sangguniang Bayan Finding that the Amended Information contains all the material averments
passed Ordinance No. 8,5 series of 2002, approving the realignment of the fund. necessary to make out a case for the first mode of violating Section 3(e) of R.A.
On June 14, 2002, Malmis was paid the contract price. No. 3019, i.e., causing any undue injury to any party, including the government,
the Sandiganbayan admitted the Amended Information in its Resolution dated
On July 3, 2002, private respondents Arlene P. Palgan and Valeriano U. Nadala August 18, 2005.12
filed a complaint6 against the petitioners before the Office of the Deputy
Ombudsman for Visayas alleging illegality in the conduct of the bidding, award On even date, petitioners filed with the Sandiganbayan a Motion for Leave of
and notice to commence work since there was no fund appropriated for the Court to File Motion for Reinvestigation13 arguing that the above Informations
purpose. were filed without affording them the opportunity to file counter-affidavits to
answer/rebut the modified charges. On September 20, 2005, the Sandiganbayan
On July 31, 2003, the Office of the Deputy Ombudsman for Visayas found issued a Resolution14 denying the motion insofar as Criminal Case No. 28076 is
probable cause and recommended the filing of an information for violation of concerned. It held that it is too late in the day to remand the case for
Article 2207 of the Revised Penal Code against the petitioners. However, the reinvestigation considering that Budiongan had already been arraigned and the
complaint against Hermosila Logrono, Desiderio Gudia, Jr. and Herbert Malmis case had long been set for pre-trial proceedings, with both parties having filed
was dismissed for lack of merit.8 their respective briefs. As regards Criminal Case No. 28075, the Sandiganbayan
noted that although the conduct of the preliminary investigation was regular,
petitioners however were not given the opportunity to seek reconsideration of the
Upon review, the Case Assessment, Review and Reinvestigation Bureau of the
Office of the Special Prosecutor, issued the assailed Memorandum dated April modified charges. Thus, it granted leave to the petitioners to file with the Office of
28, 2004, modifying the charge from violation of Article 220 of the Revised Penal the Special Prosecutor a motion for reconsideration (not a motion for
reinvestigation) of the said office's Memorandum dated April 28, 2004.
Code to (1) violation of Section 3(e) of R.A. No. 3019 against petitioners for
allegedly giving unwarranted benefit to Malmis and (2) violation of Section 3(h) of
R.A. No. 3019 against petitioner Budiongan for allegedly "directly or indirectly Petitioners filed a Motion for Reconsideration with the Office of the Special
having financial or pecuniary interest in a contract or transaction in connection Prosecutor which was denied for lack of merit in the Resolution dated October
with which he intervenes or takes part in his official capacity." 19, 2005.

Thus, two separate Informations were filed before the Sandiganbayan (1) for Hence, this petition raising the following issues:
violation of Section 3(e) of R.A. No. 3019 against the petitioners docketed as
Criminal Case No. 28075 and (2) for violation of Section 3(h) of R.A. No. 3019 I. WHETHER PUBLIC RESPONDENTS ACTED WITH GRAVE ABUSE
against petitioner Budiongan docketed as Criminal Case No. 28076. OF DISCRETION AMOUNTING TO LACK OR IN EXCESS OF
JURISDICTION IN REJECTING THE FINDINGS AND
82

AMENDING/MODIFYING THE RESOLUTION OF THE GRAFT because it was based on the same set of facts and the same alleged illegal acts.
INVESTIGATING OFFICER, OMBUDSMAN VISAYAS, AND IN FILING Moreover, petitioners failed to aver newly discovered evidence nor impute
THE INFORMATION FOR VIOLATION OF SEC. 3(e) OF RA 3019 commission of grave errors or serious irregularities prejudicial to their interest to
WITHOUT AFFORDING PETITIONERS THE OPPORTUNITY TO warrant a reconsideration or reinvestigation of the case as required under
PRESENT THEIR COUNTER EVIDENCE IN A RE-INVESTIGATION; Section 8, Rule III of the Rules of Procedure of the Office of the
Ombudsman.16 Thus, the modification of the offense charged, even without
II. WHETHER THE REFUSAL OR FAILURE TO CONDUCT A RE- affording the petitioners a new preliminary investigation, did not amount to a
INVESTIGATION HAS VIOLATED PETITIONERS' RIGHT TO DUE violation of their rights.
PROCESS;
Furthermore, the right to preliminary investigation is deemed waived when the
III. WHETHER PUBLIC RESPONDENTS ACTED WITH GRAVE ABUSE accused fails to invoke it before or at the time of entering a plea at
OF DISCRETION AMOUNTING TO LACK OR IN EXCESS OF arraignment.17 Petitioner Budiongan was arraigned in Criminal Case No. 28076
JURISDICTION IN ISSUING RESOLUTIONS DATED APRIL 28, 2004 on March 28, 2005. He was also arraigned together with the rest of the
AND OCTOBER 19, 2005 FINDING PROBABLE CAUSE FOR petitioners under the Amended Information in Criminal Case No. 28075 on
VIOLATION OF SEC. 3(e) OF RA 3019 AGAINST HEREIN December 2, 2005.
PETITIONERS; and
The purpose of a preliminary investigation is merely to determine whether a
IV. WHETHER PUBLIC RESPONDENTS ACTED WITH GRAVE ABUSE crime has been committed and whether there is probable cause to believe that
OF DISCRETION AMOUNTING TO LACK OR IN EXCESS OF the person accused of the crime is probably guilty thereof and should be held for
JURISDICTION IN FILING THE INFORMATION FOR VIOLATION OF trial.18 A finding of probable cause needs only to rest on evidence showing that
SEC.3(e) OF RA 3019 AGAINST PETITIONERS IN THE more likely than not a crime has been committed and was committed by the
SANDIGANBAYAN DOCKETED AS CRIMINAL CASE NO. 28075. suspect. Probable cause need not be based on clear and convincing evidence of
guilt, neither on evidence establishing guilt beyond reasonable doubt and
definitely, not on evidence establishing absolute certainty of guilt." 19
Petitioners maintain that the modification of the charge from violation of Article
220 of the Revised Penal Code to violation of Sections 3(e) and 3(h) of R.A. No.
3019 denied their rights to due process since they were not given the opportunity The Office of the Special Prosecutor is an integral component of the
to answer and present evidence on the new charge in a preliminary investigation. Ombudsman and is under the latter's supervision and control. Thus, whatever
Furthermore, the petitioners argue that public respondents committed grave course of action that the Ombudsman may take, whether to approve or to
abuse of discretion amounting to lack or excess of jurisdiction in issuing the disapprove the recommendation of the investigating prosecutor, is but an
challenged resolutions finding probable cause for violation of R.A. No. 3019. exercise of his discretionary powers based upon constitutional mandate.
Generally, courts should not interfere in such exercise. It is beyond the ambit of
this Court to review the exercise of discretion of the Ombudsman in prosecuting
The petition lacks merit.
or dismissing a complaint filed before it, save in cases where there is clear
showing of grave abuse of discretion amounting to lack or excess of jurisdiction
The right to a preliminary investigation is not a constitutional right, but is merely a on the part of the Ombudsman.20 Absent any showing of arbitrariness on the part
right conferred by statute. The absence of a preliminary investigation does not of the prosecutor or any other officer authorized to conduct preliminary
impair the validity of the Information or otherwise render the same defective. It investigation, as in the instant case, courts as a rule must defer to said officer's
does not affect the jurisdiction of the court over the case or constitute a ground finding and determination of probable cause, since the determination of the
for quashing the Information.15 If absence of a preliminary investigation does not existence of probable cause is the function of the prosecutor.21
render the Information invalid nor affect the jurisdiction of the court over the case,
then the denial of a motion for reinvestigation cannot likewise invalidate the
In fine, certiorari will not lie to invalidate the Office of the Special Prosecutor's
Information or oust the court of its jurisdiction over the case.
resolution denying petitioners' motion for reconsideration since there is nothing to
substantiate petitioners' claim that it gravely abused its discretion in ruling that
Petitioners were not deprived of due process because they were afforded the there was no need to conduct a reinvestigation of the case.22
opportunity to refute the charges by filing their counter-affidavits. The
modification of the offense charged did not come as a surprise to the petitioners
83

WHEREFORE, in view of the foregoing, the instant petition is DISMISSED. The held in abeyance while he seeks a reinvestigation by the Tanodbayan pursuant
assailed Memorandum of the Office of the Special Prosecutor, Office of the to his right of (sic) preliminary investigation. 2
Ombudsman, dated April 28, 2004 finding probable cause that petitioners
violated Sections 3(e) and 3(h) of Republic Act No. 3019 and the Resolution In its opposition to said motion, the Prosecution cited as basis therefor Sec. 3,
dated October 19, 2005 denying petitioners' Motion for Reconsideration, are Rule 117 of the 1985 Rules on Criminal Procedure enumerating the grounds for
hereby AFFIRMED. a motion to quash. It argued that since lack of preliminary investigation is not
among those enumerated thereunder, the motion to quash on this ground should
SO ORDERED. be denied for lack of merit and instead, petitioner should be ordered to file his
Petition for Reinvestigation and/or Motion for Reconsideration in accordance with
Panganiban, Austria-Martinez, Callejo, Sr., Chico-Nazario, , J.J., concur. Section 13 of the Revised Rules of Procedure of the Tanodbayan. 3

G.R. Nos. 71404-09 October 26, 1988 Petitioner filed a Reply to the Opposition controverting the prosecution's claim
that lack of preliminary investigation is not a ground for quashing the information;
HERMILO RODIS, SR., petitioner, but manifesting that he would file a petition for re-investigation with the
Tanodbayan as suggested. 4 This he did, on June 24,1985.
vs.
THE SANDIGANBAYAN, SECOND DIVISION, and PEOPLE OF THE
PHILIPPINES, respondents. On July 15, 1985, while petitioner's petition for reinvestigation was pending action
by the Tanodbayan, the Sandiganbayan promulgated the assailed resolution
Quisimbing & Associates for petitioner. denying petitioner's motion to quash for lack of merit, stating:

The Solicitor General for respondents. ... this Court is of the considered opinion that the alleged
absence of preliminary investigation with respect to the accused
movant (herein petitioner) or his inability to participate in the
preliminary investigation for the reason that he was not duly
served with a subpoena is not a proper ground for a motion to
FERNAN, C.J.: quash. If the accused was not afforded due preliminary
investigation, the proper remedy for him is to file a Petition for
This is a petition for certiorari with prayer for a writ of preliminary injunction Reinvestigation with the Office of the Tanodbayan, pursuant to
seeking to annul the Resolution 1 of the Sandiganbayan dated July 15, 1985 Section (13) of Administrative Order No. 111 of the Revised
denying herein petitioner's Motion to Quash the Informations in Criminal Cases Rules of Procedure of the Tanodbayan, promulgated on
Nos. 10389, 10390, 10391, 10393, and 10394 pending before said court and to December 1, 1979. 5
enjoin the arraignment, pre-trial and trial herein.
On the premise that no appeal or any plain and speedy remedy in the ordinary
The antecedents are as follows: course of law will prove adequate under the circumstances obtaining in the case
at bar arraignment, pre-trial and trial having been set on August 26, 27 and 28,
On May 22, 1985, petitioner Hermilo v. Rodis, Sr., former President of the 1985—and on the allegation that in denying his motion to quash, respondent
Philippine Underwriters Finance Corporation (PHILFINANCE) together with some Sandiganbayan had acted with grave abuse of discretion amounting to lack or
other persons, was charged before the Sandiganbayan in separate informations excess of jurisdiction, petitioner brought the instant petition.
docketed therein as Criminal Cases Nos. 10389, 10390, 10391, 10393 and
10394 with five (5) counts of violation of Section 3(b) of Republic Act No. 3019, On August 1, 1985, the Court issued a Temporary Restraining Order enjoining
otherwise known as the Anti-Graft and Corruption Practices Act. the respondent Sandiganbayan from proceeding with the arraignment, pre-trial
and trial of Criminal Cases Nos. 10389, 10390, 10391, 10392, 610393 and
On May 31, 1985, petitioner filed a motion to quash said informations as against 10394. 7
him on the ground of lack of preliminary investigation, with the alternative prayer
that the "issue and/or enforcement of the warrant of arrests as against him be
84

Petitioner contends that while it may be true that lack of preliminary investigation attempts of unscrupulous respondents to thwart the prosecution of offenses by
neither affects the jurisdiction of the court nor impairs the validity of the hiding themselves or by employing dilatory tactics.
information filed, nonetheless such lack of preliminary investigation affects the
regularity of the proceedings which led to the filing of the information, such that in Considering that petitioner has voluntarily appeared before the respondent
several cases, the Court had ordered the quashal of the information on said Sandiganbayan in connection with the criminal cases in question and has
ground; and that although lack of preliminary investigation is not enumerated as appeared in other preliminary investigations of other PHILFINANCE charges filed
one of the grounds for a motion to quash, the Sandiganbayan can nevertheless in various fiscals' offices and the Ministry (now Department) of Justice, it is
order the quashal of the informations pursuant to its inherent power to amend apparent that the non-service of the subpoena upon him was not of his own
and control its processes so as to make them conformable to law and doing or liking. To apply the full force and effect of section 3, sub-section (d) of
justice. 8 He further claims that given the chance to be heard on preliminary Rule 112 of the 1985 Rules on Criminal Procedure would, to our mind, greatly
investigation, he will demonstrate to the Tanodbayan that he had no participation prejudice him.
in the transactions complained of, except in one where he merely approved for
reimbursement representation expense incurred by one subordinate to him, the It is worthwhile repeating that the avowed purposes of a preliminary investigation
Executive Vice-President, and after it had been approved by one superior to him, are "to secure the innocent against hasty, malicious and oppressive prosecution,
the vice-Chairman of the Executive Committee and Chief Executive Officer of the
and to protect him from an open and public accusation of crime, from the trouble,
(PHILFINANCE).
expense and anxiety of' a public trial, and also to protect the state from useless
and expensive trials 9 and while the "absence of preliminary investigations does
Respondent People of the Philippines on the other hand avers that as petitioner not affect the court's jurisdiction over the case (n)or do they impair the validity of
does not dispute that a preliminary investigation was indeed conducted, what he the information or otherwise render it defective, but, if there were no preliminary
is really protesting against is the lost opportunity to participate therein due to the investigations and the defendants, before entering their plea, invite the attention
alleged failure of the Tanodbayan to serve a subpoena upon him. It is, however, of the court to their absence, the court, instead of dismissing the information,
contended that this alleged failure did not affect the regularity of the preliminary should conduct such investigation, order the fiscal to conduct it or remand the
investigation as the Tanodbayan is justified under Section 3, Rule 112 of the case to the inferior court so that the preliminary investigation may be
1985 Rules of Criminal Procedure in proceeding with the preliminary conducted. 10 In this case, the Tanodbayan, has the duty to conduct the said
investigation after an attempt to subpoena petitioner at the latter's known address investigation. 11
proved unavailing, and in basing its resolution on the evidence presented by the
complainant.
Thus, although the Sandiganbayan was correct in ruling that the absence of a
preliminary investigation is not a ground for quashing an information, it should
The analysis of respondent People, thru the Solicitor General, as to the real have held the proceedings in the criminal cases in abeyance pending resolution
nature of the controversy at bar is correct. It is not disputed that a preliminary by the Tanodbayan of petitioner's petition for reinvestigation, as alternatively
investigation was conducted by the Tanodbayan prior to the filing of the prayed for by him in his motion to quash.
informations. Petitioner, however, was not able to participate therein as the
subpoena addressed to him at (PHILFINANCE) his last known address, was
During the pendency of the case at bar, petitioner manifested to the Court that in
returned "unserved," petitioner having already severed his employment with said a Joint Order dated September 26, 1985, Tanodbayan Special Prosecutors
company at the time of service. As petitioner reportedly left (PHILFINANCE) Roger C. Berbano Sr. and Eleuterio F. Guerrero had recommended that the
under most unfriendly circumstances, PHILFINANCE did not give the process
separate petitions for reinvestigation filed by petitioner and his co-accused be
server his residence address on record with it.
given due course by the Tanodbayan and that said special prosecutors be given
clearance and authority to conduct such reinvestigation. Although it appears that
Under Section 3, sub-section (d) of Rule 112 of the 1985 Rules on Criminal these recommendations were approved by then Tanodbayan Bernardo P.
Procedure, "if the respondent cannot be subpoenaed, or if subpoenaed, does not Fernandez on October 14, 1985 12 no further report on this matter has reached
submit counter-affidavits within the ten (10) day period, the investigating officer the Court. As we cannot assume that the reinvestigation was indeed conducted
shall base his resolution on the evidence presented by the complainant." It is to as would render the instant petition moot and academic, and considering the
be noted that this provision does not require as a condition sine qua non to the importance of the issue involved, we deemed it proper to decide the petition on
validity of the proceedings the presence of the accused for as long as efforts to the merits.
reach him were made, and an opportunity to controvert the evidence of the
complainant is accorded him. The obvious purpose of the rule is to block
85

WHEREFORE, the assailed resolution of the respondent Sandiganbayan dated such, the Information must be quashed for being tainted with a jurisdictional
July 15, 1985 in Criminal Cases Nos. 10389, 10390, 10391, 10393 and 10394 is defect that cannot be cured.7chanroblesvirtuallawlibrary
hereby affirmed, but respondent Sandiganbayan is ordered to hold in abeyance
the proceedings therein with respect to petitioner, subject to the outcome of the In its Comment and Opposition,8 the OCP-Makati countered that the review
reinvestigation of the Tanodbayan of the aforesaid cases. The Temporary prosecutor, SACP Hirang, was authorized to approve the Pasiya pursuant to
Restraining Order issued by the Court on August 1, 1985 is deemed superseded OCP-Makati Office Order No. 32.9 Further, it maintained that the Pabatid
by this directive. Sakdal was filed with the prior approval of the City Prosecutor as shown in the
Certification in the Information itself.10chanRoblesvirtualLawlibrary
SO ORDERED.
The RTC Ruling
G.R. No. 216920, January 13, 2016
In an Order11 dated May 8, 2013, the RTC denied petitioner's motion to quash for
lack of merit. It found the Certification attached to the Pabatid Sakdal to have
GIRLIE M. QUISAY, Petitioner, v. PEOPLE OF THE PHILIPPINES, Respondent. sufficiently complied with Section 4, Rule 112 of the Rules of Court which
requires the prior written authority or approval by, among others, the City
DECISION Prosecutor, in the filing of Informations.12chanroblesvirtuallawlibrary

PERLAS-BERNABE, J.: Petitioner moved for reconsideration,13 which was, however, denied in an
Order14 dated July 10, 2013. Aggrieved, petitioner elevated the matter to the
Assailed in this petition for review on certiorari1 are the Decision2 dated October CA via a petition for certiorari.15chanRoblesvirtualLawlibrary
10, 2014 and the Resolution3 dated January 30, 2015 of the Court of Appeals
(CA) in CA-G.R. SP No. 131968, which affirmed the denial of petitioner Girlie M. The CA Ruling
Quisay's (petitioner) Motion to Quash before the Regional Trial Court of Makati,
Branch 144 (RTC).chanRoblesvirtualLawlibrary In a Decision16 dated October 10, 2014, the CA affirmed the RTC ruling. It held
that pursuant to Section 9 of RA 10071,17 otherwise known as the "Prosecution
The Facts Service Act of 2010," as well as OCP-Makati Office Order No. 32, the City
Prosecutor of Makati authorized SACP Hirang to approve the issuance of, inter
On December 28, 2012, the Office of the City Prosecutor of Makati City (OCP- alia, resolutions finding probable cause and the filing of Informations before the
Makati) issued a Pasiya4or Resolution finding probable cause against petitioner courts. As such, SACP Hirang may, on behalf of the City Prosecutor, approve
for violation of Section 10 of Republic Act No. (RA) 7610,5 otherwise known as the Pasiya which found probable cause to indict petitioner of violation of Section
the "Special Protection of Children Against Abuse, Exploitation and 10 of RA 7610.18chanroblesvirtuallawlibrary
Discrimination Act." Consequently, a Pabatid Sakdal6 or Information was filed
before the RTC on January 11, 2013 charging petitioner of such crime. Further, it held that the Certification made by ACP De La Cruz in the Pabatid
Sakdal clearly indicated that the same was filed after the requisite preliminary
On April 12, 2013, petitioner moved for the quashal of the Information against her investigation and with the prior written authority or approval of the City
on the ground of lack of authority of the person who filed the same before the Prosecutor. In this regard, the CA opined that such Certification enjoys the
RTC. In support of her motion, petitioner pointed out that the Pasiya issued by presumption of regularity accorded to a public officer's performance of official
the OCP-Makati was penned by Assistant City Prosecutor Estefano H. De La functions, in the absence of convincing evidence to the
Cruz (ACP De La Cruz) and approved by Senior Assistant City Prosecutor contrary.19chanroblesvirtuallawlibrary
Edgardo G. Hirang (SACP Hirang), while the Pabatid Sakdal was penned by
ACP De La Cruz, without any approval from any higher authority, albeit with a Undaunted, petitioner moved for reconsideration,20 but was denied in a
Certification claiming that ACP De La Cruz has prior written authority or approval Resolution21 dated January 30, 2015; hence, this
from the City Prosecutor in filing the said Information. In this regard, petitioner petition.chanRoblesvirtualLawlibrary
claimed that nothing in the aforesaid Pasiya and Pabatid Sakdal would show that
ACP De La Cruz and/or SACP Hirang had prior written authority or approval from The Issue Before the Court
the City Prosecutor to file or approve the filing of the Information against her. As
86

