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G.R. No. 159747 April 13, 2004
GREGORIO B. HONASAN II, petitioner,
vs.
THE PANEL OF INVESTIGATING PROSECUTORS OF THE DEPARTMENT
OF JUSTICE (LEO DACERA, SUSAN F. DACANAY, EDNA A. VALENZUELA
AND SEBASTIAN F. CAPONONG, JR.), CIDG-PNP- P/DIRECTOR EDUARDO
MATILLANO, and HON. OMBUDSMAN SIMEON V. MARCELO, respondents.
DECISION
AUSTRIA-MARTINEZ, J.:
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
part:
…
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
27th day of July 2003 and Senator Gregorio "Gringo"Honasan, II …
3. …
4. The said crime was committed as follows:
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
Honasan. Attached as Annex "B" is the affidavit of Perfecto Ragil
and made an integral part of this complaint.
… 8. That after Sen. Honasan had taken his dinner, the meeting proper
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
the AFP and the Government of President Gloria Macapagal
Arroyo and they are willing to risk their lives in order to achieve
the National Recovery Agenda of Sen. Honasan, which they
believe is the only program that would solve the ills of society. . .
. (Emphasis supplied).
The Sworn Statement of AFP Major Perfecto Ragil referred to by PNP/P Director
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;
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;
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
kaya basahin mo ito (referring to NRP) pamphlet. I took the pamphlet but
never had the time to read it;
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;
5. That Capt. Alejano and I arrived at the meeting at past 9 o'clock in the
evening of June 4, 2003 in a house located somewhere in San Juan,
Metro Manila;
6. That upon arrival we were given a document consisting of about 3-4
pages containing discussion of issues and concerns within the
framework of NRP and we were likewise served with dinner;
7. That while we were still having dinner at about past 11 o'clock in the
evening, Sen. Gregorio "Gringo" Honasan arrived together with another
fellow who was later introduced as Capt. Turingan;
started presided by Sen. Honasan;

9. That Sen. Honasan discussed the NRP, the graft and corruption in the
government including the military institution, the judiciary, the executive
branch and the like;
10. That the discussion concluded that we must use force, violence and
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
democratic processes and not thru force and violence and/or armed
struggle. Sen. Honasan countered that "we will never achieve reforms
through the democratic processes because the people who are in power
will not give up their positions as they have their vested interests to
protect." After a few more exchanges of views, Sen. Honasan appeared
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
really committed, Sen. Honasan replied: "Kung kaya nating pumatay sa
ating mga kalaban, kaya din nating pumatay sa mga kasamahang
magtataksil." I decided not to pursue further questions;
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
present leadership thru armed revolution and after which, a junta will be
constituted and that junta will run the new government. He further said
that some of us will resign from the military service and occupy civilian
positions in the new government. He also said that there is urgency that
we implement this plan and that we would be notified of the next
activities.
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
that sounded more like a pledge and we all recited it with raised arms
and clenched fists. He then took a knife and demonstrated how to make
a cut on the left upper inner arm until it bleeds. The cut was in form of the
letter "I" in the old alphabet but was done in a way that it actually looked
like letter "H". Then, he pressed his right thumb against the blood and
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.
Everybody else followed;
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
HONASAN did;
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14. That I did not like to participate in the rites but I had the fear for my
life with what Senator HONASAN said that "…kaya nating pumatay ng
kasamahan";
15. That after the rites, the meeting was adjourned and we left the place;
16. That I avoided Captain Alejano after that meeting but I was extra
cautious that he would not notice it for fear of my life due to the threat
made by Senator HONASAN during the meeting on June 4, 2003 and
the information relayed to me by Captain Alejano that their group had
already deeply established their network inside the intelligence
community;
17. That sometime in the first week of July 2003, Captain Alejano came
to see me to return the rifle that he borrowed and told me that when the
group arrives at the Malacañang Compound for "D-DAY", my task is to
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;
18. That on Sunday, July 27, 2003, while watching the television, I saw
flashed on the screen Lieutenant Antonio Trillanes, Captain Gerardo
Gambala, Captain Alejano and some others who were present during the
June 4th meeting that I attended, having a press conference about their
occupation of the Oakwood Hotel. I also saw that the letter "I" on the arm
bands and the banner is the same letter "I" in the banner which was
displayed and on which we pressed our wound to leave the imprint of the
letter "I";
19. That this Affidavit is being executed in order to attest the veracity of
the foregoing and in order to charge SENATOR GREGORIO "GRINGO"
HONASAN, Capt. FELIX TURINGAN, Capt. GARY ALEJANO, Lt.
ANTONIO TRILLANES, Capt. GERARDO GAMBALA and others for
violation of Article 134-A of the Revised Penal Code for the offense of
"coup d'etat". (Emphasis supplied)
The affidavit-complaint is docketed as I.S. No. 2003-1120 and the Panel of
Investigating Prosecutors of the Department of Justice (DOJ Panel for brevity)
sent a subpoena to petitioner for preliminary investigation.
On August 27, 2003, petitioner, together with his counsel, appeared at the DOJ.
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

cognizance of the case considering that he belongs to the group of public officials
with Salary Grade 31; and praying that the proceedings be suspended until final
resolution of his motion.
Respondent Matillano submitted his comment/opposition thereto and petitioner
filed a reply.
On September 10, 2003, the DOJ Panel issued an Order, to wit:
On August 27, 2003, Senator Gregorio B. Honasan II filed through
counsel a "Motion to Clarify Jurisdiction". On September 1, 2003,
complainant filed a Comment/Opposition to the said motion.
The motion and comment/opposition are hereby duly noted and shall be
passed upon in the resolution of this case.
In the meantime, in view of the submission by complainant of additional
affidavits/evidence and to afford respondents ample opportunity to
controvert the same, respondents, thru counsel are hereby directed to
file their respective counter-affidavits and controverting evidence on or
before September 23, 2003.1
Hence, Senator Gregorio B. Honasan II filed the herein petition
for certiorari under Rule 65 of the Rules of Court against the DOJ Panel and its
members, CIDG-PNP-P/Director Eduardo Matillano and Ombudsman Simeon V.
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
DOJ has no jurisdiction to conduct the preliminary investigation.
Respondent Ombudsman, the Office of Solicitor General in representation of
respondents DOJ Panel, and Director Matillano submitted their respective
comments.
The Court heard the parties in oral arguments on the following issues:
1) Whether respondent Department of Justice Panel of Investigators has
jurisdiction to conduct preliminary investigation over the charge of coup
d'etat against petitioner;
2) Whether Ombudsman-DOJ Circular No. 95-001 violates the
Constitution and Republic Act No. 6770 or Ombudsman Act of 1989; and
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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clarify jurisdiction considering the claim of the petitioner that the DOJ
Panel has no jurisdiction to conduct preliminary investigation.
After the oral arguments, the parties submitted their respective memoranda. The
arguments of petitioner are:
1. The Office of the Ombudsman has jurisdiction to conduct the
preliminary investigation over all public officials, including petitioner.
2. Respondent DOJ Panel is neither authorized nor deputized under
OMB-DOJ Joint Circular No. 95-001 to conduct the preliminary
investigation involving Honasan.
3. Even if deputized, the respondent DOJ Panel is still without authority
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
R.A. 6770 and inoperative due to lack of publication, hence null and void.
4. Since petitioner is charged with coup de 'etat in relation to his office, it
is the Office of the Ombudsman which has the jurisdiction to conduct the
preliminary investigation.
5. The respondent DOJ Panel gravely erred in deferring the resolution of
petitioner's Motion to Clarify Jurisdiction since the issue involved therein
is determinative of the validity of the preliminary investigation.
6. Respondent DOJ Panel gravely erred when it resolved petitioner's
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
stating its legal and factual bases.
The arguments of respondent DOJ Panel are:
1. The DOJ has jurisdiction to conduct the preliminary investigation on
petitioner pursuant to Section 3, Chapter I, Title III, Book IV of the
Revised Administrative Code of 1987 in relation to P.D. No. 1275, as
amended by P.D. No. 1513.
2. Petitioner is charged with a crime that is not directly nor intimately
related to his public office as a Senator. The factual allegations in the
complaint and the supporting affidavits are bereft of the requisite nexus
between petitioner's office and the acts complained of.

3. The challenge against the constitutionality of the OMB-DOJ Joint
Circular, as a ground to question the jurisdiction of the DOJ over the
complaint below, is misplaced. The jurisdiction of the DOJ is a statutory
grant under the Revised Administrative Code. It is not derived from any
provision of the joint circular which embodies the guidelines governing
the authority of both the DOJ and the Office of the Ombudsman to
conduct preliminary investigation on offenses charged in relation to
public office.
4. Instead of filing his counter-affidavit, petitioner opted to file a motion to
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
Revised Rules of Criminal Procedure. The DOJ Panel is not required to
act or even recognize it since a preliminary investigation is required
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
DOJ panel did not outrightly reject the motion of petitioner but ruled to
pass upon the same in the determination of the probable cause; thus, it
has not violated any law or rule or any norm of discretion.
The arguments of respondent Ombudsman are:
1. The DOJ Panel has full authority and jurisdiction to conduct
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. Petitioner's premise that the DOJ Panel derives its authority to conduct
preliminary investigation over cases involving public officers solely from
the OMB-DOJ Joint Circular No. 95-001 is misplaced because the DOJ's
concurrent authority with the OMB to conduct preliminary investigation of
cases involving public officials has been recognized in Sanchez vs.
Demetriou (227 SCRA 627 [1993]) and incorporated in Section 4, Rule
112 of the Revised Rules of Criminal Procedure.
3. Petitioner's assertion that the Joint Circular is ultra vires and the DOJ
cannot be deputized by the Ombudsman en masse but must be given in
reference to specific cases has no factual or legal basis. There is no rule
or law which requires the Ombudsman to write out individualized
authorities to deputize prosecutors on a per case basis. The power of the
Ombudsman to deputize DOJ prosecutors proceeds from the
Constitutional grant of power to request assistance from any government
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agency necessary to discharge its functions, as well as from the statutory
authority to so deputize said DOJ prosecutors under Sec. 31 of RA 6770.
4. The Joint Circular which is an internal arrangement between the DOJ
and the Office of the Ombudsman need not be published since it neither
contains a penal provision nor does it prescribe a mandatory act or
prohibit any under pain or penalty. It does not regulate the conduct of
persons or the public, in general.
The Court finds the petition without merit.
The authority of respondent DOJ Panel is based not on the assailed OMB-DOJ
Circular No. 95-001 but on the provisions of the 1987 Administrative Code under
Chapter I, Title III, Book IV, governing the DOJ, which provides:
Sec. 1. Declaration of policy - It is the declared policy of the State to
provide the government with a principal law agency which shall be both
its legal counsel and prosecution arm; administer the criminal justice
system in accordance with the accepted processes thereof consisting in
the investigation of the crimes, prosecution of offenders and
administration of the correctional system; …
Sec. 3. Powers and Functions - To accomplish its mandate, the
Department shall have the following powers and functions:
…
(2) Investigate the commission of crimes, prosecute offenders and
administer the probation and correction system; (Emphasis
supplied)
and Section 1 of P.D. 1275, effective April 11, 1978, to wit:
SECTION 1. Creation of the National Prosecution Service; Supervision
and Control of the Secretary of Justice. – There is hereby created and
established a National Prosecution Service under the supervision and
control of the Secretary of Justice, to be composed of the Prosecution
Staff in the Office of the Secretary of Justice and such number of
Regional State Prosecution Offices, and Provincial and City Fiscal's
Offices as are hereinafter provided, which shall be primarily
responsible for the investigation and prosecution of all cases
involving violations of penal laws. (Emphasis supplied)

Petitioner claims that it is the Ombudsman, not the DOJ, that has the jurisdiction
to conduct the preliminary investigation under paragraph (1), Section 13, Article
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
omission of any public official, employee, office or agency, when such act or
omission appears to be illegal, unjust, improper, or inefficient. Petitioner
rationalizes that the 1987 Administrative Code and the Ombudsman Act of 1989
cannot prevail over the Constitution, pursuant to Article 7 of the Civil Code, which
provides:
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
to the contrary.
When the courts declare a law to be inconsistent with the Constitution,
the former shall be void and the latter shall govern.
Administrative or executive acts, orders and regulations shall be valid only when
they are not contrary to the laws or the Constitution.
and Mabanag vs. Lopez Vito.2
The Court is not convinced. Paragraph (1) of Section 13, Article XI of the
Constitution, viz:
SEC. 13. The Office of the Ombudsman shall have the following powers,
functions, and duties:
1. Investigate on its own, or on complaint by any person, any act or
omission of any public official, employee, office or agency, when such
act or omission appears to be illegal, unjust, improper, or inefficient.
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 1987 Constitution, they would have expressly declared the exclusive
conferment of the power to the Ombudsman. Instead, paragraph (8) of the same
Section 13 of the Constitution provides:
(8) Promulgate its rules of procedure and exercise such other powers or
perform such functions or duties as may be provided by law.
Accordingly, Congress enacted R.A. 6770, otherwise known as "The
Ombudsman Act of 1989." Section 15 thereof provides:
5
Sec. 15. Powers, Functions and Duties. - The Office of the Ombudsman
shall have the following powers, functions and duties:
(1) Investigate and prosecute on its own or on complaint by any person,
any act or omission of any public officer or employee, office or agency,
when such act or omission appears to be illegal, unjust, improper or
inefficient. It has primary jurisdiction over cases cognizable by the
Sandiganbayan and, in the exercise of this primary jurisdiction, it
may take over, at any stage, from any investigatory agency of the
government, the investigation of such cases.
…. (Emphasis supplied)
Pursuant to the authority given to the Ombudsman by the Constitution and the
Ombudsman Act of 1989 to lay down its own rules and procedure, the Office of
the Ombudsman promulgated Administrative Order No. 8, dated November 8,
1990, entitled, Clarifying and Modifying Certain Rules of Procedure of the
Ombudsman, to wit:
A complaint filed in or taken cognizance of by the Office of the
Ombudsman charging any public officer or employee including those in
government-owned or controlled corporations, with an act or omission
alleged to be illegal, unjust, improper or inefficient is an Ombudsman
case. Such a complaint may be the subject of criminal or administrative
proceedings, or both.
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
falling under the jurisdiction of the regular courts. The difference
between the two, aside from the category of the courts wherein they
are filed, is on the authority to investigate as distinguished from the
authority to prosecute, such cases.
The power to investigate or conduct a preliminary investigation on
any Ombudsman case may be exercised by an investigator or
prosecutor of the Office of the Ombudsman, or by any Provincial or
City Prosecutor or their assistance, either in their regular capacities
or as deputized Ombudsman prosecutors.
The prosecution of cases cognizable by the Sandiganbayan shall be
under the direct exclusive control and supervision of the Office of
the Ombudsman. In cases cognizable by the regular Courts, the
control and supervision by the Office of the Ombudsman is only in
Ombudsman cases in the sense defined above. The law recognizes

a concurrence of jurisdiction between the Office of the Ombudsman
and other investigative agencies of the government in the
prosecution of cases cognizable by regular courts. (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
cases. It is on this note that the Court will first dwell on the nature or extent of the
authority of the Ombudsman to investigate cases. Whence, focus is directed to
the second sentence of paragraph (1), Section 15 of the Ombudsman Act which
specifically provides that the Ombudsman has primary jurisdiction over cases
cognizable by the Sandiganbayan, and, in the exercise of this primary
jurisdiction, it may take over, at any stage, from any investigating agency of the
government, the investigation of such cases.
That the power of the Ombudsman to investigate offenses involving public
officers or employees is not exclusive but is concurrent with other similarly
authorized agencies of the government such as the provincial, city and state
prosecutors has long been settled in several decisions of the Court.
In Cojuangco, Jr. vs. Presidential Commission on Good Government, decided in
1990, the Court expressly declared:
A reading of the foregoing provision of the Constitution does not show
that the power of investigation including preliminary investigation vested
on the Ombudsman is exclusive.3
Interpreting the primary jurisdiction of the Ombudsman under Section 15 (1) of
the Ombudsman Act, the Court held in said case:
Under Section 15 (1) of Republic Act No. 6770 aforecited, the
Ombudsman has primary jurisdiction over cases cognizable by the
Sandiganbayan so that it may take over at any stage from any
investigatory agency of the government, the investigation of such
cases. The authority of the Ombudsman to investigate offenses
involving public officers or employees is not exclusive but is
concurrent with other similarly authorized agencies of the
government. Such investigatory agencies referred to include the
PCGG and the provincial and city prosecutors and their assistants,
the state prosecutors and the judges of the municipal trial courts
and municipal circuit trial court.
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
6
authorized to conduct a preliminary investigation under Section 2,
Rule 112 of the 1985 Rules of Criminal Procedure with the only
qualification that the Ombudsman may take over at any stage of
such investigation in the exercise of his primary
jurisdiction.4 (Emphasis supplied)
A little over a month later, the Court, in Deloso vs. Domingo,5 pronounced that
the Ombudsman, under the authority of Section 13 (1) of the 1987 Constitution,
has jurisdiction to investigate any crime committed by a public official, elucidating
thus:
As protector of the people, the office of the Ombudsman has the power,
function and duty to "act promptly on complaints filed in any form or
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
appears to be illegal, unjust, improper or inefficient." (Sec. 13[1].) The
Ombudsman is also empowered to "direct the officer concerned," in this
case the Special Prosecutor, "to take appropriate action against a public
official x x x and to recommend his prosecution" (Sec. 13[3]).
The clause "any [illegal] act or omission of any public official" is broad
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
official or employee that the Ombudsman may investigate. It does not
require that the act or omission be related to or be connected with or
arise from, the performance of official duty. Since the law does not
distinguish, neither should we.
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
judges' and fiscals' offices, and others involved in the prosecution of
erring public officials, and through the exertion of official pressure and
influence, quash, delay, or dismiss investigations into malfeasances and
misfeasances committed by public officers. It was deemed necessary,
therefore, to create a special office to investigate all criminal complaints
against public officers regardless of whether or not the acts or omissions
complained of are related to or arise from the performance of the duties
of their office. The Ombudsman Act makes perfectly clear that the
jurisdiction of the Ombudsman encompasses "all kinds of malfeasance,
misfeasance, and non-feasance that have been committed by any officer
or employee as mentioned in Section 13 hereof, during his tenure of
office" (Sec. 16, R.A. 6770).
.........

Indeed, the labors of the constitutional commission that created the
Ombudsman as a special body to investigate erring public officials would
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
office, but would exclude those grave and terrible crimes that spring from
abuses of official powers and prerogatives, for it is the investigation of
the latter where the need for an independent, fearless, and honest
investigative body, like the Ombudsman, is greatest.6
At first blush, there appears to be conflicting views in the rulings of the Court in
the Cojuangco, Jr. case and theDeloso case. However, the contrariety is more
apparent than real. In subsequent cases, the Court elucidated on the nature of
the powers of the Ombudsman to investigate.
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
omission of any public official, the authority of the Ombudsman to investigate is
merely a primary and not an exclusive authority, thus:
The Ombudsman is indeed empowered under Section 15, paragraph (1)
of RA 6770 to investigate and prosecute any illegal act or omission of
any public official. However as we held only two years ago in the case of
Aguinaldo vs. Domagas,8 this authority "is not an exclusive authority but
rather a shared or concurrent authority in respect of the offense
charged."
Petitioners finally assert that the information and amended information
filed in this case needed the approval of the Ombudsman. It is not
disputed that the information and amended information here did not have
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
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
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
non-involvement of the office of the Ombudsman in the present case
does not have any adverse legal consequence upon the authority of the
panel of prosecutors to file and prosecute the information or amended
information.
In fact, other investigatory agencies of the government such as the
Department of Justice in connection with the charge of sedition,
7
and the Presidential Commission on Good Government, in ill gotten
wealth cases, may conduct the investigation.9 (Emphasis supplied)
In Natividad vs. Felix,10 a 1994 case, where the petitioner municipal mayor
contended that it is the Ombudsman and not the provincial fiscal who has the
authority to conduct a preliminary investigation over his case for alleged Murder,
the Court held:
The Deloso case has already been re-examined in two cases,
namely Aguinaldo vs. Domagas andSanchez vs. Demetriou. However,
by way of amplification, we feel the need for tracing the history of the
legislation relative to the jurisdiction of Sandiganbayan since the
Ombudsman's primary jurisdiction is dependent on the cases cognizable
by the former.
In the process, we shall observe how the policy of the law, with reference
to the subject matter, has been in a state of flux.
These laws, in chronological order, are the following: (a) Pres. Decree
No. 1486, -- the first law on the Sandiganbayan; (b) Pres. Decree No.
1606 which expressly repealed Pres. Decree No. 1486; (c) Section 20 of
Batas Pambansa Blg. 129; (d) Pres. Decree No. 1860; and (e) Pres.
Decree No. 1861.
The latest law on the Sandiganbayan, Sec. 1 of Pres. Decree No. 1861
reads as follows:
"SECTION 1. Section 4 of Presidential Decree No. 1606 is
hereby amended to read as follows:
'SEC. 4. Jurisdiction. – The Sandiganbayan shall exercise:
'(a) Exclusive original jurisdiction in all cases involving:
...
(2) Other offenses or felonies committed by public
officers and employees in relation to their office,
including those employed in government-owned or
controlled corporation, whether simple or complexed
with other crimes, where the penalty prescribed by law is
higher thatprision correccional or imprisonment for six
(6) years, or a fine of P6,000: PROVIDED, HOWEVER,
that offenses or felonies mentioned in this paragraph

where the penalty prescribed by law does not
exceed prision correccional or imprisonment for six (6)
years or a fine of P6,000 shall be tried by the proper
Regional Trial Court, Metropolitan Trial Court, Municipal
Trial Court and Municipal Circuit Trial Court."
A perusal of the aforecited law shows that two requirements must concur
under Sec. 4 (a) (2) for an offense to fall under the Sandiganbayan's
jurisdiction, namely: the offense committed by the public officer must be
in relation to his office and the penalty prescribed be higher then prision
correccional or imprisonment for six (6) years, or a fine of P6,000.00.11
Applying the law to the case at bench, we find that although the second
requirement has been met, the first requirement is wanting. A review of
these Presidential Decrees, except Batas Pambansa Blg. 129, would
reveal that the crime committed by public officers or employees must be
"in relation to their office" if it is to fall within the jurisdiction of the
Sandiganbayan. This phrase which is traceable to Pres. Decree No.
1468, has been retained by Pres. Decree No. 1861 as a requirement
before the Ombudsman can acquire primary jurisdiction on its power to
investigate.
It cannot be denied that Pres. Decree No. 1861 is in pari materia to
Article XI, Sections 12 and 13 of the 1987 Constitution and the
Ombudsman Act of 1989 because, as earlier mentioned, the
Ombudsman's power to investigate is dependent on the cases
cognizable by the Sandiganbayan. Statutes are in pari materia when
they relate to the same person or thing or to the same class of
persons or things, or object, or cover the same specific or
particular subject matter.
It is axiomatic in statutory construction that a statute must be
interpreted, not only to be consistent with itself, but also to
harmonize with other laws on the same subject matter, as to form a
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
harmonized with other statutes as to form a uniform system of
jurisprudence. Thus, in the application and interpretation of Article
XI, Sections 12 and 13 of the 1987 Constitution and the Ombudsman
Act of 1989, Pres. Decree No. 1861 must be taken into
consideration. It must be assumed that when the 1987 Constitution
was written, its framers had in mind previous statutes relating to
the same subject matter. In the absence of any express repeal or
amendment, the 1987 Constitution and the Ombudsman Act of 1989
8
are deemed in accord with existing statute, specifically, Pres.
Decree No. 1861.12 (Emphasis supplied)
R.A. No. 8249 which amended Section 4, paragraph (b) of the Sandiganbayan
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
of the Sandiganbayan, they must have been committed by public officers or
employees in relation to their office.
In summation, the Constitution, Section 15 of the Ombudsman Act of 1989 and
Section 4 of the Sandiganbayan Law, as amended, do not give to the
Ombudsman exclusive jurisdiction to investigate offenses committed by public
officers or employees. The authority of the Ombudsman to investigate offenses
involving public officers or employees is concurrent with other government
investigating agencies such as provincial, city and state prosecutors. However,
the Ombudsman, in the exercise of its primary jurisdiction over cases cognizable
by the Sandiganbayan, may take over, at any stage, from any investigating
agency of the government, the investigation of such cases.
In other words, respondent DOJ Panel is not precluded from conducting any
investigation of cases against public officers involving violations of penal laws but
if the cases fall under the exclusive jurisdiction of the Sandiganbayan, then
respondent Ombudsman may, in the exercise of its primary jurisdiction take over
at any stage.
Thus, with the jurisprudential declarations that the Ombudsman and the DOJ
have concurrent jurisdiction to conduct preliminary investigation, the respective
heads of said offices came up with OMB-DOJ Joint Circular No. 95-001 for the
proper guidelines of their respective prosecutors in the conduct of their
investigations, to wit:
OMB-DOJ JOINT CIRCULAR NO. 95-001
Series of 1995
TO: ALL GRAFT INVESTIGATION/SPECIAL PROSECUTION
OFFICERS OF THE OFFICE OF THE OMBUDSMAN
ALL REGIONAL STATE PROSECUTORS AND THEIR ASSISTANTS,
PROVINCIAL/CITY PROSECUTORS AND THEIR ASSISTANTS,
STATE PROSECUTORS AND PROSECUTING ATTORNEYS OF THE
DEPARTMENT OF JUSTICE.
SUBJECT: HANDLING COMPLAINTS FILED AGAINST PUBLIC
OFFICERS AND EMPLOYEES, THE CONDUCT OF PRELIMINARY

INVESTIGATION, PREPARATION OF RESOLUTIONS AND
INFORMATIONS AND PROSECUTION OF CASES BY PROVINCIAL
AND CITY PROSECUTORS AND THEIR ASSISTANTS.
x-----------------------------------------------------------------------------------------------
--------x
In a recent dialogue between the OFFICE OF THE OMBUDSMAN and
the DEPARTMENT OF JUSTICE, discussion centered around the latest
pronouncement of the supreme court on the extent to which the
ombudsman may call upon the government prosecutors for assistance in
the investigation and prosecution of criminal cases cognizable by his
office and the conditions under which he may do so. Also discussed was
Republic Act No. 7975 otherwise known as "an act to strengthen the
functional and structural organization of the sandiganbayan, amending
for the purpose presidential decree no. 1606, as amended" and its
implications on the jurisdiction of the office of the Ombudsman on
criminal offenses committed by public officers and employees.
Concerns were expressed on unnecessary delays that could be caused
by discussions on jurisdiction between the OFFICE OF THE
OMBUDSMAN and the department of justice, and by procedural conflicts
in the filing of complaints against public officers and employees, the
conduct of preliminary investigations, the preparation of resolutions and
informations, and the prosecution of cases by provincial and city
prosecutors and their assistants as deputized prosecutors of the
ombudsman.
Recognizing the concerns, the office of the ombudsman and the
department of justice, in a series of consultations, have agreed on the
following guidelines to be observed in the investigation and prosecution
of cases against public officers and employees:
1. Preliminary investigation and prosecution of offenses committed by
public officers and employees in relation to office whether cognizable by
the sandiganbayan or the regular courts, and whether filed with the office
of the ombudsman or with the office of the provincial/city prosecutor shall
be under the control and supervision of the office of the ombudsman.
2. Unless the Ombudsman under its Constitutional mandate finds reason
to believe otherwise, offenses not in relation to office and cognizable by
the regular courts shall be investigated and prosecuted by the office of
the provincial/city prosecutor, which shall rule thereon with finality.
9
3. Preparation of criminal information shall be the responsibility of the
investigating officer who conducted the preliminary investigation.
Resolutions recommending prosecution together with the duly
accomplished criminal informations shall be forwarded to the appropriate
approving authority.
4. Considering that the office of the ombudsman has jurisdiction over
public officers and employees and for effective monitoring of all
investigations and prosecutions of cases involving public officers and
employees, the office of the provincial/city prosecutor shall submit to the
office of the ombudsman a monthly list of complaints filed with their
respective offices against public officers and employees.
Manila, Philippines, October 5, 1995.
(signed) (signed)
TEOFISTO T. GUINGONA, JR. ANIANO A. DESIERTO
Secretary Ombudsman
Department of Justice Office of the Ombudsman
A close examination of the circular supports the view of the respondent
Ombudsman that it is just an internal agreement between the Ombudsman and
the DOJ.
Sections 2 and 4, Rule 112 of the Revised Rules on Criminal Procedure on
Preliminary Investigation, effective December 1, 2000, to wit:
SEC. 2. Officers authorized to conduct preliminary investigations-
The following may conduct preliminary investigations:
(a) Provincial or City Prosecutors and their assistants;
(b) Judges of the Municipal Trial Courts and Municipal Circuit
Trial Courts;
(c) National and Regional State Prosecutors; and
(d) Other officers as may be authorized by law.

Their authority to conduct preliminary investigation shall include all
crimes cognizable by the proper court in their respective territorial
jurisdictions.
SEC. 4. Resolution of investigating prosecutor and its review. - If the
investigating prosecutor finds cause to hold the respondent for trial, he
shall prepare the resolution and information, He shall certify under oath
in the information that he, or as shown by the record, an authorized
officer, has personally examined the complainant and his witnesses; that
there is reasonable ground to believe that a crime has been committed
and that the accused is probably guilty thereof; that the accused was
informed of the complaint and of the evidence submitted against him;
and that he was given an opportunity to submit controverting evidence.
Otherwise, he shall recommend the dismissal of the complaint.
Within five (5) days from his resolution, he shall forward the record of the
case to the provincial or city prosecutor or chief state prosecutor, or to
the Ombudsman or his deputy in cases of offenses cognizable by
the Sandiganbayan in the exercise of its original jurisdiction. They
shall act on the resolution within ten (10) days from their receipt thereof
and shall immediately inform the parties of such action.
No complaint or information may be filed or dismissed by an
investigating prosecutor without the prior written authority or
approval of the provincial or city prosecutor or chief state
prosecutor or the Ombudsman or his deputy.
Where the investigating prosecutor recommends the dismissal of the
complaint but his recommendation is disapproved by the provincial or
city prosecutor or chief state prosecutor or the Ombudsman or his deputy
on the ground that a probable cause exists, the latter may, by himself file
the information against the respondent, or direct another assistant
prosecutor or state prosecutor to do so without conducting another
preliminary investigation.
If upon petition by a proper party under such rules as the Department of
Justice may prescribe or motu proprio, the Secretary of Justice reverses
or modifies the resolution of the provincial or city prosecutor or chief
state prosecutor, he shall direct the prosecutor concerned either to file
the corresponding information without conducting another preliminary
investigation, or to dismiss or move for dismissal of the complaint or
information with notice to the parties. The same Rule shall apply in
preliminary investigations conducted by the officers of the Office of the
Ombudsman. (Emphasis supplied)
10
confirm the authority of the DOJ prosecutors to conduct preliminary investigation
of criminal complaints filed with them for offenses cognizable by the proper court
within their respective territorial jurisdictions, including those offenses which
come within the original jurisdiction of the Sandiganbayan; but with the
qualification that in offenses falling within the original jurisdiction of the
Sandiganbayan, the prosecutor shall, after their investigation, transmit the
records and their resolutions to the Ombudsman or his deputy for
appropriate action. Also, the prosecutor cannot dismiss the complaint without
the prior written authority of the Ombudsman or his deputy, nor can the
prosecutor file an Information with the Sandiganbayan without being deputized
by, and without prior written authority of the Ombudsman or his deputy.
Next, petitioner contends that under OMB-Joint Circular No. 95-001, there is no
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.
We find no merit in this argument. As we have lengthily discussed, the
Constitution, the Ombudsman Act of 1989, Administrative Order No. 8 of the
Office of the Ombudsman, the prevailing jurisprudence and under the Revised
Rules on Criminal Procedure, all recognize and uphold the concurrent jurisdiction
of the Ombudsman and the DOJ to conduct preliminary investigation on charges
filed against public officers and employees.
To reiterate for emphasis, the power to investigate or conduct preliminary
investigation on charges against any public officers or employees may be
exercised by an investigator or by any provincial or city prosecutor or their
assistants, either in their regular capacities or as deputized Ombudsman
prosecutors. The fact that all prosecutors are in effect deputized Ombudsman
prosecutors under the OMB-DOJ Circular is a mere superfluity. The DOJ Panel
need not be authorized nor deputized by the Ombudsman to conduct the
preliminary investigation for complaints filed with it because the DOJ's authority
to act as the principal law agency of the government and investigate the
commission of crimes under the Revised Penal Code is derived from the Revised
Administrative Code which had been held in 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
do so in the first place. However, the Ombudsman may assert its primary
jurisdiction at any stage of the investigation.
Petitioner's contention that OMB-DOJ Joint Circular No. 95-001 is ineffective on
the ground that it was not published is not plausible. We agree with and adopt
the Ombudsman's dissertation on the matter, to wit:
Petitioner appears to be of the belief, although NOT founded on a proper
reading and application of jurisprudence, that OMB-DOJ Joint Circular

No. 95-001, an internal arrangement between the DOJ and the Office of
the Ombudsman, has to be published.
As early as 1954, the Honorable Court has already laid down the rule in
the case of People vs. Que Po Lay, 94 Phil. 640 (1954) that only
circulars and regulations which prescribe a penalty for its violation should
be published before becoming effective, this, on the general principle
and theory that before the public is bound by its contents, especially its
penal provision, a law, regulation or circular must first be published and
the people officially and specifically informed of said contents and its
penalties: said precedent, to date, has not yet been modified or reversed.
OMB-DOJ Joint Circular No. 95-001 DOES NOT contain any penal
provision or prescribe a mandatory act or prohibit any, under pain or
penalty.
What is more, in the case of Tanada v. Tuvera, 146 SCRA 453 (1986),
the Honorable Court ruled that:
Interpretative regulations and those merely internal in nature, that is,
regulating only the personnel of the administrative agency and not the
public, need not be published. Neither is publication required of the so-
called letters of instructions issued by administrative superiors
concerning the rules or guidelines to be followed by their subordinates in
the performance of their duties. (at page 454. emphasis supplied)
OMB-DOJ Joint Circular No. 95-001 is merely an internal circular
between the DOJ and the Office of the Ombudsman, outlining authority
and responsibilities among prosecutors of the DOJ and of the Office of
the Ombudsman in the conduct of preliminary investigation. OMB-DOJ
Joint Circular No. 95-001 DOES NOT regulate the conduct of persons or
the public, in general.
Accordingly, there is no merit to petitioner's submission that OMB-DOJ
Joint Circular No. 95-001 has to be published.14
Petitioner insists that the Ombudsman has jurisdiction to conduct the preliminary
investigation because petitioner is a public officer with salary Grade 31 so that
the case against him falls exclusively within the jurisdiction of the
Sandiganbayan. Considering the Court's finding that the DOJ has concurrent
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 authority to investigate the charge of coup d'etat against him.
The question whether or not the offense allegedly committed by petitioner is one
of those enumerated in the Sandiganbayan Law that fall within the exclusive
11
jurisdiction of the Sandiganbayan will not be resolved in the present petition so
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
filing of the information against the petitioner; and to which court should the
information be filed considering the presence of other respondents in the subject
complaint.
WHEREFORE, the petition for certiorari is DISMISSED for lack of merit.
SO ORDERED.
ALFREDO C. MENDOZA, Petitioner,
vs.
PEOPLE OF THE PHILIPPINES AND JUNO CARS, INC., Respondents.
DECISION
LEONEN, J.:
While the determination of probable cause to charge a person of a crime is the
sole function of the. prosecutor, the trial court may, in the protection of one's
fundamental right to liberty, dismiss the case if, upon a personal assessment of
the evidence, it finds that the evidence does not establish probable cause.
This is a petition for review on certiorari1 assailing the Court of Appeals'
decision2 dated January 14, 2011, which reversed the Regional Trial Court's
dismissal of the complaint against petitioner Alfredo C. Mendoza for qualified
theft and estafa.
This case stems from a complaint-affidavit filed by Juno Cars, Inc. through its
representative, Raul C. Evangelista, on January 8, 2008 for qualified theft and
estafa against Alfredo.3
In the complaint-affidavit, Juno Cars alleged that on June 2, 2007, it hired Alfredo
as Trade-In/Used Car Supervisor. On November 19, 2007, its Dealer/Operator,
Rolando Garcia, conducted a partial audit of the used cars and discovered that
five (5) cars had been sold and released by Alfredo without Rolando’s or the
finance manager’s permission.4
The partial audit showed that the buyers of the five cars made payments, but
Alfredo failed to remit the payments totalling P886,000.00. It was further alleged
that while there were 20 cars under Alfredo’s custody, only 18 were accounted
for. Further investigation revealed that Alfredo failed to turn over the files of a
2001 Hyundai Starex and a Honda City 1.5 LXI. Juno Cars alleged that taking

into account the unremitted amounts and the acquisition cost of the Honda City,
Alfredo pilfered a total amount of P1,046,000.00 to its prejudice and damage.5
In his counter-affidavit, Alfredo raised, among others, Juno Cars’ supposed
failure to prove ownership over the five (5) cars or its right to possess them with
the purported unremitted payments. Hence, it could not have suffered damage.6
On March 4, 2008, Provincial Prosecutor Rey F. Delgado issued a
Resolution7 finding probable cause and recommending the filing of an information
against Alfredo for qualified theft and estafa.
Alfredo moved for reconsideration, but the motion was denied.8 He then filed a
petition for review with the Department of Justice on May 16, 2008.9
While Alfredo’s motion for reconsideration was still pending before the Office of
the City Prosecutor of Mandaluyong, two informations for qualified theft 10 and
estafa11 were filed before the Regional Trial Court, Branch 212, Mandaluyong
City. On March 31, 2008, Alfredo filed a motion for determination of probable
cause12 before the trial court. On April 28, 2008, he also filed a motion to defer
arraignment.
Several clarificatory hearings were scheduled but were not conducted.13 On
February 4, 2009, the parties agreed to submit all pending incidents, including
the clarificatory hearing, for resolution.14
On March 3, 2009, the trial court, through Presiding Judge Rizalina Capco-Umali,
issued an order15 dismissing the complaint, stating that:
After conducting an independent assessment of the evidence on record which
includes the assailed Resolution dated 04 March 2008, the court holds that the
evidence adduced does not support a finding of probable cause for the offenses
of qualified theft and estafa. x x x.16
Juno Cars filed a motion for reconsideration, which the trial court denied on July
3, 2009.17
Juno Cars then filed a petition for certiorari with the Court of Appeals, arguing
that the trial court acted without or in excess of its jurisdiction and with grave
abuse of discretion when it dismissed the complaint. It argued that "the
determination of probable cause and the decision whether or not to file a criminal
case in court, rightfully belongs to the public prosecutor."18
On January 14, 2011, the Court of Appeals rendered a decision, 19 reversed the
trial court, and reinstated the case. In its decision, the appellate court ruled that
12
the trial court acted without or in excess of its jurisdiction "in supplanting the
public prosecutor’s findings of probable cause with her own findings of
insufficiency of evidence and lack of probable cause."20
Aggrieved, Alfredo filed a petition for review under Rule 45 before this court. In
essence, he argued that the trial court was correct in finding that there was no
probable cause as shown by the evidence on record. He argued that "judicial
determination of probable cause is broader than [the] executive determination of
probable cause"21and that "[i]t is not correct to say that the determination of
probable cause is exclusively vested on the prosecutor x x x."22
In its comment,23 Juno Cars argued that Alfredo presented questions, issues,
and arguments that were a mere rehash of those already considered and passed
upon by the appellate court.
The Office of the Solicitor General, arguing for public respondent, stated in its
comment24 that the appellate court correctly sustained the public prosecutor in
his findings of probable cause against Alfredo. Since there was no showing of
grave abuse of discretion on the part of Prosecutor Rey F. Delgado, the trial
court should respect his determination of probable cause.
In his reply,25 Alfredo reiterated that "judicial determination of probable cause[,]
while not a superior faculty[,] covers a broader encompassing perspective in the
disposition of the issue on the existence of probable cause."26He argued that the
findings of the trial court should be accorded greater weight than the appellate
court’s. It merely reviewed the findings of the trial court.
The primordial issue is whether the trial court may dismiss an information filed by
the prosecutor on the basis of its own independent finding of lack of probable
cause.
Time and again, this court has been confronted with the issue of the difference
between the determination of probable cause by the prosecutor on one hand and
the determination of probable cause by the judge on the other. We examine
these two concepts again.
Juno Cars filed a complaint against Alfredo for qualified theft27 and estafa under
Article 315, fourth paragraph, no. 3(c)28 of the Revised Penal Code. Since
qualified theft is punishable by reclusion perpetua, a preliminary investigation
must first be conducted "to determine whether there is sufficient ground to
engender a well-founded belief that a crime has been committed and the
respondent is probably guilty thereof, and should be held for trial," in accordance
with Rule 112, Section 1 of the Rules on Criminal Procedure.

At this stage, the conduct of the preliminary investigation and the subsequent
determination of the existence of probable cause lie solely within the discretion of
the public prosecutor.29 If upon evaluation of the evidence, the prosecutor finds
sufficient basis to find probable cause, he or she shall then cause the filing of the
information with the court.
Once the information has been filed, the judge shall then "personally evaluate the
resolution of the prosecutor and its supporting evidence"30 to determine whether
there is probable cause to issue a warrant of arrest. At this stage, a judicial
determination of probable cause exists.
In People v. Castillo and Mejia,31 this court has stated:
There are two kinds of determination of probable cause: executive and judicial.
The executive determination of probable cause is one made during preliminary
investigation. It is a function that properly pertains to the public prosecutor who is
given a broad discretion to determine whether probable cause exists and to
charge those whom he believes to have committed the crime as defined by law
and thus should be held for trial. Otherwise stated, such official has the quasi-
judicial authority to determine whether or not a criminal case must be filed in
court. Whether or not that function has been correctly discharged by the public
prosecutor, i.e., whether or not he has made a correct ascertainment of the
existence of probable cause in a case, is a matter that the trial court itself does
not and may not be compelled to pass upon.
The judicial determination of probable cause, on the other hand, is one made by
the judge to ascertain whether a warrant of arrest should be issued against the
accused. The judge must satisfy himself that based on the evidence submitted,
there is necessity for placing the accused under custody in order not to frustrate
the ends of justice. If the judge finds no probable cause, the judge cannot be
forced to issue the arrest warrant.32
The difference is clear: The executive determination of probable cause concerns
itself with whether there is enough evidence to support an Information being filed.
The judicial determination of probable cause, on the other hand, determines
whether a warrant of arrest should be issued. In People v. Inting:33
x x x Judges and Prosecutors alike should distinguish the preliminary inquiry
which determines probable cause for the issuance of a warrant of arrest from the
preliminary investigation proper which ascertains whether the offender should be
held for trial or released. Even if the two inquiries are conducted in the course of
one and the same proceeding, there should be no confusion about the
objectives. The determination of probable cause for the warrant of arrest is made
by the Judge. The preliminary investigation proper—whether or not there is
reasonable ground to believe that the accused is guilty of the offense charged
13
and, therefore, whether or not he should be subjected to the expense, rigors and
embarrassment of trial—is the function of the Prosecutor.34 (Emphasis supplied)
While it is within the trial court’s discretion to make an independent assessment
of the evidence on hand, it is only for the purpose of determining whether a
warrant of arrest should be issued. The judge does not act as an appellate court
of the prosecutor and has no capacity to review the prosecutor’s determination of
probable cause; rather, the judge makes a determination of probable cause
independent of the prosecutor’s finding.
People v. Court of Appeals and Jonathan Cerbo35 discussed the rationale. In that
case, Jonathan Cerbo allegedly shot Rosalinda Dy in the presence of his father,
Billy Cerbo. An information for murder was filed against Jonathan Cerbo. The
daughter of Rosalinda Dy, as private complainant, executed a complaint-affidavit
charging Billy Cerbo with conspiracy. The prosecutor then filed a motion to
amend the information, which was granted by the court. The information was
then amended to include Billy Cerbo as one of the accused, and a warrant of
arrest was issued against him.
Billy Cerbo filed a motion to quash the warrant arguing that it was issued without
probable cause. The trial court granted this motion, recalled the warrant, and
dismissed the case against him. The Court of Appeals affirmed this dismissal.
This court, however, reversed the Court of Appeals and ordered the
reinstatement of the amended information against Billy Cerbo, stating that:
In granting this petition, we are not prejudging the criminal case or the guilt or
innocence of Private Respondent Billy Cerbo. We are simply saying that, as a
general rule, if the information is valid on its face and there is no showing of
manifest error, grave abuse of discretion or prejudice on the part of the public
prosecutor, courts should not dismiss it for ‘want of evidence,’ because
evidentiary matters should be presented and heard during the trial. The functions
and duties of both the trial court and the public prosecutor in "the proper scheme
of things" in our criminal justice system should be clearly understood.
The rights of the people from what could sometimes be an "oppressive" exercise
of government prosecutorial powers do need to be protected when
circumstances so require. But just as we recognize this need, we also
acknowledge that the State must likewise be accorded due process. Thus, when
there is no showing of nefarious irregularity or manifest error in the performance
of a public prosecutor’s duties, courts ought to refrain from interfering with such
lawfully and judicially mandated duties.
In any case, if there was palpable error or grave abuse of discretion in the public
prosecutor’s finding of probable cause, the accused can appeal such finding to

the justice secretary and move for the deferment or suspension of the
proceedings until such appeal is resolved.36 (Emphasis supplied)
In this case, the resolution dated March 4, 2008 of Prosecutor Rey F. Delgado
found that the facts and evidence were "sufficient to warrant the indictment of
[petitioner] 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.
While the information filed by Prosecutor Delgado was valid, Judge Capco-Umali
still had the discretion to make her own finding of whether probable cause
existed to order the arrest of the accused and proceed with trial.
Jurisdiction over an accused is acquired when the warrant of arrest is served.
Absent this, the court cannot hold the accused for arraignment and trial.
Article III, Section 2 of the Constitution states:
The right of the people to be secure in their persons, houses, papers, and effects
against unreasonable searches and seizures of whatever nature and for any
purpose shall be inviolable, and no search warrant or warrant of arrest shall issue
except upon probable cause to be determined personally by the judge after
examination under oath or affirmation of the complainant and the witnesses he
may produce, and particularly describing the place to be searched and the
persons or things to be seized.
The Constitution prohibits the issuance of search warrants or warrants of arrest
where the judge has not personally determined the existence of probable cause.
The phrase "upon probable cause to be determined personally by the judge after
examination under oath or affirmation of the complainant and the witnesses he
may produce" allows a determination of probable cause by the judge ex parte.
For this reason, Section 6, paragraph (a) of Rule 112 of the Rules on Criminal
Procedure mandates the judge to "immediately dismiss the case if the evidence
on record fails to establish probable cause." Section 6, paragraph (a) of Rule 112
reads:
Section 6. When warrant of arrest may issue. — (a) By the Regional Trial Court.
— Within ten (10) days from the filing of the complaint or information, the judge
shall personally evaluate the resolution of the prosecutor and its supporting
evidence. He may immediately dismiss the case if the evidence on record clearly
fails to establish probable cause. If he finds probable cause, he shall issue a
warrant of arrest, or a commitment order if the accused has already been
arrested pursuant to a warrant issued by the judge who conducted the
preliminary investigation or when the complaint or information was filed pursuant
to section 7 of this Rule. In case of doubt on the existence of probable cause, the
14
judge may order the prosecutor to present additional evidence within five (5)
days from notice and the issue must be resolved by the court within thirty (30)
days from the filing of the complaint of information.
In People v. Hon. Yadao:38
Section 6, Rule 112 of the Rules of Court gives the trial court three options upon
the filing of the criminal information: (1) dismiss the case if the evidence on
record clearly failed to establish probable cause; (2) issue a warrant of arrest if it
finds probable cause; and (3) order the prosecutor to present additional evidence
within five days from notice in case of doubt as to the existence of probable
cause.
But the option to order the prosecutor to present additional evidence is not
mandatory.1âwphi1 The court’s first option under the above is for it to
"immediately dismiss the case if the evidence on record clearly fails to establish
probable cause." That is the situation here: the evidence on record clearly fails to
establish probable cause against the respondents.39 (Emphasis supplied)
It is also settled that "once a complaint or information is filed in court, any
disposition of the case, whether as to its dismissal or the conviction or the
acquittal of the accused, rests in the sound discretion of the court."40
In this case, Judge Capco-Umali made an independent assessment of the
evidence on record and concluded that "the evidence adduced does not support
a finding of probable cause for the offenses of qualified theft and
estafa."41 Specifically, she found that Juno Cars "failed to prove by competent
evidence"42 that the vehicles alleged to have been pilfered by Alfredo were
lawfully possessed or owned by them, or that these vehicles were received by
Alfredo, to be able to substantiate the charge of qualified theft. She also found
that the complaint "[did] not state with particularity the exact value of the alleged
office files or their valuation purportedly have been removed, concealed or
destroyed by the accused,"43 which she found crucial to the prosecution of the
crime of estafa under Article 315, fourth paragraph, no. 3(c) of the Revised Penal
Code. She also noted that:
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
charged and even directed the private complainant to bring documents relative to
the same/payment as well as affidavit of witnesses/buyers with the end view of
satisfying itself that indeed probable cause exists to commit the present case
which private complainant failed to do.44
Accordingly, with the present laws and jurisprudence on the matter, Judge
Capco-Umali correctly dismissed the case against Alfredo.

Although jurisprudence and procedural rules allow it, a judge must always
proceed with caution in dismissing cases due to lack of probable cause,
considering the preliminary nature of the evidence before it. It is only when he or
she finds that the evidence on hand absolutely fails to support a finding of
probable cause that he or she can dismiss the case. On the other hand, if a
judge finds probable cause, he or she must not hesitate to proceed with
arraignment and trial in order that justice may be served.
WHEREFORE, the petition is GRANTED. The decision dated January 14, 2011
of the Court of Appeals in CA-G.R. SP. No. 110774 is REVERSED and SET
ASIDE. Criminal Case Nos. MC08-11604-05 against Alfredo C. Mendoza are
DISMISSED.
SO ORDERED.
G.R. No. 114266 December 4, 1996
PEOPLE OF THE PHILIPPINES, plaintiff,
vs.
ROGELIO VILLANUEVA and MAMERTO DURANA, accused.
MAMERTO DURANA, accused-appellant.
BELLOSILLO, J.:p
DIOSDADO MENIANO was hacked dead for which ROGELIO VILLANUEVA and
MAMERTO DURANA were charged with murder. Villanueva however remained
at large so that only Durana was tried. Thereafter Durana was sentenced
to reclusion perpetua and ordered to indemnify the heirs of their victim in the
amount of P50,000.00. 1
On 12 November 1992, around ten-thirty in the evening, at Barangay Tagpuro,
Tacloban City, Diosdado Meniano and his wife Gloria were awakened by a loud
voice from outside their house challenging Diosdado to a flight. Gloria Meniano
readily recognized the voice as that of accused Mamerto Durana. 2 The
challenge was hurled a number of times by Durana. It was not heeded initially by
the Diosdado until after Durana threatened to go up the house if the former would
not go down. Diosdado decided finally to go down but not without arming himself
with a short bolo. Gloria remained inside the house. She peeped through the
bamboo slats which served as external walls of their house. 3 Since the moon
was bright she was able to see Durana clearly as the intruder. 4 She also saw the
accused Rogelio Villanueva hiding near the San Francisco plants. 5 As soon as
Diosdado went out of his house he was immediately hacked by
15
Villanueva. 6Despite the hacking, Durana continued challenging Diosdado to a
fight. He even taunted the victim, "You cannot bear a wound." 7 Villanueva and
Durana then ran away.
Elenita Meniano, sister-in-law and neighbor of Diosdado, also witnessed the
hacking incident. She testified that on 12 November 1992 she and her husband
were awakened by the shouts of Mamerto Durana challenging Diosdado to a
fight; 8 that they watched the incident through the window and saw Diosdado
hacked by Villanueva after the former went down from his house; that after
Diosdado was slain, she saw Durana brandishing a bolo near the crime scene. 9
The body of Diosdado Meniano was examined by Dr. Angel A. Cordero, Medico-
Legal Officer, Camp Kangleion, Palo, Leyte, who ascribed the cause of death to
"shock and hemorrhage due to hacking wounds of the right basal portion of the
skull, lacerating the spinal column." 10
The defense is alibi. Mamerto Durana claims that in the evening of 12 November
1992 he was in the store of a certain Rogelio Baganio some 30 meters from the
house of the deceased to buy cigarettes 11 and to fetch his children who were
watching television in the store. Baganio's store was about half a kilometer away
from his residence.
The defense of appellant was not sustained by the trial court.
In this appeal appellant contends that the court a quo erred (a) in failing to
consider the fact that he was not a party respondent during the preliminary
investigation of the case and (b) in giving credence to the testimony of Gloria
Meniano. 12
Accused-appellant argues that the instant case was filed in court for murder only
against the other accused, Rogelio Villanueva, on the basis of the resolution of
the prosecutor in I.S. No. 92-1524; that he was not made a respondent in the
investigation; that despite the sworn statements of witnesses Gloria Meniano and
Elenita Meniano who pointed to him as co-conspirator, he was not included in the
charge for murder because, according to the police, he would be used as a
witness against the accused Villanueva.
The argument is without merit. It is settled that the absence of a preliminary
investigation does not impair the validity of the information or otherwise render
the same defective; neither does it affect the jurisdiction of the court over the
case, nor does it constitute a ground for quashing the
information. 13 If no preliminary investigation has been held, or if it is flawed, the
trial court may, on motion of the accused, order an investigation or
reinvestigation and hold the proceedings on the criminal case in abeyance. 14 In
this case, accused-appellant failed to invoke such right to preliminary
 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,
and Luis A. Gayya (collectively, respondents) immunity from prosecution,
resulting in the respondents exclusion from the criminal informations filed before
the Sandiganbayan. The petitioner seeks to nullify the immunity granted to the
respondents, and to compel the Ombudsman to include them as accused in the
informations for estafa through falsification of public documents[4] and for
II.
violation of Section 3(e), Republic Act (RA) No. 3019.[5]
b. Based on the Job Order, the SIT conducts a pre-
repair inspection (to determine the necessity of
repair and whether the repair is emergency in
nature) and prepares a Pre-Repair Inspection
Report, with a recommendation for its approval by
the CESPD Chief.
Preparation and Approval of Requisition for Supplies
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
repairs and/or purchase of spare parts of DPWH service vehicles basically
undergo the following documentary process:
I. Determination of repairs and/or spare parts needed
a. The end-user requesting repair brings the service
vehicle to the Motorpool Section, CESPD for initial
inspection and preparation of Job Order; and
service vehicle and issues the corresponding sales
invoice and/or official receipt;
c. The end-user accepts the repair and executes a
Certificate of Acceptance;
d. The SIT conducts a post-repair inspection (to check
if the vehicle was repaired and whether the repair
conformed to specifications) and prepares a Post-
Repair Inspection Report, with a recommendation
for its approval by the CESPD Chief. The Motorpool

and the end-user would prepare the Report of Waste
Materials also for the signature of the CESPD Chief;
and
e. The Assets and Supply Management and Control
Division recommends payment of the expense/s
incurred.
The processing of the payment of claims for reimbursement follows the above
process.
Based on this procedure, the DPWH-IAS discovered that from March to
December 2001, several emergency repairs and/or purchase of spare parts of
hundreds of DPWH service vehicles, which were approved and paid by the
government, did not actually take place, resulting in government losses of
approximately P143 million for this ten-month period alone.[12]
Thus, Atty. Irene D. Ofilada of the DPWH-IAS filed before the Office of the
Ombudsman[13] a Complaint-Affidavit[14] and a Supplemental Complaint-
Affidavit[15] charging several high-ranking DPWH officials and employees
including the petitioner, the respondents, and other private individuals who
purportedly benefited from the anomalous transactions with Plunder, Money
Laundering, Malversation, and violations of RA No. 3019 and the Administrative
Code.[16]
Atty. Ofilada imputed the following acts to the petitioner:
With dishonesty and grave misconduct, [the petitioner] x x
x approved four (4) job orders for [the] repairs [and/or]
purchase of spare parts of [the vehicle assigned to Atty. Ofilada,]
noted the certificate of urgency of said repairs [and/or]
purchase[,] concurred with both the pre-repair and post
repair inspection reports thereon, participated in the
accomplishment of the supporting Requisition for Supplies and
19
Equipment (RSE) x x x[,] and participated in the approval of the
disbursement voucher authorizing payment of said repairs as
necessary and lawful [even if said vehicle was never referred to
the Motorpool Section, CESPD for repair].
The documents relating to [this vehicle] were filed within a period
of one month (between September to October 2001) [and] were
used to authorize the payment of said non existent ghost repairs
to the damage and prejudice of the [DPWH.][17] (emphases ours)
On the other hand, Atty. Ofilada charged the respondents with the following:
With dishonesty and grave misconduct, [respondents] as
members of the [SIT] xxx accomplished and signed Pre-
Repair Inspection and Post Repair Inspection Reports in
support of the four job orders [and made] it appear that the
vehicle was inspected prior and after the alleged repair
[although they knew that the vehicle was never turned over
for inspection]. The accomplishment of the Pre-Repair and
Post-Repair Inspection Report[s] led to the preparation of the
Request for Supplies and Equipment which was the basis of the
preparation of the disbursement vouchers ultimately authorizing
the payment of the said repairs thru reimbursement scheme to
the damage and prejudice of the DPWH.
x x x the [P]re-[R]epair and [P]ost-[R]epair [I]nspection
[R]eports of the [SIT] xxx are fictitious and falsified as no actual
inspection could have transpired[.][18] (emphasis ours)
The petitioner denied the allegations against him, claiming that he merely
relied on his subordinates when he signed the job orders and the inspection
reports.[19] In contrast, the respondents admitted the existence of irregularities in
the repairs and/or purchase of spare parts of DPWH service vehicles, and
offered to testify and to provide evidence against the DPWH officials and
employees involved in the anomaly in exchange for their immunity from
prosecution. The respondents submitted:
5.2 x x x since we assumed our duties as members of
the SIT xxx, we observed that [the] DPWH vehicles were being

sent to the repair shop in violation of the prescribed guidelines
governing the emergency repair of a service vehicle. In most
instances, service vehicles are immediately brought to a car
repair shop of the end-users choice without bringing it first
to the [Motorpool Section, CESPD, BOE] for the preparation
of the required job order by [Gayya] of the Motorpool
Section and the pre-repair inspection to be conducted by
the SIT. After the purported repairs are done, SIT members
are made to sign a post-repair inspection report which
already includes a typed-in recommendation for the
payment of repairs, and the signature of the Head of the
[SIT] indicating his alleged concurrence with the findings of
the SIT despite the absence of an actual inspection. The
post-repair inspection report is accompanied by the following
attachments, to wit: a) a falsified job order signed by the head of
the [SIT] and the Chief of the Motorpool Section x x x [and] e) an
empty or falsified [p]re-repair inspection report[.]
5.3 Initially[,] we tried to curb the above anomalous
practices being perpetrated by suppliers and officials of the
DPWH x x x [by making] known [our] objections to the
questionable job orders for the proposed repairs of DPWH
service vehicles[,] thus:
a. On July, 9, 1999, [Tablan] wrote the Head of
the SIT a memorandum x x x stating that the job
orders for [several identified vehicles] x x x
violated the prohibition against splitting of job
orders x x x. [Tablan recommended for public
bidding the proposed repairs for the said
vehicles].
b. In connection with the job orders involving
[several identified vehicles] x x x Tablan and
Borillo wrote the Head of the SIT a
Memorandum x x x recommending that the
whereabouts of the end-user be verified, and the
service vehicle be re-inspected and/or disposed
of.
c. Since the July 9, 1999 Memorandum was
returned to x x x Tablan without any action being
undertaken by the SIT Chief, [Tablan and
Borillo] reiterated the recommendation for the
public bidding of the proposed repairs described
therein[.]
20
6. In our attempts to perform our sworn duties, however, we incurred the
displeasure of the suppliers, the head of [SIT] and other officials
of the DPWH who threatened various administrative sanctions
against us if we should not accede to their wishes. x x x
7. In addition to the foregoing, there are other factors
which conspired to prevent us from properly performing our
duties. For one, the DPWH processes an average of 3,000
repairs per calendar year. Given the staggering number and
extent of repairs, including the volume of paperwork, it was
practically impossible for [us] to implement the rules which
proved too tedious under the circumstance. As such, a short-cut
of the rules was necessary to accommodate the demands of the
end-user, the suppliers, our superiors, and other executives of
the DPWH. x x x
8. The anomalous practices of the DPWH executives
and suppliers in the purported repair of DPWH service vehicles
were indeed more widespread and rampant in the year 2001. As
a precautionary measure, we took the initiative of photocopying
these sets of falsified documents as they were presented to us
before we affixed our respective signatures thereon. We grouped
these documents into Sets A and B[.]
xxxx
11. x x x That the service vehicle x x x has not been
actually inspected by [Tablan and Borillo] is attested to by the
pre and post repair inspection reports initially bearing the
signature of the head of the SIT as concurring official without the
required signatures of Borillo and Tablan. More importantly,
these DPWH officials did not bother, in a majority of cases, to
cover their tracks when they prepared and signed the pre and
post repair inspection reports on the same dates. Based on
proper procedure, a post repair inspection report is to be
accomplished only after the preparation and approval of the Job
Order, pre-repair inspection report, RSE, Cash Invoice and
Acceptance by the end-user. In this case, the RSE, Cash Invoice
and Certificate of Acceptance are dated much later than the
post-repair inspection report. Since xxx there was no actual pre-
repair and post-repair inspection conducted, the foregoing
sample instances paved the way for the ghost repairs of DPWH
service vehicles, to the detriment and prejudice of the
government.
 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

Rules of Court, which presupposes that the witness is originally included in the
information, is inapplicable to the present case since the decision on whom to
prosecute is an executive, not a judicial, prerogative.[25]
The Ombudsman invokes this Courts policy of non-interference in the
Ombudsmans exercise of his discretion in matters involving his investigatory and
prosecutorial powers.[26] The petitioners claim that the respondents are the most
guilty is a matter of defense which the petitioner may raise not in this proceeding,
but in the trial proper.[27]
On the other hand, the respondents submit that the Ombudsman has ample
discretion in determining who should be included in the information on the basis
of his finding of probable cause. The courts can only interfere in the
Ombudsmans exercise of his discretion in case of a clear showing of grave
abuse of discretion, which the petitioner failed to establish. [28]
THE PETITIONERS REPLY[29]
While conceding that the Ombudsman has the power and the discretion to grant
immunity to the respondents, the petitioner asserts that this power must be
exercised within the confines of Section 17, Rule 119 of the Rules of Court which
requires, inter alia, that the proposed witness must not appear to be the most
guilty. By ignoring this provision and extending immunity to the respondents
whose false reports ultimately led to the payment for supposed repairs, and who
are, thus, the real culprits,[30] the Ombudsman gravely abused his discretion a
fatal defect correctible by certiorari.
Amplifying on the respondents guilt, the petitioner cites the DPWHs decision in
an administrative case which the Civil Service Commission affirmed, finding the
22
respondents guilty of dishonesty and grave misconduct involving the same set of
facts.[31]
OUR RULING
We dismiss the petition on two grounds: first, the petitioner did not avail of the
remedies available to him before filing this present petition; and, second, within
the context of the Courts policy of non-interference with the Ombudsmans
exercise of his investigatory and prosecutory powers, the petitioner failed to
establish that the grant of immunity to the respondents was attended by grave
abuse of discretion.
I. The petitioner did not
exhaust remedies available in
the ordinary course of law
As extraordinary writs, both Sections 1 (certiorari) and 3 (mandamus),
Rule 65 of the Rules of Court require, as a pre-condition for these remedies, that
there be no other plain, speedy and adequate remedy in the ordinary course of
law. In the present case, the petitioner has not shown that he moved for a
reconsideration of the assailed resolutions based substantially on the same
grounds stated in this present petition.[32] Neither did the petitioner file a motion
for the inclusion of the respondents in the informations before filing the present
petition.[33] These are adequate remedies that the petitioner chose to forego; he
bypassed these remedies and proceeded to seek recourse through the present
petition.[34]
Similarly, the petitioner has not shown that he filed the present petition
with this Court within the sixty-day reglementary period[35] from notice of the
assailed 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

While the legislature is the source of the power to grant immunity, the
authority to implement is lodged elsewhere. The authority to choose the
individual to whom immunity would be granted is a constituent part of the process
and is essentially an executive function. Mapa, Jr. v. Sandiganbayan[63] is
instructive on this point:
The decision to grant immunity from prosecution forms a
constituent part of the prosecution process. It is essentially a
tactical decision to forego prosecution of a person for
government to achieve a higher objective. It is a deliberate
renunciation of the right of the State to prosecute all who appear
to be guilty of having committed a crime. Its justification lies in
the particular need of the State to obtain the conviction of the
more guilty criminals who, otherwise, will probably elude the long
arm of the law. Whether or not the delicate power should be
exercised, who should be extended the privilege, the timing
of its grant, are questions addressed solely to the sound
judgment of the prosecution. The power to prosecute
includes the right to determine who shall be prosecuted and
the corollary right to decide whom not to prosecute. In
reviewing the exercise of prosecutorial discretion in these areas,
the jurisdiction of the respondent court is limited. For the
business of a court of justice is to be an impartial tribunal, and
not to get involved with the success or failure of the prosecution
to prosecute. Every now and then, the prosecution may err in the
selection of its strategies, but such errors are not for neutral
courts to rectify, any more than courts should correct the
blunders of the defense. [emphasis ours]
RA No. 6770 fully recognizes this prosecutory prerogative by
empowering the Ombudsman to grant immunity, subject to such terms and
conditions as he may determine. The only textual limitation imposed by law on
this authority is the need to take into account the pertinent provisions of the
Rules of Court, i.e., Section 17, Rule 119 of the Rules of Court.[64] This provision
requires that:
(a) There is absolute necessity for the testimony of the
accused whose discharge is requested;
25
(b) There is no other direct evidence available for the
proper prosecution of the offense committed, except the
testimony of said accused;
(c) The testimony of said accused can be substantially
corroborated in its material points;
(d) Said accused does not appear to be the most guilty;
and
(e) Said accused has not at any time been convicted of
any offense involving moral turpitude.
This Rule is itself unique as, without detracting from the executive nature
of the power to prosecute and the power to grant immunity, it clarifies that in
cases already filed with the courts,[65] the prosecution merely makes a proposal
and initiates the process of granting immunity to an accused-witness in order to
utilize him as a witness against his co-accused.[66] As we explained in Webb v.
De Leon[67] in the context of the Witness Protection, Security and Benefit Act:
The right to prosecute vests the prosecutor with a wide range of
discretion the discretion of whether, what and whom to charge,
the exercise of which depends on a smorgasbord of factors
which are best appreciated by prosecutors. We thus hold that it
is not constitutionally impermissible for Congress to enact R.A.
No. 6981 vesting in the Department of Justice the power to
determine who can qualify as a witness in the program and who
shall be granted immunity from prosecution. Section 9 of Rule
119 does not support the proposition that the power to choose
who shall be a state witness is an inherent judicial prerogative.
Under this provision, the court is given the power to
discharge a state witness only because it has already
acquired jurisdiction over the crime and the accused. The
discharge of an accused is part of the exercise of
jurisdiction but is not a recognition of an inherent judicial
function. [emphasis ours]
Thus, it is the trial court that determines whether the prosecutions preliminary
assessment of the accused-witness qualifications to be a state witness satisfies
the procedural norms.[68] This relationship is in reality a symbiotic one as the trial
 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

how the Ombudsman viewed the question of absolute necessity of the
respondents testimony since this testimony meets the defense of good faith
head-on to prove the prosecutions allegations. Under these circumstances, we
cannot preempt, foreclose, nor replace with our own the Ombudsmans position
on this point as it is clearly not without basis.
Vb. The respondents do not
appear to be the most guilty
Similarly, far from concluding that the respondents are the most guilty,
we find that the circumstances surrounding the preparation of the inspection
reports can significantly lessen the degree of the respondents criminal complicity
in defrauding the government. Again, this is a matter that the Ombudsman, in the
exercise of his discretion, could not have avoided when he considered the grant
of immunity to the respondents.
We note, too, that while the petitioner incessantly harped on the
respondents role in the preparation of the inspection reports, yet, as head of the
SIT, he was eerily silent on the circumstances surrounding this preparation,
particularly on the respondents explanation that they tried to curb the anomalous
practices[80] in the DPWH. We are aware, of course, that the present petition
merely questions the immunity granted to the respondents and their consequent
exclusion from the informations; it does not assail the finding of probable cause
against the petitioner himself. This current reality may explain the petitioners
silence on the respondents assertions; the respondents allegations, too, still have
to be proven during the trial. However, these considerations are not sufficient to
save the petitioner from the necessity of controverting the respondents
allegations, even for the limited purpose of the present petition, since his counter-
assertion on this basic ground (that the respondents bear the most guilt) is
essential and critical to the viability of his petition.
28
In considering the respondents possible degree of guilt, we are keenly
aware of their admission that they resorted to a short-cut[81] in the procedure to
be observed in the repairs and/or purchase of emergency parts of DPWH service
vehicles. To our mind, however, this admission does not necessarily result in
making the respondents the most guilty in the premises; not even a semblance of
being the most guilty can be deduced therefrom.
In sum, the character of the respondents involvement vis--vis the crimes
filed against the DPWH officials/employees, coupled with the substance of the
respondents disclosures, compels this Court to take a dim view of the position
that the Ombudsman gravely abused his discretion in granting immunity to the
respondents. The better view is that the Ombudsman simply saw the higher
value of utilizing the respondents themselves as witnesses instead of prosecuting
them in order to fully establish and strengthen its case against those mainly
responsible for the criminal act, as indicated by the available evidence.
VI. The respondents
administrative liability has
no bearing at all on the
immunity granted to the
respondents
The fact that the respondents had previously been found administratively liable,
based on the same set of facts, does not necessarily make them the most
guilty. An administrative case is altogether different from a criminal case, such
that the disposition in the former does not necessarily result in the same
disposition for the latter, although both may arise from the same set of
facts.[82] The most that we can read from the finding of liability is that the
respondents have been found to be administratively guilty bysubstantial
evidence the quantum of proof required in an administrative proceeding. The
requirement of the Revised Rules of Criminal Procedure (which RA No. 6770

adopted by reference) that the proposed witness should not appear to be the
most guilty is obviously in line with the character[83] and purpose[84] of a criminal
proceeding, and the much stricter standards[85] observed in these cases. They
are standards entirely different from those applicable in administrative
proceedings.
VII. The policy of non-
interference with the
Ombudsmans
investigatory and
prosecutory powers
cautions a stay of judicial
hand
The Constitution and RA No. 6770 have endowed the Office of the
Ombudsman with a wide latitude of investigatory and prosecutory powers, freed,
to the extent possible within our governmental system and structure, from
legislative, executive, or judicial intervention, and insulated from outside pressure
and improper influence.[86] Consistent with this purpose and subject to the
command of paragraph 2, Section 1, Article VIII of the 1987 Constitution, [87] the
Court reiterates its policy of non-interference with the Ombudsmans exercise of
his investigatory and prosecutory powers (among them, the power to grant
immunity to witnesses[88]), and respects the initiative and independence inherent
in the Ombudsman who, beholden to no one, acts as the champion of the people
and the preserver of the integrity of the public service.[89] Ocampo IV v.
Ombudsman[90] best explains the reason behind this policy:
The rule is based not only upon respect for the investigatory and
prosecutory powers granted by the Constitution to the Office of
the Ombudsman but upon practicality as well. Otherwise, the
functions of the courts will be grievously hampered by
innumerable petitions assailing the dismissal of investigatory
proceedings conducted by the Office of the Ombudsman with
regard to complaints filed before it, in much the same way that
the courts would be extremely swamped if they could be
29
compelled to review the exercise of discretion on the part of the
fiscals or prosecuting attorneys each time they decide to file an
information in court or dismiss a complaint by a private
complainant.
Following this policy, we deem it neither appropriate nor advisable to interfere
with the Ombudsmans grant of immunity to the respondents, particularly in this
case, where the petitioner has not clearly and convincingly shown the grave
abuse of discretion that would call for our intervention.
WHEREFORE, the petition is hereby DISMISSED. Costs against the
petitioner.
G.R. No. 196842 October 9, 2013
ALFREDO ROMULO A. BUSUEGO, Petitioner,
vs.
OFFICE OF THE OMBUDSMAN MINDANAO and ROSA S.
BUSUEGO, Respondents.
DECISION
PEREZ, J.:
Before us is a petition for certiorari seeking to annul and set aside the Resolution
of the Ombudsman dated 17 April 20091 and Order dated October 2010,2 which
directed the tiling of an Information for Concubinage under Article 334 of the
Revised Penal Code against petitioner Alfredo Romulo A. Busuego (Alfredo).
We chronicle the facts thus.
Private respondent Rosa S. Busuego (Rosa) filed a complaint for: (1)
Concubinage under Article 334 of the Revised Penal Code; (2) violation of
Republic Act No. 9262 (Anti-Violence Against Women and Their Children); and
(3) Grave Threats under Article 282 of the Revised Penal Code, before the Office
of the Ombudsman against her husband, Alfredo, with designation Chief of
Hospital, Davao Regional Hospital, Apokon, Tagum City.
In her complaint, Rosa painted a picture of a marriage in disarray.