xxxx
The core issue for the Court's resolution is whether or not the CA correctly held
that the RTC did not gravely abuse its discretion in dismissing petitioner's motion (d) That the officer who filed the information had no authority to do so;
to quash.chanRoblesvirtualLawlibrary
x x x x (Emphasis and underscoring supplied)
The Court's Ruling
In this relation, People v. Garfin22 firmly instructs that the filing of an Information
The petition is meritorious. by an officer without the requisite authority to file the same constitutes a
jurisdictional infirmity which cannot be cured by silence, waiver, acquiescence, or
Section 4, Rule 112 of the 2000 Revised Rules on Criminal Procedure states that even by express consent. Hence, such ground may be raised at any stage of the
the filing of a complaint or information requires a prior written authority or proceedings.23chanroblesvirtuallawlibrary
approval of the named officers therein before a complaint or information may be
filed before the courts, viz.: In the case at bar, the CA affirmed the denial of petitioner's motion to quash on
the grounds that: (a) the City Prosecutor of Makati may delegate its authority to
SECTION 4. Resolution of investigating prosecutor and its review. - If the approve the filing of the Pabatid Sakdalpursuant to Section 9 of RA 10071, as
investigating prosecutor finds cause to hold the respondent for trial, he shall well as OCP-Makati Office Order No. 32; and (b) the Pabatid Sakdal contained a
prepare the resolution and information. He shall certify under oath in the Certification stating that its filing before the RTC was with the prior written
information that he, or as shown by the record, an authorized officer, has authority or approval from the City Prosecutor.
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 The CA correctly held that based on the wordings of Section 9 of RA 10071,
probably guilty thereof; that the accused was informed of the complaint and of which gave the City Prosecutor the power to "[investigate and/or cause to be
the evidence submitted against him; and that he was given an opportunity to investigated all charges of crimes, misdemeanors and violations of penal laws
submit controverting evidence. Otherwise, he shall recommend the dismissal of and ordinances within their respective jurisdictions, and have the necessary
the complaint. information or complaint prepared or made and filed against the persons
accused,"24 he may indeed delegate his power to his subordinates as he may
Within five (5) days from his resolution, he shall forward the record of the case to deem necessary in the interest of the prosecution service. The CA also correctly
the provincial or city prosecutor or chief state prosecutor, or to the Ombudsman stressed that it is under the auspice of this provision that the City Prosecutor of
or his deputy in cases of offenses cognizable by the Sandiganbayan in the Makati issued OCP-Makati Office Order No. 32, which gave division chiefs or
exercise of its original jurisdiction. They shall act on the resolution within ten (10) review prosecutors "authority to approve or act on any resolution, order,
days from their receipt thereof and shall immediately inform the parties of such issuance, other action, and any information recommended by any prosecutor for
action. approval,"25 without necessarily diminishing the City Prosecutor's authority to act
directly in appropriate cases.26 By virtue of the foregoing issuances, the City
No complaint or information may be filed or dismissed by an investigating Prosecutor validly designated SACP Hirang, Deputy City Prosecutor Emmanuel
prosecutorwithout the prior written authority or approval of the provincial D. Medina, and Senior Assistant City Prosecutor William Celestino T. Uy as
or city prosecutoror chief state prosecutor or the Ombudsman or his deputy. review prosecutors for the OCP-Makati.27chanroblesvirtuallawlibrary

x x x x (Emphases and underscoring supplied) In this light, the Pasiya or Resolution finding probable cause to indict petitioner of
the crime charged, was validly made as it bore the approval of one of the
Thus, as a general rule, complaints or informations filed before the courts without designated review prosecutors for OCP-Makati, SACP Hirang, as evidenced by
the prior written authority or approval of the foregoing authorized officers renders his signature therein.
the same defective and, therefore, subject to quashal pursuant to Section 3 (d),
Rule 117 of the same Rules, to wit: Unfortunately, the same could not be said of the Pabatid Sakdal or Information
filed before the RTC, as there was no showing that it was approved by either the
SECTION 3. Grounds. - The accused may move to quash the complaint or City Prosecutor of Makati or any of the OCP-Makati's division chiefs or review
information on any of the following grounds: prosecutors. All it contained was a Certification from ACP De La Cruz which
stated, among others, that "DAGDAG KO PANG PINATUTUNAYAN na
87

angpaghahain ng sakdal na ito ay may nakasulat na naunang pahintulot o WHEREFORE, the petition is GRANTED. The Decision dated October 10, 2014
pagpapatibay ng Panlunsod na Taga-Usig"28 - which translates to "and that the and the Resolution dated January 30, 2015 of the Court of Appeals in CA-G.R.
filing of the Information is with the prior authority and approval of the City SP No. 131968 are hereby REVERSED andSET ASIDE. Accordingly, the
Prosecutor." Information against petitioner Girlie M. Quisay is QUASHED and the criminal
case against her is DISMISSED.
In the cases of People v. Garfin,29Turingan v. Garfin,30 and Tolentino v.
Paqueo31 the Court had already rejected similarly-worded certifications, uniformly SO ORDERED.cralawlawlibrary
holding that despite such certifications, the Informations were defective as it was
shown that the officers filing the same in court either lacked the authority to do so Sereno, C.J., (Chairperson), Leon
or failed to show that they obtained prior written authority from any of those
authorized officers enumerated in Section 4, Rule 112 of the 2000 Revised Rules
of Criminal Procedure. G.R. No. 147932 January 25, 2006
Here, aside from the bare and self-serving Certification, there was no proof that
ACP De La Cruz was authorized to file the Pabatid Sakdal or Information before LAILA G. DE OCAMPO, Petitioner,
the RTC by himself. Records are bereft of any showing that the City Prosecutor vs.
of Makati had authorized ACP De La Cruz to do so by giving him prior written THE HONORABLE SECRETARY OF JUSTICE, MAGDALENA B. DACARRA,
authority or by designating him as a division chief or review prosecutor of OCP- and ERLINDA P. ORAYAN,Respondents.
Makati. There is likewise nothing that would indicate that ACP De La Cruz sought
the approval of either the City Prosecutor or any of those authorized pursuant to DECISION
OCP-Makati Office Order No. 32 in filing thePabatid Sakdal. Quite frankly, it is
simply baffling how ACP De La Cruz was able to have the Pasiyaapproved by CARPIO, J.:
designated review prosecutor SACP Hirang but failed to have the Pabatid
Sakdalapproved by the same person or any other authorized officer in the OCP- The Case
Makati.
This petition for certiorari1 assails the Resolutions dated 15 September 2000 and
In view of the foregoing circumstances, the CA erred in according the Pabatid
19 April 2001 of the Secretary of the Department of Justice ("DOJ Secretary") in
Sakdal the presumption of regularity in the performance of official functions solely
I.C. No. 99-6254.2 The DOJ Secretary3 denied Laila G. De Ocampo’s
on the basis of the Certification made by ACP De La Cruz considering the
("petitioner") petition for review of the investigating prosecutor’s finding of
absence of any evidence on record clearly showing that ACP De La Cruz: (a)
probable cause against her for homicide4 in relation to Section 10(a), Article VI of
had any authority to file the same on his own; or (b) did seek the prior written
Republic Act No. 7610 ("RA 7610")5 and for violation of the same provision of RA
approval from those authorized to do so before filing the Information before the
7610. The DOJ Secretary6 also denied petitioner’s motion for reconsideration.
RTC.

In conclusion, the CA erred in affirming the RTC's dismissal of petitioner's motion The Facts
to quash as thePabatid Sakdal or Information suffers from an incurable infirmity -
that the officer who filed the same before the RTC had no authority to do so. The present case arose from a sworn statement of respondent Magdalena B.
Hence, the Pabatid Sakdal must be quashed, resulting in the dismissal of the Dacarra ("Magdalena") executed before the Women’s Desk of the CPD Police
criminal case against petitioner. Station in Batasan Hills, Quezon City on 10 December 1999. Magdalena stated
that on 4 December 1999, her nine-year-old son Ronald complained of dizziness
As a final note, it must be stressed that "[t]he Rules of Court governs the upon arriving home at about six in the evening. Ronald then vomited, prompting
pleading, practice, and procedure in all courts of the Philippines. For the orderly Magdalena to ask what happened. Ronald replied that petitioner, who was
administration of justice, the provisions contained therein should be followed by Ronald’s teacher, banged his head against that of his classmate Lorendo Orayan
all litigants, but especially by the prosecution arm of the ("Lorendo"). Magdalena inspected Ronald’s head and saw a woundless
Government."32chanroblesvirtuallawlibrary contusion. Due to Ronald’s continued vomiting, Magdalena brought him to a
quack doctor (arbularyo) on 5 December 1999. The following morning,
Magdalena brought Ronald to the East Avenue Medical Center where he
88

underwent an x-ray. The attending physician informed Magdalena that Ronald’s causes of death stated in Ronald’s Death Certificate are hearsay and
head had a fracture. Blood oozed out of Ronald’s nose before he died on 9 inadmissible in the preliminary investigation.
December 1999.
Ronald’s Death Certificate shows the immediate cause of his death as "Cardio
Lorendo also executed a sworn statement narrating how petitioner banged his Pulmonary Arrest," the underlying cause as "Cerebral Edema," and other
head against Ronald’s. significant conditions contributing to death as "Electrolyte imbalance and
vomiting." The Autopsy Report, obtained by the investigating prosecutor from the
During the inquest proceedings on 14 December 1999, Assistant Quezon City PNP Crime Laboratory in Camp Crame, states the cause of death as "Intracranial
Prosecutor Maria Lelibet Sampaga ("inquest prosecutor") ruled as follows: hemorrhage secondary to traumatic injury of the head."

Evidence warrants the release of the respondent for further investigation of the The investigating prosecutor issued a Resolution finding probable cause against
charges against her. The case is not proper for inquest as the incident petitioner for the offenses charged. The dispositive portion of the Resolution
complained of happened on December 4, 1999. Further, we find the evidence reads:
insufficient to support the charge for homicide against the respondent. There is
no concrete evidence to show proof that the alleged banging of the heads of the WHEREFORE, in view of the foregoing, it is respectfully recommended that
two minor victims could be the actual and proximate cause of the death of minor [petitioner] be charged with Homicide in relation to Art. VI, Sec. 10 of R.A. 7610
Ronald Dacarra y Baluton. Besides, the police report submitted by the and Violation of Art. VI, Sec. 10(a) of R.A. 7610 with no bail recommended for
respondent in this case states that said victim bears stitches or sutures on the the Homicide since par. 6 of Art. VI of Sec. 10 of R.A. 7610 provides that:
head due to a vehicular accident. There is no certainty, therefore, that
respondent’s alleged wrongdoing contributed or caused the death of said victim.7 "For purposes of this Act, the penalty for the commission of acts punishable
under Articles 248, 249, 262, par. 2 and 263, par. 1 Act No. 3815, as amended,
Subsequently, the case was referred to Assistant Quezon City Prosecutor Lorna the Revised Penal Code, for the crimes of murder, homicide, other intentional
F. Catris-Chua Cheng ("investigating prosecutor") for preliminary investigation. mutilation and serious physical injuries, respectively, shall be reclusion
She scheduled the first hearing on 6 January 2000. perpetua when the victim isunder twelve (12) years of age."

Respondent Erlinda P. Orayan ("Erlinda"), Lorendo’s mother, attended the Bail recommended: No bail recommended – Homicide, in relation to Art. VI, Sec.
hearing of 6 January 2000 and alleged that petitioner offered her P100,000, 10, R.A. 7610; and Twenty Thousand pesos (P20,000.00) – Viol. of Sec. 10(a) of
which she initially accepted, for her and her son’s non-appearance at the R.A. 76108
preliminary investigation. Erlinda presented the money to the investigating
prosecutor. Consequently, petitioner filed a petition for review with the DOJ.

On 7 January 2000, Jennilyn Quirong, who witnessed the head-banging incident, In her appeal to the DOJ, petitioner contended that the investigating prosecutor
and Melanie Lugales, who claimed to be another victim of petitioner’s alleged showed bias in favor of complainants Magdalena and Erlinda ("complainants") for
cruel deeds, filed their sworn statements with the Office of the Quezon City not conducting a clarificatory hearing and unilaterally procuring the autopsy
Prosecutor. report. Petitioner argued that the investigating prosecutor erred in concluding that
her alleged act of banging Ronald and Lorendo’s heads was the cause of
On 18 January 2000, petitioner submitted her counter-affidavit. Petitioner invoked Ronald’s injury and that such was an act of child abuse. Petitioner also alleged
the disposition of the inquest prosecutor finding insufficient evidence to support that it is the Office of the Ombudsman which has jurisdiction over the case, and
the charges against her. Petitioner assailed the omission in Magdalena’s sworn not the Quezon City Prosecutor’s Office.
statement about Ronald’s head injury due to a vehicular accident in November
1997. Petitioner pointed out the absence of damage or injury on Lorendo as The Resolution of the DOJ Secretary
borne out by his medical certificate. Petitioner contended that the head-banging
incident was not the proximate cause of Ronald’s death, but the failed medical
The DOJ Secretary denied the petition for review. The DOJ Secretary held that
attention or medical negligence. Petitioner also alleged that Jennilyn Quirong and
there was no bias in complainants’ favor when the investigating prosecutor did
Melanie Lugales have immature perception. Petitioner further asserted that the
89

not conduct a clarificatory hearing and unilaterally procured the autopsy report as The Ruling of the Court
nothing precluded her from doing so.
The petition lacks merit.
The DOJ Secretary upheld the investigating prosecutor’s finding that Ronald’s
injury was the direct and natural result of petitioner’s act of banging Ronald and Before resolving the substantive issues in this case, the Court will address the
Lorendo’s heads. The DOJ Secretary stated that petitioner never denied such procedural issue raised by the Office of the Solicitor General ("OSG"). 11 The
act, making her responsible for all its consequences even if the immediate cause OSG contends that instead of Rule 65, Rule 43 is applicable to the present case.
of Ronald’s death was allegedly the failed medical attention or medical Thus, the OSG argues that the petition should be dismissed outright for being
negligence. The DOJ Secretary held that assuming there was failure of medical filed with this Court, instead of with the Court of Appeals, under a wrong mode of
attention or medical negligence, these inefficient intervening causes did not appeal. On the other hand, assuming Rule 65 applies, the OSG points out that
break the relation of the felony committed and the resulting injury. the petition for certiorari should be filed with the Court of Appeals.

The DOJ Secretary rejected petitioner’s claim that she is innocent as held by the Based on Memorandum Circular No. 58,12 the resolution of the DOJ Secretary is
inquest prosecutor. The inquest prosecutor did not dismiss the case. She merely appealable administratively to the Office of the President since the offenses
recommended petitioner’s release for further investigation since the case was not charged in this case are punishable by reclusion perpetua.13 From the Office of
proper for inquest and the evidence was then insufficient. the President, the aggrieved party may file an appeal with the Court of Appeals
pursuant to Rule 43.14
The DOJ Secretary further stated that the omission in Magdalena’s sworn
statement about Ronald’s head injury due to a vehicular accident in November Even assuming that the DOJ Secretary committed grave abuse of discretion in
1997 and the absence of any injury on Lorendo are inconsequential. rendering the assailed Resolutions amounting to lack or excess of jurisdiction,
petitioner should have filed the instant petition for certiorari with the Court of
Moreover, the DOJ Secretary ruled that whether the statements of the causes of Appeals. Hence, on the issue alone of the propriety of the remedy sought by
death in the death certificate and autopsy report are hearsay, and whether petitioner, this petition forcertiorari must fail. However, considering the gravity of
Jennilyn Quirong and Melanie Lugales have immature perception, are evidentiary the offenses charged and the need to expedite the disposition of this case, the
matters which should be determined during trial. The DOJ Secretary also Court will relax the rules and finally resolve this case in the interest of substantial
sustained the investigating prosecutor’s conclusion that the banging of Ronald justice.
and Lorendo’s heads is an act of child abuse.
Whether petitioner was denied
Petitioner filed a motion for reconsideration9 which the DOJ Secretary denied in due process during the preliminary investigation
his Resolution dated 19 April 2001.10
Absence of a clarificatory hearing
Hence, this petition.
The Court rejects petitioner’s contention that she was denied due process when
The Issues the investigating prosecutor did not conduct a clarificatory hearing. A clarificatory
hearing is not indispensable during preliminary investigation. Rather than being
Petitioner raises the following issues: mandatory, a clarificatory hearing is optional on the part of the investigating
officer as evidenced by the use of the term "may" in Section 3(e) of Rule 112.
This provision states:
1. Whether petitioner was denied due process during the preliminary
investigation; and
(e) If the investigating officer believes that there are matters to be clarified,
he may set a hearing to propound clarificatory questions to the parties or their
2. Whether there is probable cause against petitioner for homicide under
witnesses, during which the parties shall be afforded an opportunity to be present
Article 249 of the Revised Penal Code in relation to Section 10(a), Article
but without the right to examine or cross-examine. xxx15 (emphasis supplied)
VI of RA 7610 and for violation of Section 10(a), Article VI of RA 7610.
90

The use of the word "may" in a statute commonly denotes that it is directory in evidence aside from the autopsy report upon which the investigating prosecutor
nature. The term "may" is generally permissive only and operates to confer based her finding of probable cause. The autopsy report is not the sole piece of
discretion.16 Under Section 3(e) of Rule 112, it is within the discretion of the evidence against petitioner. The sworn statement of the other victim, Lorendo,
investigation officer whether to set the case for further hearings to clarify some and the eyewitness account of Jennilyn Quirong, substantiate the charges
matters. against petitioner. Petitioner’s failure to deny the occurrence of the head-banging
incident also strengthened complainants’ allegations.
In this case, the investigating prosecutor no longer conducted hearings after
petitioner submitted her counter-affidavit. This simply means that at that point the Petitioner mistakenly cites Section 3(d) of Rule 11222 in arguing that the
investigating prosecutor believed that there were no more matters for investigating prosecutor should not go beyond the evidence presented by
clarification. It is only in petitioner’s mind that some "crucial points" still exist and complainants in resolving the case. This provision applies if the respondent
need clarification. In any event, petitioner can raise these "important" matters cannot be subpoenaed or if subpoenaed fails to submit her counter-affidavit
during the trial proper. within the prescribed period. Such is not the case here where petitioner filed her
counter-affidavit and both parties presented their respective evidence.
Petitioner was not deprived of due process since both parties were accorded
equal rights in arguing their case and presenting their respective evidence during Whether there is probable cause
the preliminary investigation. Due process is merely an opportunity to be for the offenses charged against petitioner
heard.17 Petitioner cannot successfully invoke denial of due process since she Existence of probable cause
was given the opportunity of a hearing.18 She even submitted her counter-
affidavit to the investigating prosecutor on 18 January 2000. Petitioner challenges the finding of probable cause against her for the offenses
charged arguing that the head-banging incident was not the proximate cause of
Preliminary investigation is merely inquisitorial. It is not a trial of the case on the Ronald’s death. Petitioner insists that efficient intervening events caused
merits.19 Its sole purpose is to determine whether a crime has been committed Ronald’s death.
and whether the respondent is probably guilty of the crime.20 It is not the
occasion for the full and exhaustive display of the parties’ evidence. 21 Hence, if We do not agree. There is probable cause for the offenses charged against
the investigating prosecutor is already satisfied that he can reasonably determine petitioner. Probable cause is the existence of such facts and circumstances as
the existence of probable cause based on the parties’ evidence thus presented, would excite the belief in a reasonable mind that a crime has been committed
he may terminate the proceedings and resolve the case. and the respondent is probably guilty of the crime.23

Obtaining a copy of the autopsy report In the present case, Ronald, a nine-year-old student, died five days after his
teacher, petitioner in this case, allegedly banged his head against that of his
Petitioner argues that she was denied the right to examine evidence submitted classmate Lorendo. There is nothing in the records showing petitioner’s specific
by complainants when the investigating prosecutor unilaterally obtained a copy of denial of the occurrence of such act. Petitioner simply stated that "the head-
the autopsy report from the PNP Crime Laboratory. banging incident happened but [she] did not perpetrate it."24 In effect, petitioner
admits the occurrence of the head-banging incident but denies committing it.
Petitioner fails to persuade us. Though the autopsy report is not part of the
parties’ evidence, the Rules on preliminary investigation do not forbid the The alleged intervening events before Ronald died, namely: (a) the consultation
investigating prosecutor from obtaining it. Neither is there a law requiring the with a quack doctor, and (b) the three-day confinement in the East Avenue
investigating prosecutor to notify the parties before securing a copy of the Medical Center, are not sufficient to break the relation of the felony committed
autopsy report. The autopsy report, which states the causes of Ronald’s death, and the resulting injury. Were it not for the head-banging incident, Ronald might
can either absolve or condemn the petitioner. Unfortunately for petitioner, the not have needed medical assistance in the first place.
investigating prosecutor found that the autopsy report bolstered complainants’
allegations. These circumstances which allegedly intervened causing Ronald’s death are
evidentiary matters which should be threshed out during the trial. The following
Moreover, there is nothing to support petitioner’s claim that the investigating are also matters better left for the trial court to appreciate: (a) the contents of the
prosecutor was biased in favor of complainants. There are other pieces of death certificate and autopsy report, (b) the medical records of Ronald’s accident
91

in November 1997, (c) the perception of witnesses Jennilyn Quirong and Melanie Section 3(b), Article VI of RA 7610 defines "child abuse" as the maltreatment,
Lugales, and (d) the alleged lack of medical assistance or medical negligence whether habitual or not, of the child which includes physical abuse and cruelty.
which caused Ronald’s death. Petitioner’s alleged banging of the heads of Ronald and Lorendo is clearly an act
of cruelty.
To repeat, what is determined during preliminary investigation is only probable
cause, not proof beyond reasonable doubt.25 As implied by the words In a petition for certiorari like this case, the primordial issue is whether the DOJ
themselves, "probable cause" is concerned with probability, not absolute or moral Secretary acted with grave abuse of discretion amounting to lack or excess of
certainty.26 jurisdiction. The Court rules that the DOJ Secretary did not commit grave abuse
of discretion in finding that there is probable cause to charge petitioner of the
Asserting her innocence, petitioner continues to invoke the disposition of the crimes of homicide and child abuse. The Court further rules that the investigating
inquest prosecutor finding insufficient evidence for the charges against her. As prosecutor did not act with grave abuse of discretion in securing motu proprio the
correctly ruled by the DOJ Secretary, the inquest prosecutor did not dismiss the autopsy report and in not calling for a clarificatory hearing. This ruling does not
case but merely recommended it for further investigation since it was not proper diminish in any way the constitutional right of petitioner to be presumed innocent
for inquest and the evidence was then insufficient. Moreover, petitioner’s active until the contrary is proven.
participation in the preliminary investigation without questioning the propriety of
such proceedings indicates petitioner’s agreement with the recommendation of WHEREFORE, we DENY the instant petition. We AFFIRM the Resolutions of the
the inquest prosecutor for the further investigation of the case. Secretary of Justice dated 15 September 2000 and 19 April 2001 in I.C. No. 99-
6254. No pronouncement as to costs.
Charges of Homicide and Child Abuse
SO ORDERED.
Petitioner’s single act of allegedly banging the heads of her students had two
distinct victims, namely Ronald and Lorendo. Therefore, petitioner has to face ANTONIO T. CARPIO
prosecution for cruelty to each victim. For Ronald’s death, petitioner is being Associate Justice
charged with homicide under Article 249 of the Revised Penal Code27 in relation
to Section 10(a), Article VI of RA 7610 punishable by reclusion WE CONCUR:
perpetua.28 However, this does not mean that petitioner is being charged with the
distinct offenses of homicide and child abuse for Ronald’s death. On the other G. R. No. 164317 February 6, 2006
hand, for her cruelty to Lorendo, petitioner is being charged with violation of
Section 10(a), Article VI of RA 7610 punishable by prision mayor in its minimum
period. ALFREDO CHING, Petitioner,
vs.
THE SECRETARY OF JUSTICE, ASST. CITY PROSECUTOR ECILYN
Contrary to petitioner’s contention, Section 10(a), Article VI of RA 7610 is clear. BURGOS-VILLAVERT, JUDGE EDGARDO SUDIAM of the Regional Trial
This provision reads: Court, Manila, Branch 52; RIZAL COMMERCIAL BANKING CORP. and THE
PEOPLE OF THE PHILIPPINES, Respondents.
(a) Any person who shall commit any other acts of child abuse, cruelty or
exploitation or be responsible for other conditions prejudicial to the child’s DECISION
development including those covered by Article 59 of Presidential Decree No.
603, as amended, but not covered by the Revised Penal Code, as amended,
shall suffer the penalty of prision mayor in its minimum period. CALLEJO, SR., J.:

Ambiguity is a condition of admitting two or more meanings, of being understood Before the Court is a petition for review on certiorari of the Decision1 of the Court
in more than one way, or of referring to two or more things at the same time. A of Appeals (CA) in CA-G.R. SP No. 57169 dismissing the petition for certiorari,
statute is ambiguous if it is susceptible to more than one interpretation. 29 In the prohibition and mandamus filed by petitioner Alfredo Ching, and its
present case, petitioner fails to show convincingly the ambiguity in Section 10(a), Resolution2 dated June 28, 2004 denying the motion for reconsideration thereof.
Article VI of RA 7610.
92

Petitioner was the Senior Vice-President of Philippine Blooming Mills, Inc.


Spectrophotometer
(PBMI). Sometime in September to October 1980, PBMI, through petitioner,
applied with the Rizal Commercial Banking Corporation (respondent bank) for the
1911 12-22-80 03-20-81 P91,497.85 50 pcs. Ingot
issuance of commercial letters of credit to finance its importation of assorted
moulds
goods.3
2041 01-30-81 04-30-81 P91,456.97 50 pcs. Ingot
Respondent bank approved the application, and irrevocable letters of credit were moulds
issued in favor of petitioner. The goods were purchased and delivered in trust to
PBMI. Petitioner signed 13 trust receipts4 as surety, acknowledging delivery of 2099 02-10-81 05-11-81 P66,162.26 8 pcs. Kubota Rolls
the following goods: for rolling mills

2100 02-10-81 05-12-81 P210,748.00 Spare parts for


T/R Date Maturity Principal Description of Lacolaboratory
Nos. Granted Date Goods Equipment5

1845 12-05-80 03-05-81 P1,596,470.05 79.9425 M/T "SDK"


Brand Synthetic Under the receipts, petitioner agreed to hold the goods in trust for the said bank,
Graphite Electrode with authority to sell but not by way of conditional sale, pledge or otherwise; and
in case such goods were sold, to turn over the proceeds thereof as soon as
1853 12-08-80 03-06-81 P198,150.67 3,000 pcs. (15 received, to apply against the relative acceptances and payment of other
bundles) Calorized indebtedness to respondent bank. In case the goods remained unsold within the
Lance Pipes specified period, the goods were to be returned to respondent bank without any
need of demand. Thus, said "goods, manufactured products or proceeds thereof,
1824 11-28-80 02-26-81 P707,879.71 One Lot High Fired whether in the form of money or bills, receivables, or accounts separate and
Refractory Tundish capable of identification" were respondent bank’s property.
Bricks
When the trust receipts matured, petitioner failed to return the goods to
1798 11-21-80 02-19-81 P835,526.25 5 cases spare parts
respondent bank, or to return their value amounting to P6,940,280.66 despite
for CCM
demands. Thus, the bank filed a criminal complaint for estafa6 against petitioner
1808 11-21-80 02-19-81 P370,332.52 200 pcs. ingot in the Office of the City Prosecutor of Manila.
moulds
After the requisite preliminary investigation, the City Prosecutor found probable
2042 01-30-81 04-30-81 P469,669.29 High Fired cause estafa under Article 315, paragraph 1(b) of the Revised Penal Code, in
Refractory Nozzle relation to Presidential Decree (P.D.) No. 115, otherwise known as the Trust
Bricks Receipts Law. Thirteen (13) Informations were filed against the petitioner before
the Regional Trial Court (RTC) of Manila. The cases were docketed as Criminal
1801 11-21-80 02-19-81 P2,001,715.17 Synthetic Graphite Cases No. 86-42169 to 86-42181, raffled to Branch 31 of said court.
Electrode [with]
tapered pitch filed Petitioner appealed the resolution of the City Prosecutor to the then Minister of
nipples Justice. The appeal was dismissed in a Resolution7 dated March 17, 1987, and
petitioner moved for its reconsideration. On December 23, 1987, the Minister of
1857 12-09-80 03-09-81 P197,843.61 3,000 pcs. (15 Justice granted the motion, thus reversing the previous resolution finding
bundles calorized probable cause against petitioner.8 The City Prosecutor was ordered to move for
lance pipes [)] the withdrawal of the Informations.
1895 12-17-80 03-17-81 P67,652.04 Spare parts for
93

This time, respondent bank filed a motion for reconsideration, which, however, The Justice Secretary further stated that the respondent bound himself under the
was denied on February 24, 1988.9 The RTC, for its part, granted the Motion to terms of the trust receipts not only as a corporate official of PBMI but also as its
Quash the Informations filed by petitioner on the ground that the material surety; hence, he could be proceeded against in two (2) ways: first, as surety as
allegations therein did not amount to estafa.10 determined by the Supreme Court in its decision in Rizal Commercial Banking
Corporation v. Court of Appeals;17 and second, as the corporate official
In the meantime, the Court rendered judgment in Allied Banking Corporation v. responsible for the offense under P.D. No. 115, via criminal prosecution.
Ordoñez,11 holding that the penal provision of P.D. No. 115 encompasses any Moreover, P.D. No. 115 explicitly allows the prosecution of corporate officers
act violative of an obligation covered by the trust receipt; it is not limited to "without prejudice to the civil liabilities arising from the criminal offense." Thus,
transactions involving goods which are to be sold (retailed), reshipped, stored or according to the Justice Secretary, following Rizal Commercial Banking
processed as a component of a product ultimately sold. The Court also ruled that Corporation, the civil liability imposed is clearly separate and distinct from the
"the non-payment of the amount covered by a trust receipt is an act violative of criminal liability of the accused under P.D. No. 115.
the obligation of the entrustee to pay."12
Conformably with the Resolution of the Secretary of Justice, the City Prosecutor
On February 27, 1995, respondent bank re-filed the criminal complaint for estafa filed 13 Informations against petitioner for violation of P.D. No. 115 before the
against petitioner before the Office of the City Prosecutor of Manila. The case RTC of Manila. The cases were docketed as Criminal Cases No. 99-178596 to
was docketed as I.S. No. 95B-07614. 99-178608 and consolidated for trial before Branch 52 of said court. Petitioner
filed a motion for reconsideration, which the Secretary of Justice denied in a
Preliminary investigation ensued. On December 8, 1995, the City Prosecutor Resolution18 dated January 17, 2000.
ruled that there was no probable cause to charge petitioner with violating P.D.
No. 115, as petitioner’s liability was only civil, not criminal, having signed the trust Petitioner then filed a petition for certiorari, prohibition and mandamus with the
receipts as surety.13 Respondent bank appealed the resolution to the Department CA, assailing the resolutions of the Secretary of Justice on the following grounds:
of Justice (DOJ) via petition for review, alleging that the City Prosecutor erred in
ruling: 1. THE RESPONDENTS ARE ACTING WITH AN UNEVEN HAND AND
IN FACT, ARE ACTING OPPRESSIVELY AGAINST ALFREDO CHING
1. That there is no evidence to show that respondent participated in the WHEN THEY ALLOWED HIS PROSECUTION DESPITE THE FACT
misappropriation of the goods subject of the trust receipts; THAT NO EVIDENCE HAD BEEN PRESENTED TO PROVE HIS
PARTICIPATION IN THE ALLEGED TRANSACTIONS.
2. That the respondent is a mere surety of the trust receipts; and
2. THE RESPONDENT SECRETARY OF JUSTICE COMMITTED AN
ACT IN GRAVE ABUSE OF DISCRETION AND IN EXCESS OF HIS
3. That the liability of the respondent is only civil in nature.14
JURISDICTION WHEN THEY CONTINUED PROSECUTION OF THE
PETITIONER DESPITE THE LENGTH OF TIME INCURRED IN THE
On July 13, 1999, the Secretary of Justice issued Resolution No. 250 15 granting TERMINATION OF THE PRELIMINARY INVESTIGATION THAT
the petition and reversing the assailed resolution of the City Prosecutor. SHOULD JUSTIFY THE DISMISSAL OF THE INSTANT CASE.
According to the Justice Secretary, the petitioner, as Senior Vice-President of
PBMI, executed the 13 trust receipts and as such, was the one responsible for
3. THE RESPONDENT SECRETARY OF JUSTICE AND ASSISTANT
the offense. Thus, the execution of said receipts is enough to indict the petitioner
as the official responsible for violation of P.D. No. 115. The Justice Secretary CITY PROSECUTOR ACTED IN GRAVE ABUSE OF DISCRETION
also declared that petitioner could not contend that P.D. No. 115 covers only AMOUNTING TO AN EXCESS OF JURISDICTION WHEN THEY
CONTINUED THE PROSECUTION OF THE PETITIONER DESPITE
goods ultimately destined for sale, as this issue had already been settled in Allied
LACK OF SUFFICIENT BASIS.19
Banking Corporation v. Ordoñez,16where the Court ruled that P.D. No. 115 is "not
limited to transactions in goods which are to be sold (retailed), reshipped, stored
or processed as a component of a product ultimately sold but covers failure to In his petition, petitioner incorporated a certification stating that "as far as this
turn over the proceeds of the sale of entrusted goods, or to return said goods if Petition is concerned, no action or proceeding in the Supreme Court, the Court of
unsold or not otherwise disposed of in accordance with the terms of the trust Appeals or different divisions thereof, or any tribunal or agency. It is finally
receipts." certified that if the affiant should learn that a similar action or proceeding has
94

been filed or is pending before the Supreme Court, the Court of Appeals, or City Prosecutor’s delay in the final disposition of the preliminary investigation
different divisions thereof, of any other tribunal or agency, it hereby undertakes to because he failed to do so in the DOJ.
notify this Honorable Court within five (5) days from such notice."20
Thus, petitioner filed the instant petition, alleging that:
In its Comment on the petition, the Office of the Solicitor General alleged that -
I
A.
THE COURT OF APPEALS ERRED WHEN IT DISMISSED THE
THE HONORABLE SECRETARY OF JUSTICE CORRECTLY RULED PETITION ON THE GROUND THAT THE CERTIFICATION OF NON-
THAT PETITIONER ALFREDO CHING IS THE OFFICER FORUM SHOPPING INCORPORATED THEREIN WAS DEFECTIVE.
RESPONSIBLE FOR THE OFFENSE CHARGED AND THAT THE
ACTS OF PETITIONER FALL WITHIN THE AMBIT OF VIOLATION OF II
P.D. [No.] 115 IN RELATION TO ARTICLE 315, PAR. 1(B) OF THE
REVISED PENAL CODE.
THE COURT OF APPEALS ERRED WHEN IT RULED THAT NO
GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS
B. OF JURISDICTION WAS COMMITTED BY THE SECRETARY OF
JUSTICE IN COMING OUT WITH THE ASSAILED RESOLUTIONS.23
THERE IS NO MERIT IN PETITIONER’S CONTENTION THAT
EXCESSIVE DELAY HAS MARRED THE CONDUCT OF THE The Court will delve into and resolve the issues seriatim.
PRELIMINARY INVESTIGATION OF THE CASE, JUSTIFYING ITS
DISMISSAL. The petitioner avers that the CA erred in dismissing his petition on a mere
technicality. He claims that the rules of procedure should be used to promote, not
C. frustrate, substantial justice. He insists that the Rules of Court should be
construed liberally especially when, as in this case, his substantial rights are
THE PRESENT SPECIAL CIVIL ACTION FOR CERTIORARI, adversely affected; hence, the deficiency in his certification of non-forum
PROHIBITION AND MANDAMUS IS NOT THE PROPER MODE OF shopping should not result in the dismissal of his petition.
REVIEW FROM THE RESOLUTION OF THE DEPARTMENT OF
JUSTICE. THE PRESENT PETITION MUST THEREFORE BE The Office of the Solicitor General (OSG) takes the opposite view, and asserts
DISMISSED.21 that indubitably, the certificate of non-forum shopping incorporated in the petition
before the CA is defective because it failed to disclose essential facts about
On April 22, 2004, the CA rendered judgment dismissing the petition for lack of pending actions concerning similar issues and parties. It asserts that petitioner’s
merit, and on procedural grounds. On the procedural issue, it ruled that (a) the failure to comply with the Rules of Court is fatal to his petition. The OSG cited
certification of non-forum shopping executed by petitioner and incorporated in the Section 2, Rule 42, as well as the ruling of this Court in Melo v. Court of
petition was defective for failure to comply with the first two of the three-fold Appeals.24
undertakings prescribed in Rule 7, Section 5 of the Revised Rules of Civil
Procedure; and (b) the petition for certiorari, prohibition and mandamus was not We agree with the ruling of the CA that the certification of non-forum shopping
the proper remedy of the petitioner. petitioner incorporated in his petition before the appellate court is defective. The
certification reads:
On the merits of the petition, the CA ruled that the assailed resolutions of the
Secretary of Justice were correctly issued for the following reasons: (a) It is further certified that as far as this Petition is concerned, no action or
petitioner, being the Senior Vice-President of PBMI and the signatory to the trust proceeding in the Supreme Court, the Court of Appeals or different divisions
receipts, is criminally liable for violation of P.D. No. 115; (b) the issue raised by thereof, or any tribunal or agency.
the petitioner, on whether he violated P.D. No. 115 by his actuations, had already
been resolved and laid to rest in Allied Bank Corporation v. Ordoñez;22 and (c)
petitioner was estopped from raising the
95

It is finally certified that if the affiant should learn that a similar action or rule of substantial compliance may be availed of.27 However, there must be a
proceeding has been filed or is pending before the Supreme Court, the Court of special circumstance or compelling reason which makes the strict application of
Appeals, or different divisions thereof, of any other tribunal or agency, it hereby the requirement clearly unjustified. The instant petition has not alleged any such
undertakes to notify this Honorable Court within five (5) days from such notice. 25 extraneous circumstance. Moreover, as worded, the certification cannot even be
regarded as substantial compliance with the procedural requirement. Thus, the
Under Section 1, second paragraph of Rule 65 of the Revised Rules of Court, the CA was not informed whether, aside from the petition before it, petitioner had
petition should be accompanied by a sworn certification of non-forum shopping, commenced any other action involving the same issues in other tribunals.
as provided in the third paragraph of Section 3, Rule 46 of said Rules. The latter
provision reads in part: On the merits of the petition, the CA ruled that the petitioner failed to establish
that the Secretary of Justice committed grave abuse of discretion in finding
SEC. 3. Contents and filing of petition; effect of non-compliance with probable cause against the petitioner for violation of estafa under Article 315,
requirements. — The petition shall contain the full names and actual addresses paragraph 1(b) of the Revised Penal Code, in relation to P.D. No. 115. Thus, the
of all the petitioners and respondents, a concise statement of the matters appellate court ratiocinated:
involved, the factual background of the case and the grounds relied upon for the
relief prayed for. Be that as it may, even on the merits, the arguments advanced in support of the
petition are not persuasive enough to justify the desired conclusion that
xxx respondent Secretary of Justice gravely abused its discretion in coming out with
his assailed Resolutions. Petitioner posits that, except for his being the Senior
Vice-President of the PBMI, there is no iota of evidence that he was a participes
The petitioner shall also submit together with the petition a sworn certification
crimines in violating the trust receipts sued upon; and that his liability, if at all, is
that he has not theretofore commenced any other action involving the same
purely civil because he signed the said trust receipts merely as a xxx surety and
issues in the Supreme Court, the Court of Appeals or different divisions thereof,
or any other tribunal or agency; if there is such other action or proceeding, he not as the entrustee. These assertions are, however, too dull that they cannot
must state the status of the same; and if he should thereafter learn that a similar even just dent the findings of the respondent Secretary, viz:
action or proceeding has been filed or is pending before the Supreme Court, the
Court of Appeals, or different divisions thereof, or any other tribunal or agency, "x x x it is apropos to quote section 13 of PD 115 which states in part, viz:
he undertakes to promptly inform the aforesaid courts and other tribunal or
agency thereof within five (5) days therefrom. xxx ‘xxx If the violation or offense is committed by a corporation, partnership,
association or other judicial entities, the penalty provided for in this Decree shall
Compliance with the certification against forum shopping is separate from and be imposed upon the directors, officers, employees or other officials or persons
independent of the avoidance of forum shopping itself. The requirement is therein responsible for the offense, without prejudice to the civil liabilities arising
mandatory. The failure of the petitioner to comply with the foregoing requirement from the criminal offense.’
shall be sufficient ground for the dismissal of the petition without prejudice,
unless otherwise provided.26 "There is no dispute that it was the respondent, who as senior vice-president of
PBM, executed the thirteen (13) trust receipts. As such, the law points to him as
Indubitably, the first paragraph of petitioner’s certification is incomplete and the official responsible for the offense. Since a corporation cannot be proceeded
unintelligible. Petitioner failed to certify that he "had not heretofore commenced against criminally because it cannot commit crime in which personal violence or
any other action involving the same issues in the Supreme Court, the Court of malicious intent is required, criminal action is limited to the corporate agents
Appeals or the different divisions thereof or any other tribunal or agency" as guilty of an act amounting to a crime and never against the corporation itself
required by paragraph 4, Section 3, Rule 46 of the Revised Rules of Court. (West Coast Life Ins. Co. vs. Hurd, 27 Phil. 401; Times, [I]nc. v. Reyes, 39 SCRA
303). Thus, the execution by respondent of said receipts is enough to indict him
as the official responsible for violation of PD 115.
We agree with petitioner’s contention that the certification is designed to promote
and facilitate the orderly administration of justice, and therefore, should not be
interpreted with absolute literalness. In his works on the Revised Rules of Civil "Parenthetically, respondent is estopped to still contend that PD 115 covers only
Procedure, former Supreme Court Justice Florenz Regalado states that, with goods which are ultimately destined for sale and not goods, like those imported
respect to the contents of the certification which the pleader may prepare, the by PBM, for use in manufacture. This issue has already been settled in the Allied
96

Banking Corporation case, supra, where he was also a party, when the Supreme Section 13. Penalty Clause. The failure of an entrustee to turn over the proceeds
Court ruled that PD 115 is ‘not limited to transactions in goods which are to be of the sale of the goods, documents or instruments covered by a trust receipt to
sold (retailed), reshipped, stored or processed as a component or a product the extent of the amount owing to the entruster or as appears in the trust receipt
ultimately sold’ but ‘covers failure to turn over the proceeds of the sale of or to return said goods, documents or instruments if they were not sold or
entrusted goods, or to return said goods if unsold or disposed of in accordance disposed of in accordance with the terms of the trust receipt shall constitute the
with the terms of the trust receipts.’ crime of estafa, punishable under the provisions of Article Three hundred and
fifteen, paragraph one (b) of Act Numbered Three thousand eight hundred and
"In regard to the other assigned errors, we note that the respondent bound fifteen, as amended, otherwise known as the Revised Penal Code. If the violation
himself under the terms of the trust receipts not only as a corporate official of or offense is committed by a corporation, partnership, association or other
PBM but also as its surety. It is evident that these are two (2) capacities which do juridical entities, the penalty provided for in this Decree shall be imposed upon
not exclude the other. Logically, he can be proceeded against in two (2) ways: the directors, officers, employees or other officials or persons therein responsible
first, as surety as determined by the Supreme Court in its decision in RCBC vs. for the offense, without prejudice to the civil liabilities arising from the criminal
Court of Appeals, 178 SCRA 739; and, secondly, as the corporate official offense. (Emphasis supplied)
responsible for the offense under PD 115, the present case is an appropriate
remedy under our penal law. 36. Petitioner having participated in the negotiations for the trust receipts and
having received the goods for PBM, it was inevitable that the petitioner is the
"Moreover, PD 115 explicitly allows the prosecution of corporate officers ‘without proper corporate officer to be proceeded against by virtue of the PBM’s violation
prejudice to the civil liabilities arising from the criminal offense’ thus, the civil of P.D. No. 115.29
liability imposed on respondent in RCBC vs. Court of Appeals case is clearly
separate and distinct from his criminal liability under PD 115.’"28 The ruling of the CA is correct.