She and Alfredo were married on 12 July 1975 at the Assumption Church, Davao
City. Their union was blessed with two (2) sons, Alfred and Robert, born in 1976
and 1978, respectively. Sometime in 1983, their marriage turned sour. At this
time, Rosa unearthed photographs of, and love letters addressed to Alfredo from,
other women. Rosa confronted Alfredo who claimed ignorance of the existence
of these letters and innocence of any wrongdoing.
Purportedly, Alfredo very rarely stayed at home to spend time with his family. He
would come home late at night on weekdays and head early to work the next
day; his weekends were spent with his friends, instead of with his family. Rosa
considered herself lucky if their family was able to spend a solid hour with
Alfredo.
Around this time, an opportunity to work as nurse in New York City, United States
of America (US) opened up for Rosa. Rosa informed Alfredo, who vehemently
opposed Rosa’s plan to work abroad. Nonetheless, Rosa completed the
necessary requirements to work in the US and was scheduled to depart the
Philippines in March 1985.
Before leaving, Rosa took up the matter again with Alfredo, who remained
opposed to her working abroad. Furious with Rosa’s pressing, Alfredo took his
loaded gun and pointed it at Rosa’s right temple, threatening and taunting Rosa
to attempt to leave him and their family. Alfredo was only staved off because
Rosa’s mother arrived at the couple’s house. Alfredo left the house in a rage:
Rosa and her mother heard gun shots fired outside.
Because of that incident, Rosa acted up to her plan and left for the US. While in
the US, Rosa became homesick and was subsequently joined by her children
who were brought to the US by Alfredo. Rosa singularly reared them: Alfred, from
grade school to university, while Robert, upon finishing high school, went back to
Davao City to study medicine and lived with Alfredo.
During that time his entire family was in the US, Alfredo never sent financial
support. In fact, it was Rosa who would remit money to Alfredo from time to time,
believing that Alfredo had stopped womanizing. Rosa continued to spend her
annual vacation in Davao City.
Sometime in 1997, Rosa learned that a certain Emy Sia (Sia) was living at their
conjugal home. When Rosa asked Alfredo, the latter explained that Sia was a
nurse working at the Regional Hospital in Tagum who was in a sorry plight as
she was allegedly being raped by Rosa’s brother-in-law. To get her out of the
situation, Alfredo allowed Sia to live in their house and sleep in the maids’
quarters. At that time, Rosa gave Alfredo the benefit of the doubt.
30
In October 2005, Rosa finally learned of Alfredo’s extra-marital relationships.
Robert, who was already living in Davao City, called Rosa to complain of
Alfredo’s illicit affairs and shabby treatment of him. Rosa then rang up Alfredo
which, not surprisingly, resulted in an altercation. Robert executed an affidavit,
corroborating his mother’s story and confirming his father’s illicit affairs:
1. In varying dates from July 1997 to January 1998, Robert found it
strange that Sia slept with his father in the conjugal bedroom.
2. He did not inform his mother of that odd arrangement as he did not
want to bring trouble to their family.
3. Eventually, Sia herself confirmed to Robert that she was Alfredo’s
mistress.
4. During this period of concubinage, Sia was hospitalized and upon her
discharge, she and Alfredo resumed their cohabitation.
5. The relationship between Alfredo and Sia ended only when the latter
found another boyfriend. 6. His father next took up an affair with Julie de
Leon (de Leon) whom Robert met when de Leon fetched Alfredo on one
occasion when their vehicle broke down in the middle of the road.
7. Robert read various Short Message Service (SMS) exchanges
between Julie and Alfredo on Alfredo’s mobile phone.
8. On 23, 24, 30 and 31 December 2004, de Leon stayed in Rosa’s and
Alfredo’s conjugal dwelling and stayed in the conjugal room the entire
nights thereof.
The househelpers, Melissa S. Diambangan and Liza S. Diambangan, likewise
executed a joint affidavit in support of Rosa’s allegations:
1. They had seen Sia sleep and stay overnight with Alfredo in the
conjugal bedroom.
2. Sia herself, who called Alfredo "Papa," confirmed the two’s sexual
relationship.
3. On 23, 24, 30 and 31 December 2004, de Leon stayed in the conjugal
dwelling and slept overnight with Alfredo in the conjugal room.

As a result, Rosa and their other son Alfred forthwith flew to Davao City without
informing Alfredo of their impending return. Upon Rosa’s return, she gathered
and consolidated information on her husband’s sexual affairs.
Pursuant to her charges of violation of Republic Act No. 9262 and Grave Threats,
Rosa averred that during the course of their marriage, apart from the marital
infidelity, Alfredo physically and verbally abused her and her family. On one
occasion after Rosa confirmed the affairs, Alfredo threatened their family,
including other members of their household that he will gun them down should he
chance upon them in Tagum City. Lastly, on 22 March 2006, Alfredo purportedly
dismissed house helper Liza Diambangan and threatened her.
As expected, Alfredo, in his counter-affidavit, denied all accusations against him
and alleged that:
1. Rosa, despite his pleas for them to remain and raise their family in the
Philippines, chose to live in the US, separate from him.
2. Rosa’s allegations that he had kept photographs of, and love letters
from, other women, were only made to create a cause of action for the
suit for Legal Separation which Rosa filed sometime in 1998.
3. It was highly improbable that he committed acts of concubinage with
Sia and de Leon since from the time he became Chief of Hospital of the
Davao Regional Hospital in Tagum City, he practically stayed all days of
the work week in the hospital. The instances he went home were few
and far between, only to check on the house and provide for household
expenses.
4. When Robert returned to Davao City and lived with him, it became
more impossible for him to have shacked up with Sia and de Leon in the
conjugal dwelling.
5. With respect to his alleged relationship with Sia, without admitting to
anything, that Sia, for a time, may have lived in his and Rosa’s conjugal
house, staying at the maids’ quarters. However, at no instance did he
keep Sia as his mistress in the conjugal dwelling.
6. As regards the dates of December 23, 24, 30 and 31, 2004 when he
supposedly stayed with de Leon in the conjugal room, Alfredo pointed
out that said dates were busiest days of the year in the hospital where
his presence as Chief of Hospital is most required.
7. By Rosa’s own admission, she first learned of Alfredo’s alleged
concubinage in 1997, and yet she still continued with her yearly visits to
31
Alfredo in Davao City. Those instances ought to be construed as
condonation of the concubinage.
8. Significantly, the alleged concubines, Sia and de Leon, were not
impleaded along with Alfredo as party-respondents in the complaint in
violation of Article 344 of the Revised Penal Code.
Alfredo made short shrift of Rosa’s charges of violation of Republic Act No. 9262
and Grave Threats. He claimed that, at no time, did he threaten, the lives or, to
harm his wife, their family and members of their household. He only berated the
help for perpetrating gossip about his behavior and conduct.
In their subsequent exchange of responsive pleadings, Rosa maintained
Alfredo’s culpability, and naturally, Alfredo claimed innocence.
In the course thereof, the procedural issue of Rosa’s failure to implead Sia and
de Leon as respondents cropped up. Alfredo insisted that Rosa’s complaint
ought to be dismissed for failure to implead his alleged concubines as
respondents.
Specifically to dispose of that issue, the Ombudsman scheduled a clarificatory
hearing where both Rosa and Alfredo were represented by their respective
counsels:
x x x Rosa was apprised of the need to implead the two alleged mistresses in the
complaint for Concubinage pursuant to Article 344 of the Revised Penal Code.
Although Alfredo objected to the amendment of the complaint, at this point in
time, due to the alleged procedural lapse committed by Rosa, this Office
explained to the parties that the position of Alfredo would just prolong the
conduct of the preliminary investigation since Rosa can just re-file her complaint.
The doctrine of res judicata does not apply in the preliminary investigation stage.
Hence, the counsel for Rosa was directed to submit to this Office the addresses
of the alleged mistresses so that they could be served with the Order directing
them to file their counter-affidavits.
Rosa submitted an Ex-Parte Manifestation on the last known addresses of Julie
de Leon and Emy Sia. x x x.3
On 24 June 2008, the Ombudsman issued a Joint Order4 impleading Sia and de
Leon as party-respondents in the complaint for Concubinage and directing them
to submit their respective counter-affidavits within a period of time. Copies of the
Joint Order were mailed to Sia’s and de Leon’s last known addresses, as
provided by Rosa to the Ombudsman.

Sia and de Leon did not submit their respective counter-affidavits: a copy of the
Joint Order sent to Sia’s last known address was returned to the Ombudsman
with the notation on the Registry Return Receipt No. 1624 "Return to Sender;
removed," while a copy thereof to de Leon was received on 3 September 2008
by Ananias de Leon.5
Apparently still opposed to the Ombudsman’s ruling to simply amend the
complaint and implead therein Alfredo’s alleged mistresses, Alfredo filed his
Comment to the 24 June 2008 Order with Motion to Dismiss and/or Refer the
charges to the Appropriate Provincial/City Prosecutor 6 praying for dismissal of
the complaint for: (1) failure to implead the two mistresses in violation of Article
344 of the Revised Penal Code; and in the alternative, (2) referral of the
complaint to the Office of the City Prosecutor as provided in OMB-DOJ Circular
No. 95-001.
Rosa filed a Reply to that latest pleading of Alfredo.
On 17 April 2009, the Ombudsman issued the herein assailed Resolution,
disposing of the procedural issues:
Before dwelling into the merits of the case, this Office finds an urgent need to
resolve the ancillary issues raised by petitioner Dr. Busuego on: 1.) the alleged
legal infirmity of Rosas’s initiatory pleading by resorting to a procedural short cut
which would result to the delay in the disposition of this case; and 2.) the criminal
charges imputed are not in relation to office, hence, the Office of the
Provincial/City Prosecutor shall investigate and prosecute this case pursuant to
OMB-DOJ Joint Circular No. 95-001, Series of 1995.
On the first issue, this Office observed that Busuego had already pointed out in
his counter-Affidavit the alleged deficiency in the complaint. Rosa also explained
in her Reply that the names of the mistresses were categorically mentioned in
the complaint. She averred that this Office is empowered to investigate and
prosecute any act or omission of a public official or employee to the exclusion of
non-government employees. She stated that the inclusion of the alleged
concubines in the Information to be filed in court is a matter of procedure, within
the competence of the investigating prosecutor.
In order to clarify some matters, including the said issue, with the parties, the
clarificatory hearing was conducted. It was explained in the said hearing the need
to implead the alleged concubines in this case pursuant to Article 344 of the
Revised Penal Code and to obviate the proceedings, Rosa was directed to
submit the addresses of the alleged concubines. Busuego’s position that the said
short cut procedure would delay the proceedings is misplaced. If the case will be
dismissed based on procedural infirmity, Rosa could still amend her complaint
32
and re-file this case since the doctrine of res judicata does not apply in the
preliminary investigation stage of the proceedings.
On the second issue, the motion of Busuego to refer this case to the Office of the
City Prosecutor was belatedly filed. Record would show that the motion praying
for the referral of this case to the Office of the City Prosecutor was filed on 17
July 2008, after the parties have already filed all their pleadings and the case is
now ripe for resolution. Further, referral to the said office is not mandatory as
cited in the said Joint Circular.7
In the same Resolution, the Ombudsman, ultimately, found probable cause to
indict only Alfredo and Sia of Concubinage and directed the filing of an
Information against them in the appropriate court:
WHEREFORE, in view of the foregoing, this Office finds a prima facie case for
violation of Article 334 of the Revised Penal Code (concubinage) and that
petitioner ALFREDO ROMULO BUSUEGO y ABRIO, and EMY SIA, are probably
guilty thereof.
Let the herewith Information be filed in the appropriate court.
The charges for: 1.) Concubinage against Alfredo Romulo Busuego y Abrio and
Julie de Leon; 2.) Grave Threats against Alfredo Romulo y Abrio; and 3.)
violation of RA 9262 (Anti-Violence Against Women and Children Act), are
hereby DISMISSED for lack of merit.8
Alfredo filed a Partial Motion for Reconsideration excepting to the Ombudsman’s
ruling on the automatic inclusion of Sia as respondent in the complaint and their
indictment for the crime of Concubinage. Alfredo is adamant that Rosa’s
complaint should have, at the outset, impleaded his alleged concubines. Failing
such, the Ombudsman cannot resort to automatic inclusion of party-respondents,
erroneously finding him and Sia prima facie culpable for Concubinage. For good
measure, Alfredo pointed out that from Rosa’s own allegations, she had
condoned or pardoned Alfredo’s supposed concubinage. Alfredo likewise
submitted Liza S. Diambangan’s affidavit, recanting her previous affidavit
corroborating Rosa’s charges.
Nonetheless, the Ombudsman stood pat on its ruling, declared that the Partial
Motion for Reconsideration was filed out of time, and gave scant attention to Liza
S. Diambangan’s affidavit of recantation:
WHEREFORE, all the foregoing considered, this instant Motion for
Reconsideration is hereby DENIED. The findings in the questioned Resolution
hereby remains undisturbed. Let the Information for Concubinage be filed in the
proper court against herein Busuego.9

Alfredo now comes to us on petition for certiorari alleging grave abuse of
discretion in the Ombudsman’s finding of probable cause to indict him and Sia for
Concubinage. Alfredo’s badges of grave abuse of discretion are the following:
1. The Ombudsman railroaded the inclusion of Sia and de Leon as party-
respondents in the complaint;
2. The Ombudsman did not refer the complaint to the Department of
Justice, considering that the offense of Concubinage is not committed in
relation to his office as Chief of Hospital;
3. The Ombudsman glossed over Rosa’s condonation of Alfredo’s
supposed Concubinage when she alleged in the complaint that she had
known of Alfredo’s womanizing and believed him to have changed his
ways;
4. The Ombudsman did not take into consideration the affidavit of
recantation of Liza Diambangan; and
5. The Ombudsman found probable cause to indict Alfredo and Sia for
Concubinage.
We sustain the Ombudsman.
The Ombudsman has full discretionary authority in the determination of probable
cause during a preliminary investigation.10 This is the reason why judicial review
of the resolution of the Ombudsman in the exercise of its power and duty to
investigate and prosecute felonies and/or offenses of public officers is limited to a
determination of whether there has been a grave abuse of discretion amounting
to lack or excess of jurisdiction. Courts are not empowered to substitute their
judgment for that of the Ombudsman.11
By grave abuse of discretion is meant such capricious and whimsical exercise of
judgment tantamount to lack of jurisdiction.12 The abuse of discretion must be so
patent and gross as to amount to an evasion of a positive duty or a virtual refusal
to perform a duty enjoined by law, or to act at all in contemplation of law, as
where the power is exercised in an arbitrary and despotic manner by reason of
passion or hostility.13 In this regard, petitioner failed to demonstrate the
Ombudsman's abuse, much less grave abuse, of discretion.
First. Alfredo insists that the Ombudsman’s automatic inclusion, over his
vehement objections of Sia and de Leon as party-respondents, violates Article
344 of the Revised Penal Code and Section 5, Rule 110 of the Rules of Court,
which respectively provide:
33
Art. 344. Prosecution of the crimes of adultery, concubinage, seduction,
abduction, rape and acts of lasciviousness. — The crimes of adultery and
concubinage shall not be prosecuted except upon a complaint filed by the
offended spouse.
The offended party cannot institute criminal prosecution without including both
the guilty parties, if they are both alive, nor, in any case, if he shall have
consented or pardoned the offenders.
Section 5. Who must prosecute criminal action. – xxx.
The crimes of adultery and concubinage shall not be prosecuted except upon a
complaint filed by the offended spouse. The offended party cannot institute
criminal prosecution without including the guilty parties, if both are alive, nor, in
any case, if the offended party has consented to the offense or pardoned the
offenders.
We do not agree.
The submission of Alfredo is belied by the fact that the Ombudsman merely
followed the provisions of its Rules of Procedure. Thus:
Rule II
PROCEDURE IN CRIMINAL CASES
xxxx
Section 2. Evaluation – Upon evaluating the complaint, the investigating officer
shall recommend whether it may be:
a) dismissed outright for want of palpable merit;
b) referred to respondent for comment;
c) indorsed to the proper government office or agency which has
jurisdiction over the case;
d) forwarded to the appropriate office or official for fact-finding
investigation;
e) referred for administrative adjudication; or
f) subjected to a preliminary investigation.

xxxx
Section 4. Procedure – The preliminary investigation of cases falling under the
jurisdiction of the Sandiganbayan and Regional Trial Courts shall be conducted
in the manner prescribed in Section 3, Rule 112 of the Rules of Court, subject to
the following provisions:
a) x x x
b) After such affidavits have been secured, the investigating officer shall
issue an order, attaching thereto a copy of the affidavits and other
supporting documents, directing the respondents to submit, within ten
(10) days from receipt thereof, his counter-affidavits and controverting
evidence with proof of service thereof on the complainant. The
complainant may file reply affidavits within ten (10) days after service of
the counter-affidavits.
c) If the respondents does not file a counter-affidavit, the investigating
officer may consider the comment filed by him, if any, as his answer to
the complaint. In any event, the respondent shall have access to the
evidence on record.
d) No motion to dismiss shall be allowed except for lack of jurisdiction.
Neither may a motion for a bill of particulars be entertained.
If respondent desires any matter in the complainant’s affidavit to be
clarified, the particularization thereof may be done at the time of the
clarificatory questioning in the manner provided in paragraph (f) of this
section.
e) If the respondents cannot be served with the order mentioned in
paragraph 6 hereof, or having been served, does not comply therewith,
the complaint shall be deemed submitted for resolution on the basis of
the evidence on the record.
f) If, after the filing of the requisite affidavits and their supporting
evidences, there are facts material to the case which the investigating
officer may need to be clarified on, he may conduct a clarificatory
hearing during which the parties shall be afforded the opportunity to be
present but without the right to examine or cross-examine the witness
being questioned. Where the appearance of the parties or witnesses is
impracticable, the clarificatory questioning may be conducted in writing,
whereby the questions desired to be asked by the investigating officer or
a party shall be reduced into writing and served on the witness
34
concerned who shall be required to answer the same in writing and
under oath.
g) Upon the termination of the preliminary investigation, the investigating
officer shall forward the records of the case together with his resolution
to the designated authorities for their appropriate action thereon.
No information may be filed and no complaint may be dismissed without the
written authority or approval of the ombudsman in cases falling within the
jurisdiction of the Sandiganbyan, or of the proper Deputy Ombudsman in all other
cases. (Emphasis supplied).
Notably, Rosa’s complaint contained not just the Concubinage charge, but other
charges: violation of Republic Act No. 9262 and Grave Threats. Upon the
Ombudsman’s perusal, the complaint was supported by affidavits corroborating
Rosa’s accusations. Thus, at that stage, the Ombudsman properly referred the
complaint to Alfredo for comment. Nonetheless, while the Ombudsman found no
reason for outright dismissal, it deemed it fit to hold a clarificatory hearing to
discuss the applicability of Article 344 of the Revised Penal Code, the issue
having been insisted upon by Alfredo.
Surely the procedural sequence of referral of the complaint to respondent for
comment and thereafter the holding of a clarificatory hearing is provided for in
paragraph b, Section 2 and paragraphs d and f, Section 4 of Rule II, which we
have at the outset underscored. Thus did the Ombudsman rule:
In order to clarify some matters, including the said issue, with the parties, the
clarificatory hearing was conducted. It was explained in the said hearing the need
to implead the alleged concubines in this case pursuant to Article 344 of the
Revised Penal Code and to obviate the proceedings, Rosa was directed to
submit the addresses of the alleged concubines. Busuego’s position that the said
short cut procedure would delay the proceedings is misplaced. If the case will be
dismissed based on procedural infirmity, Rosa could still amend her complaint
and re-file this case since the doctrine of res judicata does not apply in the
preliminary investigation stage of the proceedings.14
The Ombudsman merely facilitated the amendment of the complaint to cure the
defect pointed out by Alfredo. We agree with the Ombudsman that it would be
superfluous to dismiss the complaint when amendment thereof is allowed by its
Rules of Procedure15 and the Rules of Court.16
Second. Alfredo claims that the Ombudsman should have referred Rosa’s
complaint to the Department of Justice (DOJ), since the crime of Concubinage is
not committed in relation to his being a public officer. This is not a new argument.

The Ombudsman’s primary jurisdiction, albeit concurrent with the DOJ, to
conduct preliminary investigation of crimes involving public officers, without
regard to its commission in relation to office, had long been settled in Sen.
Honasan II v. The Panel of Investigating Prosecutors of DOJ, 17 and affirmed in
subsequent cases:
The Constitution, Section 15 of the Ombudsman Act of 1989 and Section 4 of the
Sandiganbayan Law, as amended, do not give to the Ombudsman exclusive
jurisdiction to investigate offenses committed by public officers or employees.
The authority of the Ombudsman to investigate offenses involving public officers
or employees is concurrent with other government investigating agencies such
as provincial, city and state prosecutors. However, the Ombudsman, in the
exercise of its primary jurisdiction over cases cognizable by the Sandiganbayan,
may take over, at any stage, from any investigating agency of the government,
the investigation of such cases.
In other words, respondent DOJ Panel is not precluded from conducting any
investigation of cases against public officers involving violations of penal laws but
if the cases fall under the exclusive jurisdiction of the Sandiganbayan, the
respondent Ombudsman may, in the exercise of its primary jurisdiction take over
at any stage.
Thus, with the jurisprudential declarations that the Ombudsman and the DOJ
have concurrent jurisdiction to conduct preliminary investigation, the respective
heads of said offices came up with OMB-DOJ Joint Circular No. 95-001 for the
proper guidelines of their respective prosecutors in the conduct of their
investigations, to wit:
OMB-DOJ JOINT CIRCULAR NO. 95-001
Series of 1995
ALL GRAFT INVESTIGATION/SPECIAL PROSECUTIONOFFICERS OF THE
OFFICE OF THE OMBUDSMAN
TO: ALL REGIONAL STATE PROSECUTORS AND THEIR ASSISTANTS,
PROVINCIAL/CITY PROSECUTORS AND THEIR ASSISTANTS, STATE
PROSECUTORS ANDPROSECUTING ATTORNEYS OF THE DEPARTMENT
OFJUSTICE.
SUBJECT: HANDLING COMPLAINTS FILED AGAINST PUBLICOFFICERS
AND EMPLOYEES, THE CONDUCT OFPRELIMINARY INVESTIGATION,
PREPARATION OFRESOLUTIONS AND INFORMATIONS AND
PROSECUTION OF CASES BY PROVINCIAL AND CITY PROSECUTORS AND
THEIR ASSISTANTS.
35
x--------------------------------------------------------------------------------------- x
In a recent dialogue between the OFFICE OF THE OMBUDSMAN and the
DEPARTMENT OF JUSTICE, discussion centered around the latest
pronouncement of the SUPREME COURT on the extent to which the
OMBUDSMAN may call upon the government prosecutors for assistance in the
investigation and prosecution of criminal cases cognizable by his office and the
conditions under which he may do so. Also discussed was Republic Act No. 7975
otherwise known as "AN ACT TO STRENGTHEN THE FUNCTIONAL AND
STRUCTURAL ORGANIZATION OF THE SANDIGANBAYAN, AMENDING FOR
THE PURPOSE PRESIDENTIAL DECREE NO. 1606, AS AMENDED" and its
implications on the jurisdiction of the office of the Ombudsman on criminal
offenses committed by public officers and employees.
Concerns were expressed on unnecessary delays that could be caused by
discussions on jurisdiction between the OFFICE OF THE OMBUDSMAN and the
DEPARTMENT OF JUSTICE, and by procedural conflicts in the filing of
complaints against public officers and employees, the conduct of preliminary
investigations, the preparation of resolutions and informations, and the
prosecution of cases by provincial and city prosecutors and their assistants as
DEPUTIZED PROSECUTORS OF THE OMBUDSMAN.
Recognizing the concerns, the OFFICE OF THE OMBUDSMAN and the
DEPARTMENT OF JUSTICE, in a series of consultations, have agreed on the
following guidelines to be observed in the investigation and prosecution of cases
against public officers and employees:
1. Preliminary investigation and prosecution of offenses committed by
public officers and employees IN RELATION TO OFFICE whether
cognizable by the SANDIGANBAYAN or the REGULAR COURTS, and
whether filed with the OFFICE OF THE OMBUDSMAN or with the
OFFICE OF THE PROVINCIAL/CITY PROSECUTOR shall be under the
control and supervision of the office of the OMBUDSMAN.
2. Unless the Ombudsman under its Constitutional mandate finds reason
to believe otherwise, offenses NOT IN RELATION TO OFFICE and
cognizable by the REGULAR COURTS shall be investigated and
prosecuted by the OFFICE OF THE PROVINCIAL/CITY PROSECUTOR,
which shall rule thereon with finality.
3. Preparation of criminal information shall be the responsibility of the
investigating officer who conducted the preliminary investigation.
Resolutions recommending prosecution together with the duly
accomplished criminal informations shall be forwarded to the appropriate
approving authority.

4. Considering that the OFFICE OF THE OMBUDSMAN has jurisdiction
over public officers and employees and for effective monitoring of all
investigations and prosecutions of cases involving public officers and
employees, the OFFICE OF THE PROVINCIAL/CITY PROSECUTOR
shall submit to the OFFICE OF THE OMBUDSMAN a monthly list of
complaints filed with their respective offices against public officers and
employees.
xxxx
A close examination of the circular supports the view of the respondent
Ombudsman that it is just an internal agreement between the Ombudsman and
the DOJ.
Sections 2 and 4, Rule 112 of the Revised Rules on Criminal Procedure on
Preliminary Investigation, effective December 1, 2000, to wit:
SEC. 2. Officers authorized to conduct preliminary investigations –
The following may conduct preliminary investigations:
(a) Provincial or City Prosecutors and their assistants;
(b) Judges of the Municipal Trial Courts and Municipal Circuit Trial
Courts;
(c) National and Regional State Prosecutors; and
(d) Other officers as may be authorized by law.
Their authority to conduct preliminary investigation shall include all crimes
cognizable by the proper court in their respective territorial jurisdictions.
SEC. 4. Resolution of investigating prosecutor and its review. - If the
investigating prosecutor finds cause to hold the respondent for trial, he shall
prepare the resolution and information. He shall certify under oath in the
information that he, or as shown by the record, an authorized officer, has
personally examined the complainant and his witnesses; that there is reasonable
ground to believe that a crime has been committed and that the accused is
probably guilty thereof; that the accused was informed of the complaint and of
the evidence submitted against him; and that he was given an opportunity to
submit controverting evidence. Otherwise, he shall recommend the dismissal of
the complaint.
36
Within five (5) days from his resolution, he shall forward the record of the case to
the provincial or city prosecutor or chief state prosecutor, or to the Ombudsman
or his deputy in cases of offenses cognizable by the Sandiganbayan in the
exercise of its original jurisdiction. They shall act on the resolution within ten (10)
days from their receipt thereof and shall immediately inform the parties of such
action.
No complaint or information may be filed or dismissed by an investigating
prosecutor without the prior written authority or approval of the provincial or city
prosecutor or chief state prosecutor or the Ombudsman or his deputy.
Where the investigating prosecutor recommends the dismissal of the complaint
but his recommendation is disapproved by the provincial or city prosecutor or
chief state prosecutor or the Ombudsman or his deputy on the ground that a
probable cause exists, the latter may, by himself file the information against the
respondent, or direct another assistant prosecutor or state prosecutor to do so
without conducting another preliminary investigation.
If upon petition by a proper party under such rules as the Department of Justice
may prescribe or motu proprio, the Secretary of Justice reverses or modifies the
resolution of the provincial or city prosecutor or chief state prosecutor, he shall
direct the prosecutor concerned either to file the corresponding information
without conducting another preliminary investigation, or to dismiss or move for
dismissal of the complaint or information with notice to the parties. The same
Rule shall apply in preliminary investigations conducted by the officers of the
Office of the Ombudsman.
confirm the authority of the DOJ prosecutors to conduct preliminary investigation
of criminal complaints filed with them for offenses cognizable by the proper court
within their respective territorial jurisdictions, including those offenses which
come within the original jurisdiction of the Sandiganbayan; but with the
qualification that in offenses falling within the original jurisdiction of the
Sandiganbayan, the prosecutor shall, after their investigation, transmit the
records and their resolutions to the Ombudsman or his deputy for appropriate
action. Also, the prosecutor cannot dismiss the complaint without the prior written
authority of the Ombudsman or his deputy, nor can the prosecutor file an
Information with the Sandiganbayan without being deputized by, and without
prior written authority of the Ombudsman or his deputy.
xxxx
To reiterate for emphasis, the power to investigate or conduct preliminary
investigation on charges against any public officers or employees may be
exercised by an investigator or by any provincial or city prosecutor or their
assistants, either in their regular capacities or as deputized Ombudsman

prosecutors. The fact that all prosecutors are in effect deputized Ombudsman
prosecutors under the OMB-DOJ circular is a mere superfluity. The DOJ Panel
need not be authorized nor deputized by the Ombudsman to conduct the
preliminary investigation for complaints filed with it because the DOJ’s authority
to act as the principal law agency of the government and investigate the
commission of crimes under the Revised Penal Code is derived from the Revised
Administrative Code which had been held in the Natividad case citation omitted
as not being contrary to the Constitution. Thus, there is not even a need to
delegate the conduct of the preliminary investigation to an agency which has the
jurisdiction to do so in the first place. However, the Ombudsman may assert its
primary jurisdiction at any stage of the investigation. (Emphasis supplied).
In Honasan II, although Senator Gregorio "Gringo" Honasan was a public officer
who was charged with coup d’etat for the occupation of Oakwood on 27 July
2003, the preliminary investigation therefor was conducted by the DOJ. Honasan
questioned the jurisdiction of the DOJ to do so, proferring that it was the
Ombudsman which had jurisdiction since the imputed acts were committed in
relation to his public office. We clarified that the DOJ and the Ombudsman have
concurrent jurisdiction to investigate offenses involving public officers or
employees. Nonetheless, we pointed out that the Ombudsman, in the exercise of
its primary jurisdiction over cases cognizable by the Sandiganbayan, may take
over, at any stage, from any investigating agency of the government, the
investigation of such cases. Plainly, applying that ruling in this case, the
Ombudsman has primary jurisdiction, albeit concurrent with the DOJ, over
Rosa’s complaint, and after choosing to exercise such jurisdiction, need not defer
to the dictates of a respondent in a complaint, such as Alfredo. In other words,
the Ombudsman may exercise jurisdiction to the exclusion of the DOJ.
Third. Alfredo next argues that Rosa had pardoned his concubinage, having
admitted to knowing of his womanizing and yet continuing with their relationship
as demonstrated in Rosa’s annual visits to him in Davao City.
We are not convinced.
Old jurisprudence has held that the cynosure in the question of whether the wife
condoned the concubinage lies in the wife’s "line of conduct under the
assumption that she really believed [her husband] guilty of concubinage:"
Condonation is the forgiveness of a marital offense constituting a ground for legal
separation or, as stated in I Bouver's Law Dictionary, p. 585, condonation is the
‘conditional forgiveness or remission, by a husband or wife of a matrimonial
offense which the latter has committed.’
xxxx
37
A detailed examination of the testimony of the plaintiff-husband, especially those
portions quoted above, clearly shows that there was a condonation on the part of
the husband for the supposed ‘acts of rank infidelity amounting to adultery’
committed by defendant-wife. Admitting for the sake of argument that the
infidelities amounting to adultery were committed by the defendant, a
reconciliation was effected between her and the plaintiff. The act of the latter in
persuading her to come along with him, and the fact that she went with him and
consented to be brought to the house of his cousin Pedro Bugayong and
together they slept there as husband and wife for one day and one night, and the
further fact that in the second night they again slept together in their house
likewise as husband and wife — all these facts have no other meaning in the
opinion of this court than that a reconciliation between them was effected and
that there was a condonation of the wife by the husband. The reconciliation
occurred almost ten months after he came to know of the acts of infidelity
amounting to adultery.
In Shackleton vs. Shackleton, 48 N. J. Eq. 364; 21 Atl. 935, it has been held that
‘condonation is implied from sexual intercourse after knowledge of the other
infidelity. Such acts necessarily implied forgiveness. It is entirely consonant with
reason and justice that if the wife freely consents to sexual intercourse after she
has full knowledge of the husband's guilt, her consent should operate as a
pardon of his wrong.’
In Tiffany’s Domestic and Family Relations, section 107 says:
‘Condonation. Is the forgiveness of a marital offense constituting a ground for
divorce and bars the right to a divorce. But it is on the condition, implied by the
law when not express, that the wrongdoer shall not again commit the offense;
and also that he shall thereafter treat the other spouse with conjugal kindness. A
breach of the condition will revive the original offense as a ground for divorce.
Condonation may be express or implied.’
It has been held in a long line of decisions of the various supreme courts of the
different states of the U. S. that 'a single voluntary act of sexual intercourse by
the innocent spouse after discovery of the offense is ordinarily sufficient to
constitute condonation, especially as against the husband'. (27 Corpus Juris
Secundum, section 61 and cases cited therein).
In the lights of the facts testified to by the plaintiff-husband, of the legal provisions
above quoted, and of the various decisions above-cited, the inevitable conclusion
is that the present action is untenable.
Although no acts of infidelity might have been committed by the wife, We agree
with the trial judge that the conduct of the plaintiff-husband above narrated
despite his belief that his wife was unfaithful, deprives him, as alleged the

offended spouse, of any action for legal separation against the offending wife,
because his said conduct comes within the restriction of Article 100 of the Civil
Code.
The only general rule in American jurisprudence is that any cohabitation with the
guilty party, after the commission of the offense, and with the knowledge or belief
on the part of the injured party of its commission, will amount to conclusive
evidence of condonation; but this presumption may be rebutted by evidence (60
L. J. Prob. 73).18
Although the foregoing speaks of condonation of concubinage as a ground for
legal separation, the holding therein applies with equal force in a prosecution for
concubinage as a felony. Indeed, Rosa’s admission was that she believed her
husband had stopped womanizing, not that she had knowledge of Alfredo’s
specific acts of concubinage with Sia and de Leon, specifically keeping them in
the conjugal dwelling. This admission set against the specific acts of
concubinage listed in Article 33419 of the Revised Penal Code does not amount
to condonation. Their continued cohabitation as husband and wife construed
from Rosa’s annual visits to Davao City is not acquiescence to Alfredo’s relations
with his concubines. On that score, we have succinctly held:
We can find nothing in the record which can be construed as pardon or
condonation. It is true that the offended party has to a considerable extent been
patient with her husband's shortcomings, but that seems to have been due to his
promises of improvement; nowhere does it appear that she has consented to her
husband's immorality or that she has acquiesced in his relations with his
concubine.20
Fourth. Alfredo next grasps at Liza S. Diambangan’s affidavit of recantation to
eliminate his probable culpability for concubinage.
Again, we are not swayed by Alfredo’s asseverations.
We have generally looked with disfavor upon retraction of testimonies previously
given in court. Affidavits of recantation are unreliable and deserve scant
consideration. The asserted motives for the repudiation are commonly held
suspect, and the veracity of the statements made in the affidavit of repudiation
are frequently and deservedly subject to serious doubt.21
In Firaza v. People, we intoned:
Merely because a witness says that what he had declared is false and that what
he now says is true, is not sufficient ground for concluding that the previous
testimony is false. No such reasoning has ever crystallized into a rule of
credibility. The rule is that a witness may be impeached by a previous
38
contradictory statement x x x not that a previous statement is presumed to be
false merely because a witness now says that the same is not true. The
jurisprudence of this Court has always been otherwise, i.e., that contradictory
testimony given subsequently does not necessarily discredit the previous
testimony if the contradictions are satisfactorily explained. [Citations omitted].
Indeed, it is a dangerous rule to set aside a testimony which has been solemnly
taken before a court of justice in an open and free trial and under conditions
precisely sought to discourage and forestall falsehood simply because one of the
witnesses who had given the testimony later on changed his mind. Such a rule
will make solemn trials a mockery and place the investigation of the truth at the
mercy of unscrupulous witnesses. Unless there be special circumstances which,
coupled with the retraction of the witness, really raise doubt as to the truth of the
testimony given by him at the trial and accepted by the trial judge, and only if
such testimony is essential to the judgment of conviction, or its elimination would
lead the trial judge to a different conclusion, an acquittal of the accused based on
such a retraction would not be justified.22
In this case, Liza S. Diambangan’s testimony merely corroborates the still
standing story of Robert and Melissa Diambangan, the other helper in the
Busuego household. Clearly, the two’s consistent story may still be the basis of
the Ombudsman’s finding of a prima facie case of concubinage against Alfredo
and Sia.
Finally. Despite his vigorous arguments, Alfredo claims that there is simply no
basis for indicting him and Sia for concubinage.
Article 334 of the Revised Penal Code lists three (3) specific acts of concubinage
by a husband:
(1) keeping a mistress in the conjugal dwelling; (2) sexual intercourse, under
scandalous circumstances, with a woman who is not his wife; and (3) cohabiting
with a woman who is not his wife in any other place.
The Ombudsman found a prima facie case against Alfredo and Sia based on the
testimony of Robert, Melissa S. Diambangan and Liza S. Diambangan that
Alfredo had kept Sia in the conjugal dwelling where Sia even stayed at the
conjugal room. We completely agree with the Ombudsman’s disquisition:
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
the very reason why Robert did not inform his mother about his father’s
infidelities during the time when his father was keeping his mistress at the
conjugal dwelling. A son would never turn against his father by fabricating such a
serious story which will cause his home to crumble, if such is not true. His natural

instinct is to protect his home, which he did when he kept silent for a long time.
What broke the camel’s back was the abusive treatment he allegedly suffered
and the thought that things would change for the better if his mom would
intervene.
The story of Robert in his Affidavit was reinforced by the two house helpers
Melissa S. Diambangan and Liza S. Diambangan, who were employed by the
family. Melissa was with the Busuego family in their conjugal home in 1997. She
left the family in 2005 but returned in 2006.1âwphi1 Liza started working with the
family in 2002. Melissa revealed that it was Emy Sia who recruited her to work
with the Busuego family. They both attested to the fact that Alfredo and Emy Sia
slept together in the bedroom of Alfredo but Emy Sia would sleep in the maid’s
quarter when Rosa and Alfred came home for a visit in 1997. They recalled that
Emy Sia calls Alfredo "papa". They narrated that Emy Sia would even confide to
them some private matters relating to her sexual proclivities with Alfredo.23
We further note that the presence of Sia at the Busuego household and her
interim residence thereat was not disputed nor explained. Alfredo just cavalierly
declares that Sia may have stayed in the conjugal dwelling, but never as his
mistress, and Sia supposedly slept in the maids’ quarters.
While such a claim is not necessarily preposterous we hold that such is a matter
of defense which Alfredo should raise in court given that Rosa s complaint and its
accompanying affidavits have created a prima facie case for Concubinage
against Alfredo and Sia.
WHEREFORE the petition is DISMISSED The Resolutions of the Ombudsman
dated 17 April 2009 and 11 October 2010 are AFFIRMED.
SO ORDERED.
G.R. No. 199082 July 23, 2013
JOSE MIGUEL T. ARROYO, Petitioner,
vs.
DEPARTMENT OF JUSTICE; COMMISSION ON ELECTIONS; HON. LEILA
DE LIMA, in her capacity as Secretary of the Department of Justice; HON.
SIXTO BRILLANTES, JR., in his capacity as Chairperson of the
Commission on Elections; and the JOINT DOJ-COMELEC PRELIMINARY
INVESTIGATION COMMITTEE and FACT-FINDING TEAM, Respondents.
x-----------------------x
G.R. No. 199085
39
BENJAMIN S. ABALOS, SR., Petitioner,
vs.
HON. LEILA DE LIMA, in capacity as Secretary of Justice; HON. SIXTO S.
BRILLANTES, JR., in his capacity as COMELEC Chairperson; RENE V.
SARMIENTO, LUCENITO N. TAGLE, ARMANDO V. VELASCO, ELIAS R.
YUSOPH, CHRISTIAN ROBERT S. LIM AND AUGUSTO C. LAGMAN, in their
capacity as COMELEC COMMISSIONERS; CLARO A. ARELLANO, GEORGE
C. DEE, JACINTO G. ANG, ROMEO B. FORTES AND MICHAEL D.
VILLARET, in their capacity as CHAIRPERSON AND MEMBERS,
RESPECTIVELY, OF THE JOINT DOJ-COMELEC PRELIMINARY
INVESTIGATION COMMITTEE ON THE 2004 AND 2007 ELECTION
FRAUD, Respondents.
x-----------------------x
G.R. No. 199118
GLORIA MACAPAGAL-ARROYO, Petitioner,
vs.
COMMISSION ON ELECTIONS, represented by Chairperson Sixto S.
Brillantes, Jr., DEPARTMENT OF JUSTICE, represented by Secretary Leila
M. De Lima, JOINT DOJ-COMELEC PRELIMINARY INVESTIGATION
COMMITTEE, SENATOR AQUILINO M. PIMENTEL III, and DOJ-COMELEC
FACT FINDING TEAM, Respondents.
RESOLUTION
PERALTA, J.:
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
(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
petitions against respondents Commission on Elections (Comelec), the
Department of Justice (DOJ), Senator Aquilino M. Pimentel III (Senator
Pimentel), Joint DOJ-Comelec Preliminary Investigation Committee (Joint
Committee) and DOJ-Comelec Fact-Finding Team (Fact-Finding Team), et al.
For a better perspective, we briefly state the relevant factual and procedural
antecedents as found by the Court in the assailed decision, to wit:
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
as Joint Panel) on the 2004 and 2007 National Elections electoral fraud and
manipulation cases. The Joint Committee was mandated to conduct the

necessary preliminary investigation on the basis of the evidence gathered and
the charges recommended by the Fact-Finding Team. The Fact-Finding Team,
on the other hand, was created for the purpose of gathering real, documentary,
and testimonial evidence which can be utilized in the preliminary investigation to
be conducted by the Joint Committee. Pursuant to Section 74 of the Joint Order,
on August 23, 2011, the Joint Committee promulgated its Rules of Procedure.
In its Initial Report5 dated October 20, 2011, the Fact-Finding Team concluded
that manipulation of the results in the May 14, 2007 senatorial elections in the
provinces of North and South Cotabato, and Maguindanao was indeed
perpetrated.6 The Fact-Finding Team recommended, among others, that
petitioner Benjamin S. Abalos, Sr. (Abalos) be subjected to preliminary
investigation for electoral sabotage for conspiring to manipulate the election
results in North and South Cotabato; that GMA and Abalos be subjected to
another preliminary investigation for manipulating the election results in
Maguindanao;7 and, that Mike Arroyo be subjected to further investigation.8 The
case was docketed as DOJ-Comelec Case No. 001-2011.
Meanwhile, on October 17, 2011, Senator Pimentel filed a ComplaintAffidavit9 for
Electoral Sabotage against petitioners and twelve others, and several John Does
and Jane Does. The case was docketed as DOJ-Comelec Case No. 002-2011.
On October 24, 2011, the Joint Committee issued two subpoenas against
petitioners in DOJ-Comelec Case Nos. 001-2011 and 002-2011.10 On November
3, 2011, petitioners, through counsel, appeared before the Joint Committee 11 and
respondents therein were ordered to submit their Counter-Affidavits by
November 14, 2011.12
Thereafter, petitioners filed before the Court separate Petitions for Certiorari and
Prohibition with Prayer for the Issuance of a Temporary Restraining Order (TRO)
and/or Writ of Preliminary Injunction assailing the creation of the Joint
Panel.13 The petitions were eventually consolidated.
On November 14, 2011, Mike Arroyo filed a Motion to Defer
Proceedings14 before the Joint Committee, in view of the pendency of his petition
before the Court. On the same day, GMA filed before the Joint Committee an
Omnibus Motion Ad Cautelam 15 to require Senator Pimentel to furnish her with
documents referred to in his complaint-affidavit and for the production of election
documents as basis for the charge of electoral sabotage. GMA prayed that she
be allowed to file her counter-affidavit within ten (10) days from receipt of the
requested documents.16 Petitioner Abalos, for his part, filed a Motion to Suspend
Proceedings (Ex Abundante Ad Cautelam),17 in view of the pendency of his
petition brought before the Court.
40
In an Order18 dated November 15, 2011, the Joint Committee denied the
aforesaid motions of petitioners. GMA, subsequently, filed a motion for
reconsideration.19
On November 16, 2011, the Joint Committee promulgated a Joint Resolution
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
subject to modifications. The Comelec resolved, among others, that an
information for electoral sabotage be filed against GMA and Abalos, while the
charges against Mike Arroyo be dismissed for insufficiency of evidence.
On even date, pursuant to the above Resolution, the Comelec’s Law Department
filed with the Regional Trial Court (RTC), Pasay City, an Information against
petitioner GMA, Governor Andal Ampatuan, Sr., and Atty. Lintang H. Bedol, for
violation of Section 42(b)(3) of Republic Act (RA) No. 9369, amending Section 27
(b) of RA 6646, docketed as Criminal Case No. RPSY-11-04432-CR.22 The case
was raffled to Branch 112 and the corresponding Warrant of Arrest was issued
which was served on GMA on the same day.23
On November 18, 2011, GMA filed with the RTC an Urgent Omnibus Motion Ad
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
departure order, and to proceed to judicial determination of probable cause. She,
likewise, filed with the Comelec a Motion to Vacate Ad Cautelam 25 praying that
its Resolution be vacated for being null and void. The RTC, nonetheless, issued
a Warrant for her arrest which was duly served. GMA was later arraigned and
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
present, she is again on hospital arrest by virtue of a warrant issued in another
criminal case.
On September 18, 2012, the Court rendered the assailed Decision, the
dispositive portion of which reads:
WHEREFORE, premises considered, the petitions and supplemental petitions
are DISMISSED. Comelec Resolution No. 9266 dated August 2, 2011, Joint
Order No. 001-2011 dated August 15, 2011, and the Fact- Finding Team’s Initial
Report dated October 20, 2011, are declared VALID. However, the Rules of
Procedure on the Conduct of Preliminary Investigation on the Alleged Election
Fraud in the 2004 and 2007 National Elections is declared INEFFECTIVE for lack
of publication.
In view of the constitutionality of the Joint Panel and the proceedings having
been conducted in accordance with Rule 112 of the Rules on Criminal Procedure

and Rule 34 of the Comelec Rules of Procedure, the conduct of the preliminary
investigation is hereby declared VALID.
Let the proceedings in the Regional Trial Court of Pasay City, Branch 112, where
the criminal cases for electoral sabotage against petitioners GMA and Abalos are
pending, proceed with dispatch.
SO ORDERED.26
Hence, these motions for reconsideration.
Issues
Mike Arroyo reiterates his arguments on the independence of the Comelec as
basis in nullifying the subject joint DOJ-Comelec resolutions. Echoing Justice
Arturo Brion in his Dissenting and Concurring Opinion, 27 Mike Arroyo insists that
the creation of the Joint Panel undermines the decisional independence of the
Comelec.28
Mike Arroyo also maintains that the DOJ should conduct preliminary investigation
only when deputized by the Comelec but not exercise concurrent
jurisdiction.29 Finally, as has been repeatedly pointed out in his earlier pleadings
before the Court, Mike Arroyo claims that the proceedings involving the electoral
sabotage case were rushed because of pressures from the executive branch of
the government.30
For her part, GMA claims that in availing of the procedural remedies available,
she merely exercised her earnest efforts to defend herself and should not have
been deemed by the Court as acts which purportedly tend to demonstrate that
she either waived or forfeited her right to submit her counter-affidavit and
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
which to submit her counter-affidavit and countervailing evidence.32 GMA
highlights that the subject Comelec Resolution creating the Joint Panel is
different from the previous Comelec resolutions requesting the DOJ Secretary to
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
maintains that it is the Comelec and not the Joint Committee that has the
primary, if not exclusive, authority to conduct preliminary investigation of election
cases.33
In their Consolidated Comment,34 respondents defend the creation of the Joint
Committee and argue that it does not undermine the independence of the
Comelec as a constitutional body because it is still the Comelec that ultimately
determines probable cause.35 As to the conduct of the preliminary investigation,
41
respondents maintain that no rights were violated as GMA was afforded the
opportunity to defend herself, submit her counter-affidavit and other
countervailing evidence.36 They, thus, consider GMA’s claim of availing of the
remedial measures as "delaying tactics" employed to thwart the investigation of
charges against her by the Joint Committee.37
The Court’s Ruling
Clearly from the above discussion, movants raise issues that have been
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
disturb the Court’s conclusions.
At any rate, if only to address the motions of the movants herein and to put an
end to the questions attached to the creation of the Joint Panel and,
consequently, to the performance of their assigned tasks, we hereby reiterate our
findings and conclusions made in the assailed decision.
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
violations of election laws. In Barangay Association for National Advancement
and Transparency (BANAT) Party-List v. Commission on Elections,38 the
constitutionality of Section 4339 of RA 936940 had already been raised by
petitioners therein and addressed by the Court. While recognizing the Comelec’s
exclusive power to investigate and prosecute cases under Batas Pambansa
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
legislative enactment that can very well be amended by Section 43 of RA 9369.
Therefore, under the present law, the Comelec and other prosecuting arms of the
government, such as the DOJ, now exercise concurrent jurisdiction in the
investigation and prosecution of election offenses.
Indeed, as aptly pointed out by GMA, there is a discrepancy between Comelec
Resolution No. 346741 dated January 12, 2001 and Joint Order No. 001-2011,
dated August 15, 2011, creating and constituting a Joint Committee and Fact-
Finding Team on the 2004 and 2007 National Elections electoral fraud and
manipulation cases. However, GMA seemed to miss the date when these two
resolutions were promulgated by the Comelec. It is noteworthy that Comelec
Resolution No. 3467 was issued when Section 265 of the Omnibus Election
Code was still effective, while Joint Order No. 001-2011 as well as Comelec
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
of RA 9369, giving the Comelec and other prosecuting arms of the government
the concurrent jurisdiction to investigate and prosecute election offenses. This
amendment paved the way for the discrepancy. In Comelec Resolution No. 3467,

the Comelec maintained the continuing deputation of prosecutors and the
Comelec Law Department was tasked to supervise the investigatory and
prosecutory functions of the task force pursuant to the mandate of the Omnibus
Election Code. However, with the amendment, the Comelec likewise changed
the tenor of the later resolutions to reflect the new mandate of the Comelec and
other prosecuting arms of the government now exercising concurrent jurisdiction.
Thus, the Comelec Law Department and the Office of the Chief State Prosecutor
of the DOJ were tasked to jointly supervise the investigatory and prosecutory
functions of the Comelec-DOJ Task Force. Considering, therefore, that the later
resolutions, including Joint Order No. 001-2011, were issued pursuant to Section
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
maintain the previous role of other prosecuting arms of the government as mere
deputies despite the amendment would mean challenging Section 43 of RA 9369
anew which has already been settled in Banat.
To be sure, the creation of a Joint Committee is not repugnant to the concept of
"concurrent jurisdiction" authorized by the amendatory law. As we explained in
our September 18, 2012 Decision:
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
prohibition on simultaneous exercise of power between two coordinate bodies.
What is prohibited is the situation where one files a complaint against a
respondent initially with one office (such as the Comelec) for preliminary
investigation which was immediately acted upon by said office and the re-filing of
substantially the same complaint with another office (such as the DOJ). The
subsequent assumption of jurisdiction by the second office over the cases filed
will not be allowed. Indeed, it is a settled rule that the body or agency that first
takes cognizance of the complaint shall exercise jurisdiction to the exclusion of
the others.
xxxx
None of these problems would likely arise in the present case. The Comelec and
the DOJ themselves agreed that they would exercise their concurrent jurisdiction
jointly. Although the preliminary investigation was conducted on the basis of two
complaints – the initial report of the Fact-Finding Team and the complaint of
Senator Pimentel – both complaints were filed with the Joint Committee.
Consequently, the complaints were filed with and the preliminary investigation
was conducted by only one investigative body. Thus, we find no reason to
disallow the exercise of concurrent jurisdiction jointly by those given such
authority. This is especially true in this case given the magnitude of the crimes
allegedly committed by petitioners. The joint preliminary investigation also serves
to maximize the resources and manpower of both the Comelec and the DOJ for
the prompt disposition of the cases.44
42
Notwithstanding the grant of concurrent jurisdiction, the Comelec and the DOJ
nevertheless included a provision in the assailed Joint Order whereby the
resolutions of the Joint Committee finding probable cause for election offenses
shall still be approved by the Comelec in accordance with the Comelec Rules of
Procedure.45 With more reason, therefore, that we cannot consider the creation
of the Joint Committee as an abdication of the Comelec’s independence
enshrined in the 1987 Constitution.
Finally, we focus on the validity of the preliminary investigation conducted by the
Joint Committee.
The procedure in conducting the preliminary investigation is governed by Rule
112 of the Revised Rules on Criminal Procedure and Rule 34 of the Comelec
Rules of Procedure. Under both Rules,46 the respondent shall submit his counter-
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
and supporting affidavits and documents.47Also in both Rules, respondent is
given the right to examine evidence, but such right of examination is limited only
to the documents or evidence submitted by complainants which she may not
have been furnished and to copy them at her expense. 48
As to the alleged denial of GMA’s right to examine documents, we maintain that
no right was violated in view of the limitation of such right as set forth above. We
reiterate our explanation in the assailed decision, to wit:
While it is true that Senator Pimentel referred to certain election documents
which served as bases in the allegations of significant findings specific to the
protested municipalities involved, there were no annexes or attachments to the
complaint filed. As stated in the Joint Committee’s Order dated November 15,
2011 denying GMA’s Omnibus Motion Ad Cautelam, Senator Pimentel was
ordered to furnish petitioners with all the supporting evidence. However, Senator
Pimentel manifested that he was adopting all the affidavits attached to the Fact-
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
examine as guaranteed by the Comelec Rules of Procedure and the Rules on
Criminal Procedure. Those were the only documents submitted by the
complainants to the Committee. If there are other documents that were referred
to in Senator Pimentel’s complaint but were not submitted to the Joint
Committee, the latter considered those documents unnecessary at that point
(without foreclosing the relevance of other evidence that may later be presented
during the trial) as the evidence submitted before it were considered adequate to
find probable cause against her. x x x491âwphi1
Neither was GMA’s right violated when her motion for extension of time within
which to submit her counter-affidavit and countervailing evidence was

consequently denied. The Rules use the term "shall" in requiring the respondent
to submit counter-affidavit and other countervailing evidence within ten (10) days
from receipt of the subpoena. It is settled that the use of the word "shall" which is
a word of command, underscores the mandatory character of the rule.50 As in
any other rule, though, liberality in the application may be allowed provided that
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
prosecutors allow or grant motions or requests for extension of time to submit
counter-affidavits when the interest of justice demands that respondent be given
reasonable time or sufficient opportunity to engage the services of counsel;
examine voluminous records submitted in support of the complaint or undertake
research on novel, complicated or technical questions or issues of law and facts
of the case.51
In this case, GMA claimed that she could not submit her counteraffidavit within
the prescribed period because she needed to examine documents mentioned in
Senator Pimentel’s complaint-affidavit. It appeared, however, that said
documents were not submitted to the Joint Committee and the only supporting
documents available were those attached to the Initial Report of the Fact-Finding
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
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
documents. We cannot, therefore, fault the Joint Committee in consequently
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
required to follow.
And as we held in the assailed decision:
There might have been overzealousness on the part of the Joint Committee in
terminating the investigation, endorsing the Joint Resolution to the Comelec for
approval, and in filing the information in court.
However, speed in the conduct of proceedings by a judicial or quasijudicial officer
cannot per se be instantly attributed to an injudicious performance of functions.
The orderly administration of justice remains the paramount consideration with
particular regard to the peculiar circumstances of each case. To be sure,
petitioners were given the opportunity to present countervailing evidence. Instead
of complying with the Joint Committee’s directive, several motions were filed but
were denied by the Joint Committee. Consequently, petitioners’ right to submit
counter-affidavit and countervailing evidence was forfeited. Taking into account
the constitutional right to speedy disposition of cases and following the
procedures set forth in the Rules on Criminal Procedure and the Comelec Rules
of Procedure, the Joint Committee finally reached its conclusion and referred the
43
case to the Comelec. The latter, in turn, performed its task and filed the
information in court. Indeed, petitioners were given the opportunity to be heard.
They even actively participated in the proceedings and in fact filed several
motions before the Joint Committee. Consistent with the constitutional mandate
of speedy disposition of cases, unnecessary delays should be avoided. 52
Finally, in our assailed decision, we already took judicial notice that not only did
GMA enter a plea of "not guilty," she also filed a Motion for Bail and after due
hearing, it was granted. Apparently, she benefited from the RTC Order giving her
temporary liberty. In filing the motion before the RTC and actively participating
therein, she has chosen to seek judicial remedy before the RTC where the
electoral sabotage case is pending instead of the executive remedy of going
back to the Joint Committee for the submission of her counter-affidavit and
countervailing evidence. Besides, as thoroughly discussed in the assailed
decision, the irregularity or even the absence of preliminary investigation does
not impair the validity of the information filed against her.
WHEREFORE, premises considered, the Motions for Reconsideration are
DENIED for lack of merit.
SO ORDERED.
DIOSDADO M. PERALTA
Associate Justice
G.R. No. 176033, March 11, 2015
FELILIBETH AGUINALDO AND BENJAMIN
PEREZ, Petitioners, v. REYNALDO P. VENTUS AND JOJO B.
JOSON, Respondent.
DECISION
PERALTA, J.:
Before the Court is a Petition for Review on Certiorari under Rule 45 of the Rules
of Court, seeking to nullify and set aside the Decision1 dated August 11, 2006 of
the Court of Appeals (CA) and its December 4, 2006 Resolution2 in CA-G.R. SP
No. 92094. The CA dismissed for lack of merit the Petition for Certiorari under
Rule 65 filed by petitioners Felilibeth Aguinaldo and Benjamin Perez, praying for
the following reliefs: (1) the issuance of a Writ of Preliminary Injunction and/or
Temporary Restraining Order to enjoin the public respondent Judge Felixberto T.
Olalia from implementing the Orders dated May 16, 2005 and August 23, 2005;
(2) the issuance of a Writ ofCertiorari to annul the said Orders, and (3) the
dismissal of the estafa case against them for having been prematurely filed and

for lack of cause of action.
The procedural antecedents are as follows:
On December 2, 2002, private respondents Reynaldo P. Ventus and Jojo B.
Joson filed a Complaint-Affidavit3 for estafa against petitioners Aguinaldo and
Perez before the Office of the City Prosecutor (OCP) of Manila. Claiming to be
business partners in financing casino players, private respondents alleged that
sometime in March and April 2002, petitioners connived in convincing them to
part with their Two Hundred Sixty Thousand (P260,000.00) Pesos in
consideration of a pledge of two motor vehicles which the latter had
misrepresented to be owned by Aguinaldo, but turned out to be owned by one
Levita De Castro, manager/operator of LEDC Rent-A-Car.
On January 15, 2003, Perez filed his Counter-Affidavit,4 denying the accusation
against him, and claiming that his only participation in the transaction between
private respondents and Aguinaldo was limited to having initially introduced them
to each other.
On January 22, 2003, private respondents filed their Reply-Affidavit,5 asserting
that Perez was the one who showed them photocopies of the registration paper
of the motor vehicles in the name of Aguinaldo, as well as the one who
personally took them out from the rent-a-car company.
On January 29, 2003, Perez filed his Rejoinder-Affidavit,6 stating that neither
original nor photocopies of the registration was required by private respondents
to be submitted to them because from the very start, they were informed by
Aguinaldo that she merely leased the vehicles from LEDC Rent-a-Car.
On February 25, 2003, Assistant City Prosecutor (ACP) Renato F. Gonzaga
issued a Resolution7recommending both petitioners to be indicted in court for
estafa under Article 315, paragraph (2) of the Revised Penal Code (RPC). He
also noted that Aguinaldo failed to appear and to submit any controverting
evidence despite the subpoena.
On July 16, 2003, an Information8 (I.S. No. 02L-51569) charging petitioners with
the crime of estafa under Article 315, paragraph 2 (a) of the RPC was filed with
the Regional Trial Court of Manila. Docketed as Criminal Case No. 03-216182,
entitled “People of the Philippines v. Felilibeth Aguinaldo and Benjamin Perez,”
the case was raffled to the public respondent.
On July 31, 2003, Perez was arrested, so he filed an Urgent Motion for
Reduction of Bail to be Posted in Cash, which the public respondent granted in
an Order of even date.9
On the same day, petitioners filed through counsel a Very Urgent Motion to
44
Recall or Quash Warrants of Arrest,10 alleging that the Resolution dated February
25, 2003 has not yet attained finality, and that they intended to file a motion for
reconsideration.
On August 4, 2003, petitioners jointly filed with the OCP of Manila their “Motion
for Reconsideration and Motion for the Withdrawal of the Information Prematurely
Filed With the Regional Trial Court, Branch 8, City of Manila.”11 Citing the
Counter-Affidavit and Rejoinder-Affidavit of Perez, Aguinaldo asserted, among
others, that no deceit or false pretenses was committed because private
respondents were fully aware that she does not own the pledged motor vehicles.
On August 6, 2003, the public respondent issued an Order 12 granting the motion
for withdrawal of information, and directing the recall of the arrest warrant only
insofar as Aguinaldo was concerned, pending resolution of her motion for
reconsideration with the OCP.
On August 9, 2003, petitioners filed an Urgent Motion for Cancellation of
Arraignment, pending resolution of their motion for reconsideration filed with the
OCP of Manila. Upon the prosecution's motion,13 the public respondent ordered
the proceedings to be deferred until the resolution of petitioners' motion for
reconsideration.14
On December 23, 2003, the public respondent ordered the case archived
pending resolution of petitioners' motion for reconsideration with the OCP of
Manila.15
On January 16, 2004, the OCP of Manila, through ACP Antonio M. Israel, filed a
Motion to Set Case for Trial,16 considering that petitioners' motions for
reconsideration and for withdrawal of the information have already been denied
for lack of merit.
On February 27, 2004, petitioners filed with the Department of Justice (DOJ) a
petition for review17 in I.S. No. 02L-51569 for estafa, entitled “Benjamin Perez
and Felilibeth Aguinaldo v. Reynaldo P. Ventus and Jojo B. Joson.”
Acting on the prosecution's recommendation for the denial of petitioners' motions
for reconsideration and withdrawal of the information, and its motion to set the
case for trial, the public respondent issued an Order18 dated March 15, 2004
directing the issuance of a warrant of arrest against Aguinaldo and the setting of
the case for arraignment.
On March 26, 2004, petitioners filed an Urgent Motion to Cancel Arraignment and
Suspend Further Proceedings,19 until their petition for review before the DOJ is
resolved with finality. Petitioners reiterated the same prayer in their Urgent
Motion for Reconsideration20 of the Order dated March 15, 2004.