Petitioner asserts that the appellate court’s ruling is erroneous because (a) the In Mendoza-Arce v. Office of the Ombudsman (Visayas),30 this Court held that
transaction between PBMI and respondent bank is not a trust receipt transaction; the acts of a quasi-judicial officer may be assailed by the aggrieved party via a
(b) he entered into the transaction and was sued in his capacity as PBMI Senior petition for certiorari and enjoined (a) when necessary to afford adequate
Vice-President; (c) he never received the goods as an entrustee for PBMI, protection to the constitutional rights of the accused; (b) when necessary for the
hence, could not have committed any dishonesty or abused the confidence of orderly administration of justice; (c) when the acts of the officer are without or in
respondent bank; and (d) PBMI acquired the goods and used the same in excess of authority; (d) where the charges are manifestly false and motivated by
operating its machineries and equipment and not for resale. the lust for vengeance; and (e) when there is clearly no prima facie case against
the accused.31 The Court also declared that, if the officer conducting a
The OSG, for its part, submits a contrary view, to wit: preliminary investigation (in that case, the Office of the Ombudsman) acts without
or in excess of his authority and resolves to file an Information despite the
absence of probable cause, such act may be nullified by a writ of certiorari. 32
34. Petitioner further claims that he is not a person responsible for the offense
allegedly because "[b]eing charged as the Senior Vice-President of Philippine
Blooming Mills (PBM), petitioner cannot be held criminally liable as the Indeed, under Section 4, Rule 112 of the 2000 Rules of Criminal Procedure,33 the
transactions sued upon were clearly entered into in his capacity as an officer of Information shall be prepared by the Investigating Prosecutor against the
the corporation" and that [h]e never received the goods as an entrustee for PBM respondent only if he or she finds probable cause to hold such respondent for
as he never had or took possession of the goods nor did he commit dishonesty trial. The Investigating Prosecutor acts without or in excess of his authority under
nor "abuse of confidence in transacting with RCBC." Such argument is bereft of the Rule if the Information is filed against the respondent despite absence of
merit. evidence showing probable cause therefor.34 If the Secretary of Justice reverses
the Resolution of the Investigating Prosecutor who found no probable cause to
hold the respondent for trial, and orders such prosecutor to file the Information
35. Petitioner’s being a Senior Vice-President of the Philippine Blooming Mills
despite the absence of probable cause, the Secretary of Justice acts contrary to
does not exculpate him from any liability. Petitioner’s responsibility as the
law, without authority and/or in excess of authority. Such resolution may likewise
corporate official of PBM who received the goods in trust is premised on Section
13 of P.D. No. 115, which provides: be nullified in a petition for certiorari under Rule 65 of the Revised Rules of Civil
Procedure.35
97

A preliminary investigation, designed to secure the respondent against hasty, sale, the entruster shall retain its title over the goods whether in its
malicious and oppressive prosecution, is an inquiry to determine whether (a) a original or processed form until the entrustee has complied fully with his
crime has been committed; and (b) whether there is probable cause to believe obligation under the trust receipt; or (c) to load, unload, ship or otherwise
that the accused is guilty thereof. It is a means of discovering the person or deal with them in a manner preliminary or necessary to their sale; or
persons who may be reasonably charged with a crime. Probable cause need not
be based on clear and convincing evidence of guilt, as the investigating officer 2. In the case of instruments a) to sell or procure their sale or exchange;
acts upon probable cause of reasonable belief. Probable cause implies or b) to deliver them to a principal; or c) to effect the consummation of
probability of guilt and requires more than bare suspicion but less than evidence some transactions involving delivery to a depository or register; or d) to
which would justify a conviction. A finding of probable cause needs only to rest effect their presentation, collection or renewal.
on evidence showing that more likely than not, a crime has been committed by
the suspect.36
The sale of goods, documents or instruments by a person in the business of
selling goods, documents or instruments for profit who, at the outset of the
However, while probable cause should be determined in a summary manner, transaction, has, as against the buyer, general property rights in such goods,
there is a need to examine the evidence with care to prevent material damage to documents or instruments, or who sells the same to the buyer on credit, retaining
a potential accused’s constitutional right to liberty and the guarantees of freedom title or other interest as security for the payment of the purchase price, does not
and fair play37 and to protect the State from the burden of unnecessary expenses constitute a trust receipt transaction and is outside the purview and coverage of
in prosecuting alleged offenses and holding trials arising from false, fraudulent or this Decree.
groundless charges.38
An entrustee is one having or taking possession of goods, documents or
In this case, petitioner failed to establish that the Secretary of Justice committed instruments under a trust receipt transaction, and any successor in interest of
grave abuse of discretion in issuing the assailed resolutions. Indeed, he acted in such person for the purpose of payment specified in the trust receipt
accord with law and the evidence. agreement.39 The entrustee is obliged to: (1) hold the goods, documents or
instruments in trust for the entruster and shall dispose of them strictly in
Section 4 of P.D. No. 115 defines a trust receipt transaction, thus: accordance with the terms and conditions of the trust receipt; (2) receive the
proceeds in trust for the entruster and turn over the same to the entruster to the
Section 4. What constitutes a trust receipt transaction. A trust receipt transaction, extent of the amount owing to the entruster or as appears on the trust receipt; (3)
within the meaning of this Decree, is any transaction by and between a person insure the goods for their total value against loss from fire, theft, pilferage or
referred to in this Decree as the entruster, and another person referred to in this other casualties; (4) keep said goods or proceeds thereof whether in money or
Decree as entrustee, whereby the entruster, who owns or holds absolute title or whatever form, separate and capable of identification as property of the
security interests over certain specified goods, documents or instruments, entruster; (5) return the goods, documents or instruments in the event of non-
releases the same to the possession of the entrustee upon the latter’s execution sale or upon demand of the entruster; and (6) observe all other terms and
and delivery to the entruster of a signed document called a "trust receipt" wherein conditions of the trust receipt not contrary to the provisions of the decree. 40
the entrustee binds himself to hold the designated goods, documents or
instruments in trust for the entruster and to sell or otherwise dispose of the The entruster shall be entitled to the proceeds from the sale of the goods,
goods, documents or instruments with the obligation to turn over to the entruster documents or instruments released under a trust receipt to the entrustee to the
the proceeds thereof to the extent of the amount owing to the entruster or as extent of the amount owing to the entruster or as appears in the trust receipt, or
appears in the trust receipt or the goods, documents or instruments themselves if to the return of the goods, documents or instruments in case of non-sale, and to
they are unsold or not otherwise disposed of, in accordance with the terms and the enforcement of all other rights conferred on him in the trust receipt; provided,
conditions specified in the trust receipt, or for other purposes substantially such are not contrary to the provisions of the document.41
equivalent to any of the following:
In the case at bar, the transaction between petitioner and respondent bank falls
1. In case of goods or documents, (a) to sell the goods or procure their under the trust receipt transactions envisaged in P.D. No. 115. Respondent bank
sale; or (b) to manufacture or process the goods with the purpose of imported the goods and entrusted the same to PBMI under the trust receipts
ultimate sale; Provided, That, in the case of goods delivered under trust signed by petitioner, as entrustee, with the bank as entruster. The agreement
receipt for the purpose of manufacturing or processing before its ultimate was as follows:
98

And in consideration thereof, I/we hereby agree to hold said goods in trust for the defraud. The law punishes dishonesty and abuse of confidence in the handling of
said BANK as its property with liberty to sell the same within ____days from the money or goods to the prejudice of the entruster, regardless of whether the latter
date of the execution of this Trust Receipt and for the Bank’s account, but without is the owner or not. A mere failure to deliver the proceeds of the sale of the
authority to make any other disposition whatsoever of the said goods or any part goods, if not sold, constitutes a criminal offense that causes prejudice, not only to
thereof (or the proceeds) either by way of conditional sale, pledge or otherwise. another, but more to the public interest.47

I/we agree to keep the said goods insured to their full value against loss from fire, The Court rules that although petitioner signed the trust receipts merely as
theft, pilferage or other casualties as directed by the BANK, the sum insured to Senior Vice-President of PBMI and had no physical possession of the goods, he
be payable in case of loss to the BANK, with the understanding that the BANK is, cannot avoid prosecution for violation of P.D. No. 115.
not to be chargeable with the storage premium or insurance or any other
expenses incurred on said goods. The penalty clause of the law, Section 13 of P.D. No. 115 reads:

In case of sale, I/we further agree to turn over the proceeds thereof as soon as Section 13. Penalty Clause. The failure of an entrustee to turn over the proceeds
received to the BANK, to apply against the relative acceptances (as described of the sale of the goods, documents or instruments covered by a trust receipt to
above) and for the payment of any other indebtedness of mine/ours to the BANK. the extent of the amount owing to the entruster or as appears in the trust receipt
In case of non-sale within the period specified herein, I/we agree to return the or to return said goods, documents or instruments if they were not sold or
goods under this Trust Receipt to the BANK without any need of demand. disposed of in accordance with the terms of the trust receipt shall constitute the
crime of estafa, punishable under the provisions of Article Three hundred and
I/we agree to keep the said goods, manufactured products or proceeds thereof, fifteen, paragraph one (b) of Act Numbered Three thousand eight hundred and
whether in the form of money or bills, receivables, or accounts separate and fifteen, as amended, otherwise known as the Revised Penal Code.1âwphi1 If the
capable of identification as property of the BANK.42 violation or offense is committed by a corporation, partnership, association or
other juridical entities, the penalty provided for in this Decree shall be imposed
It must be stressed that P.D. No. 115 is a declaration by legislative authority that, upon the directors, officers, employees or other officials or persons therein
as a matter of public policy, the failure of person to turn over the proceeds of the responsible for the offense, without prejudice to the civil liabilities arising from the
sale of the goods covered by a trust receipt or to return said goods, if not sold, is criminal offense.
a public nuisance to be abated by the imposition of penal sanctions.43
The crime defined in P.D. No. 115 is malum prohibitum but is classified as estafa
The Court likewise rules that the issue of whether P.D. No. 115 encompasses under paragraph 1(b), Article 315 of the Revised Penal Code, or estafa with
transactions involving goods procured as a component of a product ultimately abuse of confidence. It may be committed by a corporation or other juridical
sold has been resolved in the affirmative in Allied Banking Corporation v. entity or by natural persons. However, the penalty for the crime is imprisonment
Ordoñez.44 The law applies to goods used by the entrustee in the operation of its for the periods provided in said Article 315, which reads:
machineries and equipment. The non-payment of the amount covered by the
trust receipts or the non-return of the goods covered by the receipts, if not sold or ARTICLE 315. Swindling (estafa). – Any person who shall defraud another by
otherwise not disposed of, violate the entrustee’s obligation to pay the amount or any of the means mentioned hereinbelow shall be punished by:
to return the goods to the entruster.
1st. The penalty of prision correccional in its maximum period to prision
In Colinares v. Court of Appeals,45 the Court declared that there are two possible mayor in its minimum period, if the amount of the fraud is over 12,000
situations in a trust receipt transaction. The first is covered by the provision which pesos but does not exceed 22,000 pesos; and if such amount exceeds
refers to money received under the obligation involving the duty to deliver it the latter sum, the penalty provided in this paragraph shall be imposed in
(entregarla) to the owner of the merchandise sold. The second is covered by the its maximum period, adding one year for each additional 10,000 pesos;
provision which refers to merchandise received under the obligation to return it but the total penalty which may be imposed shall not exceed twenty
(devolvera) to the owner.46 Thus, failure of the entrustee to turn over the years. In such cases, and in connection with the accessory penalties
proceeds of the sale of the goods covered by the trust receipts to the entruster or which may be imposed and for the purpose of the other provisions of this
to return said goods if they were not disposed of in accordance with the terms of Code, the penalty shall be termed prision mayor or reclusion temporal,
the trust receipt is a crime under P.D. No. 115, without need of proving intent to as the case may be;
99

2nd. The penalty of prision correccional in its minimum and medium The principle applies whether or not the crime requires the consciousness of
periods, if the amount of the fraud is over 6,000 pesos but does not wrongdoing. It applies to those corporate agents who themselves commit the
exceed 12,000 pesos; crime and to those, who, by virtue of their managerial positions or other similar
relation to the corporation, could be deemed responsible for its commission, if by
3rd. The penalty of arresto mayor in its maximum period to prision virtue of their relationship to the corporation, they had the power to prevent the
correccional in its minimum period, if such amount is over 200 pesos but act.53 Moreover, all parties active in promoting a crime, whether agents or not,
does not exceed 6,000 pesos; and are principals.54 Whether such officers or employees are benefited by their
delictual acts is not a touchstone of their criminal liability. Benefit is not an
operative fact.
4th. By arresto mayor in its medium and maximum periods, if such amount does
not exceed 200 pesos, provided that in the four cases mentioned, the fraud be
committed by any of the following means; xxx In this case, petitioner signed the trust receipts in question. He cannot, thus, hide
behind the cloak of the separate corporate personality of PBMI. In the words of
Though the entrustee is a corporation, nevertheless, the law specifically makes Chief Justice Earl Warren, a corporate officer cannot protect himself behind a
corporation where he is the actual, present and efficient actor.55
the officers, employees or other officers or persons responsible for the offense,
without prejudice to the civil liabilities of such corporation and/or board of
directors, officers, or other officials or employees responsible for the offense. The IN LIGHT OF ALL THE FOREGOING, the petition is DENIED for lack of merit.
rationale is that such officers or employees are vested with the authority and Costs against the petitioner.
responsibility to devise means necessary to ensure compliance with the law and,
if they fail to do so, are held criminally accountable; thus, they have a responsible SO ORDERED.
share in the violations of the law.48
G.R. No. 113930 March 5, 1996
If the crime is committed by a corporation or other juridical entity, the directors,
officers, employees or other officers thereof responsible for the offense shall be PAUL G. ROBERTS, JR., RODOLFO C. SALAZAR, LUIS LORENZO, SR.,
charged and penalized for the crime, precisely because of the nature of the crime LUIS LORENZO, JR., AMAURY R. GUTIERREZ, BAYANI N. FABIC, JOSE
and the penalty therefor. A corporation cannot be arrested and imprisoned; YULO, JR., ESTEBAN B. PALANNUAYAN, and WONG FONG FUI,petitioners,
hence, cannot be penalized for a crime punishable by imprisonment.49 However, vs.
a corporation may be charged and prosecuted for a crime if the imposable THE COURT OF APPEALS, THE HON. MAXIMIANO ASUNCION, in his
penalty is fine. Even if the statute prescribes both fine and imprisonment as capacity as the Presiding Judge of the Regional Trial Court, Quezon City,
penalty, a corporation may be prosecuted and, if found guilty, may be fined. 50 Branch 104, HON. APOLINARIO G. EXEVEA, HON. HENRICK F. GINGOYON,
and HON. PHILIP A. AGUINALDO, in their capacities as Members of the
A crime is the doing of that which the penal code forbids to be done, or omitting Department of Justice "349" Committee, and the CITY PROSECUTOR OF
to do what it commands. A necessary part of the definition of every crime is the QUEZON CITY, respondents.
designation of the author of the crime upon whom the penalty is to be inflicted.
When a criminal statute designates an act of a corporation or a crime and J. ROBERT DELGADO, petitioner-Intervenor.
prescribes punishment therefor, it creates a criminal offense which, otherwise,
would not exist and such can be committed only by the corporation. But when a
penal statute does not expressly apply to corporations, it does not create an
offense for which a corporation may be punished. On the other hand, if the State,
by statute, defines a crime that may be committed by a corporation but DAVIDE, JR., J.:p
prescribes the penalty therefor to be suffered by the officers, directors, or
employees of such corporation or other persons responsible for the offense, only We are urged in this petition to set aside (a) the decision of the Court of Appeals
such individuals will suffer such penalty.51 Corporate officers or employees, of 28 September 1993 in CA-G.R. SP No. 31226, 1 which dismissed the petition
through whose act, default or omission the corporation commits a crime, are therein on the ground that it has been "mooted with the release by the
themselves individually guilty of the crime.52 Department of Justice of its decision . . . dismissing petitioners' petition for
review"; (b) the resolution of the said court of 9 February 1994 2 denying the
petitioners' motion to reconsider the decision; (c) the order of 17 May 1993 3 of
100

respondent Judge Maximiano C. Asuncion of Branch 104 of the Regional Trial their respective capacities as Presidents or Chief Executive Officers, Chairman of
Court (RTC) of Quezon City in Criminal Case No. Q-93-43198 denying the Board, Vice-Chairman of the Board, and Directors of PEPSI, and also against
petitioners' motion to suspend proceedings and to hold in abeyance the issuance other officials of PEPSI. The complaints respectively accuse the petitioners and
of the warrants of arrest and the public prosecutor's motion to defer arraignment; the other PEPSI officials of the following crimes: (a) estafa; (b) violation of R.A.
and (d) the resolutions of 23 July 1993 and 3 February 1994 4 of the Department No. 7394, otherwise known as the Consumer Act of the Philippines; (c) violation
of Justice (DOJ) dismissing petitioners' petition for the review of the Joint of E.O. No. 913; 8 and (d) violation of Act No. 2333, entitled "An Act Relative to
Resolution of the Assistant City Prosecutor of Quezon City and denying the Untrue, Deceptive and Misleading Advertisements," as amended by Act No.
motion to reconsider the dismissal, respectively. 3740. 9

The petitioners rely on the following grounds for the grant of the reliefs prayed for After appropriate proceedings, the investigating prosecutor, Ramon M. Gerona,
in this petition: released on 23 March 1993 a Joint Resolution 10 where he recommended the
filing of an information against the petitioners and others for the violation of
I Article 318 of the Revised Penal Code and the dismissal of the complaints for the
violation of Article 315, 2(d) of the Revised Penal Code; R.A. No. 7394; Act No.
2333, as amended by Act No. 3740; and E.O. No. 913. The dispositive portion
Respondent Judge acted with grave abuse of discretion when he
thereof reads as follows:
ordered the arrest of the petitioners without examining the record
of the preliminary investigation and in determining for himself on
the basis thereof the existence of probable cause. In view of all the foregoing, it is recommended that:

II 1. The attached information be filed against respondents Paul G.


Roberts, Jr., Rodolfo C. Salazar, Rosemarie R. Vera, Luis F.
The Department of Justice "349" Committee acted with grave Lorenzo, Sr., Luis P. Lorenzo, Jr., J. Roberto Delgado, Amaury
R. Gutierrez, Bayani N. Fabic, Jose Yulo, Jr., Esteban B.
abuse of discretion when it refused to review the City
Pacannuayan, Jr., Wong Fong Fui, Quintin J. Gomez, Jr. and
Prosecutor's Joint Resolution and dismissed petitioner's appeal
Chito V. Gutierrez for estafa under Article 318, Revised Penal
therefrom.
Code, while the complaint for violation of Article 315, 2(d),
Revised Penal Code against same respondents Juanito R.
III Ignacio, R. Sobong, R.O. Sinsuan, M.P. Zarsadias, L.G. Dabao,
Jr., R.L. Domingo, N.N. Bacsal, Jesus M. Manalastas, Janette P.
The Court of Appeals acted with grave abuse of discretion when Pio de Roda, Joaquin W. Sampaico, Winefreda O. Madarang,
it upheld the subject order directing the issuance of the warrants Jack Gravey, Les G. Ham, Corazon Pineda, Edward S. Serapio,
of arrest without assessing for itself whether based on such Alex O. Caballes, Sandy Sytangco, Jorge W. Drysdale, Richard
records there is probable cause against petitioners. Blossom, Pablo de Borja, Edmundo L. Tan, Joseph T. Cohen,
Delfin Dator, Zosimo B. San Juan, Joaquin Franco, Primitivo S.
IV Javier, Jr., Luisito Guevarra, Asif H. Adil, Eugenio Muniosguren,
James Ditkoff and Timothy Lane be dismissed;
The facts on record do not establish prima facie probable cause
and Criminal Case No. Q-93-43198 should have been 2. The complaints against all respondents for violation of R.A.
dismissed. 5 7394 otherwise known as the Consumer Act of the Philippines
and violation of Act 2333 as amended by Act 3740 and E.O. 913
The antecedents of this petition are not disputed. be also dismissed for insufficiency of evidence, and

Several thousand holders 6 of "349" Pepsi crowns in connection with the Pepsi 3. I.S. Nos. 92-7833; 92-8710 and 92-P-1065 involving Crowns
Cola Products Phils., Inc.'s (PEPSI's) Number Fever Promotion 7 filed with the Nos. 173; 401; and 117, 425, 703 and 373, respectively, alleged
Office of the City Prosecutor of Quezon City complaints against the petitioner's in
101

to be likewise winning ones be further investigated to afford Jose Yulo, Jr. )


respondents a chance to submit their counter-evidence. 11
Esteban B. Pacannuayan, )
On 6 April 1993, City Prosecutor Candido V. Rivera approved the
recommendation with the modification that Rosemarie Vera, Quintin Gomez, Jr., Jr. and
and Chito Gonzales be excluded from the charge on the ground of insufficiency
of evidence. 12
Wong Fong Fui )

The information for estafa attached to the Joint Resolution was approved (on 7
OF THE PEPSI COLA PRODUCTS PHILIPPINES, INC.,
April 1993) by Ismael P. Casabar, Chief of the Prosecution Division, upon
CONSPIRING with one another, with intent of gain, by means of
authority of the City Prosecutor of Quezon City, and was filed with the RTC of deceit, fraudulent acts or false pretenses, executed prior to or
Quezon City on 12 April 1993. It was docketed as Criminal Case No. Q-93- simultaneously with the commission of the fraud, did then and
43198. 13 The information reads as follows:
there willfully, unlawfully and feloniously defraud the private
complainants whose names with their prizes claimed appear in
The undersigned 1st Assistant City Prosecutor accuses PAUL G. the attached lists marked as Annexes "A" to "A-46"; "B" to "-33";
ROBERTS, JR. RODOLFO C. SALAZAR, LUIS F. LORENZO, "C" to "C-281"; "D" to "D-238"; "E" to "E-30" and "F" to "F-244" in
SR., LUIS P. LORENZO, JR., J. ROBERTO DELGADO, the following manner: on the date and in the place
AMAURY R. GUTIERREZ, BAYANI N. FABIC, JOSE YULO, aforementioned, said accused pursuant to their conspiracy,
JR., ESTEBAN B. PACANNUAYAN, JR. and WONG FONG FUI, launched the Pepsi Cola Products Philippines, Inc. "Number
of the crime of ESTAFA, committed as follows: Fever Promotion" from February 17 to May 8, 1992 later
extended to May 11-June 12, 1992 and announced and
That in the month of February, 1992, in Quezon City, Philippines advertised in the media that "all holders of crowns and/or caps of
and for sometime prior and subsequent thereto, the above- Pepsi, Mirinda, Mountain Dew and Seven-up bearing the winning
named 3-digit number will win the full amount of the prize printed on the
accused — crowns/caps which are marked with a seven-digit security code
as a measure against tampering or faking of crowns and each
Paul G. Roberts, Jr. ) being then the Presidents and every number has its own unique matching security code",
enticing the public to buy Pepsi softdrinks with aforestated
alluring and attractive advertisements to become millionaires,
Rodolfo G. Salazar ) and Executive Officers
and by virtue of such representations made by the accused, the
said complainants bought Pepsi softdrinks, but, the said accused
Luis F. Lorenzo, Sr. ) being then the Chairman after their TV announcement on May 25, 1992 that the winning
number for the next day was "349", in violation of their aforecited
of the Board of Directors mechanics, refused as they still refuse to redeem/pay the said
Pepsi crowns and/or caps presented to them by the
Luis P. Lorenzo, Jr. ) being then the Vice complainants, who, among others, were able to buy Pepsi
softdrinks with crowns/caps bearing number "349" with security
Chairman of the Board codes L-2560-FQ and L-3560-FQ, despite repeated demands
made by the complainants, to their damage and prejudice to the
extent of the amount of the prizes respectively due them from
J. Roberto Delgado )
their winning "349" crowns/caps, together with such amounts
they spent in going to and from the Office of Pepsi to claim their
Amaury R. Gutierrez ) being then Members of prizes and such other amounts used in buying Pepsi softdrinks
which the complainants normally would not have done were it
Bayani N. Fabic ) the Board not for the false, fraudulent and deceitful posters of Pepsi Cola
Products Philippines, Inc.
102

CONTRARY TO LAW. of the Petition for Review by directing the City Prosecutor to elevate the records
of I.S. No. P-4401 and its related cases and asserted that the petition for review
On 14 April 1993, the petitioners filed with the Office of the City Prosecutor a was an essential part of the petitioners' right to a preliminary investigation.
motion for the reconsideration of the Joint Resolution 14 alleging therein that (a)
there was neither fraud in the Number Fever Promotion nor deviation from or The next day, respondent Judge Asuncion, Presiding Judge of Branch 104 of the
modification of the promotional rules approved by the Department of Trade and RTC of Quezon City, issued an order advising the parties that his court would "be
Industry (DTI), for from the start of the promotion, it had always been clearly guided by the doctrine laid down by the Supreme Court in the case of Crespo
explained to the public that for one to be entitled to the cash prize his crown must vs. Mogul, 151 SCRA 462 and not by the resolution of the Department of Justice
bear both the winning number and the correct security code as they appear in the on the petition for review undertaken by the accused." 21
DTI list; (b) the complainants failed to allege, much less prove with prima
facie evidence, the specific overt criminal acts or omissions purportedly On 30 April 1993, Assistant City Prosecutor Tirso M. Gavero filed with the trial
committed by each of the petitioners; (c) the compromise agreement entered into court a Motion to Defer Arraignment wherein he also prayed that "further
by PEPSI is not an admission of guilt; and (d) the evidence establishes that the proceedings be held in abeyance pending final disposition by the Department of
promo was carried out with utmost good faith and without malicious intent. Justice." 22

On 15 April 1993, the petitioners filed with the DOJ a Petition for On 4 May 1993, Gavero filed an Amended Information, 23 accompanied by a
Review 15 wherein, for the same grounds adduced in the aforementioned motion corresponding motion 24 to admit it. The amendments merely consist in the
for reconsideration, they prayed that the Joint Resolution be reversed and the statement that the complainants therein were only "among others" who were
complaints dismissed. They further stated that the approval of the Joint defrauded by the accused and that the damage or prejudice caused amounted
Resolution by the City Prosecutor was not the result of a careful scrutiny and "to several billions of pesos, representing the amounts due them from their
independent evaluation of the relevant facts and the applicable law but of the winning '349' crowns/caps." The trial court admitted the amended information on
grave threats, intimidation, and actual violence which the complainants had the same date. 25
inflicted on him and his assistant prosecutors.
Later, the attorneys for the different private complainants filed, respectively, an
On that same date, the petitioners filed in Criminal Case No. Q-93-43198 Opposition to Motion to Defer Arraignment, 26 and Objection and Opposition to
Motions to Suspend Proceedings and to Hold in Abeyance Issuance of Warrants Motion to Suspend Proceedings and to Hold in Abeyance the Issuance of
of Arrest on the ground that they had filed the aforesaid Petition for Review. 16 Warrants of Arrest. 27

On 21 April 1993, acting on the Petition for Review, Chief State Prosecutor On 14 May 1993, the petitioners filed a Memorandum in Support of their Motion
Zenon L. de Guia issued a 1st Indorsement, 17 directing the City Prosecutor of to Suspend Proceedings and to Hold in Abeyance the Issuance of the Warrants
Quezon City to inform the DOJ whether the petitioners have already been of Arrest. 28
arraigned, and if not, to move in court for the deferment of further proceedings in
the case and to elevate to the DOJ the entire records of the case, for the case is On 17 May 1993, respondent Judge Asuncion issued the challenged order (1)
being treated as an exception pursuant to Section 4 of Department Circular No. 7
denying the petitioners' Motion to Suspend Proceedings and to Hold in Abeyance
dated 25 January 1990.
Issuance of Warrants of Arrest and the public prosecutor's Motion to Defer
Arraignment and (2) directing the issuance of the warrants of arrest "after June
On 22 April 1993, Criminal Case No. Q-93-41398 was raffle to Branch 104 of the 1993" and setting the arraignment on 28 June 1993. 29 Pertinent portions of the
RTC of Quezon City. 18 order read as follows:

In the morning of 27 April 1993, private prosecutor Julio Contreras filed an Ex- In the Motion filed by the accused, it is alleged that on April 15,
Parte Motion for Issuance of Warrants of Arrest. 19 1993, they filed a petition for review seeking the reversal of the
resolution of City Prosecutor of Quezon City approving the filing
In the afternoon of that same day, petitioner Paul Roberts, Jr., filed a of the case against the accused, claiming that:
Supplemental Urgent Motion to Hold in Abeyance Issuance of Warrant of Arrest
and to Suspend Proceedings. 20 He stressed that the DOJ had taken cognizance
103

1. The resolution constituting [sic] force and WHEREFORE, let warrant of arrest be issued after June 21,
duress; 1993, and arraignment be set on June 28, 1993, at 9:30 in the
morning.
2. There was no fraud or deceit therefore there
can be no estafa; On 7 June 1993, the petitioners filed with the Court of Appeals a special civil
action for certiorari and prohibition with application for a temporary restraining
3. No criminal overt acts by respondents were order, 30 which was docketed as CA-G.R. SP No. 31226. They contended therein
proved; that respondent Judge Asuncion had acted without or in excess of jurisdiction or
with grave abuse of discretion in issuing the aforementioned order of 17 May
1993 because
4. Pepsi nor the accused herein made no
admission of guilt before the Department of
Trade and Industry; I. RESPONDENT JUDGE FAILED TO EXAMINE THE RECORD
OF PRELIMINARY INVESTIGATION BEFORE ORDERING THE
ARREST OF PETITIONERS.
5. The evidence presented clearly showed no
malicious intent on the part of the accused.
II. THERE IS NO PROBABLE CAUSE TO HOLD PETITIONERS
Trial Prosecutor Tirso M. Gavero in his Motion to Defer CRIMINALLY LIABLE FOR ESTAFA, OTHER DECEITS, OR
ANY OTHER OFFENSE.
Arraignment averred that there is a pending petition for review
with the Department of Justice filed by the accused and the
Office of the City Prosecutor was directed, among other things, III. THE PROCEEDINGS BELOW SHOULD HAVE BEEN
to cause for the deferment of further proceedings pending final SUSPENDED TO AWAIT THE SECRETARY OF JUSTICE'S
disposition of said Petition by the Department of Justice. RESOLUTION OF PETITIONERS' APPEAL, AND

The motions filed by the accused and the Trial Prosecutor are IV. THERE IS NO OTHER PLAIN, SPEEDY AND ADEQUATE
hereby DENIED. REMEDY IN THE ORDINARY COURSE OF LAW.

This case is already pending in this Court for trial. To follow On 15 June 1993, the Court of Appeals issued a temporary restraining order to
whatever opinion the Secretary of Justice may have on the maintain the status quo. 31 In view thereof; respondent Judge Asuncion issued an
matter would undermine the independence and integrity of this order on 28 June 1993 32 postponing indefinitely the arraignment of the
Court. This Court is still capable of administering justice. petitioners which was earlier scheduled on that date.

The Supreme Court in the case of Crespo vs. Mogul (SCRA 151, On 28 June 1993, the Court of Appeals heard the petitioners' application for a
pp. 471-472) stated as follows: writ of preliminary injunction, granted the motion for leave to intervene filed by J.
Roberto Delgado, and directed the Branch Clerk of Court of the RTC of Quezon
City to elevate the original records of Criminal Case No. 4-93-43198. 33
In order therefor to avoid such a situation
whereby the opinion of the Secretary of Justice
who reviewed the action of the fiscal may be Upon receipt of the original records of the criminal case, the Court of Appeals
disregarded by the trial court, the Secretary of found that a copy of the Joint Resolution had in fact been forwarded to, and
Justice should, as far as practicable, refrain from received by, the trial court on 22 April 1993, which fact belied the petitioners'
entertaining a petition for review or appeal from claim that the respondent Judge had not the slightest basis at all for determining
the action of the fiscal, when the complaint or probable cause when he ordered the issuance of warrants of arrest. It ruled that
information has already been filed in Court. The the Joint Resolution "was sufficient in itself to have been relied upon by
matter should be left entirely for the respondent Judge in convincing himself that probable cause indeed exists for the
determination of the Court. purpose of issuing the corresponding warrants of arrest"; and that the "mere
silence of the records or the absence of any express declaration" in the
104

questioned order as to the basis of such finding does not give rise to an adverse On 28 September 1993, the Court of Appeals promulgated a
inference, for the respondent Judge enjoys in his favor the presumption of decision 41 dismissing the petition because it had been "mooted with the release
regularity in the performance of his official duty. The Court of Appeals then by the Department of Justice of its decision . . . dismissing petitioners' petition for
issued a resolution 34 denying the application for a writ of preliminary injunction. review by inerrantly upholding the criminal court's exclusive and unsupplantable
authority to control the entire course of the case brought against petitioners,
On 8 June 1993, the petitioners filed a motion to reconsider 35 the aforesaid reiterating with approval the dictum laid down in the 'Crespo' case."
resolution. The Court of Appeals required the respondents therein to comment on
the said motion. 36 The petitioners filed a motion to reconsider the DOJ's dismissal of the petition
citing therein its resolutions in other similar cases which were favorable to the
On 3 August 1993, the counsel for the private complainants filed in CA-G.R. SP petitioners and adverse to other "349" Pepsi crowns holders.
No. 31226 a Manifestation 37informing the court that the petitioners' petition for
review filed with the DOJ was dismissed in a resolution dated 23 July 1993. A In its resolution of 3 February 1994, the DOJ, through its "349" Committee,
copy 38 of the resolution was attached to the Manifestation. denied the motion and stated: "The instant petition is different from the other
petitions resolved by this Department in similar cases from
On 21 September 1993, the public respondents filed in CA-G.R. SP No. 31226 a the provinces. In the latter petitions, the complaints against herein respondents
motion to dismiss the petition 39on the ground that it has become moot and [sic] 42 were dismissed inasmuch as the informations have not yet been filed or
academic in view of the dismissal by the DOJ of the petitioners' petition to review even if already filed in court, the proceedings have been suspended by the courts
the Joint Resolution. The dismissal by the DOJ is founded on the following to await the outcome of the appeal pending with this Department." 43
exposition:
The petitioners likewise filed a motion to reconsider 44 the aforesaid Court of
You questioned the said order of the RTC before the Court of Appeals' decision, which the said court denied in its resolution 45 of 9 February
Appeals and prayed for the issuance of a writ of preliminary 1994. Hence, the instant petition.
injunction to restrain the Trial Judge from issuing any warrant of
arrest and from proceeding with the arraignment of the accused. The First Division of this Court denied due course to this petition in its resolution
The appellate court in a resolution dated July 1, 1993, denied of 19 September 1994. 46
your petition.
On 7 October 1994, the petitioners filed a motion for the
In view of the said developments, it would be an exercise in reconsideration 47 of the aforesaid resolution. Acting thereon, the First Division
futility to continue reviewing the instant cases for any further required the respondents to comment thereon.
action on the part of the Department would depend on the sound
discretion of the Trial Court. The denial by the said court of the Later, the petitioners filed a supplemental motion for reconsideration 48 and a
motion to defer arraignment filed at our instance was clearly an motion to refer this case to the Court en banc. 49 In its resolution of 14 November
exercise of its discretion. With the issuance of the order dated 1994, 50 the First Division granted the latter motion and required the respondents
May 17, 1993, Trial Court was in effect sending a signal to this to comment on the supplemental motion for reconsideration.
Department that "the determination of the case is within its
exclusive jurisdiction and competence." The rule is that ". . . once In the resolution of 24 November 1994, the Court en banc accepted the referral.
a complaint or information is filed in Court, any disposition of the
case as to dismissal or the conviction or acquittal of the accused
rests in the sound discretion of the Court. Although the fiscal On 10 October 1995, after deliberating on the motion for reconsideration and the
retains the direction and control of the prosecution of criminal subsequent pleadings in relation thereto, the Court en banc granted the motion
cases even while the case is already in Court, he cannot impose for reconsideration; reconsidered and set aside the resolution of 19 September
his opinion on the trial court. The court is the best and sole judge 1994; and reinstated the petition. It then considered the case submitted for
on what to do with the case before it. . . ." (Crespo vs. Mogul, decision, "since the parties have exhaustively discussed the issues in their
151 SCRA 462). 40 pleadings, the original records of Criminal Case No. Q-93-43198 and of CA-G.R.
SP No. 31226 had been elevated to this Court, and both the petitioners and the
105

Office of the Solicitor General pray, in effect, that this Court resolve the issue of advised the DOJ to, "as far as practicable, refrain from entertaining a petition for
probable cause on the basis thereof." review or appeal from the action of the fiscal, when the complaint or information
has already been filed in Court." More specifically, it stated:
The pleadings of the parties suggest for this Court's resolution the following key
issues: In order therefore to avoid such a situation whereby the opinion
of the Secretary of Justice who reviewed the action of the fiscal
1. Whether public respondent Judge Asuncion committed grave may be disregarded by the trial court, the Secretary of Justice
abuse of discretion in denying, on the basis of Crespo vs. Mogul, should, as far as practicable, refrain from entertaining a petition
the motions to suspend proceedings and hold in abeyance the for review or appeal from the action of the fiscal, when the
issuance of warrants of arrest and to defer arraignment until after complaint or information has already been filed in Court. The
the petition for review filed with the DOJ shall have been matter should, be left entirely for the determination of the
resolved. Court. 52

2. Whether public respondent Judge Asuncion committed grave In Marcelo vs. Court of Appeals, 53 this Court explicitly declared:
abuse of discretion in ordering the issuance of warrants of arrest
without examining the records of the preliminary investigation. Nothing in the said ruling forecloses the power or authority of the
Secretary of Justice to review resolutions of his subordinates in
3. Whether the DOJ, through its "349" Committee, gravely criminal cases. The Secretary of Justice is only enjoined to
abused its discretion in dismissing the petition for review on the refrain as far as practicable from entertaining a petition for review
following bases: (a) the resolution of public respondent Court of or appeal from the action of the prosecutor once a complaint or
Appeals denying the application for a writ of preliminary information is filed in court. In any case, the grant of a motion to
injunction and (b) of public respondent Asuncion's denial of the dismiss, which the prosecution may file after the Secretary of
abovementioned motions. Justice reverses an appealed resolution, is subject to the
discretion of the court.
4. Whether public respondent Court of Appeals committed grave
abuse of discretion (a) in denying the motion for a writ of Crespo could not have intended otherwise without doing violence to, or
preliminary injunction solely on the ground that public respondent repealing, the last paragraph of Section 4, Rule 112 of the Rules of
Asuncion had already before him the Joint Resolution of the Court 54 which recognizes the authority of the Secretary of Justice to reverse the
investigating prosecutor when he ordered the issuance of the resolution of the provincial or city prosecutor or chief state prosecutor upon
warrants of arrest, and (b) in ultimately dismissing the petition on petition by a proper party.
the ground of mootness since the DOJ had dismissed the
petition for review. Pursuant to the said provision, the Secretary of Justice had promulgated the
rules on appeals from resolutions in preliminary investigation. At the time the
5. Whether this Court may determine in this proceedings the petitioners filed their petition for the review of the Joint Resolution of the
existence of probable cause either for the issuance of warrants investigating prosecutor, the governing rule was Circular No. 7, dated 25 January
of arrest against the petitioners or for their prosecution for the 1990. Section 2 thereof provided that only resolutions dismissing a criminal
crime of estafa. complaint may be appealed to the Secretary of Justice. Its Section 4, 55 however,
provided an exception, thus allowing, upon a showing of manifest error or grave
abuse of discretion, appeals from resolutions finding probable cause, provided
We resolve the first four issues in the affirmative and the fifth, in the negative.
that the accused has not been arraigned.
I.
The DOJ gave due course to the petitioners' petition for review as an exception
pursuant to Section 4 of Circular No. 7.
There is nothing in Crespo vs. Mogul 51 which bars the DOJ from taking
cognizance of an appeal, by way 'of a petition for review, by an accused in a
criminal case from an unfavorable ruling of the investigating prosecutor. It merely
106

Meanwhile, the DOJ promulgated on 30 June 1993 Department Order No. Whether to approve or disapprove the stand taken by the
223 56 which superseded Circular No. 7. This Order, however, retained the prosecution is not the exercise of discretion required in cases
provisions of Section 1 of the Circular on appealable cases and Section 4 on the like this. The trial judge must himself be convinced that there
non-appealable cases and the exceptions thereto. was indeed no sufficient evidence against the accused, and this
conclusion can be arrived at only after an assessment of the
There is nothing in Department Order No. 223 which would warrant a recall of the evidence in the possession of the prosecution. What was
previous action of the DOJ giving due course to the petitioners' petition for imperatively required was the trial judge's own assessment of
review. But whether the DOJ would affirm or reverse the challenged Joint such evidence, it not being sufficient for the valid and proper
Resolution is still a matter of guesswork. Accordingly, it was premature for exercise of judicial discretion merely to accept the prosecution's
respondent Judge Asuncion to deny the motions to suspend proceedings and to word for its supposed insufficiency.
defer arraignment on the following grounds:
As aptly observed the Office of the Solicitor General, in failing to
This case is already pending in this Court for trial. To follow make an independent finding of the merits of the case and
whatever opinion the Secretary of Justice may have on the merely anchoring the dismissal on the revised position of the
matter would undermine the independence and integrity of this prosecution, the trial judge relinquished the discretion he was
Court. This Court is still capable of administering justice. duty bound to exercise. In effect, it was the prosecution, through
the Department of Justice which decided what to do and not the
The real and ultimate test of the independence and integrity of his court is not the court which was reduced to a mere rubber stamp in violation of
the ruling in Crespo vs. Mogul.
filing of the aforementioned motions at that stage of the proceedings but the filing
of a motion to dismiss or to withdraw the information on the basis of a resolution
of the petition for review reversing the Joint Resolution of the investigating II.
prosecutor. Before that time, the following pronouncement in Crespo did not yet
truly become relevant or applicable: Section 2, Article III of the present Constitution provides that no search warrant
or warrant of arrest shall issue except upon probable cause to be determined
The rule therefore in this jurisdiction is that once a complaint or personally by the judge after examination under oath or affirmation of the
information is filed in Court any disposition of the case as its complainant and the witnesses he may produce.
dismissal or the conviction or acquittal of the accused rests in the
sound discretion of the court. Although the fiscal retains the Under existing laws, warrants of arrest may be issued (1) by the Metropolitan
direction and control of the prosecution of criminal cases even Trial Courts (MeTCs) except those in the National Capital Region, Municipal Trial
while the case is already in court he cannot impose his opinion Courts (MTCs), and Municipal Circuit Trial Courts (MCTCs) in cases falling within
on the trial court. The court is the best and sole judge on what to their exclusive original jurisdiction; 59 in cases covered by the rule on summary
do with the case before it. The determination of the case is within procedure where the accused fails to appear when required; 60 and in cases filed
its exclusive jurisdiction and competence. A motion to dismiss with them which are cognizable by the Regional Trial Courts (RTCs); 61 and (2)
the case filed by the fiscal should be addressed to the Court who by the Metropolitan Trial Courts in the National Capital Region (MeTCs-NCR)
has the option to grant or deny the same. It does not matter if and the RTCs in cases filed with them after appropriate preliminary investigations
this is done before or after the arraignment of the accused or that conducted by officers authorized to do so other than judges of MeTCs, MTCs
the motion was filed after a reinvestigation or upon instructions of and MCTCs. 62
the Secretary of Justice who reviewed the records of the
investigation. 57 As to the first, a warrant can issue only if the judge is satisfied after an
examination in writing and under oath of the complainant and the witnesses, in
However, once a motion to dismiss or withdraw the information is filed the form of searching questions and answers, that a probable cause exists and
the trial judge may grant or deny it, not out of subservience to the that there is a necessity of placing the respondent under immediate custody in
Secretary of Justice, but in faithful exercise of judicial prerogative. This order not to frustrate the ends of justice.
Court pertinently stated so in Martinez vs. Court of Appeals: 58
107

As to the second, this Court held in Soliven vs. Makasiar 63 that the judge is not First, the determination of probable cause is a function of the
required to personally examine the complainant and the witnesses, but Judge. It is not for the Provincial Fiscal or Prosecutor nor the
Election Supervisor to ascertain. Only the Judge and the Judge
[f]ollowing established doctrine and procedure, he shall: (1) alone makes this determination.
personally evaluate the report and supporting documents
submitted by the fiscal regarding the existence of probable cause Second, the preliminary inquiry made by a Prosecutor does not
and, on the basis thereof; issue a warrant of arrest; or (2) if on bind the Judge. It merely assists him to make the determination
the basis thereof he finds no probable cause, he may disregard of probable cause. The Judge does not have to follow what the
the fiscal's report and require the submission of supporting Prosecutor presents to him. By itself, the Prosecutor's
affidavits of witnesses to aid him in arriving at a conclusion as to certification of probable cause is ineffectual. It is the report, the
the existence of probable cause. 64 affidavits, the transcripts of stenographic notes (if any), and all
other supporting documents behind the Prosecutor's certification
Sound policy supports this procedure, "otherwise judges would be unduly which are material in assisting the Judge to
laden with the preliminary examination and investigation of criminal make hisdetermination.
complaints instead of concentrating on hearing and deciding cases filed
before their courts." It must be emphasized that judges must not rely In adverting to a statement in People vs. Delgado 66 that the judge may rely on
solely on the report or resolution of the fiscal (now prosecutor); they must the resolution of the Commission on Elections (COMELEC) to file the information
evaluate the report and the supporting document. In this sense, the by the same token that it may rely on the certification made by the prosecutor
aforementioned requirement has modified paragraph 4(a) of Circular No. who conducted the preliminary investigation in the issuance of the warrant of
12 issued by this Court on 30 June 1987 prescribing the Guidelines on arrest, this Court stressed in Lim vs. Felix 67that
Issuance of Warrants of Arrest under Section 2, Article III of the 1987
Constitution, which provided in part as follows: Reliance on the COMELEC resolution or the Prosecutor's
certification presupposes that the records of either the
4. In satisfying himself of the existence of a probable cause for COMELEC or the Prosecutor have been submitted to the Judge
the issuance of a warrant of arrest, the judge, following and he relies on the certification or resolution because the
established doctrine and procedure, may either: records of the investigation sustain the recommendation. The
warrant issues not on the strength of the certification standing
(a) Rely upon the fiscal's certification of the alone but because of the records which sustain it.
existence of probable cause whether or not the
case is cognizable only by the Regional Trial And noting that judges still suffer from the inertia of decisions and
Court and on the basis thereof, issue a warrant practice under the 1935 and 1973 Constitutions, this Court found it
of arrest. . . . necessary to restate the rule "in greater detail and hopefully clearer
terms." It then proceeded to do so, thus:
This requirement of evaluation not only of the report or certification of the fiscal
but also of the supporting documents was further explained We reiterate the ruling in Soliven vs. Makasiar that the Judge
in People vs. Inting, 65 where this Court specified what the documents may does not have to personally examine the complainant and his
consist of, viz., "the affidavits, the transcripts of stenographic notes (if any), and witnesses. The Prosecutor can perform the same functions as a
all other supporting documents behind the Prosecutor's certification which are commissioner for the taking of the evidence. However, there
material in assisting the Judge to make his determination" of probable cause. should be a report and necessary documents supporting the
Thus: Fiscal's bare certification. All of these should be before the
Judge.
We emphasize the important features of the constitutional
mandate that ". . . no search warrant or warrant of arrest shall The extent of the Judge's personal examination of the report and
issue except upon probable cause to be determined personally its annexes depends on the circumstances of each case. We
by the judge . . ." (Article III, Section 2, Constitution). cannot determine beforehand how cursory or exhaustive the
108