On April 16, 2004, the public respondent granted petitioners' urgent motion to
cancel arraignment and suspend proceedings, and motion for reconsideration. 21
On June 23, 2004, Levita De Castro, through the Law Firm of Lapeña and
Associates, filed a Motion to Reinstate Case and to Issue Warrant of Arrest.22 De
Castro alleged that she was the private complainant in the estafa case that had
been ordered archived. Petitioners filed an Opposition with Motion to
Expunge,23 alleging that De Castro is not a party to the said case, which is in
active file, awaiting the resolution of their petition for review before the DOJ.
On October 15, 2004, De Castro filed a Manifestation24 informing the public
respondent that the DOJ had already promulgated a Resolution dated
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
On May 16, 2005, the public respondent issued an Order granting the Motion to
Reinstate Case and to Issue Warrant of Arrest, thus:
Pending with this Court are (1) Motion to Reinstate Case and to Issue Warrant of
Arrest against accused Aguinaldo filed by private prosecutor with conformity of
the public prosecutor. x x x
It appears from the records that:
(1) the warrant of arrest issued against accused Aguinaldo was recalled pending
resolution of the Petition for Review filed with the DOJ; x x x
(2) the Petition for Review was subsequently dismissed x x x
(3) accused Aguinaldo has not yet posted bail bond.
In view of the foregoing, (the) Motion to Reinstate Case and to Issue Warrant of
Arrest is GRANTED. Let this case be REINSTATED and let warrant of arrest be
issued against accused Aguinaldo.
xxxx
SO ORDERED.26
On May 30, 2005, petitioners filed a Motion for Reconsideration with Motion to
Quash Warrant of Arrest.27
On August 23, 2005, the public respondent issued an Order denying petitioners'
Motion for Reconsideration with Motion to Quash Warrant of Arrest, and setting
petitioners' arraignment, as the Revised Rules on Criminal Procedure (or Rules
of Court) allows only a 60-day period of suspension of arraignment.
Citing Crespo v. Mogul,28 he also ruled that the issuance of the warrant of arrest
is best left to the discretion of the trial court. He also noted that records do not
45
show that the DOJ has resolved the petition for review, although photocopies
were presented by De Castro.
Aggrieved, petitioners filed with the CA a Petition for Certiorari under Rule 65 of
the Rules of Court, attributing grave abuse of discretion amounting to lack or
excess of jurisdiction on the part of the public respondent in issuing the Orders
dated May 16, 2005 and August 23, 2005. On August 11, 2006, the CA
dismissed the petition for lack of merit. Petitioners filed a motion for
reconsideration, but the CA denied it in a Resolution29 dated December 4, 2006.
Hence, this instant petition for review on certiorari.
Petitioners raise the following issues:
I.
THE HONORABLE COURT OF APPEALS FAILED TO APPRECIATE THAT
THE MOTION TO REINSTATE THE CASE AND ISSUE A WARRANT OF
ARREST WAS FILED BY ONE LEVITA DE CASTRO WHO IS NOT A PARTY
TO CRIMINAL CASE NO. 03-21[6]182.
II.
A PROCEDURAL TECHINICALITY THAT THE SUSPENSION ALLOWED FOR
ARRAIGNMENT IS ALREADY BEYOND THE 60-DAY PERIOD MAY BE
RELAXED IN THE INTEREST OF AN ORDERLY AND SPEEDY
ADMINISTRATION OF JUSTICE.
III.
THE PRELIMINARY INVESTIGATION ON THE I.S. NO. 02L-51569 (CRIMINAL
CASE NO. 03-21[6]182) BY THE OFFICE OF THE CITY PROSECUTOR OF
MANILA HAS NOT YET BEEN COMPLETED.30
On the first issue, petitioners argue that the public respondent erred in issuing
the Order dated May 16, 2005 reinstating the case and issuing an arrest warrant
against Aguinaldo. They point out that the Motion to Reinstate the Case and to
Issue a Warrant of Arrest against Aguinaldo was filed by De Castro who is not a
party in Criminal Case No. 03-216182, entitled “People of the Philippines v.
Felilibeth Aguinaldo and Benjamin Perez,” instead of private complainants
Reynaldo P. Ventus and Jojo B. Joson. They also assert that said motion was
erroneously granted based on the purported denial of their petition for review by
the DOJ, despite a Certification showing that their actual petition in I.S. Number
02L-51569, entitled “Reynaldo Ventus, et al. v. Felilibeth Aguinaldo,” has not yet
been resolved and is still pending with the DOJ.
On the second issue, petitioners argue that the provision of Section 11, Rule 116

of the Rules of Court limiting the suspension for arraignment to only sixty (60)
days is merely directory; thus, it cannot deprive petitioners of their procedural
right to due process, as their petition for review has not yet been resolved by the
DOJ.
On the third issue, petitioners take exception that even before they could receive
a copy of the DOJ resolution denying their petition for review, and thus move for
its reconsideration, the Information in Criminal Case No. 03-216182 had already
been filed with the RTC on July 16, 2003. They contend that such precipitate
filing of the Information and issuance of a warrant of arrest put petitioners at the
risk of incarceration without the preliminary investigation having been completed
because they were not afforded their right to file a motion for reconsideration of
the DOJ resolution. In support of their contention, they raise the following
arguments: that the right to preliminary investigation is a substantive, not merely
a procedural right; that an Information filed without affording the respondent his
right to file a motion for reconsideration of an adverse resolution, is fatally
premature; and, that a denial of a complete preliminary investigation deprives the
accused of the full measure of his right to due process and infringes on his
constitutional right to liberty.
The petition is denied for lack of merit.
On the first issue, petitioners are correct in pointing out that the Motion to
Reinstate the Case and Issue a Warrant of Arrest31 was filed by one Levita De
Castro who is not a party to Criminal Case No. 03-216182. Records show that
De Castro is not even a private complainant, but a mere witness for being the
owner of the vehicles allegedly used by petitioners in defrauding and convincing
private respondents to part with their P260,000.00. Thus, the public respondent
should have granted petitioners' motion to expunge, and treated De Castro's
motion as a mere scrap of paper with no legal effect, as it was filed by one who is
not a party to that case.
Petitioners are also correct in noting that De Castro's motion was granted based
on the purported dismissal of their petition for review with the DOJ. In reinstating
the case and issuing the arrest warrant against Aguinaldo, the public respondent
erroneously relied on the DOJ Resolution dated September 6, 2004 dismissing
the petition for review in a different case, i.e., I.S. No. 02G-29349 & 02G-28820,
entitled “Levita De Castro v. Felilibeth Aguinaldo, for two (2) counts of estafa.” As
correctly noted by petitioners, however, their petition for review with the DOJ is
still pending resolution. In particular, Assistant Chief State Prosecutor Miguel F.
Guido, Jr. certified that based on available records of the Office of the Chief State
Prosecutor, their petition for review filed in I.S. Number 02L-51569, entitled
“Reynaldo Ventus, et al. v. Felilibeth Aguinaldo” for estafa, is still pending
resolution as of May 27, 2005.32 It bears stressing that their petition stemmed
from Criminal Case No. 03-216812, entitled “People of the Philippines v.
Felilibeth Aguinaldo and Benjamin Perez” wherein the public respondent issued
46
the interlocutory orders assailed before the CA, and now before the Court.
On the second issue, the Court disagrees with petitioners' contention that the
provision of Section 11 (c),33 Rule 116 of the Rules of Court limiting the
suspension for arraignment to only sixty (60) days is merely directory; thus, the
estafa case against them cannot proceed until the DOJ resolves their petition for
review with finality.
In Samson v. Judge Daway,34 the Court explained that while the pendency of a
petition for review is a ground for suspension of the arraignment, the aforecited
provision limits the deferment of the arraignment to a period of 60 days reckoned
from the filing of the petition with the reviewing office. It follows, therefore, that
after the expiration of said period, the trial court is bound to arraign the accused
or to deny the motion to defer arraignment.35
In Diño v. Olivarez,36 the Court held that it did not sanction an indefinite
suspension of the proceedings in the trial court. Its reliance on the reviewing
authority, the Justice Secretary, to decide the appeal at the soonest possible time
was anchored on the rule provided under Department Memorandum Order No.
12, dated 3 July 2000, which mandates that the period for the disposition of
appeals or petitions for review shall be seventy- five (75) days.37
In Heirs of Feraren v. Court of Appeals,38 the Court ruled that in a long line of
decisions, it has repeatedly held that while rules of procedure are liberally
construed, the provisions on reglementary periods are strictly applied,
indispensable as they are to the prevention of needless delays, and are
necessary to the orderly and speedy discharge of judicial business. After all,
rules of procedure do not exist for the convenience of the litigants, and they are
not to be trifled with lightly or overlooked by the mere expedience of invoking
“substantial justice.” Relaxation or suspension of procedural rules, or the
exemption of a case from their operation, is warranted only by compelling
reasons or when the purpose of justice requires it.39
Consistent with the foregoing jurisprudence, and there being no such reasons
shown to warrant relaxation of procedural rules in this case, the CA correctly
ruled, thus:
In the case at bar, the petitioners' petition for review was filed with the Secretary
of Justice on February 27, 2004. As early as April 16, 2004, upon the petitioners'
motion, the arraignment of the petitioners herein was ordered deferred by the
public respondent. We believe that the period of one year and one month from
April 16, 2004 to May 16, 2005 when the public respondent ordered the issuance
of a warrant for the arrest of petitioner Aguinaldo, was more than ample time to
give the petitioners the opportunity to obtain a resolution of their petition for
review from the DOJ. The petitioners though submitted a Certification from the
DOJ dated May 30, 2005 stating that their petition for review is pending

resolution by the Department as of May 27, 2005. However, such delay in the
resolution does not extend the period of 60 days prescribed under the afore-
quoted Section 11(c), Rule 116 of the Revised Rules on Criminal Procedure.
Besides, the petitioners may be faulted for the delay in the resolution of their
petition. According to their counsel, she received the letter dated April 15, 2004
from the DOJ requiring her to submit the pertinent pleadings relative to
petitioners' petition for review; admittedly, however, the same was complied with
only on October 15, 2004. We therefore find that the trial court did not commit
grave abuse of discretion in issuing the assailed orders.40
On the third issue, the Court is likewise unconvinced by petitioners' argument
that the precipitate filing of the Information and the issuance of a warrant of arrest
put petitioners at the risk of incarceration without the preliminary investigation
having been completed because they were not afforded their right to file a motion
for reconsideration of the DOJ resolution.
While they are correct in stating that the right to preliminary investigation is a
substantive, not merely a procedural right, petitioners are wrong in arguing that
the Information filed, without affording the respondent his right to file a motion for
reconsideration of an adverse DOJ resolution, is fatally premature. In support of
their argument, petitioners cite Sales v. Sandiganbayan41 wherein it was held that
since filing of a motion for reconsideration is an integral part of the preliminary
investigation proper, an Information filed without first affording the accused his
right to a motion for reconsideration, is tantamount to a denial of the right itself to
a preliminary investigation.
The Court finds petitioners' reliance on Sales42 as misplaced. A closer look into
said case would reveal that the accused therein was denied his right to move for
a reconsideration or a reinvestigation of an adverse resolution in a preliminary
investigation under the Rules of Procedure of the Ombudsman before the filing of
an Information. In contrast, petitioners in this case were afforded their right to
move for reconsideration of the adverse resolution in a preliminary investigation
when they filed their “Motion for Reconsideration and Motion for the Withdrawal
of Information Prematurely Filed with the Regional Trial Court, Branch 8, City of
Manila,”43 pursuant to Section 3 of the 2000 National Prosecution Service (NPS
Rule on Appeal)44 and Section 56 of the Manual for Prosecutors45.
With the Information for estafa against petitioners having been filed on July 16,
2003, the public respondent cannot be faulted with grave abuse of discretion in
issuing the August 23, 2005 Order denying their motion to quash warrant of
arrest, and setting their arraignment, pending the final resolution of their petition
for review by the DOJ. The Court believes that the period of almost one (1) year
and seven (7) months from the time petitioners filed their petition for review with
the DOJ on February 27, 2004 to September 14, 2005 46 when the trial court
finally set their arraignment, was more than ample time to give petitioners the
opportunity to obtain a resolution of their petition. In fact, the public respondent
47
had been very liberal with petitioners in applying Section 11 (c), Rule 116 of the
Rules of Court which limits the suspension of arraignment to a 60-day period
from the filing of such petition. Indeed, with more than eleven (11) years having
elapsed from the filing of the petition for review and petitioners have yet to be
arraigned, it is now high time for the continuation of the trial on the merits in the
criminal case below, as the 60-day period counted from the filing of the petition
for review with the DOJ had long lapsed.
On whether petitioners were accorded their right to a complete preliminary
investigation as part of their right to due process, the Court rules in the
affirmative. Having submitted his Counter-Affidavit and Rejoinder-Affidavit to the
OCP of Manila before the filing of Information for estafa, Perez cannot be heard
to decry that his right to preliminary investigation was not completed. For her
part, while Aguinaldo was not personally informed of any notice of preliminary
investigation prior to the filing of the Information, she was nonetheless given
opportunity to be heard during such investigation. In petitioners' motion for
reconsideration47 of the February 25, 2003 Resolution of ACP Gonzaga,
Aguinaldo relied mostly on the Counter-Affidavit and Rejoinder-Affidavit of Perez
to assail the recommendation of the prosecutor to indict her for estafa. Since the
filing of such motion for reconsideration was held to be consistent with the
principle of due process and allowed under Section 56 of the Manual for
Prosecutors,48 she cannot complain denial of her right to preliminary
investigation.
Both petitioners cannot, therefore, claim denial of their right to a complete
preliminary investigation as part of their right to due process. After all, “[d]ue
process simply demands an opportunity to be heard. Due process is satisfied
when the parties are afforded a fair and reasonable opportunity to explain their
respective sides of the controversy. Where an opportunity to be heard either
through oral arguments or through pleadings is accorded, there is no denial of
procedural due process.”49
In fine, the Court holds that public respondent erred in issuing the May 16, 2005
Order granting the Motion to Reinstate Case and to Issue Warrant of Arrest, as it
was filed by one who is not a party to the case, and it was based on the DOJ's
dismissal of a petition for review in a different case. Nevertheless, the Court
upholds the CA ruling that the public respondent committed no grave abuse of
discretion when he issued the August 23, 2005 Order denying petitioners' motion
to quash warrant of arrest, and setting their arraignment, despite the pendency of
their petition for review with the DOJ. For one, the public respondent had been
very liberal in applying Section 11 (c), Rule 116 of the Rules of Court which
allows suspension of arraignment for a period of 60 days only. For another,
records show that petitioners were given opportunity to be heard during the
preliminary investigation of their estafa case.
Considering that this case had been held in abeyance long enough without

petitioners having been arraigned, the Court directs the remand of this case to
the trial court for trial on the merits with strict observance of Circular No. 38-98
dated August 11, 1998, or the “Implementing the Provisions of Republic Act No.
8493, entitled 'An Act to Ensure a Speedy Trial of All Criminal Cases Before the
Sandiganbayan, Regional Trial Court, Metropolitan Trial Court, Municipal Trial
Court in Cities, Municipal Trial Court and Municipal Circuit Trial Court,
Appropriating Funds Therefor, and for Other Purposes.'” In this regard, suffice it
to state that petitioners cannot invoke violation of their right to speedy trial
because Section 9 (3) of Circular No. 38-98 excludes in computing the time
within which trial must commence the delay resulting from extraordinary
remedies against interlocutory orders, such as their petitions before the CA and
the Court.
Finally, in order to avoid delay in the proceedings, judges are reminded that the
pendency of a motion for reconsideration, motion for reinvestigation, or petition
for review is not a cause for the quashal of a warrant of arrest previously issued
because the quashal of a warrant of arrest may only take place upon the finding
that no probable cause exists. Moreover, judges should take note of the
following:
1. If there is a pending motion for reconsideration or motion for
reinvestigation of the resolution of the public prosecutor, the court may
suspend the proceedings upon motion by the parties. However, the court
should set the arraignment of the accused and direct the public
prosecutor to submit the resolution disposing of the motion on or before
the period fixed by the court, which in no instance could be more than
the period fixed by the court counted from the granting of the motion to
suspend arraignment, otherwise the court will proceed with the
arraignment as scheduled and without further delay.
2. If there is a pending petition for review before the DOJ, the court may
suspend the proceedings upon motion by the parties. However, the court
should set the arraignment of the accused and direct the DOJ to submit
the resolution disposing of the petition on or before the period fixed by
the Rules which, in no instance, could be more than sixty (60) days from
the filing of the Petition for Review before the DOJ, otherwise, the court
will proceed with the arraignment as scheduled and without further delay.
WHEREFORE, premises considered, the petition is DENIED. The Decision dated
August 11, 2006 of the Court of Appeals and its Resolution dated December 4,
2006 in CA-G.R. SP No. 92094, areAFFIRMED. Considering that the
proceedings in this criminal case had been held in abeyance long enough, let the
records of this case be remanded to the trial court which is hereby directed to try
the case on the merits with dispatch in accordance with the Court's Circular No.
38-98 dated August 11, 1998.
48
SO ORDERED.
G.R. No. 101837 February 11, 1992
ROLITO GO y TAMBUNTING, petitioner,
vs.
THE COURT OF APPEALS, THE HON. BENJAMIN V. PELAYO, Presiding
Judge, Branch 168, Regional Trial Court, NCJR Pasig, M.M., and PEOPLE
OF THE PHILIPPINES, respondents.
FELICIANO, J.:
According to the findings of the San Juan Police in their Investigation Report, 1 on
2 July 1991, Eldon Maguan was driving his car along Wilson St., San Juan,
Metro Manila, heading towards P. Guevarra St. Petitioner entered Wilson St.,
where it is a one-way street and started travelling in the opposite or "wrong"
direction. At the corner of Wilson and J. Abad Santos Sts., petitioner's and
Maguan's cars nearly bumped each other. Petitioner alighted from his car,
walked over and shot Maguan inside his car. Petitioner then boarded his car and
left the scene. A security guard at a nearby restaurant was able to take down
petitioner's car plate number. The police arrived shortly thereafter at the scene of
the shooting and there retrieved an empty shell and one round of live ammunition
for a 9 mm caliber pistol. Verification at the Land Transportation Office showed
that the car was registered to one Elsa Ang Go.
The following day, the police returned to the scene of the shooting to find out
where the suspect had come from; they were informed that petitioner had dined
at Cravings Bake Shop shortly before the shooting. The police obtained a
facsimile or impression of the credit card used by petitioner from the cashier of
the bake shop. The security guard of the bake shop was shown a picture of
petitioner and he positively identified him as the same person who had shot
Maguan. Having established that the assailant was probably the petitioner, the
police launched a manhunt for petitioner.
On 8 July 1991, petitioner presented himself before the San Juan Police Station
to verify news reports that he was being hunted by the police; he was
accompanied by two (2) lawyers. The police forthwith detained him. An
eyewitness to the shooting, who was at the police station at that time, positively
identified petitioner as the gunman. That same day, the police promptly filed a
complaint for frustrated homicide 2 against petitioner with the Office of the
Provincial Prosecutor of Rizal. First Assistant Provincial Prosecutor Dennis Villa
Ignacio ("Prosecutor") informed petitioner, in the presence of his lawyers, that he

could avail himself of his right to preliminary investigation but that he must first
sign a waiver of the provisions of Article 125 of the Revised Penal Code.
Petitioner refused to execute any such waiver.
On 9 July 1991, while the complaint was still with the Prosecutor, and before an
information could be filed in court, the victim, Eldon Maguan, died of his gunshot
wound(s).
Accordingly, on 11 July 1991, the Prosecutor, instead of filing an information for
frustrated homicide, filed an information for murder 3 before the Regional Trial
Court. No bail was recommended. At the bottom of the information, the
Prosecutor certified that no preliminary investigation had been conducted
because the accused did not execute and sign a waiver of the provisions of
Article 125 of the Revised Penal Code.
In the afternoon of the same day, 11 July 1991, counsel for petitioner filed with
the Prosecutor an omnibus motion for immediate release and proper preliminary
investigation, 4 alleging that the warrantless arrest of petitioner was unlawful and
that no preliminary investigation had been conducted before the information was
filed. Petitioner also prayed that he be released on recognizance or on bail.
Provincial Prosecutor Mauro Castro, acting on the omnibus motion, wrote on the
last page of the motion itself that he interposed no objection to petitioner being
granted provisional liberty on a cash bond of P100,000.00.
On 12 July 1991, petitioner filed an urgent ex-parte motion for special raffle 5 in
order to expedite action on the Prosecutor's bail recommendation. The case was
raffled to the sala of respondent Judge, who, on the same date, approved the
cash bond 6 posted by petitioner and ordered his release. 7 Petitioner was in fact
released that same day.
On 16 July 1991, the Prosecutor filed with the Regional Trial Court a motion for
leave to conduct preliminary investigation 8 and prayed that in the meantime all
proceedings in the court be suspended. He stated that petitioner had filed before
the Office of the Provincial Prosecutor of Rizal an omnibus motion for immediate
release and preliminary investigation, which motion had been granted by
Provincial Prosecutor Mauro Castro, who also agreed to recommend cash bail of
P100,000.00. The Prosecutor attached to the motion for leave a copy of
petitioner's omnibus motion of 11 July 1991.
Also on 16 July 1991, the trial court issued an Order 9 granting leave to conduct
preliminary investigation and cancelling the arraignment set for 15 August 1991
until after the prosecution shall have concluded its preliminary investigation.
On 17 July 1991, however, respondent Judge motu proprio issued an
Order, 10 embodying the following: (1) the 12 July 1991 Order which granted bail
49
was recalled; petitioner was given 48 hours from receipt of the Order to surrender
himself; (2) the 16 July 1991 Order which granted leave to the prosecutor to
conduct preliminary investigation was recalled and cancelled; (3) petitioner's
omnibus motion for immediate release and preliminary investigation dated 11
July 1991 was treated as a petition for bail and set for hearing on 23 July 1991.
On 19 July 1991, petitioner filed a petition for certiorari, prohibition
and mandamus before the Supreme Court assailing the 17 July 1991 Order,
contending that the information was null and void because no preliminary
investigation had been previously conducted, in violation of his right to due
process. Petitioner also moved for suspension of all proceedings in the case
pending resolution by the Supreme Court of his petition; this motion was,
however, denied by respondent Judge.
On 23 July 1991, petitioner surrendered to the police.
By a Resolution dated 24 July 1991, this Court remanded the petition
for certiorari, prohibition and mandamus to the Court of Appeals.
On 16 August 1991, respondent Judge issued an order in open court setting the
arraignment of petitioner on 23 August 1991.
On 19 August 1991, petitioner filed with the Court of Appeals a motion to restrain
his arraignment.
On 23 August 1991, respondent judge issued a Commitment Order directing the
Provincial Warden of Rizal to admit petitioner into his custody at the Rizal
Provincial Jail. On the same date, petitioner was arraigned. In view, however, of
his refusal to enter a plea, the trial court entered for him a plea of not guilty. The
Trial court then set the criminal case for continuous hearings on 19, 24 and 26
September; on 2, 3, 11 and 17 October; and on 7, 8, 14, 15, 21 and 22
November 1991. 11
On 27 August 1991, petitioner filed a petition for habeas corpus 12 in the Court of
Appeals. He alleged that in view of public respondent's failure to join issues in the
petition for certiorari earlier filed by him, after the lapse of more than a month,
thus prolonging his detention, he was entitled to be released on habeas corpus.
On 30 August 1991, the Court of Appeals issued the writ of habeas
corpus. 13 The petition for certiorari, prohibition and mandamus, on the one hand,
and the petition for habeas corpus, upon the other, were subsequently
consolidated in the Court of Appeals.

The Court of Appeals, on 2 September 1991, issued a resolution denying
petitioner's motion to restrain his arraignment on the ground that that motion had
become moot and academic.
On 19 September 1991, trial of the criminal case commenced and the
prosecution presented its first witness.
On 23 September 1991, the Court of Appeals rendered a consolidated
decision 14 dismissing the two (2) petitions, on the following grounds:
a. Petitioner's warrantless arrest was valid because the offense
for which he was arrested and charged had been "freshly
committed." His identity had been established through
investigation. At the time he showed up at the police station,
there had been an existing manhunt for him. During the
confrontation at the San Juan Police Station, one witness
positively identified petitioner as the culprit.
b. Petitioner's act of posting bail constituted waiver of any
irregularity attending his arrest. He waived his right to preliminary
investigation by not invoking it properly and seasonably under
the Rules.
c. The trial court did not abuse its discretion when it issued the
17 July 1991 Order because the trial court had the inherent
power to amend and control its processes so as to make them
conformable to law and justice.
d. Since there was a valid information for murder against
petitioner and a valid commitment order (issued by the trial judge
after petitioner surrendered to the authorities whereby petitioner
was given to the custody of the Provincial Warden), the petition
for habeas corpus could not be granted.
On 3 October 1991, the prosecution presented three (3) more witnesses at the
trial. Counsel for petitioner also filed a "Withdrawal of Appearance" 15 with the
trial court, with petitioner's conformity.
On 4 October 1991, the present Petition for Review on Certiorari was filed. On 14
October 1991, the Court issued a Resolution directing respondent Judge to hold
in abeyance the hearing of the criminal case below until further orders from this
Court.
In this Petition for Review, two (2) principal issues need to be addressed: first,
whether or not a lawful warrantless arrest had been effected by the San Juan
50
Police in respect of petitioner Go; and second, whether petitioner had effectively
waived his right to preliminary investigation. We consider these issues seriatim.
In respect of the first issue, the Solicitor General argues that under the facts of
the case, petitioner had been validly arrested without warrant. Since petitioner's
identity as the gunman who had shot Eldon Maguan on 2 July 1991 had been
sufficiently established by police work, petitioner was validly arrested six (6) days
later at the San Juan Police Station. The Solicitor General invokes Nazareno
v. Station Commander, etc., et al., 16 one of the seven (7) cases consolidated
with In the Matter of the Petition for Habeas Corpus of Roberto Umil, etc.,
v. Ramos, et al. 17 where a majority of the Court upheld a warrantees arrest as
valid although effected fourteen (14) days after the killing in connection with
which Nazareno had been arrested. Accordingly, in the view of the Solicitor
General, the provisions of Section 7, Rule 112 of the Rules of Court were
applicable and because petitioner had declined to waive the provisions of Article
125 of the Revised Penal Code, the Prosecutor was legally justified in filing the
information for murder even without preliminary investigation.
On the other hand, petitioner argues that he was not lawfully arrested without
warrant because he went to the police station six (6) days after the shooting
which he had allegedly perpetrated. Thus, petitioner argues, the crime had not
been "just committed" at the time that he was arrested. Moreover, none of the
police officers who arrested him had been an eyewitness to the shooting of
Maguan and accordingly none had the "personal knowledge" required for the
lawfulness of a warrantees arrest. Since there had been no lawful warrantless
arrest. Section 7, Rule 112 of the Rules of Court which establishes the only
exception to the right to preliminary investigation, could not apply in respect of
petitioner.
The reliance of both petitioner and the Solicitor General upon Umil v. Ramos is,
in the circumstances of this case, misplaced. In Umil v. Ramos, by an eight-to-six
vote, the Court sustained the legality of the warrantless arrests of petitioners
made from one (1) to fourteen days after the actual commission of the offenses,
upon the ground that such offenses constituted "continuing crimes." Those
offenses were subversion, membership in an outlawed organization like the New
People's Army, etc. In the instant case, the offense for which petitioner was
arrested was murder, an offense which was obviously commenced and
completed at one definite location in time and space. No one had pretended that
the fatal shooting of Maguan was a "continuing crime."
Secondly, we do not believe that the warrantees "arrest" or detention of petitioner
in the instant case falls within the terms of Section 5 of Rule 113 of the 1985
Rules on Criminal Procedure which provides as follows:

Sec. 5 Arrest without warrant; when lawful. — A peace officer or
a private person may, without warrant, arrest a person:
(a) When, in his presence, the person to be arrested has
committed, is actually committing, or is attempting to commit an
offense;
(b) When an offense has in fact just been committed, and he has
personal knowledge of facts indicating that the person to be
arrested has committed it; and
(c) When the person to be arrested is a prisoner who has
escaped from a penal establishment or place where he is serving
final judgment or temporarily confined while his case is pending,
or has escaped while being transferred from one confinement to
another.
In cases falling under paragraphs (a) and (b) hereof, the person
arrested without a warrant shall be forthwith delivered to the
nearest police station or jail, and he shall be proceed against in
accordance with Rule 112, Section 7.
Petitioner's "arrest" took place six (6) days after the shooting of Maguan. The
"arresting" officers obviously were not present, within the meaning of Section
5(a), at the time petitioner had allegedly shot Maguan. Neither could the "arrest"
effected six (6) days after the shooting be reasonably regarded as effected "when
[the shooting had] in fact just been committed" within the meaning of Section
5(b). Moreover, none of the "arresting" officers had any "personal knowledge" of
facts indicating that petitioner was the gunman who had shot Maguan. The
information upon which the police acted had been derived from statements made
by alleged eyewitnesses to the shooting — one stated that petitioner was the
gunman; another was able to take down the alleged gunman's car's plate number
which turned out to be registered in petitioner's wife's name. That information did
not, however, constitute "personal knowledge." 18
It is thus clear to the Court that there was no lawful warrantless arrest of
petitioner within the meaning of Section 5 of Rule 113. It is clear too that Section
7 of Rule 112, which provides:
Sec. 7 When accused lawfully arrested without warrant. — When
a person is lawfully arrested without a warrant for an offense
cognizable by the Regional Trial Court the complaint or
information may be filed by the offended party, peace officer or
fiscal without a preliminary investigation having been first
51
conducted, on the basis of the affidavit of the offended party or
arresting office or person
However, before the filing of such complaint or information, the
person arrested may ask for a preliminary investigation by a
proper officer in accordance with this Rule, but he must sign a
waiver of the provisions of Article 125 of the Revised Penal
Code, as amended, with the assistance of a lawyer and in case
of non-availability of a lawyer, a responsible person of his
choice. Notwithstanding such waiver, he may apply for bail as
provided in the corresponding rule and the investigation must be
terminated within fifteen (15) days from its inception.
If the case has been filed in court without a preliminary
investigation having been first conducted, the accused
may within five (5) days from the time he learns of the filing of
the information, ask for a preliminary investigation with the same
right to adduce evidence in his favor in the manner prescribed in
this Rule. (Emphasis supplied)
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
"surrendering" himself, in all probability to avoid the implication he was admitting
that he had slain Eldon Maguan or that he was otherwise guilty of a crime. When
the police filed a complaint for frustrated homicide with the Prosecutor, the latter
should have immediately scheduled a preliminary investigation to determine
whether there was probable cause for charging petitioner in court for the killing of
Eldon Maguan. Instead, as noted earlier, the Prosecutor proceed under the
erroneous supposition that Section 7 of Rule 112 was applicable and required
petitioner to waive the provisions of Article 125 of the Revised Penal Code as a
condition for carrying out a preliminary investigation. This was substantive error,
for petitioner was entitled to a preliminary investigation and that right should have
been accorded him without any conditions. Moreover, since petitioner had not
been arrested, with or without a warrant, he was also entitled to be released
forthwith subject only to his appearing at the preliminary investigation.
Turning to the second issue of whether or not petitioner had waived his right to
preliminary investigation, we note that petitioner had from the very beginning
demanded that a preliminary investigation be conducted. As earlier pointed out,
on the same day that the information for murder was filed with the Regional Trial
Court, petitioner filed with the Prosecutor an omnibus motion for immediate
release and preliminary investigation. The Solicitor General contends that that
omnibus motion should have been filed with the trial court and not with the
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

statutory right to preliminary investigation may be predicated on such a slim
basis. The preliminary investigation was to be conducted by the Prosecutor, not
by the Regional Trial Court. It is true that at the time of filing of petitioner's
omnibus motion, the information for murder had already been filed with the
Regional Trial Court: it is not clear from the record whether petitioner was aware
of this fact at the time his omnibus motion was actually filed with the Prosecutor.
In Crespo v. Mogul, 19 this Court held:
The preliminary investigation conducted by the fiscal for the
purpose of determining whether a prima facie case exists to
warranting the prosecution of the accused is terminated upon the
filing of the information in the proper court. In turn, as above
stated, the filing of said information sets in motion the criminal
action against the accused in Court. Should the fiscal find it
proper to conduct a reinvestigation of the case, at such stage,
the permission of the Court must be secured. After such
reinvestigation the finding and recommendations of the fiscal
should be submitted to the Court for appropriate action. While it
is true that the fiscal has the quasi-judicial discretion to
determine whether or not a criminal case should be filed in court
or not, once the case had already been brought to Court
whatever disposition the fiscal may feel should be proper in the
case thereafter should be addressed for the consideration of the
Court. The only qualification is that the action of the Court must
not impair the substantial rights of the accused., or the right of
the People to due process of law.
xxx xxx xxx
The rule therefore in this jurisdiction is that once a complaint or
information is filed in Court any disposition of the case [such] as
its dismissal or the conviction or acquittal of the accused rests in
the sound discretion of the Court. Although the fiscal retains the
direction and control of the prosecution of criminal cases even
while the case is already in Court he cannot impose his opinion
on the trial court. The Court is the best and sole judge on what to
do with the case before it. . . . 20 (Citations omitted; emphasis
supplied)
Nonetheless, since petitioner in his omnibus motion was asking for
preliminary investigation and not for a re-investigation (Crespo v. Mogul
involved a re-investigation), and since the Prosecutor himself did file with
the trial court, on the 5th day after filing the information for murder, a
motion for leave to conduct preliminary investigation (attaching to his
motion a copy of petitioner's omnibus motion), we conclude that
petitioner's omnibus motion was in effect filed with the trial court. What
52
was crystal clear was that petitioner did ask for a preliminary
investigation on the very day that the information was filed without such
preliminary investigation, and that the trial court was five (5) days later
apprised of the desire of the petitioner for such preliminary investigation.
Finally, the trial court did in fact grant the Prosecutor's prayer for leave to
conduct preliminary investigation. Thus, even on the (mistaken)
supposition apparently made by the Prosecutor that Section 7 of Rule
112 of the Revised Court was applicable, the 5-day reglementary period
in Section 7, Rule 112 must be held to have been substantially complied
with.
We believe and so hold that petitioner did not waive his right to a preliminary
investigation. While that right is statutory rather than constitutional in its
fundament, since it has in fact been established by statute, it is a component part
of due process in criminal justice. 21 The right to have a preliminary investigation
conducted before being bound over to trial for a criminal offense and hence
formally at risk of incarceration or some other penalty, is not a mere formal or
technical right; it is a substantive right. The accused in a criminal trial is inevitably
exposed to prolonged anxiety, aggravation, humiliation, not to speak of expense;
the right to an opportunity to avoid a process painful to any one save, perhaps, to
hardened criminals, is a valuable right. To deny petitioner's claim to a preliminary
investigation would be to deprive him the full measure of his right to due process.
The question may be raised whether petitioner still retains his right to a
preliminary investigation in the instant case considering that he was already
arraigned on 23 August 1991. The rule is that the right to preliminary
investigation is waived when the accused fails to invoke it before or at the time of
entering a plea at arraignment.22 In the instant case, petitioner Go had vigorously
insisted on his right to preliminary investigation before his arraignment.At the
time of his arraignment, petitioner was already before the Court of Appeals
on certiorari, prohibition and mandamusprecisely asking for a preliminary
investigation before being forced to stand trial.
Again, in the circumstances of this case, we do not believe that by posting bail
petitioner had waived his right to preliminary investigation. In People
v. Selfaison, 23 we did hold that appellants there had waived their right to
preliminary investigation because immediately after their arrest, they filed bail
and proceeded to trial "without previously claiming that they did not have the
benefit of a preliminary investigation." 24 In the instant case, petitioner Go asked
for release on recognizance or on bail and for preliminary investigation in one
omnibus motion. He had thus claimed his right to preliminary
investigation before respondent Judge approved the cash bond posted by
petitioner and ordered his release on 12 July 1991. Accordingly, we cannot
reasonably imply waiver of preliminary investigation on the part of petitioner. In
fact, when the Prosecutor filed a motion in court asking for leave to conduct

preliminary investigation, he clearly if impliedly recognized that petitioner's claim
to preliminary investigation was a legitimate one.
We would clarify, however, that contrary to petitioner's contention the failure to
accord preliminary investigation, while constituting a denial of the appropriate
and full measure of the statutory process of criminal justice, did not impair the
validity of the information for murder nor affect the jurisdiction of the trial court. 25
It must also be recalled that the Prosecutor had actually agreed that petitioner
was entitled to bail. This was equivalent to an acknowledgment on the part of the
Prosecutor that the evidence of guilt then in his hands was not strong.
Accordingly, we consider that the 17 July 1991 order of respondent Judge
recalling his own order granting bail and requiring petitioner to surrender himself
within forty-eight (48) hours from notice, was plainly arbitrary considering that no
evidence at all — and certainly no new or additional evidence — had been
submitted to respondent Judge that could have justified the recall of his order
issued just five (5) days before. It follows that petitioner was entitled to be
released on bail as a matter of right.
The final question which the Court must face is this: how does the fact that, in the
instant case, trial on the merits has already commenced, the Prosecutor having
already presented four (4) witnesses, impact upon, firstly, petitioner's right to a
preliminary investigation and, secondly, petitioner's right to be released on bail?
Does he continue to be entitled to have a preliminary investigation conducted in
respect of the charge against him? Does petitioner remain entitled to be released
on bail?
Turning first to the matter of preliminary investigation, we consider that petitioner
remains entitled to a preliminary investigation although trial on the merits has
already began. Trial on the merits should be suspended or held in abeyance and
a preliminary investigation forthwith accorded to petitioner. 26 It is true that the
Prosecutor might, in view of the evidence that he may at this time have on hand,
conclude that probable cause exists; upon the other hand, the Prosecutor
conceivably could reach the conclusion that the evidence on hand does not
warrant a finding of probable cause. In any event, the constitutional point is that
petitioner was not accorded what he was entitled to by way of procedural due
process. 27 Petitioner was forced to undergo arraignment and literally pushed to
trial without preliminary investigation, with extraordinary haste, to the applause
from the audience that filled the courtroom. If he submitted to arraignment at trial,
petitioner did so "kicking and screaming," in a manner of speaking . During the
proceedings held before the trial court on 23 August 1991, the date set for
arraignment of petitioner, and just before arraignment, counsel made very clear
petitioner's vigorous protest and objection to the arraignment precisely because
of the denial of preliminary investigation. 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
53
counsel de oficio. During the trial, before the prosecution called its first witness,
petitioner through counsel once again reiterated his objection to going to trial
without preliminary investigation: petitioner's counsel made of record his
"continuing objection." 29 Petitioner had promptly gone to the appellate court
on certiorari and prohibition to challenge the lawfulness of the procedure he was
being forced to undergo and the lawfulness of his detention. 30 If he did not walk
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
use what is frequently the only test of truth in the judicial process.
In respect of the matter of bail, we similarly believe and so hold that petitioner
remains entitled to be released on bail as a matter of right. Should the evidence
already of record concerning petitioner's guilt be, in the reasonable belief of the
Prosecutor, strong, the Prosecutor may move in the trial court for cancellation of
petitioner's bail. It would then be up to the trial court, after a careful and objective
assessment of the evidence on record, to grant or deny the motion for
cancellation of bail.
To reach any other conclusions here, that is, to hold that petitioner's rights to a
preliminary investigation and to bail were effectively obliterated by evidence
subsequently admitted into the record would be to legitimize the deprivation of
due process and to permit the Government to benefit from its own wrong or
culpable omission and effectively to dilute important rights of accused persons
well-nigh to the vanishing point. It may be that to require the State to accord
petitioner his rights to a preliminary investigation and to bail at this
point, could turn out ultimately to be largely a ceremonial exercise. But the Court
is not compelled to speculate. And, in any case, it would not be idle ceremony;
rather, it would be a celebration by the State of the rights and liberties of its own
people and a re-affirmation of its obligation and determination to respect those
rights and liberties.
ACCORDINGLY, the Court resolved to GRANT the Petition for Review
on Certiorari. The Order of the trial court dated 17 July 1991 is hereby SET
ASIDE and NULLIFIED, and the Decision of the Court of Appeals dated 23
September 1991 hereby REVERSED.
The Office of the Provincial Prosecutor is hereby ORDERED to conduct forthwith
a preliminary investigation of the charge of murder against petitioner Go, and to
complete such preliminary investigation within a period of fifteen (15) days from
commencement thereof. The trial on the merits of the criminal case in the
Regional Trial Court shall be SUSPENDED to await the conclusion of the
preliminary investigation.

Meantime, petitioner is hereby ORDERED released forthwith upon posting of a
cash bail bond of One Hundred Thousand Pesos (P100,000.00). This release
shall be without prejudice to any lawful order that the trial court may issue, should
the Office of the Provincial Prosecutor move for cancellation of bail at the
conclusion of the preliminary investigation.
No pronouncement as to costs. This Decision is immediately executory.
SO ORDERED.
Narvasa, C.J., Bidin, Medialdea, Romero and Nocon, JJ., concur.
[G.R. No. 108431. July 14, 2000]
OSCAR G. RARO, petitioner, vs. THE HONORABLE SANDIGANBAYAN,
(Second Division), THE HONORABLE OMBUDSMAN and PEOPLE
OF THE PHILIPPINES, respondents.
DECISION
YNARES-SANTIAGO, J.:
The issue in this special civil action of certiorari and prohibition is whether or
not the Sandiganbayan gravely abused its discretion in denying a motion to
quash an information on the ground that the preliminary investigation allegedly
violated the right of the accused to due process of law.
Petitioner Oscar G. Raro, a lawyer, was the Corporate Secretary of the
Philippine Charity Sweepstakes Office (PCSO). As such, petitioner was the
Acting Manager of the Special Projects Department that was in charge of the
experimental Small Town Lottery (STL), which under PCSO Resolution No. 118,
dated April 1987, was to be operated in certain areas of the country. On July 30,
1987, the PCSO, through Atty. Reynaldo E. Ilagan of the Special Projects
Department, authorized Elmec Trading and Management Corporation (ELMEC)
to operate the STL in the province of Camarines Norte. ELMEC in turn employed
Luis (Bing) F. Abao, a resident of Daet, Camarines Norte, as Provincial Manager
of the experimental STL in said province.[1] Abao allegedly invested P100,000.00
in the STL operation in that province.
54
In a complaint that he filed with the Tanodbayan in Manila on May 20, 1988,
Abao alleged that petitioner, in his capacity as PCSO Corporate Secretary,
personally and directly intervened in the operation of said lottery to his financial
benefit and advantage by committing the following acts:
(1) Causing the employment of members of his family in the experimental STL
project that was under his supervision, in violation of Section 3 (d) of the Anti-
Graft Law;
(2) Deciding on the dismissal of certain lottery employees and in bad faith driving
Abao to sever from the management of lottery which at that time was grossing
about P250,000.00 daily under a profit-sharing agreement, thus causing Abao
damage and injury in the amount of P1,300,000.00, in violation of Section 3 (e) of
the Anti-Graft Law; and
(3) Regularly demanding from Abao amounts totaling more than P100,000.00 as
his share in the experimental lottery, in violation of Section 3 (h) of the Anti-Graft
Law.
Abao maintained further that petitioner got mad at him when he gave
petitioner a check instead of cash, which petitioner later used to accuse Abao of
issuing a bouncing check notwithstanding that the check was not
encashed. Abao added that petitioner was not only dishonest but displayed such
dishonesty.[2] The complaint filed by Abaos counsel was verified and subscribed
before a notary public,[3] and docketed in the Office of the Ombudsman as OSP-
88-01263.
Overall Ombudsman Jose G. Colayco, on July 1, 1988, endorsed the
complaint to the National Bureau of Investigation (NBI). [4] On May 11, 1989, NBI-
LED Officer-in-Charge Gerarda G. Galang submitted a report stating that the
investigation conducted by NBI Senior Agent Salvador A. Duka yielded the
following findings:
(a) On the charge of employment of relatives, Abao charged that petitioner asked
him to appoint his (petitioners) brother as station manager of the lottery in Labo,
Camarines Norte. Likewise according to Abao, petitioner imposed on him the
appointment of petitioners sister, Marissa Raro- Remigio as the STL provincial
cashier. Per the joint affidavit of Yoly Malubay, Ruben Galeon, Rosalio Poblete
and Francisco Villaluz, petitioners brother named Antonio, the lottery station
manager, signed payrolls, vouchers and other pertinent papers using the name
Joel Remigio, Marissas husband. In 1988, Antonio Raro was appointed Assistant
Provincial Operations Manager of the STL in Camarines Norte. On the other
hand, Marissa Raro-Remigio claimed that it was ELMEC that offered her the
position of treasurer of the STL and that on January 27, 1988, ELMEC
terminated the employment of Abao and the employees he had hired. However,

the circumstances surrounding ELMECs employment of petitioners brother and
sister were not verified from the owners of ELMEC.
(b) With respect to the charge that petitioner demanded from Abao the total
amount of P100,000.00, no receipt was shown to prove petitioners having in fact
received that sum although Ruidera and Galeon, in their affidavits, confirmed that
said amount was given to petitioner and to Atty. Ilagan. Since the sworn
statements of Ilagan and Cordez and those of Fernando Carrascoso and Rustico
Manalo, who allegedly received 25% of the proceeds of the STL, had not yet
been taken, there were certain aspects of the charge that should be considered.
Hence, no definite conclusion could be made thereon.
(c) The subject of dismissal of employees was not yet covered by the
investigation.
With these findings, Galang recommended that further investigation be
conducted and that a copy of the evaluation comment be furnished the
Ombudsman with the information that further investigation (was) still being
conducted on some aspects of the case.[5]Accordingly, NBI Director J. Antonio M.
Carpio endorsed on May 11, 1989 the evaluation comment and the NBI agents
report to the Ombudsman.[6]
On July 12, 1989, NBI Agent Duka submitted a Disposition Form stating that
per the joint affidavit of Yolly Manubay, Ruben Galeon, Rosario Poblete and
Francisco Villaluz, petitioners brother, Antonio Raro signed numerous vouchers,
payrolls and other papers in the name of Joel Remigio. The sworn statement of
Teddy Aguirre and xerox copies of vouchers supported this. However, the
original copies of the vouchers could not be secured on account of the cessation
of operation of the STL in Camarines Norte since July 1988. Neither could the
sworn statement of Antonio Raro be secured. Thus, NBI Agent Duka
recommended that further investigation be conducted in coordination with
LUCSO in Lucena City.[7]
Ombudsman Graft Investigation Officer II (GIO II) Theresa Medialdea-
Caraos submitted to Ombudsman Conrado Vasquez a Memorandum dated
March 15, 1990, with the following recommendation:
RECOMMENDED ACTION: The initial report of the NBI points only to the
anomalies allegedly committed by the respondents brother, Antonio. The
appointment of his sister which was supposedly imposed on the complainant is
not supported by evidence other than the mere allegation of the latter.
The misdeeds committed by respondent were not based on facts as presented
by NBI.
55
It is therefore recommended that further investigation by NBI be conducted in
order to determine the veracity of the charges.
The Memorandum was recommended for approval by Acting Director Gualberto
J. de la Llana and approved on March 22, 1990 by Ombudsman Vasquez. [8]
On September 19, 1990, the NBI recommended the prosecution of
petitioner based on Abaos complaint.[9] Thus, on May 14, 1991, GIO II Caraos
formally directed petitioner to file his counter-affidavit and controverting evidence
to the complaint of May 6, 1988, with a warning that his failure to do so shall be
construed as a waiver of his right to be heard and the preliminary investigation
shall proceed accordingly.[10]On petitioners motion, the Ombudsman granted him
until September 7, 1991 within which to file his counter-affidavit. On September
7, 1991, petitioner sought another extension within which to file his counter-
affidavit.[11]
Petitioner filed his counter-affidavit on October 25, 1991.[12] He asserted that
he removed some employees from the lottery to avoid undue injury to the
government. He denied that he hired or caused to be hired his brother and sister
in the experimental lottery research as they maintained their affairs without his
interference. He also denied demanding or receiving any amount from Abao or
from the lottery operator as it was impossible for him to demand bribe money in
the form of a check. He claimed that Abaos complaint was a desperate effort to
malign him.[13]
On November 29, 1991, GIO II Caraos issued a Resolution stating that:
Evaluating the complaint, as well as the controverting evidence presented by the
respondent, we find prima facie case against herein respondent for Violation of
R.A. 3019.
At the outset, it must be stressed that in a preliminary investigation, it is not
required that all reasonable doubts on the accuseds guilt must be removed; what
is required only is that evidence be sufficient to establish probable cause that the
accused committed the offense charged. Moreover, as between the positive
assertions of complainant 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
clear and positive testimonies of the complainant and his witnesses pointing to
the herein respondent as responsible for various acts relative to the operation of
the lottery in Violation of the Anti-Graft law specifically Sec. 3 (a), (b), (c), (h) and
(k). Such finding is duly supported by the recommendation of the NBI report
which also recommended the filing of proper criminal charge against the
respondent.
Furthermore, most of the allegations of the respondents as contained in his
counter-affidavit are matters of defense which can be best ventilated in court

during trial. In fact, the other allegations of respondents which are mere
insinuations as to the motive of the complainant in filing the case, only deserve
scant consideration.
Wherefore, all legal premises considered, let an information be filed before the
proper court against respondent Raro.
SO RESOLVED.[14]
Director Cesar T. Palana recommended approval of the above Resolution
on December 5, 1991.[15] However, on January 27, 1992, Assistant Ombudsman
Abelardo L. Aportadera, Jr., who reviewed the Resolution, recommended its
disapproval and the dismissal of the complaint, on the ground that the NBI report
was based merely on testimonial evidence that would not suffice to establish a
prima facie case against herein petitioner. He averred that more than oral
evidence should support the charge of extortion and that petitioners witnesses
had amply clarified the charge of nepotism.[16]
On June 11, 1992, Special Prosecution Officer I (SPO I) Wendell E.
Barreras-Sulit, after reviewing the Resolution of GIO II Caraos, issued a
Memorandum finding that said Resolution did not fully discuss the evidence that
would support the particular charges recommended to be filed against
petitioner. After analyzing each of the charges, SPO I Barreras-Sulit concluded
that petitioner should only be charged with violation of Section 3 (b) of R.A. 3019
as there was prima facie case that petitioner received the total amount of
P116,000.00 on four different occasions. Attached to the Memorandum was the
information charging petitioner with violation of Section 3 (b) of Republic Act No.
3019.[17]
SPO I Barreras-Sulits Memorandum was approved by Deputy Special
Prosecutor Jose De G. Ferrer, Special Prosecutor Aniano A. Desierto and
Ombudsman Vasquez.[18] Hence, on July 2, 1992, an information dated May 19,
1992 prepared by SPO I Barreras-Sulit was filed with the
Sandiganbayan,[19] accusing petitioner with violation of Section 3 (b) of Republic
Act No. 3019 committed as follows:
That on or about the period from October, 1987 to January 1988, in Daet,
Camarines Norte, Manila and Quezon City, Philippines, and within the jurisdiction
of this Honorable Court, the above named accused, a public officer being then
the Corporate Secretary and Acting Department Manager of the Special Projects
Department of the Philippine Charity Sweepstakes Office (PCSO), San
Marcelino, Malate, Metro Manila, tasked to monitor and oversee the Small Town
Lottery Experimental Project of the PCSO in certain areas including Camarines
Norte, taking advantage of his said public position and while in the performance
of his official duties as such, did then and there, wilfully, unlawfully and criminally
demand and receive on four different occasions the amount totalling to ONE
56
HUNDRED SIXTEEN THOUSAND SEVEN HUNDRED NINETY NINE PESOS
and NINETY NINE CENTAVOS (P116,799.99), Philippine Currency, from Mr.
Luis Bing F. Abao, Provincial Manager of the STL operations in Camarines
Norte, as his share in the net proceeds of the said STL which was not authorized
under the law but which amount was given to and received by him in his capacity
as overseer and monitoring arm of the PCSO in the Small Town Lottery
operation in Camarines Norte.
CONTRARY TO LAW.
On July 6, 1992, the Sandiganbayan issued an order for petitioners arrest
and fixed bail in the amount of P12,000.00.[20] On the same day, petitioner
applied for bail before the Regional Trial Court of Cabanatuan City, Branch
26,[21] which forthwith approved the application.[22] On July 8, 1992, petitioner filed
with the Sandiganbayan a manifestation and motion for the lifting of the order of
arrest.[23] Accordingly, the Sandiganbayan recalled its order of arrest the following
day.[24]
Petitioner subsequently filed with the Sandiganbayan a motion for the
reinvestigation of the Resolution of the Ombudsman dated 11 June
1992,[25] alleging that:
1. The prejudicial and indecent delay in the preliminary investigation violated his
rights to due process of law and to speedy disposition of the case because while
the complaint was filed on May 20, 1988, the information against him was filed
more than four (4) years later.
2. Despite the delay in filing the information, hastiness attended the proceedings
in that he was not furnished a copy of the resolution on which the information
was based. Moreover, the information was dated May 19, 1992 or even before
the resolution that gave rise to it was finished on June 11, 1992. There was a
need for a reinvestigation to protect him from hasty, malicious and oppressive
prosecution.
3. The resolution of June 11, 1992 was a picture of legal and factual infirmities.
While no evidence supported the complaint other than the reports of NBI Agents
Duka and Lasala and the affidavits dated June 30, 1988 of Rene Ruidera and
Ben Galeon, these bases for the information were worthless pieces of
documents. Moreover, he was not furnished a copy of the NBI report showing
that he received P116,000.00 from the proceeds of the STL operation, and the
NBI never conducted a reinvestigation as required by NBI Director Carpio.
4. The complaint was based solely on the affidavit of Abao and those of Ruidera
and Galeon who were mere hearsay witnesses. The allegations in the complaint
were facts to be established (factum probandum) requiring further evidentiary
facts (factum probans). The only source of the charges, therefore, were the bare

assertions of Abao who was not a credible witness. He was consumed by
vengeance, because petitioner had him audited for unexplained disposition of
STL funds during Abaos campaign for mayor of Daet. Hence, to get back at
petitioner, Abao circulated fabrications and fairy tale against him even before the
Sandiganbayan.
After hearing, the Sandiganbayan granted the petitioners motion for
reinvestigation in a Resolution dated July 28, 1992, and ordered the defense to
file a motion for reconsideration and/or reinvestigation with the Office of the
Ombudsman within ten (10) days from July 29, 1992, and the prosecution to
conduct such reinvestigation and to terminate it on or before August 31,
1992. Likewise, the Sandiganbayan required the prosecution to furnish petitioner
a copy of the NBI Report of September 18, 1990, and reset the arraignment to
September 8, 1992 at 8:30 a.m. The Sandiganbayans directives were based on
the following findings:
We have gone over the grounds and arguments alleged in accuseds aforesaid
motion and We do not subscribe to the claim that there was prejudicial and
indecent delay in the preliminary investigation, considering that the initial
complaint filed by complainant Luis F. Abalo (sic) on May 20, 1988 had been
referred to the National Bureau of Investigation on July 1, 1988 and the report of
the latter agency was only submitted on September 18, 1990. Thereafter, Graft
Investigator II Theresa M. Caraos conducted a preliminary investigation, wherein
accused submitted his counter-affidavit denying the charges levelled against him,
culminating in the issuance of a resolution dated November 29, 1991,
recommending the filing of the proper information with this Court.
The Caraos (sic) resolution was reviewed by proper officials in the Office of the
Ombudsman, the latest of which was made by Special Prosecution Officer I
Wendell E. Barreras-Sulit, who adopted the recommendation for the filing only of
a charge under Section 3(b) of R.A. 3019 in her resolution of June 11, 1992.
However, the information, as prepared by Atty. Barreras-Sulit, is dated May 19,
1992 and approved by Ombudsman Conrado M. Vasquez on June 25, 1992 and
filed with this Court on July 2, 1992. On this score, We find nothing irregular with
respect to the afore-cited dates, despite the contention of the accused that there
was hastiness despite delay. Moreover, the doctrines enunciated in Tatad (159
SCRA 70) are not entirely on all fours with the situation depicted in the case at
bar, having been modified inLecaroz (G.R. Nos. 918223-35, promulgated June 7,
1990) and Gonzales (199 SCRA 298).
On the other hand, there appears to be some semblance of validity to accuseds
other grounds, to wit, that he was not furnished a copy of the NBI report during
the preliminary investigation, hence, he was not able to refute the allegations
contained therein and (2) (sic) that he was not furnished a copy of the resolution
upon which the information was based before the filing thereof, thus, he was
deprived of his right to file a motion for reconsideration. Under Administrative
57
Order No. 09, issued by the Ombudsman on October 15, 1991, which amended
Rule II, Section 7 of Rep. Act No. 6770 (sic), a respondent has five (5) days from
receipt of the resolution finding a prima facie case against him within which to file
a motion for reconsideration. Likewise, under Section 7 of Rule II, supra, he may
move for a reinvestigation based on errors or irregularities during the preliminary
investigation or on newly-discovered evidence.[26]
Petitioner filed with the Sandiganbayan a motion for extension of time to file
his motion for reinvestigation,[27] which was granted on August 13, 1992.[28]
On August 12, 1992, complainant Abao wrote a letter addressed to Special
Prosecution Officer III (SPO III) Roger Berbano, Sr. of the Sandiganbayan,
alleging that:
(1) Petitioner was not able to refute the charges against him of violation of
Section 3 (a), (b), (c), (h) and (k) of Republic Act No. 3019 except to discredit the
truth about the P116,000.00 he demanded and got from me;
(2) Petitioner admitted in a press conference the existence of a check in the
amount of P51,799.00 but his claim that it bounced was not true because the
check with Atty. Reynaldo Ilagan as payee was in his (Abaos) possession;
(3) The bribe money was good to the exact centavo because it was 25% of the
daily gross earnings of the lottery;
(4) He was not a dismissed employee of ELMEC because he financed and
managed the STL operation upon the prodding of PCSO through Atty. Raro and
he received commissions and percentages as late as March 1988 as shown by
vouchers signed by Marissa Raro-Remigio;
(5) His candidacy for mayor in the January 18, 1988 elections was never affected
by allegations of mismanagement; he stayed as the general manager of ELMEC
until March 1988; and
(6) The findings of Senator Maceda of the Senate Committee on Games and
Amusement that the operation of the STL was the source of corruption and
milking cow of corrupt PCSO officials and hence, its discontinuance upon the
order of the President, was the best evidence of corruption perpetrated by
petitioner.
On August 14, 1992, SPO III Berbano issued an Order stating that the
grounds and issues raised in petitioners motion for reinvestigation were clearly
matters of defense to be ventilated during the trial of the case on the merits.
Hence, he recommended the denial of the motion for reinvestigation, which

recommendation was approved by the Ombudsman, Conrado M. Vasquez, on
August 26, 1992.[29]
In the meantime, on August 18, 1992, petitioner filed with the Office of the
Ombudsman a motion for the reconsideration of the Ombudsmans Resolution of
June 11, 1992. He asserted that SPO I Barreras-Sulit based her Resolution on
the NBI Report of September 18, 1990 and the affidavits dated June 30, 1988 of
Rene Ruidera and Ben Galeon, all of which had no evidentiary value because
they are hearsay and basically based on information furnished them by Abao.
According to petitioner, the said Report was incomplete and inconclusive
because the findings therein needed further investigation. Reiterating his
arguments that factum probans is required during a preliminary investigation and
that Abao is not a credible witness, petitioner contended that he should be
spared from the trouble, expense and anxiety as well as the stigma resulting from
an open and public accusation of a crime.[30]
Subsequently, petitioner also filed with the Tanodbayan a Motion for a Last
Review of the Special Prosecutors Order of August 14, 1992. He alleged that the
Office of the Special Prosecutor (OSP) failed to take into consideration the very
motion for reconsideration that should have been the subject of that Order. He
contended that the OSP might not have been aware of the motions he filed for
extension of time within which to file the motion for reconsideration, and the
OSPs preparation of the Order of August 14, 1992 before it received the motion
for reconsideration constituted a gross procedural defect. Petitioner further
asserted that the minimum requirement for a meaningful determination of
probable cause should take into consideration the strength of the evidence of the
accused and the inherent baselessness of the complainants. He thus prayed that
the Resolution of June 11, 1992 recommending the filing of an information
against him be reversed, the complaint dismissed, and the information filed with
the Sandiganbayan withdrawn.[31]
The scheduled arraignment of petitioner on September 8, 1992 was
cancelled considering that the reinvestigation ordered by the Sandiganbayan had
not yet been terminated. The Sandiganbayan granted SPO III Berbano a twenty-
day extension within which to resolve the motion for reconsideration, and reset
the arraignment for October 2, 1992.[32]
On September 24, 1992, SPO III Berbano denied petitioners motion for
reconsideration and the motion for a last review, upon a finding that the
November 21, 1991 Resolution of GIO II Caraos and the Memorandum of SPO I
Barreras-Sulit, both of which bore the imprimatur of the Ombudsman, simply
signify that there exists a prima facie case or probable cause against
petitioner. Hence, he reiterated that the issues raised were evidentiary in nature
and should be resolved by the Sandiganbayan.[33]
Petitioner did not appear at his arraignment on October 2, 1992. Hence,
upon motion of the prosecution, a warrant for his arrest was issued. However,
petitioners counsel arrived late and undertook to bring the proper medical
58
certificate showing that petitioner was ill. The Sandiganbayan reset the
arraignment for October 12, 1992.[34] Later, petitioner sought the reconsideration
of the Order for his arrest on the ground that he was then suffering from viral
influenza and submitted a medical certificate to that effect. [35] The
Sandiganbayan considered that incident closed and terminated, and directed that
the arraignment should proceed on October 12, 1992.[36]
On that date, petitioner filed with the Sandiganbayan a motion to quash the
information,[37] on the ground that the court did not acquire jurisdiction in view of
violations of accuseds constitutional rights during the preliminary
investigation. He argued that the determination of probable cause by the
prosecuting officer does not preclude the courts from demanding further proof
thereon. Citing Brocka v. Enrile[38]where this Court held that a sham and hastily
conducted preliminary investigation may be lawfully enjoined, petitioner pointed
out the following as indicia of the falsity and hastiness of the proceedings before
the Ombudsman:
1. While the Resolution recommending the filing of an information was issued on
June 11, 1992, the information was already prepared on May 19, 1992 thereby
showing that said Resolution was no more than a formality. For petitioner, the
situation was akin to birth preced(ing) pregnancy.
2. SPO III Berbano denied the motion for reconsideration in his Order of August
14, 1992 or four (4) days before he filed the motion for reconsideration on August
18, 1992 thereby showing that the prosecutors were hell-bent and determined,
come high or low waters, reason or no reason, to proceed with their
determination to prosecute him. That procedure also made a mockery of the
Sandiganbayans Resolution of July 28, 1992 directing the Ombudsman to
conduct a reinvestigation of the case.
3. At the hearing on September 8, 1992, SPO III Berbano confided to his
counsel, Atty. Tomas Z. Roxas, Jr., that on August 14, 1992, Abao had sent him
a letter with the admonition that Berbano should not be like petitioners U.P.
fraternity brothers who would cover up petitioners corrupt and foul
deeds. Berbano was pressured by said letter as indicated by his denial on
August 14, 1992 of the motion for reconsideration yet to be filed on 18 August
1992. After all, Berbano was aspiring for the Bench and it was not a far-flung
conclusion that a favorable consideration of said motion for reconsideration may
prompt Abao to accuse him of partiality, Berbano being the UP fraternity brother
of the accused. Berbano in fact admitted to Roxas that he was being pressured
to deny petitioners motion for reconsideration.
4. Because the crime charged was for violation of Section 3 (b) of Republic Act
No. 3019, Abao should be charged as the briber. Abao never applied for
immunity from prosecution because his testimony was uncorroborated on
material points. Moreover, while petitioner was deprived information on what was

happening with the case, Abao was regularly furnished with progress reports
thereon. Abao publicized such reports in Camarines Norte in clear violation of
P.D. No. 749 mandating that proceedings in preliminary investigations shall be
strictly confidential to protect the reputation of the official involved.
Petitioner alleged further that there was a jurally and constitutionally
defective determination of probable cause as the complainant and his witnesses
were never personally examined by any of the officers at the Offices of the
Ombudsman and the Special Prosecutor. Neither was the complaint ever sworn
to before them. He argued once again on the failure of the NBI to conduct a
reinvestigation of the case and the hearsay nature of the affidavits of Ruidera
and Galeon.
On November 19, 1992, SPO III Berbano filed an opposition to the motion to
quash, arguing that all the pleadings filed by petitioner were duly considered, as
shown by the Orders of August 14, 1992 and September 24, 1992, both of which
were approved by his superiors, including the Ombudsman. While Atty. Roxas is
himself a Fraternity Brod of the Alpha Phi Beta Fraternity of UP, Berbano denied
that he was ever pressured into denying petitioners motion for reconsideration.
Furthermore, Berbano averred that petitioners ground for the motion to
quash, i.e., that the Sandiganbayan never acquired jurisdiction over an
information that was the result of a highly anomalous preliminary investigation,
may only be inferred from Section 3 (b) of Rule 117 of the 1985 Rules on
Criminal Procedure requiring the court to have jurisdiction over the offense
charged or over the person of the accused. By filing a motion to quash, petitioner
was deemed to have admitted the allegations in the information and hence, there
was only one way clear under the circumstances, and that was to proceed with
the trial of the case.[39]
The Sandiganbayan[40] denied the motion to quash for lack of merit. It found
no persuasive reason to depart from its earlier holding in the Resolution of July
28, 1992 that there was no indecent delay in the manner by which the preliminary
investigation was held. It ruled that the long period of time that the preliminary
investigation took was not meant to persecute petitioner. Neither was there clear
and convincing proof that SPO III Berbano succumbed to pressure and
considered petitioners pleadings with partiality. The Sandiganbayan stressed that
its authority to determine probable cause is limited only for the purpose of issuing
a warrant of arrest, and not for the purpose of justifying the filing or non-filing of
the Information. It found no compelling justification to disturb the findings made
by the prosecution of the existence of probable cause that caused it to file the
information, and that the objections raised by accused-movant on this point
involve matters which could be best passed upon by this Court during trial on the
merits. Thus, the Sandiganbayan set petitioners arraignment on November 23,
1992.[41]
Petitioners counsel once again moved for the resetting of the scheduled
arraignment on the ground that he was filing a motion for the reconsideration of
59
the Resolution denying his motion to quash. The Sandiganbayan gave him fifteen
(15) days within which to file the motion for reconsideration and the prosecution
ten (10) days from receipt of said motion within which to comment. Meanwhile,
the arraignment was reset to January 11, 1993.[42]
Petitioners motion for reconsideration was filed on December 8, 1992. He
reiterated therein that the preliminary investigation conducted was sham and
attended by irregularities amounting to violation of the very purpose for which
preliminary investigation was instituted in our statute books. He emphasized that
SPO III Berbano was indeed pressured into denying his motions because of his
application for judgeship. He claimed that the Sandiganbayan erred when it ruled
that the courts power to examine the conclusions drawn by the prosecutor after
the preliminary investigation is only for the purpose of determining the existence
of just and proper cause to issue a warrant of arrest. Relying on the ruling
in Salonga v. Cruz Pao[43] wherein this Court reviewed the prosecutions findings
of a prima facie case against Salonga, petitioner averred that it is infinitely more
important than conventional adherence to general rules of criminal procedure to
respect the citizens right to be free not only from arbitrary arrest and punishment
but also from unwarranted and vexatious prosecution.
The prosecution did not file a comment or opposition to the motion for
reconsideration. On January 5, 1993, the Sandiganbayan issued a Resolution
denying said motion for lack of merit and setting petitioners arraignment on
January 11, 1993. The Sandiganbayan held that petitioners allegations that the
preliminary investigation was sham and that SPO III Berbano was partial are not
supported by competent proof. Brushing aside said allegations as mere
speculations, the Sandiganbayan found no reason to depart from its earlier
conclusion that there was no compelling justification to disturb the prosecutions
finding of a probable cause.[44]
Hence, the instant petition for certiorari and prohibition with application for
the issuance of a temporary restraining order to enjoin respondents
Sandiganbayan, the Ombudsman and the People of the Philippines from
proceeding with Criminal Case No. 17800. On February 4, 1993, this Court
denied the prayer for temporary restraining order and required respondents to
comment on the petition.[45]Petitioners arraignment proceeded on February 19,
1993, where he entered a plea of not guilty to the crime charged. [46] On
September 21, 1993, after respondents filed their comment and petitioner his
reply thereto, this Court gave due course to the instant petition and required the
parties to file their respective memoranda.[47] Meanwhile, the Sandiganbayan
suspended proceedings in Criminal Case No. 17800 on account of the pendency
of the instant petition.[48]
Petitioner alleges in this petition for certiorari and prohibition that: (a) the
determination of probable cause in Criminal Case No. 17800 was constitutionally
defective because the Ombudsman, before filing the information, and the
Sandiganbayan, before issuing the warrant of arrest, failed to examine the
complainant under oath; (b) the preliminary investigation was hasty, malicious,

persecutory and based on inadmissible evidence thereby violating his right to
due process of law, and (c) the unexplained 4-year delay in resolving the
preliminary investigation, coupled with the favorable consideration of the
complaint albeit manifestly false and politically motivated, violated his
constitutional rights to speedy trial and to due process of law.[49]
At the outset, it is settled that a special civil action for certiorari and
prohibition is not the proper remedy to assail the denial of a motion to quash an
information. This is succinctly underscored in Quion v. Sandiganbayan as
follows:
The special civil action of certiorari or prohibition is not the proper remedy against
interlocutory orders such as those assailed in these proceedings; i.e., an order
denying a motion to quash the information, and one declaring the accused to
have waived his right to present evidence and considering the case submitted for
decision. As pointed out by the Office of the Solicitor General (citing
Nierras v. Dacuycuy, 181 SCRA 1 [1990]), and Acharon v. Purisima, et al., 13
SCRA 309; People v. Madaluyo, 1 SCRA 990), the established rule is that when
such an adverse interlocutory order is rendered, the remedy is not to resort
forthwith to certiorari or prohibition, but to continue with the case in due course
and, when an unfavorable verdict is handed down to take an appeal in the
manner authorized by law. It is only where there are special circumstances
clearly demonstrating the inadequacy of an appeal that the special civil action
of certiorari or prohibition may exceptionally be allowed. The Court has been
cited to no such special circumstances in the cases at bar.[50]
In the case at bar, there is no showing of such special circumstances. The
jurisdiction of the Ombudsman over the complaint is not even questioned by
petitioner[51] as his motion to quash the information is based on the allegedly
highly anomalous preliminary investigation that amounted to a denial of his rights
to due process and to speedy disposition of the charge against him. However, an
incomplete preliminary investigation[52]or the absence thereof[53] may not warrant
the quashal of an information. In such cases, the proper procedure is for the
Sandiganbayan to hold in abeyance any further proceedings conducted and to
remand the case to the Ombudsman for preliminary investigation or completion
thereof. However, granting arguendo that the preliminary investigation was sham
and highly anomalous in this case, that defect was cured when the above
procedure was in fact observed by the Sandiganbayan. Hence, on the issue
alone of the propriety of the remedy sought by petitioner, the instant petition
for certiorari and prohibition must fail. However, in the interest of justice, we shall
resolve the issue of whether or not the Ombudsman conducted the preliminary
investigation erroneously and irregularly.
Petitioner contends that both the Ombudsman and the Sandiganbayan
failed to examine the complainant personally to determine the existence of
probable cause that would warrant the filing of an information against him and,
consequently, the issuance of a warrant of arrest. He rues the fact that the
60
complaint filed by Abao against him was subscribed to before an ordinary notary
public and that the sworn statements of witnesses against him were sworn to
before a provincial fiscal, not deputized by the Ombudsman, but acting merely as
an officer authorized to administer oaths.[54]
Article XI, Section 12 of the 1987 Constitution, which was in force and effect
when Abao filed the complaint against petitioner, provides:
Sec. 12. The Ombudsman and his Deputies, as protectors of the people, shall
act promptly on complaints filed in any form or manneragainst public officials or
employees of the Government, or any subdivision, agency or instrumentality
thereof, including government-owned or controlled corporations, and shall, in
appropriate cases, notify the complainants of the action taken and the result
thereof. (Underscoring supplied.)
The mandate to act promptly on complaints filed in any form or
manner against officers or employees of the Government is restated in Section
13 of Republic Act No. 6770 (The Ombudsman Act of 1989), approved into law
on November 17, 1989. The same authority to act on complaints in any form,
either verbal or in writing, is also reiterated in Rule 1, Section 3 of the Rules of
Procedure of the Office of the Ombudsman, which is embodied in Administrative
Order No. 07 dated April 10, 1990, issued pursuant to the rule-making power of
the Ombudsman under Section 13 (8) of the 1987 Constitution and Sections 18,
23 and 27 of The Ombudsman Act of 1989.
In accordance with the foregoing constitutional and statutory provisions, this
Court, in Diaz v. Sandiganbayan,[55] held valid charges that were not made in
writing or under oath. This Court found as sufficient basis the Solicitor Generals
sworn testimony at the joint fact-finding investigation conducted by the Senate
Blue Ribbon Committee and the Ombudsman for the latter to conduct an
investigation. On the other hand, in Olivas v. Office of the Ombudsman,[56] where
the complaint against petitioner was initiated by anonymous letters, this Court
held that the PCGG, to whom the letters were addressed and who became the
complainant in the proceedings, should have reduced the evidence it had
gathered into affidavits. The submission of affidavits, provided for in Rule II,
Section 4 (a) of Administrative Order No. 07, is also required by due process in
adversary proceedings.[57] However, the submission of affidavits is not mandatory
and jurisdictional. Rule 1, Section 3 of the same administrative order merely
states that it is preferable that the complaint be in writing and under oath for its
speedier disposition. Clearly in consonance with the provision that the complaint
may be in any form, the Ombudsman Rules of Procedure does not require that
the complaint be subscribed only before the Ombudsman or his duly authorized
representative. In any event, the issue of the sufficiency in form of the complaint
was rendered moot and academic by petitioners filing of a counter-affidavit
wherein he controverted the allegations in the complaint.[58]