Judge's examination should be. The Judge has to exercise the guilt of an accused. In doing so, judges do not conduct a de
sound discretion for, after all, the personal determination is novo hearing to determine the existence of probable cause. They
vested in the Judge by the Constitution. It can be as brief as or just personally review the initial determination of the prosecutor
detailed as the circumstances of each case require. To be sure, finding a probable cause to see if it is supported by substantial
the Judge must go beyond the Prosecutor's certification and evidence. The sufficiency of the review process cannot be
investigation report whenever necessary. He should call for the measured by merely counting minutes and hours. The fact that it
complainant and witnesses themselves to answer the court's took the respondent judges a few hours to review and affirm the
probing questions when the circumstances of the case so probable cause determination of the DOJ Panel does not mean
require. they made no personal evaluation of the evidence attached to
the records of the case. (emphasis supplied)
This Court then set aside for being null and void the challenged order of
respondent Judge Felix directing the issuance of the warrants of arrest The teachings then of Soliven, Inting, Lim, Allado, and Webb reject the
against petitioners Lim, et al., solely on the basis of the prosecutor's proposition that the investigating prosecutor's certification in an information or his
certification in the informations that there existed probable cause "without resolution which is made the basis for the filing of the information, or both, would
having before him any other basis for his personal determination of the suffice in the judicial determination of probable cause for the issuance of a
existence of a probable cause." warrant of arrest. In Webb, this Court assumed that since the respondent Judges
had before them not only the 26-page resolution of the investigating panel but
In Allado vs. Diokno, 68 this Court also ruled that "before issuing a also the affidavits of the prosecution witnesses and even the counter-affidavits of
warrant of arrest, the judge must satisfy himself that based on the the respondents, they (judges) made personal evaluation of the evidence
evidence submitted there is sufficient proof that a crime has been attached to the records of the case.
committed and that the person to be arrested is probably guilty thereof."
Unfortunately, in Criminal Case No. Q-93-43198, nothing accompanied the
In the recent case of Webb vs. De Leon, 69 this Court rejected the thesis of the information upon its filing on 12 April 1993 with the trial court. As found by the
petitioners of absence of probable cause and sustained the investigating panel's Court of Appeals in its resolution of 1 July 1993, a copy of the Joint Resolution
and the respondent Judge's findings of probable cause. After quoting extensively was forwarded to, and received by, the trial court only on 22 April 1993. And as
from Soliven vs. Makasiar, 70 this Court explicitly pointed out: revealed by the certification 71 of Branch Clerk of Court Gibson Araula, Jr., no
affidavits of the witnesses, transcripts of stenographic notes of the proceedings
Clearly then, the Constitution, the Rules of Court, and our case during the preliminary investigation, or other documents submitted in the course
law repudiate the submission of petitioners that respondent thereof were found in the records of Criminal Case No. Q-93-43198 as of 19 May
1993. Clearly, when respondent Judge Asuncion issued the assailed order of 17
judges should have conducted "searching examination of
May 1993 directing, among other things, the issuance of warrants of arrest, he
witnesses" before issuing warrants of arrest against them. They
had only the information, amended information, and Joint Resolution as bases
also reject petitioners' contention that a judge must first issue an
thereof. He did not have the records or evidence supporting the prosecutor's
order of arrest before issuing a warrant of arrest. There is no law
or rule requiring the issuance of an Order of Arrest prior to a finding of probable cause. And strangely enough, he made no specific finding of
warrant of arrest. probable cause; he merely directed the issuance of warrants of arrest "after June
21, 1993." It may, however, be argued that the directive presupposes a finding of
probable cause. But then compliance with a constitutional requirement for the
In the case at bar, the DOJ Panel submitted to the trial court its protection of individual liberty cannot be left to presupposition, conjecture, or
26-page report, the two (2) sworn statements of Alfaro and the even convincing logic.
sworn statements of Carlos Cristobal and Lolita Birrer as well as
the counter-affidavits of the petitioners. Apparently, the
III.
painstaking recital and analysis of the parties' evidence made in
the DOJ Panel Report satisfied both judges that there is
probable cause to issue warrants of arrest against petitioners. As earlier stated, per its 1st Indorsement of 21 April 1993, the DOJ gave due
Again, we stress that before issuing warrants of arrest, judges course to the petitioners' petition for review pursuant to the exception provided
merely determine personally the probability, not the certainty of for in Section 4 of Circular No. 7, and directed the Office of the City Prosecutor of
Quezon City to forward to the Department the records of the cases and to file in
109

court a motion for the deferment of the proceedings. At the time it issued the In denying in its resolution of 1 July 1993 the petitioners' application for a writ of
indorsement, the DOJ already knew that the information had been filed in court, preliminary injunction to restrain respondent Judge Asuncion from issuing
for which reason it directed the City Prosecutor to inform the Department whether warrants of arrest, the Court of Appeals justified its action in this wise:
the accused have already been arraigned and if not yet arraigned, to move to
defer further proceedings. It must have been fully aware that, pursuant to Crespo The Joint Resolution was sufficient in itself to have been relied
vs. Mogul, a motion to dismiss a case filed by the prosecution either as a upon by respondent judge in convincing himself that probable
consequence of a reinvestigation or upon instructions of the Secretary of Justice cause indeed exists for the purpose of issuing the corresponding
after a review of the records of the investigation is addressed to the trial court, warrants of arrest. The mere silence of the records or the
which has the option to grant or to deny it. Also, it must have been still fresh in its absence of any express declaration in the questioned Order of
mind that a few months back it had dismissed for lack of probable cause other May 17, 1993 as to where the respondent Judge based his
similar complaints of holders of "349" Pepsi crowns. 72 Thus, its decision to give finding of probable cause does not give rise to any adverse
due course to the petition must have been prompted by nothing less than an inference on his part. The fact remains that the Joint Resolution
honest conviction that a review of the Joint Resolution was necessary in the was at respondent Judge's disposal at the time he issued the
highest interest of justice in the light of the special circumstances of the case. Order for the issuance of the warrants of arrest. After all,
That decision was permissible within the "as far as practicable" criterion respondent Judge enjoys in his favor the presumption of
in Crespo. regularity in the performance of official actuations. And this
presumption prevails until it is overcome by clear and convincing
Hence, the DOJ committed grave abuse of discretion when it executed on 23 evidence to the contrary. Every reasonable intendment will be
July 1993 a unilateral volte-face, which was even unprovoked by a formal made in support of the presumption, and in case of doubt as to
pleading to accomplish the same end, by dismissing the petition for review. It an officer's act being lawful or unlawful it should be construed to
dismissed the petition simply because it thought that a review of the Joint be lawful. (31 C.J.S., 808-810. See also Mahilum, et al. vs. Court
Resolution would be an exercise in futility in that any further action on the part of of Appeals, 17 SCRA 482; People vs. Cortez, 21 SCRA 1228;
the Department would depend on the sound discretion of the trial court, and that Government of the P.I. vs. Galarosa, 36 Phil. 338).
the latter's denial of the motion to defer arraignment filed at the instance of the
DOJ was clearly an exercise of that discretion or was, in effect, a signal to the We are unable to agree with this disquisition, for it merely assumes at least two
Department that the determination of the case is within the court's exclusive things: (1) that respondent Judge Asuncion had read and relied on the Joint
jurisdiction and competence. This infirmity becomes more pronounced because Resolution and (2) he was convinced that probable cause exists for the issuance
the reason adduced by the respondent Judge for his denial of the motions to of the warrants of arrest against the petitioners. Nothing in the records provides
suspend proceedings and hold in abeyance issuance of warrants of arrest and to reasonable basis for these assumptions. In his assailed order, the respondent
defer arraignment finds, as yet, no support in Crespo. Judge made no mention of the Joint Resolution, which was attached to the
records of Criminal Case No. Q-93-43198 on 22 April 1993. Neither did he state
IV. that he found probable cause for the issuance of warrants of arrest. And, for an
undivinable reason, he directed the issuance of warrants of arrest only "after
If the only issue before the Court of Appeals were the denial of the petitioners' June 21, 1993." If he did read the Joint Resolution and, in so reading, found
Motion to Suspend Proceedings and to Hold in Abeyance Issuance of Warrants probable cause, there was absolutely no reason at all to delay for more than one
of Arrest and the public prosecutor's Motion to Defer Arraignment, which were month the issuance of warrants of arrest. The most probable explanation for such
both based on the pendency before the DOJ of the petition for the review of the delay could be that the respondent Judge had actually wanted to wait for a little
Joint Resolution, the dismissal of CA-G.R. SP No. 31226 on the basis of the while for the DOJ to resolve the petition for review.
dismissal by the DOJ of the petition for review might have been correct.
However, the petition likewise involved the issue of whether respondent Judge It is, nevertheless, contended in the dissenting opinion of Mr. Justice Reynato S.
Asuncion gravely abused his discretion in ordering the issuance of warrants of Puno that whatever doubts may have lingered on the issue of probable cause
arrest despite want of basis. The DOJ's dismissal of the petition for review did not was dissolved when no less than the Court of Appeals sustained the finding of
render moot and academic the latter issue. probable cause made by the respondent Judge after an evaluation of the Joint
Resolution. We are not persuaded with that opinion. It is anchored on erroneous
premises. In its 1 July 1993 resolution, the Court of Appeals does not at all state
that it either sustained respondent Judge Asuncion's finding of probable cause,
110

or found by itself probable cause. As discussed above, it merely presumed that a. To afford adequate protection to the constitutional rights of the
Judge Asuncion might have read the Joint Resolution and found probable cause accused (Hernandez vs. Albano, et al., L-19272, January 25,
from a reading thereof. Then too, that statement in the dissenting opinion 1967, 19 SCRA 95);
erroneously assumes that the Joint Resolution can validly serve as sufficient
basis for determining probable cause. As stated above, it is not. b. When necessary for the orderly administration of justice or to
avoid oppression or multiplicity of actions (Dimayuga, et al. vs.
V. Fernandez, 43 Phil. 304; Hernandez vs. Albano, supra; Fortun
vs. Labang, et al., L-38383, May 27, 1981, 104 SCRA 607);
In criminal prosecutions, the determination of probable cause may either be an
executive or a judicial prerogative. In People vs. Inting, 73 this Court aptly stated: c. When there is a pre-judicial question which is sub judice (De
Leon vs. Mabanag, 70 Phil. 202);
And third, Judges and Prosecutors alike should distinguish the
preliminary inquiry which determines probable cause for the d. When the acts of the officer are without or in excess of
issuance of a warrant of arrest from a preliminary investigation authority (Planas vs. Oil, 67 Phil. 62);
proper which ascertains whether the offender should be held for
trial or released. Even if the two inquiries are conducted in the e. Where the prosecution is under an invalid law, ordinance or
course of one and the same proceeding, there should be no regulation (Young vs. Rafferty, 33 Phil. 556; Yu Cong Eng vs.
confusion about the objectives. The determination of probable Trinidad, 47 Phil. 385, 389);
cause for the warrant of arrest is made by the Judge. The
preliminary investigation proper — whether or not there is
f. When double jeopardy is clearly apparent (Sangalang vs.
reasonable ground to believe that the accused is guilty of the
People and Avendia, 109 Phil. 1140);
offense charged and, therefore, whether or not he should be
subjected to the expense, rigors and embarrassment of
trial — is the function of the Prosecutor. g. Where the court has no jurisdiction over the offense (Lopez
vs. City Judge, L-25795, October 29, 1966, 18 SCRA 616);
....
h. Where it is a case of persecution rather than prosecution
(Rustia vs. Ocampo, CA-G.R. No. 4760, March 25, 1960);
We reiterate that preliminary investigation should be
distinguished as to whether it is an investigation for the
determination of a sufficient ground for the filing of the i. Where the charges are manifestly false and motivated by the
information or it is an investigation for the determination of a lust for vengeance (Recto vs. Castelo, 18 L.J. [1953], cited in
probable cause for the issuance of a warrant of arrest. The first Rañoa vs. Alvendia, CA-G.R. No. 30720-R, October 8,
kind of preliminary investigation is executive in nature. It is part 1962; Cf.Guingona, et al. vs. City Fiscal, L-60033, April 4, 1984,
of the prosecution's job. The second kind of preliminary 128 SCRA 577); and
investigation which is more properly called preliminary
examination is judicial in nature and is lodged with the judge. . . . j. When there is clearly no prima facie case against the accused
and a motion to quash on that ground has been denied (Salonga
Ordinarily, the determination of probable cause is not lodged with this Court. Its vs. Paño, et al., L- 59524, February 18, 1985, 134 SCRA 438).
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 7. Preliminary injunction has been issued by the Supreme Court
or in excess of jurisdiction or with grave abuse of discretion amounting to want of to prevent to threatened unlawful arrest of petitioners (Rodriguez
jurisdiction. This is consistent with the general rule that criminal prosecutions vs. Castelo, L- 6374, August 1, 1953). (cited in Regalado,
may not be restrained or stayed by injunction, preliminary or final. There are, Remedial Law Compendium, p. 188, 1988 Ed.)
however, exceptions to this rule. Among the exceptions are enumerated
in Brocka vs. Enrile 74 as follows:
111

In these exceptional cases, this Court may ultimately resolve the (c) The Order of respondent Judge Maximiano C. Asuncion of 17
existence or non-existence of probable cause by examining the records May 1993 in Criminal Case No. Q-93-43198.
of the preliminary investigation, as it did in Salonga vs. Paño, 75 Allado,
andWebb. The Department of Justice is DIRECTED to resolve on the merits, within sixty
(60) days from notice of this decision, the petitioners' petition for the review of the
There can be no doubt that, in light of the several thousand private complainants Joint Resolution of Investigating Prosecutor Ramon Gerona and thereafter to file
in Criminal Case No. Q-93-43198 and several thousands more in different parts the appropriate motion or pleading in Criminal Case No. Q-93-43198, which
of the country who are similarly situated as the former for being holders of "349" respondent Judge Asuncion shall then resolve in light of Crespo vs.
Pepsi crowns, any affirmative holding of probable cause in the said case may Mogul, Soliven vs. Makasiar, People vs. Inting, Lim vs.Felix, Allado vs. Diokno,
cause or provoke, as justly feared by the petitioners, the filing of several and Webb vs. De Leon.
thousand cases in various courts throughout the country. Inevitably, the
petitioners would be exposed to the harassments of warrants of arrest issued by In the meantime, respondent Judge Asuncion is DIRECTED to cease and desist
such courts and to huge expenditures for premiums on bailbonds and for travels from further proceeding with Criminal Case No. Q-93-43198 and to defer the
from one court to another throughout the length and breadth of the archipelago issuances of warrants of arrest against the petitioners.
for their arraignments and trials in such cases. Worse, the filing of these
staggering number of cases would necessarily affect the trial calendar of our
No pronouncement as to costs.
overburdened judges and take much of their attention, time, and energy, which
they could devote to other equally, if not more, important cases. Such a frightful
scenario would seriously affect the orderly administration of justice, or cause SO ORDERED.
oppression or multiplicity of actions — a situation already long conceded by this
Court to be an exception to the general rule that criminal prosecutions may not Padilla, Bellosillo, Vitug and Hermosisima, Jr., JJ., concur.
be restrained or stayed by injunction. 76
Kapunan, J., concurs in the result.
We shall not, however, reevaluate the evidence to determine if indeed there is
probable cause for the issuance of warrants of arrest in Criminal Case No. Q-93- Francisco and Panganiban, JJ., took no part.
43298. For, as earlier stated, the respondent Judge did not, in fact, find that
probable cause exists, and if he did he did not have the basis therefor as
mandated by Soliven, Inting,Lim, Allado, and even Webb. Moreover, the records
of the preliminary investigation in Criminal Case No. Q-93-43198 are not with this
G.R. No. 82585 November 14, 1988
Court. They were forwarded by the Office of the City Prosecutor of Quezon City
to the DOJ in compliance with the latter's 1st Indorsement of 21 April 1993. The
trial court and the DOJ must be required to perform their duty. MAXIMO V. SOLIVEN, ANTONIO V. ROCES, FREDERICK K. AGCAOLI, and
GODOFREDO L. MANZANAS,petitioners,
vs.
WHEREFORE, the instant petition is GRANTED and the following are hereby
THE HON. RAMON P. MAKASIAR, Presiding Judge of the Regional Trial
SET ASIDE:
Court of Manila, Branch 35, UNDERSECRETARY SILVESTRE BELLO III, of
the Department of Justice, LUIS C. VICTOR, THE CITY FISCAL OF MANILA
(a) Decision of 28 September 1993 and Resolution of 9 February and PRESIDENT CORAZON C. AQUINO, respondents.
1994 of respondent Court of Appeals in CA-G.R. SP No. 31226;
G.R. No. 82827 November 14, 1988
(b) The Resolutions of the "349" Committee of the Department of
Justice of 23 July 1993 dismissing the petitioners' petition for
LUIS D. BELTRAN, petitioner,
review and of 3 February 1994 denying the motion to reconsider
vs.
the dismissal; and
THE HON. RAMON P. MAKASIAR, Presiding Judge of Branch 35 of the
Regional Trial Court, at Manila, THE HON. LUIS VICTOR, CITY FISCAL OF
MANILA, PEOPLE OF THE PHILIPPINES, SUPERINTENDENT OF THE
112

WESTERN POLICE DISTRICT, and THE MEMBERS OF THE PROCESS It may also be added that with respect to petitioner Beltran, the allegation of
SERVING UNIT AT THE REGIONAL TRIAL COURT OF MANILA, respondents. denial of due process of law in the preliminary investigation is negated by the fact
that instead of submitting his counter- affidavits, he filed a "Motion to Declare
G.R. No. 83979 November 14, 1988. Proceedings Closed," in effect waiving his right to refute the complaint by filing
counter-affidavits. Due process of law does not require that the respondent in a
LUIS D. BELTRAN, petitioner, criminal case actually file his counter-affidavits before the preliminary
vs. investigation is deemed completed. All that is required is that the respondent be
EXECUTIVE SECRETARY CATALINO MACARAIG, SECRETARY OF given the opportunity to submit counter-affidavits if he is so minded.
JUSTICE SEDFREY ORDOÑEZ, UNDERSECRETARY OF JUSTICE
SILVESTRE BELLO III, THE CITY FISCAL OF MANILA JESUS F. The second issue, raised by petitioner Beltran, calls for an interpretation of the
GUERRERO, and JUDGE RAMON P. MAKASIAR, Presiding Judge of constitutional provision on the issuance of warrants of arrest. The pertinent
Branch 35 of the Regional Trial Court, at Manila, respondents. provision reads:

Angara, Abello, Concepcion, Regala and Cruz for petitioners in G.R. No. 82585. Art. III, Sec. 2. The right of the people to be secure in their
persons, houses, papers and effects against unreasonable
Perfecto V. Fernandez, Jose P. Fernandez and Cristobal P. Fernandez for searches and seizures of whatever nature and for any purpose
petitioner in G.R. Nos. 82827 and 83979. shall be inviolable, and no search warrant or warrant of arrest
shall issue except upon probable cause to be determined
personally by the judge after examination nder oath or
RESOLUTION affirmation of the complainant and the witnesses he may
produce, and particularly describing the place to be searched
and the persons or things to be seized.

PER CURIAM: The addition of the word "personally" after the word "determined" and the
deletion of the grant of authority by the 1973 Constitution to issue warrants to
In these consolidated cases, three principal issues were raised: (1) whether or "other responsible officers as may be authorized by law," has apparently
not petitioners were denied due process when informations for libel were filed convinced petitioner Beltran that the Constitution now requires the judge to
against them although the finding of the existence of a prima faciecase was still personally examine the complainant and his witnesses in his determination of
under review by the Secretary of Justice and, subsequently, by the President; (2) probable cause for the issuance of warrants of arrest. This is not an accurate
whether or not the constitutional rights of Beltran were violated when respondent interpretation.
RTC judge issued a warrant for his arrest without personally examining the
complainant and the witnesses, if any, to determine probable cause; and (3) What the Constitution underscores is the exclusive and personal responsibility of
whether or not the President of the Philippines, under the Constitution, may the issuing judge to satisfy himself of the existence of probable cause. In
initiate criminal proceedings against the petitioners through the filing of a satisfying himself of the existence of probable cause for the issuance of a
complaint-affidavit. warrant of arrest, the judge is not required to personally examine the complainant
and his witnesses. Following established doctrine and procedure, he shall: (1)
Subsequent events have rendered the first issue moot and academic. On March personally evaluate the report and the supporting documents submitted by the
30, 1988, the Secretary of Justice denied petitioners' motion for reconsideration fiscal regarding the existence of probable cause and, on the basis thereof, issue
and upheld the resolution of the Undersecretary of Justice sustaining the City a warrant of arrest; or (2) if on the basis thereof he finds no probable cause, he
Fiscal's finding of a prima facie case against petitioners. A second motion for may disregard the fiscal's report and require the submission of supporting
reconsideration filed by petitioner Beltran was denied by the Secretary of Justice affidavits of witnesses to aid him in arriving at a conclusion as to the existence of
on April 7, 1988. On appeal, the President, through the Executive Secretary, probable cause.
affirmed the resolution of the Secretary of Justice on May 2, 1988. The motion for
reconsideration was denied by the Executive Secretary on May 16, 1988. With
these developments, petitioners' contention that they have been denied the
administrative remedies available under the law has lost factual support.
113

Sound policy dictates this procedure, otherwise judges would be unduly laden As to petitioner Beltran's claim that to allow the libel case to proceed would
with the preliminary examination and investigation of criminal complaints instead produce a "chilling effect" on press freedom, the Court finds no basis at this
of concentrating on hearing and deciding cases filed before their courts. stage to rule on the point.

On June 30, 1987, the Supreme Court unanimously adopted Circular No. 12, The petitions fail to establish that public respondents, through their separate acts,
setting down guidelines for the issuance of warrants of arrest. The procedure gravely abused their discretion as to amount to lack of jurisdiction. Hence, the
therein provided is reiterated and clarified in this resolution. writs of certiorari and prohibition prayed for cannot issue.

It has not been shown that respondent judge has deviated from the prescribed WHEREFORE, finding no grave abuse of discretion amounting to excess or lack
procedure. Thus, with regard to the issuance of the warrants of arrest, a finding of jurisdiction on the part of the public respondents, the Court Resolved to
of grave abuse of discretion amounting to lack or excess of jurisdiction cannot be DISMISS the petitions in G. R. Nos. 82585, 82827 and 83979. The Order to
sustained. maintain the status quo contained in the Resolution of the Court en banc dated
April 7, 1988 and reiterated in the Resolution dated April 26, 1988 is LIFTED.
Anent the third issue, petitioner Beltran argues that "the reasons which
necessitate presidential immunity from suit impose a correlative disability to file Fernan, C.J., Narvasa, Melencio-Herrera, Cruz, Paras, Feliciano, Gancayco,
suit." He contends that if criminal proceedings ensue by virtue of the President's Padilla, Bidin, Sarmiento, Cortes, Griño-Aquino Medialdea and Regalado, JJ.,
filing of her complaint-affidavit, she may subsequently have to be a witness for concur.
the prosecution, bringing her under the trial court's jurisdiction. This, continues
Beltran, would in an indirect way defeat her privilege of immunity from suit, as by
testifying on the witness stand, she would be exposing herself to possible
contempt of court or perjury.

The rationale for the grant to the President of the privilege of immunity from suit Separate Opinions
is to assure the exercise of Presidential duties and functions free from any
hindrance or distraction, considering that being the Chief Executive of the
Government is a job that, aside from requiring all of the office holder's time, also
demands undivided attention.
GUTIERREZ, JR., J., concurring:
But this privilege of immunity from suit, pertains to the President by virtue of the
office and may be invoked only by the holder of the office; not by any other I concur with the majority opinion insofar as it involves the three principal issues
person in the President's behalf. Thus, an accused in a criminal case in which the mentioned in its opening statement. However, as to the more important issue on
President is complainant cannot raise the presidential privilege as a defense to whether or not the prosecution of the libel case would produce a "chilling effect"
prevent the case from proceeding against such accused. on press freedom, I beg to reserve my vote. I believe this is the more important
issue in these petitions and it should be resolved now rather that later.
Moreover, there is nothing in our laws that would prevent the President from
waiving the privilege. Thus, if so minded the President may shed the protection Consistent with our decision in Salonga v. Cruz Pano (134 SCRA 438 [1985]),
afforded by the privilege and submit to the court's jurisdiction. The choice of the Court should not hesitate to quash a criminal prosecution in the interest of
whether to exercise the privilege or to waive it is solely the President's more enlightened and substantial justice where it is not alone the criminal liability
prerogative. It is a decision that cannot be assumed and imposed by any other of an accused in a seemingly minor libel case which is involved but broader
person. considerations of governmental power versus a preferred freedom.

As regards the contention of petitioner Beltran that he could not be held liable for We have in these four petitions the unusual situation where the highest official of
libel because of the privileged character or the publication, the Court reiterates the Republic and one who enjoys unprecedented public support asks for the
that it is not a trier of facts and that such a defense is best left to the trial court to prosecution of a newspaper columnist, the publisher and chairman of the editorial
appreciate after receiving the evidence of the parties.
114

board, the managing editor and the business manager in a not too indubitable a perspectives if directed at a high government official. Again, the Supreme Court
case for alleged libel. should draw this fine line instead of leaving it to lower tribunals.

I am fully in accord with an all out prosecution if the effect will be limited to This Court has stressed as authoritative doctrine in Elizalde v. Gutierrez (76
punishing a newspaperman who, instead of observing accuracy and fairness, SCRA 448 [1977]) that a prosecution for libel lacks justification if the offending
engages in unwarranted personal attacks, irresponsible twisting of facts, of words find sanctuary within the shelter of the free press guaranty. In other words,
malicious distortions of half-truths which tend to cause dishonor, discredit, or a prosecution for libel should not be allowed to continue, where after discounting
contempt of the complainant. However, this case is not a simple prosecution for the possibility that the words may not be really that libelous, there is likely to be a
libel. We have as complainant a powerful and popular President who heads the chilling effect, a patently inhibiting factor on the willingness of newspapermen,
investigation and prosecution service and appoints members of appellate courts especially editors and publishers to courageously perform their critical role in
but who feels so terribly maligned that she has taken the unorthodox step of society. If, instead of merely reading more carefully what a columnist writes in his
going to court inspite of the invocations of freedom of the press which would daily column, the editors tell their people to lay off certain issues or certain
inevitably follow. officials, the effect on a free press would be highly injurious.

I believe that this Court should have acted on this issue now instead of leaving Because many questions regarding press freedom are left unanswered by our
the matter to fiscals and defense lawyers to argue before a trial judge. resolution, I must call attention to our decisions which caution that "no inroads on
press freedom should be allowed in the guise of punitive action visited on what
There is always bound to be harassment inherent in any criminal prosecution. otherwise should be characterized as libel." (Lopez v. Court of Appeals, 34
Where the harassment goes beyond the usual difficulties encountered by any SCRA 117 [1970]; See also the citations in Elizalde v. Gutierrez, supra).
accused and results in an unwillingness of media to freely criticize government or
to question government handling of sensitive issues and public affairs, this Court The United States Supreme Court is even more emphatic, to wit:
and not a lower tribunal should draw the demarcation line.
In deciding the question now, we are compelled by neither
As early as March 8, 1918, the decision in United States v. Bustos (37 Phil. 731) precedent nor policy to give any more weight to the epithet "libel"
stated that "(c)omplete liberty to comment on the conduct of public men is a than we have to other "mere labels" of state law. N. A. A. C. P. v.
scalpel in the case of free speech. The sharp incision of its probe relieves the Button, 371 US 415, 429, 9L ed 2d 405, 415, 83 S Ct 328. Like
abscesses of officialdom. Men in public life may suffer under a hostile and unjust insurrection, contempt, advocacy of unlawful acts, breach of the
accusation; the wound can be assuaged with the balm of a clear conscience." peace, obscenity, solicitation of legal business, and the other
The Court pointed out that while defamation is not authorized, criticism is to be various other formulae for the repression of expression that have
expected and should be borne for the common good. been challenged in this Court, libel can claim no talismanic
immunity from constitutional limitations. It must be measured by
In People v. Perfecto (43 Phil. 887 [1922]), the Court stated: standards that satisfy the First Amendment.

xxx xxx xxx xxx xxx xxx

... No longer is there a Minister of the Crown own or a person in Those who won our independence believed ... that public
authority of such exalted position that the citizen must speak of discussion is a political duty; and that this should be a
him only with bated breath. "In the eye of our Constitution and fundamental principle of the American government. They
laws, every man is a sovereign, a ruler and a freeman, and has recognized the risk to which all human institutions are subject.
equal rights with every other man." (at p. 900) But they knew that order cannot be secured merely through fear
of punishment for its infraction; that it is hazardous to discourage
In fact, the Court observed that high official position, instead of affording thought, hope and imagination; that fear breeds repression; that
immunity from slanderous and libelous charges, would actually invite attacks by repression breeds hate; that hate menaces stable government;
that the path of safety lies in the opportunity to discuss freely
those who desire to create sensation. It would seem that what would ordinarily be
supposed grievances and proposed remedies; and that the fitting
slander if directed at the typical person should be examined from various
115

remedy for evil counsel is good ones. Believing in the power of However, since we have decided to defer the "chilling effect" issue for a later
reason as applied through public discussion, they eschewed day, I limit myself to reiterating the dissenting words of Mr. Justice Jackson in the
silence coerced by law—the argument of force in its worst form. American case of Beaurnhais v. Illinois (343 U. S. 250) when he said:
...
If one can claim to announce the judgment of legal history on
Thus we consider this case against the background of a any subject, it is that criminal libel laws are consistent with the
profound national commitment to the principle that debate on concept of ordered liberty only when applied with safeguards
public issues should be uninhibited, robust, and wide open, and evolved to prevent their invasion of freedom of expression.
that it may well include vehement, caustic, and sometimes
unpleasantly sharp attacks on government and public officials. ... In the trial of the libel case against the petitioners, the safeguards in the name of
(at pp. 700-701) freedom of expression should be faithfully applied.

Shunting aside the individual liability of Mr. Luis Beltran, is there a prima Separate Opinions
facie showing that Messrs. Maximo Soliven, Antonio V. Roces, Frederick K.
Agcaoili, and Godofredo L. Manzanas knowingly participated in a wilful purveying GUTIERREZ, JR., J., concurring:
of falsehood? Considering the free speech aspects of these petitions, should not
a differentiated approach to their particular liabilities be taken instead of lumping
up everybody with the offending columnist? I realize that the law includes I concur with the majority opinion insofar as it involves the three principal issues
publishers and editors but perhaps the "chilling effect" issue applies with singular mentioned in its opening statement. However, as to the more important issue on
effectivity to publishers and editors vis-a-vis newspaper columnists. There is no whether or not the prosecution of the libel case would produce a "chilling effect"
question that, ordinarily, libel is not protected by the free speech clause but we on press freedom, I beg to reserve my vote. I believe this is the more important
have to understand that some provocative words, which if taken literally may issue in these petitions and it should be resolved now rather that later.
appear to shame or disparage a public figure, may really be intended to provoke
debate on public issues when uttered or written by a media personality. Will not a Consistent with our decision in Salonga v. Cruz Pano (134 SCRA 438 [1985]),
criminal prosecution in the type of case now before us dampen the vigor and limit the Court should not hesitate to quash a criminal prosecution in the interest of
the variety of public debate? There are many other questions arising from this more enlightened and substantial justice where it is not alone the criminal liability
unusual case which have not been considered. of an accused in a seemingly minor libel case which is involved but broader
considerations of governmental power versus a preferred freedom.
I, of course, concur with the Court's opinion because it has decided to limit the
issues to narrowly drawn ones. I see no reason to disagree with the way the We have in these four petitions the unusual situation where the highest official of
Court has resolved them. The first issue on prematurity is moot. The second the Republic and one who enjoys unprecedented public support asks for the
issue discusses a procedure now embodied in the recently amended Rules of prosecution of a newspaper columnist, the publisher and chairman of the editorial
Court on how a Judge should proceed before he issues a warrant of arrest. board, the managing editor and the business manager in a not too indubitable a
Anent the third issue, considerations of public policy dictate that an incumbent case for alleged libel.
President should not be sued. At the same time, the President cannot stand by
helplessly bereft of legal remedies if somebody vilifies or maligns him or her. I am fully in accord with an all out prosecution if the effect will be limited to
punishing a newspaperman who, instead of observing accuracy and fairness,
The Court has decided to defer the "chilling effect" issue for a later day. To this, I engages in unwarranted personal attacks, irresponsible twisting of facts, of
take exception. I know that most of our fiscals and judges are courageous malicious distortions of half-truths which tend to cause dishonor, discredit, or
individuals who would not allow any considerations of possible consequences to contempt of the complainant. However, this case is not a simple prosecution for
their careers to stand in the way of public duty. But why should we subject them libel. We have as complainant a powerful and popular President who heads the
to this problem? And why should we allow the possibility of the trial court treating investigation and prosecution service and appoints members of appellate courts
and deciding the case as one for ordinary libel without bothering to fully explore but who feels so terribly maligned that she has taken the unorthodox step of
the more important areas of concern, the extremely difficult issues involving going to court inspite of the invocations of freedom of the press which would
government power and freedom of expression. inevitably follow.
116

I believe that this Court should have acted on this issue now instead of leaving Because many questions regarding press freedom are left unanswered by our
the matter to fiscals and defense lawyers to argue before a trial judge. resolution, I must call attention to our decisions which caution that "no inroads on
press freedom should be allowed in the guise of punitive action visited on what
There is always bound to be harassment inherent in any criminal prosecution. otherwise should be characterized as libel." (Lopez v. Court of Appeals, 34
Where the harassment goes beyond the usual difficulties encountered by any SCRA 117 [1970]; See also the citations in Elizalde v.
accused and results in an unwillingness of media to freely criticize government or Gutierrez, supra).<äre||anº•1àw>
to question government handling of sensitive issues and public affairs, this Court
and not a lower tribunal should draw the demarcation line. The United States Supreme Court is even more emphatic, to wit:

As early as March 8, 1918, the decision in United States v. Bustos (37 Phil. 731) In deciding the question now, we are compelled by neither
stated that "(c)omplete liberty to comment on the conduct of public men is a precedent nor policy to give any more weight to the epithet "libel"
scalpel in the case of free speech. The sharp incision of its probe relieves the than we have to other "mere labels" of state law. N. A. A. C. P. v.
abscesses of officialdom. Men in public life may suffer under a hostile and unjust Button, 371 US 415, 429, 9L ed 2d 405, 415, 83 S Ct 328. Like
accusation; the wound can be assuaged with the balm of a clear conscience." insurrection, contempt, advocacy of unlawful acts, breach of the
The Court pointed out that while defamation is not authorized, criticism is to be peace, obscenity, solicitation of legal business, and the other
expected and should be borne for the common good. various other formulae for the repression of expression that have
been challenged in this Court, libel can claim no talismanic
In People v. Perfecto (43 Phil. 887 [1922]), the Court stated: immunity from constitutional limitations. It must be measured by
standards that satisfy the First Amendment.
xxx xxx xxx
xxx xxx xxx
... No longer is there a Minister of the Crown own or a person in
authority of such exalted position that the citizen must speak of Those who won our independence believed ... that public
him only with bated breath. "In the eye of our Constitution and discussion is a political duty; and that this should be a
laws, every man is a sovereign, a ruler and a freeman, and has fundamental principle of the American government. They
equal rights with every other man." (at p. 900) recognized the risk to which all human institutions are subject.
But they knew that order cannot be secured merely through fear
of punishment for its infraction; that it is hazardous to discourage
In fact, the Court observed that high official position, instead of affording
thought, hope and imagination; that fear breeds repression; that
immunity from slanderous and libelous charges, would actually invite attacks by
repression breeds hate; that hate menaces stable government;
those who desire to create sensation. It would seem that what would ordinarily be
that the path of safety lies in the opportunity to discuss freely
slander if directed at the typical person should be examined from various
perspectives if directed at a high government official. Again, the Supreme Court supposed grievances and proposed remedies; and that the fitting
should draw this fine line instead of leaving it to lower tribunals. remedy for evil counsel is good ones. Believing in the power of
reason as applied through public discussion, they eschewed
silence coerced by law—the argument of force in its worst form.
This Court has stressed as authoritative doctrine in Elizalde v. Gutierrez (76 ...
SCRA 448 [1977]) that a prosecution for libel lacks justification if the offending
words find sanctuary within the shelter of the free press guaranty. In other words,
a prosecution for libel should not be allowed to continue, where after discounting Thus we consider this case against the background of a
profound national commitment to the principle that debate on
the possibility that the words may not be really that libelous, there is likely to be a
public issues should be uninhibited, robust, and wide open, and
chilling effect, a patently inhibiting factor on the willingness of newspapermen,
that it may well include vehement, caustic, and sometimes
especially editors and publishers to courageously perform their critical role in
unpleasantly sharp attacks on government and public officials. ...
society. If, instead of merely reading more carefully what a columnist writes in his
daily column, the editors tell their people to lay off certain issues or certain (at pp. 700-701)
officials, the effect on a free press would be highly injurious.
117

Shunting aside the individual liability of Mr. Luis Beltran, is there a prima EN BANC
facie showing that Messrs. Maximo Soliven, Antonio V. Roces, Frederick K.
Agcaoili, and Godofredo L. Manzanas knowingly participated in a wilful purveying G.R. Nos. 162144-54 : November 13, 2012
of falsehood? Considering the free speech aspects of these petitions, should not
a differentiated approach to their particular liabilities be taken instead of lumping PEOPLE OF THE PHILIPPINES, Petitioner, v. HON. MA. THERESA L. DELA
up everybody with the offending columnist? I realize that the law includes TORRE- YADAO, in her capacity as Presiding Judge, Branch 81, Regional
publishers and editors but perhaps the "chilling effect" issue applies with singular Trial Court of Quezon City, HON. MA. NATIVIDAD M. DIZON, in her capacity
effectivity to publishers and editors vis-a-vis newspaper columnists. There is no as Executive Judge of the Regional Trial Court of Quezon City, PANFILO M.
question that, ordinarily, libel is not protected by the free speech clause but we LACSON, JEWEL F. CANSON, ROMEO M. ACOP, FRANCISCO G. ZUBIA,
have to understand that some provocative words, which if taken literally may JR., MICHAEL RAY B. AQUINO, CEZAR O. MANCAO II, ZOROBABEL S.
appear to shame or disparage a public figure, may really be intended to provoke LAURELES, GLENN G. DUMLAO, ALMARIO A. HILARIO, JOSE ERWIN T.
debate on public issues when uttered or written by a media personality. Will not a VILLACORTE, GIL C. MENESES, ROLANDO ANDUYAN, JOSELITO T.
criminal prosecution in the type of case now before us dampen the vigor and limit ESQUIVEL, RICARDO G. DANDAN, CEASAR TANNAGAN, VICENTE P.
the variety of public debate? There are many other questions arising from this ARNADO, ROBERTO T. LANGCAUON, ANGELITO N. CAISIP, ANTONIO
unusual case which have not been considered. FRIAS, CICERO S. BACOLOD, WILLY NUAS, JUANITO B. MANAOIS,
VIRGILIO V. PARAGAS, ROLANDO R. JIMENEZ, CECILIO T. MORITO,
I, of course, concur with the Court's opinion because it has decided to limit the REYNALDO C. LAS PINAS, WILFREDO G CUARTERO, ROBERTO O.
issues to narrowly drawn ones. I see no reason to disagree with the way the AGBALOG, OSMUNDO B. CARINO, NORBERTO LASAGA, LEONARDO
Court has resolved them. The first issue on prematurity is moot. The second GLORIA, ALEJANDRO G LIWANAG, ELMER FERRER and ROMY
issue discusses a procedure now embodied in the recently amended Rules of CRUZ, Respondents.
Court on how a Judge should proceed before he issues a warrant of arrest.
Anent the third issue, considerations of public policy dictate that an incumbent DECISION
President should not be sued. At the same time, the President cannot stand by
helplessly bereft of legal remedies if somebody vilifies or maligns him or her.
ABAD, J.:
The Court has decided to defer the "chilling effect" issue for a later day. To this, I
take exception. I know that most of our fiscals and judges are courageous This case, which involves the alleged summary execution of suspected members
individuals who would not allow any considerations of possible consequences to of the Kuratong Bale/eng Gang, is once again before this Court this time
their careers to stand in the way of public duty. But why should we subject them questioning, among other things, the trial qmrt's determination of the absence of
to this problem? And why should we allow the possibility of the trial court treating probable cause and its dismissal of the criminal actions.1ςrνll
and deciding the case as one for ordinary libel without bothering to fully explore
the more important areas of concern, the extremely difficult issues involving The Facts and the Case
government power and freedom of expression.
In the early morning of May 18, 1995, the combined forces of the Philippine
However, since we have decided to defer the "chilling effect" issue for a later National Police's Anti-Bank Robbery and Intelligence Task Group (PNP ABRITG)
day, I limit myself to reiterating the dissenting words of Mr. Justice Jackson in the composed of Task Force Habagat (then headed by Police Chief Superintendent
American case of Beaurnhais v. Illinois (343 U. S. 250) when he said: Panfilo M. Lacson), Traffic Management Command ([TMC] led by then Police
Senior Superintendent Francisco G. Zubia, Jr.), Criminal Investigation Command
If one can claim to announce the judgment of legal history on (led by then Police Chief Superintendent Romeo M. Acop ), and National Capital
any subject, it is that criminal libel laws are consistent with the Region Command (headed by then Police Chief Superintendent Jewel F.
concept of ordered liberty only when applied with safeguards Canson) killed 11 suspected members of the Kuratong Baleleng
evolved to prevent their invasion of freedom of expression. Gang2ςrνll along Commonwealth Avenue in Quezon City.

In the trial of the libel case against the petitioners, the safeguards in the name of Subsequently, SPO2 Eduardo Delos Reyes of the Criminal Investigation
freedom of expression should be faithfully applied. Command told the press that it was a summary execution, not a shoot-out
between the police and those who were slain. After investigation, the Deputy
118

Ombudsman for Military Affairs absolved all the police officers involved, including response, then DOJ Secretary Hernando B. Perez constituted a panel of
respondents Panfilo M. Lacson, Jewel F. Canson, Romeo M. Acop, Francisco G. prosecutors to conduct the requested investigation.
Zubia, Jr., Michael Ray B. Aquino, Cezar O. Mancao II, and 28 others
(collectively, the respondents).3ςrνll On review, however, the Office of the Invoking their constitutional right against double jeopardy, Lacson and his co-
Ombudsman reversed the finding and filed charges of murder against the police accused filed a petition for prohibition with application for temporary restraining
officers involved before the Sandiganbayan in Criminal Cases 23047 to 57, order and writ of preliminary injunction before the RTC of Manila in Civil Case 01-
except that in the cases of respondents Zubia, Acop, and Lacson, their liabilities 100933. In an Order dated June 5, 2001, that court denied the plea for temporary
were downgraded to mere accessory. On arraignment, Lacson pleaded not restraining order. Thus, on June 6, 2001 the panel of prosecutors found probable
guilty. cause to hold Lacson and his co-accused liable as principals for 11 counts of
murder, resulting in the filing of separate informations against them in Criminal
Upon respondents motion, the Sandiganbayan ordered the transfer of their cases Cases 01-101102 to 12 before the RTC of Quezon City, Branch 81, now
to the Regional Trial Court (RTC) of Quezon City on the ground that none of the presided over by respondent Judge Ma. Theresa L. Yadao.
principal accused had the rank of Chief Superintendent or higher. Pending the
resolution of the Office of the Special Prosecutors motion for reconsideration of On the same day, respondent Lacson filed a petition for certiorari before the
the transfer order, Congress passed Republic Act (R.A.) 8249 that expanded the Court of Appeals (CA), assailing the RTC of Manilas order which allowed the
Sandiganbayans jurisdiction by deleting the word "principal" from the phrase renewed preliminary investigation of the murder charges against him and his co-
"principal accused" to apply to all pending cases where trial had not begun. As a accused. Lacson also filed with the RTC of Quezon City a motion for judicial
result of this new law, the Sandiganbayan opted to retain and try the Kuratong determination of probable cause. But on June 13, 2001 he sought the
Baleleng murder cases. suspension of the proceedings in that court.

Respondent Lacson challenged the constitutionality of R.A. 8249 in G.R. In the meantime, the CA issued a temporary restraining order enjoining the RTC
1280964ςrνll but this Court upheld its validity. Nonetheless, the Court ordered of Quezon City from issuing warrants of arrest or conducting any proceeding in
the transfer of the trial of the cases to the RTC of Quezon City since the Criminal Cases 01-101102 to 12 before it. On August 24, 2001 the CA rendered
amended informations contained no allegations that respondents committed the a Decision, granting Lacsons petition on the ground of double jeopardy since,
offenses charged in relation to, or in the discharge of, their official functions as although the dismissal of Criminal Cases Q-99-81679 to 89 was provisional, such
required by R.A. 8249. dismissal became permanent two years after when they were not revived.