The referral of the complaint to the NBI does not mean that the Ombudsman
abdicated its constitutional and statutory duty to conduct preliminary
investigations. Article XI, Section 13 of the 1987 Constitution vests in the
Ombudsman the powers, functions and duties to:
(2) Direct, upon complaint or at its own instance, any public official or employee
of the Government, or any subdivision, agency or instrumentality thereof, as well
as of any government-owned or controlled corporation with original charter, to
perform and expedite any act or duty required by law, or to stop, prevent, and
correct any abuse or impropriety in the performance of duties.
(3) Direct the officer concerned to take appropriate action against a public official
or employee at fault, and recommend his removal, suspension, demotion, fine,
censure, or prosecution, and ensure compliance therewith. (Underscoring
supplied.)
Thus, by referring Abanos complaint to the NBI, the Ombudsman did not
thereby delegate the conduct of the preliminary investigation of the case to that
investigative bureau. What was delegated was only the fact-finding function,
preparatory to the preliminary investigation still to be conducted by the
Ombudsman.[59] Notably, under Rule II, Section 2 (d) of Administrative Order No.
07, the investigating officer has the option to forward the complaint to the
appropriate office or official for fact-finding investigation. While Administrative
Order No. 07 took effect in mid-1990[60] or after the complaint in this case was
referred to the NBI, the inclusion of that constitutionally sanctioned practice in the
Ombudsman Rules of Procedure lends validity to the Ombudsmans action in this
case.
Under the circumstances of this case, the Ombudsmans failure to personally
administer oath to the complainant does not mean that the Ombudsman did not
personally determine the existence of probable cause to warrant the filing of an
information.
Neither did the Sandiganbayan violate petitioners right to due process of law
by its failure to personally examine the complainant before it issued the warrant
of arrest. In a preliminary examination for the issuance of a warrant of arrest, a
court is not required to review in detail the evidence submitted during
the preliminary investigation. What is required is that the judge personally
evaluates the report and supporting documents submitted by the prosecution in
determining probable cause.[61] In the absence of evidence that the
Sandiganbayan did not personally evaluate the necessary records of the case,
the presumption of regularity in the conduct of its official business shall stand.
At this juncture, it is apropos to state once again the nature of a preliminary
investigation. In Cruz, Jr. v. People, the Court said:
61
It must be stressed that a preliminary investigation is merely inquisitorial, and it is
often the only means of discovering the persons who may be reasonably charged
with a crime, to enable the prosecutor to prepare his complaint or information. It
is not a trial of the case on the merits and has no purpose except that of
determining whether a crime has been committed and whether there is probable
cause to believe that the accused is guilty thereof, and it does not place the
persons against whom it is taken in jeopardy.
The established rule is that a preliminary investigation is not the occasion for the
full and exhaustive display of the parties evidence; it is for the presentation of
such evidence only as may engender a well-grounded belief that an offense has
been committed and that the accused is probably guilty thereof.
x x x x x x x x x.
The main function of the government prosecutor during the preliminary
investigation is merely to determine the existence of probable cause, and to file
the corresponding information if he finds it to be so. And, probable cause has
been defined as the existence of such facts and circumstances as would excite
the belief, in a reasonable mind, acting on the facts within the knowledge of the
prosecutor, that the person charged was guilty of the crime for which he was
prosecuted.[62]
In determining probable cause, an inquiry into the sufficiency of evidence to
warrant conviction is not required. It is enough that it is believed that the act or
omission complained of constitutes the offense charged. The trial of a case is
conducted precisely for the reception of evidence of the prosecution in support of
the charge.[63] In the performance of his task to determine probable cause, the
Ombudsmans discretion is paramount. Thus, in Camanag v. Guerrero, this Court
said:
x x x. (S)uffice it to state that this Court has adopted a policy of non-interference
in the conduct of preliminary investigations, and leaves to the investigating
prosecutor sufficient latitude of discretion in the exercise of determination of what
constitutes sufficient evidence as will establish probable cause for filing of
information against the supposed offender.[64]
Neither is there merit in petitioners contention that the preliminary
investigation conducted by the Ombudsman was hasty, malicious and
persecutory and that it was based on inadmissible evidence.
Petitioner emphasizes the fact that while the Resolution recommending the
filing of the information was issued on June 11, 1992, the information was
already prepared almost a month earlier on May 19, 1992.[65] This may show
oversight in the handling of the documents pertinent to this case considering that
the date of the information should have been corrected to conform to the date of

the resolution where its filing was approved by the prosecutors
superiors. However, such faux pas did not violate petitioners substantive
rights. The error in the date of the information did not affect its validity, especially
since the recommendation to file it was with the imprimatur of the Ombudsman
himself.
With respect to the denial by SPO III Berbano of the motion for
reinvestigation on August 14, 1992 or prior to petitioners filing of his motion for
reconsideration on August 18, 1992, the record shows that petitioner filed two
motions for extension of time to file the motion for reinvestigation without the
knowledge of SPO III Berbano. What the latter resolved on August 14, 1992 was
petitioners motion for reinvestigation before the Sandiganbayan. Likewise,
petitioners allegation that SPO III Berbano was not an impartial prosecutor
cannot be given credence for lack of sufficient proof thereon. SPO III Berbano is
presumed to have issued the Resolution denying the motion for reinvestigation in
the regular performance of his duties.
Neither is there factual support to petitioners claim that the 4-year delay in
the completion of the preliminary investigation is unexplained. The record clearly
shows that the Ombudsman exerted utmost effort to determine the veracity of
Abaos allegations against petitioner. That it took the NBI almost two years to
complete its report on the matter does not mean that petitioners right to speedy
disposition of the charge was brushed aside. If delay may be imputed in the
proceedings, the same should be reckoned only from October 25, 1991 when
petitioner filed his counter-affidavit.[66] Thirty-six (36) days thereafter or on
November 29, 1991, GIO II Caraos issued the Resolution recommending the
filing of the information. Further delay, if indeed it could be called one, was
caused by the review of GIO II Caraos recommendation by her superiors. Some
seven and a half months later, or on June 11, 1992, the information was filed with
the Sandiganbayan. There is thus no reason to conclude that the Ombudsman
ran roughshod over the petitioners right to a speedy preliminary investigation. In
the determination of whether or not that right has been violated, the factors that
may be considered and weighed are the length of delay, the reasons for such
delay, the assertion or failure to assert such right by the accused, and the
prejudice caused by the delay.[67]
The length of time it took before the conclusion of the preliminary
investigation may only be attributed to the adherence of the Ombudsman and the
NBI to the rules of procedure and the rudiments of fair play. The allegations of
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
provides a ten-day period from submission of the case within which an
investigating officer must come out with a resolution, that period of time is merely
directory.Thus:
The Court is not unmindful of the duty of the Ombudsman under the Constitution
and Republic Act No. 6770 to act promptly on Complaints brought before him.
62
But such duty should not be mistaken with a hasty resolution of cases at the
expense of thoroughness and correctness. Judicial notice should be taken of the
fact that the nature of the Office of the Ombudsman encourages individuals who
clamor for efficient government service to freely lodge their Complaints against
wrongdoings of government personnel, thus resulting in a steady stream of cases
reaching the Office of the Ombudsman.[68]
Finally, there is no ground to give credence to petitioners claim that the
complainant should be charged as a briber on account of his admission that he
gave petitioner some sum of money; or that evidence presented during the
preliminary investigation, specifically the affidavits of witnesses, were hearsay
and inadmissible. As we stated earlier, this Court cannot supplant the
Ombudsmans discretion in the determination of what crime to charge an
accused.
All told, this Court finds no reason to reverse the assailed Resolutions of the
Sandiganbayan. Petitioners insinuation that he was subjected to the proceedings
before the Ombudsman and the Sandiganbayan for politically motivated reasons,
has not been established with sufficient evidence. In the absence of any
imputation that public respondents were impelled by ill-motive in filing the case
against him, it is presumed that there is no such motive and that public
respondents merely filed the case to correct a public wrong.[69]
WHEREFORE, the instant petition for certiorari and prohibition is
DISMISSED for lack of merit. The assailed Resolutions of the Sandiganbayan
are hereby AFFIRMED. The Sandiganbayan is DIRECTED to proceed with
deliberate dispatch in the disposition of Criminal Case No. 17800.
SO ORDERED.
G.R. No. 85468 September 7, 1989
QUINTIN S. DOROMAL, petitioner,
vs.
SANDIGANBAYAN, OMBUDSMAN AND SPECIAL
PROSECUTOR, respondents.
GRIÑO-AQUINO, J.:
Brought up for review before this Court is the order dated August 19, 1988 of the
Sandiganbayan denying petitioner's motion to quash the information against him
in Criminal Case No. 12893, entitled "People of the Philippines vs. Hon. Quintin
S. Doromal," and the Sandiganbayan's order suspending him from office during
the pendency of the case.

In October 1987, Special Prosecution Officer II, Dionisio A. Caoili, conducted a
preliminary investigation of the charge against the petitioner, Quintin S. Doromal,
a former Commissioner of the Presidential Commission on Good Government
(PCGG), for- violation of the Anti-Graft and Corrupt Practices Act (RA 3019),
Sec. 3(h), in connection with his shareholdings and position as president and
director of the Doromal International Trading Corporation (DITC) which submitted
bids to supply P61 million worth of electronic, electrical, automotive, mechanical
and airconditioning equipment to the Department of Education, Culture and
Sports (or DECS) and the National Manpower and Youth Council (or NMYC).
On January 25,1988, with the approval of Special Prosecutor Raul Gonzales,
Caoili filed in the Sandiganbayan an information against the petitioner (Criminal
Case No. 12766) alleging :
That in or about the period from April 28, 19866 to October 16,
1987, in Metro Manila, Philippines and within the jurisdiction of
this Honorable Court, the above-named accused, a public officer,
being then Commissioner of the Presidential Commission on
Good Government, did then and there wilfully and
unlawfully have direct or indirect financial interest in the Doromal
International Trading Corporation, an entity which transacted or
entered into a business transaction or contract with the
Department of Education, Culture and Sports and the National
Manpower and Youth Council, both agencies of the government
which business, contracts or transactions he is prohibited by law
and the constitution from having any interest. (pp. 246-247,
Rollo; Emphasis supplied.)
The petitioner filed a petition for certiorari and prohibition in this Court
questioning the jurisdiction of the "Tanodbayan" to file the information without the
approval of the Ombudsman after the effectivity of the 1987 Constitution (G.R.
No. 81766, entitled "Doromal vs. Sandiganbayan").
On June 30, 1988, this Court annulled the information in accordance with its
decision in the consolidated cases ofZaldivar vs. Sandiganbayan, G.R. Nos.
79690-707 and Zaldivar vs. Gonzales, G.R. No. 80578, April 27, 1988 (160
SCRA 843), where it ruled that:
... the incumbent Tanodbayan (called Special Prosecutor under
the 1987 Constitution and who is supposed to retain powers and
duties NOT GIVEN to the Ombudsman) is clearly without
authority to conduct preliminary investigations and to direct the
filing of criminal cases with the Sandiganbayan, except upon
orders of the Ombudsman. This right to do so was lost effective
63
February 2, 1 987. From that time, he has been divested of such
authority.
Upon the annulment of the information against the petitioner, the Special
Prosecutor sought clearance from the Ombudsman to refile it.
In a Memorandum dated July 8,1988, the Ombudsman, Honorable Conrado
Vasquez, granted clearance but advised that "some changes be made in the
information previously filed." (p. 107, Rollo.)
Complying with that Memorandum, a new information, duly approved by the
Ombudsman, was filed in the Sandiganbayan (Criminal Case No. 12893),
alleging that:
..., the above-named accused [Doromal] a public officer, being
then a Commissioner of the Presidential Commission on Good
Government, did then and there wilfully and unlawfully,
participate in a business through the Doromal International
Trading Corporation, a family corporation of which he is the
President, and which company participated in the biddings
conducted by the Department of Education, Culture and Sports
and the National Manpower & Youth Council, which act or
participation is prohibited by law and the constitution. (p. 68,
Rollo; Emphasis supplied.)
On July 25, 1988, petitioner filed a "Motion to Quash" the information for being:
(a) invalid because there had been no preliminary investigation;
and
(b) defective because the facts alleged do not constitute the
offense charged (Annex C).
The Sandiganbayan denied the motion to quash in its orders dated July 25,1988
and August 19,1988 (Annexes D, N and 0, pp. 81,173 & 179, Rollo).
On August 22, 1988, the Special Prosecutor filed a "Motion to Suspend Accused
Pendente Lite" pursuant to Section 13 of the Anti- Graft and Corrupt Practices
Act (R.A. 3019). Over the petitioner's objection (because the President had
earlier approved his application for indefinite leave of absence as PCGG
commissioner "effective immediately and until final decision of the courts in your
case" [Annex S-1, p. 189, Rollo]), the Sandiganbayan on September 5, 1988
ordered his suspension pendente lite from his position as PCGG Commissioner
and from any other office he may be holding (Annex T). His motion for
reconsideration of that order was also denied by the Court (Annex Y). Hence, this

petition for certiorari and prohibition alleging that the Sandiganbayan gravely
abused its discretion: (1) in denying the petitioner's motion to quash the
information in Criminal Case No. 12893; and, (2) in suspending the petitioner
from office despite the President's having previously approved his indefinite leave
of absence " until final decision" in this case.
The petitioner contends that as the preliminary investigation that was conducted
prior to the filing of the original information in Criminal Case No. 12766 was
nullified by this Court, another preliminary investigation should have been
conducted before the new information in Criminal Case No. 12893 was filed
against him. The denial of his right to such investigation allegedly violates his
right to due process and constitutes a ground to quash the information.
On the other hand, the public respondent argues that another preliminary
investigation is unnecessary because both old and new informations involve the
same subject matter a violation of Section 3 (H) of R.A. No. 3019 (the Anti-Graft
and Corrupt Practices Act) in relation to Section 13, Article VII of the 1987
Constitution. Moreover, the petitioner allegedly waived the second preliminary
investigation by his failure to comply with the Court's Order dated August 12,
1988 directing him to submit a statement of new or additional facts, duly
supported by photo copies of documents which he would present should a new
preliminary investigation be ordered (Annex H, p. 94, Rollo).
The petition is meritorious. A new preliminary investigation of the charge against
the petitioner is in order not only because the first was a nullity (a dead limb on
the judicial tree which should be lopped off and wholly disregarded"-Anuran vs.
Aquino, 38 Phil. 29) but also because the accused demands it as his right.
Moreover, the charge against him had been changed, as directed by the
Ombudsman.
Thus, while the first information in Criminal Case No. 12766 charge that the
DITC-
entered into a business transaction or contract with the
Department of Education, Culture and Sports and the National
Manpower and Youth Council, ... which business, contracts or
transactions he [petitioner] is prohibited by law and the
constitution from having any interest. (P. 70, Rollo.)
the new information in Criminal Case No. 12883 alleges that the petitioner:
unlawfully participate[d] in a business through the Doromal
International Trading Corporation, a family corporation of which
he is the President, and which company participated in the
biddings conducted by the Department of Education, Culture and
64
Sports and the National Manpower & Youth Council, which act or
participation is prohibited by law and the constitution. (p. 68,
Rollo.)
The petitioner's right to a preliminary investigation of the new charge is secured
to him by the following provisions of Rule 112 of the 1985 Rules on Criminal
Procedure:
SEC. 3. Procedure. ... no complaint or information for an offense
cognizable by the Regional Trial Court shall be filed without a
preliminary investigation having been first conducted. .....
SEC. 7. When accused lawfully arrested without warrant.- When
a person is lawfully arrested without a warrant for an offense
cognizable by the Regional Trial Court, the complaint or
information may be filed by the offended party, peace officer or
fiscal without a preliminary investigation having been first
conducted; on the basis of the affidavit of the offended party or
arresting officer or person.
However, before the filing of such complaint or information, the
person arrested may ask for a preliminary investigation by a
proper officer in accordance with this Rules ....
If the case has been filed in court without a preliminary
investigation having been first conducted, the accused
may within five (5) days from the time he learns of the filing of
the information, ask for a preliminary investigation with the same
right to adduce evidence in his favor in the manner prescribed in
this Rule.
That right of the accused is "a substantial one." Its denial over his opposition is a
"prejudicial error, in that it subjects the accused to the loss of life, liberty, or
property without due process of law" (U.S. vs. Marfori, 35 Phil. 666).
The need to conduct a new preliminary investigation when the defendant
demands it and the allegations of the complaint have been amended, has been
more than once affirmed by this Court:
III. (a) ..., the Court finds that since the information for alleged
violation of the Anti-Graft Law was filed without any previous
notice to petitioners and due preliminary investigation thereof,
and despite the dismissal of the original charge for falsification
as being 'without any factual or legal basis, 'petitioners are
entitled to a new preliminary investigation for the graft

charge, with all the rights to which they are entitled under section
1 of Republic Act No. 5180, approved September 8, 1967, as
invoked by them anew from respondent court, viz, the submittal
of the testimonies in affidavit form of the complainant and his
witnesses duly sworn to before the investigating fiscal, and the
right of accused, through counsel, to cross-examine them and to
adduce evidence in their defense. In line with the settled doctrine
as restated in People vs. Abejuela (38 SCRA 324), respondent
court shall hold in abeyance all proceedings in the case before it
until after the outcome of such new preliminary investigation.
(Luciano vs. Mariano, 40 SCRA 187, 201; emphasis ours).
The right of the accused not to be brought to trial except when
remanded therefor as a result of a preliminary examination
before a committing magistrate, it has been held is a substantial
one. Its denial over the objections of the accused is prejudicial
error in that it subjects the accused to the loss of life, liberty or
property without due process of law. (Conde vs. Judge of Court
of First Instance of Tayabas, 45 Phil. 173,176.)
The absence of a preliminary investigation if it is not waived may
amount to a denial of due process. (San Diego vs. Hernandez,
24 SCRA 110, 114.)
In this jurisdiction, the preliminary investigation in criminal cases
is not a creation of the Constitution;its origin is statutory and it
exists and the right thereto can be invoked when so established
and granted by law. (Mariano Marcos, et al. vs. Roman A. Cruz,
68 Phil. 96; Emphasis supplied.)
The Solicitor General's argument that the right to a preliminary investigation may
be waived and was in fact waived by the petitioner, impliedly admits that the right
exists. Since the right belongs to the accused, he alone may waive it. If he
demands it, the State may not withhold it.
However, as the absence of a preliminary investigation is not a ground to quash
the complaint or information (Sec. 3, Rule 117, Rules of Court), the proceedings
upon such information in the Sandiganbayan should be held in abeyance and the
case should be remanded to the office of the Ombudsman for him or the Special
Prosecutor to conduct a preliminary investigation. Thus did We rule in Luciano
vs. Mariano, 40 SCRA 187, 201; Ilagan vs. Enrile 139 SCRA 349 and more
recently in Sanciangco, Jr. vs. People, 149 SCRA 1, 3-4:
The absence of preliminary investigation does not affect the
court's jurisdiction over the case. Nor do they impair the validity
65
of the information or otherwise render it defective; but, if there
were no preliminary investigations and the defendants, before
entering their plea, invite the attention of the court to their
absence, the court, instead of dismissing the information should
conduct such investigation, order the fiscal to conduct it or
remand the case to the inferior court so that the preliminary
investigation may be conducted. (See People vs. Gomez, 117
SCRA 72, 77-78; citing People vs. Casiano, 1 SCRA 478). In this
case, the Tanodbayan has the duty to conduct the said
investigation.
There is no merit in petitioner's insistence that the information should be quashed
because the Special Prosecutor admitted in the Sandiganbayan that he does not
possess any document signed and/or submitted to the DECS by the petitioner
after he became a PCGG Commissioner (p. 49, Rollo). That admission allegedly
belies the averment in the information that the petitioner "participated' in the
business of the DITC in which he is prohibited by the Constitution or by law from
having any interest. (Sec. 3-h, RA No. 3019).
The Sandiganbayan in its order of August 19, 1988 correctly observed that "the
presence of a signed document bearing the signature of accused Doromal as
part of the application to bid ... is not a sine qua non" (Annex O, p. 179. Rollo),
for, the Ombudsman indicated in his Memorandum/Clearance to the Special
Prosecutor, that the petitioner "can rightfully be charged ...with having
participated in a business which act is absolutely prohibited by Section 13 of
Article VII of the Constitution" because "the DITC remained a family corporation
in which Doromal has at least an indirect interest." (pp. 107-108, Rollo).
Section 13, Article VII of the 1987 Constitution provides that "the President, Vice-
President, the members of the Cabinet and their deputies or assistants shall
not... during (their) tenure, ...directly or indirectly... participate in any business."
The constitutional ban is similar to the prohibition in the Civil Service Law (PD
No. 807, Sec. 36, subpar. 24) that "Pursuit of private business ... without the
permission required by Civil Service Rules and Regulations" shall be a ground for
disciplinary action against any officer or employee in the civil service.
On the suspension of the petitioner from office, Section 13 of the Anti-Graft and
Corrupt Practices Act (RA 3019) provides:
SEC. 13. Suspension and loss of benefits.-Any public officer
against whom any criminal prosecution under a valid information
under this Act or under the provisions of the Revised Penal Code
on bribery is pending in court, shall be suspended from office.
Should he be convicted by final judgment, he shall lose all
retirement or gratuity benefits under any law, but if he is
 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. ....

Mere possession of timber without the legal documents required under forest laws and
regulations makes one automatically liable of violation of Section 68, Presidential Decree
(P.D.) No. 705,[1] as amended. Lack of criminal intent is not a valid defense.
This petition for review on certiorari seeks to reverse the June 28, 2005
Decision[2] of the Court of Appeals (CA) in CA-G.R. CR No. 26720 which affirmed in all
respects the Judgment[3] of the Regional Trial Court (RTC), Branch 38, Cagayan De Oro
City, finding petitioners guilty beyond reasonable doubt of violation of Section 68, P.D.
No. 705, as amended. Likewise assailed in this
petition is the September 22,2006 Resolution[4] denying petitioners Motion for
Reconsideration.[5]
Factual Antecedents
In a Criminal Complaint[6] filed before the Municipal Trial Court in Cities, Branch
4, Cagayan de Oro City by Marcelino B. Pioquinto (Pioquinto), Chief of the Forest
Protection and Law Enforcement Unit under the TL Strike Force Team of Department of
Environment and Natural Resources (DENR), petitioner Aniano Latayada (Latayada)
and three others namely, Barangay Captain Camilo Sudaria (Sudaria) of Tagpangi,
Cagayan de Oro City, Marlon Baillo (Baillo) and Cipriano Boyatac (Boyatac), were
charged with violation of Section 68, P.D. No. 705 as amended by Executive Order No.
277.[7]
Subsequently, however, the Office of the City Prosecutor of Cagayan de Oro
City issued a Resolution[8] dated March 13, 1996 recommending the filing of an
Information for the aforesaid charge not only against Latayada, Baillo and Boyatac but
also against petitioner Crisostomo Villarin (Villarin), then Barangay Captain of
Pagalungan, Cagayan de Oro City. The dismissal of the complaint against Sudaria was
likewise recommended. Said Resolution was then approved by the Office of the
Ombudsman-Mindanao through a Resolution[9] dated May 9, 1996 ordering the filing of
the Information in the RTC of Cagayan de Oro City.
67
Thus, on October 29, 1996, an Information[10] was filed against petitioners
Villarin and Latayada and their co-accused Baillo and Boyatac, for violation of Section 68,
P.D. No. 705 as follows:
That on or about January 13, 1996, in Pagalungan, Cagayan
de Oro City, Philippines, and within the jurisdiction of this Honorable
Court, pursuant to RA 7975, the accused, Crisostomo Villarin, a public
officer being the Barangay Captain of Pagalungan, this City, with salary
grade below 27, taking advantage of his official position and committing
the offense in relation to his office, and the other above-named
accused, all private individuals, namely: Marlon Baillo, Cipriano
Boyatac, and Aniano Latayada, confederating and mutually helping
one another did then and there, willfully, unlawfully and feloniously
gather and possess sixty-three (63) pieces flitches of varying sizes
belonging to the Apitong specie with a total volume of Four Thousand
Three Hundred Twenty Six (4,326) board feet valued at P108,150.00,
without any authority and supporting documents as required under
existing forest laws and regulation to the damage and prejudice of the
government.
CONTRARY TO LAW.[11]
On January 14, 1997, Villarin, Boyatac and Baillo, filed a Motion for
Reinvestigation.[12] They alleged that the Joint Affidavit[13]of the personnel of the DENR
which became one of the bases in filing the Information never mentioned Villarin as one
of the perpetrators of the crime while the accusations against Baillo and Boyatac were
not based on the personal knowledge of the affiants. They also asserted that their
indictment was based on polluted sources, consisting of the sworn statements of
witnesses like Latayada and Sudaria, who both appeared to have participated in the
commission of the crime charged.
Instead of resolving the Motion for Reinvestigation, the RTC, in its
Order[14] dated January 27, 1997, directed Villarin, Boyatac, and Baillo to file their Motion
for Reinvestigation with the Office of the Ombudsman-Mindanao, it being the entity which
filed the Information in Court. On March 31, 1997, only Villarin filed a Petition for
Reinvestigation[15] but same was, however, denied by the Office of the Ombudsman-
Mindanao in an Order[16] dated May 15, 1997 because the grounds relied upon were not
based on newly discovered evidence or errors of fact, law or irregularities that are

prejudicial to the interest of the movants, pursuant to Administrative Order No. 07 or the
Rules of Procedure of the Office of the Ombudsman in Criminal Cases. The Office of the
Ombudsman-Mindanao likewise opined that Villarin was directly implicated by Latayada,
his co-accused.
The RTC thus proceeded with the arraignment of the accused who entered separate
pleas of not guilty.[17] Thereafter, trial ensued.
The Version of the Prosecution
On December 31, 1995, at around five oclock in the afternoon, prosecution witness
Roland Granada (Granada) noticed that a public utility jeep loaded with timber stopped
near his house. The driver, petitioner Latayada, was accompanied by four to five other
persons, one of whom was Boyatac while the rest could not be identified
by Granada.[18] They alighted from the jeep and unloaded the timber 10 to 15 meters
away from the Batinay bridge at Barangay Pagalungan, Cagayan De Oro City. Another
prosecution witness, Pastor Pansacala (Pansacala), also noticed the jeep with plate
number MBB 226 and owned by Sudaria, loaded with timber.[19] Being then the president
of a community-based organization which serves as a watchdog of illegal cutting of
trees,[20] Pansacala even ordered a certain Mario Bael to count the timber.[21]
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
had no knowledge of any scheduled repair of the Batinay bridge she was surprised to
discover that the timber would be used for the repair. After inquiring from the people living
near the bridge, she learned that Latayada and Boyatac delivered the timber.[23]
Another prosecution witness, Ariel Palanga (Palanga), testified that at seven
oclock in the morning of January 1, 1996, Boyatac bought a stick of cigarette from his
store and requested him to cover the pile of timber near the bridge for a fee. Palanga
acceded and covered the pile with coconut leaves.[24]
68
On January 13, 1996, at around ten oclock in the morning, prosecution witness Juan
Casenas (Casenas), a radio and TV personality of RMN-TV8, took footages of the
timber[25] hidden and covered by coconut leaves. Casenas also took footages of more
logs inside a bodega at the other side of the bridge. In the following evening, the footages
were shown in a news program on television.
On the same day, members of the DENR Region 10 Strike Force Team measured the
timber which consisted of 63 pieces of Apitong flitches and determined that it totaled
4,326 board feet[26] and subsequently entrusted the same to Alarcon for safekeeping.
Upon further investigation, it was learned that the timber was requisitioned by Villarin,
who was then Barangay Captain of Pagulangan, Cagayan de Oro City. Villarin gave
Sudaria the specifications for the requisitioned timber. Thereafter, Boyatac informed
Villarin that the timber was already delivered on December 31, 1995.[27]
On January 18, 1996, Felix Vera Cruz (Vera Cruz), a security guard at the DENR Region
10 Office, received and signed for the confiscated timber since the property custodian at
that time was not around.
The filing of the aforestated Information followed.
The Version of the Defense
In response to the clamor of the residents of Barangays Tampangan, Pigsag-an,
Tuburan and Taglinao, all in Cagayan De Oro City, Villarin, decided to repair the
impassable Batinay bridge. The project was allegedly with the concurrence of
the Barangay Council.
Pressured to immediately commence the needed repairs, Villarin commissioned Boyatac
to inquire from Sudaria about the availability of timber without first informing the City
Engineer. Sudaria asked for the specifications which Villarin gave. Villarin then asked
Baillo and Boyatac to attend to the same. When the timber was already available, it was
transported from Tagpangi to Batinay. However, the timber flitches were seized by the
 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
The petition is unmeritorious.
Villarin was properly afforded
his right to due process.
Records show that the investigating prosecutor received a criminal complaint charging
Sudaria, Latayada, Baillo and Boyatac with violation of Section 68 of P.D. No. 705, as
amended.[38] The said complaint did not state the known addresses of the
accused. Neither was the notarized joint-affidavit of the complainants attached thereto.
Moreover, the absence of a proper preliminary investigation must be timely raised and
must not have been waived. This is to allow the trial court to hold the case in abeyance
and conduct its own investigation or require the prosecutor to hold a reinvestigation,
which, necessarily involves a re-examination and re-evaluation of the evidence already
submitted by the complainant and the accused, as well as the initial finding of probable
cause which led to the filing of the Informations after the requisite preliminary
investigation.[42]

Here, it is conceded that Villarin raised the issue of lack of a preliminary investigation in
his Motion for Reinvestigation. However, when the Ombudsman denied the motion, he
never raised this issue again. He accepted the Ombudsman's verdict, entered a plea of
not guilty during his arraignment and actively participated in the trial on the merits by
attending the scheduled hearings, conducting cross-examinations and testifying on his
own behalf. It was only after the trial court rendered judgment against him that he once
again assailed the conduct of the preliminary investigation in the Motion for
Reconsideration.[43] Whatever argument Villarin may have regarding the alleged absence
of a preliminary investigation has therefore been mooted. By entering his plea, and
actively participating in the trial, he is deemed to have waived his right to preliminary
investigation.
Petitioners also contend that Sudaria should also have been included as a principal in the
commission of the offense. However, whether Sudaria should or should not be included
as co-accused can no longer be raised on appeal. Any right that the petitioners may have
in questioning the non-inclusion of Sudaria in the Information should have been raised in
a motion for reconsideration of the March 13, 1996 Resolution of the Office of the City
Prosecutor which recommended the dismissal of the complaint
against Sudaria.[44] Having failed to avail of the proper
procedural remedy, they are now estopped from assailing his non-inclusion.
Two Offenses Penalized Under
Sec. 68 of Presidential Decree
No. 705.
Section 68 of P.D. No. 705, as amended, provides:
Section 68. Cutting, Gathering and/or Collecting Timber or
Other Forest Products Without License. Any person who shall cut,
gather, collect, remove timber or other forest products from any forest
land, or timber from alienable or disposable public land, or from private
land, without any authority, or possess timber or other forest products
without legal documents as required under existing forest laws and
regulations, shall be punished with the penalties imposed under
Articles 309 and 310 of the Revised Penal Code: Provided, that in the
case of partnerships, associations, or corporations, the officers who
71
ordered the cutting, gathering, collection or possession shall be liable,
and if such officers are aliens, they shall, in addition to the penalty, be
deported without further proceedings on the part of the Commission on
Immigration and Deportation.
There are two distinct and separate offenses punished under Section 68 of P.D. No. 705,
to wit:
(1) Cutting, gathering, collecting and removing timber or other forest products
from any forest land, or timber from alienable or disposable public land, or
from private land without any authorization; and
(2) Possession of timber or other forest products without the legal documents
required under existing forest laws and regulations.[45]
The Information charged petitioners with the second offense which is
consummated by the mere possession of forest products without the proper documents.
We reviewed the records and hold that the prosecution had discharged the
burden of proving all the elements of the offense charged. The evidence of the
prosecution proved beyond reasonable doubt that petitioners were in custody of timber
without the necessary legal documents. Incidentally, we note that several transcripts of
stenographic notes (TSNs) were not submitted by the trial court. No explanation was
provided for these missing TSNs. Notwithstanding the incomplete TSNs, we still find that
the prosecution was able to prove beyond reasonable doubt petitioners culpability.
The prosecution adduced several documents to prove that timber was
confiscated from petitioners. It presented a Tally Sheet[46] to prove that the DENR Strike
Force Team examined the seized timber on January 13, 1996. The number, volume and
appraised value of said timber were also noted in the Tally Sheet. Seizure receipts were
also presented to prove that the confiscated timber were placed in the custody of
Alarcon[47] and eventually taken to the DENR Office.[48] There was a photograph of the
timber taken by the television crew led by Casenas.[49]

The prosecution likewise presented in evidence the testimonies of
eyewitnesses Granada and Pansacala who testified that Latayada and Boyatac were the
ones who delivered the timber.[50]
More significantly, Villarin admitted that he was the one who commissioned the
procurement of the timber[51] for the repair of the Batinay bridge. He even deputized
Boyatac to negotiate with Sudaria and gave Latayada P2,000.00 to transport the
logs. Boyatac later informed him of the delivery of timber. However, he could not present
any document to show that his possession thereof was legal and pursuant to existing
forest laws and regulations.
Relevant portions of the testimony of Villarin are as follows:
Q As Barangay Captain of Pagalungan, of course, you heard reports
prior to the incident on December 31, 1995 that Barangay
Captain Camilo Sudaria was also engaged in supplying forest
products like forest lumber?
A Yes, because I always go to Cagayan de Oro and I can always ride
on his jeepney.
Q And you were sure that information of yours was received by you
and not only by one but several persons from Barangay
Tagpangi even up to Barangay Pagalungan?
A Thats true because he even has a record with the police.
Q And you learned [this] prior to January 1995?
A Yes, Sir.
Q And your information was even to the effect that Sudaria was
supplying illegally cut lumber regularly?
A What I have noticed because I always ride on his jeep wherein
lumber was being loaded, the lumber will be taken when it
arrived in Lumbia, kilometer 5.
Q Even if there were already raids being conducted to the person of
Camilo Sudaria, still he continued to load illegally cut lumber?
A He slowed down after several arrest because maybe he was
ashamed because he was the Barangay Captain of Tagpangi.
72
Q And his arrest and the slackening of his activities of illegally cut
lumber occurred prior to June 1995?
A Yes, sir.
Q [In spite] of your knowledge that he is engaged [in] illegally cut[ting]
forest products, you as Barangay Captain of Pagalungan
transacted with him for the purpose of acquiring lumber [for]
the bridge at Pagalungan?
A As we rode together in his jeep, he informed me that he has some
lumber to be used to build his house and he told me he will
sell it for the repair of the bridge in Pagalungan.
Q And because of that, in addition, you sent him the specifications of
materials for the repair of the bridge in Pagalungan?
A I let Boyatac go to him and [inquire] from him if he has those
specifications.
Q And he communicated to you that he has available lumber of those
specification?
A Yes, because he sent to Boyatac some requirements of the
specifications and he let me sign it.
Q And after that, you closed the [deal] with Sudaria?
A Yes, because I sent somebody to him and we did not talk anymore.
Q And thereafter on December 31, 1995, according to your testimony
before, Aniano Latayada delivered the lumber flitches you
ordered on board the passenger jeep of Camilo Sudaria?
A When the specifications were given, we were informed that the
lumber were already there. So, it was delivered.
Q Who informed you that the lumber were already delivered?
A Boyatac.
Q And he is referring to those lumber placed alongside
the Batinay Bridge.
A Yes, Sir.
Q And even without personally inspecting it, you immediately paid
Latayada the compensation for the delivery of those lumber?
A There was already an advance payment for his delivery.
 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

WHEREFORE, the petition is DENIED. The assailed Decision dated June 28,
2005 and the Resolution dated September 22, 2006 in CA-G.R. CR No. 26720
are AFFIRMED with the MODIFICATIONS that petitioners Crisostomo Villarin and
Aniano Latayada are each sentenced to suffer imprisonment of two (2) years, four (4)
months, and one (1) day of prision correccional, as minimum, to sixteen (16) years, eight
(8) months, and one (1) day of reclusion temporal, as maximum. The complaint against
Cipriano Boyatac is herebyDISMISSED.
G.R. No. 130644 March 13, 1998
THE MINOR FRANCISCO JUAN LARRANAGA, Represented in this Suit by
his mother, MARGARITA G. LARRANAGA, petitioner,
vs.
COURT OF APPEALS and PEOPLE OF THE PHILIPPINES, respondents.
RESOLUTION
PUNO, J.:
The following are submitted before the Court for resolution:
1. an urgent motion to implement petitioner's release
filed by petitioner on November 3, 1997;
2. a motion for reconsideration of this Court's resolution
of October 27, 1997 filed on November 17, 1997 by the
counsels for the prosecution in Crim. Case No. CBU-
45303 and 45304;
3. a complaint filed by Judge Martin A. Ocampo,
Presiding Judge, Regional Trial Court, Branch 7, Cebu
City, against petitioner's counsels, Attorneys Raymundo
A. Armovit, Ramon R. Teleron and Bernardito Florido,
for allegedly deliberately withholding from this Court the
omnibus order, supplemental order and order of
arraignment he issued on October 17, 1997, thus
misleading the Court into issuing its resolution of
October 27, 1997; and
75
4. an urgent motion to change the venue and the officers
to conduct the preliminary investigation filed by petitioner
on November 17, 1997.
The antecedent facts:
Petitioner Francisco Juan Larranaga is charged with two counts of kidnapping
and serious illegal detention docketed as CBU-45303 and CBU-45304 pending
before the Regional Trial Court (RTC), Branch 7, Cebu City. He is presently
detained at the Bagong Buhay Rehabilitation Center.
On October 1, 1997, petitioner, represented by his mother, Margarita G.
Larranaga, filed with this Court a petition for certiorari, prohibition
and mandamus with writs of preliminary prohibitory and mandatory injunction.
Petitioner alleged that he was denied the right to preliminary investigation and
sought to annul the informations as well as the warrant of arrest issued in
consequence thereof. In the alternative, petitioner prayed that a preliminary
investigation be conducted and that he be released from detention pending the
investigation.1 Petitioner filed a supplemental petition for habeas corpus or bail
on October 6, 1997.2
On October 20, 1997, the Solicitor General filed a manifestation and motion in
lieu of comment submitting that petitioner should have been given a regular
preliminary investigation before the filing of the informations and the issuance of
the warrant of arrest. The Solicitor General recommended that petitioner be
accorded his right to preliminary investigation and that he be released from
detention during the pendency thereof;3
On October 27, 1997, we issued a resolution holding that petitioner was deprived
of his right to preliminary investigation when the City Prosecutor of Cebu insisted
that he was only entitled to an inquest investigation.4Hence, we resolved:
1. to set aside the inquest investigation of petitioner and
to order the Office of the City Prosecutor of Cebu to
conduct a regular preliminary investigation of the
petitioner in accord with Section 3, Rule 112;
2. to annul the Order for Detention During The Pendency
of the Case issued by Executive Judge Priscila Agana
against the petitioner in Crim. Case No. CBU-45303 and
45304;
3. to order the immediate release of petitioner pending
his preliminary investigation; and

4. to order the Presiding Judge of Br. VII, RTC of Cebu
City to cease and desist from proceeding with the
arraignment and trial of petitioner in Crim. Case No.
CBU-45303 and 45304, pending the result of petitioner's
preliminary investigation.
On October 30, 1997, petitioner filed with the RTC of Cebu an urgent ex
parte motion praying for his immediate release pursuant to our October 27
resolution.5
The following day, on October 31, 1997, Judge Martin A. Ocampo, Presiding
Judge of RTC Branch 7, Cebu City, issued an order deferring the resolution of
petitioner's motion. It stated that it would be premature to act on the motion since
the trial court has not yet received an official copy of our October 27 resolution
and that said resolution has not yet attained finality. Furthermore, Judge Ocampo
called the Court's attention to the fact that petitioner has been arraigned on
October 14, 1997 and waived his right to preliminary
investigation. 6
On November 3, 1997, petitioner filed with this Court an urgent motion praying,
among others, that Judge Ocampo be directed to order petitioner's immediate
release upon receipt of our October 27 resolution.7
Judge Ocampo filed with this Court a letter-complaint dated November 3, 1997
alleging that petitioner's counsels, Attorneys Raymundo A. Armovit, Ramon R.
Teleron and Bernardito Florido, deliberately withheld from this Court the omnibus
order, supplemental order and order of arraignment, all issued by him on October
14, 1997 in connection with Crim. Case No. CBU-45303 and 45304. Judge
Ocampo alleged that by withholding said orders, petitioner's counsels unwittingly
misled the Court in its October 27 resolution.8
On November 17, 1997, the counsels for the prosecution in Crim. Case No.
CBU-45303 and 45304 filed a motion for reconsideration of our October 27
resolution. 9 They raised the following arguments:
1. Petitioner is charged with a continuing offense; hence,
his arrest and detention about two months after the
abduction of the victims was lawful;
2. Since petitioner was arrested without a warrant, his
case comes within the purview of Section 7 of Rule 112,
not under Section 3 thereof;
3. The filing of the informations in court and the issuance
of the corresponding warrants of arrest by Executive
76
Judge Priscila S. Agana cured whatever defect there
was in petitioner's arrest and detention;
4. Petitioner was validly arraigned on October 14, 1997
and the validity of such arraignment was not set aside by
this tribunal;
5. The case of Sanchez v. Demetriou squarely applies to
the instant case; and
6. Petitioner is no longer a minor pursuant to R.A. 6809.
The Solicitor General, meanwhile, in its comment to petitioner's urgent motion for
release, modified its stance regarding the validity of petitioner's detention. 10 It
stated:
Considering that petitioner was arraigned (a supervening event after the
filing of the petition and before the issuance of the TRO), petitioner
should be kept in detention without prejudice to his right to preliminary
investigation.11
Petitioner also filed on November 17, 1997 an urgent motion to transfer the
venue of the preliminary investigation from Cebu City to Manila and to replace
the Office of the City Prosecutor of Cebu with the Office of the State Prosecutor,
Department of Justice, as the authority to conduct the preliminary investigation
because of the extensive coverage of the proceedings by the Cebu media which
allegedly influenced the people's perception of petitioner's character and guilt.12
The primary issues to be resolved are: (1) whether petitioner is entitled to a
regular preliminary investigation, and (2) whether petitioner should be released
from detention pending the investigation.
We resolve the first issue in the affirmative.
The prosecutors argue that petitioner is entitled only to an inquest investigation
under Section 7 of Rule 112 since he was lawfully arrested without a warrant
under Section 5, Rule 113 of the Revised Rules of Court.
The prosecutors' argument is bereft of merit. Section 7 of Rule 11213 applies only
to persons lawfully arrestedwithout a warrant. Petitioner in this case was, in the
first place, not arrested either by a peace officer or a private person. The facts
show that on September 15, 1997, some members of the Philippine National
Police Criminal Investigation Group (PNP CIG) went to the Center for Culinary
Arts in Quezon City to arrest petitioner, albeitwithout warrant. Petitioner resisted

the arrest and immediately phoned his sister and brother-in-law. Petitioner's
sister sought the aid of Atty. Raymundo A. Armovit. Atty. Armovit, over the
phone, dissuaded the police officers from carrying out the warrantless arrest and
proposed to meet with them at the CIG headquarters in Camp Crame, Quezon
City. The police officers, yielded and returned to the CIG headquarters.
Petitioner, together with his sister and brother-in-law also went to the CIG
headquarters aboard their own vehicle. Atty. Armovit questioned the legality of
the warrantless arrest before CIG Legal Officer Ruben Zacarias. After consulting
with his superiors, Legal Officer Zacarias ordered to stop the arrest and allowed
petitioner to go home. Atty. Armovit made an undertaking in writing that he and
petitioner would appear before the Cebu City Prosecutor on September 17, 1997
for preliminary investigation.
An arrest is defined as the taking of a person into custody in order that he may
be bound to answer for the commission of an offense.14 It is made by an actual
restraint of the person to be arrested, or by his submission to the custody of the
person making the arrest. 15 An arrest signifies restraint on person, depriving one
of his own will and liberty, binding him to become obedient to the will of the
law.16 The foregoing facts show no restraint upon the person of petitioner.
Neither do they show that petitioner was deprived of his own will and liberty.
Hence, Section 7 of Rule 112 does not apply to petitioner.
To be sure, even if petitioner were arrested by the PNP CIG personnel, such
arrest would still be illegal because of the absence of a warrant. Section 5 of
Rule 113 states when a warrantless arrest is deemed lawful, thus:
Sec. 5. Arrest without a warrant; when lawful. — A peace officer or a
private person may, without a warrant, arrest a person:
(a) When, in his presence, the person to be arrested has committed, is
actually committing, or is attempting to commit an offense;
(b) When an offense has in fact just been committed, and he has
personal knowledge of facts indicating that the person to be arrested has
committed it; and
(c) When the person to be arrested is a prisoner who has escaped from
a penal establishment or place where he is serving final judgment or
temporarily confined while his case is pending, or has escaped while
being transferred from one confinement to another.
In cases falling under paragraphs (a) and (b) hereof, the person arrested
without a warrant shall be forthwith delivered to the nearest police station
or jail, and he shall be proceeded against in accordance with Rule 112,
Section 7.
77
It does not appear in the case at bar that petitioner has just committed, is actually
committing or is attempting to commit an offense when the police officers tried to
arrest him on September 15, 1997. In fact, petitioner was attending classes at the
Center for Culinary Arts at that time.
We reject the prosecutors' argument that petitioner was actually committing a
crime at the time of the arrest since kidnapping with serious illegal detention is a
continuing crime. In the case of Parulan v. Director of Prisons17 cited by the
prosecutors, kidnapping with illegal detention is considered a continuing crime
where the deprivation of liberty is persistent and continuing from one place to
another. The facts show that the alleged kidnapping was committed on July 16,
1997. One of the victims, Marijoy Chiong, was found dead in Sitio Tanawan,
Barangay Guadalupe, Carcar, Cebu on July 18, 1997, while the other victim,
Jacqueline Chiong, remains missing to date. There is no showing that at the time
of the arrest on September 15, 1997, Jacqueline Chiong was being detained by
petitioner who was then residing in Quezon City. Hence, the petitioner may not
be considered as continually committing the crime of kidnapping with serious
illegal detention at the time of the arrest.
Judge Martin Ocampo of RTC Branch 7, Cebu City, and the state prosecutors
assert that petitioner is no longer entitled to a preliminary investigation because
he had previously waived his right to such investigation. In his omnibus order
dated October 14, 1997, Judge Ocampo held that petitioner waived his right to
preliminary investigation when he failed to appear during the preliminary
investigation set by the City Prosecutor in the afternoon of September 17, 1997,
despite the express warning that "failure of the counsel (to present the petitioner
to the Cebu City Prosecutor on said time and date) would be treated as a waiver
of his client's right to preliminary investigation."
We disagree. A waiver, whether express or implied, must be made in clear and
unequivocal manner. Mere failure of petitioner and his counsel to appear before
the City Prosecutor in the afternoon of September 17, 1997 cannot be construed
as a waiver of his right to preliminary investigation, considering that petitioner has
been vigorously invoking his right to a regular preliminary investigation since the
start of the proceedings before the City Prosecutor. At 9:00 in the morning of
September 17, 1997, petitioner's counsel appeared before the City Prosecutor of
Cebu and moved that petitioner be accorded a regular preliminary investigation.
The City Prosecutor, however, denied the motion, stating that petitioner is
entitled only to an inquest investigation. Petitioner orally moved for a
reconsideration, to no avail. Petitioner assailed the decision of the City
Prosecutor before the Court of Appeals on a petition for certiorari, prohibition
and mandamus. After the Court of Appeals dismissed said petition, petitioner
went to this Court, still asserting that he should be accorded a regular preliminary
investigation.

Furthermore, petitioner and his counsel cannot be faulted for their refusal to
comply with the City Prosecutor's directive to appear before him in the afternoon
of September 17, 1997 for preliminary investigation. As stated above, petitioner's
counsel appeared before the City Prosecutor earlier that day and specifically
demanded a regular preliminary investigation for his client. The City Prosecutor,
however, insisted that petitioner was entitled only to an inquest investigation
which he scheduled in the afternoon of the same day. Petitioner and his counsel
refused to submit to such investigation as it might be construed as a waiver of
petitioner's right to a regular preliminary investigation.
Our ruling is not altered by the fact that petitioner has been arraigned on October
14, 1997. The rule is that the right to preliminary investigation is waived when the
accused fails to invoke it before or at the time of entering a plea at
arraignment.18 Petitioner, in this case, has been actively and consistently
demanding a regular preliminary investigation even before he was charged in
court. Also, petitioner refused to enter a plea during the arraignment because
there was a pending case in this Court regarding his right to avail of a regular
preliminary investigation.19Clearly, the acts of petitioner and his counsel are
inconsistent with a waiver. Preliminary investigation is part of procedural due
process. It cannot be waived unless the waiver appears to be clear and informed.
The nest question is whether petitioner should be released from detention
pending the investigation.
We rule in the negative.
The records show that on September 17, 1997, two informations were filed
against petitioner for kidnapping and serious illegal detention. 20 Executive Judge
Priscila Agana issued a warrant of arrest on September 19, 1997. 21Petitioner was
arrested on September 22, 1997 by virtue of said warrant. We held in Sanchez
v. Demetriou22 that the filing of charges and the issuance of the warrant of arrest
against a person invalidly detained will cure the defect of that detention or at
least deny him the right to be released because of such defect. The Court ruled:
The original warrantless arrest of the petitioner was doubtless illegal.
Nevertheless, the Regional Trial Court lawfully acquired jurisdiction over
the person of the petitioner by virtue of the warrant of arrest it issued on
August 26, 1993 against him and the other accused in connection with
the rape-slay cases. It was belated, to be sure, but it was nonetheless
legal.
Even on the assumption that no warrant was issued at all, we find that
the trial court still lawfully acquired jurisdiction over the person of the
petitioner. The rule is that if the accused objects to the jurisdiction of the
court over his person, he may move to quash the information, but only on
78
that ground. If, as in this case, the accused raises other grounds in the
motion to quash, he is deemed to have waived that objection and to have
submitted his person to the jurisdiction of the court.
The Court notes that on August 13, 1993, after the petitioner was
unlawfully arrested, Judge Lanzanas issued a warrant of arrest against
Antonio L. Sanchez in connection with Criminal Cases Nos. 93-124634
to 93-124637 for violation of R.A. No. 6713. Pending the issuance of the
warrant of arrest for the rape-slay cases, this first warrant served as the
initial justification for his detention.
The Court also adverts to its uniform ruling that the filing of charges, and
the issuance of the corresponding warrant of arrest, against a person
invalidly detained will cure the defect of that detention or at least deny
him the right to be released because of such defect. Applicable by
analogy to the case at bar is Rule 102 Section 4 of the Rules of Court
that:
Sec. 4. When writ is not allowed or discharge authorized.
— If it appears that the person alleged to be restrained
of his liberty is in the custody of an officer under process
issued by a court or judge or by virtue of a judgment or
order of a court of record, and that the court or judge had
jurisdiction to issue the process, render the judgment, or
make the order, the writ shall not be allowed; or if the
jurisdiction appears after the writ is allowed, the person
shall not be discharged by reason of any informality or
defect in the process, judgment, or order. Nor shall
anything in this rule be held to authorize the discharge of
a person charged with or convicted of an offense in the
Philippines or of a person suffering imprisonment under
lawful judgment.
In one case, the petitioner sued on habeas corpus on the ground that
she had been arrested by virtue of a John Doe warrant. In their return,
the respondents declared that a new warrant specifically naming her had
been issued, thus validating her detention. While frowning at the tactics
of the respondents, the Court said:
The case has, indeed, become moot and academic
inasmuch as the new warrant of arrest complies with the
requirements of the Constitution and the Rules of Court
regarding the particular description of the person to be
arrested. While the first warrant was unquestionably
void, being a general warrant, release of the petitioner

for that reason will be a futile act as it will be followed by
her immediate re-arrest pursuant to the new and valid
warrant, returning her to the same prison she will just
have left. This Court will not participate in such a
meaningless charade.
The same doctrine has been consistently followed by the Court more
recently in the Umil case. 23 (citations omitted)
We hold, therefore, that petitioner's detention at the Bagong Buhay Rehabilitation
Center is legal in view of the information and the warrant of arrest against him.
The absence of a preliminary investigation will not justify petitioner's release
because such defect did not nullify the information and the warrant of arrest
against him.24 We ruled in Sanciangco, Jr. v. People:25
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
information or otherwise render it defective; but, if there were no
preliminary investigations and the defendants, before entering their plea,
invite the attention of the court to their absence, the court, instead of
dismissing the information, should conduct it or remand the case to the
inferior court so that the preliminary investigation may be conducted. 26
As regards petitioner's motion to change the venue and the authority to conduct
the preliminary investigation, we are constrained to dismiss the same for lack of
jurisdiction. The holding of a preliminary investigation is a function of the
Executive Department and not of the Judiciary.27 Petitioner should therefore
address their plea to the Department of Justice that has control and supervision
over the conduct of preliminary investigations.
Nonetheless, even if the Court had jurisdiction over the issue, petitioner's motion
should still be denied because it failed to allege and prove that the City
Prosecutor of Cebu has been actually affected by the publicity. We held inWebb
v. De Leon:28
Be that as it may, we recognize that pervasive and prejudicial publicity
under certain circumstances can deprive an accused of his due process
right to fair trial. Thus, in Martelino, et al. vs. Alejandro, et al., we held
that to warrant a finding of prejudicial publicity there must be allegation
and proof that the judges have been unduly influenced, not simply that
they might be, by the barrage of publicity. In the case at bar, we find
nothing in the records that will prove that the tone and content of the
publicity that attended the investigation of petitioners fatally infected the
fairness and impartiality of the DOJ Panel. Petitioners cannot just rely on
the subliminal effects of publicity on the sense of fairness of the DOJ
79
Panel, for these are basically unbeknown and beyond knowing. To be
sure, the DOJ Panel is composed of an Assistant Chief State Prosecutor
and Senior State Prosecutors. Their long experience in criminal
investigation is a factor to consider in determining whether they can
easily be blinded by the klieg lights of publicity. Indeed, their 26-page
Resolution carries no indubitable indicia of bias for it does not appear
that they considered any extra-record evidence except evidence properly
adduced by the parties. The length of time the investigation was
conducted despite its summary nature and the generosity with which
they accommodated the discovery motions of petitioners speak well of
their fairness. At no instance, we note, did petitioners seek the
disqualification of any member of the DOJ Panel on the ground of bias
resulting from their bombardment of prejudicial publicity. 29
We cannot sustain appellant's claim that he was denied the right to
impartial trial due to prejudicial publicity. It is true that the print and
broadcast media gave the case at bar pervasive publicity, just like all
high profile and high stake criminal trials. Then and now, we rule that the
right of an accused to a fair trial is not incompatible to a free press. To be
sure, responsible reporting enhances an accused's right to a fair trial for,
as well pointed out, "a responsible press has always been regarded as
the handmaiden of effective judicial administration, especially in the
criminal field . . . ." The press does not simply publish information about
trials but guards against the miscarriage of justice by subjecting the
police, prosecutors, and judicial processes to extensive public scrutiny
and criticism.
Pervasive publicity is not per se prejudicial to the right of an accused to
fair trial. The mere fact that the trial of the appellant was given a day-to-
day, gavel-to-gavel coverage does not by itself prove that the publicity so
permeated the mind of the trial judge and impaired his impartiality. For
one, it is impossible to seal the minds of members of the bench from 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
straight to our breakfast tables and to our bedrooms. These news form
part of our everyday menu of the facts and fictions of life. For another,
our idea of a fair and impartial judge is not that of a hermit who is out of
touch with the world. We have not installed the jury system whose
members are overly protected from publicity lest they lose their
impartiality. Criticisms against the jury system are mounting and Mark
Twain's wit and wisdom put them all in better perspective when he
observed: "When a gentleman of high social standing, intelligence, and
probity swears that testimony given under the same oath will outweigh
with him, street talk and newspaper reports based upon mere hearsay,

he is worth a hundred jurymen who will swear to their own ignorance and
stupidity . . . . Why could not the jury law be so altered as to give men of
brains and honesty an equal chance with fools and miscreants?" Our
judges are learned in the law and trained to disregard off-court evidence
and on-camera performances of parties to a litigation. Their mere
exposure to publications and publicity stunts does not per se fatally infect
their impartiality.
At best, appellant can only conjure possibility of prejudice on the part of
the trial judge due to the barrage of publicity that characterized the
investigation and trial of the case. In Martelino, et al. v. Alejandro, et al.,
we rejected this standard of possibility of prejudice and adopted the test
of actual prejudice as we ruled that to warrant a finding or prejudicial
publicity, there must be allegation and proof that the judges have been
unduly influenced, not simply that they might be, by the barrage of
publicity. In the case at bar, the records do not show that the trial judge
developed actual bias against appellant as a consequence of the
extensive media coverage of the pre-trial and trial of his case. The
totality of circumstances of the case does not prove this actual bias and
he has not discharged the burden.31
We likewise dismiss the complaint filed by Judge Martin A. Ocampo against
Attorneys Raymundo A. Armovit, Ramon R. Teleron and Bernardito Florido for
lack of concrete evidence to prove that said lawyers deliberately withheld from
the Court the orders he issued with intent to mislead the Court.
Finally, we also deny the motion of the prosecutors to dismiss the petition on the
ground that it was not filed by the proper party. The prosecutors argue that
petitioner Francisco Juan Larranaga is no longer a minor under R.A. 6809, thus,
his mother, Margarita G. Larranaga, does not have the authority to file the instant
petition as his representative. It appears, however, that on October 6, 1997,
petitioner's mother filed a supplemental petition forhabeas corpus on his behalf.
This converted the petition at bar to one for habeas corpus. Section 3, Rule 102
of the Revised Rules of Court states that a petition for habeas corpus may be
filed either by the party for whose relief it is intended or by some person on his
behalf.
IN VIEW WHEREOF, we resolve to: (1) REITERATE our order to the Office of
the City Prosecutor of Cebu to conduct a regular preliminary investigation of
petitioner and to the Presiding Judge of RTC, Branch 7, Cebu City to cease and
desist from proceeding with the trial of petitioner until a preliminary investigation
shall have been conducted; (2) SET ASIDE our order to immediately release
petitioner pending the preliminary investigation and thus DENY petitioner's urgent
motion to implement petitioner's release; (3) DISMISS Judge Ocampo's
complaint against Attorneys Raymundo A. Armovit, Ramon R. Teleron and
80
Bernardito Florido; and (4) DENY petitioner's motion to change the venue and
the authority to conduct the preliminary investigation.
SO ORDERED.
G.R. No. 170288 September 22, 2006
PEDRO E. BUDIONGAN, JR., Municipal Mayor; JOSIL E. TRABAJO,
Municipal Vice Mayor and Presiding Officer of the Sangguniang Bayan;
FULGENCIO V. PAÑA, Municipal Treasurer; TACIANA B. ESPEJO,
Municipal Budget Officer; and SB Members: RUFINO G. ADLAON, TITO R.
MONTAJES, MARIO M. SORIA, ALFONSO L. UNAJAN, CARLITO B.
TORREFRANCA, VICENTE A. TORREFRANCA, JR., etitioners,
vs.
HON. JACINTO M. DELA CRUZ, JR., Asst. Special Prosecutor I; HON.
CORNELIO L. SONIDO, Acting Director, Prosecution Bureau IV; HON.
ROBERT E. KALLOS, Deputy Special Prosecutor; HON. DENNIS M. VILLA
IGNACIO, The Special Prosecutor; HON. WENDELL E. BARRERAS-SULIT,
Acting Director, Case Assessment, Review and Re-investigation Bureau;
and OFFICE OF THE SPECIAL PROSECUTOR, public respondents.
VALERIANO U. NADALA, ARLENE PAINAGAN-PALGAN, private
respondents.
DECISION
YNARES-SANTIAGO, J.:
This Petition for Certiorari under Rule 65 of the Rules of Court assails the
Memorandum1 dated April 28, 2004 of the Office of the Special Prosecutor,
Office of the Ombudsman, recommending that petitioners be charged with
violation of Section 3(e) of Republic Act (R.A.) No. 3019 and petitioner Pedro E.
Budiongan with violation of Section 3(h) of R.A. No. 3019. Also assailed is the
Resolution2 dated October 19, 2005 denying petitioners' motion for
reconsideration.
The antecedent facts are as follows:
By virtue of Municipal Ordinance No. 2, series of 2001, the Municipality of
Carmen, Bohol appropriated the amount of P450,000.00 for the purchase of a
road roller for the municipality. However, on November 16, 2001, the Municipal
Development Council through Resolution No. 3 recommended that the amount of
P450,000.00 be realigned and used for the asphalt laying of a portion of the Tan
Modesto Bernaldez Street.3 The proposed realignment was included in the
December 21, 2001 agenda of the Sangguniang Bayan of Carmen but
discussion thereon was deferred.