Before the RTC of Quezon City, Branch 81, then presided over by Judge Upon the prosecutions appeal to this Court in G.R. 149453,5ςrνll the Court ruled
Wenceslao Agnir, Jr., could arraign respondents in the re-docketed Criminal that, based on the record, Lacson failed to prove compliance with the
Cases Q-99-81679 to 89, however, SPO2 Delos Reyes and the other requirements of Section 8, Rule 117 governing provisional dismissals. The
prosecution witnesses recanted their affidavits. Some of the victims heirs also records showed that the prosecution did not file a motion for provisional dismissal
executed affidavits of desistance. These prompted the respondents to file and, for his part, respondent Lacson had merely filed a motion for judicial
separate motions for the determination of probable cause before the issuance of determination of probable cause. Nowhere did he agree to some proposal for a
warrants of arrests. provisional dismissal of the cases. Furthermore, the heirs of the victims had no
notice of any motion for such provisional dismissal.
On March 29, 1999 the RTC of Quezon City ordered the provisional dismissal of
the cases for lack of probable cause to hold the accused for trial following the The Court thus set aside the CA Decision of August 24, 2001 and directed the
recantation of the principal prosecution witnesses and the desistance of the RTC of Quezon City to try the cases with dispatch. On motion for reconsideration
private complainants. by respondent Lacson, the Court ordered the re-raffle of the criminal cases to a
heinous crimes court. Upon re-raffle, however, the cases still went to Branch 81,
Two years later or on March 27, 2001 PNP Director Leandro R. Mendoza sought which as already stated was now presided over by Judge Yadao.
to revive the cases against respondents by requesting the Department of Justice
(DOJ) to conduct another preliminary investigation in their cases on the strength On October 12, 2003 the parents of two of the victims submitted birth certificates
of the affidavits of P/Insp. Ysmael S. Yu and P/S Insp. Abelardo Ramos. In showing that they were minors. Apparently reacting to this, the prosecution
amended the informations to show such minority and asked respondent
119

Executive Judge Ma. Natividad M. Dizon to recall the assignment of the cases to 1. Whether or not Executive Judge Dizon gravely abused her discretion in
Branch 81 and re-raffle them to a family court. The request for recall was denied. allowing Criminal Cases 01-101102 to 12 to be re-raffled to other than among the
RTC of Quezon Citys family courts.
On October 20, 2003 the prosecution filed an omnibus motion before Branch 81,
praying for the re-raffle of Criminal Cases 01-101102 to12 to the family courts in 2. Whether or not Judge Yadao gravely abused her discretion when she took
view of the changes in the two informations. On October 24, 2003 the cognizance of Criminal Cases 01-101102 to 12 contrary to the prosecutions view
prosecution also filed its consolidated comment ex-abundanti cautela on the that such cases fell under the jurisdiction of family courts.
motions to determine probable cause.
3. Whether or not Judge Yadao gravely abused her discretion when she did not
On November 12, 20036ςrνll Judge Yadao issued an order, denying the inhibit and disqualify herself from taking cognizance of the cases.
prosecutions motion for re-raffle to a family court on the ground that Section 5 of
R.A. 8369 applied only to living minors. She also granted the motions for 4. Whether or not Judge Yadao gravely abused her discretion when she
determination of probable cause and dismissed the cases against the dismissed the criminal actions on the ground of lack of probable cause and
respondents since the affidavits of the prosecution witnesses were inconsistent barred the presentation of additional evidence in support of the prosecutions
with those they submitted in the preliminary investigations before the motion for reconsideration.
Ombudsman for the crime of robbery.
5. Whether or not Judge Yadao gravely abused her discretion when she adopted
On November 25, 2003 the prosecution filed a verified motion to recuse or certain policies concerning the conduct of hearings in her court.
disqualify Judge Yadao and for reconsideration of her order. It also filed an
administrative complaint against her for dishonesty, conduct prejudicial to the
The Courts Rulings
best interests of the service, manifest partiality, and knowingly rendering an
unjust judgment.7ςrνll On January 14, 2004, the prosecution filed an urgent
supplemental motion for compulsory disqualification with motion for cancellation Before addressing the above issues, the Court notes respondents contention that
of the hearing on motion for reconsideration. the prosecutions resort to special civil action of certiorari under Rule 65 is
improper. Since the trial court dismissed the criminal actions against
respondents, the prosecutions remedy was to appeal to the CA from that order of
On January 21, 2004 Judge Yadao issued an order, denying the motion to dismissal.
recuse her, prompting the prosecution to appeal from that order. Further, on
January 22, 2004 Judge Yadao issued another order, denying the prosecutions
motion for reconsideration of the Order dated November 12, 2003 that dismissed Ordinarily, the proper remedy from an order dismissing an action is an
the action against the respondents. In response, the prosecution filed a notice of appeal.8ςrνll Here, the prosecution in fact filed a notice of appeal from such an
appeal from the same. Finally, on January 26, 2004 Judge Yadao issued an order issued in the subject cases. But it reconsidered its action and withdrew that
order, denying the prosecutions motion for reconsideration of its January 16, notice, believing that appeal was not an effective, speedy, and adequate
2004 Order not only for lack of merit but also for having become moot and remedy.9ςrνll In other words, the prosecutions move was not a case of forgotten
academic. remedy but a conscious resort to another based on a belief that respondent
Judge Yadao gravely abused her discretion in issuing her various orders and that
certiorari under Rule 65 was the proper and all-encompassing remedy for the
On February 16, 2004 the prosecution withdrew ex-abundanti cautela the notices
prosecution. The Court is not prepared to say that the remedy is altogether
of appeal that it filed in the cases. Subsequently, on March 3, 2004 it filed the implausible as to throw out the petition outright.
present special civil action of certiorari.
Still, the Court notes that the prosecution skipped the CA and filed its action
The Issues Presented
directly with this Court, ignoring the principle of judicial hierarchy of courts.
Although the Supreme Court, the CA, and the RTCs have concurrent jurisdiction
The prosecution presents the following issues: to issue a writ of certiorari, such concurrence does not give the People the
unrestricted freedom of choice of forum.10ςrνll In any case, the immense public
interest in these cases, the considerable length of time that has passed since the
120

crime took place, and the numerous times these cases have come before this Sec. 5. Jurisdiction of Family Courts. The Family Courts shall have exclusive
Court probably warrant a waiver of such procedural lapse. original jurisdiction to hear and decide the following
cases:chanroblesvirtuallawlibrary
1. Raffle of the Cases
a) Criminal cases where one or more of the accused is below eighteen (18) years
The prosecution points out that the RTC of Quezon City Executive Judge gravely of age but not less than nine (9) years of age, or where one or more of the
abused her discretion when she placed Criminal Cases 01-101102 to 12 under a victims is a minor at the time of the commission of the offense: Provided, That if
separate category which did not restrict their raffle to the citys special criminal the minor is found guilty, the court shall promulgate sentence and ascertain any
and family courts in accordance with SC Administrative Order 36-96. Further, the civil liability which the respondent may have incurred. (Emphasis supplied)
prosecution points out that she violated Administrative Order 19-98 when
Branches 219 and 102 were left out of the raffle. The presiding judges of these Undoubtedly, in vesting in family courts exclusive original jurisdiction over
two branches, both heinous crimes courts eligible to receive cases by raffle, had criminal cases involving minors, the law but seeks to protect their welfare and
just been appointed to the CA. best interests. For this reason, when the need for such protection is not
compromised, the Court is able to relax the rule. In several cases,11ςrνll for
The records of the cases show nothing irregular in the conduct of the raffle of the instance, the Court has held that the CA enjoys concurrent jurisdiction with the
subject cases. The raffle maintained a separate list for criminal and civil cases. family courts in hearing petitions for habeas corpus involving minors.
Criminal cases cognizable by special criminal courts were separately listed.
Criminal Cases 01-101102 to 12 were given a separate heading, "Re-Raffle," but Here, the two minor victims, for whose interests the people wanted the murder
there was nothing irregular in this since it merely indicated that the cases were cases moved to a family court, are dead. As respondents aptly point out, there is
not being raffled for the first time. no living minor in the murder cases that require the special attention and
protection of a family court. In fact, no minor would appear as party in those
The Executive Judge did not err in leaving out Branches 219 and 102 from raffle cases during trial since the minor victims are represented by their parents who
since these branches remained without regularly appointed judges. Although the had become the real private offended parties.
pairing judges of these branches had authority to act on incidental, interlocutory,
and urgent matters, this did not mean that such branches should already be 3. Inhibition of Judge Yadao
included in the raffle of cases.
The prosecution claims that Judge Yadao committed grave abuse of discretion in
Parenthetically, the prosecution was represented during the raffle yet it did not failing to inhibit herself from hearing the cases against the respondents.
then object to the manner by which it was conducted. The prosecution raised the
question only when it filed this petition, a clear afterthought. The rules governing the disqualification of judges are found, first, in Section 1,
Rule 137 of the Rules of Court, which provides:chanroblesvirtuallawlibrary
2. Jurisdiction of Family Courts
Sec. 1. Disqualification of judges. No judge or judicial officer shall sit in any case
The prosecution points out that, although this Courts October 7, 2003 Resolution in which he, or his wife or child, is pecuniarily interested as heir, legatee, creditor
directed a re-raffle of the cases to a heinous crimes court, the prosecution in the or otherwise, or in which he is related to either party within the sixth degree of
meantime amended the informations to reflect the fact that two of the murder consanguinity or affinity, or to counsel within the fourth degree, computed
victims were minors. For this reason, the Executive Judge should have raffled the according to the rules of the civil law, or in which he has been executor,
cases to a family court pursuant to Section 5 of R.A. 8369. administrator, guardian, trustee or counsel, or in which he has presided in any
inferior court when his ruling or decision is the subject of review, without the
The Court is not impervious to the provisions of Section 5 of R.A. 8369, that written consent of all parties in interest, signed by them and entered upon the
vests in family courts jurisdiction over violations of R.A. 7610, which in turn record.
covers murder cases where the victim is a minor.
Thus:chanroblesvirtuallawlibrary A judge may, in the exercise of his sound discretion, disqualify himself from
sitting in a case, for just or valid reasons other than those mentioned above.
121

and in Rule 3.12, Canon 3 of the Code of Judicial Conduct, which against the respondents. But this statement merely shows that she cannot be
states:chanroblesvirtuallawlibrary dissuaded by some relative who is close to her. How can this constitute bias?
Besides, there is no evidence that the close relative she referred to was her
Rule 3.12. A judge should take no part in a proceeding where the judges spouse or child which would be a mandatory ground for disqualification.
impartiality might reasonably be questioned. These cases include among others,
proceedings where: Further, the prosecution claims that Judge Yadao prejudged its motion for
reconsideration when she said in her comment to the administrative complaint
(a) the judge has personal knowledge of disputed evidentiary facts concerning against her that such motion was merely the prosecutions stubborn insistence on
the proceeding; the existence of probable cause against the respondents. The comment could of
course not be regarded as a prejudgment of the issue since she had precisely
already issued an order holding that the complainants evidence failed to
xxx
establish probable cause against the respondents. And there is nothing wrong
about characterizing a motion for reconsideration as a "stubborn" position taken
(e) the judge knows the judges spouse or child has a financial interest, as heir, by the party who filed it. Judge Yadao did not characterize the motion as wholly
legatee, creditor, fiduciary, or otherwise, in the subject matter in controversy or in unjustified at the time she filed her comment.
a party to the proceeding, or any other interest that could be substantially
affected by the outcome of the proceeding. In every instance, the judge shall
indicate the legal reason for inhibition. 4. Dismissal of the Criminal Cases

The prosecution claims that Judge Yadao gravely abused her discretion when
The first paragraph of Section 1, Rule 137 and Rule 3.12, Canon 3 provide for
she set the motions for determination of probable cause for hearing, deferred the
the compulsory disqualification of a judge while the second paragraph of Section
issuance of warrants of arrest, and allowed the defense to mark its evidence and
1, Rule 137 provides for his voluntary inhibition.
argue its case. The prosecution stresses that under Section 6, Rule 112 of the
Rules of Court Judge Yadaos duty was to determine probable cause for the
The matter of voluntary inhibition is primarily a matter of conscience and sound purpose of issuing the arrest warrants solely on the basis of the investigating
discretion on the part of the judge since he is in a better position to determine prosecutors resolution as well as the informations and their supporting
whether a given situation would unfairly affect his attitude towards the parties or documents. And, if she had some doubts as to the existence of probable cause,
their cases. The mere imputation of bias, partiality, and prejudgment is not the rules required her to order the investigating prosecutor to present additional
enough ground, absent clear and convincing evidence that can overcome the evidence to support the finding of probable cause within five days from notice.
presumption that the judge will perform his duties according to law without fear or
favor. The Court will not disqualify a judge based on speculations and surmises
Rather than take limited action, said the prosecution, Judge Yadao dug up and
or the adverse nature of the judges rulings towards those who seek to inhibit
adopted the Ombudsmans findings when the latter conducted its preliminary
him.12ςrνll
investigation of the crime of robbery in 1996. Judge Yadao gave weight to the
affidavits submitted in that earlier preliminary investigation when such documents
Here, the prosecution contends that Judge Yadao should have inhibited herself are proper for presentation during the trial of the cases. The prosecution added
for improperly submitting to a public interview on the day following her dismissal that the affidavits of P/S Insp. Abelardo Ramos and SPO1 Wilmor B. Medes
of the criminal cases against the respondents. But the Court finds nothing reasonably explained the prior inconsistent affidavits they submitted before the
basically reprehensible in such interview. Judge Yadaos dismissal of the multiple Ombudsman.
murder cases aroused natural public interest and stirred the media into frenzy for
correct information. Judge Yadao simply accommodated, not sought, the
The general rule of course is that the judge is not required, when determining
requests for such an interview to clarify the basis of her order. There is no
probable cause for the issuance of warrants of arrests, to conduct a de novo
allegation that she gave out false information. To be sure, the prosecution never
hearing. The judge only needs to personally review the initial determination of the
once accused her of making public disclosures regarding the merits of those
prosecutor finding a probable cause to see if it is supported by substantial
cases prior to her order dismissing such cases.
evidence.13ςrνll
The prosecution also assails as constituting bias Judge Yadaos statement that a
very close relative stood to be promoted if she was to issue a warrant of arrest
122

But here, the prosecution conceded that their own witnesses tried to explain in Superville Subdivision together with respondents Dumlao, Tannagan, and Nuas.
their new affidavits the inconsistent statements that they earlier submitted to the Dumlao told Enad to stay in the car and observe what went on in the house
Office of the Ombudsman. Consequently, it was not unreasonable for Judge under surveillance. Later that night, other police officers arrived and
Yadao, for the purpose of determining probable cause based on those affidavits, apprehended the men in the house. Enad went in and saw six men lying on the
to hold a hearing and examine the inconsistent statements and related floor while the others were handcuffed. Enad and his companions left Sucat in
documents that the witnesses themselves brought up and were part of the the early morning of May 18, 1995. He fell asleep along the way but was awaken
records. Besides, she received no new evidence from the respondents.14ςrνll by gunshots. He saw Dumlao and other police officers fire their guns at the L-300
van containing the apprehended suspects.
The public prosecutor submitted the following affidavits and documents along
with the criminal informations to enable Judge Yadao to determine the presence 5. SPO2 Noel P. Senos affidavit of May 31, 200119ςrνll in which he corroborated
of probable cause against the respondents: what Ramos said. Seno claimed that he was part of the advance party in
Superville Subdivision and was also in Commonwealth Avenue when the
1. P/Insp. Ysmael S. Yus affidavit of March 24, 200115ςrνll in which he said that suspected members of the Kuratong Baleleng Gang were killed.
on May 17, 1995 respondent Canson, NCR Command Head, ordered him to
form two teams that would go after suspected Kuratong Baleleng Gang members 6. The PNP ABRITG After Operations Report of May 31, 1995 20ςrνll which
who were seen at the Superville Subdivision in Paraque City. Yu headed the narrated the events that took place on May 17 and 18, 1995. This report was
assault team while Marlon Sapla headed the perimeter defense. After the police submitted by Lacson, Zubia, Acop and Canson.
team apprehended eight men inside the safe house, it turned them over to their
investigating unit. The following day, Yu just learned that the men and three 7. The PNP Medico-Legal Reports21ςrνll which stated that the suspected
others were killed in a shoot-out with the police in Commonwealth Avenue in members of the Kuratong Baleleng Gang tested negative for gunpowder nitrates.
Quezon City.
The Court agrees with Judge Yadao that the above affidavits and reports, taken
2. P/S Insp. Abelardo Ramos affidavit of March 24, 200116ςrνll in which he said together with the other documents of record, fail to establish probable cause
that he was part of the perimeter defense during the Superville operation. After against the respondents.
the assault team apprehended eight male suspects, it brought them to Camp
Crame in two vans. Ramos then went to the office of respondent Zubia, TMC
First. Evidently, the case against respondents rests on the testimony of Ramos,
Head, where he saw respondents Lacson, Acop, Laureles, Villacorte and other corroborated by those of Medes, Enad, and Seno, who supposedly heard the
police officers. commanders of the various units plan the killing of the Kuratong Baleleng Gang
members somewhere in Commonwealth Avenue in Quezon City and actually
According to Ramos, Zubia said that the eight suspects were to be brought to execute such plan. Yus testimony is limited to the capture of the gang members
Commonwealth Avenue and killed in a supposed shoot-out and that this action and goes no further. He did not see them killed.
had been cleared with higher authorities, to which remark Lacson nodded as a
sign of approval. Before Ramos left the meeting, Lacson supposedly told him, Second. Respecting the testimonies of Ramos, Medes, Enad, and Seno, the
"baka may mabuhay pa diyan." Ramos then boarded an L-300 van with his men
prosecutions own evidencethe PNP ABRITGs After Operations Report of May
and four male suspects. In the early morning of May 18, 1995, they executed the
31, 1995shows that these men took no part in the operations against the
plan and gunned down the suspects. A few minutes later, P/S Insp. Glenn G.
Kuratong Baleleng Gang members. The report included a comprehensive list of
Dumlao and his men arrived and claimed responsibility for the incident.
police personnel from Task Force Habagat (Lacson), Traffic Management
Command (Zubia), Criminal Investigation Command (Acop), and National Capital
3. SPO1 Wilmor B. Medes affidavit of April 24, 200117ςrνll in which he Region Command (Canson) who were involved. The names of Ramos, Medes,
corroborated Ramos statements. Medes said that he belonged to the same team Enad, and Seno were not on that list. Notably, only Yus name, among the new
that arrested the eight male suspects. He drove the L-300 van in going to set of witnesses, was on that list. Since an after-battle report usually serves as
Commonwealth Avenue where the suspects were killed. basis for commendations and promotions, any omitted name would hardly have
gone unchallenged.
4. Mario C. Enads affidavit of August 8, 199518ςrνll in which he claimed having
served as TMC civilian agent. At around noon of May 17, 1995, he went to
123

Third. Ramos, whose story appeared to be the most significant evidence against issue must be resolved by the court within thirty (30) days from the filing of the
the respondents, submitted in the course of the preliminary investigation that the complaint of information.
Office of the Ombudsman conducted in a related robbery charge against the
police officers involved a counter-affidavit. He claimed in that counter-affidavit Section 6, Rule 112 of the Rules of Court gives the trial court three options upon
that he was neither in Superville Subdivision nor Commonwealth Avenue during the filing of the criminal information: (1) dismiss the case if the evidence on
the Kuratong Baleleng operations since he was in Bulacan on May 17, 1995 and record clearly failed to establish probable cause; (2) issue a warrant of arrest if it
at his home on May 18.22ςrνll Notably, Medes claimed in a joint counter-affidavit finds probable cause; and (3) order the prosecutor to present additional evidence
that he was on duty at the TMC headquarters at Camp Crame on May 17 and within five days from notice in case of doubt as to the existence of probable
18.23ςrνll cause.24ςrνll

Fourth. The Office of the Ombudsman, looking at the whole picture and giving But the option to order the prosecutor to present additional evidence is not
credence to Ramos and Medes statements, dismissed the robbery case. More, it mandatory. The courts first option under the above is for it to "immediately
excluded Ramos from the group of officers that it charged with the murder of the dismiss the case if the evidence on record clearly fails to establish probable
suspected members of the Kuratong Baleleng Gang. Under the circumstances, cause." That is the situation here: the evidence on record clearly fails to establish
the Court cannot be less skeptical than Judge Yadao was in doubting the sudden probable cause against the respondents.
reversal after six years of testimony of these witnesses.
It is only "in case of doubt on the existence of probable cause" that the judge
Of course, Yu may have taken part in the subject operation but, as he narrated, may order the prosecutor to present additional evidence within five days from
his role was limited to cornering and arresting the suspected Kuratong Baleleng notice. But that is not the case here. Discounting the affidavits of Ramos, Medes,
Gang members at their safe house in Superville Subdivision. After his team Enad, and Seno, nothing is left in the record that presents some doubtful
turned the suspects over to an investigating unit, he no longer knew what probability that respondents committed the crime charged. PNP Director Leandro
happened to them. Mendoza sought the revival of the cases in 2001, six years after it happened. It
would have been ridiculous to entertain the belief that the police could produce
Fifth. True, the PNP Medico-Legal Reports showed that the Kuratong Baleleng new witnesses in the five days required of the prosecution by the rules.
Gang members tested negative for gunpowder nitrates. But this finding cannot
have any legal significance for the purpose of the preliminary investigation of the In the absence of probable cause to indict respondents for the crime of multiple
murder cases against the respondents absent sufficient proof that they probably murder, they should be insulated from the tribulations, expenses and anxiety of a
took part in gunning those gang members down. public trial.25ςrνll

The prosecution points out that, rather than dismiss the criminal action outright, 5. Policies Adopted for Conduct of Court Hearing
Judge Yadao should have ordered the panel of prosecutors to present additional
evidence pursuant to Section 6, Rule 112 of the Rules of Court which The prosecution claims that Judge Yadao arbitrarily recognized only one public
provides:chanroblesvirtuallawlibrary prosecutor and one private prosecutor for all the offended parties but allowed
each of the counsels representing the individual respondents to be heard during
Sec. 6. When warrant of arrest may issue. (a) By the Regional Trial Court. Within the proceedings before it. She also unjustifiably prohibited the prosecutions use
ten (10) days from the filing of the complaint or information, the judge shall of tape recorders.
personally evaluate the resolution of the prosecutor and its supporting evidence.
He may immediately dismiss the case if the evidence on record clearly fails to But Section 5, Rule 135 of the Rules of Court gives the trial court ample inherent
establish probable cause. If he finds probable cause, he shall issue a warrant of
and administrative powers to effectively control the conduct of its proceedings.
arrest, or a commitment order if the accused has already been arrested pursuant
Thus:chanroblesvirtuallawlibrary
to a warrant issued by the judge who conducted the preliminary investigation or
when the complaint or information was filed pursuant to section 7 of this Rule. In
case of doubt on the existence of probable cause, the judge may order the Sec. 5. Inherent powers of court. Every court shall have power:
prosecutor to present additional evidence within five (5) days from notice and the
xxx
124

(b) To enforce order in proceedings before it, or before a person or persons 2. the Order dated January 16, 2004 which granted the motion of the
empowered to conduct a judicial investigation under its authority; respondents for the immediate resolution of the three pending incidents before
the court;
xxx
3. the Order dated January 21, 2004 which denied the motion to recuse and the
(d) To control, in furtherance of justice, the conduct of its ministerial officers, and urgent supplemental motion for compulsory disqualification;
of all other persons in any manner connected with a case before it, in every
manner appertaining thereto; 4. the Order dated January 22, 2004 which denied the motion for reconsideration
of the Order dated November 12, 2003; and
xxx
5. the Order dated January 26, 2004 which denied the motion for reconsideration
(g) To amend and control its process and orders so as to make them of the January 16, 2004 Order.
conformable to law and justice;
SO ORDERED.
xxx
G.R. No. 180064 September 16, 2013
There is nothing arbitrary about Judge Yadaos policy of allowing only one public
prosecutor and one private prosecutor to address the court during the hearing for JOSE U. PUA and BENJAMIN HANBEN U. PUA, Petitioners,
determination of probable cause but permitting counsels representing the vs.
individual accused to do so. A criminal action is prosecuted under the direction CITIBANK, N. A., Respondent.
and control of the public prosecutor.26ςrνll The burden of establishing probable
cause against all the accused is upon him, not upon the private prosecutors DECISION
whose interests lie solely in their clients damages claim. Besides, the public and
the private prosecutors take a common position on the issue of probable cause. PERLAS-BERNABE, J.:
On the other hand, each of the accused is entitled to adopt defenses that are
personal to him.
Assailed in this petition for review on certiorari1 are the Decision2 dated May 21,
2007 and Resolution3 dated October 16, 2007 of the Court of Appeals (CA) in
As for the prohibition against the prosecutions private recording of the
CA-G.R. SP No. 79297, which reversed and set aside the Orders dated May 14,
proceedings, courts usually disallows such recordings because they create an 20034 and July 16, 20035 of the Regional Trial Court of Cauayan City, Isabela,
unnecessary distraction and if allowed, could prompt every lawyer, party, Branch 19 (RTC), dismissing petitioners Jose(Jose) and Benjamin Hanben U.
witness, or reporter having some interest in the proceeding to insist on being
Pua's (petitioners) complaint against respondent Citibank, N. A. (respondent).
given the same privilege. Since the prosecution makes no claim that the