On February 6, 2002, petitioner Municipal Treasurer, Fulgencio V. Paña, issued
a Certificate of Availability of Funds for the project. Thereafter, the Office of the
Municipal Engineer prepared a Program of Works and Cost Estimates duly
noted/approved by Municipal Budget Officer Taciana B. Espejo and Mayor
Budiongan.
Bidding was conducted on March 5, 2002. The next day, March 6, 2002, Mayor
Budiongan issued the Notice of Award and Notice to Commence Work in favor of
Herbert Malmis General Merchandise and Contractor, Inc. who emerged as the
lowest complying bidder. On March 22, 2002, the Sangguniang Bayan passed
Resolution No. 60,4 series of 2002, authorizing Mayor Budiongan to sign and
enter into contract with Malmis relative to the above project in the amount of
P339,808.00. With such authority, Malmis commenced with the project.
Thereafter, it was discovered that there was yet no ordinance approving the
realignment of the funds. Thus, on May 17, 2002, the Sangguniang Bayan
passed Ordinance No. 8,5 series of 2002, approving the realignment of the fund.
On June 14, 2002, Malmis was paid the contract price.
On July 3, 2002, private respondents Arlene P. Palgan and Valeriano U. Nadala
filed a complaint6 against the petitioners before the Office of the Deputy
Ombudsman for Visayas alleging illegality in the conduct of the bidding, award
and notice to commence work since there was no fund appropriated for the
purpose.
On July 31, 2003, the Office of the Deputy Ombudsman for Visayas found
probable cause and recommended the filing of an information for violation of
Article 2207 of the Revised Penal Code against the petitioners. However, the
complaint against Hermosila Logrono, Desiderio Gudia, Jr. and Herbert Malmis
was dismissed for lack of merit.8
Upon review, the Case Assessment, Review and Reinvestigation Bureau of the
Office of the Special Prosecutor, issued the assailed Memorandum dated April
28, 2004, modifying the charge from violation of Article 220 of the Revised Penal
Code to (1) violation of Section 3(e) of R.A. No. 3019 against petitioners for
allegedly giving unwarranted benefit to Malmis and (2) violation of Section 3(h) of
R.A. No. 3019 against petitioner Budiongan for allegedly "directly or indirectly
having financial or pecuniary interest in a contract or transaction in connection
with which he intervenes or takes part in his official capacity."
Thus, two separate Informations were filed before the Sandiganbayan (1) for
violation of Section 3(e) of R.A. No. 3019 against the petitioners docketed as
Criminal Case No. 28075 and (2) for violation of Section 3(h) of R.A. No. 3019
against petitioner Budiongan docketed as Criminal Case No. 28076.
81
Thereafter, petitioners filed a Motion to Quash9 the information charging them
with violation of Sec. 3(e) of R.A. No. 3019. In a Resolution10 dated June 10,
2005, the Sandiganbayan granted the motion to quash and remanded Criminal
Case No. 28075 to the Office of the Ombudsman for amendment of the
Information. It held that although Malmis benefited from the contract, the same is
not unwarranted considering that the project was implemented, executed and
completed.
On June 27, 2005, an Amended Information11 was filed charging petitioners with
violation of Sec. 3(e) of R.A. No. 3019, alleging that petitioners, by prematurely
awarding to Malmis the project despite the absence of funds specifically
appropriated for such purpose, and thereafter paying the contract price from the
Municipal Treasury which was originally appropriated for the purchase of a road
roller, caused damage and undue injury to the government.
Finding that the Amended Information contains all the material averments
necessary to make out a case for the first mode of violating Section 3(e) of R.A.
No. 3019, i.e., causing any undue injury to any party, including the government,
the Sandiganbayan admitted the Amended Information in its Resolution dated
August 18, 2005.12
On even date, petitioners filed with the Sandiganbayan a Motion for Leave of
Court to File Motion for Reinvestigation13 arguing that the above Informations
were filed without affording them the opportunity to file counter-affidavits to
answer/rebut the modified charges. On September 20, 2005, the Sandiganbayan
issued a Resolution14 denying the motion insofar as Criminal Case No. 28076 is
concerned. It held that it is too late in the day to remand the case for
reinvestigation considering that Budiongan had already been arraigned and the
case had long been set for pre-trial proceedings, with both parties having filed
their respective briefs. As regards Criminal Case No. 28075, the Sandiganbayan
noted that although the conduct of the preliminary investigation was regular,
petitioners however were not given the opportunity to seek reconsideration of the
modified charges. Thus, it granted leave to the petitioners to file with the Office of
the Special Prosecutor a motion for reconsideration (not a motion for
reinvestigation) of the said office's Memorandum dated April 28, 2004.
Petitioners filed a Motion for Reconsideration with the Office of the Special
Prosecutor which was denied for lack of merit in the Resolution dated October
19, 2005.
Hence, this petition raising the following issues:
I. WHETHER PUBLIC RESPONDENTS ACTED WITH GRAVE ABUSE
OF DISCRETION AMOUNTING TO LACK OR IN EXCESS OF
JURISDICTION IN REJECTING THE FINDINGS AND

AMENDING/MODIFYING THE RESOLUTION OF THE GRAFT
INVESTIGATING OFFICER, OMBUDSMAN VISAYAS, AND IN FILING
THE INFORMATION FOR VIOLATION OF SEC. 3(e) OF RA 3019
WITHOUT AFFORDING PETITIONERS THE OPPORTUNITY TO
PRESENT THEIR COUNTER EVIDENCE IN A RE-INVESTIGATION;
II. WHETHER THE REFUSAL OR FAILURE TO CONDUCT A RE-
INVESTIGATION HAS VIOLATED PETITIONERS' RIGHT TO DUE
PROCESS;
III. WHETHER PUBLIC RESPONDENTS ACTED WITH GRAVE ABUSE
OF DISCRETION AMOUNTING TO LACK OR IN EXCESS OF
JURISDICTION IN ISSUING RESOLUTIONS DATED APRIL 28, 2004
AND OCTOBER 19, 2005 FINDING PROBABLE CAUSE FOR
VIOLATION OF SEC. 3(e) OF RA 3019 AGAINST HEREIN
PETITIONERS; and
IV. WHETHER PUBLIC RESPONDENTS ACTED WITH GRAVE ABUSE
OF DISCRETION AMOUNTING TO LACK OR IN EXCESS OF
JURISDICTION IN FILING THE INFORMATION FOR VIOLATION OF
SEC.3(e) OF RA 3019 AGAINST PETITIONERS IN THE
SANDIGANBAYAN DOCKETED AS CRIMINAL CASE NO. 28075.
Petitioners maintain that the modification of the charge from violation of Article
220 of the Revised Penal Code to violation of Sections 3(e) and 3(h) of R.A. No.
3019 denied their rights to due process since they were not given the opportunity
to answer and present evidence on the new charge in a preliminary investigation.
Furthermore, the petitioners argue that public respondents committed grave
abuse of discretion amounting to lack or excess of jurisdiction in issuing the
challenged resolutions finding probable cause for violation of R.A. No. 3019.
The petition lacks merit.
The right to a preliminary investigation is not a constitutional right, but is merely a
right conferred by statute. The absence of a preliminary investigation does not
impair the validity of the Information or otherwise render the same defective. It
does not affect the jurisdiction of the court over the case or constitute a ground
for quashing the Information.15 If absence of a preliminary investigation does not
render the Information invalid nor affect the jurisdiction of the court over the case,
then the denial of a motion for reinvestigation cannot likewise invalidate the
Information or oust the court of its jurisdiction over the case.
Petitioners were not deprived of due process because they were afforded the
opportunity to refute the charges by filing their counter-affidavits. The
modification of the offense charged did not come as a surprise to the petitioners
82
because it was based on the same set of facts and the same alleged illegal acts.
Moreover, petitioners failed to aver newly discovered evidence nor impute
commission of grave errors or serious irregularities prejudicial to their interest to
warrant a reconsideration or reinvestigation of the case as required under
Section 8, Rule III of the Rules of Procedure of the Office of the
Ombudsman.16 Thus, the modification of the offense charged, even without
affording the petitioners a new preliminary investigation, did not amount to a
violation of their rights.
Furthermore, the right to preliminary investigation is deemed waived when the
accused fails to invoke it before or at the time of entering a plea at
arraignment.17 Petitioner Budiongan was arraigned in Criminal Case No. 28076
on March 28, 2005. He was also arraigned together with the rest of the
petitioners under the Amended Information in Criminal Case No. 28075 on
December 2, 2005.
The purpose of a preliminary investigation is merely to determine whether a
crime has been committed and whether there is probable cause to believe that
the person accused of the crime is probably guilty thereof and should be held for
trial.18 A finding of probable cause needs only to rest on evidence showing that
more likely than not a crime has been committed and was committed by the
suspect. Probable cause need not be based on clear and convincing evidence of
guilt, neither on evidence establishing guilt beyond reasonable doubt and
definitely, not on evidence establishing absolute certainty of guilt." 19
The Office of the Special Prosecutor is an integral component of the
Ombudsman and is under the latter's supervision and control. Thus, whatever
course of action that the Ombudsman may take, whether to approve or to
disapprove the recommendation of the investigating prosecutor, is but an
exercise of his discretionary powers based upon constitutional mandate.
Generally, courts should not interfere in such exercise. It is beyond the ambit of
this Court to review the exercise of discretion of the Ombudsman in prosecuting
or dismissing a complaint filed before it, save in cases where there is clear
showing of grave abuse of discretion amounting to lack or excess of jurisdiction
on the part of the Ombudsman.20 Absent any showing of arbitrariness on the part
of the prosecutor or any other officer authorized to conduct preliminary
investigation, as in the instant case, courts as a rule must defer to said officer's
finding and determination of probable cause, since the determination of the
existence of probable cause is the function of the prosecutor.21
In fine, certiorari will not lie to invalidate the Office of the Special Prosecutor's
resolution denying petitioners' motion for reconsideration since there is nothing to
substantiate petitioners' claim that it gravely abused its discretion in ruling that
there was no need to conduct a reinvestigation of the case.22

WHEREFORE, in view of the foregoing, the instant petition is DISMISSED. The
assailed Memorandum of the Office of the Special Prosecutor, Office of the
Ombudsman, dated April 28, 2004 finding probable cause that petitioners
violated Sections 3(e) and 3(h) of Republic Act No. 3019 and the Resolution
dated October 19, 2005 denying petitioners' Motion for Reconsideration, are
hereby AFFIRMED.
SO ORDERED.
Panganiban, Austria-Martinez, Callejo, Sr., Chico-Nazario, , J.J., concur.
G.R. Nos. 71404-09 October 26, 1988
HERMILO RODIS, SR., petitioner,
vs.
THE SANDIGANBAYAN, SECOND DIVISION, and PEOPLE OF THE
PHILIPPINES, respondents.
Quisimbing & Associates for petitioner.
The Solicitor General for respondents.
FERNAN, C.J.:
This is a petition for certiorari with prayer for a writ of preliminary injunction
seeking to annul the Resolution 1 of the Sandiganbayan dated July 15, 1985
denying herein petitioner's Motion to Quash the Informations in Criminal Cases
Nos. 10389, 10390, 10391, 10393, and 10394 pending before said court and to
enjoin the arraignment, pre-trial and trial herein.
The antecedents are as follows:
On May 22, 1985, petitioner Hermilo v. Rodis, Sr., former President of the
Philippine Underwriters Finance Corporation (PHILFINANCE) together with some
other persons, was charged before the Sandiganbayan in separate informations
docketed therein as Criminal Cases Nos. 10389, 10390, 10391, 10393 and
10394 with five (5) counts of violation of Section 3(b) of Republic Act No. 3019,
otherwise known as the Anti-Graft and Corruption Practices Act.
On May 31, 1985, petitioner filed a motion to quash said informations as against
him on the ground of lack of preliminary investigation, with the alternative prayer
that the "issue and/or enforcement of the warrant of arrests as against him be
83
held in abeyance while he seeks a reinvestigation by the Tanodbayan pursuant
to his right of (sic) preliminary investigation. 2
In its opposition to said motion, the Prosecution cited as basis therefor Sec. 3,
Rule 117 of the 1985 Rules on Criminal Procedure enumerating the grounds for
a motion to quash. It argued that since lack of preliminary investigation is not
among those enumerated thereunder, the motion to quash on this ground should
be denied for lack of merit and instead, petitioner should be ordered to file his
Petition for Reinvestigation and/or Motion for Reconsideration in accordance with
Section 13 of the Revised Rules of Procedure of the Tanodbayan. 3
Petitioner filed a Reply to the Opposition controverting the prosecution's claim
that lack of preliminary investigation is not a ground for quashing the information;
but manifesting that he would file a petition for re-investigation with the
Tanodbayan as suggested. 4 This he did, on June 24,1985.
On July 15, 1985, while petitioner's petition for reinvestigation was pending action
by the Tanodbayan, the Sandiganbayan promulgated the assailed resolution
denying petitioner's motion to quash for lack of merit, stating:
... this Court is of the considered opinion that the alleged
absence of preliminary investigation with respect to the accused
movant (herein petitioner) or his inability to participate in the
preliminary investigation for the reason that he was not duly
served with a subpoena is not a proper ground for a motion to
quash. If the accused was not afforded due preliminary
investigation, the proper remedy for him is to file a Petition for
Reinvestigation with the Office of the Tanodbayan, pursuant to
Section (13) of Administrative Order No. 111 of the Revised
Rules of Procedure of the Tanodbayan, promulgated on
December 1, 1979. 5
On the premise that no appeal or any plain and speedy remedy in the ordinary
course of law will prove adequate under the circumstances obtaining in the case
at bar arraignment, pre-trial and trial having been set on August 26, 27 and 28,
1985—and on the allegation that in denying his motion to quash, respondent
Sandiganbayan had acted with grave abuse of discretion amounting to lack or
excess of jurisdiction, petitioner brought the instant petition.
On August 1, 1985, the Court issued a Temporary Restraining Order enjoining
the respondent Sandiganbayan from proceeding with the arraignment, pre-trial
and trial of Criminal Cases Nos. 10389, 10390, 10391, 10392, 610393 and
10394. 7

Petitioner contends that while it may be true that lack of preliminary investigation
neither affects the jurisdiction of the court nor impairs the validity of the
information filed, nonetheless such lack of preliminary investigation affects the
regularity of the proceedings which led to the filing of the information, such that in
several cases, the Court had ordered the quashal of the information on said
ground; and that although lack of preliminary investigation is not enumerated as
one of the grounds for a motion to quash, the Sandiganbayan can nevertheless
order the quashal of the informations pursuant to its inherent power to amend
and control its processes so as to make them conformable to law and
justice. 8 He further claims that given the chance to be heard on preliminary
investigation, he will demonstrate to the Tanodbayan that he had no participation
in the transactions complained of, except in one where he merely approved for
reimbursement representation expense incurred by one subordinate to him, the
Executive Vice-President, and after it had been approved by one superior to him,
the vice-Chairman of the Executive Committee and Chief Executive Officer of the
(PHILFINANCE).
Respondent People of the Philippines on the other hand avers that as petitioner
does not dispute that a preliminary investigation was indeed conducted, what he
is really protesting against is the lost opportunity to participate therein due to the
alleged failure of the Tanodbayan to serve a subpoena upon him. It is, however,
contended that this alleged failure did not affect the regularity of the preliminary
investigation as the Tanodbayan is justified under Section 3, Rule 112 of the
1985 Rules of Criminal Procedure in proceeding with the preliminary
investigation after an attempt to subpoena petitioner at the latter's known address
proved unavailing, and in basing its resolution on the evidence presented by the
complainant.
The analysis of respondent People, thru the Solicitor General, as to the real
nature of the controversy at bar is correct. It is not disputed that a preliminary
investigation was conducted by the Tanodbayan prior to the filing of the
informations. Petitioner, however, was not able to participate therein as the
subpoena addressed to him at (PHILFINANCE) his last known address, was
returned "unserved," petitioner having already severed his employment with said
company at the time of service. As petitioner reportedly left (PHILFINANCE)
under most unfriendly circumstances, PHILFINANCE did not give the process
server his residence address on record with it.
Under Section 3, sub-section (d) of Rule 112 of the 1985 Rules on Criminal
Procedure, "if the respondent cannot be subpoenaed, or if subpoenaed, does not
submit counter-affidavits within the ten (10) day period, the investigating officer
shall base his resolution on the evidence presented by the complainant." It is to
be noted that this provision does not require as a condition sine qua non to the
validity of the proceedings the presence of the accused for as long as efforts to
reach him were made, and an opportunity to controvert the evidence of the
complainant is accorded him. The obvious purpose of the rule is to block
84
attempts of unscrupulous respondents to thwart the prosecution of offenses by
hiding themselves or by employing dilatory tactics.
Considering that petitioner has voluntarily appeared before the respondent
Sandiganbayan in connection with the criminal cases in question and has
appeared in other preliminary investigations of other PHILFINANCE charges filed
in various fiscals' offices and the Ministry (now Department) of Justice, it is
apparent that the non-service of the subpoena upon him was not of his own
doing or liking. To apply the full force and effect of section 3, sub-section (d) of
Rule 112 of the 1985 Rules on Criminal Procedure would, to our mind, greatly
prejudice him.
It is worthwhile repeating that the avowed purposes of a preliminary investigation
are "to secure the innocent against hasty, malicious and oppressive prosecution,
and to protect him from an open and public accusation of crime, from the trouble,
expense and anxiety of' a public trial, and also to protect the state from useless
and expensive trials 9 and while the "absence of preliminary investigations does
not affect the court's jurisdiction over the case (n)or do they impair the validity of
the information or otherwise render it defective, but, if there were no preliminary
investigations and the defendants, before entering their plea, invite the attention
of the court to their absence, the court, instead of dismissing the information,
should conduct such investigation, order the fiscal to conduct it or remand the
case to the inferior court so that the preliminary investigation may be
conducted. 10 In this case, the Tanodbayan, has the duty to conduct the said
investigation. 11
Thus, although the Sandiganbayan was correct in ruling that the absence of a
preliminary investigation is not a ground for quashing an information, it should
have held the proceedings in the criminal cases in abeyance pending resolution
by the Tanodbayan of petitioner's petition for reinvestigation, as alternatively
prayed for by him in his motion to quash.
During the pendency of the case at bar, petitioner manifested to the Court that in
a Joint Order dated September 26, 1985, Tanodbayan Special Prosecutors
Roger C. Berbano Sr. and Eleuterio F. Guerrero had recommended that the
separate petitions for reinvestigation filed by petitioner and his co-accused be
given due course by the Tanodbayan and that said special prosecutors be given
clearance and authority to conduct such reinvestigation. Although it appears that
these recommendations were approved by then Tanodbayan Bernardo P.
Fernandez on October 14, 1985 12 no further report on this matter has reached
the Court. As we cannot assume that the reinvestigation was indeed conducted
as would render the instant petition moot and academic, and considering the
importance of the issue involved, we deemed it proper to decide the petition on
the merits.

WHEREFORE, the assailed resolution of the respondent Sandiganbayan dated
July 15, 1985 in Criminal Cases Nos. 10389, 10390, 10391, 10393 and 10394 is
hereby affirmed, but respondent Sandiganbayan is ordered to hold in abeyance
the proceedings therein with respect to petitioner, subject to the outcome of the
reinvestigation of the Tanodbayan of the aforesaid cases. The Temporary
Restraining Order issued by the Court on August 1, 1985 is deemed superseded
by this directive.
SO ORDERED.
G.R. No. 216920, January 13, 2016
GIRLIE M. QUISAY, Petitioner, v. PEOPLE OF THE PHILIPPINES, Respondent.
DECISION
PERLAS-BERNABE, J.:
Assailed in this petition for review on certiorari1 are the Decision2 dated October
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.
Quisay's (petitioner) Motion to Quash before the Regional Trial Court of Makati,
Branch 144 (RTC).chanRoblesvirtualLawlibrary
The Facts
On December 28, 2012, the Office of the City Prosecutor of Makati City (OCP-
Makati) issued a Pasiya4or Resolution finding probable cause against petitioner
for violation of Section 10 of Republic Act No. (RA) 7610,5 otherwise known as
the "Special Protection of Children Against Abuse, Exploitation and
Discrimination Act." Consequently, a Pabatid Sakdal6 or Information was filed
before the RTC on January 11, 2013 charging petitioner of such crime.
On April 12, 2013, petitioner moved for the quashal of the Information against her
on the ground of lack of authority of the person who filed the same before the
RTC. In support of her motion, petitioner pointed out that the Pasiya issued by
the OCP-Makati was penned by Assistant City Prosecutor Estefano H. De La
Cruz (ACP De La Cruz) and approved by Senior Assistant City Prosecutor
Edgardo G. Hirang (SACP Hirang), while the Pabatid Sakdal was penned by
ACP De La Cruz, without any approval from any higher authority, albeit with a
Certification claiming that ACP De La Cruz has prior written authority or approval
from the City Prosecutor in filing the said Information. In this regard, petitioner
claimed that nothing in the aforesaid Pasiya and Pabatid Sakdal would show that
ACP De La Cruz and/or SACP Hirang had prior written authority or approval from
the City Prosecutor to file or approve the filing of the Information against her. As
85
such, the Information must be quashed for being tainted with a jurisdictional
defect that cannot be cured.7chanroblesvirtuallawlibrary
In its Comment and Opposition,8 the OCP-Makati countered that the review
prosecutor, SACP Hirang, was authorized to approve the Pasiya pursuant to
OCP-Makati Office Order No. 32.9 Further, it maintained that the Pabatid
Sakdal was filed with the prior approval of the City Prosecutor as shown in the
Certification in the Information itself.10chanRoblesvirtualLawlibrary
The RTC Ruling
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
sufficiently complied with Section 4, Rule 112 of the Rules of Court which
requires the prior written authority or approval by, among others, the City
Prosecutor, in the filing of Informations.12chanroblesvirtuallawlibrary
Petitioner moved for reconsideration,13 which was, however, denied in an
Order14 dated July 10, 2013. Aggrieved, petitioner elevated the matter to the
CA via a petition for certiorari.15chanRoblesvirtualLawlibrary
The CA Ruling
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
Service Act of 2010," as well as OCP-Makati Office Order No. 32, the City
Prosecutor of Makati authorized SACP Hirang to approve the issuance of, inter
alia, resolutions finding probable cause and the filing of Informations before the
courts. As such, SACP Hirang may, on behalf of the City Prosecutor, approve
the Pasiya which found probable cause to indict petitioner of violation of Section
10 of RA 7610.18chanroblesvirtuallawlibrary
Further, it held that the Certification made by ACP De La Cruz in the Pabatid
Sakdal clearly indicated that the same was filed after the requisite preliminary
investigation and with the prior written authority or approval of the City
Prosecutor. In this regard, the CA opined that such Certification enjoys the
presumption of regularity accorded to a public officer's performance of official
functions, in the absence of convincing evidence to the
contrary.19chanroblesvirtuallawlibrary
Undaunted, petitioner moved for reconsideration,20 but was denied in a
Resolution21 dated January 30, 2015; hence, this
petition.chanRoblesvirtualLawlibrary
The Issue Before the Court

The core issue for the Court's resolution is whether or not the CA correctly held
that the RTC did not gravely abuse its discretion in dismissing petitioner's motion
to quash.chanRoblesvirtualLawlibrary
The Court's Ruling
The petition is meritorious.
Section 4, Rule 112 of the 2000 Revised Rules on Criminal Procedure states that
the filing of a complaint or information requires a prior written authority or
approval of the named officers therein before a complaint or information may be
filed before the courts, viz.:
SECTION 4. Resolution of investigating prosecutor and its review. - If the
investigating prosecutor finds cause to hold the respondent for trial, he shall
prepare the resolution and information. He shall certify under oath in the
information that he, or as shown by the record, an authorized officer, has
personally examined the complainant and his witnesses; that there is reasonable
ground to believe that a crime has been committed and that the accused is
probably guilty thereof; that the accused was informed of the complaint and of
the evidence submitted against him; and that he was given an opportunity to
submit controverting evidence. Otherwise, he shall recommend the dismissal of
the complaint.
Within five (5) days from his resolution, he shall forward the record of the case to
the provincial or city prosecutor or chief state prosecutor, or to the Ombudsman
or his deputy in cases of offenses cognizable by the Sandiganbayan in the
exercise of its original jurisdiction. They shall act on the resolution within ten (10)
days from their receipt thereof and shall immediately inform the parties of such
action.
No complaint or information may be filed or dismissed by an investigating
prosecutorwithout the prior written authority or approval of the provincial
or city prosecutoror chief state prosecutor or the Ombudsman or his deputy.
x x x x (Emphases and underscoring supplied)
Thus, as a general rule, complaints or informations filed before the courts without
the prior written authority or approval of the foregoing authorized officers renders
the same defective and, therefore, subject to quashal pursuant to Section 3 (d),
Rule 117 of the same Rules, to wit:
SECTION 3. Grounds. - The accused may move to quash the complaint or
information on any of the following grounds:
86
xxxx
(d) That the officer who filed the information had no authority to do so;
x x x x (Emphasis and underscoring supplied)
In this relation, People v. Garfin22 firmly instructs that the filing of an Information
by an officer without the requisite authority to file the same constitutes a
jurisdictional infirmity which cannot be cured by silence, waiver, acquiescence, or
even by express consent. Hence, such ground may be raised at any stage of the
proceedings.23chanroblesvirtuallawlibrary
In the case at bar, the CA affirmed the denial of petitioner's motion to quash on
the grounds that: (a) the City Prosecutor of Makati may delegate its authority to
approve the filing of the Pabatid Sakdalpursuant to Section 9 of RA 10071, as
well as OCP-Makati Office Order No. 32; and (b) the Pabatid Sakdal contained a
Certification stating that its filing before the RTC was with the prior written
authority or approval from the City Prosecutor.
The CA correctly held that based on the wordings of Section 9 of RA 10071,
which gave the City Prosecutor the power to "[investigate and/or cause to be
investigated all charges of crimes, misdemeanors and violations of penal laws
and ordinances within their respective jurisdictions, and have the necessary
information or complaint prepared or made and filed against the persons
accused,"24 he may indeed delegate his power to his subordinates as he may
deem necessary in the interest of the prosecution service. The CA also correctly
stressed that it is under the auspice of this provision that the City Prosecutor of
Makati issued OCP-Makati Office Order No. 32, which gave division chiefs or
review prosecutors "authority to approve or act on any resolution, order,
issuance, other action, and any information recommended by any prosecutor for
approval,"25 without necessarily diminishing the City Prosecutor's authority to act
directly in appropriate cases.26 By virtue of the foregoing issuances, the City
Prosecutor validly designated SACP Hirang, Deputy City Prosecutor Emmanuel
D. Medina, and Senior Assistant City Prosecutor William Celestino T. Uy as
review prosecutors for the OCP-Makati.27chanroblesvirtuallawlibrary
In this light, the Pasiya or Resolution finding probable cause to indict petitioner of
the crime charged, was validly made as it bore the approval of one of the
designated review prosecutors for OCP-Makati, SACP Hirang, as evidenced by
his signature therein.
Unfortunately, the same could not be said of the Pabatid Sakdal or Information
filed before the RTC, as there was no showing that it was approved by either the
City Prosecutor of Makati or any of the OCP-Makati's division chiefs or review
prosecutors. All it contained was a Certification from ACP De La Cruz which
stated, among others, that "DAGDAG KO PANG PINATUTUNAYAN na

angpaghahain ng sakdal na ito ay may nakasulat na naunang pahintulot o
pagpapatibay ng Panlunsod na Taga-Usig"28 - which translates to "and that the
filing of the Information is with the prior authority and approval of the City
Prosecutor."
In the cases of People v. Garfin,29Turingan v. Garfin,30 and Tolentino v.
Paqueo31 the Court had already rejected similarly-worded certifications, uniformly
holding that despite such certifications, the Informations were defective as it was
shown that the officers filing the same in court either lacked the authority to do so
or failed to show that they obtained prior written authority from any of those
authorized officers enumerated in Section 4, Rule 112 of the 2000 Revised Rules
of Criminal Procedure.
Here, aside from the bare and self-serving Certification, there was no proof that
ACP De La Cruz was authorized to file the Pabatid Sakdal or Information before
the RTC by himself. Records are bereft of any showing that the City Prosecutor
of Makati had authorized ACP De La Cruz to do so by giving him prior written
authority or by designating him as a division chief or review prosecutor of OCP-
Makati. There is likewise nothing that would indicate that ACP De La Cruz sought
the approval of either the City Prosecutor or any of those authorized pursuant to
OCP-Makati Office Order No. 32 in filing thePabatid Sakdal. Quite frankly, it is
simply baffling how ACP De La Cruz was able to have the Pasiyaapproved by
designated review prosecutor SACP Hirang but failed to have the Pabatid
Sakdalapproved by the same person or any other authorized officer in the OCP-
Makati.
In view of the foregoing circumstances, the CA erred in according the Pabatid
Sakdal the presumption of regularity in the performance of official functions solely
on the basis of the Certification made by ACP De La Cruz considering the
absence of any evidence on record clearly showing that ACP De La Cruz: (a)
had any authority to file the same on his own; or (b) did seek the prior written
approval from those authorized to do so before filing the Information before the
RTC.
In conclusion, the CA erred in affirming the RTC's dismissal of petitioner's motion
to quash as 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.
Hence, the Pabatid Sakdal must be quashed, resulting in the dismissal of the
criminal case against petitioner.
As a final note, it must be stressed that "[t]he Rules of Court governs the
pleading, practice, and procedure in all courts of the Philippines. For the orderly
administration of justice, the provisions contained therein should be followed by
all litigants, but especially by the prosecution arm of the
Government."32chanroblesvirtuallawlibrary
87
WHEREFORE, the petition is GRANTED. The Decision dated October 10, 2014
and the Resolution dated January 30, 2015 of the Court of Appeals in CA-G.R.
SP No. 131968 are hereby REVERSED andSET ASIDE. Accordingly, the
Information against petitioner Girlie M. Quisay is QUASHED and the criminal
case against her is DISMISSED.
SO ORDERED.cralawlawlibrary
Sereno, C.J., (Chairperson), Leon
G.R. No. 147932 January 25, 2006
LAILA G. DE OCAMPO, Petitioner,
vs.
THE HONORABLE SECRETARY OF JUSTICE, MAGDALENA B. DACARRA,
and ERLINDA P. ORAYAN,Respondents.
DECISION
CARPIO, J.:
The Case
This petition for certiorari1 assails the Resolutions dated 15 September 2000 and
19 April 2001 of the Secretary of the Department of Justice ("DOJ Secretary") in
I.C. No. 99-6254.2 The DOJ Secretary3 denied Laila G. De Ocampo’s
("petitioner") petition for review of the investigating prosecutor’s finding of
probable cause against her for homicide4 in relation to Section 10(a), Article VI of
Republic Act No. 7610 ("RA 7610")5 and for violation of the same provision of RA
7610. The DOJ Secretary6 also denied petitioner’s motion for reconsideration.
The Facts
The present case arose from a sworn statement of respondent Magdalena B.
Dacarra ("Magdalena") executed before the Women’s Desk of the CPD Police
Station in Batasan Hills, Quezon City on 10 December 1999. Magdalena stated
that on 4 December 1999, her nine-year-old son Ronald complained of dizziness
upon arriving home at about six in the evening. Ronald then vomited, prompting
Magdalena to ask what happened. Ronald replied that petitioner, who was
Ronald’s teacher, banged his head against that of his classmate Lorendo Orayan
("Lorendo"). Magdalena inspected Ronald’s head and saw a woundless
contusion. Due to Ronald’s continued vomiting, Magdalena brought him to a
quack doctor (arbularyo) on 5 December 1999. The following morning,
Magdalena brought Ronald to the East Avenue Medical Center where he

underwent an x-ray. The attending physician informed Magdalena that Ronald’s
head had a fracture. Blood oozed out of Ronald’s nose before he died on 9
December 1999.
Lorendo also executed a sworn statement narrating how petitioner banged his
head against Ronald’s.
During the inquest proceedings on 14 December 1999, Assistant Quezon City
Prosecutor Maria Lelibet Sampaga ("inquest prosecutor") ruled as follows:
Evidence warrants the release of the respondent for further investigation of the
charges against her. The case is not proper for inquest as the incident
complained of happened on December 4, 1999. Further, we find the evidence
insufficient to support the charge for homicide against the respondent. There is
no concrete evidence to show proof that the alleged banging of the heads of the
two minor victims could be the actual and proximate cause of the death of minor
Ronald Dacarra y Baluton. Besides, the police report submitted by the
respondent in this case states that said victim bears stitches or sutures on the
head due to a vehicular accident. There is no certainty, therefore, that
respondent’s alleged wrongdoing contributed or caused the death of said victim.7
Subsequently, the case was referred to Assistant Quezon City Prosecutor Lorna
F. Catris-Chua Cheng ("investigating prosecutor") for preliminary investigation.
She scheduled the first hearing on 6 January 2000.
Respondent Erlinda P. Orayan ("Erlinda"), Lorendo’s mother, attended the
hearing of 6 January 2000 and alleged that petitioner offered her P100,000,
which she initially accepted, for her and her son’s non-appearance at the
preliminary investigation. Erlinda presented the money to the investigating
prosecutor.
On 7 January 2000, Jennilyn Quirong, who witnessed the head-banging incident,
and Melanie Lugales, who claimed to be another victim of petitioner’s alleged
cruel deeds, filed their sworn statements with the Office of the Quezon City
Prosecutor.
On 18 January 2000, petitioner submitted her counter-affidavit. Petitioner invoked
the disposition of the inquest prosecutor finding insufficient evidence to support
the charges against her. Petitioner assailed the omission in Magdalena’s sworn
statement about Ronald’s head injury due to a vehicular accident in November
1997. Petitioner pointed out the absence of damage or injury on Lorendo as
borne out by his medical certificate. Petitioner contended that the head-banging
incident was not the proximate cause of Ronald’s death, but the failed medical
attention or medical negligence. Petitioner also alleged that Jennilyn Quirong and
Melanie Lugales have immature perception. Petitioner further asserted that the
88
causes of death stated in Ronald’s Death Certificate are hearsay and
inadmissible in the preliminary investigation.
Ronald’s Death Certificate shows the immediate cause of his death as "Cardio
Pulmonary Arrest," the underlying cause as "Cerebral Edema," and other
significant conditions contributing to death as "Electrolyte imbalance and
vomiting." The Autopsy Report, obtained by the investigating prosecutor from the
PNP Crime Laboratory in Camp Crame, states the cause of death as "Intracranial
hemorrhage secondary to traumatic injury of the head."
The investigating prosecutor issued a Resolution finding probable cause against
petitioner for the offenses charged. The dispositive portion of the Resolution
reads:
WHEREFORE, in view of the foregoing, it is respectfully recommended that
[petitioner] be charged with Homicide in relation to Art. VI, Sec. 10 of R.A. 7610
and Violation of Art. VI, Sec. 10(a) of R.A. 7610 with no bail recommended for
the Homicide since par. 6 of Art. VI of Sec. 10 of R.A. 7610 provides that:
"For purposes of this Act, the penalty for the commission of acts punishable
under Articles 248, 249, 262, par. 2 and 263, par. 1 Act No. 3815, as amended,
the Revised Penal Code, for the crimes of murder, homicide, other intentional
mutilation and serious physical injuries, respectively, shall be reclusion
perpetua when the victim isunder twelve (12) years of age."
Bail recommended: No bail recommended – Homicide, in relation to Art. VI, Sec.
10, R.A. 7610; and Twenty Thousand pesos (P20,000.00) – Viol. of Sec. 10(a) of
R.A. 76108
Consequently, petitioner filed a petition for review with the DOJ.
In her appeal to the DOJ, petitioner contended that the investigating prosecutor
showed bias in favor of complainants Magdalena and Erlinda ("complainants") for
not conducting a clarificatory hearing and unilaterally procuring the autopsy
report. Petitioner argued that the investigating prosecutor erred in concluding that
her alleged act of banging Ronald and Lorendo’s heads was the cause of
Ronald’s injury and that such was an act of child abuse. Petitioner also alleged
that it is the Office of the Ombudsman which has jurisdiction over the case, and
not the Quezon City Prosecutor’s Office.
The Resolution of the DOJ Secretary
The DOJ Secretary denied the petition for review. The DOJ Secretary held that
there was no bias in complainants’ favor when the investigating prosecutor did

not conduct a clarificatory hearing and unilaterally procured the autopsy report as
nothing precluded her from doing so.
The DOJ Secretary upheld the investigating prosecutor’s finding that Ronald’s
injury was the direct and natural result of petitioner’s act of banging Ronald and
Lorendo’s heads. The DOJ Secretary stated that petitioner never denied such
act, making her responsible for all its consequences even if the immediate cause
of Ronald’s death was allegedly the failed medical attention or medical
negligence. The DOJ Secretary held that assuming there was failure of medical
attention or medical negligence, these inefficient intervening causes did not
break the relation of the felony committed and the resulting injury.
The DOJ Secretary rejected petitioner’s claim that she is innocent as held by the
inquest prosecutor. The inquest prosecutor did not dismiss the case. She merely
recommended petitioner’s release for further investigation since the case was not
proper for inquest and the evidence was then insufficient.
The DOJ Secretary further stated that the omission in Magdalena’s sworn
statement about Ronald’s head injury due to a vehicular accident in November
1997 and the absence of any injury on Lorendo are inconsequential.
Moreover, the DOJ Secretary ruled that whether the statements of the causes of
death in the death certificate and autopsy report are hearsay, and whether
Jennilyn Quirong and Melanie Lugales have immature perception, are evidentiary
matters which should be determined during trial. The DOJ Secretary also
sustained the investigating prosecutor’s conclusion that the banging of Ronald
and Lorendo’s heads is an act of child abuse.
Petitioner filed a motion for reconsideration9 which the DOJ Secretary denied in
his Resolution dated 19 April 2001.10
Hence, this petition.
The Issues
Petitioner raises the following issues:
1. Whether petitioner was denied due process during the preliminary
investigation; and
2. Whether there is probable cause against petitioner for homicide under
Article 249 of the Revised Penal Code in relation to Section 10(a), Article
VI of RA 7610 and for violation of Section 10(a), Article VI of RA 7610.
89
The Ruling of the Court
The petition lacks merit.
Before resolving the substantive issues in this case, the Court will address the
procedural issue raised by the Office of the Solicitor General ("OSG"). 11 The
OSG contends that instead of Rule 65, Rule 43 is applicable to the present case.
Thus, the OSG argues that the petition should be dismissed outright for being
filed with this Court, instead of with the Court of Appeals, under a wrong mode of
appeal. On the other hand, assuming Rule 65 applies, the OSG points out that
the petition for certiorari should be filed with the Court of Appeals.
Based on Memorandum Circular No. 58,12 the resolution of the DOJ Secretary is
appealable administratively to the Office of the President since the offenses
charged in this case are punishable by reclusion perpetua.13 From the Office of
the President, the aggrieved party may file an appeal with the Court of Appeals
pursuant to Rule 43.14
Even assuming that the DOJ Secretary committed grave abuse of discretion in
rendering the assailed Resolutions amounting to lack or excess of jurisdiction,
petitioner should have filed the instant petition for certiorari with the Court of
Appeals. Hence, on the issue alone of the propriety of the remedy sought by
petitioner, this petition forcertiorari must fail. However, considering the gravity of
the offenses charged and the need to expedite the disposition of this case, the
Court will relax the rules and finally resolve this case in the interest of substantial
justice.
Whether petitioner was denied
due process during the preliminary investigation
Absence of a clarificatory hearing
The Court rejects petitioner’s contention that she was denied due process when
the investigating prosecutor did not conduct a clarificatory hearing. A clarificatory
hearing is not indispensable during preliminary investigation. Rather than being
mandatory, a clarificatory hearing is optional on the part of the investigating
officer as evidenced by the use of the term "may" in Section 3(e) of Rule 112.
This provision states:
(e) If the investigating officer believes that there are matters to be clarified,
he may set a hearing to propound clarificatory questions to the parties or their
witnesses, during which the parties shall be afforded an opportunity to be present
but without the right to examine or cross-examine. xxx15 (emphasis supplied)

The use of the word "may" in a statute commonly denotes that it is directory in
nature. The term "may" is generally permissive only and operates to confer
discretion.16 Under Section 3(e) of Rule 112, it is within the discretion of the
investigation officer whether to set the case for further hearings to clarify some
matters.
In this case, the investigating prosecutor no longer conducted hearings after
petitioner submitted her counter-affidavit. This simply means that at that point the
investigating prosecutor believed that there were no more matters for
clarification. It is only in petitioner’s mind that some "crucial points" still exist and
need clarification. In any event, petitioner can raise these "important" matters
during the trial proper.
Petitioner was not deprived of due process since both parties were accorded
equal rights in arguing their case and presenting their respective evidence during
the preliminary investigation. Due process is merely an opportunity to be
heard.17 Petitioner cannot successfully invoke denial of due process since she
was given the opportunity of a hearing.18 She even submitted her counter-
affidavit to the investigating prosecutor on 18 January 2000.
Preliminary investigation is merely inquisitorial. It is not a trial of the case on the
merits.19 Its sole purpose is to determine whether a crime has been committed
and whether the respondent is probably guilty of the crime.20 It is not the
occasion for the full and exhaustive display of the parties’ evidence. 21 Hence, if
the investigating prosecutor is already satisfied that he can reasonably determine
the existence of probable cause based on the parties’ evidence thus presented,
he may terminate the proceedings and resolve the case.
Obtaining a copy of the autopsy report
Petitioner argues that she was denied the right to examine evidence submitted
by complainants when the investigating prosecutor unilaterally obtained a copy of
the autopsy report from the PNP Crime Laboratory.
Petitioner fails to persuade us. Though the autopsy report is not part of the
parties’ evidence, the Rules on preliminary investigation do not forbid the
investigating prosecutor from obtaining it. Neither is there a law requiring the
investigating prosecutor to notify the parties before securing a copy of the
autopsy report. The autopsy report, which states the causes of Ronald’s death,
can either absolve or condemn the petitioner. Unfortunately for petitioner, the
investigating prosecutor found that the autopsy report bolstered complainants’
allegations.
Moreover, there is nothing to support petitioner’s claim that the investigating
prosecutor was biased in favor of complainants. There are other pieces of
90
evidence aside from the autopsy report upon which the investigating prosecutor
based her finding of probable cause. The autopsy report is not the sole piece of
evidence against petitioner. The sworn statement of the other victim, Lorendo,
and the eyewitness account of Jennilyn Quirong, substantiate the charges
against petitioner. Petitioner’s failure to deny the occurrence of the head-banging
incident also strengthened complainants’ allegations.
Petitioner mistakenly cites Section 3(d) of Rule 11222 in arguing that the
investigating prosecutor should not go beyond the evidence presented by
complainants in resolving the case. This provision applies if the respondent
cannot be subpoenaed or if subpoenaed fails to submit her counter-affidavit
within the prescribed period. Such is not the case here where petitioner filed her
counter-affidavit and both parties presented their respective evidence.
Whether there is probable cause
for the offenses charged against petitioner
Existence of probable cause
Petitioner challenges the finding of probable cause against her for the offenses
charged arguing that the head-banging incident was not the proximate cause of
Ronald’s death. Petitioner insists that efficient intervening events caused
Ronald’s death.
We do not agree. There is probable cause for the offenses charged against
petitioner. Probable cause is the existence of such facts and circumstances as
would excite the belief in a reasonable mind that a crime has been committed
and the respondent is probably guilty of the crime.23
In the present case, Ronald, a nine-year-old student, died five days after his
teacher, petitioner in this case, allegedly banged his head against that of his
classmate Lorendo. There is nothing in the records showing petitioner’s specific
denial of the occurrence of such act. Petitioner simply stated that "the head-
banging incident happened but [she] did not perpetrate it."24 In effect, petitioner
admits the occurrence of the head-banging incident but denies committing it.
The alleged intervening events before Ronald died, namely: (a) the consultation
with a quack doctor, and (b) the three-day confinement in the East Avenue
Medical Center, are not sufficient to break the relation of the felony committed
and the resulting injury. Were it not for the head-banging incident, Ronald might
not have needed medical assistance in the first place.
These circumstances which allegedly intervened causing Ronald’s death are
evidentiary matters which should be threshed out during the trial. The following
are also matters better left for the trial court to appreciate: (a) the contents of the
death certificate and autopsy report, (b) the medical records of Ronald’s accident

in November 1997, (c) the perception of witnesses Jennilyn Quirong and Melanie
Lugales, and (d) the alleged lack of medical assistance or medical negligence
which caused Ronald’s death.
To repeat, what is determined during preliminary investigation is only probable
cause, not proof beyond reasonable doubt.25 As implied by the words
themselves, "probable cause" is concerned with probability, not absolute or moral
certainty.26
Asserting her innocence, petitioner continues to invoke the disposition of the
inquest prosecutor finding insufficient evidence for the charges against her. As
correctly ruled by the DOJ Secretary, the inquest prosecutor did not dismiss the
case but merely recommended it for further investigation since it was not proper
for inquest and the evidence was then insufficient. Moreover, petitioner’s active
participation in the preliminary investigation without questioning the propriety of
such proceedings indicates petitioner’s agreement with the recommendation of
the inquest prosecutor for the further investigation of the case.
Charges of Homicide and Child Abuse
Petitioner’s single act of allegedly banging the heads of her students had two
distinct victims, namely Ronald and Lorendo. Therefore, petitioner has to face
prosecution for cruelty to each victim. For Ronald’s death, petitioner is being
charged with homicide under Article 249 of the Revised Penal Code27 in relation
to Section 10(a), Article VI of RA 7610 punishable by reclusion
perpetua.28 However, this does not mean that petitioner is being charged with the
distinct offenses of homicide and child abuse for Ronald’s death. On the other
hand, for her cruelty to Lorendo, petitioner is being charged with violation of
Section 10(a), Article VI of RA 7610 punishable by prision mayor in its minimum
period.
Contrary to petitioner’s contention, Section 10(a), Article VI of RA 7610 is clear.
This provision reads:
(a) Any person who shall commit any other acts of child abuse, cruelty or
exploitation or be responsible for other conditions prejudicial to the child’s
development including those covered by Article 59 of Presidential Decree No.
603, as amended, but not covered by the Revised Penal Code, as amended,
shall suffer the penalty of prision mayor in its minimum period.
Ambiguity is a condition of admitting two or more meanings, of being understood
in more than one way, or of referring to two or more things at the same time. A
statute is ambiguous if it is susceptible to more than one interpretation. 29 In the
present case, petitioner fails to show convincingly the ambiguity in Section 10(a),
Article VI of RA 7610.
91
Section 3(b), Article VI of RA 7610 defines "child abuse" as the maltreatment,
whether habitual or not, of the child which includes physical abuse and cruelty.
Petitioner’s alleged banging of the heads of Ronald and Lorendo is clearly an act
of cruelty.
In a petition for certiorari like this case, the primordial issue is whether the DOJ
Secretary acted with grave abuse of discretion amounting to lack or excess of
jurisdiction. The Court rules that the DOJ Secretary did not commit grave abuse
of discretion in finding that there is probable cause to charge petitioner of the
crimes of homicide and child abuse. The Court further rules that the investigating
prosecutor did not act with grave abuse of discretion in securing motu proprio the
autopsy report and in not calling for a clarificatory hearing. This ruling does not
diminish in any way the constitutional right of petitioner to be presumed innocent
until the contrary is proven.
WHEREFORE, we DENY the instant petition. We AFFIRM the Resolutions of the
Secretary of Justice dated 15 September 2000 and 19 April 2001 in I.C. No. 99-
6254. No pronouncement as to costs.
SO ORDERED.
ANTONIO T. CARPIO
Associate Justice
WE CONCUR:
G. R. No. 164317 February 6, 2006
ALFREDO CHING, Petitioner,
vs.
THE SECRETARY OF JUSTICE, ASST. CITY PROSECUTOR ECILYN
BURGOS-VILLAVERT, JUDGE EDGARDO SUDIAM of the Regional Trial
Court, Manila, Branch 52; RIZAL COMMERCIAL BANKING CORP. and THE
PEOPLE OF THE PHILIPPINES, Respondents.
DECISION
CALLEJO, SR., J.:
Before the Court is a petition for review on certiorari of the Decision1 of the Court
of Appeals (CA) in CA-G.R. SP No. 57169 dismissing the petition for certiorari,
prohibition and mandamus filed by petitioner Alfredo Ching, and its
Resolution2 dated June 28, 2004 denying the motion for reconsideration thereof.
 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

This time, respondent bank filed a motion for reconsideration, which, however,
was denied on February 24, 1988.9 The RTC, for its part, granted the Motion to
Quash the Informations filed by petitioner on the ground that the material
allegations therein did not amount to estafa.10
In the meantime, the Court rendered judgment in Allied Banking Corporation v.
Ordoñez,11 holding that the penal provision of P.D. No. 115 encompasses any
act violative of an obligation covered by the trust receipt; it is not limited to
transactions involving goods which are to be sold (retailed), reshipped, stored or
processed as a component of a product ultimately sold. The Court also ruled that
"the non-payment of the amount covered by a trust receipt is an act violative of
the obligation of the entrustee to pay."12
On February 27, 1995, respondent bank re-filed the criminal complaint for estafa
against petitioner before the Office of the City Prosecutor of Manila. The case
was docketed as I.S. No. 95B-07614.
Preliminary investigation ensued. On December 8, 1995, the City Prosecutor
ruled that there was no probable cause to charge petitioner with violating P.D.
No. 115, as petitioner’s liability was only civil, not criminal, having signed the trust
receipts as surety.13 Respondent bank appealed the resolution to the Department
of Justice (DOJ) via petition for review, alleging that the City Prosecutor erred in
ruling:
1. That there is no evidence to show that respondent participated in the
misappropriation of the goods subject of the trust receipts;
2. That the respondent is a mere surety of the trust receipts; and
3. That the liability of the respondent is only civil in nature.14
On July 13, 1999, the Secretary of Justice issued Resolution No. 250 15 granting
the petition and reversing the assailed resolution of the City Prosecutor.
According to the Justice Secretary, the petitioner, as Senior Vice-President of
PBMI, executed the 13 trust receipts and as such, was the one responsible for
the offense. Thus, the execution of said receipts is enough to indict the petitioner
as the official responsible for violation of P.D. No. 115. The Justice Secretary
also declared that petitioner could not contend that P.D. No. 115 covers only
goods ultimately destined for sale, as this issue had already been settled in Allied
Banking Corporation v. 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
turn over the proceeds of the sale of entrusted goods, or to return said goods if
unsold or not otherwise disposed of in accordance with the terms of the trust
receipts."
93
The Justice Secretary further stated that the respondent bound himself under the
terms of the trust receipts not only as a corporate official of PBMI but also as its
surety; hence, he could be proceeded against in two (2) ways: first, as surety as
determined by the Supreme Court in its decision in Rizal Commercial Banking
Corporation v. Court of Appeals;17 and second, as the corporate official
responsible for the offense under P.D. No. 115, via criminal prosecution.
Moreover, P.D. No. 115 explicitly allows the prosecution of corporate officers
"without prejudice to the civil liabilities arising from the criminal offense." Thus,
according to the Justice Secretary, following Rizal Commercial Banking
Corporation, the civil liability imposed is clearly separate and distinct from the
criminal liability of the accused under P.D. No. 115.
Conformably with the Resolution of the Secretary of Justice, the City Prosecutor
filed 13 Informations against petitioner for violation of P.D. No. 115 before the
RTC of Manila. The cases were docketed as Criminal Cases No. 99-178596 to
99-178608 and consolidated for trial before Branch 52 of said court. Petitioner
filed a motion for reconsideration, which the Secretary of Justice denied in a
Resolution18 dated January 17, 2000.
Petitioner then filed a petition for certiorari, prohibition and mandamus with the
CA, assailing the resolutions of the Secretary of Justice on the following grounds:
1. THE RESPONDENTS ARE ACTING WITH AN UNEVEN HAND AND
IN FACT, ARE ACTING OPPRESSIVELY AGAINST ALFREDO CHING
WHEN THEY ALLOWED HIS PROSECUTION DESPITE THE FACT
THAT NO EVIDENCE HAD BEEN PRESENTED TO PROVE HIS
PARTICIPATION IN THE ALLEGED TRANSACTIONS.
2. THE RESPONDENT SECRETARY OF JUSTICE COMMITTED AN
ACT IN GRAVE ABUSE OF DISCRETION AND IN EXCESS OF HIS
JURISDICTION WHEN THEY CONTINUED PROSECUTION OF THE
PETITIONER DESPITE THE LENGTH OF TIME INCURRED IN THE
TERMINATION OF THE PRELIMINARY INVESTIGATION THAT
SHOULD JUSTIFY THE DISMISSAL OF THE INSTANT CASE.
3. THE RESPONDENT SECRETARY OF JUSTICE AND ASSISTANT
CITY PROSECUTOR ACTED IN GRAVE ABUSE OF DISCRETION
AMOUNTING TO AN EXCESS OF JURISDICTION WHEN THEY
CONTINUED THE PROSECUTION OF THE PETITIONER DESPITE
LACK OF SUFFICIENT BASIS.19
In his petition, petitioner incorporated a certification stating that "as far as this
Petition is concerned, no action or proceeding in the Supreme Court, the Court of
Appeals or different divisions thereof, or any tribunal or agency. It is finally
certified that if the affiant should learn that a similar action or proceeding has

been filed or is pending before the Supreme Court, the Court of Appeals, or
different divisions thereof, of any other tribunal or agency, it hereby undertakes to
notify this Honorable Court within five (5) days from such notice."20
In its Comment on the petition, the Office of the Solicitor General alleged that -
A.
THE HONORABLE SECRETARY OF JUSTICE CORRECTLY RULED
THAT PETITIONER ALFREDO CHING IS THE OFFICER
RESPONSIBLE FOR THE OFFENSE CHARGED AND THAT THE
ACTS OF PETITIONER FALL WITHIN THE AMBIT OF VIOLATION OF
P.D. [No.] 115 IN RELATION TO ARTICLE 315, PAR. 1(B) OF THE
REVISED PENAL CODE.
B.
THERE IS NO MERIT IN PETITIONER’S CONTENTION THAT
EXCESSIVE DELAY HAS MARRED THE CONDUCT OF THE
PRELIMINARY INVESTIGATION OF THE CASE, JUSTIFYING ITS
DISMISSAL.
C.
THE PRESENT SPECIAL CIVIL ACTION FOR CERTIORARI,
PROHIBITION AND MANDAMUS IS NOT THE PROPER MODE OF
REVIEW FROM THE RESOLUTION OF THE DEPARTMENT OF
JUSTICE. THE PRESENT PETITION MUST THEREFORE BE
DISMISSED.21
On April 22, 2004, the CA rendered judgment dismissing the petition for lack of
merit, and on procedural grounds. On the procedural issue, it ruled that (a) the
certification of non-forum shopping executed by petitioner and incorporated in the
petition was defective for failure to comply with the first two of the three-fold
undertakings prescribed in Rule 7, Section 5 of the Revised Rules of Civil
Procedure; and (b) the petition for certiorari, prohibition and mandamus was not
the proper remedy of the petitioner.
On the merits of the petition, the CA ruled that the assailed resolutions of the
Secretary of Justice were correctly issued for the following reasons: (a)
petitioner, being the Senior Vice-President of PBMI and the signatory to the trust
receipts, is criminally liable for violation of P.D. No. 115; (b) the issue raised by
the petitioner, on whether he violated P.D. No. 115 by his actuations, had already
been resolved and laid to rest in Allied Bank Corporation v. Ordoñez;22 and (c)
petitioner was estopped from raising the
94
City Prosecutor’s delay in the final disposition of the preliminary investigation
because he failed to do so in the DOJ.
Thus, petitioner filed the instant petition, alleging that:
I
THE COURT OF APPEALS ERRED WHEN IT DISMISSED THE
PETITION ON THE GROUND THAT THE CERTIFICATION OF NON-
FORUM SHOPPING INCORPORATED THEREIN WAS DEFECTIVE.
II
THE COURT OF APPEALS ERRED WHEN IT RULED THAT NO
GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS
OF JURISDICTION WAS COMMITTED BY THE SECRETARY OF
JUSTICE IN COMING OUT WITH THE ASSAILED RESOLUTIONS.23
The Court will delve into and resolve the issues seriatim.
The petitioner avers that the CA erred in dismissing his petition on a mere
technicality. He claims that the rules of procedure should be used to promote, not
frustrate, substantial justice. He insists that the Rules of Court should be
construed liberally especially when, as in this case, his substantial rights are
adversely affected; hence, the deficiency in his certification of non-forum
shopping should not result in the dismissal of his petition.
The Office of the Solicitor General (OSG) takes the opposite view, and asserts
that indubitably, the certificate of non-forum shopping incorporated in the petition
before the CA is defective because it failed to disclose essential facts about
pending actions concerning similar issues and parties. It asserts that petitioner’s
failure to comply with the Rules of Court is fatal to his petition. The OSG cited
Section 2, Rule 42, as well as the ruling of this Court in Melo v. Court of
Appeals.24
We agree with the ruling of the CA that the certification of non-forum shopping
petitioner incorporated in his petition before the appellate court is defective. The
certification reads:
It is further certified that as far as this Petition is concerned, no action or
proceeding in the Supreme Court, the Court of Appeals or different divisions
thereof, or any tribunal or agency.

It is finally certified that if the affiant should learn that a similar action or
proceeding has been filed or is pending before the Supreme Court, the Court of
Appeals, or different divisions thereof, of any other tribunal or agency, it hereby
undertakes to notify this Honorable Court within five (5) days from such notice. 25
Under Section 1, second paragraph of Rule 65 of the Revised Rules of Court, the
petition should be accompanied by a sworn certification of non-forum shopping,
as provided in the third paragraph of Section 3, Rule 46 of said Rules. The latter
provision reads in part:
SEC. 3. Contents and filing of petition; effect of non-compliance with
requirements. — The petition shall contain the full names and actual addresses
of all the petitioners and respondents, a concise statement of the matters
involved, the factual background of the case and the grounds relied upon for the
relief prayed for.
xxx
The petitioner shall also submit together with the petition a sworn certification
that he has not theretofore commenced any other action involving the same
issues in the Supreme Court, the Court of Appeals or different divisions thereof,
or any other tribunal or agency; if there is such other action or proceeding, he
must state the status of the same; and if he should thereafter learn that a similar
action or proceeding has been filed or is pending before the Supreme Court, the
Court of Appeals, or different divisions thereof, or any other tribunal or agency,
he undertakes to promptly inform the aforesaid courts and other tribunal or
agency thereof within five (5) days therefrom. xxx
Compliance with the certification against forum shopping is separate from and
independent of the avoidance of forum shopping itself. The requirement is
mandatory. The failure of the petitioner to comply with the foregoing requirement
shall be sufficient ground for the dismissal of the petition without prejudice,
unless otherwise provided.26
Indubitably, the first paragraph of petitioner’s certification is incomplete and
unintelligible. Petitioner failed to certify that he "had not heretofore commenced
any other action involving the same issues in the Supreme Court, the Court of
Appeals or the different divisions thereof or any other tribunal or agency" as
required by paragraph 4, Section 3, Rule 46 of the Revised Rules of Court.
We agree with petitioner’s contention that the certification is designed to promote
and facilitate the orderly administration of justice, and therefore, should not be
interpreted with absolute literalness. In his works on the Revised Rules of Civil
Procedure, former Supreme Court Justice Florenz Regalado states that, with
respect to the contents of the certification which the pleader may prepare, the
95
rule of substantial compliance may be availed of.27 However, there must be a
special circumstance or compelling reason which makes the strict application of
the requirement clearly unjustified. The instant petition has not alleged any such
extraneous circumstance. Moreover, as worded, the certification cannot even be
regarded as substantial compliance with the procedural requirement. Thus, the
CA was not informed whether, aside from the petition before it, petitioner had
commenced any other action involving the same issues in other tribunals.
On the merits of the petition, the CA ruled that the petitioner failed to establish
that the Secretary of Justice committed grave abuse of discretion in finding
probable cause against the petitioner for violation of estafa under Article 315,
paragraph 1(b) of the Revised Penal Code, in relation to P.D. No. 115. Thus, the
appellate court ratiocinated:
Be that as it may, even on the merits, the arguments advanced in support of the
petition are not persuasive enough to justify the desired conclusion that
respondent Secretary of Justice gravely abused its discretion in coming out with
his assailed Resolutions. Petitioner posits that, except for his being the Senior
Vice-President of the PBMI, there is no iota of evidence that he was a participes
crimines in violating the trust receipts sued upon; and that his liability, if at all, is
purely civil because he signed the said trust receipts merely as a xxx surety and
not as the entrustee. These assertions are, however, too dull that they cannot
even just dent the findings of the respondent Secretary, viz:
"x x x it is apropos to quote section 13 of PD 115 which states in part, viz:
‘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
be imposed upon the directors, officers, employees or other officials or persons
therein responsible for the offense, without prejudice to the civil liabilities arising
from the criminal offense.’
"There is no dispute that it was the respondent, who as senior vice-president of
PBM, executed the thirteen (13) trust receipts. As such, the law points to him as
the official responsible for the offense. Since a corporation cannot be proceeded
against criminally because it cannot commit crime in which personal violence or
malicious intent is required, criminal action is limited to the corporate agents
guilty of an act amounting to a crime and never against the corporation itself
(West Coast Life Ins. Co. vs. Hurd, 27 Phil. 401; Times, [I]nc. v. Reyes, 39 SCRA
303). Thus, the execution by respondent of said receipts is enough to indict him
as the official responsible for violation of PD 115.
"Parenthetically, respondent is estopped to still contend that PD 115 covers only
goods which are ultimately destined for sale and not goods, like those imported
by PBM, for use in manufacture. This issue has already been settled in the Allied

Banking Corporation case, supra, where he was also a party, when the Supreme
Court ruled that PD 115 is ‘not limited to transactions in goods which are to be
sold (retailed), reshipped, stored or processed as a component or a product
ultimately sold’ but ‘covers failure to turn over the proceeds of the sale of
entrusted goods, or to return said goods if unsold or disposed of in accordance
with the terms of the trust receipts.’
"In regard to the other assigned errors, we note that the respondent bound
himself under the terms of the trust receipts not only as a corporate official of
PBM but also as its surety. It is evident that these are two (2) capacities which do
not exclude the other. Logically, he can be proceeded against in two (2) ways:
first, as surety as determined by the Supreme Court in its decision in RCBC vs.
Court of Appeals, 178 SCRA 739; and, secondly, as the corporate official
responsible for the offense under PD 115, the present case is an appropriate
remedy under our penal law.
"Moreover, PD 115 explicitly allows the prosecution of corporate officers ‘without
prejudice to the civil liabilities arising from the criminal offense’ thus, the civil
liability imposed on respondent in RCBC vs. Court of Appeals case is clearly
separate and distinct from his criminal liability under PD 115.’"28
Petitioner asserts that the appellate court’s ruling is erroneous because (a) the
transaction between PBMI and respondent bank is not a trust receipt transaction;
(b) he entered into the transaction and was sued in his capacity as PBMI Senior
Vice-President; (c) he never received the goods as an entrustee for PBMI,
hence, could not have committed any dishonesty or abused the confidence of
respondent bank; and (d) PBMI acquired the goods and used the same in
operating its machineries and equipment and not for resale.
The OSG, for its part, submits a contrary view, to wit:
34. Petitioner further claims that he is not a person responsible for the offense
allegedly because "[b]eing charged as the Senior Vice-President of Philippine
Blooming Mills (PBM), petitioner cannot be held criminally liable as the
transactions sued upon were clearly entered into in his capacity as an officer of
the corporation" and that [h]e never received the goods as an entrustee for PBM
as he never had or took possession of the goods nor did he commit dishonesty
nor "abuse of confidence in transacting with RCBC." Such argument is bereft of
merit.
35. Petitioner’s being a Senior Vice-President of the Philippine Blooming Mills
does not exculpate him from any liability. Petitioner’s responsibility as the
corporate official of PBM who received the goods in trust is premised on Section
13 of P.D. No. 115, which provides:
96
Section 13. Penalty Clause. The failure of an entrustee to turn over the proceeds
of the sale of the goods, documents or instruments covered by a trust receipt to
the extent of the amount owing to the entruster or as appears in the trust receipt
or to return said goods, documents or instruments if they were not sold or
disposed of in accordance with the terms of the trust receipt shall constitute the
crime of estafa, punishable under the provisions of Article Three hundred and
fifteen, paragraph one (b) of Act Numbered Three thousand eight hundred and
fifteen, as amended, otherwise known as the Revised Penal Code. If the violation
or offense is committed by a corporation, partnership, association or other
juridical entities, the penalty provided for in this Decree shall be imposed upon
the directors, officers, employees or other officials or persons therein responsible
for the offense, without prejudice to the civil liabilities arising from the criminal
offense. (Emphasis supplied)
36. Petitioner having participated in the negotiations for the trust receipts and
having received the goods for PBM, it was inevitable that the petitioner is the
proper corporate officer to be proceeded against by virtue of the PBM’s violation
of P.D. No. 115.29
The ruling of the CA is correct.
In Mendoza-Arce v. Office of the Ombudsman (Visayas),30 this Court held that
the acts of a quasi-judicial officer may be assailed by the aggrieved party via a
petition for certiorari and enjoined (a) when necessary to afford adequate
protection to the constitutional rights of the accused; (b) when necessary for the
orderly administration of justice; (c) when the acts of the officer are without or in
excess of authority; (d) where the charges are manifestly false and motivated by
the lust for vengeance; and (e) when there is clearly no prima facie case against
the accused.31 The Court also declared that, if the officer conducting a
preliminary investigation (in that case, the Office of the Ombudsman) acts without
or in excess of his authority and resolves to file an Information despite the
absence of probable cause, such act may be nullified by a writ of certiorari. 32
Indeed, under Section 4, Rule 112 of the 2000 Rules of Criminal Procedure,33 the
Information shall be prepared by the Investigating Prosecutor against the
respondent only if he or she finds probable cause to hold such respondent for
trial. The Investigating Prosecutor acts without or in excess of his authority under
the Rule if the Information is filed against the respondent despite absence of
evidence showing probable cause therefor.34 If the Secretary of Justice reverses
the Resolution of the Investigating Prosecutor who found no probable cause to
hold the respondent for trial, and orders such prosecutor to file the Information
despite the absence of probable cause, the Secretary of Justice acts contrary to
law, without authority and/or in excess of authority. Such resolution may likewise
be nullified in a petition for certiorari under Rule 65 of the Revised Rules of Civil
Procedure.35

A preliminary investigation, designed to secure the respondent against hasty,
malicious and oppressive prosecution, is an inquiry to determine whether (a) a
crime has been committed; and (b) whether there is probable cause to believe
that the accused is guilty thereof. It is a means of discovering the person or
persons who may be reasonably charged with a crime. Probable cause need not
be based on clear and convincing evidence of guilt, as the investigating officer
acts upon probable cause of reasonable belief. Probable cause implies
probability of guilt and requires more than bare suspicion but less than evidence
which would justify a conviction. A finding of probable cause needs only to rest
on evidence showing that more likely than not, a crime has been committed by
the suspect.36
However, while probable cause should be determined in a summary manner,
there is a need to examine the evidence with care to prevent material damage to
a potential accused’s constitutional right to liberty and the guarantees of freedom
and fair play37 and to protect the State from the burden of unnecessary expenses
in prosecuting alleged offenses and holding trials arising from false, fraudulent or
groundless charges.38
In this case, petitioner failed to establish that the Secretary of Justice committed
grave abuse of discretion in issuing the assailed resolutions. Indeed, he acted in
accord with law and the evidence.
Section 4 of P.D. No. 115 defines a trust receipt transaction, thus:
Section 4. What constitutes a trust receipt transaction. A trust receipt transaction,
within the meaning of this Decree, is any transaction by and between a person
referred to in this Decree as the entruster, and another person referred to in this
Decree as entrustee, whereby the entruster, who owns or holds absolute title or
security interests over certain specified goods, documents or instruments,
releases the same to the possession of the entrustee upon the latter’s execution
and delivery to the entruster of a signed document called a "trust receipt" wherein
the entrustee binds himself to hold the designated goods, documents or
instruments in trust for the entruster and to sell or otherwise dispose of the
goods, documents or instruments with the obligation to turn over to the entruster
the proceeds thereof to the extent of the amount owing to the entruster or as
appears in the trust receipt or the goods, documents or instruments themselves if
they are unsold or not otherwise disposed of, in accordance with the terms and
conditions specified in the trust receipt, or for other purposes substantially
equivalent to any of the following:
1. In case of goods or documents, (a) to sell the goods or procure their
sale; or (b) to manufacture or process the goods with the purpose of
ultimate sale; Provided, That, in the case of goods delivered under trust
receipt for the purpose of manufacturing or processing before its ultimate
97
sale, the entruster shall retain its title over the goods whether in its
original or processed form until the entrustee has complied fully with his
obligation under the trust receipt; or (c) to load, unload, ship or otherwise
deal with them in a manner preliminary or necessary to their sale; or
2. In the case of instruments a) to sell or procure their sale or exchange;
or b) to deliver them to a principal; or c) to effect the consummation of
some transactions involving delivery to a depository or register; or d) to
effect their presentation, collection or renewal.
The sale of goods, documents or instruments by a person in the business of
selling goods, documents or instruments for profit who, at the outset of the
transaction, has, as against the buyer, general property rights in such goods,
documents or instruments, or who sells the same to the buyer on credit, retaining
title or other interest as security for the payment of the purchase price, does not
constitute a trust receipt transaction and is outside the purview and coverage of
this Decree.
An entrustee is one having or taking possession of goods, documents or
instruments under a trust receipt transaction, and any successor in interest of
such person for the purpose of payment specified in the trust receipt
agreement.39 The entrustee is obliged to: (1) hold the goods, documents or
instruments in trust for the entruster and shall dispose of them strictly in
accordance with the terms and conditions of the trust receipt; (2) receive the
proceeds in trust for the entruster and turn over the same to the entruster to the
extent of the amount owing to the entruster or as appears on the trust receipt; (3)
insure the goods for their total value against loss from fire, theft, pilferage or
other casualties; (4) keep said goods or proceeds thereof whether in money or
whatever form, separate and capable of identification as property of the
entruster; (5) return the goods, documents or instruments in the event of non-
sale or upon demand of the entruster; and (6) observe all other terms and
conditions of the trust receipt not contrary to the provisions of the decree. 40
The entruster shall be entitled to the proceeds from the sale of the goods,
documents or instruments released under a trust receipt to the entrustee to the
extent of the amount owing to the entruster or as appears in the trust receipt, or
to the return of the goods, documents or instruments in case of non-sale, and to
the enforcement of all other rights conferred on him in the trust receipt; provided,
such are not contrary to the provisions of the document.41
In the case at bar, the transaction between petitioner and respondent bank falls
under the trust receipt transactions envisaged in P.D. No. 115. Respondent bank
imported the goods and entrusted the same to PBMI under the trust receipts
signed by petitioner, as entrustee, with the bank as entruster. The agreement
was as follows:

And in consideration thereof, I/we hereby agree to hold said goods in trust for the
said BANK as its property with liberty to sell the same within ____days from the
date of the execution of this Trust Receipt and for the Bank’s account, but without
authority to make any other disposition whatsoever of the said goods or any part
thereof (or the proceeds) either by way of conditional sale, pledge or otherwise.
I/we agree to keep the said goods insured to their full value against loss from fire,
theft, pilferage or other casualties as directed by the BANK, the sum insured to
be payable in case of loss to the BANK, with the understanding that the BANK is,
not to be chargeable with the storage premium or insurance or any other
expenses incurred on said goods.
In case of sale, I/we further agree to turn over the proceeds thereof as soon as
received to the BANK, to apply against the relative acceptances (as described
above) and for the payment of any other indebtedness of mine/ours to the BANK.
In case of non-sale within the period specified herein, I/we agree to return the
goods under this Trust Receipt to the BANK without any need of demand.
I/we agree to keep the said goods, manufactured products or proceeds thereof,
whether in the form of money or bills, receivables, or accounts separate and
capable of identification as property of the BANK.42
It must be stressed that P.D. No. 115 is a declaration by legislative authority that,
as a matter of public policy, the failure of person to turn over the proceeds of the
sale of the goods covered by a trust receipt or to return said goods, if not sold, is
a public nuisance to be abated by the imposition of penal sanctions.43
The Court likewise rules that the issue of whether P.D. No. 115 encompasses
transactions involving goods procured as a component of a product ultimately
sold has been resolved in the affirmative in Allied Banking Corporation v.
Ordoñez.44 The law applies to goods used by the entrustee in the operation of its
machineries and equipment. The non-payment of the amount covered by the
trust receipts or the non-return of the goods covered by the receipts, if not sold or
otherwise not disposed of, violate the entrustee’s obligation to pay the amount or
to return the goods to the entruster.
In Colinares v. Court of Appeals,45 the Court declared that there are two possible
situations in a trust receipt transaction. The first is covered by the provision which
refers to money received under the obligation involving the duty to deliver it
(entregarla) to the owner of the merchandise sold. The second is covered by the
provision which refers to merchandise received under the obligation to return it
(devolvera) to the owner.46 Thus, failure of the entrustee to turn over the
proceeds of the sale of the goods covered by the trust receipts to the entruster or
to return said goods if they were not disposed of in accordance with the terms of
the trust receipt is a crime under P.D. No. 115, without need of proving intent to
98
defraud. The law punishes dishonesty and abuse of confidence in the handling of
money or goods to the prejudice of the entruster, regardless of whether the latter
is the owner or not. A mere failure to deliver the proceeds of the sale of the
goods, if not sold, constitutes a criminal offense that causes prejudice, not only to
another, but more to the public interest.47
The Court rules that although petitioner signed the trust receipts merely as
Senior Vice-President of PBMI and had no physical possession of the goods, he
cannot avoid prosecution for violation of P.D. No. 115.
The penalty clause of the law, Section 13 of P.D. No. 115 reads:
Section 13. Penalty Clause. The failure of an entrustee to turn over the proceeds
of the sale of the goods, documents or instruments covered by a trust receipt to
the extent of the amount owing to the entruster or as appears in the trust receipt
or to return said goods, documents or instruments if they were not sold or
disposed of in accordance with the terms of the trust receipt shall constitute the
crime of estafa, punishable under the provisions of Article Three hundred and
fifteen, paragraph one (b) of Act Numbered Three thousand eight hundred and
fifteen, as amended, otherwise known as the Revised Penal Code.1âwphi1 If the
violation or offense is committed by a corporation, partnership, association or
other juridical entities, the penalty provided for in this Decree shall be imposed
upon the directors, officers, employees or other officials or persons therein
responsible for the offense, without prejudice to the civil liabilities arising from the
criminal offense.
The crime defined in P.D. No. 115 is malum prohibitum but is classified as estafa
under paragraph 1(b), Article 315 of the Revised Penal Code, or estafa with
abuse of confidence. It may be committed by a corporation or other juridical
entity or by natural persons. However, the penalty for the crime is imprisonment
for the periods provided in said Article 315, which reads:
ARTICLE 315. Swindling (estafa). – Any person who shall defraud another by
any of the means mentioned hereinbelow shall be punished by:
1st. The penalty of prision correccional in its maximum period to prision
mayor in its minimum period, if the amount of the fraud is over 12,000
pesos but does not exceed 22,000 pesos; and if such amount exceeds
the latter sum, the penalty provided in this paragraph shall be imposed in
its maximum period, adding one year for each additional 10,000 pesos;
but the total penalty which may be imposed shall not exceed twenty
years. In such cases, and in connection with the accessory penalties
which may be imposed and for the purpose of the other provisions of this
Code, the penalty shall be termed prision mayor or reclusion temporal,
as the case may be;

2nd. The penalty of prision correccional in its minimum and medium
periods, if the amount of the fraud is over 6,000 pesos but does not
exceed 12,000 pesos;
3rd. The penalty of arresto mayor in its maximum period to prision
correccional in its minimum period, if such amount is over 200 pesos but
does not exceed 6,000 pesos; and
4th. By arresto mayor in its medium and maximum periods, if such amount does
not exceed 200 pesos, provided that in the four cases mentioned, the fraud be
committed by any of the following means; xxx
Though the entrustee is a corporation, nevertheless, the law specifically makes
the officers, employees or other officers or persons responsible for the offense,
without prejudice to the civil liabilities of such corporation and/or board of
directors, officers, or other officials or employees responsible for the offense. The
rationale is that such officers or employees are vested with the authority and
responsibility to devise means necessary to ensure compliance with the law and,
if they fail to do so, are held criminally accountable; thus, they have a responsible
share in the violations of the law.48
If the crime is committed by a corporation or other juridical entity, the directors,
officers, employees or other officers thereof responsible for the offense shall be
charged and penalized for the crime, precisely because of the nature of the crime
and the penalty therefor. A corporation cannot be arrested and imprisoned;
hence, cannot be penalized for a crime punishable by imprisonment.49 However,
a corporation may be charged and prosecuted for a crime if the imposable
penalty is fine. Even if the statute prescribes both fine and imprisonment as
penalty, a corporation may be prosecuted and, if found guilty, may be fined. 50
A crime is the doing of that which the penal code forbids to be done, or omitting
to do what it commands. A necessary part of the definition of every crime is the
designation of the author of the crime upon whom the penalty is to be inflicted.
When a criminal statute designates an act of a corporation or a crime and
prescribes punishment therefor, it creates a criminal offense which, otherwise,
would not exist and such can be committed only by the corporation. But when a
penal statute does not expressly apply to corporations, it does not create an
offense for which a corporation may be punished. On the other hand, if the State,
by statute, defines a crime that may be committed by a corporation but
prescribes the penalty therefor to be suffered by the officers, directors, or
employees of such corporation or other persons responsible for the offense, only
such individuals will suffer such penalty.51 Corporate officers or employees,
through whose act, default or omission the corporation commits a crime, are
themselves individually guilty of the crime.52
99
The principle applies whether or not the crime requires the consciousness of
wrongdoing. It applies to those corporate agents who themselves commit the
crime and to those, who, by virtue of their managerial positions or other similar
relation to the corporation, could be deemed responsible for its commission, if by
virtue of their relationship to the corporation, they had the power to prevent the
act.53 Moreover, all parties active in promoting a crime, whether agents or not,
are principals.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.
In this case, petitioner signed the trust receipts in question. He cannot, thus, hide
behind the cloak of the separate corporate personality of PBMI. In the words of
Chief Justice Earl Warren, a corporate officer cannot protect himself behind a
corporation where he is the actual, present and efficient actor.55
IN LIGHT OF ALL THE FOREGOING, the petition is DENIED for lack of merit.
Costs against the petitioner.
SO ORDERED.
G.R. No. 113930 March 5, 1996
PAUL G. ROBERTS, JR., RODOLFO C. SALAZAR, LUIS LORENZO, SR.,
LUIS LORENZO, JR., AMAURY R. GUTIERREZ, BAYANI N. FABIC, JOSE
YULO, JR., ESTEBAN B. PALANNUAYAN, and WONG FONG FUI,petitioners,
vs.
THE COURT OF APPEALS, THE HON. MAXIMIANO ASUNCION, in his
capacity as the Presiding Judge of the Regional Trial Court, Quezon City,
Branch 104, HON. APOLINARIO G. EXEVEA, HON. HENRICK F. GINGOYON,
and HON. PHILIP A. AGUINALDO, in their capacities as Members of the
Department of Justice "349" Committee, and the CITY PROSECUTOR OF
QUEZON CITY, respondents.
J. ROBERT DELGADO, petitioner-Intervenor.
DAVIDE, JR., J.:p
We are urged in this petition to set aside (a) the decision of the Court of Appeals
of 28 September 1993 in CA-G.R. SP No. 31226, 1 which dismissed the petition
therein on the ground that it has been "mooted with the release by the
Department of Justice of its decision . . . dismissing petitioners' petition for
review"; (b) the resolution of the said court of 9 February 1994 2 denying the
petitioners' motion to reconsider the decision; (c) the order of 17 May 1993 3 of

respondent Judge Maximiano C. Asuncion of Branch 104 of the Regional Trial
Court (RTC) of Quezon City in Criminal Case No. Q-93-43198 denying
petitioners' motion to suspend proceedings and to hold in abeyance the issuance
of the warrants of arrest and the public prosecutor's motion to defer arraignment;
and (d) the resolutions of 23 July 1993 and 3 February 1994 4 of the Department
of Justice (DOJ) dismissing petitioners' petition for the review of the Joint
Resolution of the Assistant City Prosecutor of Quezon City and denying the
motion to reconsider the dismissal, respectively.
The petitioners rely on the following grounds for the grant of the reliefs prayed for
in this petition:
I Article 318 of the Revised Penal Code and the dismissal of the complaints for the
Respondent Judge acted with grave abuse of discretion when he
ordered the arrest of the petitioners without examining the record
of the preliminary investigation and in determining for himself on
the basis thereof the existence of probable cause.
II
The Department of Justice "349" Committee acted with grave
abuse of discretion when it refused to review the City
Prosecutor's Joint Resolution and dismissed petitioner's appeal
therefrom.
III
The Court of Appeals acted with grave abuse of discretion when
it upheld the subject order directing the issuance of the warrants
of arrest without assessing for itself whether based on such
records there is probable cause against petitioners.
IV
The facts on record do not establish prima facie probable cause
and Criminal Case No. Q-93-43198 should have been
dismissed. 5
The antecedents of this petition are not disputed.
Several thousand holders 6 of "349" Pepsi crowns in connection with the Pepsi
Cola Products Phils., Inc.'s (PEPSI's) Number Fever Promotion 7 filed with the
Office of the City Prosecutor of Quezon City complaints against the petitioner's in
100
their respective capacities as Presidents or Chief Executive Officers, Chairman of
the Board, Vice-Chairman of the Board, and Directors of PEPSI, and also against
other officials of PEPSI. The complaints respectively accuse the petitioners and
the other PEPSI officials of the following crimes: (a) estafa; (b) violation of R.A.
No. 7394, otherwise known as the Consumer Act of the Philippines; (c) violation
of E.O. No. 913; 8 and (d) violation of Act No. 2333, entitled "An Act Relative to
Untrue, Deceptive and Misleading Advertisements," as amended by Act No.
3740. 9
After appropriate proceedings, the investigating prosecutor, Ramon M. Gerona,
released on 23 March 1993 a Joint Resolution 10 where he recommended the
filing of an information against the petitioners and others for the violation of
violation of Article 315, 2(d) of the Revised Penal Code; R.A. No. 7394; Act No.
2333, as amended by Act No. 3740; and E.O. No. 913. The dispositive portion
thereof reads as follows:
In view of all the foregoing, it is recommended that:
1. The attached information be filed against respondents Paul G.
Roberts, Jr., Rodolfo C. Salazar, Rosemarie R. Vera, Luis F.
Lorenzo, Sr., Luis P. Lorenzo, Jr., J. Roberto Delgado, Amaury
R. Gutierrez, Bayani N. Fabic, Jose Yulo, Jr., Esteban B.
Pacannuayan, Jr., Wong Fong Fui, Quintin J. Gomez, Jr. and
Chito V. Gutierrez for estafa under Article 318, Revised Penal
Code, while the complaint for violation of Article 315, 2(d),
Revised Penal Code against same respondents Juanito R.
Ignacio, R. Sobong, R.O. Sinsuan, M.P. Zarsadias, L.G. Dabao,
Jr., R.L. Domingo, N.N. Bacsal, Jesus M. Manalastas, Janette P.
Pio de Roda, Joaquin W. Sampaico, Winefreda O. Madarang,
Jack Gravey, Les G. Ham, Corazon Pineda, Edward S. Serapio,
Alex O. Caballes, Sandy Sytangco, Jorge W. Drysdale, Richard
Blossom, Pablo de Borja, Edmundo L. Tan, Joseph T. Cohen,
Delfin Dator, Zosimo B. San Juan, Joaquin Franco, Primitivo S.
Javier, Jr., Luisito Guevarra, Asif H. Adil, Eugenio Muniosguren,
James Ditkoff and Timothy Lane be dismissed;
2. The complaints against all respondents for violation of R.A.
7394 otherwise known as the Consumer Act of the Philippines
and violation of Act 2333 as amended by Act 3740 and E.O. 913
be also dismissed for insufficiency of evidence, and
3. I.S. Nos. 92-7833; 92-8710 and 92-P-1065 involving Crowns
Nos. 173; 401; and 117, 425, 703 and 373, respectively, alleged

to be likewise winning ones be further investigated to afford
respondents a chance to submit their counter-evidence. 11
On 6 April 1993, City Prosecutor Candido V. Rivera approved the
recommendation with the modification that Rosemarie Vera, Quintin Gomez, Jr.,
and Chito Gonzales be excluded from the charge on the ground of insufficiency
of evidence. 12
The information for estafa attached to the Joint Resolution was approved (on 7
April 1993) by Ismael P. Casabar, Chief of the Prosecution Division, upon
authority of the City Prosecutor of Quezon City, and was filed with the RTC of
Quezon City on 12 April 1993. It was docketed as Criminal Case No. Q-93-
43198. 13 The information reads as follows:
The undersigned 1st Assistant City Prosecutor accuses PAUL G.
ROBERTS, JR. RODOLFO C. SALAZAR, LUIS F. LORENZO,
SR., LUIS P. LORENZO, JR., J. ROBERTO DELGADO,
AMAURY R. GUTIERREZ, BAYANI N. FABIC, JOSE YULO,
JR., ESTEBAN B. PACANNUAYAN, JR. and WONG FONG FUI,
of the crime of ESTAFA, committed as follows:
That in the month of February, 1992, in Quezon City, Philippines
and for sometime prior and subsequent thereto, the above-
named
accused —
Paul G. Roberts, Jr. ) being then the Presidents
Rodolfo G. Salazar ) and Executive Officers
Luis F. Lorenzo, Sr. ) being then the Chairman
of the Board of Directors
Luis P. Lorenzo, Jr. ) being then the Vice
Chairman of the Board
J. Roberto Delgado )
Amaury R. Gutierrez ) being then Members of
Bayani N. Fabic ) the Board
101
Jose Yulo, Jr. )
Esteban B. Pacannuayan, )
Jr. and
Wong Fong Fui )
OF THE PEPSI COLA PRODUCTS PHILIPPINES, INC.,
CONSPIRING with one another, with intent of gain, by means of
deceit, fraudulent acts or false pretenses, executed prior to or
simultaneously with the commission of the fraud, did then and
there willfully, unlawfully and feloniously defraud the private
complainants whose names with their prizes claimed appear in
the attached lists marked as Annexes "A" to "A-46"; "B" to "-33";
"C" to "C-281"; "D" to "D-238"; "E" to "E-30" and "F" to "F-244" in
the following manner: on the date and in the place
aforementioned, said accused pursuant to their conspiracy,
launched the Pepsi Cola Products Philippines, Inc. "Number
Fever Promotion" from February 17 to May 8, 1992 later
extended to May 11-June 12, 1992 and announced and
advertised in the media that "all holders of crowns and/or caps of
Pepsi, Mirinda, Mountain Dew and Seven-up bearing the winning
3-digit number will win the full amount of the prize printed on the
crowns/caps which are marked with a seven-digit security code
as a measure against tampering or faking of crowns and each
and every number has its own unique matching security code",
enticing the public to buy Pepsi softdrinks with aforestated
alluring and attractive advertisements to become millionaires,
and by virtue of such representations made by the accused, the
said complainants bought Pepsi softdrinks, but, the said accused
after their TV announcement on May 25, 1992 that the winning
number for the next day was "349", in violation of their aforecited
mechanics, refused as they still refuse to redeem/pay the said
Pepsi crowns and/or caps presented to them by the
complainants, who, among others, were able to buy Pepsi
softdrinks with crowns/caps bearing number "349" with security
codes L-2560-FQ and 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
their winning "349" crowns/caps, together with such amounts
they spent in going to and from the Office of Pepsi to claim their
prizes and such other amounts used in buying Pepsi softdrinks
which the complainants normally would not have done were it
not for the false, fraudulent and deceitful posters of Pepsi Cola
Products Philippines, Inc.

CONTRARY TO LAW.
On 14 April 1993, the petitioners filed with the Office of the City Prosecutor a
motion for the reconsideration of the Joint Resolution 14 alleging therein that (a)
there was neither fraud in the Number Fever Promotion nor deviation from or
modification of the promotional rules approved by the Department of Trade and
Industry (DTI), for from the start of the promotion, it had always been clearly
explained to the public that for one to be entitled to the cash prize his crown must
bear both the winning number and the correct security code as they appear in the
DTI list; (b) the complainants failed to allege, much less prove with prima
facie evidence, the specific overt criminal acts or omissions purportedly
committed by each of the petitioners; (c) the compromise agreement entered into
by PEPSI is not an admission of guilt; and (d) the evidence establishes that the
promo was carried out with utmost good faith and without malicious intent.
On 15 April 1993, the petitioners filed with the DOJ a Petition for
Review 15 wherein, for the same grounds adduced in the aforementioned motion
for reconsideration, they prayed that the Joint Resolution be reversed and the
complaints dismissed. They further stated that the approval of the Joint
Resolution by the City Prosecutor was not the result of a careful scrutiny and
independent evaluation of the relevant facts and the applicable law but of the
grave threats, intimidation, and actual violence which the complainants had
inflicted on him and his assistant prosecutors.
On that same date, the petitioners filed in Criminal Case No. Q-93-43198
Motions to Suspend Proceedings and to Hold in Abeyance Issuance of Warrants
of Arrest on the ground that they had filed the aforesaid Petition for Review. 16
On 21 April 1993, acting on the Petition for Review, Chief State Prosecutor
Zenon L. de Guia issued a 1st Indorsement, 17 directing the City Prosecutor of
Quezon City to inform the DOJ whether the petitioners have already been
arraigned, and if not, to move in court for the deferment of further proceedings in
the case and to elevate to the DOJ the entire records of the case, for the case is
being treated as an exception pursuant to Section 4 of Department Circular No. 7
dated 25 January 1990.
On 22 April 1993, Criminal Case No. Q-93-41398 was raffle to Branch 104 of the
RTC of Quezon City. 18
In the morning of 27 April 1993, private prosecutor Julio Contreras filed an Ex-
Parte Motion for Issuance of Warrants of Arrest. 19
In the afternoon of that same day, petitioner Paul Roberts, Jr., filed a
Supplemental Urgent Motion to Hold in Abeyance Issuance of Warrant of Arrest
and to Suspend Proceedings. 20 He stressed that the DOJ had taken cognizance
102
of the Petition for Review by directing the City Prosecutor to elevate the records
of I.S. No. P-4401 and its related cases and asserted that the petition for review
was an essential part of the petitioners' right to a preliminary investigation.
The next day, respondent Judge Asuncion, Presiding Judge of Branch 104 of the
RTC of Quezon City, issued an order advising the parties that his court would "be
guided by the doctrine laid down by the Supreme Court in the case of Crespo
vs. Mogul, 151 SCRA 462 and not by the resolution of the Department of Justice
on the petition for review undertaken by the accused." 21
On 30 April 1993, Assistant City Prosecutor Tirso M. Gavero filed with the trial
court a Motion to Defer Arraignment wherein he also prayed that "further
proceedings be held in abeyance pending final disposition by the Department of
Justice." 22
On 4 May 1993, Gavero filed an Amended Information, 23 accompanied by a
corresponding motion 24 to admit it. The amendments merely consist in the
statement that the complainants therein were only "among others" who were
defrauded by the accused and that the damage or prejudice caused amounted
"to several billions of pesos, representing the amounts due them from their
winning '349' crowns/caps." The trial court admitted the amended information on
the same date. 25
Later, the attorneys for the different private complainants filed, respectively, an
Opposition to Motion to Defer Arraignment, 26 and Objection and Opposition to
Motion to Suspend Proceedings and to Hold in Abeyance the Issuance of
Warrants of Arrest. 27
On 14 May 1993, the petitioners filed a Memorandum in Support of their Motion
to Suspend Proceedings and to Hold in Abeyance the Issuance of the Warrants
of Arrest. 28
On 17 May 1993, respondent Judge Asuncion issued the challenged order (1)
denying the petitioners' Motion to Suspend Proceedings and to Hold in Abeyance
Issuance of Warrants of Arrest and the public prosecutor's Motion to Defer
Arraignment and (2) directing the issuance of the warrants of arrest "after June
1993" and setting the arraignment on 28 June 1993. 29 Pertinent portions of the
order read as follows:
In the Motion filed by the accused, it is alleged that on April 15,
1993, they filed a petition for review seeking the reversal of the
resolution of City Prosecutor of Quezon City approving the filing
of the case against the accused, claiming that:

1. The resolution constituting [sic] force and
duress;
2. There was no fraud or deceit therefore there
can be no estafa;
3. No criminal overt acts by respondents were
proved;
4. Pepsi nor the accused herein made no
admission of guilt before the Department of
Trade and Industry;
5. The evidence presented clearly showed no
malicious intent on the part of the accused.
Trial Prosecutor Tirso M. Gavero in his Motion to Defer
Arraignment averred that there is a pending petition for review
with the Department of Justice filed by the accused and the
Office of the City Prosecutor was directed, among other things,
to cause for the deferment of further proceedings pending final
disposition of said Petition by the Department of Justice.
The motions filed by the accused and the Trial Prosecutor are
hereby DENIED.
This case is already pending in this Court for trial. To follow
whatever opinion the Secretary of Justice may have on the
matter would undermine the independence and integrity of this
Court. This Court is still capable of administering justice.
The Supreme Court in the case of Crespo vs. Mogul (SCRA 151,
pp. 471-472) stated as follows:
In order therefor to avoid such a situation
whereby the opinion of the Secretary of Justice
who reviewed the action of the fiscal may be
disregarded by the trial court, the Secretary of
Justice should, as far as practicable, refrain from
entertaining a petition for review or appeal from
the action of the fiscal, when the complaint or
information has already been filed in Court. The
matter should be left entirely for the
determination of the Court.
103
WHEREFORE, let warrant of arrest be issued after June 21,
1993, and arraignment be set on June 28, 1993, at 9:30 in the
morning.
On 7 June 1993, the petitioners filed with the Court of Appeals a special civil
action for certiorari and prohibition with application for a temporary restraining
order, 30 which was docketed as CA-G.R. SP No. 31226. They contended therein
that respondent Judge Asuncion had acted without or in excess of jurisdiction or
with grave abuse of discretion in issuing the aforementioned order of 17 May
1993 because
I. RESPONDENT JUDGE FAILED TO EXAMINE THE RECORD
OF PRELIMINARY INVESTIGATION BEFORE ORDERING THE
ARREST OF PETITIONERS.
II. THERE IS NO PROBABLE CAUSE TO HOLD PETITIONERS
CRIMINALLY LIABLE FOR ESTAFA, OTHER DECEITS, OR
ANY OTHER OFFENSE.
III. THE PROCEEDINGS BELOW SHOULD HAVE BEEN
SUSPENDED TO AWAIT THE SECRETARY OF JUSTICE'S
RESOLUTION OF PETITIONERS' APPEAL, AND
IV. THERE IS NO OTHER PLAIN, SPEEDY AND ADEQUATE
REMEDY IN THE ORDINARY COURSE OF LAW.
On 15 June 1993, the Court of Appeals issued a temporary restraining order to
maintain the status quo. 31 In view thereof; respondent Judge Asuncion issued an
order on 28 June 1993 32 postponing indefinitely the arraignment of the
petitioners which was earlier scheduled on that date.
On 28 June 1993, the Court of Appeals heard the petitioners' application for a
writ of preliminary injunction, granted the motion for leave to intervene filed by J.
Roberto Delgado, and directed the Branch Clerk of Court of the RTC of Quezon
City to elevate the original records of Criminal Case No. 4-93-43198. 33
Upon receipt of the original records of the criminal case, the Court of Appeals
found that a copy of the Joint Resolution had in fact been forwarded to, and
received by, the trial court on 22 April 1993, which fact belied the petitioners'
claim that the respondent Judge had not the slightest basis at all for determining
probable cause when he ordered the issuance of warrants of arrest. It ruled that
the Joint Resolution "was sufficient in itself to have been relied upon by
respondent Judge in convincing himself that probable cause indeed exists for the
purpose of issuing the corresponding warrants of arrest"; and that the "mere
silence of the records or the absence of any express declaration" in the

questioned order as to the basis of such finding does not give rise to an adverse
inference, for the respondent Judge enjoys in his favor the presumption of
regularity in the performance of his official duty. The Court of Appeals then
issued a resolution 34 denying the application for a writ of preliminary injunction.
On 8 June 1993, the petitioners filed a motion to reconsider 35 the aforesaid
resolution. The Court of Appeals required the respondents therein to comment on
the said motion. 36
On 3 August 1993, the counsel for the private complainants filed in CA-G.R. SP
No. 31226 a Manifestation 37informing the court that the petitioners' petition for
review filed with the DOJ was dismissed in a resolution dated 23 July 1993. A
copy 38 of the resolution was attached to the Manifestation.
On 21 September 1993, the public respondents filed in CA-G.R. SP No. 31226 a
motion to dismiss the petition 39on the ground that it has become moot and
academic in view of the dismissal by the DOJ of the petitioners' petition to review
the Joint Resolution. The dismissal by the DOJ is founded on the following
exposition:
You questioned the said order of the RTC before the Court of
Appeals and prayed for the issuance of a writ of preliminary
injunction to restrain the Trial Judge from issuing any warrant of
arrest and from proceeding with the arraignment of the accused.
The appellate court in a resolution dated July 1, 1993, denied
your petition.
In view of the said developments, it would be an exercise in
futility to continue reviewing the instant cases for any further
action on the part of the Department would depend on the sound
discretion of the Trial Court. The denial by the said court of the
motion to defer arraignment filed at our instance was clearly an
exercise of its discretion. With the issuance of the order dated
May 17, 1993, Trial Court was in effect sending a signal to this
Department that "the determination of the case is within its
exclusive jurisdiction and competence." The rule is that ". . . once
a complaint or information is filed in Court, any disposition of the
case as to dismissal or the conviction or acquittal of the accused
rests in the sound discretion of the Court. Although the fiscal
retains the direction and control of the prosecution of criminal
cases even while the case is already in Court, he cannot impose
his opinion on the trial court. The court is the best and sole judge
on what to do with the case before it. . . ." (Crespo vs. Mogul,
151 SCRA 462). 40
104
On 28 September 1993, the Court of Appeals promulgated a
decision 41 dismissing the petition because it had been "mooted with the release
by the Department of Justice of its decision . . . dismissing petitioners' petition for
review by inerrantly upholding the criminal court's exclusive and unsupplantable
authority to control the entire course of the case brought against petitioners,
reiterating with approval the dictum laid down in the 'Crespo' case."
The petitioners filed a motion to reconsider the DOJ's dismissal of the petition
citing therein its resolutions in other similar cases which were favorable to the
petitioners and adverse to other "349" Pepsi crowns holders.
In its resolution of 3 February 1994, the DOJ, through its "349" Committee,
denied the motion and stated: "The instant petition is different from the other
petitions resolved by this Department in similar cases from
the provinces. In the latter petitions, the complaints against herein respondents
[sic] 42 were dismissed inasmuch as the informations have not yet been filed or
even if already filed in court, the proceedings have been suspended by the courts
to await the outcome of the appeal pending with this Department." 43
The petitioners likewise filed a motion to reconsider 44 the aforesaid Court of
Appeals' decision, which the said court denied in its resolution 45 of 9 February
1994. Hence, the instant petition.
The First Division of this Court denied due course to this petition in its resolution
of 19 September 1994. 46
On 7 October 1994, the petitioners filed a motion for the
reconsideration 47 of the aforesaid resolution. Acting thereon, the First Division
required the respondents to comment thereon.
Later, the petitioners filed a supplemental motion for reconsideration 48 and a
motion to refer this case to the Court en banc. 49 In its resolution of 14 November
1994, 50 the First Division granted the latter motion and required the respondents
to comment on the supplemental motion for reconsideration.
In the resolution of 24 November 1994, the Court en banc accepted the referral.
On 10 October 1995, after deliberating on the motion for reconsideration and the
subsequent pleadings in relation thereto, the Court en banc granted the motion
for reconsideration; reconsidered and set aside the resolution of 19 September
1994; and reinstated the petition. It then considered the case submitted for
decision, "since the parties have exhaustively discussed the issues in their
pleadings, the original records of Criminal Case No. Q-93-43198 and of CA-G.R.
SP No. 31226 had been elevated to this Court, and both the petitioners and the

Office of the Solicitor General pray, in effect, that this Court resolve the issue of
probable cause on the basis thereof."
The pleadings of the parties suggest for this Court's resolution the following key
issues:
1. Whether public respondent Judge Asuncion committed grave
abuse of discretion in denying, on the basis of Crespo vs. Mogul,
the motions to suspend proceedings and hold in abeyance the
issuance of warrants of arrest and to defer arraignment until after
the petition for review filed with the DOJ shall have been
resolved.
2. Whether public respondent Judge Asuncion committed grave
abuse of discretion in ordering the issuance of warrants of arrest
without examining the records of the preliminary investigation.
3. Whether the DOJ, through its "349" Committee, gravely
abused its discretion in dismissing the petition for review on the
following bases: (a) the resolution of public respondent Court of
Appeals denying the application for a writ of preliminary
injunction and (b) of public respondent Asuncion's denial of the
abovementioned motions.
4. Whether public respondent Court of Appeals committed grave
abuse of discretion (a) in denying the motion for a writ of
preliminary injunction solely on the ground that public respondent
Asuncion had already before him the Joint Resolution of the
investigating prosecutor when he ordered the issuance of the
warrants of arrest, and (b) in ultimately dismissing the petition on
the ground of mootness since the DOJ had dismissed the
petition for review.
5. Whether this Court may determine in this proceedings the
existence of probable cause either for the issuance of warrants
of arrest against the petitioners or for their prosecution for the
crime of estafa.
We resolve the first four issues in the affirmative and the fifth, in the negative.
I.
There is nothing in Crespo vs. Mogul 51 which bars the DOJ from taking
cognizance of an appeal, by way 'of a petition for review, by an accused in a
criminal case from an unfavorable ruling of the investigating prosecutor. It merely
105
advised the DOJ to, "as far as practicable, refrain from entertaining a petition for
review or appeal from the action of the fiscal, when the complaint or information
has already been filed in Court." More specifically, it stated:
In order therefore to avoid such a situation whereby the opinion
of the Secretary of Justice who reviewed the action of the fiscal
may be disregarded by the trial court, the Secretary of Justice
should, as far as practicable, refrain from entertaining a petition
for review or appeal from the action of the fiscal, when the
complaint or information has already been filed in Court. The
matter should, be left entirely for the determination of the
Court. 52
In Marcelo vs. Court of Appeals, 53 this Court explicitly declared:
Nothing in the said ruling forecloses the power or authority of the
Secretary of Justice to review resolutions of his subordinates in
criminal cases. The Secretary of Justice is only enjoined to
refrain as far as practicable from entertaining a petition for review
or appeal from the action of the prosecutor once a complaint or
information is filed in court. In any case, the grant of a motion to
dismiss, which the prosecution may file after the Secretary of
Justice reverses an appealed resolution, is subject to the
discretion of the court.
Crespo could not have intended otherwise without doing violence to, or
repealing, the last paragraph of Section 4, Rule 112 of the Rules of
Court 54 which recognizes the authority of the Secretary of Justice to reverse the
resolution of the provincial or city prosecutor or chief state prosecutor upon
petition by a proper party.
Pursuant to the said provision, the Secretary of Justice had promulgated the
rules on appeals from resolutions in preliminary investigation. At the time the
petitioners filed their petition for the review of the Joint Resolution of the
investigating prosecutor, the governing rule was Circular No. 7, dated 25 January
1990. Section 2 thereof provided that only resolutions dismissing a criminal
complaint may be appealed to the Secretary of Justice. Its Section 4, 55 however,
provided an exception, thus allowing, upon a showing of manifest error or grave
abuse of discretion, appeals from resolutions finding probable cause, provided
that the accused has not been arraigned.
The DOJ gave due course to the petitioners' petition for review as an exception
pursuant to Section 4 of Circular No. 7.

Meanwhile, the DOJ promulgated on 30 June 1993 Department Order No.
223 56 which superseded Circular No. 7. This Order, however, retained the
provisions of Section 1 of the Circular on appealable cases and Section 4 on the
non-appealable cases and the exceptions thereto.
There is nothing in Department Order No. 223 which would warrant a recall of the
previous action of the DOJ giving due course to the petitioners' petition for
review. But whether the DOJ would affirm or reverse the challenged Joint
Resolution is still a matter of guesswork. Accordingly, it was premature for
respondent Judge Asuncion to deny the motions to suspend proceedings and to
defer arraignment on the following grounds:
This case is already pending in this Court for trial. To follow
whatever opinion the Secretary of Justice may have on the
matter would undermine the independence and integrity of this
Court. This Court is still capable of administering justice.
The real and ultimate test of the independence and integrity of his court is not the
filing of the aforementioned motions at that stage of the proceedings but the filing
of a motion to dismiss or to withdraw the information on the basis of a resolution
of the petition for review reversing the Joint Resolution of the investigating
prosecutor. Before that time, the following pronouncement in Crespo did not yet
truly become relevant or applicable:
The rule therefore in this jurisdiction is that once a complaint or
information is filed in Court any disposition of the case as its
dismissal or the conviction or acquittal of the accused rests in the
sound discretion of the court. Although the fiscal retains the
direction and control of the prosecution of criminal cases even
while the case is already in court he cannot impose his opinion
on the trial court. The court is the best and sole judge on what to
do with the case before it. The determination of the case is within
its exclusive jurisdiction and competence. A motion to dismiss
the case filed by the fiscal should be addressed to the Court who
has the option to grant or deny the same. It does not matter if
this is done before or after the arraignment of the accused or that
the motion was filed after a reinvestigation or upon instructions of
the Secretary of Justice who reviewed the records of the
investigation. 57
However, once a motion to dismiss or withdraw the information is filed
the trial judge may grant or deny it, not out of subservience to the
Secretary of Justice, but in faithful exercise of judicial prerogative. This
Court pertinently stated so in Martinez vs. Court of Appeals: 58
106
Whether to approve or disapprove the stand taken by the
prosecution is not the exercise of discretion required in cases
like this. The trial judge must himself be convinced that there
was indeed no sufficient evidence against the accused, and this
conclusion can be arrived at only after an assessment of the
evidence in the possession of the prosecution. What was
imperatively required was the trial judge's own assessment of
such evidence, it not being sufficient for the valid and proper
exercise of judicial discretion merely to accept the prosecution's
word for its supposed insufficiency.
As aptly observed the Office of the Solicitor General, in failing to
make an independent finding of the merits of the case and
merely anchoring the dismissal on the revised position of the
prosecution, the trial judge relinquished the discretion he was
duty bound to exercise. In effect, it was the prosecution, through
the Department of Justice which decided what to do and not the
court which was reduced to a mere rubber stamp in violation of
the ruling in Crespo vs. Mogul.
II.
Section 2, Article III of the present Constitution provides that no search warrant
or warrant of arrest shall issue except upon probable cause to be determined
personally by the judge after examination under oath or affirmation of the
complainant and the witnesses he may produce.
Under existing laws, warrants of arrest may be issued (1) by the Metropolitan
Trial Courts (MeTCs) except those in the National Capital Region, Municipal Trial
Courts (MTCs), and Municipal Circuit Trial Courts (MCTCs) in cases falling within
their exclusive original jurisdiction; 59 in cases covered by the rule on summary
procedure where the accused fails to appear when required; 60 and in cases filed
with them which are cognizable by the Regional Trial Courts (RTCs); 61 and (2)
by the Metropolitan Trial Courts in the National Capital Region (MeTCs-NCR)
and the RTCs in cases filed with them after appropriate preliminary investigations
conducted by officers authorized to do so other than judges of MeTCs, MTCs
and MCTCs. 62
As to the first, a warrant can issue only if the judge is satisfied after an
examination in writing and under oath of the complainant and the witnesses, in
the form of searching questions and answers, that a probable cause exists and
that there is a necessity of placing the respondent under immediate custody in
order not to frustrate the ends of justice.

As to the second, this Court held in Soliven vs. Makasiar 63 that the judge is not
required to personally examine the complainant and the witnesses, but
[f]ollowing established doctrine and procedure, he shall: (1)
personally evaluate the report and supporting documents
submitted by the fiscal regarding the existence of probable cause
and, on the basis thereof; issue a warrant of arrest; or (2) if on
the basis thereof he finds no probable cause, he may disregard
the fiscal's report and require the submission of supporting
affidavits of witnesses to aid him in arriving at a conclusion as to
the existence of probable cause. 64
Sound policy supports this procedure, "otherwise judges would be unduly
laden with the preliminary examination and investigation of criminal
complaints instead of concentrating on hearing and deciding cases filed
before their courts." It must be emphasized that judges must not rely
solely on the report or resolution of the fiscal (now prosecutor); they must
evaluate the report and the supporting document. In this sense, the
aforementioned requirement has modified paragraph 4(a) of Circular No.
12 issued by this Court on 30 June 1987 prescribing the Guidelines on
Issuance of Warrants of Arrest under Section 2, Article III of the 1987
Constitution, which provided in part as follows:
4. In satisfying himself of the existence of a probable cause for
the issuance of a warrant of arrest, the judge, following
established doctrine and procedure, may either:
(a) Rely upon the fiscal's certification of the
existence of probable cause whether or not the
case is cognizable only by the Regional Trial
Court and on the basis thereof, issue a warrant
of arrest. . . .
This requirement of evaluation not only of the report or certification of the fiscal
but also of the supporting documents was further explained
in People vs. Inting, 65 where this Court specified what the documents may
consist of, viz., "the affidavits, the transcripts of stenographic notes (if any), and
all other supporting documents behind the Prosecutor's certification which are
material in assisting the Judge to make his determination" of probable cause.
Thus:
We emphasize the important features of the constitutional
mandate that ". . . no search warrant or warrant of arrest shall
issue except upon probable cause to be determined personally
by the judge . . ." (Article III, Section 2, Constitution).
107
First, the determination of probable cause is a function of the
Judge. It is not for the Provincial Fiscal or Prosecutor nor the
Election Supervisor to ascertain. Only the Judge and the Judge
alone makes this determination.
Second, the preliminary inquiry made by a Prosecutor does not
bind the Judge. It merely assists him to make the determination
of probable cause. The Judge does not have to follow what the
Prosecutor presents to him. By itself, the Prosecutor's
certification of probable cause is ineffectual. It is the report, the
affidavits, the transcripts of stenographic notes (if any), and all
other supporting documents behind the Prosecutor's certification
which are material in assisting the Judge to
make hisdetermination.
In adverting to a statement in People vs. Delgado 66 that the judge may rely on
the resolution of the Commission on Elections (COMELEC) to file the information
by the same token that it may rely on the certification made by the prosecutor
who conducted the preliminary investigation in the issuance of the warrant of
arrest, this Court stressed in Lim vs. Felix 67that
Reliance on the COMELEC resolution or the Prosecutor's
certification presupposes that the records of either the
COMELEC or the Prosecutor have been submitted to the Judge
and he relies on the certification or resolution because the
records of the investigation sustain the recommendation. The
warrant issues not on the strength of the certification standing
alone but because of the records which sustain it.
And noting that judges still suffer from the inertia of decisions and
practice under the 1935 and 1973 Constitutions, this Court found it
necessary to restate the rule "in greater detail and hopefully clearer
terms." It then proceeded to do so, thus:
We reiterate the ruling in Soliven vs. Makasiar that the Judge
does not have to personally examine the complainant and his
witnesses. The Prosecutor can perform the same functions as a
commissioner for the taking of the evidence. However, there
should be a report and necessary documents supporting the
Fiscal's bare certification. All of these should be before the
Judge.
The extent of the Judge's personal examination of the report and
its annexes depends on the circumstances of each case. We
cannot determine beforehand how cursory or exhaustive the

Judge's examination should be. The Judge has to exercise
sound discretion for, after all, the personal determination is
vested in the Judge by the Constitution. It can be as brief as or
detailed as the circumstances of each case require. To be sure,
the Judge must go beyond the Prosecutor's certification and
investigation report whenever necessary. He should call for the
complainant and witnesses themselves to answer the court's
probing questions when the circumstances of the case so
require.
This Court then set aside for being null and void the challenged order of
respondent Judge Felix directing the issuance of the warrants of arrest
against petitioners Lim, et al., solely on the basis of the prosecutor's
certification in the informations that there existed probable cause "without
having before him any other basis for his personal determination of the
existence of a probable cause."
In Allado vs. Diokno, 68 this Court also ruled that "before issuing a
warrant of arrest, the judge must satisfy himself that based on the
evidence submitted there is sufficient proof that a crime has been
committed and that the person to be arrested is probably guilty thereof."
In the recent case of Webb vs. De Leon, 69 this Court rejected the thesis of the
petitioners of absence of probable cause and sustained the investigating panel's
and the respondent Judge's findings of probable cause. After quoting extensively
from Soliven vs. Makasiar, 70 this Court explicitly pointed out:
Clearly then, the Constitution, the Rules of Court, and our case
law repudiate the submission of petitioners that respondent
judges should have conducted "searching examination of
witnesses" before issuing warrants of arrest against them. They
also reject petitioners' contention that a judge must first issue an
order of arrest before issuing a warrant of arrest. There is no law
or rule requiring the issuance of an Order of Arrest prior to a
warrant of arrest.
In the case at bar, the DOJ Panel submitted to the trial court its
26-page report, the two (2) sworn statements of Alfaro and the
sworn statements of Carlos Cristobal and Lolita Birrer as well as
the counter-affidavits of the petitioners. Apparently, the
painstaking recital and analysis of the parties' evidence made in
the DOJ Panel Report satisfied both judges that there is
probable cause to issue warrants of arrest against petitioners.
Again, we stress that before issuing warrants of arrest, judges
merely determine personally the probability, not the certainty of
108
the guilt of an accused. In doing so, judges do not conduct a de
novo hearing to determine the existence of probable cause. They
just personally review the initial determination of the prosecutor
finding a probable cause to see if it is supported by substantial
evidence. The sufficiency of the review process cannot be
measured by merely counting minutes and hours. The fact that it
took the respondent judges a few hours to review and affirm the
probable cause determination of the DOJ Panel does not mean
they made no personal evaluation of the evidence attached to
the records of the case. (emphasis supplied)
The teachings then of Soliven, Inting, Lim, Allado, and Webb reject the
proposition that the investigating prosecutor's certification in an information or his
resolution which is made the basis for the filing of the information, or both, would
suffice in the judicial determination of probable cause for the issuance of a
warrant of arrest. In Webb, this Court assumed that since the respondent Judges
had before them not only the 26-page resolution of the investigating panel but
also the affidavits of the prosecution witnesses and even the counter-affidavits of
the respondents, they (judges) made personal evaluation of the evidence
attached to the records of the case.
Unfortunately, in Criminal Case No. Q-93-43198, nothing accompanied the
information upon its filing on 12 April 1993 with the trial court. As found by the
Court of Appeals in its resolution of 1 July 1993, a copy of the Joint Resolution
was forwarded to, and received by, the trial court only on 22 April 1993. And as
revealed by the certification 71 of Branch Clerk of Court Gibson Araula, Jr., no
affidavits of the witnesses, transcripts of stenographic notes of the proceedings
during the preliminary investigation, or other documents submitted in the course
thereof were found in the records of Criminal Case No. Q-93-43198 as of 19 May
1993. Clearly, when respondent Judge Asuncion issued the assailed order of 17
May 1993 directing, among other things, the issuance of warrants of arrest, he
had only the information, amended information, and Joint Resolution as bases
thereof. He did not have the records or evidence supporting the prosecutor's
finding of probable cause. And strangely enough, he made no specific finding of
probable cause; he merely directed the issuance of warrants of arrest "after June
21, 1993." It may, however, be argued that the directive presupposes a finding of
probable cause. But then compliance with a constitutional requirement for the
protection of individual liberty cannot be left to presupposition, conjecture, or
even convincing logic.
III.
As earlier stated, per its 1st Indorsement of 21 April 1993, the DOJ gave due
course to the petitioners' petition for review pursuant to the exception provided
for in Section 4 of Circular No. 7, and directed the Office of the City Prosecutor of
Quezon City to forward to the Department the records of the cases and to file in

court a motion for the deferment of the proceedings. At the time it issued the
indorsement, the DOJ already knew that the information had been filed in court,
for which reason it directed the City Prosecutor to inform the Department whether
the accused have already been arraigned and if not yet arraigned, to move to
defer further proceedings. It must have been fully aware that, pursuant to Crespo
vs. Mogul, a motion to dismiss a case filed by the prosecution either as a
consequence of a reinvestigation or upon instructions of the Secretary of Justice
after a review of the records of the investigation is addressed to the trial court,
which has the option to grant or to deny it. Also, it must have been still fresh in its
mind that a few months back it had dismissed for lack of probable cause other
similar complaints of holders of "349" Pepsi crowns. 72 Thus, its decision to give
due course to the petition must have been prompted by nothing less than an
honest conviction that a review of the Joint Resolution was necessary in the
highest interest of justice in the light of the special circumstances of the case.
That decision was permissible within the "as far as practicable" criterion
in Crespo.
Hence, the DOJ committed grave abuse of discretion when it executed on 23
July 1993 a unilateral volte-face, which was even unprovoked by a formal
pleading to accomplish the same end, by dismissing the petition for review. It
dismissed the petition simply because it thought that a review of the Joint
Resolution would be an exercise in futility in that any further action on the part of
the Department would depend on the sound discretion of the trial court, and that
the latter's denial of the motion to defer arraignment filed at the instance of the
DOJ was clearly an exercise of that discretion or was, in effect, a signal to the
Department that the determination of the case is within the court's exclusive
jurisdiction and competence. This infirmity becomes more pronounced because
the reason adduced by the respondent Judge for his denial of the motions to
suspend proceedings and hold in abeyance issuance of warrants of arrest and to
defer arraignment finds, as yet, no support in Crespo.
IV.
If the only issue before the Court of Appeals were the denial of the petitioners'
Motion to Suspend Proceedings and to Hold in Abeyance Issuance of Warrants
of Arrest and the public prosecutor's Motion to Defer Arraignment, which were
both based on the pendency before the DOJ of the petition for the review of the
Joint Resolution, the dismissal of CA-G.R. SP No. 31226 on the basis of the
dismissal by the DOJ of the petition for review might have been correct.
However, the petition likewise involved the issue of whether respondent Judge
Asuncion gravely abused his discretion in ordering the issuance of warrants of
arrest despite want of basis. The DOJ's dismissal of the petition for review did not
render moot and academic the latter issue.
109
In denying in its resolution of 1 July 1993 the petitioners' application for a writ of
preliminary injunction to restrain respondent Judge Asuncion from issuing
warrants of arrest, the Court of Appeals justified its action in this wise:
The Joint Resolution was sufficient in itself to have been relied
upon by respondent judge in convincing himself that probable
cause indeed exists for the purpose of issuing the corresponding
warrants of arrest. The mere silence of the records or the
absence of any express declaration in the questioned Order of
May 17, 1993 as to where the respondent Judge based his
finding of probable cause does not give rise to any adverse
inference on his part. The fact remains that the Joint Resolution
was at respondent Judge's disposal at the time he issued the
Order for the issuance of the warrants of arrest. After all,
respondent Judge enjoys in his favor the presumption of
regularity in the performance of official actuations. And this
presumption prevails until it is overcome by clear and convincing
evidence to the contrary. Every reasonable intendment will be
made in support of the presumption, and in case of doubt as to
an officer's act being lawful or unlawful it should be construed to
be lawful. (31 C.J.S., 808-810. See also Mahilum, et al. vs. Court
of Appeals, 17 SCRA 482; People vs. Cortez, 21 SCRA 1228;
Government of the P.I. vs. Galarosa, 36 Phil. 338).
We are unable to agree with this disquisition, for it merely assumes at least two
things: (1) that respondent Judge Asuncion had read and relied on the Joint
Resolution and (2) he was convinced that probable cause exists for the issuance
of the warrants of arrest against the petitioners. Nothing in the records provides
reasonable basis for these assumptions. In his assailed order, the respondent
Judge made no mention of the Joint Resolution, which was attached to the
records of Criminal Case No. Q-93-43198 on 22 April 1993. Neither did he state
that he found probable cause for the issuance of warrants of arrest. And, for an
undivinable reason, he directed the issuance of warrants of arrest only "after
June 21, 1993." If he did read the Joint Resolution and, in so reading, found
probable cause, there was absolutely no reason at all to delay for more than one
month the issuance of warrants of arrest. The most probable explanation for such
delay could be that the respondent Judge had actually wanted to wait for a little
while for the DOJ to resolve the petition for review.
It is, nevertheless, contended in the dissenting opinion of Mr. Justice Reynato S.
Puno that whatever doubts may have lingered on the issue of probable cause
was dissolved when no less than the Court of Appeals sustained the finding of
probable cause made by the respondent Judge after an evaluation of the Joint
Resolution. We are not persuaded with that opinion. It is anchored on erroneous
premises. In its 1 July 1993 resolution, the Court of Appeals does not at all state
that it either sustained respondent Judge Asuncion's finding of probable cause,

or found by itself probable cause. As discussed above, it merely presumed that
Judge Asuncion might have read the Joint Resolution and found probable cause
from a reading thereof. Then too, that statement in the dissenting opinion
erroneously assumes that the Joint Resolution can validly serve as sufficient
basis for determining probable cause. As stated above, it is not.
V.
In criminal prosecutions, the determination of probable cause may either be an
executive or a judicial prerogative. In People vs. Inting, 73 this Court aptly stated:
And third, Judges and Prosecutors alike should distinguish the
preliminary inquiry which determines probable cause for the
issuance of a warrant of arrest from a preliminary investigation
proper which ascertains whether the offender should be held for
trial or released. Even if the two inquiries are conducted in the
course of one and the same proceeding, there should be no
confusion about the objectives. The determination of probable
cause for the warrant of arrest is made by the Judge. The
preliminary investigation proper — whether or not there is
reasonable ground to believe that the accused is guilty of the
offense charged and, therefore, whether or not he should be
subjected to the expense, rigors and embarrassment of
trial — is the function of the Prosecutor.
....
We reiterate that preliminary investigation should be
distinguished as to whether it is an investigation for the
determination of a sufficient ground for the filing of the
information or it is an investigation for the determination of a
probable cause for the issuance of a warrant of arrest. The first
kind of preliminary investigation is executive in nature. It is part
of the prosecution's job. The second kind of preliminary
investigation which is more properly called preliminary
examination is judicial in nature and is lodged with the judge. . . .
Ordinarily, the determination of probable cause is not lodged with this Court. Its
duty in an appropriate case is confined to the issue of whether the executive or
judicial determination, as the case may be, of probable cause was done without
or in excess of jurisdiction or with grave abuse of discretion amounting to want of
jurisdiction. This is consistent with the general rule that criminal prosecutions
may not be restrained or stayed by injunction, preliminary or final. There are,
however, exceptions to this rule. Among the exceptions are enumerated
in Brocka vs. Enrile 74 as follows:
110
a. To afford adequate protection to the constitutional rights of the
accused (Hernandez vs. Albano, et al., L-19272, January 25,
1967, 19 SCRA 95);
b. When necessary for the orderly administration of justice or to
avoid oppression or multiplicity of actions (Dimayuga, et al. vs.
Fernandez, 43 Phil. 304; Hernandez vs. Albano, supra; Fortun
vs. Labang, et al., L-38383, May 27, 1981, 104 SCRA 607);
c. When there is a pre-judicial question which is sub judice (De
Leon vs. Mabanag, 70 Phil. 202);
d. When the acts of the officer are without or in excess of
authority (Planas vs. Oil, 67 Phil. 62);
e. Where the prosecution is under an invalid law, ordinance or
regulation (Young vs. Rafferty, 33 Phil. 556; Yu Cong Eng vs.
Trinidad, 47 Phil. 385, 389);
f. When double jeopardy is clearly apparent (Sangalang vs.
People and Avendia, 109 Phil. 1140);
g. Where the court has no jurisdiction over the offense (Lopez
vs. City Judge, L-25795, October 29, 1966, 18 SCRA 616);
h. Where it is a case of persecution rather than prosecution
(Rustia vs. Ocampo, CA-G.R. No. 4760, March 25, 1960);
i. Where the charges are manifestly false and motivated by the
lust for vengeance (Recto vs. Castelo, 18 L.J. [1953], cited in
Rañoa vs. Alvendia, CA-G.R. No. 30720-R, October 8,
1962; Cf.Guingona, et al. vs. City Fiscal, L-60033, April 4, 1984,
128 SCRA 577); and
j. When there is clearly no prima facie case against the accused
and a motion to quash on that ground has been denied (Salonga
vs. Paño, et al., L- 59524, February 18, 1985, 134 SCRA 438).
7. Preliminary injunction has been issued by the Supreme Court
to prevent to threatened unlawful arrest of petitioners (Rodriguez
vs. Castelo, L- 6374, August 1, 1953). (cited in Regalado,
Remedial Law Compendium, p. 188, 1988 Ed.)
 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

WESTERN POLICE DISTRICT, and THE MEMBERS OF THE PROCESS
SERVING UNIT AT THE REGIONAL TRIAL COURT OF MANILA, respondents.
G.R. No. 83979 November 14, 1988.
LUIS D. BELTRAN, petitioner,
vs.
EXECUTIVE SECRETARY CATALINO MACARAIG, SECRETARY OF
JUSTICE SEDFREY ORDOÑEZ, UNDERSECRETARY OF JUSTICE
SILVESTRE BELLO III, THE CITY FISCAL OF MANILA JESUS F.
GUERRERO, and JUDGE RAMON P. MAKASIAR, Presiding Judge of
Branch 35 of the Regional Trial Court, at Manila, respondents.
Angara, Abello, Concepcion, Regala and Cruz for petitioners in G.R. No. 82585.
Perfecto V. Fernandez, Jose P. Fernandez and Cristobal P. Fernandez for
petitioner in G.R. Nos. 82827 and 83979.
RESOLUTION
PER CURIAM:
In these consolidated cases, three principal issues were raised: (1) whether or
not petitioners were denied due process when informations for libel were filed
against them although the finding of the existence of a prima faciecase was still
under review by the Secretary of Justice and, subsequently, by the President; (2)
whether or not the constitutional rights of Beltran were violated when respondent
RTC judge issued a warrant for his arrest without personally examining the
complainant and the witnesses, if any, to determine probable cause; and (3)
whether or not the President of the Philippines, under the Constitution, may
initiate criminal proceedings against the petitioners through the filing of a
complaint-affidavit.
Subsequent events have rendered the first issue moot and academic. On March
30, 1988, the Secretary of Justice denied petitioners' motion for reconsideration
and upheld the resolution of the Undersecretary of Justice sustaining the City
Fiscal's finding of a prima facie case against petitioners. A second motion for
reconsideration filed by petitioner Beltran was denied by the Secretary of Justice
on April 7, 1988. On appeal, the President, through the Executive Secretary,
affirmed the resolution of the Secretary of Justice on May 2, 1988. The motion for
reconsideration was denied by the Executive Secretary on May 16, 1988. With
these developments, petitioners' contention that they have been denied the
administrative remedies available under the law has lost factual support.
112
It may also be added that with respect to petitioner Beltran, the allegation of
denial of due process of law in the preliminary investigation is negated by the fact
that instead of submitting his counter- affidavits, he filed a "Motion to Declare
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
criminal case actually file his counter-affidavits before the preliminary
investigation is deemed completed. All that is required is that the respondent be
given the opportunity to submit counter-affidavits if he is so minded.
The second issue, raised by petitioner Beltran, calls for an interpretation of the
constitutional provision on the issuance of warrants of arrest. The pertinent
provision reads:
Art. III, Sec. 2. The right of the people to be secure in their
persons, houses, papers and effects against unreasonable
searches and seizures of whatever nature and for any purpose
shall be inviolable, and no search warrant or warrant of arrest
shall issue except upon probable cause to be determined
personally by the judge after examination nder oath or
affirmation of the complainant and the witnesses he may
produce, and particularly describing the place to be searched
and the persons or things to be seized.
The addition of the word "personally" after the word "determined" and the
deletion of the grant of authority by the 1973 Constitution to issue warrants to
"other responsible officers as may be authorized by law," has apparently
convinced petitioner Beltran that the Constitution now requires the judge to
personally examine the complainant and his witnesses in his determination of
probable cause for the issuance of warrants of arrest. This is not an accurate
interpretation.
What the Constitution underscores is the exclusive and personal responsibility of
the issuing judge to satisfy himself of the existence of probable cause. In
satisfying himself of the existence of probable cause for the issuance of a
warrant of arrest, the judge is not required to personally examine the complainant
and his witnesses. Following established doctrine and procedure, he shall: (1)
personally evaluate the report and the supporting documents submitted by the
fiscal regarding the existence of probable cause and, on the basis thereof, issue
a warrant of arrest; or (2) if on the basis thereof he finds no probable cause, he
may disregard the fiscal's report and require the submission of supporting
affidavits of witnesses to aid him in arriving at a conclusion as to the existence of
probable cause.

Sound policy dictates this procedure, otherwise judges would be unduly laden
with the preliminary examination and investigation of criminal complaints instead
of concentrating on hearing and deciding cases filed before their courts.
On June 30, 1987, the Supreme Court unanimously adopted Circular No. 12,
setting down guidelines for the issuance of warrants of arrest. The procedure
therein provided is reiterated and clarified in this resolution.
It has not been shown that respondent judge has deviated from the prescribed
procedure. Thus, with regard to the issuance of the warrants of arrest, a finding
of grave abuse of discretion amounting to lack or excess of jurisdiction cannot be
sustained.
Anent the third issue, petitioner Beltran argues that "the reasons which
necessitate presidential immunity from suit impose a correlative disability to file
suit." He contends that if criminal proceedings ensue by virtue of the President's
filing of her complaint-affidavit, she may subsequently have to be a witness for
the prosecution, bringing her under the trial court's jurisdiction. This, continues
Beltran, would in an indirect way defeat her privilege of immunity from suit, as by
testifying on the witness stand, she would be exposing herself to possible
contempt of court or perjury.
The rationale for the grant to the President of the privilege of immunity from suit
is to assure the exercise of Presidential duties and functions free from any
hindrance or distraction, considering that being the Chief Executive of the
Government is a job that, aside from requiring all of the office holder's time, also
demands undivided attention.
But this privilege of immunity from suit, pertains to the President by virtue of the
office and may be invoked only by the holder of the office; not by any other
person in the President's behalf. Thus, an accused in a criminal case in which the
President is complainant cannot raise the presidential privilege as a defense to
prevent the case from proceeding against such accused.
Moreover, there is nothing in our laws that would prevent the President from
waiving the privilege. Thus, if so minded the President may shed the protection
afforded by the privilege and submit to the court's jurisdiction. The choice of
whether to exercise the privilege or to waive it is solely the President's
prerogative. It is a decision that cannot be assumed and imposed by any other
person.
As regards the contention of petitioner Beltran that he could not be held liable for
libel because of the privileged character or the publication, the Court reiterates
that it is not a trier of facts and that such a defense is best left to the trial court to
appreciate after receiving the evidence of the parties.
113
As to petitioner Beltran's claim that to allow the libel case to proceed would
produce a "chilling effect" on press freedom, the Court finds no basis at this
stage to rule on the point.
The petitions fail to establish that public respondents, through their separate acts,
gravely abused their discretion as to amount to lack of jurisdiction. Hence, the
writs of certiorari and prohibition prayed for cannot issue.
WHEREFORE, finding no grave abuse of discretion amounting to excess or lack
of jurisdiction on the part of the public respondents, the Court Resolved to
DISMISS the petitions in G. R. Nos. 82585, 82827 and 83979. The Order to
maintain 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.
Fernan, C.J., Narvasa, Melencio-Herrera, Cruz, Paras, Feliciano, Gancayco,
Padilla, Bidin, Sarmiento, Cortes, Griño-Aquino Medialdea and Regalado, JJ.,
concur.
Separate Opinions
GUTIERREZ, JR., J., concurring:
I concur with the majority opinion insofar as it involves the three principal issues
mentioned in its opening statement. However, as to the more important issue on
whether or not the prosecution of the libel case would produce a "chilling effect"
on press freedom, I beg to reserve my vote. I believe this is the more important
issue in these petitions and it should be resolved now rather that later.
Consistent with our decision in Salonga v. Cruz Pano (134 SCRA 438 [1985]),
the Court should not hesitate to quash a criminal prosecution in the interest of
more enlightened and substantial justice where it is not alone the criminal liability
of an accused in a seemingly minor libel case which is involved but broader
considerations of governmental power versus a preferred freedom.
We have in these four petitions the unusual situation where the highest official of
the Republic and one who enjoys unprecedented public support asks for the
prosecution of a newspaper columnist, the publisher and chairman of the editorial

board, the managing editor and the business manager in a not too indubitable a
case for alleged libel.
I am fully in accord with an all out prosecution if the effect will be limited to
punishing a newspaperman who, instead of observing accuracy and fairness,
engages in unwarranted personal attacks, irresponsible twisting of facts, of
malicious distortions of half-truths which tend to cause dishonor, discredit, or
contempt of the complainant. However, this case is not a simple prosecution for
libel. We have as complainant a powerful and popular President who heads the
investigation and prosecution service and appoints members of appellate courts
but who feels so terribly maligned that she has taken the unorthodox step of
going to court inspite of the invocations of freedom of the press which would
inevitably follow.
I believe that this Court should have acted on this issue now instead of leaving
the matter to fiscals and defense lawyers to argue before a trial judge.
There is always bound to be harassment inherent in any criminal prosecution.
Where the harassment goes beyond the usual difficulties encountered by any
accused and results in an unwillingness of media to freely criticize government or
to question government handling of sensitive issues and public affairs, this Court
and not a lower tribunal should draw the demarcation line.
As early as March 8, 1918, the decision in United States v. Bustos (37 Phil. 731)
stated that "(c)omplete liberty to comment on the conduct of public men is a
scalpel in the case of free speech. The sharp incision of its probe relieves the
abscesses of officialdom. Men in public life may suffer under a hostile and unjust
accusation; the wound can be assuaged with the balm of a clear conscience."
The Court pointed out that while defamation is not authorized, criticism is to be
expected and should be borne for the common good.
In People v. Perfecto (43 Phil. 887 [1922]), the Court stated:
xxx xxx xxx
... No longer is there a Minister of the Crown own or a person in
authority of such exalted position that the citizen must speak of
him only with bated breath. "In the eye of our Constitution and
laws, every man is a sovereign, a ruler and a freeman, and has
equal rights with every other man." (at p. 900)
In fact, the Court observed that high official position, instead of affording
immunity from slanderous and libelous charges, would actually invite attacks by
those who desire to create sensation. It would seem that what would ordinarily be
slander if directed at the typical person should be examined from various
114
perspectives if directed at a high government official. Again, the Supreme Court
should draw this fine line instead of leaving it to lower tribunals.
This Court has stressed as authoritative doctrine in Elizalde v. Gutierrez (76
SCRA 448 [1977]) that a prosecution for libel lacks justification if the offending
words find sanctuary within the shelter of the free press guaranty. In other words,
a prosecution for libel should not be allowed to continue, where after discounting
the possibility that the words may not be really that libelous, there is likely to be a
chilling effect, a patently inhibiting factor on the willingness of newspapermen,
especially editors and publishers to courageously perform their critical role in
society. If, instead of merely reading more carefully what a columnist writes in his
daily column, the editors tell their people to lay off certain issues or certain
officials, the effect on a free press would be highly injurious.
Because many questions regarding press freedom are left unanswered by our
resolution, I must call attention to our decisions which caution that "no inroads on
press freedom should be allowed in the guise of punitive action visited on what
otherwise should be characterized as libel." (Lopez v. Court of Appeals, 34
SCRA 117 [1970]; See also the citations in Elizalde v. Gutierrez, supra).
The United States Supreme Court is even more emphatic, to wit:
In deciding the question now, we are compelled by neither
precedent nor policy to give any more weight to the epithet "libel"
than we have to other "mere labels" of state law. N. A. A. C. P. v.
Button, 371 US 415, 429, 9L ed 2d 405, 415, 83 S Ct 328. Like
insurrection, contempt, advocacy of unlawful acts, breach of the
peace, obscenity, solicitation of legal business, and the other
various other formulae for the repression of expression that have
been challenged in this Court, libel can claim no talismanic
immunity from constitutional limitations. It must be measured by
standards that satisfy the First Amendment.
xxx xxx xxx
Those who won our independence believed ... that public
discussion is a political duty; and that this should be a
fundamental principle of the American government. They
recognized the risk to which all human institutions are subject.
But they knew that order cannot be secured merely through fear
of punishment for its infraction; that it is hazardous to discourage
thought, hope and imagination; that fear breeds repression; that
repression breeds hate; that hate menaces stable government;
that the path of safety lies in the opportunity to discuss freely
supposed grievances and proposed remedies; and that the fitting

remedy for evil counsel is good ones. Believing in the power of
reason as applied through public discussion, they eschewed
silence coerced by law—the argument of force in its worst form.
...
Thus we consider this case against the background of a
profound national commitment to the principle that debate on
public issues should be uninhibited, robust, and wide open, and
that it may well include vehement, caustic, and sometimes
unpleasantly sharp attacks on government and public officials. ...
(at pp. 700-701)
Shunting aside the individual liability of Mr. Luis Beltran, is there a prima
facie showing that Messrs. Maximo Soliven, Antonio V. Roces, Frederick K.
Agcaoili, and Godofredo L. Manzanas knowingly participated in a wilful purveying
of falsehood? Considering the free speech aspects of these petitions, should not
a differentiated approach to their particular liabilities be taken instead of lumping
up everybody with the offending columnist? I realize that the law includes
publishers and editors but perhaps the "chilling effect" issue applies with singular
effectivity to publishers and editors vis-a-vis newspaper columnists. There is no
question that, ordinarily, libel is not protected by the free speech clause but we
have to understand that some provocative words, which if taken literally may
appear to shame or disparage a public figure, may really be intended to provoke
debate on public issues when uttered or written by a media personality. Will not a
criminal prosecution in the type of case now before us dampen the vigor and limit
the variety of public debate? There are many other questions arising from this
unusual case which have not been considered.
I, of course, concur with the Court's opinion because it has decided to limit the
issues to narrowly drawn ones. I see no reason to disagree with the way the
Court has resolved them. The first issue on prematurity is moot. The second
issue discusses a procedure now embodied in the recently amended Rules of
Court on how a Judge should proceed before he issues a warrant of arrest.
Anent the third issue, considerations of public policy dictate that an incumbent
President should not be sued. At the same time, the President cannot stand by
helplessly bereft of legal remedies if somebody vilifies or maligns him or her.
The Court has decided to 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
individuals who would not allow any considerations of possible consequences to
their careers to stand in the way of public duty. But why should we subject them
to this problem? And why should we allow the possibility of the trial court treating
and deciding the case as one for ordinary libel without bothering to fully explore
the more important areas of concern, the extremely difficult issues involving
government power and freedom of expression.
115
However, since we have decided to defer the "chilling effect" issue for a later
day, I limit myself to reiterating the dissenting words of Mr. Justice Jackson in the
American case of Beaurnhais v. Illinois (343 U. S. 250) when he said:
If one can claim to announce the judgment of legal history on
any subject, it is that criminal libel laws are consistent with the
concept of ordered liberty only when applied with safeguards
evolved to prevent their invasion of freedom of expression.
In the trial of the libel case against the petitioners, the safeguards in the name of
freedom of expression should be faithfully applied.
Separate Opinions
GUTIERREZ, JR., J., concurring:
I concur with the majority opinion insofar as it involves the three principal issues
mentioned in its opening statement. However, as to the more important issue on
whether or not the prosecution of the libel case would produce a "chilling effect"
on press freedom, I beg to reserve my vote. I believe this is the more important
issue in these petitions and it should be resolved now rather that later.
Consistent with our decision in Salonga v. Cruz Pano (134 SCRA 438 [1985]),
the Court should not hesitate to quash a criminal prosecution in the interest of
more enlightened and substantial justice where it is not alone the criminal liability
of an accused in a seemingly minor libel case which is involved but broader
considerations of governmental power versus a preferred freedom.
We have in these four petitions the unusual situation where the highest official of
the Republic and one who enjoys unprecedented public support asks for the
prosecution of a newspaper columnist, the publisher and chairman of the editorial
board, the managing editor and the business manager in a not too indubitable a
case for alleged libel.
I am fully in accord with an all out prosecution if the effect will be limited to
punishing a newspaperman who, instead of observing accuracy and fairness,
engages in unwarranted personal attacks, irresponsible twisting of facts, of
malicious distortions of half-truths which tend to cause dishonor, discredit, or
contempt of the complainant. However, this case is not a simple prosecution for
libel. We have as complainant a powerful and popular President who heads the
investigation and prosecution service and appoints members of appellate courts
but who feels so terribly maligned that she has taken the unorthodox step of
going to court inspite of the invocations of freedom of the press which would
inevitably follow.

I believe that this Court should have acted on this issue now instead of leaving
the matter to fiscals and defense lawyers to argue before a trial judge.
There is always bound to be harassment inherent in any criminal prosecution.
Where the harassment goes beyond the usual difficulties encountered by any
accused and results in an unwillingness of media to freely criticize government or
to question government handling of sensitive issues and public affairs, this Court
and not a lower tribunal should draw the demarcation line.
As early as March 8, 1918, the decision in United States v. Bustos (37 Phil. 731)
stated that "(c)omplete liberty to comment on the conduct of public men is a
scalpel in the case of free speech. The sharp incision of its probe relieves the
abscesses of officialdom. Men in public life may suffer under a hostile and unjust
accusation; the wound can be assuaged with the balm of a clear conscience."
The Court pointed out that while defamation is not authorized, criticism is to be
expected and should be borne for the common good.
In People v. Perfecto (43 Phil. 887 [1922]), the Court stated:
xxx xxx xxx
... No longer is there a Minister of the Crown own or a person in
authority of such exalted position that the citizen must speak of
him only with bated breath. "In the eye of our Constitution and
laws, every man is a sovereign, a ruler and a freeman, and has
equal rights with every other man." (at p. 900)
In fact, the Court observed that high official position, instead of affording
immunity from slanderous and libelous charges, would actually invite attacks by
those who desire to create sensation. It would seem that what would ordinarily be
slander if directed at the typical person should be examined from various
perspectives if directed at a high government official. Again, the Supreme Court
should draw this fine line instead of leaving it to lower tribunals.
This Court has stressed as authoritative doctrine in Elizalde v. Gutierrez (76
SCRA 448 [1977]) that a prosecution for libel lacks justification if the offending
words find sanctuary within the shelter of the free press guaranty. In other words,
a prosecution for libel should not be allowed to continue, where after discounting
the possibility that the words may not be really that libelous, there is likely to be a
chilling effect, a patently inhibiting factor on the willingness of newspapermen,
especially editors and publishers to courageously perform their critical role in
society. If, instead of merely reading more carefully what a columnist writes in his
daily column, the editors tell their people to lay off certain issues or certain
officials, the effect on a free press would be highly injurious.
116
Because many questions regarding press freedom are left unanswered by our
resolution, I must call attention to our decisions which caution that "no inroads on
press freedom should be allowed in the guise of punitive action visited on what
otherwise should be characterized as libel." (Lopez v. Court of Appeals, 34
SCRA 117 [1970]; See also the citations in Elizalde v.
Gutierrez, supra).<äre||anº•1àw>
The United States Supreme Court is even more emphatic, to wit:
In deciding the question now, we are compelled by neither
precedent nor policy to give any more weight to the epithet "libel"
than we have to other "mere labels" of state law. N. A. A. C. P. v.
Button, 371 US 415, 429, 9L ed 2d 405, 415, 83 S Ct 328. Like
insurrection, contempt, advocacy of unlawful acts, breach of the
peace, obscenity, solicitation of legal business, and the other
various other formulae for the repression of expression that have
been challenged in this Court, libel can claim no talismanic
immunity from constitutional limitations. It must be measured by
standards that satisfy the First Amendment.
xxx xxx xxx
Those who won our independence believed ... that public
discussion is a political duty; and that this should be a
fundamental principle of the American government. They
recognized the risk to which all human institutions are subject.
But they knew that order cannot be secured merely through fear
of punishment for its infraction; that it is hazardous to discourage
thought, hope and imagination; that fear breeds repression; that
repression breeds hate; that hate menaces stable government;
that the path of safety lies in the opportunity to discuss freely
supposed grievances and proposed remedies; and that the fitting
remedy for evil counsel is good ones. Believing in the power of
reason as applied through public discussion, they eschewed
silence coerced by law—the argument of force in its worst form.
...
Thus we consider this case against the background of a
profound national commitment to the principle that debate on
public issues should be uninhibited, robust, and wide open, and
that it may well include vehement, caustic, and sometimes
unpleasantly sharp attacks on government and public officials. ...
(at pp. 700-701)

Shunting aside the individual liability of Mr. Luis Beltran, is there a prima
facie showing that Messrs. Maximo Soliven, Antonio V. Roces, Frederick K.
Agcaoili, and Godofredo L. Manzanas knowingly participated in a wilful purveying
of falsehood? Considering the free speech aspects of these petitions, should not
a differentiated approach to their particular liabilities be taken instead of lumping
up everybody with the offending columnist? I realize that the law includes
publishers and editors but perhaps the "chilling effect" issue applies with singular
effectivity to publishers and editors vis-a-vis newspaper columnists. There is no
question that, ordinarily, libel is not protected by the free speech clause but we
have to understand that some provocative words, which if taken literally may
appear to shame or disparage a public figure, may really be intended to provoke
debate on public issues when uttered or written by a media personality. Will not a
criminal prosecution in the type of case now before us dampen the vigor and limit
the variety of public debate? There are many other questions arising from this
unusual case which have not been considered.
I, of course, concur with the Court's opinion because it has decided to limit the
issues to narrowly drawn ones. I see no reason to disagree with the way the
Court has resolved them. The first issue on prematurity is moot. The second
issue discusses a procedure now embodied in the recently amended Rules of
Court on how a Judge should proceed before he issues a warrant of arrest.
Anent the third issue, considerations of public policy dictate that an incumbent
President should not be sued. At the same time, the President cannot stand by
helplessly bereft of legal remedies if somebody vilifies or maligns him or her.
The Court has decided to 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
individuals who would not allow any considerations of possible consequences to
their careers to stand in the way of public duty. But why should we subject them
to this problem? And why should we allow the possibility of the trial court treating
and deciding the case as one for ordinary libel without bothering to fully explore
the more important areas of concern, the extremely difficult issues involving
government power and freedom of expression.
However, since we have decided to defer the "chilling effect" issue for a later
day, I limit myself to reiterating the dissenting words of Mr. Justice Jackson in the
American case of Beaurnhais v. Illinois (343 U. S. 250) when he said:
If one can claim to announce the judgment of legal history on
any subject, it is that criminal libel laws are consistent with the
concept of ordered liberty only when applied with safeguards
evolved to prevent their invasion of freedom of expression.
In the trial of the libel case against the petitioners, the safeguards in the name of
freedom of expression should be faithfully applied.
117
EN BANC
G.R. Nos. 162144-54 : November 13, 2012
PEOPLE OF THE PHILIPPINES, Petitioner, v. HON. MA. THERESA L. DELA
TORRE- YADAO, in her capacity as Presiding Judge, Branch 81, Regional
Trial Court of Quezon City, HON. MA. NATIVIDAD M. DIZON, in her capacity
as Executive Judge of the Regional Trial Court of Quezon City, PANFILO M.
LACSON, JEWEL F. CANSON, ROMEO M. ACOP, FRANCISCO G. ZUBIA,
JR., MICHAEL RAY B. AQUINO, CEZAR O. MANCAO II, ZOROBABEL S.
LAURELES, GLENN G. DUMLAO, ALMARIO A. HILARIO, JOSE ERWIN T.
VILLACORTE, GIL C. MENESES, ROLANDO ANDUYAN, JOSELITO T.
ESQUIVEL, RICARDO G. DANDAN, CEASAR TANNAGAN, VICENTE P.
ARNADO, ROBERTO T. LANGCAUON, ANGELITO N. CAISIP, ANTONIO
FRIAS, CICERO S. BACOLOD, WILLY NUAS, JUANITO B. MANAOIS,
VIRGILIO V. PARAGAS, ROLANDO R. JIMENEZ, CECILIO T. MORITO,
REYNALDO C. LAS PINAS, WILFREDO G CUARTERO, ROBERTO O.
AGBALOG, OSMUNDO B. CARINO, NORBERTO LASAGA, LEONARDO
GLORIA, ALEJANDRO G LIWANAG, ELMER FERRER and ROMY
CRUZ, Respondents.
DECISION
ABAD, J.:
This case, which involves the alleged summary execution of suspected members
of the Kuratong Bale/eng Gang, is once again before this Court this time
questioning, among other things, the trial qmrt's determination of the absence of
probable cause and its dismissal of the criminal actions.1ςrνll
The Facts and the Case
In the early morning of May 18, 1995, the combined forces of the Philippine
National Police's Anti-Bank Robbery and Intelligence Task Group (PNP ABRITG)
composed of Task Force Habagat (then headed by Police Chief Superintendent
Panfilo M. Lacson), Traffic Management Command ([TMC] led by then Police
Senior Superintendent Francisco G. Zubia, Jr.), Criminal Investigation Command
(led by then Police Chief Superintendent Romeo M. Acop ), and National Capital
Region Command (headed by then Police Chief Superintendent Jewel F.
Canson) killed 11 suspected members of the Kuratong Baleleng
Gang2ςrνll along Commonwealth Avenue in Quezon City.
Subsequently, SPO2 Eduardo Delos Reyes of the Criminal Investigation
Command told the press that it was a summary execution, not a shoot-out
between the police and those who were slain. After investigation, the Deputy

Ombudsman for Military Affairs absolved all the police officers involved, including
respondents Panfilo M. Lacson, Jewel F. Canson, Romeo M. Acop, Francisco G.
Zubia, Jr., Michael Ray B. Aquino, Cezar O. Mancao II, and 28 others
(collectively, the respondents).3ςrνll On review, however, the Office of the
Ombudsman reversed the finding and filed charges of murder against the police
officers involved before the Sandiganbayan in Criminal Cases 23047 to 57,
except that in the cases of respondents Zubia, Acop, and Lacson, their liabilities
were downgraded to mere accessory. On arraignment, Lacson pleaded not
guilty.
Upon respondents motion, the Sandiganbayan ordered the transfer of their cases
to the Regional Trial Court (RTC) of Quezon City on the ground that none of the
principal accused had the rank of Chief Superintendent or higher. Pending the
resolution of the Office of the Special Prosecutors motion for reconsideration of
the transfer order, Congress passed Republic Act (R.A.) 8249 that expanded the
Sandiganbayans jurisdiction by deleting the word "principal" from the phrase
"principal accused" to apply to all pending cases where trial had not begun. As a
result of this new law, the Sandiganbayan opted to retain and try the Kuratong
Baleleng murder cases.
Respondent Lacson challenged the constitutionality of R.A. 8249 in G.R.
1280964ςrνll but this Court upheld its validity. Nonetheless, the Court ordered
the transfer of the trial of the cases to the RTC of Quezon City since the
amended informations contained no allegations that respondents committed the
offenses charged in relation to, or in the discharge of, their official functions as
required by R.A. 8249.
Before the RTC of Quezon City, Branch 81, then presided over by Judge
Wenceslao Agnir, Jr., could arraign respondents in the re-docketed Criminal
Cases Q-99-81679 to 89, however, SPO2 Delos Reyes and the other
prosecution witnesses recanted their affidavits. Some of the victims heirs also
executed affidavits of desistance. These prompted the respondents to file
separate motions for the determination of probable cause before the issuance of
warrants of arrests.
On March 29, 1999 the RTC of Quezon City ordered the provisional dismissal of
the cases for lack of probable cause to hold the accused for trial following the
recantation of the principal prosecution witnesses and the desistance of the
private complainants.
Two years later or on March 27, 2001 PNP Director Leandro R. Mendoza sought
to revive the cases against respondents by requesting the Department of Justice
(DOJ) to conduct another preliminary investigation in their cases on the strength
of the affidavits of P/Insp. Ysmael S. Yu and P/S Insp. Abelardo Ramos. In
118
response, then DOJ Secretary Hernando B. Perez constituted a panel of
prosecutors to conduct the requested investigation.
Invoking their constitutional right against double jeopardy, Lacson and his co-
accused filed a petition for prohibition with application for temporary restraining
order and writ of preliminary injunction before the RTC of Manila in Civil Case 01-
100933. In an Order dated June 5, 2001, that court denied the plea for temporary
restraining order. Thus, on June 6, 2001 the panel of prosecutors found probable
cause to hold Lacson and his co-accused liable as principals for 11 counts of
murder, resulting in the filing of separate informations against them in Criminal
Cases 01-101102 to 12 before the RTC of Quezon City, Branch 81, now
presided over by respondent Judge Ma. Theresa L. Yadao.
On the same day, respondent Lacson filed a petition for certiorari before the
Court of Appeals (CA), assailing the RTC of Manilas order which allowed the
renewed preliminary investigation of the murder charges against him and his co-
accused. Lacson also filed with the RTC of Quezon City a motion for judicial
determination of probable cause. But on June 13, 2001 he sought the
suspension of the proceedings in that court.
In the meantime, the CA issued a temporary restraining order enjoining the RTC
of Quezon City from issuing warrants of arrest or conducting any proceeding in
Criminal Cases 01-101102 to 12 before it. On August 24, 2001 the CA rendered
a Decision, granting Lacsons petition on the ground of double jeopardy since,
although the dismissal of Criminal Cases Q-99-81679 to 89 was provisional, such
dismissal became permanent two years after when they were not revived.
Upon the prosecutions appeal to this Court in G.R. 149453,5ςrνll the Court ruled
that, based on the record, Lacson failed to prove compliance with the
requirements of Section 8, Rule 117 governing provisional dismissals. The
records showed that the prosecution did not file a motion for provisional dismissal
and, for his part, respondent Lacson had merely filed a motion for judicial
determination of probable cause. Nowhere did he agree to some proposal for a
provisional dismissal of the cases. Furthermore, the heirs of the victims had no
notice of any motion for such provisional dismissal.
The Court thus set aside the CA Decision of August 24, 2001 and directed the
RTC of Quezon City to try the cases with dispatch. On motion for reconsideration
by respondent Lacson, the Court ordered the re-raffle of the criminal cases to a
heinous crimes court. Upon re-raffle, however, the cases still went to Branch 81,
which as already stated was now presided over by Judge Yadao.
On October 12, 2003 the parents of two of the victims submitted birth certificates
showing that they were minors. Apparently reacting to this, the prosecution
amended the informations to show such minority and asked respondent

Executive Judge Ma. Natividad M. Dizon to recall the assignment of the cases to
Branch 81 and re-raffle them to a family court. The request for recall was denied.
On October 20, 2003 the prosecution filed an omnibus motion before Branch 81,
praying for the re-raffle of Criminal Cases 01-101102 to12 to the family courts in
view of the changes in the two informations. On October 24, 2003 the
prosecution also filed its consolidated comment ex-abundanti cautela on the
motions to determine probable cause.
On November 12, 20036ςrνll Judge Yadao issued an order, denying the
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
determination of probable cause and dismissed the cases against the
respondents since the affidavits of the prosecution witnesses were inconsistent
with those they submitted in the preliminary investigations before the
Ombudsman for the crime of robbery.
On November 25, 2003 the prosecution filed a verified motion to recuse or
disqualify Judge Yadao and for reconsideration of her order. It also filed an
administrative complaint against her for dishonesty, conduct prejudicial to the
best interests of the service, manifest partiality, and knowingly rendering an
unjust judgment.7ςrνll On January 14, 2004, the prosecution filed an urgent
supplemental motion for compulsory disqualification with motion for cancellation
of the hearing on motion for reconsideration.
On January 21, 2004 Judge Yadao issued an order, denying the motion to
recuse her, prompting the prosecution to appeal from that order. Further, on
January 22, 2004 Judge Yadao issued another order, denying the prosecutions
motion for reconsideration of the Order dated November 12, 2003 that dismissed
the action against the respondents. In response, the prosecution filed a notice of
appeal from the same. Finally, on January 26, 2004 Judge Yadao issued an
order, denying the prosecutions motion for reconsideration of its January 16,
2004 Order not only for lack of merit but also for having become moot and
academic.
On February 16, 2004 the prosecution withdrew ex-abundanti cautela the notices
of appeal that it filed in the cases. Subsequently, on March 3, 2004 it filed the
present special civil action of certiorari.
The Issues Presented
The prosecution presents the following issues:
119
1. Whether or not Executive Judge Dizon gravely abused her discretion in
allowing Criminal Cases 01-101102 to 12 to be re-raffled to other than among the
RTC of Quezon Citys family courts.
2. Whether or not Judge Yadao gravely abused her discretion when she took
cognizance of Criminal Cases 01-101102 to 12 contrary to the prosecutions view
that such cases fell under the jurisdiction of family courts.
3. Whether or not Judge Yadao gravely abused her discretion when she did not
inhibit and disqualify herself from taking cognizance of the cases.
4. Whether or not Judge Yadao gravely abused her discretion when she
dismissed the criminal actions on the ground of lack of probable cause and
barred the presentation of additional evidence in support of the prosecutions
motion for reconsideration.
5. Whether or not Judge Yadao gravely abused her discretion when she adopted
certain policies concerning the conduct of hearings in her court.
The Courts Rulings
Before addressing the above issues, the Court notes respondents contention that
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
dismissal.
Ordinarily, the proper remedy from an order dismissing an action is an
appeal.8ςrνll Here, the prosecution in fact filed a notice of appeal from such an
order issued in the subject cases. But it reconsidered its action and withdrew that
notice, believing that appeal was not an effective, speedy, and adequate
remedy.9ςrνll In other words, the prosecutions move was not a case of forgotten
remedy but a conscious resort to another based on a belief that respondent
Judge Yadao gravely abused her discretion in issuing her various orders and that
certiorari under Rule 65 was the proper and all-encompassing remedy for the
prosecution. The Court is not prepared to say that the remedy is altogether
implausible as to throw out the petition outright.
Still, the Court notes that the prosecution skipped the CA and filed its action
directly with this Court, ignoring the principle of judicial hierarchy of courts.
Although the Supreme Court, the CA, and the RTCs have concurrent jurisdiction
to issue a writ of certiorari, such concurrence does not give the People the
unrestricted freedom of choice of forum.10ςrνll In any case, the immense public
interest in these cases, the considerable length of time that has passed since the

crime took place, and the numerous times these cases have come before this
Court probably warrant a waiver of such procedural lapse.
1. Raffle of the Cases
The prosecution points out that the RTC of Quezon City Executive Judge gravely
abused her discretion when she placed Criminal Cases 01-101102 to 12 under a
separate category which did not restrict their raffle to the citys special criminal
and family courts in accordance with SC Administrative Order 36-96. Further, the
prosecution points out that she violated Administrative Order 19-98 when
Branches 219 and 102 were left out of the raffle. The presiding judges of these
two branches, both heinous crimes courts eligible to receive cases by raffle, had
just been appointed to the CA.
The records of the cases show nothing irregular in the conduct of the raffle of the
subject cases. The raffle maintained a separate list for criminal and civil cases.
Criminal cases cognizable by special criminal courts were separately listed.
Criminal Cases 01-101102 to 12 were given a separate heading, "Re-Raffle," but
there was nothing irregular in this since it merely indicated that the cases were
not being raffled for the first time.
The Executive Judge did not err in leaving out Branches 219 and 102 from raffle
since these branches remained without regularly appointed judges. Although the
pairing judges of these branches had authority to act on incidental, interlocutory,
and urgent matters, this did not mean that such branches should already be
included in the raffle of cases.
Parenthetically, the prosecution was represented during the raffle yet it did not
then object to the manner by which it was conducted. The prosecution raised the
question only when it filed this petition, a clear afterthought.
2. Jurisdiction of Family Courts
The prosecution points out that, although this Courts October 7, 2003 Resolution
directed a re-raffle of the cases to a heinous crimes court, the prosecution in the
meantime amended the informations to reflect the fact that two of the murder
victims were minors. For this reason, the Executive Judge should have raffled the
cases to a family court pursuant to Section 5 of R.A. 8369.
The Court is not impervious to the provisions of Section 5 of R.A. 8369, that
vests in family courts jurisdiction over violations of R.A. 7610, which in turn
covers murder cases where the victim is a minor.
Thus:chanroblesvirtuallawlibrary
120
Sec. 5. Jurisdiction of Family Courts. The Family Courts shall have exclusive
original jurisdiction to hear and decide the following
cases:chanroblesvirtuallawlibrary
a) Criminal cases where one or more of the accused is below eighteen (18) years
of age but not less than nine (9) years of age, or where one or more of the
victims is a minor at the time of the commission of the offense: Provided, That if
the minor is found guilty, the court shall promulgate sentence and ascertain any
civil liability which the respondent may have incurred. (Emphasis supplied)
Undoubtedly, in vesting in family courts exclusive original jurisdiction over
criminal cases involving minors, the law but seeks to protect their welfare and
best interests. For this reason, when the need for such protection is not
compromised, the Court is able to relax the rule. In several cases,11ςrνll for
instance, the Court has held that the CA enjoys concurrent jurisdiction with the
family courts in hearing petitions for habeas corpus involving minors.
Here, the two minor victims, for whose interests the people wanted the murder
cases moved to a family court, are dead. As respondents aptly point out, there is
no living minor in the murder cases that require the special attention and
protection of a family court. In fact, no minor would appear as party in those
cases during trial since the minor victims are represented by their parents who
had become the real private offended parties.
3. Inhibition of Judge Yadao
The prosecution claims that Judge Yadao committed grave abuse of discretion in
failing to inhibit herself from hearing the cases against the respondents.
The rules governing the disqualification of judges are found, first, in Section 1,
Rule 137 of the Rules of Court, which provides:chanroblesvirtuallawlibrary
Sec. 1. Disqualification of judges. No judge or judicial officer shall sit in any case
in which he, or his wife or child, is pecuniarily interested as heir, legatee, creditor
or otherwise, or in which he is related to either party within the sixth degree of
consanguinity or affinity, or to counsel within the fourth degree, computed
according to the rules of the civil law, or in which he has been executor,
administrator, guardian, trustee or counsel, or in which he has presided in any
inferior court when his ruling or decision is the subject of review, without the
written consent of all parties in interest, signed by them and entered upon the
record.
A judge may, in the exercise of his sound discretion, disqualify himself from
sitting in a case, for just or valid reasons other than those mentioned above.

and in Rule 3.12, Canon 3 of the Code of Judicial Conduct, which
states:chanroblesvirtuallawlibrary
Rule 3.12. A judge should take no part in a proceeding where the judges
impartiality might reasonably be questioned. These cases include among others,
proceedings where:
(a) the judge has personal knowledge of disputed evidentiary facts concerning
the proceeding;
xxx
(e) the judge knows the judges spouse or child has a financial interest, as heir,
legatee, creditor, fiduciary, or otherwise, in the subject matter in controversy or in
a party to the proceeding, or any other interest that could be substantially
affected by the outcome of the proceeding. In every instance, the judge shall
indicate the legal reason for inhibition.
The first paragraph of Section 1, Rule 137 and Rule 3.12, Canon 3 provide for
the compulsory disqualification of a judge while the second paragraph of Section
1, Rule 137 provides for his voluntary inhibition.
The matter of voluntary inhibition is primarily a matter of conscience and sound
discretion on the part of the judge since he is in a better position to determine
whether a given situation would unfairly affect his attitude towards the parties or
their cases. The mere imputation of bias, partiality, and prejudgment is not
enough ground, absent clear and convincing evidence that can overcome the
presumption that the judge will perform his duties according to law without fear or
favor. The Court will not disqualify a judge based on speculations and surmises
or the adverse nature of the judges rulings towards those who seek to inhibit
him.12ςrνll
Here, the prosecution contends that Judge Yadao should have inhibited herself
for improperly submitting to a public interview on the day following her dismissal
of the criminal cases against the respondents. But the Court finds nothing
basically reprehensible in such interview. Judge Yadaos dismissal of the multiple
murder cases aroused natural public interest and stirred the media into frenzy for
correct information. Judge Yadao simply accommodated, not sought, the
requests for such an interview to clarify the basis of her order. There is no
allegation that she gave out false information. To be sure, the prosecution never
once accused her of making public disclosures regarding the merits of those
cases prior to her order dismissing such cases.
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
121
against the respondents. But this statement merely shows that she cannot be
dissuaded by some relative who is close to her. How can this constitute bias?
Besides, there is no evidence that the close relative she referred to was her
spouse or child which would be a mandatory ground for disqualification.
Further, the prosecution claims that Judge Yadao prejudged its motion for
reconsideration when she said in her comment to the administrative complaint
against her that such motion was merely the prosecutions stubborn insistence on
the existence of probable cause against the respondents. The comment could of
course not be regarded as a prejudgment of the issue since she had precisely
already issued an order holding that the complainants evidence failed to
establish probable cause against the respondents. And there is nothing wrong
about characterizing a motion for reconsideration as a "stubborn" position taken
by the party who filed it. Judge Yadao did not characterize the motion as wholly
unjustified at the time she filed her comment.
4. Dismissal of the Criminal Cases
The prosecution claims that Judge Yadao gravely abused her discretion when
she set the motions for determination of probable cause for hearing, deferred the
issuance of warrants of arrest, and allowed the defense to mark its evidence and
argue its case. The prosecution stresses that under Section 6, Rule 112 of the
Rules of Court Judge Yadaos duty was to determine probable cause for the
purpose of issuing the arrest warrants solely on the basis of the investigating
prosecutors resolution as well as the informations and their supporting
documents. And, if she had some doubts as to the existence of probable cause,
the rules required her to order the investigating prosecutor to present additional
evidence to support the finding of probable cause within five days from notice.
Rather than take limited action, said the prosecution, Judge Yadao dug up and
adopted the Ombudsmans findings when the latter conducted its preliminary
investigation of the crime of robbery in 1996. Judge Yadao gave weight to the
affidavits submitted in that earlier preliminary investigation when such documents
are proper for presentation during the trial of the cases. The prosecution added
that the affidavits of P/S Insp. Abelardo Ramos and SPO1 Wilmor B. Medes
reasonably explained the prior inconsistent affidavits they submitted before the
Ombudsman.
The general rule of course is that the judge is not required, when determining
probable cause for the issuance of warrants of arrests, to conduct a de novo
hearing. The judge only needs to personally review the initial determination of the
prosecutor finding a probable cause to see if it is supported by substantial
evidence.13ςrνll

But here, the prosecution conceded that their own witnesses tried to explain in
their new affidavits the inconsistent statements that they earlier submitted to the
Office of the Ombudsman. Consequently, it was not unreasonable for Judge
Yadao, for the purpose of determining probable cause based on those affidavits,
to hold a hearing and examine the inconsistent statements and related
documents that the witnesses themselves brought up and were part of the
records. Besides, she received no new evidence from the respondents.14ςrνll
The public prosecutor submitted the following affidavits and documents along
with the criminal informations to enable Judge Yadao to determine the presence
of probable cause against the respondents:
1. P/Insp. Ysmael S. Yus affidavit of March 24, 200115ςrνll in which he said that
on May 17, 1995 respondent Canson, NCR Command Head, ordered him to
form two teams that would go after suspected Kuratong Baleleng Gang members
who were seen at the Superville Subdivision in Paraque City. Yu headed the
assault team while Marlon Sapla headed the perimeter defense. After the police
team apprehended eight men inside the safe house, it turned them over to their
investigating unit. The following day, Yu just learned that the men and three
others were killed in a shoot-out with the police in Commonwealth Avenue in
Quezon City.
2. P/S Insp. Abelardo Ramos affidavit of March 24, 200116ςrνll in which he said
that he was part of the perimeter defense during the Superville operation. After
the assault team apprehended eight male suspects, it brought them to Camp
Crame in two vans. Ramos then went to the office of respondent Zubia, TMC
Head, where he saw respondents Lacson, Acop, Laureles, Villacorte and other
police officers.
According to Ramos, Zubia said that the eight suspects were to be brought to
Commonwealth Avenue and killed in a supposed shoot-out and that this action
had been cleared with higher authorities, to which remark Lacson nodded as a
sign of approval. Before Ramos left the meeting, Lacson supposedly told him,
"baka may mabuhay pa diyan." Ramos then boarded an L-300 van with his men
and four male suspects. In the early morning of May 18, 1995, they executed the
plan and gunned down the suspects. A few minutes later, P/S Insp. Glenn G.
Dumlao and his men arrived and claimed responsibility for the incident.
3. SPO1 Wilmor B. Medes affidavit of April 24, 200117ςrνll in which he
corroborated Ramos statements. Medes said that he belonged to the same team
that arrested the eight male suspects. He drove the L-300 van in going to
Commonwealth Avenue where the suspects were killed.
4. Mario C. 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
122
Superville Subdivision together with respondents Dumlao, Tannagan, and Nuas.
Dumlao told Enad to stay in the car and observe what went on in the house
under surveillance. Later that night, other police officers arrived and
apprehended the men in the house. Enad went in and saw six men lying on the
floor while the others were handcuffed. Enad and his companions left Sucat in
the early morning of May 18, 1995. He fell asleep along the way but was awaken
by gunshots. He saw Dumlao and other police officers fire their guns at the L-300
van containing the apprehended suspects.
5. SPO2 Noel P. Senos affidavit of May 31, 200119ςrνll in which he corroborated
what Ramos said. Seno claimed that he was part of the advance party in
Superville Subdivision and was also in Commonwealth Avenue when the
suspected members of the Kuratong Baleleng Gang were killed.
6. The PNP ABRITG After Operations Report of May 31, 1995 20ςrνll which
narrated the events that took place on May 17 and 18, 1995. This report was
submitted by Lacson, Zubia, Acop and Canson.
7. The PNP Medico-Legal Reports21ςrνll which stated that the suspected
members of the Kuratong Baleleng Gang tested negative for gunpowder nitrates.
The Court agrees with Judge Yadao that the above affidavits and reports, taken
together with the other documents of record, fail to establish probable cause
against the respondents.
First. Evidently, the case against respondents rests on the testimony of Ramos,
corroborated by those of Medes, Enad, and Seno, who supposedly heard the
commanders of the various units plan the killing of the Kuratong Baleleng Gang
members somewhere in Commonwealth Avenue in Quezon City and actually
execute such plan. Yus testimony is limited to the capture of the gang members
and goes no further. He did not see them killed.
Second. Respecting the testimonies of Ramos, Medes, Enad, and Seno, the
prosecutions own evidencethe PNP ABRITGs After Operations Report of May
31, 1995shows that these men took no part in the operations against the
Kuratong Baleleng Gang members. The report included a comprehensive list of
police personnel from Task Force Habagat (Lacson), Traffic Management
Command (Zubia), Criminal Investigation Command (Acop), and National Capital
Region Command (Canson) who were involved. The names of Ramos, Medes,
Enad, and Seno were not on that list. Notably, only Yus name, among the new
set of witnesses, was on that list. Since an after-battle report usually serves as
basis for commendations and promotions, any omitted name would hardly have
gone unchallenged.

Third. Ramos, whose story appeared to be the most significant evidence against
the respondents, submitted in the course of the preliminary investigation that the
Office of the Ombudsman conducted in a related robbery charge against the
police officers involved a counter-affidavit. He claimed in that counter-affidavit
that he was neither in Superville Subdivision nor Commonwealth Avenue during
the Kuratong Baleleng operations since he was in Bulacan on May 17, 1995 and
at his home on May 18.22ςrνll Notably, Medes claimed in a joint counter-affidavit
that he was on duty at the TMC headquarters at Camp Crame on May 17 and
18.23ςrνll
Fourth. The Office of the Ombudsman, looking at the whole picture and giving
credence to Ramos and Medes statements, dismissed the robbery case. More, it
excluded Ramos from the group of officers that it charged with the murder of the
suspected members of the Kuratong Baleleng Gang. Under the circumstances,
the Court cannot be less skeptical than Judge Yadao was in doubting the sudden
reversal after six years of testimony of these witnesses.
Of course, Yu may have taken part in the subject operation but, as he narrated,
his role was limited to cornering and arresting the suspected Kuratong Baleleng
Gang members at their safe house in Superville Subdivision. After his team
turned the suspects over to an investigating unit, he no longer knew what
happened to them.
Fifth. True, the PNP Medico-Legal Reports showed that the Kuratong Baleleng
Gang members tested negative for gunpowder nitrates. But this finding cannot
have any legal significance for the purpose of the preliminary investigation of the
murder cases against the respondents absent sufficient proof that they probably
took part in gunning those gang members down.
The prosecution points out that, rather than dismiss the criminal action outright,
Judge Yadao should have ordered the panel of prosecutors to present additional
evidence pursuant to Section 6, Rule 112 of the Rules of Court which
provides:chanroblesvirtuallawlibrary
Sec. 6. When warrant of arrest may issue. (a) By the Regional Trial Court. Within
ten (10) days from the filing of the complaint or information, the judge shall
personally evaluate the resolution of the prosecutor and its supporting evidence.
He may immediately dismiss the case if the evidence on record clearly fails to
establish probable cause. If he finds probable cause, he shall issue a warrant of
arrest, or a commitment order if the accused has already been arrested pursuant
to a warrant issued by the judge who conducted the preliminary investigation or
when the complaint or information was filed pursuant to section 7 of this Rule. In
case of doubt on the existence of probable cause, the judge may order the
prosecutor to present additional evidence within five (5) days from notice and the
123
issue must be resolved by the court within thirty (30) days from the filing of the
complaint of information.
Section 6, Rule 112 of the Rules of Court gives the trial court three options upon
the filing of the criminal information: (1) dismiss the case if the evidence on
record clearly failed to establish probable cause; (2) issue a warrant of arrest if it
finds probable cause; and (3) order the prosecutor to present additional evidence
within five days from notice in case of doubt as to the existence of probable
cause.24ςrνll
But the option to order the prosecutor to present additional evidence is not
mandatory. The courts first option under the above is for it to "immediately
dismiss the case if the evidence on record clearly fails to establish probable
cause." That is the situation here: the evidence on record clearly fails to establish
probable cause against the respondents.
It is only "in case of doubt on the existence of probable cause" that the judge
may order the prosecutor to present additional evidence within five days from
notice. But that is not the case here. Discounting the affidavits of Ramos, Medes,
Enad, and Seno, nothing is left in the record that presents some doubtful
probability that respondents committed the crime charged. PNP Director Leandro
Mendoza sought the revival of the cases in 2001, six years after it happened. It
would have been ridiculous to entertain the belief that the police could produce
new witnesses in the five days required of the prosecution by the rules.
In the absence of probable cause to indict respondents for the crime of multiple
murder, they should be insulated from the tribulations, expenses and anxiety of a
public trial.25ςrνll
5. Policies Adopted for Conduct of Court Hearing
The prosecution claims that Judge Yadao arbitrarily recognized only one public
prosecutor and one private prosecutor for all the offended parties but allowed
each of the counsels representing the individual respondents to be heard during
the proceedings before it. She also unjustifiably prohibited the prosecutions use
of tape recorders.
But Section 5, Rule 135 of the Rules of Court gives the trial court ample inherent
and administrative powers to effectively control the conduct of its proceedings.
Thus:chanroblesvirtuallawlibrary
Sec. 5. Inherent powers of court. Every court shall have power:
xxx

(b) To enforce order in proceedings before it, or before a person or persons
empowered to conduct a judicial investigation under its authority;
xxx
(d) To control, in furtherance of justice, the conduct of its ministerial officers, and
of all other persons in any manner connected with a case before it, in every
manner appertaining thereto;
xxx
(g) To amend and control its process and orders so as to make them
conformable to law and justice;
xxx
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
determination of probable cause but permitting counsels representing the
individual accused to do so. A criminal action is prosecuted under the direction
and control of the public prosecutor.26ςrνll The burden of establishing probable
cause against all the accused is upon him, not upon the private prosecutors
whose interests lie solely in their clients damages claim. Besides, the public and
the private prosecutors take a common position on the issue of probable cause.
On the other hand, each of the accused is entitled to adopt defenses that are
personal to him.
As for the prohibition against the prosecutions private recording of the
proceedings, courts usually disallows such recordings because they create an
unnecessary distraction and if allowed, could prompt every lawyer, party,
witness, or reporter having some interest in the proceeding to insist on being
given the same privilege. Since the prosecution makes no claim that the official
recording of the proceedings by the courts stenographer has been insufficient,
the Court finds no grave abuse of discretion in Judge Yadaos policy against such
extraneous recordings.ςηαοblενιrυαllαωlιbrαr
WHEREFORE, the Court DISMISSES this petition and AFFIRMS the following
assailed Orders of the Regional Trial Court of Quezon City, Branch 81 in Criminal
Cases 01-101102 to 12:
1. the Order dated November 12, 2003 which denied the prayer for re-raffle,
granted the motions for determination of probable cause, and dismissed the
criminal cases;
124
2. the Order dated January 16, 2004 which granted the motion of the
respondents for the immediate resolution of the three pending incidents before
the court;
3. the Order dated January 21, 2004 which denied the motion to recuse and the
urgent supplemental motion for compulsory disqualification;
4. the Order dated January 22, 2004 which denied the motion for reconsideration
of the Order dated November 12, 2003; and
5. the Order dated January 26, 2004 which denied the motion for reconsideration
of the January 16, 2004 Order.
SO ORDERED.
G.R. No. 180064 September 16, 2013
JOSE U. PUA and BENJAMIN HANBEN U. PUA, Petitioners,
vs.
CITIBANK, N. A., Respondent.
DECISION
PERLAS-BERNABE, J.:
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
CA-G.R. SP No. 79297, which reversed and set aside the Orders dated May 14,
20034 and July 16, 20035 of the Regional Trial Court of Cauayan City, Isabela,
Branch 19 (RTC), dismissing petitioners Jose(Jose) and Benjamin Hanben U.
Pua's (petitioners) complaint against respondent Citibank, N. A. (respondent).
The Facts
On December 2, 2002, petitioners filed before the RTC a Complaint6 for
declaration of nullity of contract and sums of money with damages against
respondent,7 docketed as Civil Case No. 19-1159.8 In their complaint, petitioners
alleged that they had been depositors of Citibank Binondo Branch (Citibank
Binondo) since 1996. Sometime in 1999, Guada Ang, Citibank Binondo’s Branch
Manager, invited Jose to a dinner party at the Manila Hotel where he was
introduced to several officers and employees of Citibank Hongkong Branch
(Citibank Hongkong).9 A few months after, Chingyee Yau (Yau), Vice-President
of Citibank Hongkong, came to the Philippines to sell securities to Jose. They
averred that Yau required Jose to open an account with Citibank Hongkong as it

is one of the conditions for the sale of the aforementioned securities.10 After
opening such account, Yau offered and sold to petitioners numerous
securities11 issued by various public limited companies established in Jersey,
Channel I sands. The offer, sale, and signing of the subscription agreements of
said securities were all made and perfected at Citibank Binondo in the presence
of its officers and employees.12 Later on, petitioners discovered that the
securities sold to them were not registered with the Securities and Exchange
Commission (SEC)and that the terms and conditions covering the subscription
were not likewise submitted to the SEC for evaluation, approval, and
registration.13 Asserting that respondent’s actions are in violation of Republic Act
No.8799, entitled the "Securities Regulation Code" (SRC), they assailed the
validity of the subscription agreements and the terms and conditions thereof for
being contrary to law and/or public policy.14
For its part, respondent filed a motion to dismiss15 alleging, inter alia, that
petitioners’ complaint should be dismissed outright for violation of the doctrine of
primary jurisdiction. It pointed out that the merits of the case would largely
depend on the issue of whether or not there was a violation of the SRC, in
particular, whether or not there was a sale of unregistered securities. In this
regard, respondent contended that the SRC conferred upon the SEC jurisdiction
to investigate compliance with its provisions and thus, petitioners’ complaint
should be first filed with the SEC and not directly before the RTC.16
Petitioners opposed17 respondent’s motion to dismiss, maintaining that the RTC
has jurisdiction over their complaint. They asserted that Section 63of the SRC
expressly provides that the RTC has exclusive jurisdiction to hear and decide all
suits to recover damages pursuant to Sections 56 to 61 of the same law. 18
The RTC Ruling
In an Order19 dated May 14, 2003, the RTC denied respondent’s motion to
dismiss. It noted that petitioners’ complaint is for declaration of nullity of contract
and sums of money with damages and, as such, it has jurisdiction to hear and
decide upon the case even if it involves the alleged sale of securities. It
ratiocinated that the legal questions or issues arising from petitioners’ causes of
action against respondent are more appropriate for the judiciary than for an
administrative agency to resolve.20
Respondent filed an omnibus motion21 praying, among others, for there
consideration of the aforesaid ruling, which petitioners, in turn, opposed. 22 In an
Order23 dated July 16, 2003, the RTC denied respondent’s omnibus motion with
respect to its prayer for reconsideration. Dissatisfied, respondent filed a petition
for certiorari before the CA.24
The CA Ruling
125
In a Decision25 dated May 21, 2007, the CA reversed and set aside the RTC’s
Orders and dismissed petitioners’ complaint for violation of the doctrine of
primary jurisdiction. The CA agreed with respondent’s contention that since the
case would largely depend on the issue of whether or not the latter violated the
provisions of the SRC, the matter is within the special competence or knowledge
of the SEC. Citing the case of Baviera v. Paglinawan 26(Baviera), the CA opined
that all complaints involving violations of the SRC should be first filed before the
SEC.27
Aggrieved, petitioners moved for reconsideration,28 which was, however, denied
by the CA in a Resolution29dated October 16, 2007.Hence, this petition.
The Issue Before the Court
The essential issue in this case is whether or not petitioners’ action falls within
the primary jurisdiction of the SEC.
Petitioners reiterate their original position that the SRC itself provides that civil
cases for damages arising from violations of the same law fall within the
exclusive jurisdiction of the regional trial courts.30
On the contrary, respondent maintains that since petitioners’ complaint would
necessarily touch on the issue of whether or not the former violated certain
provisions of the SRC, then the said complaint should have been first filed with
the SEC which has the technical competence to resolve such dispute.31
The Court’s Ruling
The petition is meritorious.
At the outset, the Court observes that respondent erroneously relied on the
Baviera ruling to support its position that all complaints involving purported
violations of the SRC should be first referred to the SEC. A careful reading of the
Baviera case would reveal that the same involves a criminal prosecution of a
purported violator of the SRC, and not a civil suit such as the case at bar. The
pertinent portions of the Baviera ruling thus read:
A criminal charge for violation of the Securities Regulation Code is a specialized
dispute. Hence, it must first be referred to an administrative agency of special
competence, i.e., the SEC. Under the doctrine of primary jurisdiction, courts will
not determine a controversy involving a question within the jurisdiction of the
administrative tribunal, where the question demands the exercise of sound
administrative discretion requiring the specialized knowledge and expertise of
said administrative tribunal to determine technical and intricate matters of fact.

The Securities Regulation Code is a special law. Its enforcement is particularly
vested in the SEC.
Hence, all complaints for any violation of the Code and its implementing rules
and regulations should be filed with the SEC. Where the complaint is criminal in
nature, the SEC shall indorse the complaint to the DOJ for preliminary
investigation and prosecution as provided in Section 53.1 earlier quoted.
We thus agree with the Court of Appeals that petitioner committed a fatal
procedural lapse when he filed his criminal complaint directly with the DOJ.
Verily, no grave abuse of discretion can be ascribed to the DOJ in dismissing
petitioner’s complaint.32 (Emphases and underscoring supplied)
Records show that petitioners’ complaint constitutes a civil suit for declaration of
nullity of contract and sums of money with damages, which stemmed from
respondent’s alleged sale of unregistered securities, in violation of the various
provisions of the SRC and not a criminal case such as that involved in Baviera.
In this light, when the Court ruled in Baviera that "all complaints for any violation
of the [SRC] x x x should be filed with the SEC,"33 it should be construed as to
apply only to criminal and not to civil suits such as petitioners’ complaint.
Moreover, it is a fundamental rule in procedural law that jurisdiction is conferred
by law;34 it cannot be inferred but must be explicitly stated therein. Thus, when
Congress confers exclusive jurisdiction to a judicial or quasi-judicial entity over
certain matters by law, this, absent any other indication to the contrary, evinces
its intent to exclude other bodies from exercising the same.
It is apparent that the SRC provisions governing criminal suits are separate and
distinct from those which pertain to civil suits. On the one hand, Section 53 of the
SRC governs criminal suits involving violations of the said law, viz.:
SEC. 53. Investigations, Injunctions and Prosecution of Offenses. –
53.1. The Commission may, in its discretion, make such investigations as it
deems necessary to determine whether any person has violated or is about to
violate any provision of this Code, any rule, regulation or order thereunder, or any
rule of an Exchange, registered securities association, clearing agency, other
self-regulatory organization, and may require or permit any person to file with it a
statement in writing, under oath or otherwise, as the Commission shall
determine, as to all facts and circumstances concerning the matter to be
investigated. The Commission may publish information concerning any such
violations, and to investigate any fact, condition, practice or matter which it may
deem necessary or proper to aid in the enforcement of the provisions of this
Code, in the prescribing of rules and regulations thereunder, or in securing
126
information to serve as a basis for recommending further legislation concerning
the matters to which this Code relates: Provided, however, That any person
requested or subpoenaed to produce documents or testify in any investigation
shall simultaneously be notified in writing of the purpose of such investigation:
Provided, further, That all criminal complaints for violations of this Code, and the
implementing rules and regulations enforced or administered by the Commission
shall be referred to the Department of Justice for preliminary investigation and
prosecution before the proper court:
Provided, furthermore, That in instances where the law allows independent civil
or criminal proceedings of violations arising from the same act, the Commission
shall take appropriate action to implement the same: Provided, finally, That the
investigation, prosecution, and trial of such cases shall be given priority.
On the other hand, Sections 56, 57, 58, 59, 60, 61, 62, and 63 of the SRC pertain
to civil suits involving violations of the same law. Among these, the applicable
provisions to this case are Sections 57.1 and 63.1 of the SRC which provide:
SEC. 57. Civil Liabilities Arising in Connection With Prospectus, Communications
and Reports.
– 57.1. Any person who:
(a) Offers to sell or sells a security in violation of Chapter III;
or
(b) Offers to sell or sells a security, whether or not exempted by the
provisions of this Code, by the use of any means or instruments of
transportation or communication, by means of a prospectus or other
written or oral communication, which includes an untrue statement of a
material fact or omits to state a material fact necessary in order to make
the statements, in the light of the circumstances under which they were
made, not misleading (the purchaser not knowing of such untruth or
omission), and who shall fail in the burden of proof that he did not know,
and in the exercise of reasonable care could not have known, of such
untruth or omission, shall be liable to the person purchasing such
security from him, who may sue to recover the consideration paid for
such security with interest thereon, less the amount of any income
received thereon, upon the tender of such security, or for damages if he
no longer owns the security.
xxxx

SEC. 63. Amount of Damages to be Awarded. – 63.1. All suits to recover
damages pursuant to Sections 56, 57, 58, 59, 60 and 61 shall be brought before
the Regional Trial Court which shall have exclusive jurisdiction to hear and
decide such suits. The Court is hereby authorized to award damages in an
amount not exceeding triple the amount of the transaction plus actual damages.
x x x x (Emphases and underscoring supplied)
Based on the foregoing, it is clear that cases falling under Section 57of the SRC,
which pertain to civil liabilities arising from violations of the requirements for
offers to sell or the sale of securities, as well as other civil suits under Sections
56, 58, 59, 60, and 61 of the SRC shall be exclusively brought before the
regional trial courts. It is a well-settled rule in statutory construction that the term
"shall" is a word of command, and one which has always or which must be given
a compulsory meaning, and it is generally imperative or mandatory.35 Likewise, it
is equally revelatory that no SRC provision of similar import is found in its
sections governing criminal suits; quite the contrary, the SRC states that criminal
cases arising from violations of its provisions should be first referred to the
SEC.1âwphi1
Therefore, based on these considerations, it stands to reason that civil suits
falling under the SRC are under the exclusive original jurisdiction of the regional
trial courts and hence, need not be first filed before the SEC, unlike criminal
cases wherein the latter body exercises primary jurisdiction.
All told, petitioners' filing of a civil suit against respondent for purported violations
of the SRC was properly filed directly before the RTC.
WHEREFORE, the petition is GRANTED. Accordingly, the Court of Appeals'
Decision dated May 21, 2007 and Resolution dated October 16,2007 in CA-G.R.
SP No. 79297 are hereby REVERSED and SET ASIDE. Let Civil Case No. 19-
1159 be REINSTATED and REMANDED to the Regional Trial Court of Cauayan
City, Isabela, Branch 19 for further proceedings.
SO ORDERED.
ESTELA M. PERLAS-BERNABE
Associate Justice
[A.M. No. RTJ-01-1642. March 6, 2002]
127
P/SUPT. SEVERINO CRUZ and FRANCISCO MONEDERO, complainants, vs.
JUDGE PEDRO M. AREOLA and BRANCH CLERK OF COURT
JANICE YULO-ANTERO, respondents.
DECISION
PUNO, J.:
This is an administrative complaint filed by P/Supt. Severino Cruz and
Francisco Monedero against Judge Pedro M. Areola of Regional Trial Court,
Branch 85, Quezon City and his Branch Clerk of Court for Ignorance of the Law
relative to Criminal Case No. Q-99-80446 entitled People of the Philippines vs.
Marilyn A. Carreon for Estafa pending before the sala of the respondent Judge.
The records show that on November 26, 1998, the Evaluation and
Preliminary Investigation Bureau of the Office of the Ombudsman issued a
Resolution[1] recommending the filing of an Information for Estafa as defined and
penalized under Art. 315, par.1(b) of the Revised Penal Code against Marilyn
Carreon, an employee of the Land Transportation Office based on the complaint
filed by herein complainants. Upon the filing of the Information, the case was
docketed as Criminal Case No. Q-99-80446 and was raffled to Branch 85.
On January 19, 1999, accused Marilyn Carreon filed with the trial court an
Urgent Motion for Reinvestigation. In his Order dated January 25, 1999, the
respondent Judge considered the said motion a mere scrap of paper for non-
compliance with Sections 4 and 5, Rule 15 of the 1997 Rules of Civil Procedure.
On the same date, a Warrant of Arrest was issued by the respondent Judge and
released by respondent Branch Clerk of Court.
On February 10, 1999, respondent Judge issued another Order deferring
the implementation of the Warrant of Arrest against the accused pending the
resolution of her Motion for Reinvestigation. On June 16, 1999, respondent
Judge granted Carreons Motion for Reconsideration and directed the Branch
Trial Prosecutor to conduct a reinvestigation of the case.[2]
The Office of the City Prosecutor issued a Resolution finding no cogent
reason to reverse, modify, or alter the resolution of the Office of the Ombudsman
and recommended that the case be set for trial.
On September 20, 1999, Carreon filed an Urgent Ex-Parte Motion to
Suspend Proceedings and to Hold in Abeyance the Issuance of Warrant of Arrest
as she intended to file a Motion for Reconsideration of the Resolution of the
Reinvestigation or a petition for review before the Secretary of Justice. In his
Order dated September 27, 1999, respondent Judge granted Carreon's motion
and suspended further proceedings in the said case.[3]
On the basis of the foregoing Orders issued by the respondent Judge,
complainants filed the instant complaint[4] charging both respondent Judge and
his Branch Clerk of Court with ignorance of the law.

In their Joint Comment,[5] respondent Judge manifests that the issuance of a
warrant of arrest is not a ministerial function of a judge as he is mandated to
determine the existence of probable cause before issuing a warrant. Respondent
Branch Clerk of Court, on the other hand, claims that it is a ministerial duty on
her part to release duly signed orders, resolutions and decisions of the presiding
judge of her branch.
The sole issue in this case is whether or not the orders of respondent Judge
and the release thereof by respondent Branch Clerk of Court constitute
ignorance of the law.
On August 6, 2001, we referred the administrative complaint to Justice
Romeo A. Brawner of the Court of Appeals for investigation, report and
recommendation.[6]
In compliance with the Court's Resolution, Justice Brawner submitted his
Report and Recommendation dated February 5, 2002. In recommending
thedismissal of the complaint against the respondents, Justice Brawner
elucidates, thus:
Complainants take issue of the fact that although respondent Judge already
issued a warrant of arrest, he still deferred its implementation to give way to a
reinvestigation of the case on motion of the accused.
Moreover, complainants argued, the Office of the City Prosecutor already
resolved the issue of the existence of probable cause against the accused three
times but respondent Judge still suspended the proceedings pending the petition
for review filed by the accused.
It must be stressed that the 1987 Constitution requires the judge to determine
probable cause personally, making it the exclusive and personal responsibility of
the issuing judge to satisfy himself of the existence of probable cause. In
satisfying himself of the existence of probable cause for the issuance of a
warrant of arrest, the judge is not required to personally examine the complainant
and his witnesses. Following established doctrine and procedure, he shall: (1)
personally evaluate the report and the supporting documents submitted by the
fiscal regarding the existence of probable cause and, on the basis thereof, issue
a warrant of arrest; or (2) if on the basis thereof he finds no probable cause, he
may disregard the prosecutors report and require the submission of supporting
affidavits of witnesses to aid him in arriving at a conclusion as to the existence of
probable cause (Mayor Abdula vs. Judge Guiani, G.R. No. 118821, February 18,
2000, 326 SCRA 1).
What complainants believe is that there is no longer any reason why the
respondent Judge should withhold the issuance of a warrant of arrest considering
that the Office of the City Prosecutor already made a finding that there exists
probable cause to indict the accused.
128
The determination of probable cause by the prosecutor is for a purpose different
from that which is to be made by the judge. Whether there is reasonable ground
to believe that the accused is guilty of the offense charged and should be held for
trial is what the prosecutor passes upon. The judge, on the other
hand, determines whether a warrant of arrest should be issued against the
accused, i.e., whether there is a necessity for placing him under immediate
custody in order not to frustrate the ends of justice. Thus, even if both should
base their findings on one and the same proceeding or evidence, there should be
no confusion as to their distinct objectives.
Second, since their objectives are different, the judge cannot rely solely on the
report of the prosecutor in finding probable cause to justify the issuance of a
warrant of arrest. Obviously and understandably, the contents of the prosecutor's
report will support his own conclusion that there is reason to charge the accused
for an offense and hold him for trial. However, the judge must decide
independently. Hence, he must have supporting evidence, other than the
prosecutor's bare report, upon which to legally sustain his own findings on the
existence (or nonexistence) of probable cause to issue an arrest order. This
responsibility of determining personally and independently the existence or
nonexistence of probable cause is lodged in him by no less than the most basic
law of the land.
Although the prosecutor enjoys the legal presumption of regularity in the
performance of his official duties, which in turn gives his report the presumption
of accuracy, nothing less than the fundamental law of the land commands the
judge to personally determine probable cause in the issuance of warrants of
arrest. A judge fails in this constitutionally mandated duty if he relies merely on
the certification or report of the investigating officer (Mayor Abdula vs. Judge
Guiani, supra).
As it could not be determined beforehand how cursory or exhaustive a judge's
examination of the records should be, the extent of his examination depends on
the exercise of his sound discretion as the circumstances of the case require.
In the case at bar, the fact that the respondent Judge ordered the re-investigation
of the case does not in any way make him liable for ignorance of the law. In the
exercise of his discretion, he believed that a re-investigation was called for and
thus held in abeyance the implementation of the warrant of arrest. There is no
showing that he abused such discretion as it was part of the performance of his
duty under the Constitution and he could not be faulted for it. Much more could
we find fault with respondent Branch Clerk of Court who acts under the direction
of the presiding Judge and whose only role in this complaint charged against her
was to release the duly signed orders of the respondent Judge.[7]
We agree with the findings and recommendation of the investigating Justice.
 129

The 1987 Constitution provides that no warrant of arrest shall issue except IN VIEW WHEREOF, the administrative complaint against respondents
upon probable cause to be determined personally by the judge after Judge Pedro M. Areola and Branch Clerk of Court Janice Yulo-Antero is
examination under oath or affirmation of the complainant and the witnesses he DISMISSED for lack of merit.
may produce.[8] In numerous instances,[9] this Court had ruled that:
SO ORDERED.
x x x Judges and Prosecutors alike should distinguish the preliminary inquiry Davide, Jr., C.J., (Chairman), Kapunan, and Ynares-Santiago, JJ., concur.
which determines probable cause for the issuance of a warrant of arrest from the
preliminary investigation proper which ascertains whether the offender should be
held for trial or released... The determination of probable cause for the BRIG. GEN. (Ret.) JOSE S. G.R. Nos. 169727-28
warrant of arrest is made by the judge. The preliminary investigation proper-
whether or not there is reasonable ground to believe that the accused is guilty of RAMISCAL, JR.,
the offense charged and, therefore, whether or not he should be subjected to the
expense, rigors and embarrassment of trial-is the function of the Prosecutor. Petitioner, Present:

xxxxxxxxx
We reiterate that preliminary investigation should be distinguished as to PANGANIBAN, C.J.,
whether it is an investigation for the determination of a sufficient ground for the Chairperson,
filing of the information or it is an investigation for the determination of a probable
cause for the issuance of a warrant of arrest. The first kind of preliminary
YNARES-SANTIAGO,
investigation is executive in nature. It is part of the prosecution's job. The second
kind of preliminary investigation which is more properly called preliminary
- versus - AUSTRIA-MARTINEZ,
examination is judicial in nature and is lodged with the judge.[10]
In making the required personal determination, a judge is not precluded CALLEJO, SR., and
from relying on the evidence earlier gathered by responsible officers. The extent
of the reliance depends on the circumstances of each case and is subject to the CHICO-NAZARIO, JJ.
judge's sound discretion.[11]
SANDIGANBAYAN (4th Division) Promulgated:
The arrest of the accused can be ordered only in the event the prosecutor
files the case and the judge of the Regional Trial Court finds probable cause for and PEOPLE OF THE PHILIPPINES,
the issuance of a warrant of arrest. It is not obligatory, but merely discretionary,
upon the investigating judge to issue a warrant for the arrest of the accused, Respondents. August 18, 2006
even after having personally examined the complainant and his witnesses in the
form of searching questions and answers, for the determination of whether a x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x
probable cause exists and whether it is necessary to arrest the accused in
order not to frustrate the ends of justice, is left to his sound judgment or
discretion.[12]
DECISION
It appears from the records that the challenged Orders issued by the
respondent Judge were not at all baseless. The respondent Judge merely
exercised his sound discretion in not immediately issuing the warrant of arrest
and in suspending further proceedings pending reinvestigation of the case. On
her part, respondent Branch Clerk of Court cannot be faulted for performing a CALLEJO, SR., J.:
ministerial function, that is, releasing Orders duly signed by the respondent
Judge.

Before the Court is a Petition for Certiorari under Rule 65 of the Rules of Court
for the nullification of the Resolution[1] of the Sandiganbayan (4th Division) in
Criminal Case Nos. 28022 and 28023, as well as its Resolution denying the
motion for reconsideration thereof.
In 1998, the Senate Committees on Accountability of Public Officers and
Investigation (Blue Ribbon) and on National Defense and Security (collectively,
Senate Blue Ribbon Committee) carried out an extensive joint inquiry into
the coup rumors and the alleged anomalies in the Armed Forces of the
Philippines-Philippine Retirement Benefits Systems
(AFP-RSBS). In its Report dated December 23, 1998, the Senate Blue Ribbon
Committee outlined, among others, the anomalies in the acquisition of lots in
Tanauan, Batangas, Calamba, Laguna and Iloilo City by the AFP-RSBS, and
described the modus operandi of the perpetrators as follows:
The modus operandi in the buying of the lots was to cover the
same transactions with two deeds of sale. One deed of sale
would be signed only by the seller or sellers (unilateral
deed). Another deed of sale would be signed by the seller or
seller and the buyer, AFP-RSBS (bilateral deed).
The devious gimmicking was uncovered by your Committee
which also found out that the buying prices stated in the
unilateral deeds did not match those stated in the bilateral
deeds. To borrow a word from lawyers, the consideration
(i.e., prices) in the unilateral deeds of sale and the bilateral
deeds of sale did not tally even if they covered the same
transaction.
130
Without exception, the deed(s) signed by the seller(s) only
(unilateral deeds) were the one registered with the registrar
(sic) of deeds. These Unilateral Deeds of Sale recorded
lower consideration paid by the System to the buyer(s) than
those stated in the Bilateral Deeds. The motivation was
obviously to evade payment of the correct taxes to the
government and save money for the seller(s), broker(s) and
who knows, probably even for the kickbacks going to
certain officials of RSBS, the buyer.
xxxx
The bilateral deeds were kept in the dark files [of] the System
over the years. They were uncovered only recently as a result of
your Committees investigation. Your Committee submits that
the reason why the bilateral deeds were kept in the vaults of
the System was to justify the huge lot payments made by
the System just in case any soldier-member of RSBS would
be bold or curious enough to inquire about the matter
directly with the System. The curious soldier would then be
shown the bilateral deed to impress upon him/her that
indeed the System has spent huge amounts for the
purchase of the lots in question.
Until the investigation uncovered the anomaly, the matter of the
two sets of documents covering the purchases of the same
parcels of land made by the System were, like the Clinton-
Lewinsky trysts, kept from the prying eyes officials of the
System but so unfair because the public continues to
shoulder, in behalf of the RSBS, the payments for the
pension and retirement benefits of the soldiers. (Emphasis
supplied)

The Initial Report of the Senate Blue Ribbon Committee, which was cited
by the Feliciano Commission in its Report to the President of the Philippines,
included the following discussion:
Essentially, the Blue Ribbon Committee found that the
real estate purchases by RSBS were uniformly documented, by
two (2) sets of instruments: Firstly, a unilateral covering the
same piece of land, executed both by the seller and by RSBS
as buyer. The price stated in the second bilateral instrument
was invariably much higher than the price reflected in the
unilateral deed of sale. The discrepanciesbetween the purchase
price booked by RSBS and the purchase price reflected in the
unilateral deed of sale actually registered in the relevant
Registry of Deeds, totaled about seven hundred three million
pesos (P703 Million). The two sets of purchase price figures
obviously could not both be correct at the same time. Either the
purchase price booked and paid out by RSBS was the true
purchase price of the land involved, in which case RSBS had
obviously assisted or abetted the seller in grossly understating
the capital gains realized by him and in defrauding the National
treasury; or the purchase price in the unilateral deed of sale
was the consideration actually received by the seller from
RSBS, in which case, the buyer-RSBS had grossly overpaid,
with the differential, in the belief of the Senate Blue Ribbon
Committee, going into the pockets of RSBS officials. A third
possibility was that the differential between the purchase price
booked and paid by the buyer-RSBS and the selling price
admitted by the seller of the land, had been shared by the buyer
and seller in some undisclosed ratio.[2]
Pursuant to the recommendation of the Senate Blue Ribbon Committee
to prosecute and/or cause the prosecution of Gen. Jose Ramiscal Jr. (Ret), past
AFP-RSBS President, who had signed the unregistered deeds of sale covering
the acquisition of certain parcels of land, Ombudsman Investigators Ricardo
Sullano, Rodil Buenaventura and Anatolio Alejandrino of the Office of the Deputy
Ombudsman for the Military conducted a fact-finding investigation. They
executed a Joint Affidavit-Complaint,[3] stating that based on their findings, the
following may be charged with falsification of public documents and violation of
131
Section 3(e) and (g) of Republic Act (R.A.) No. 3019: petitioner B/Gen. Jose
Ramiscal, Jr., former AFP-RSBS president; Atty. Meinrado Enrique Bello, Head
of the AFP-RSBS Legal Department in charge of Land Acquisition; Capt.
Perfecto Enrique Quilicot, AFP-RSBS Project Officer, Tanauan, Batangas, Land
Acquisition; and Notaries Public Alfredo Nasser and Manuel Satuito.
The matter was further looked into by a panel of Ombudsman
Investigators, which issued on March 30, 2001 a Joint Resolution [4] finding
probable cause to file the corresponding Informations for 148 counts of violation
of Article 315, in relation to Article 171, paragraph 4 of the Revised Penal Code,
and Section 3 (e) of R.A. No. 3019 against Meinrado Bello and Atty. Manuel
Satuito. However, it was likewise recommended that the complaint against
petitioner be dismissed, without prejudice to a thorough fact-finding investigation
on his liability in light of this Courts ruling in Arias v. Sandiganbayan.[5]
The Ombudsman did not act on this recommendation. Instead, another
panel of prosecutors was directed to review the Joint Resolution and conduct a
thorough investigation of the case. After conducting clarificatory hearings, the
investigating panel issued a Memorandum [6] dated June 15, 2004,
recommending to the Ombudsman that petitioner be charged with 148 counts of
estafa through falsification of public documents, and one count violation of
Section 3(e) of R.A. No. 3019. Petitioners allegation that he merely relied on the
legal staff of the AFP-RSBS when he signed the unregistered bilateral deeds of
sale was considered untenable. The panel declared that the deeds were used
purposely to facilitate the payment of amounts in excess of that paid to the
landowners. Moreover, petitioner, as AFP-RSBS president, could not claim that
he was merely involved in top- level policy implementation.
The Memorandum also stated that the AFP-RSBS had an Investment
Committee tasked to screen project proposals, which was headed by petitioner,
Oscar Martinez and other AFP-RSBS officers; these potential investments were
then elevated for further screening and approval to the Executive Committee, of
 132

which petitioner and Martinez were also members. The panel found that
petitioner knew of the unilateral deeds of sale, considering that they were duly
registered with the Register of Deeds and titles were issued on the basis
thereof. The investigating panel clarified that the ruling of this Court in Arias does
not apply because petitioners
participation consisted of signing and approving documents prepared by his
subordinates relative to the transactions, from the time of conceptualization until
payment by AFP-RSBS.
From the concerted silence and inaction of the
respondents on the glaring irregularities attendant to the
transaction, we can draw the conclusion that these officers of the
AFP-RSBS who passed upon the Disbursement Voucher and
the Status Transaction Forms were aware of the forgeries and
the result thereof. All the respondents were acting under a
common design and purpose to give a semblance of regularity to
the acquisition of the subject one hundred forty eight (148) lots at
a price very much higher than what was actually paid to the
individual lot owners. The element of conspiracy was therefore
present.[7]

The panel further found that the culpability of petitioner,

Quilicot, Bello and Satuito is evidenced by the fact that they signed documents in
manifest bad faith, with full knowledge of the anomalous transactions. The
The panel opined that the AFP-RSBS funds used to purchase the
bilateral deeds of absolute sale were prepared by the Legal Department of AFP-
parcels of land were trust funds and for administration purposes.[8] Moreover,
RSBS where Bello and Satuito were assigned, later enabling them to amass
Presidential Decree (P.D.) No. 361, the charter of the AFP-RSBS, intended to
enormous profits. The investigating panel confirmed the observations of the
create a trust fund for the specific purpose of benefiting the members of the
Senate Blue Ribbon Committee as follows:
armed forces, hence contributions thereto were compulsory. Since soldiers and
military personnel rely on the administration of the AFP-RSBS for their
retirement, pension and separation benefits, petitioner and his co-officers occupy
We have also noted that in all the 148 transactions of lot
positions of trust, with obligations and responsibilities akin to those imposed on
acquisition, the Bilateral Deeds of Sale never bore the
directors and officers of a corporation; and considering that the responsible
marks/annotations of the Bureau of Internal Revenue and the
Register of Deeds of Tanauan, Batangas, as would always officers are not mere directors but trustees, there is all the more reason to apply
appear, if they were used as basis for transfer of title. These the fiduciary relationship principle in this case.
Bilateral Deeds of Sale were attached to the payment vouchers
to justify the payment of the much higher price considerations of
the acquired lots, yet, no one of the respondents and the
The Ombudsman approved the recommendation of the Panel of
concerned AFP-RSBS officials and employees questioned the
Prosecutors without prejudice to the liability of the landowners involved in the
fact that the Bilateral Deeds of Sale never bore the marks and
annotations of the Bureau of Internal Revenue indicative that the transactions.
proper taxes have been paid nor that of the Register of Deeds of
Tanauan, Batangas particularly the assigned Entry Number and
the date of said entry as reflected in its Primary Entry Book.
Petitioner and his co-accused filed their respective Motions for
Reconsideration of the investigating panels June 15,
2004Memorandum. Petitioner alleged the following:

1. RESPONDENT RAMISCALS PARTICIPATION IN THE
SUBJECT SALE TRANSACTIONS, WHICH WERE DULY
APPROVED BY THE RSBS BOARD, WAS PURELY
MINISTERIAL AS PART OF HIS LIMITED FUNCTIONS AS
PRESIDENT OF RSBS.
2. THE CONSPIRACY THEORY LINKING RESPONDENT
RAMISCAL TO THE CHARGES IS DEVOID OF FACTUAL
AND/OR LEGAL BASIS. IN FACT, THE MEMORANDUM
FAILED TO SHOW, AS THERE IS NONE (SIC) ANY
OVERT ACT OF CONSPIRACY COMMITTED BY
RESPONDENT RAMISCAL.
3. IN ANY EVENT, THE CHARGES OF FALSIFICATION
BASED ON THE BILATERAL DEEDS HAVE NO LEGAL
LEG TO STAND ON AS AGAINST RESPONDENT
RAMISCAL.
4. MORE THAN THAT, THE CHARGES OF ESTAFA
AND VIOLATION OF SECTION 3(E) R.A. 3019 HAVE NO
FACTUAL AND/OR LEGAL BASES INASMUCH AS THE
AMOUNTS PAID BY AFP-RSBS TO THE VENDORS ARE
THOSE THAT WERE INDICATED IN THE BILATERAL
DEEDS OF SALE, HENCE, NO UNWARRANTED
BENEFITS WERE AFFORDED THE SELLERS NOR DID
THE [AFP-RSBS] AND THE GOVERNMENT SUFFER
UNDUE INJURY INCIDENT THERETO.[9]
133
On September 27, 2004, the Panel of Prosecutors issued a
Memorandum[10] to the Ombudsman recommending that the motion be denied,
which the latter duly approved.
Thereafter, the panel of Prosecutors and the Special Prosecutors had a
series of meetings with the Ombudsman, where it was agreed upon that only five
Informations for estafa through falsification of public documents and five
Informations for violation of Section 3(e) of R.A. No. 3019 would be initially filed
with the Sandiganbayan instead of the 148 counts previously recommended by
the Ombudsman. This was due to the lack of prosecutors who would handle the
voluminous cases.[11]
Of the Informations filed, two were raffled to the Fourth Division of the
Sandiganbayan, one of which was docketed as Criminal Case No. 28022 for
violation of Section 3(e) of R.A. No. 3019. The accusatory portion reads:
That on April 23, 1997 and sometime prior or
subsequent thereto, in the Province of Batangas and Quezon
City, Philippines, and within the jurisdiction of this Honorable
Court, the abovenamed accused public officers,
namely: Brigadier General Jose Servando Ramiscal, Jr., a
high-ranking public official, being then the President of the
Armed Forces of the Philippines-Retirement, Separation and
Benefit System (AFP-RSBS); Atty. Meinrado Enrique A. Bello,
Head of Legal Division; Atty. Manuel Se Satuito, Chief of
Documentation, Legal Division; Captain Perfecto O. Quilicot,
Jr., Project Officer, and certain John and John Does, also of the
AFP-RSBS, a government entity, being a government owned or
controlled corporation, while in the performance of their official
functions and committing the offense in relation to their office,
acting with evident bad faith, conspiring, confederating and
mutually helping one another, with private individuals John
Does and Jane Does, did then and there willfully, unlawfully and
criminally cause undue injury to AFP-RSBS and its members by

purchasing a parcel of land covering an area of seven thousand
five hundred eighty-two square meters (7,582 sq. m.), more or
less, situated at Tanauan, Batangas, registered in the name of
Marianito V. Plaza, Glicerio V. Plaza and Petra Maunahan and
covered by OCT-11835 and TCT 65973 of the Registry of Deeds
of Tanauan, Batangas, under a bilateral Deed of Absoute Sale
dated April 23, 1997, making it appear therein that the afore-
described real property was sold by the said owners and
purchased by the AFP-RSBS, represented by accused BGen.
Jose Servando Ramiscal, Jr., for the amount of ONE MILLION
FIVE HUNDRED THIRTY-ONE THOUSAND FIVE HUNDRED
SIXTY-FOUR PESOS (P1,531,564.00), Philippine Currency,
paid under AFP-RSBS General Voucher No. 61789 dated May
28, 1997 with corresponding Philippine National Bank Check No.
72789 dated June 3, 1997, when in truth and in fact, accused
knew fully well that the true and real consideration thereof is only
TWO HUNDRED TWENTY-SEVEN THOUSAND FOUR
HUNDRED SIXTY PESOS (P227,460.00), Philippine Currency,
as correctly indicated in a unilateral Deed of Absolute Sale dated
April 14, 1997 executed by the said owners, thereby resulting to
an overprice of ONE MILLION THREE HUNDRED FOUR
THOUSAND ONE HUNDRED FOUR PESOS (P1,304,104.00) to
the damage and prejudice of AFP-RSBS and its members.
CONTRARY TO LAW.[12]
The other, for estafa thru falsification of public documents, was docketed
as Criminal Case No. 28023. The accusatory portion reads:
That on April 23, 1997 and sometime prior or
subsequent thereto, in the Province of Batangas and Quezon
City, Philippines, and within the jurisdiction of this Honorable
Court, the abovenamed accused public officers,
namely: Brigadier General Jose Servando Ramiscal, Jr., a
high ranking public official, being then the President of the
Armed Forces of the Philippines-Retirement Separation and
134
Benefit System (AFP-RSBS); Atty. Meinrado Enrique A. Bello,
Head of Legal Division; Atty. Manuel Se Satuito, Chief of
Documentation, Legal Division; Captain Perfecto O. Quilicot,
Jr., Project Officer, and certain John and Jane Does, also of the
AFP-RSBS, a government entity, being a government owned or
controlled corporation, while in the performance of their official
functions and committing the offense in relation to their office,
acting with unfaithfulness and abuse of confidence, conspiring,
confederating and mutually helping one another, with private
individuals John Does and Jane Does, and with intent to
defraud the AFP-RSBS and its members, did then and there
willfully, unlawfully and feloniously falsify or cause to be falsified
a bilateral Deed of Absolute Sale dated April 23, 1997 covering
seven thousand five hundred eighty-two square meters (7,582
sq. m.), more or less, of real property situated at Tanauan,
Batangas, registered in the name of Marianito V. Plaza, Glicerio
V. Plaza and Petra Maunahan and covered by OCT-11835 and
TCT 65973 of the Registry of Deeds of Tanauan, Batangas, by
making it appear therein that the aforedescribed real property
was sold by the said owners and purchased by the AFP-RSBS,
represented by accused BGen. Jose Servando Ramiscal, Jr.,
for the overpriced amount of ONE MILLION FIVE HUNDRED
THIRTY-ONE THOUSAND FIVE HUNDRED SIXTY-FOUR
PESOS (P1,531,564.00), Philippine Currency, from its funds
held by the accused AFP-RSBS officials in trust and for
administration, when in truth and in fact, accused knew fully well
that the true and real consideration thereof is only TWO
HUNDRED TWENTY-SEVEN THOUSAND FOUR HUNDRED
SIXTY PESOS (P227,460.00), Philippine Currency, as correctly
indicated in a unilateral Deed of Absolute Sale dated April 14,
1997 executed by the said owners, and thereafter, to facilitate
the payment of the said overpriced amount by the AFP-RSBS,
the accused used the said falsified bilateral Deed of Absolute
Sale as supporting document, among others, to the AFP-RSBS
General Voucher No. 61789 dated May 28, 1997, and relying on
said fraudulent acts, AFP-RSBS released the amount of ONE
MILLION FIVE HUNDRED THIRTY-ONE THOUSAND FIVE
HUNDRED SIXTY-FOUR PESOS (P1,531,564.00) by way of
Philippine National Bank Check No. 72789 dated June 3, 1997,
which amount included the overprice of ONE MILLION THREE
 135

HUNDRED FOUR THOUSAND ONE HUNDRED FOUR PESOS

(P1,304,104.00) and which the accused subsequently
misappropriated and converted to their personal use and benefit,
to the damage and prejudice of the AFP-RSBS and its members.
CONTRARY TO LAW.[13]
Petitioner filed a motion for reconsideration of the resolution and sought
to have the cases dismissed for lack of probable cause.[23] He alleged that, in
finding probable cause, the Sandiganbayan merely relied on the findings of the
Ombudsman and did not take into account the other affidavits on record. The
Sandiganbayan again denied the motion on February 22, 2005.[24]

Undaunted, petitioner filed a Motion to Quash[25] in Criminal Cases Nos.

28022 and 28023 on the following grounds:
Raffled to the First Division of the anti-graft court were two other cases
docketed as Criminal Case No. 28026[14] for violation of Section 3(e) of
R.A. 3019, and Criminal Case No. 28027[15] for estafa through falsification of
I. This Court has no jurisdiction over the offenses
public documents. Criminal Case No. 28028[16] for violation of Section 3(e), R.A.
charged in both Informations;
No. 3019 and Criminal Case No. 28029[17] for estafa through falsification of public
documents were raffled to the Second Division, while Criminal Case No.
28021[18] for estafa through falsification of public documents was raffled to the
II. In Criminal Case No. 28023 (estafa through falsification), the
Third Division. Criminal Case No. 28024[19] for violation of Section 3(e) of R.A.
facts charged being an essential part of the continuing
No. 3019 and Criminal Case No. 28025[20] for estafa through falsification of public
crime of Estafa separately charged in Criminal Cases
documents were raffled to the Fifth Division. Nos. 28021, 28025, 28027 and 28029, pending in the
3rd, 1st, 5th and 2nd divisions, respectively, only one
Information must be filed for all these cases including
those covered by the OSP memorandum dated June 15,
Petitioner filed in the Fourth Division of the anti-graft court (in Criminal
2004; and,
Case Nos. 28022 and 28023) an Urgent Motion for Hearing to Determine
Probable Cause and Consolidate All Cases in One Information with Prayer to
Defer Issuance of An Arrest Warrant Pending Resolution Hereof. [21] The
III. In Criminal Case No. 20822 (violation of RA No. 3019), the
Sandiganbayan denied the motion on January 17, 2005, holding that the judicial
said case is abated by Criminal Case No. 20823 (Estafa
determination of probable cause is not an adversarial proceeding but summary in through falsification) because the very facts alleged in
nature. While it ordered the issuance of warrants of arrest against the accused, it the former are also the very facts alleged in the latter.[26]
resolved to hold in abeyance the resolution on the matter of consolidation of all
the cases until after it had acquired jurisdiction over their persons.[22] After
petitioner posted bail for his provisional release, the Sandiganbayan denied the
motion for the consolidation of the cases, considering that the other cases filed
were pending in its other divisions. On June 2, 2005, the Sandiganbayan resolved to deny the motion,
holding that contrary to petitioners claim, it had jurisdiction over the crimes

charged.[27] Petitioner filed a motion for reconsideration which was also denied
on August 17, 2005.[28] Petitioner then posted bail for his provisional liberty.
When arraigned on September 1, 2005, petitioner refused to enter a
plea, prompting the anti-graft court to enter a plea of not guilty in both cases.[29]
On October 7, 2005, petitioner filed the instant petition
for certiorari under Rule 65, praying that the said Resolution be nullified on the
following grounds:
I. THE RESPONDENT COURT COMMITTED GRAVE
ABUSE OF DISCRETION AMOUNTING TO LACK AND/OR
EXCESS OF JURISDICTION IN SUSTAINING THE
OMBUDSMANS FINDING OF PROBABLE CAUSE FOR THE
COMMISSION OF ONE HUNDRED FORTY EIGHT (148)
COUNTS OF ESTAFA THRU FALSIFICATION OF PUBLIC
DOCUMENT AND ANOTHER ONE HUNDRED FORTY EIGHT
(148) COUNTS OF VIOLATION OF REPUBLIC ACT NO. 3019
AND IN NOT DISMISSING THE INFORMATIONS.
II. THE RESPONDENT COURT COMMITTED GRAVE
ABUSE OF DISCRETION AMOUNTING TO LACK AND/OR
EXCESS OF JURISDICTION IN NOT QUASHING THE
INFORMATIONS AND IN NOT DISMISSING THE CASES
NOTWITHSTANDING THAT IT HAD NO JURISDICTION OVER
THE OFFENSE CHARGED IN THE INFORMATION.
III. THE RESPONDENT COURT COMMITTED GRAVE
ABUSE OF DISCRETION AMOUNTING TO LACK AND/OR
EXCESS OF JURISDICTION IN NOT QUASHING THE
INFORMATION IN CRIMINAL CASE NO. 28023 (ESTAFA
THROUGH FALSIFICATION), NOTWITHSTANDING THAT THE
136
FACTS CHARGED THEREIN WERE AN ESSENTIAL PART OF
ONE CONTINUING CRIME OF ESTAFA SEPARATELY
CHARGED IN CRIMINAL CASES NOS. 28021, 28025, 28027
AND 28029, PENDING IN THE THIRD, FIRST, FIFTH AND
SECOND DIVISIONS OF THE SANDIGANBAYAN,
RESPECTIVELY, CONSIDERING THAT BASED ON THE
DOCUMENTS ADDUCED BY THE PEOPLE AND FOR
OBVIOUS WANT OF RELIABLE EVIDENCE, ONLY ONE
INFORMATION FOR ESTAFA SHOULD HAVE BEEN FILED
FOR ALL THESE CASES INCLUDING THE REMAINING ONE
HUNDRED FORTY THREE (143) COUNTS COVERED BY THE
OSP MEMORANDUM DATED JUNE 15, 2004, ANNEX T;
IV. THE RESPONDENT COURT COMMITTED GRAVE
ABUSE OF DISCRETION AMOUNTING TO LACK AND/OR
EXCESS OF JURISDICTION IN NOT QUASHING THE
INFORMATION IN CRIMINAL CASE NO. 20822 (VIOLATION
OF RA NO. 3019) NOTWITHSTANDING THAT THE SAID
CASE WAS ABATED BY CRIMINAL CASE NO. 20823
(ESTAFA THROUGH FALSIFICATION) BECAUSE THE VERY
FACTS ALLEGED IN THE FORMER WERE ALSO THE VERY
FACTS ALLEGED IN THE LATTER, THUS VIOLATING THE
RULE ON DOUBLE JEOPARDY.[30]
Petitioner insists that, in finding probable cause against him for estafa
through falsification of public document and violation of Section 3(e) of R.A.
3019, the Sandiganbayan committed grave abuse of discretion amounting to lack
of jurisdiction, as it relied solely on the Memorandum of the investigation panel of
Ombudsman Prosecutors. He posits that it behooved the anti-graft court to
review the Ombudsmans findings and scrutinize the evidence, the affidavits on
record, including the transcript of stenographic notes. As gleaned from the Joint
Resolution dated March 30, 2001, the initial finding of the Ombudsman
Prosecutors was that there was no probable cause to charge him for the acts

complained of, in the light of the Courts ruling in the Arias case. He asserts that
there was no evidence of bad faith on his part relative to the deeds of sale
subject of the Informations filed against him. He insists that based on the Joint
Resolution, and even the report of the Senate Blue Ribbon Committee, he had
no part whatsoever in the commission of the crimes charged. The disparity of the
prices of the properties in the bilateral deeds of sale, vis--vis the unilateral deeds
of sale, do not support the finding of probable cause against him made by the
investigating panel of Ombudsman Prosecutors. Petitioner asserts that there is
no evidence on record that he conspired with the other accused in the
commission of the crimes charged.
Petitioner further posits that the Sandiganbayan likewise committed
grave abuse of its discretion when it found probable cause for the issuance of a
warrant of arrest against him instead of setting the case for hearing. He insists
that the anti-graft court failed to consider the other evidence on record and erred
in relying solely on the evaluation and resolution of the investigating panel of
Prosecutors; the fact that he posted bail bonds for his provisional liberty does not
estop him from raising the issue in his Motion to Quash.
Petitioner avers that the Sandiganbayan has no jurisdiction over the
crimes charged as provided in Section 4 of R.A. 8249. He insists that the AFP-
RSBS is not a government-owned or controlled corporation and that he does not
fall under Salary Grade 27 as required in Section 4 of the law, inasmuch as his
position as AFP-RSBS President is not even included under the Compensation
and Classification Act of 1989. Petitioner cites the ruling of this Court in Inding v.
Sandiganbayan[31] to support his claim.
Petitioner asserts that the charges filed against him constitute only one
crime of estafa through falsification of public document, in the nature of delito
continuado, or a series of repetition of the same acts arising from one and the
same criminal intent.He maintains that while there are 148 bilateral deeds of sale
signed by him and 145 unilateral deeds of sale signed by the sellers, it cannot
thereby be concluded that he is criminally liable for each deed executed. The
137
number of transactions purportedly entered into is not a gauge in ascertaining
criminal intent for the several transactions. The best test should be the presence
of clear, convincing and positive evidence showing distinct criminal intent for
each sales transaction, which in any event, is wanting in this case. Petitioner
further alleges that for multiple transactions to be considered as separate and
distinct crimes, there must be a series of acts with individual sellers such as (a)
negotiations; (b) discussion of the terms of the sale; (c) finalizing the terms
thereof; and (d) instruction to prepare payment and (e) actual payment. He points
out that there is no
evidence that he and the other accused involved ever met with any of the
sellers. While he admits the possibility that he could have signed the bilateral
deeds of sale in one sitting, he insists that these documents were
notarized separately; there is even no evidence on record that the sellers of the
property transacted separately with him. He points out that the corporate officers
of AFP-RSBS, especially its President, do not personally deal with any of the
sellers. The bare fact that he executed the bilateral deeds of sale and that the
project was approved by the higher level of the management, cannot lead to the
conclusion that he took part in the implementation of the transactions.
Petitioner maintains that the Sandiganbayan committed grave abuse of
discretion amounting to lack of or excess of jurisdiction in filing the charges
against him. He insists that the delictual acts contained in the two Informations,
Criminal Case No. 28022 (for violation of R.A. 3019) and Criminal Case No.
28023 (for estafa through falsification of public document), are one and the
same; to charge him under Section 3(e) of R.A. 3019 despite his indictment for
estafa is to duplicate the very same charge under another name, which under the
principle of double jeopardy, is proscribed. He further argues that while it is true
that, in Section 3(e) of R.A. 3019, the charge against him for said crime is in
addition to his criminal liability under the Revised Penal Code, the phrase
connotes cumulativeness and simultaneity of liability.

Petitioner points out that the panel of Ombudsman Prosecutors
recommended the filing of only one count of violation of Section 3(e) of R.A. No.
3019, but the Ombudsman filed five (5) counts thereof.
The issues are the following: (1) whether the Ombudsman
committed grave abuse of discretion amounting to excess or lack of jurisdiction in
finding probable cause against petitioner for estafa through falsification of public
document and for violation of Section 3(e) of R.A. No. 3019; (2) whether the
Sandiganbayan committed grave abuse of discretion amounting to excess of
jurisdiction in finding probable cause against petitioner for the issuance of
warrants for petitioners arrest without first conducting a hearing; (3) whether
petitioner may be charged and prosecuted for five (5) counts of estafa thru
falsification of public documents; and (4) whether petitioner may be prosecuted
for both estafa through falsification of a public document and violation of Section
3(e) of R.A. No. 3019 without violating his right against double jeopardy.
The petition has no merit.
On the first issue, the rule is that as far as crimes cognizable by the
Sandiganbayan are concerned, the determination of probable cause during the
preliminary investigation, or reinvestigation for that matter, is a function that
belongs to the Office of the Ombudsman. The Ombudsman is empowered to
determine, in the exercise of his discretion, whether probable cause exists, and
to charge the person believed to have committed the crime as defined by
law. Whether or not the Ombudsman has correctly discharged his function,
i.e., whether or not he has made a correct assessment of the evidence of
probable cause in a case, is a matter that the trial court may not be compelled to
pass upon.
As a rule, courts should not interfere with the Ombudsmans investigatory
power, exercised through the Ombudsman Prosecutors, and the authority to
138
determine the presence or absence of probable cause,[32] except when the
finding is tainted with grave abuse of discretion amounting to lack or excess of
jurisdiction. In such case, the aggrieved party may file a petition
forcertiorari under Rule 65 of the Rules of Court.[33] Indeed, if the Ombudsman
does not take essential facts into consideration in the determination of probable
cause, there is abuse of discretion.[34] As we ruled in Mendoza-Arce v. Office of
the Ombudsman (Visayas),[35] a writ of certiorari may issue in any of the following
instances:
1. When necessary to afford adequate protection to the
constitutional rights of the accused;
2. When necessary for the orderly administration of
justice or to avoid oppression or multiplicity of actions;
3. When there is a prejudicial question which is sub
judice;
4. When the acts of the officer are without or in excess of
authority;
5. Where the prosecution is under an invalid law,
ordinance or regulation;
6. When double jeopardy is clearly apparent;
7. Where the court has no jurisdiction over the offense;

8. Where it is a case of persecution rather than
prosecution;
9. Where the charges are manifestly false and motivated
by the lust for vengeance;
10. When there is clearly no prima facie case against the
accused and a motion to quash on that ground has been
denied.[36]
In this case, however, petitioner failed to establish that the Ombudsman
committed grave abuse of discretion amounting to excess or lack of jurisdiction in
finding probable cause to charge him with violation of Section 3(e) of R.A. No.
3019 and for estafa through falsification of a public document.
We are not convinced by petitioners claim that there is no probable
cause on record for the filing of the Information against him. It bears stressing
that probable cause need not be based on clear and convincing evidence of guilt,
neither on evidence establishing guilt beyond reasonable doubt and definitely not
on evidence establishing absolute certainty of guilt. It implies probability of guilt
and requires more than bare suspicion but less than evidence which would justify
conviction.[37] The Ombudsmans finding of probable cause against petitioner is
buttressed by his encompassing and comprehensive resolution, independent of
the findings of the Senate Committees, as well as the documents appended to
the Informations. Petitioners bare claim to the contrary cannot prevail over such
positive findings of the Ombudsman. In fine, the Ombudsmans finding of
probable cause prevails over petitioners bare allegations of grave abuse of
discretion; that he was not involved in the step-by-step consummation of the
139
anomalous transaction; and that as President he was involved only in the top
level policy formulation and implementation.
It is true that in the Joint Resolution dated March 30, 2001, the Panel of
Ombudsman Prosecutors found no sufficient evidence that petitioner acted in
bad faith and that he merely relied on the recommendations of his subordinates.
However, after a thorough investigation, another panel of Ombudsman
Prosecutors found that, indeed, petitioner not merely relied on the
recommendations of his subordinates but likewise perpetrated overt acts, which,
along with those of the other accused, resulted in the consummation of the
crimes charged. Thus, as maintained by the respondents in their Comment on
the petition, petitioner signed documents, indicating his evident bad faith on the
highly anomalous transactions; petitioner was aware of the forgeries and
anomalies in the buying of the parcels of land, yet gave his conformity thereto,
causing grave injury to its members and to the public in general. Thus, it was
also found that petitioner, together with his cohorts, conspired to perpetuate clear
fraud on the government and the AFP-RSBS members by giving a semblance of
regularity to real estate acquisitions at bloated prices.
The fact alone that petitioner was aware, in each transaction, that the
two (2) deeds of sale contain contradictory costs for every acquisition, and that
he failed to rectify the same eloquently speak of his participation in the criminal
malevolence. He was a member of the Investment Committee of the AFP-RSBS,
which screened potential investments, that were thereafter subjected to further
screening and approval by the Executive Committee of which he was also a
member; hence, petitioner had full knowledge of the transactions, from the time
they were conceptualized until the properties were paid for. The records show
that the Tanauan, Batangas properties alone were overpriced by about 600%.
Thus, petitioner consented to the crimes charged by the following overt acts:
(1) Petitioner and his co-accused prepared or caused to be prepared two
(2) deeds of sale covering the same transactions: a deed of sale with the seller or
sellers as the sole signatory or signatories therein (unilateral deeds); and a deed

of sale with the seller or sellers and the buyer, AFP-RSBS, represented by
petitioner (bilateral deeds);
(2) The considerations in the unilateral deeds of sale and the bilateral
deeds of sale did not tally, notwithstanding the fact that they covered the same
subject matter and transaction, with the bilateral deeds of sale bearing a bloated
price; and,
(3) Of these two deeds, the unilateral deeds of sale bore the correct
value given to the seller(s) as evinced, among others, by the fact that the same
were the ones registered with the Registry of Deeds.
The bilateral deeds of sale could not possibly be the basis of the transfer
of the properties because the supporting bilateral deeds carried dates much later
than the date of issue of the titles, which were likewise not filed with the Bureau
of Internal Revenue (BIR) and the Registry of Deeds of Tanauan, Batangas. The
Court cannot supplant the findings of the Ombudsman that the unilateral deeds
of sale were prepared by the Legal Department of AFP-RSBS, in as much as
both the unilateral and bilateral deeds of sale have exactly the same print and
form. The residence certificate number of petitioner which is indicated in the
bilateral deeds of sale is likewise printed in the unilateral deeds. Petitioners
fraudulent intent is further proven by the fact that the Status of Transaction Form
(STF), where the subject lots were endorsed for payment, bore his signature.
The unilateral deeds of sale resulted in the issuance of the titles, which were also
the supporting documents enumerated in the STF. In many instances, the
bilateral deeds of sale carry dates much later than the dates their corresponding
titles were issued.
Petitioner was likewise unable to establish his claim that the
Sandiganbayan committed grave abuse of discretion in finding probable cause
for the issuance of a warrant for his arrest. His bare claim that the
Sandiganbayan merely relied on the Memoranda of the Panel of Prosecutors to
the Ombudsman and did not scrutinize the evidence appended thereto is not
supported by the records. In the first place, the Sandiganbayan is presumed to
140
have performed its duty as provided in the Revised Rules of Criminal Procedure,
which can likewise be gleaned from its February 22, 2005 Resolution:
[1] While accused Ramiscal is correct in stating that this
Court, in determining the existence of probable cause for the
issuance of the warrant of arrest against the accused, had
evaluated the resolution of the Office of the Ombudsman and its
supporting documents, he is, however, wrong in presuming that
such process failed to consider the evidence the accused
adduced during preliminary investigation. It should be noted that
the supporting documents submitted by the Office of the
Ombudsman to this Court included, among others, thecounter-
affidavits submitted by the accused at the preliminary
investigation. Parenthetically, there is no need, and the rules do
not require this Court, to enumerate in detail what were the
supporting documents it considered in determining the existence
of probable cause for the issuance of the warrant of arrest
because the same are matters of record that the parties can
easily verify.[38]
We agree with the Sandiganbayans ruling that the Revised Rules of
Criminal Procedure do not require cases to be set for hearing to determine
probable cause for the issuance of a warrant for the arrest of the accused before
any warrant may be issued. Section 6, Rule 112 mandates the judge to
personally evaluate the resolution of the Prosecutor (in this case, the
Ombudsman) and its supporting evidence, and if he/she finds probable cause, a
warrant of arrest or commitment order may be issued within 10 days from the
filing of the complaint or Information; in case the Judge doubts the existence of
probable cause, the prosecutor may be ordered to present additional evidence
within five (5) days from notice. The provision reads in full:
SEC. 6. When warrant of arrest may issue. (a) By the
Regional Trial Court. Within ten (10) days from the filing of the
complaint or information, the judge shall personally evaluate the

resolution of the prosecutor and its supporting evidence. He may
immediately dismiss the case if the evidence on record clearly
fails to establish probable cause. If he finds probable cause, he
shall issue a warrant of arrest, or a commitment order if the
accused has already been arrested pursuant to a warrant issued
by the judge who conducted the preliminaryinvestigation
or when the complaint or information was filed pursuant to
section 7 of this Rule. In case of doubt on the existence of
probable cause, the judge may order the prosecutor to present
additional evidence within five (5) days from notice and the issue
must be resolved by the court within thirty (30) days from the
filing of the complaint of information.[39]
The periods provided in the Revised Rules of Criminal Procedure are
mandatory, and as such, the judge must determine the presence or absence of
probable cause within such periods. The Sandiganbayans determination of
probable cause is made ex parteand is summary in nature, not adversarial. The
Judge should not be stymied and distracted from his determination of probable
cause by needless motions for determination of probable cause filed by the
accused.
We hold that petitioner likewise failed to establish his claim that the
Sandiganbayan committed a grave abuse of authority in denying his motion to
quash the Information.
First. The anti-graft court correctly ruled that it has jurisdiction over the
crimes charged.
In People v. Sandiganbayan[40] and Ramiscal, Jr.
Sandiganbayan,[41] this Court ruled that the AFP-RSBS is a government-owned
141
and controlled corporation, and that its funds are in the nature of public funds.
Under Section 4(a)(1)(g) of R.A. No. 8249, the Sandiganbayan has exclusive
jurisdiction over offenses committed by presidents, directors, trustees or
managers of government owned or controlled corporations.[42] Under Section 4(b)
of R.A. No. 8249, the Sandiganbayan has exclusive jurisdiction over offenses
committed by public officers and employees in relation to their office, whether
simple or complexed with other crimes.[43]
As gleaned from the material averments of the Information in Criminal
Case No. 28023, the charge against petitioner is estafa through falsification of
public document in the performance of his duties and in relation to his position as
president of the AFP-RSBS.
Second. On petitioners claim that he should be charged with only one
count of estafa through falsification of public document instead of five (5)
charges, respondents counter that the criminal acts petitioner and his co-accused
are not continuous crimes. Respondents argue that a continuous crime may exist
only if there is only a single criminal intent and the commission of diverse acts is
merely a partial execution of said single criminal resolution. In the instant cases,
the requirement of singularity of criminal intent does not exist because there are
as many criminal intents as there are anomalous transactions, causing grave
damage to the government at each instance. There was no need for the accused
to perform another or other delictual acts to consummate the felony.
Respondents maintain that petitioner was motivated by separate intents as he
signed each document, all of which are criminal in character; hence, it is but
proper that corresponding Informations be filed against him for each and every
act of falsification committed.
The Sandiganbayan, for its part, sustained the contention of respondents
and ruled that the determination of (a) the charge/s and the person/s against
whom the charge is filed are addressed to the sound discretion of the
Prosecutors based on the facts before them; and (b) the crimes committed by
v.

petitioner are separate, and not a single crime consisting of series of acts arising
from a single criminal resolution. Thus:
In the first place, the question of the number of criminal
charges that must be instituted against a criminal respondent
(whether one count or multiple counts of the same offense) is
one addressed to the sound discretion of the prosecution
service. It is enough, as this Court has already ruled, that the
informations filed in these cases are based on facts establishing
probable cause for the offenses charged. This Court will not
compel the Office of the Ombudsman to file only one information
for Estafa through Falsification of Public Documents when its
preliminary investigation established the commission of several
counts thereof as such action on the part of this Court would
constitute undue interference with the Office of the Ombudsmans
control over the prosecution of these cases.
In the second place, this Court is not persuaded that
what is involved in these cases is a continuous crime, that is to
say, a single crime consisting of a series of acts arising from a
single criminal resolution or intent not susceptible of division,
with each act in that series being merely the partial execution of
a single delict. On the contrary, the Court is of the view that what
is involved herein are several completed and distinct purported
criminal acts which should be prosecuted as multiple counts of
the same type of offense. Thus, as correctly perceived by the
prosecution, there are as many alleged offenses as there are
alleged anomalous transactions involved in these cases.[44]
When required to comment on the motion of petitioner and his co-
accused for a consolidation of the charges filed against them before the
Sandiganbayan, the Special Prosecutor objected thereto, insisting that there
were as many crimes committed by the accused as there were sales contracts
forged by them.
142
Indeed, the determination of what charges to file and who are to be
charged are matters addressed to the discretion of the Ombudsman, including
the matter of whether the crime perpetrated by petitioner and his co-accused
under the Informations pending in the Divisions of the Sandiganbayan
constitute delito continuado or classified as concurso de
delitos; or involve separate crimes under the category of concurso real
delito involve factual issues.[45] Such factual issues should be resolved after trial
on the merits, and not in this case. The Court is being tasked to determine
whether the several sales contracts executed by petitioner and his co-accused
were set afoot or triggered by a single impulse and operated by an uninterrupted
force however long a time it may occupy, which, however, is a matter best left to
the determination of the trial court, in this case, the Sandiganbayan. [46]
Thus, the present petition for certiorari under Rule 65 of the Revised
Rules of Court is hardly the appropriate remedy and forum for petitioner to
ventilate the issues he has raised, as only jurisdictional issues can be resolved
therein. As eloquently expressed by Justice Florenz D. Regalado, speaking for
this Court in Iligan v. Court of Appeals:[47]
If, as petitioners seem to apprehend, the adverse actions
of two lower courts could create a scenario of multiple
prosecutions for the same offense or, more candidly expressed,
of double jeopardy, then this is neither the procedural stage nor
the proper occasion to pass upon that possibility. For, squarely
imputable to petitioners is the evident lack of factual basis for
and a grossly defective presentation of that issue for this Court to
rule thereon in this proceeding and at this time.[48]
It must be stressed that our disposition of the matters in the present
recourse will not foreclose petitioners right to ventilate the same in the
Sandiganbayan, for as declared in Iligan:

However, this observation would not foreclose relief to
petitioners if at the trial of this case the evidence presented and
the developments therein suffice to establish the supervening
fact that indeed there could possibly be a breach of the rule of
double jeopardy.Under Section 8 of Rule 117, they can still
hereafter raise that defense of non bis in idem, provided that
they can lay the evidentiary bases therefor and refute from the
standpoint of substantive penal law what was earlier said on the
nature and the non-identity of the several crimes of Estafa
involved which, to repeat, we pronounced purely on the bases of
existing records sans the benefit of any evidentiary fact since
none has been adduced.[49]
On the last issue, we agree with the contention of respondents that the
crimes committed by public officers and employees in relation to their offices
defined and penalized under the Anti-Graft Law do not exclude prosecution for
felonies defined and penalized under the Revised Penal Code and vice
versa. Section 3 of R.A. No. 3019 reads:
Section 3. Corrupt practices of public officers.In addition
to acts or omissions of public officers already penalized by
existing law, the following shall constitute corrupt practices of
any public officer and are hereby declared to be unlawful: x x x
(Emphasis supplied)
It is clear then that one may be charged of violation of R.A. No. 3019 in
addition to a felony under the Revised Penal Code for the same delictual act, that
is, either concurrently or subsequent to being charged with a felony under the
Code.
143
IN LIGHT OF ALL THE FOREGOING, the petition is DENIED. Costs
against the petitioner.
G.R. No. 150185 May 27, 2004
TERESITA TANGHAL OKABE, petitioner,
vs.
HON. PEDRO DE LEON GUTIERREZ, in his capacity as Presiding Judge of
RTC, Pasay City, Branch 119; PEOPLE OF THE PHILIPPINES; and CECILIA
MARUYAMA, respondents.
DECISION
CALLEJO, SR., J.:
Before us is a petition for review on certiorari, under Rule 45 of the Rules of
Court, as amended, that part of the Decision1 of the Court of Appeals in CA-G.R.
SP No. 60732 dismissing her petition for certiorari under Rule 65 of the Rules of
Court, as amended, for the nullification of the August 25 and 28, 2000 Orders of
the respondent judge in Criminal Case No. 00-0749.
The Antecedents
Cecilia Maruyama executed a fifteen-page affidavit-complaint2 and filed the same
with the Office of the City Prosecutor of Pasay City, on December 29, 1999,
charging Lorna Tanghal and petitioner Teresita Tanghal Okabe, a.k.a. Shiela
Okabe, with estafa. In her affidavit, Maruyama alleged, inter alia, that on
December 11, 1998, she entrusted Y11,410,000 with the peso equivalent
of P3,993,500 to the petitioner, who was engaged in the business of "door-to-
door delivery" from Japan to the Philippines. It was alleged that the petitioner
failed to deliver the money as agreed upon, and, at first, denied receiving the
said amount but later returned only US$1,000 through Lorna Tanghal.
During the preliminary investigation, the complainant, respondent Maruyama,
submitted the affidavit of her witnesses, namely, Hermogena Santiago, Wilma
Setsu and Marilette G. Izumiya and other documentary evidence. In her affidavit,
Setsu alleged that the money which was entrusted to the petitioner for delivery to
the Philippines belonged to her and her sister Annie Hashimoto, and their mother
Hermogena Sanchez-Quicho, who joined respondent Maruyama in her complaint
against petitioner Okabe and Tanghal. Respondent Maruyama, likewise,
submitted a reply3 to the petitioner’s counter-affidavit. After the requisite
preliminary investigation, 2nd Assistant City Prosecutor Joselito J. Vibandor

came out with a resolution dated March 30, 2000, finding probable cause
for estafa against the petitioner.4 Attached to the resolution, which was submitted
to the city prosecutor for approval, was the Information 5 against the petitioner and
Maruyama’s affidavit-complaint. The city prosecutor approved the resolution and
the Information dated March 30, 2000 attached thereto.6
On May 15, 2000, an Information against the petitioner was filed in the Regional
Trial Court of Pasay City, docketed as Criminal Case No. 00-0749. The case was
raffled to Branch 119 of the court presided by Judge Pedro de Leon
Gutierrez.7 The accusatory portion of the Information reads:
That on or about December 12, 1998 in Pasay City, Metro Manila,
Philippines, and within the jurisdiction of this Honorable Court, the
above-named accused defrauded Cecilia Maruyama and Conchita
Quicho, complainant herein, in the following manner, to wit: said accused
received in trust from Cecilia Maruyama the amount of Japanese Yen
1141 (sic) with peso equivalent to P3,839,465.00 under obligation to
deliver the money to Conchita Quicho at the NAIA International Airport,
Pasay City, immediately upon accused arrival from Japan, but herein
accused once in possession of the same, did, then and there willfully,
unlawfully and feloniously misappropriate and convert to her own
personal benefit the said amount, and despite demands accused failed
and refused to do so, to the damage and prejudice of the complainants in
the aforesaid amount.
Contrary to law.8
Appended to the Information was the affidavit-complaint of respondent
Maruyama and the resolution of Investigating Prosecutor Vibandor. On May 19,
2000, the trial court issued a warrant for the arrest of the petitioner with a
recommended bond of P40,000. On June 15, 2000, the petitioner posted a
personal bail bond in the said amount, duly approved by Judge Demetrio B.
Macapagal, the Presiding Judge of Branch 79 of the RTC of Quezon City, who
forthwith recalled the said warrant. The approved personal bail bond of the
petitioner was transmitted to the RTC of Pasig City on June 21, 2000. Upon her
request, the petitioner was furnished with a certified copy of the Information, the
resolution and the criminal complaint which formed part of the records of the said
case. The petitioner left the Philippines for Japan on June 17, 2000 without the
trial court’s permission, and returned to the Philippines on June 28, 2000. She
left the Philippines anew on July 1, 2000, and returned on July 12, 2000.
On July 14, 2000, the trial court issued an Order setting the petitioner’s
arraignment and pre-trial at 2:00 p.m. of July 16, 2000. On the same day, the
private prosecutor filed an urgent ex parte motion for the issuance of the hold
departure order, alleging as follows:
144
3. It has come to the knowledge of private complainant that there is an
impending marriage within the Philippines of either the son or daughter
of the above-named accused and that the above-named accused—who
has businesses in Japan, and is presently in Japan—will soon exit Japan
and enter the Philippines to precisely attend said wedding;
4. Given [a] the bail was fixed at merely P40,000.00 and [b] the
considerable financial capability of the accused, it is a foregone
conclusion that the above-named accused will, upon arrest, readily and
immediately post bond, and leave for Japan—thereby frustrating and
rendering inutile the administration of criminal justice in our country. The
speed with which accused Teresita Sheila Tanghal Okabe can post bond
and leave for Japan—effectively evading arraignment and plea—thus
necessitates the immediate issuance of a Hold Departure Order even
before her arrival here in the Philippines;9
The trial court issued an order on the same day, granting the motion of the
private prosecutor for the issuance of a hold departure order and ordering the
Commission on Immigration and Deportation (CID) to hold and prevent any
attempt on the part of the petitioner to depart from the Philippines.10 For her part,
the petitioner filed on July 17, 2000 a verified motion for judicial determination of
probable cause and to defer proceedings/arraignment, alleging that the only
documents appended to the Information submitted by the investigating
prosecutor were respondent Maruyama’s affidavit-complaint for estafa and the
resolution of the investigating prosecutor; the affidavits of the witnesses of the
complainant, the respondent’s counter-affidavit and the other evidence adduced
by the parties were not attached thereto. The petitioner further alleged that the
documents submitted by the investigating prosecutor were not enough on which
the trial court could base a finding of probable cause forestafa against her. She
further averred that conformably to the rulings of this Court in Lim v.
Felix11 and Roberts, Jr. v. Court of Appeals,12 it behooved the investigating
prosecutor to submit the following to the trial court to enable it to determine the
presence or absence of probable cause: (a) copies of the affidavits of the
witnesses of the complainant; (b) the counter-affidavit of Okabe and those of her
witnesses; (c) the transcripts of stenographic notes taken during the preliminary
investigation; and, (d) other documents presented during the said investigation.
On July 19, 2000, the petitioner filed a Very Urgent Motion To Lift/Recall Hold
Departure Order dated July 17, 2000 and/or allow her to regularly travel to Japan
alleging, thus:
3. Accused is (sic) widow and the legitimate mother of three (3) children,
two (2) of whom are still minors, namely:
3.1. Okabe, Jeffrey-18 years old born on 13 August 1981.

3.2. Okabe, Masatoshi-14 years old and born on 16 October
1985, 3rd year High School student at Hoshikuki, Chiba City,
Matsugaoka, High School, residing at Chiba City, Chuo-Ku,
Yahagi-cho, 205, Telephone No. 043-224-5804.
3.3. Okabe, Tomoki-13 years old and born on 13 March 1986,
2nd year High School student at Hoshikuki, Chiba City,
Matsugaoka, High School, residing at Chiba City, Chuo-Ku,
Yahagi-cho, 205, Telephone No. 043-224-5804.
3.4. The accused has to attend the Parents Teachers
Association (PTA) at the Hoshikuki High School where her two
(2) minor sons aforesaid are presently enrolled and studying
because Okabe, Masatoshi’s graduation will take place on 26
July 2000.
3.5. The two (2) minor children of the accused absolutely depend
their support (basic necessities) for foods, clothings, medicines,
rentals, schooling and all other expenses for their survival to their
legitimate mother who is the accused herein.
3.6. The issuance of the hold departure order (HDO) will impair
the inherent custodial rights of the accused as the legitimate
mother over these two (2) minor children which is repugnant to
law.
3.7. The issuance of the hold departure order (HDO) will unduly
restrict the accused to her custodial rights and visitation over her
aforesaid minor children who are permanently living in Japan.
3.8. The issuance of the hold departure order (HDO) will unduly
deprived (sic) these minor children to their right to obtain
education and survival.
4. Accused’s only source of income and livelihood is door-to-door
delivery from Japan to the Philippines and vice versa which has been
taking place for a very long period of time and in the process she has
been constantly departing from the Philippines on a weekly basis and
arriving in Japan on the same frequency, as evidenced by xerox copies
of the pages of her Philippine Passports which are hereto attached as
Annexes "A," "A-1," "A-2" up to "A-30," respectively. To deprive her of
this only source of her livelihood to which the aforesaid two (2) minor
children are deriving their very survival in a foreign land will (sic)
tantamount to oppression rather than prosecution and depriving the said
minor sons of their right to live even before trial on the merits of this case
145
that will (sic) tantamount to the destruction of the future of these minor
children.13
The private prosecutor opposed the petitioner’s motions during the hearing on
July 21, 2000 which was also the date set for her arraignment. The hearing of the
motions as well as the arraignment was reset to 2:00 p.m. of July 26, 2000. On
the said date, the petitioner filed a manifestation objecting to her arraignment
prior to the resolution of her pending motions. She alleged that her arraignment
for the crime charged should not be made a condition for the granting of her
motion to recall the hold departure order issued against her. The arraignment of
the petitioner was again reset to 2:00 p.m. of August 28, 2000, pending the
resolution of her two motions. On August 25, 2000, the petitioner filed a motion
for the postponement of her arraignment alleging that, in case the trial court ruled
adversely thereon, she would refuse to enter a plea and seek relief from the
appellate court. The court denied the petitioner’s motions on the following
grounds:
(a) Based on its personal examination and consideration of the
Information, the affidavit-complaint of respondent Maruyama and the
resolution of the investigating prosecutor duly approved by the city
prosecutor, the court found probable cause for the petitioner’s arrest.
Since the petitioner’s motion for a determination of probable cause was
made after the court had already found probable cause and issued a
warrant for the petitioner’s arrest, and after the latter filed a personal bail
bond for her provisional liberty, such motion was a mere surplusage;
(b) When the petitioner posted a personal bail bond for her provisional
liberty, she thereby waived her right to question the court’s finding of the
existence of probable cause for her arrest and submitted herself to the
jurisdiction of the court, more so when she filed the motion for the lifting
of the hold departure order the court issued, and the motion to defer the
proceedings and her arraignment; and
(c) The hold departure order issued by the trial court was in accord with
Supreme Court Circular No. 39-97 dated June 19, 1997, as well as the
ruling of this Court in Manotoc, Jr. v. Court of Appeals.14
When the case was called for the petitioner’s arraignment at 2:00 p.m., on
August 28, 2000, she refused to plead.15 Her counsel advised her, in open court,
not to enter a plea and, with leave of court, left the courtroom. The court then
entered a not guilty plea for the petitioner.16 It also issued an order, on the said
date, setting the pre-trial and initial presentation of the evidence of the
prosecution at 8:30 a.m. of September 20, 2000. 17

The petitioner then filed with the Court of Appeals a petition for certiorari under
Rule 65 of the Rules of Court with a plea for a writ of preliminary injunction. The
case was docketed as CA-G.R. SP No. 60732. The petitioner ascribed the
following errors to the trial court:
I in that the assailed order of the trial court denying the petitioner’s motion to
RESPONDENT COURT GRAVELY ERRED WHEN IT ISSUED
WARRANT OF ARREST DESPITE OF (SIC) LACK OF PROBABLE
CAUSE
II
RESPONDENT COURT HAS VIOLATED THE RIGHT OF THE
PETITIONER TO DUE PROCESS
III
RESPONDENT COURT HAS ALREADY PRE-JUDGED THE
CONVICTION OF THE PETITIONER FOR ESTAFA
IV
RESPONDENT COURT HAS EXHIBITED ITS APPARENT PARTIALITY
TOWARDS THE PROSECUTION AND AGAINST THE PETITIONER
V
RESPONDENT COURT GRAVELY ERRED WHEN IT DENIES (SIC)
THE MOTION FOR JUDICIAL DETERMINATION OF PROBABLE
CAUSE PURSUANT TO THE DOCTRINE OF ROBERTS, JR.
VI
RESPONDENT COURT GRAVELY ERRED WHEN IT DENIES (SIC)
THE LIFTING/RECALL OF THE HDO AND/OR ALLOWING THE
PETITIONER TO TRAVEL TO JAPAN REGULARLY FOR
HUMANITARIAN CONSIDERATION
VII
146
RESPONDENT COURT COMMITTED GRAVE ABUSE OF
DISCRETION AMOUNTING TO LACK OF JURISDICTION WHEN IT
ISSUED THE QUESTIONED ORDERS…18
On January 31, 2001, the CA rendered a Decision19 partially granting the petition
lift/recall the hold departure order was set aside. However, the petitioner’s motion
for reconsideration of the trial court’s decision was denied and her petition for the
nullification of the August 25, 2000 Order of the respondent judge was dismissed.
The CA ruled that by posting bail and praying for reliefs from the trial court, the
petitioner waived her right to assail the respondent judge’s finding of the
existence of probable cause. The appellate court cited the ruling of this Court
in Cojuangco, Jr. v. Sandiganbayan.20 Thus, the appellate court affirmed the
assailed order of the RTC, based on the respondent judge’s personal
examination of respondent Maruyama’s affidavit-complaint, the resolution of the
investigating prosecutor and the Information approved by the city prosecutor, a
finding of probable cause was in order. However, the appellate court allowed the
petitioner to travel to Japan under the following conditions:
(1) That petitioner post a bond double the amount of her alleged
monetary liability under the Information filed against her, as
recommended by the Office of the Solicitor General;
(2) That petitioner inform respondent Court of each and all of her travel
itinerary prior to leaving the country;
(3) That petitioner make periodic reports with respondent Court;
(4) That petitioner furnish respondent Court with all the addresses of her
possible place of residence, both here and in Japan; and
(5) Such other reasonable conditions which respondent Court may deem
appropriate under the circumstances.21
The appellate court did not resolve the issue of whether the trial court had
prejudged the case and was partial to the prosecution. The decretal portion of the
decision of the CA reads:
WHEREFORE, premises considered, the instant special civil action for
certiorari is hereby PARTIALLY GRANTED insofar as the denial of
petitioner’s Motion to Lift/Recall Hold Departure Order dated 14 July,
2000 and/or Allow the accused to Regularly Travel to Japan is
concerned. In all other respect, the same is hereby DENIED.
SO ORDERED.22

On March 6, 2001, the petitioner filed a motion for a partial reconsideration of the
decision of the CA contending that the appellate court erred in applying the ruling
of this court in Cojuangco, Jr. v. Court of Appeals23 instead of Section 26, Rule
114 of the Revised Rules on Criminal Procedure. The petitioner posited that the
said rule, which took effect on December 1, 2000, before the court rendered its
decision, had superseded the ruling of this Court in the Cojuangco case.
However, the appellate court held that Section 26, Rule 114 of the Revised Rules
on Criminal Procedure cannot be applied retroactively, because the petitioner
had posted bail on June 15, 2000 before the Revised Rules on Criminal
Procedure took effect.
Hence, the instant petition for review on certiorari for the reversal of the decision
and resolution of the CA and praying that after due proceedings, judgment be
rendered in her favor, thus:
WHEREFORE, it is respectfully prayed of this Honorable Supreme Court
that after due proceedings judgment be rendered in favor of the
petitioner and against the respondents as follows:
(a) GIVING DUE COURSE to the instant petition;
(b) ORDERING the REVERSAL and PARTIALLY SETTING
ASIDE of the Decision promulgated on 31 January 2001 (Annex
"A" hereof) of the Honorable Court of Appeals in CA-G.R. SP No.
60732 as well as its Resolution promulgated on 27 September
2001 (Annex "B" hereof);
(c) ORDERING the DISMISSAL of Crim. Case No. 00-0749 for
lack of probable cause;
(d) DECLARING the entire proceedings in Crim. Case No. 00-
0749 as null and void;
(e) ORDERING the private respondents to pay the petitioners
the following amount:
(i) at least P1,000,000.00 as moral damages;
(ii) at least P1,000,000.00 as exemplary damages;
(iii) at least P500,000.00 as attorney’s fees and for other
expenses of litigation.
147
(f) ORDERING the private respondent to pay the costs of this
suit.
(g) Petitioner further prays for such other reliefs just and
equitable under the premises.24
The petitioner asserts that the CA committed the following reversible errors:
I
THE HONORABLE COURT OF APPEALS MADE A REVERSIBLE
ERROR WHEN IT COMPLETELY DISREGARDED THE APPLICATION
OF SECTION 26, RULE 114 OF THE REVISED RULES ON CRIMINAL
PROCEDURE WHICH TOOK EFFECT ON 01 DECEMBER 2000
WHICH IS FAVORABLE TO THE PETITIONER/ACCUSED.
II
THE HONORABLE COURT OF APPEALS MADE A REVERSIBLE
ERROR IN RULING THAT "WHATEVER INFIRMITY THERE WAS IN
THE ISSUANCE OF THE WARRANT OF ARREST, THE SAME WAS
CURED WHEN PETITIONER VOLUNTARILY SUBMITTED TO THE
RESPONDENT COURT’S JURISDICTION WHEN SHE POSTED BAIL
AND FILED MOTIONS SEEKING AFFIRMATIVE RELIEF SUCH AS
MOTION TO LIFT/RECALL HOLD DEPARTURE ORDER AND TO
ALLOW PETITIONER TO TRAVEL REGULARLY TO JAPAN (Last
paragraph, Page 9 DECISION dated 31 January 2001)."
III
THE HONORABLE COURT OF APPEALS MADE A REVERSIBLE
ERROR WHEN IT RELIED UPON THE RULING IN THE CASE
OF COJUANGCO, JR. VS. SANDIGANBAYAN, [300 SCRA 367 (1998)]
WHEN IN FACT SAID RULING IS NOW OBSOLETE AND NO LONGER
APPLICABLE.
IV
THE HONORABLE COURT OF APPEALS MADE A REVERSIBLE
ERROR IN RULING THAT RESPONDENT COURT COMPLIED WITH
THE CONSTITUTIONAL REQUIREMENTS ON THE ISSUANCE OF
WARRANT OF ARREST WITHOUT PROBABLE CAUSE, WHEN THE
RESPONDENT COURT MERELY RELIED ON [THE] (i) COMPLAINT-

AFFIDAVIT OF CECILIA MARUYAMA; (ii) RESOLUTION OF THE
INVESTIGATING PROSECUTOR; AND (iii) CRIMINAL INFORMATION.
V respondent Judge complied with the constitutional requirements on the
THE HONORABLE COURT OF APPEALS MADE A REVERSIBLE
ERROR WHEN IT FAILED TO RULE ON THE PARTIALITY OF THE
RESPONDENT JUDGE IN HANDLING THE CASE BELOW WHICH IS
VIOLATIVE OF THE PETITIONER’S RIGHT TO DUE PROCESS.
VI
THE FILING OF CRIM. CASE NO. 4297 (MTC, ANGAT, BULACAN)
FOR ESTAFA ENTITLED "PEOPLE VS. SHEILA OKABE"; CIVIL CASE
NO. 331-M-98 (RTC, MALOLOS, BULACAN) FOR SUM OF MONEY
WITH PRELIMINARY ATTACHMENT ENTITLED "CONCHITA
SANCHEZ-QUICHO VS. SHEILA TERESITA TANGHAL OKABE"; AND
CRIM. CASE NO. 00-07-19 (RTC, PASAY CITY, BRANCH 119)
ENTITLED "PEOPLE VS. TERESITA TANGHAL OKABE" CONSTITUTE
A VIOLATION OF THE RULE ON NON-FORUM SHOPPING.25
By way of comment, the Office of the Solicitor General refuted the petitioner’s
assigned errors, contending as follows:
I investigating prosecutor to submit the affidavits of the witnesses of respondent
The Court of Appeals did not commit a reversible error in not applying
Section 26, Rule 114 of the Revised Rules on Criminal Procedure.
II
The Court of Appeals did not commit a reversible error in ruling that the
infirmity, if any, in the issuance by the respondent Judge of the warrant
of arrest against petitioner was cured when petitioner voluntarily
submitted to the trial court’s jurisdiction when she posted bail and filed
motions seeking for affirmative reliefs from the trial court, such as the
motion to lift/recall Hold Departure Order (HDO) and to allow petitioner to
travel regularly to Japan.
III
The Court of Appeals did not commit a reversible error in applying the
ruling in the Cojuangco case.
148
IV
The Court of Appeals did not commit a reversible error in finding that
issuance of a warrant of arrest.
V
The Court of Appeals did not commit a reversible error when it did not
rule on the partiality of the respondent Judge in handling Criminal Case
No. 00-0749.
VI
The Honorable Court of Appeals did not commit a reversible error when
it did not rule on petitioner’s claim of forum shopping.26
The Court shall resolve the assigned errors simultaneously as they are
interrelated.
The petitioner asserts that the respondent judge could not have determined the
existence of probable cause for her arrest solely on the resolution of the
investigating prosecutor and the undated affidavit-complaint of respondent
Maruyama. She posits that the respondent judge should have ordered the
Maruyama and the latter’s documentary evidence, as well as the counter-affidavit
of the petitioner and the transcripts of the stenographic notes, if any, taken during
the preliminary investigation. The petitioner adds that the respondent judge
should have personally reviewed the said documents, conformably to the rulings
of this Court in Lim v. Felix,27 Roberts, Jr. v. Court of Appeals28 and Ho v.
People,29 before determining the presence or absence of probable cause. She
posits that the respondent judge acted with grave abuse of discretion amounting
to excess or lack of jurisdiction in denying her motion for a determination of
probable cause, and the alternative motion for a dismissal of the case against her
for lack of probable cause.
The petitioner further asserts that the appellate court erred in affirming the ruling
of the respondent judge that, by posting a personal bail bond for her provisional
liability and by filing several motions for relief, she thereby voluntarily submitted
herself to the jurisdiction of the trial court and waived her right to assail the
infirmities that infected the trial court’s issuance of the warrant for her arrest. She
avers that the appellate court’s reliance on the ruling of this Court in Cojuangco,
Jr. v. Sandiganbayan30 is misplaced, and submits that the appellate court should
have applied Section 26, Rule 114 of the Revised Rules of Court retroactively, as
it rendered the ruling of this Court in the Cojuangco, Jr. case obsolete.

The Office of the Solicitor General, on the other hand, asserts that the
respondent judge did not commit any grave abuse of discretion when he found
probable cause against the petitioner for estafa, and thereafter issued a warrant
for her arrest. It argues that the respondent judge personally determined the
existence of probable cause independently of the certification of the investigating
prosecutor, and only after examining the Information, the resolution of the
investigating prosecutor, as well as the affidavit-complaint of the private
complainant. It asserts that such documents are sufficient on which to anchor a
finding of probable cause. It insists that the appellate court correctly applied the
ruling of this Court in the Cojuangco, Jr. v. Court of Appeals case, and that the
respondent judge complied with both the requirements of the constitution and
those set forth in the Rules of Court before issuing the said warrant. 31
We agree with the contention of the petitioner that the appellate court erred in not
applying Section 26, Rule 114 of the Revised Rules on Criminal Procedure, viz:
SEC. 26. Bail not a bar to objections on illegal arrest, lack of or irregular
preliminary investigation. – An application for or admission to bail shall
not bar the accused from challenging the validity of his arrest or the
legality of the warrant issued therefor, or from assailing the regularity or
questioning the absence of a preliminary investigation of the charge
against him, provided that he raises them before entering his plea. The
court shall resolve the matter as early as practicable but not later than
the start of the trial of the case.
It bears stressing that Section 26, Rule 114 of the Revised Rules on Criminal
Procedure is a new one, intended to modify previous rulings of this Court that an
application for bail or the admission to bail by the accused shall be considered as
a waiver of his right to assail the warrant issued for his arrest on the legalities or
irregularities thereon.32 The new rule has reverted to the ruling of this Court
in People v. Red.33 The new rule is curative in nature because precisely, it was
designed to supply defects and curb evils in procedural rules. Hence, the rules
governing curative statutes are applicable. Curative statutes are by their essence
retroactive in application.34Besides, procedural rules as a general rule operate
retroactively, even without express provisions to that effect, to cases pending at
the time of their effectivity, in other words to actions yet undetermined at the time
of their effectivity.35 Before the appellate court rendered its decision on January
31, 2001, the Revised Rules on Criminal Procedure was already in effect. It
behooved the appellate court to have applied the same in resolving the
petitioner’s petition for certiorari and her motion for partial reconsideration.
Moreover, considering the conduct of the petitioner after posting her personal bail
bond, it cannot be argued that she waived her right to question the finding of
probable cause and to assail the warrant of arrest issued against her by the
respondent judge. There must be clear and convincing proof that the petitioner
had an actual intention to relinquish her right to question the existence of
149
probable cause.36 When the only proof of intention rests on what a party does,
his act should be so manifestly consistent with, and indicative of, an intent to
voluntarily and unequivocally relinquish the particular right that no other
explanation of his conduct is possible.37 In this case, the records show that a
warrant was issued by the respondent judge in Pasay City for the arrest of the
petitioner, a resident of Guiguinto, Bulacan. When the petitioner learned of the
issuance of the said warrant, she posted a personal bail bond to avert her arrest
and secure her provisional liberty. Judge Demetrio B. Macapagal of the RTC of
Quezon City approved the bond and issued an order recalling the warrant of
arrest against the petitioner. Thus, the posting of a personal bail bond was a
matter of imperative necessity to avert her incarceration; it should not be deemed
as a waiver of her right to assail her arrest. So this Court ruled in People v.
Red:38
… The present defendants were arrested towards the end of January,
1929, on the Island and Province of Marinduque by order of the judge of
the Court of First Instance of Lucena, Tayabas, at a time when there
were no court sessions being held in Marinduque. In view of these
circumstances and the number of the accused, it may properly be held
that the furnishing of the bond was prompted by the sheer necessity of
not remaining in detention, and in no way implied their waiver of any
right, such as the summary examination of the case before their
detention. That they had no intention of waiving this right is clear from
their motion of January 23, 1929, the same day on which they furnished
a bond, and the fact that they renewed this petition on February 23,
1929, praying for the stay of their arrest for lack of the summary
examination; the first motion being denied by the court on January 24,
1929 (G.R. No. 33708, page 8), and the second remaining undecided,
but with an order to have it presented in Boac, Marinduque.
Therefore, the defendants herein cannot be said to have waived the right
granted to them by section 13, General Order No. 58, as amended by
Act No. 3042.39
Moreover, the next day, or on June 16, 2000, the petitioner, through counsel,
received certified true copies of the Information, the resolution of the investigating
prosecutor, the affidavit-complaint of the private complainant, respondent
Maruyama, and a certification from the branch clerk of court that only the
Information, resolution and affidavit-complaint formed part of the entire records of
the case. The next day, June 17, 2000, the petitioner, through counsel, filed a
verified motion for judicial determination of probable cause and to defer the
proceedings and her arraignment. All the foregoing are inconsistent with a waiver
of her right to assail the validity of her arrest and to question the respondent
judge’s determination of the existence of probable cause for her arrest.

Neither can the petitioner’s filing of a motion for the lifting of the hold departure
order and for leave to go to Japan be considered a waiver of her right to assail
the validity of the arrest warrant issued by the respondent judge. It bears
stressing that when the petitioner filed the motion to lift the hold departure order
issued against her by the respondent judge, her motion for a determination of
probable cause was still unresolved. She sought a lifting of the hold departure
order on July 14, 2000 and filed a motion for leave to go to Japan, to give the
respondent judge an opportunity to reconsider the said order, preparatory to
assailing the same in the appellate court in case her motion was denied.
The issue that now comes to fore is whether or not the respondent judge
committed a grave abuse of his discretion amounting to excess or lack of
jurisdiction in issuing his August 25, 2000 Order. By grave abuse of discretion is
meant such patent and gross abuse of discretion as to amount to an evasion of
positive duty or a virtual refusal to perform a duty enjoined by law, or to act at all
in contemplation of law, as where the power is exercised in an arbitrary and
despotic manner by reasons of passion or personal hostility.40 Hence, when the
court has jurisdiction over the case, its questioned acts, even if its findings are
not correct, would at most constitute errors of law and not abuse of discretion
correctible by the extraordinary remedy of certiorari.41
We agree with the petitioner that before the RTC judge issues a warrant of arrest
under Section 6, Rule 112 of the Rules of Court42 in relation to Section 2, Article
III of the 1987 Constitution, the judge must make a personal determination of the
existence or non-existence of probable cause for the arrest of the accused. The
duty to make such determination is personal and exclusive to the issuing judge.
He cannot abdicate his duty and rely on the certification of the investigating
prosecutor that he had conducted a preliminary investigation in accordance with
law and the Rules of Court, as amended, and found probable cause for the filing
of the Information.
Under Section 1, Rule 112 of the Rules on Criminal Procedure, the investigating
prosecutor, in conducting a preliminary investigation of a case cognizable by the
RTC, is tasked to determine whether there is sufficient ground to engender a
well-founded belief that a crime has been committed and the respondent therein
is probably guilty thereof and should be held for trial. A preliminary investigation
is for the purpose of securing the innocent against hasty, malicious and
oppressive prosecution, and to protect him from an open and public accusation
of a crime, from the trouble, expense and anxiety of a public trial.43
If the investigating prosecutor finds probable cause for the filing of the
Information against the respondent, he executes a certification at the bottom of
the Information that from the evidence presented, there is a reasonable ground to
believe that the offense charged has been committed and that the accused is
probably guilty thereof. Such certification of the investigating prosecutor is, by
itself, ineffective. It is not binding on the trial court. Nor may the RTC rely on the
150
said certification as basis for a finding of the existence of probable cause for the
arrest of the accused.44
In contrast, the task of the presiding judge when the Information is filed with the
court is first and foremost to determine the existence or non-existence of
probable cause for the arrest of the accused. Probable cause is meant such set
of facts and circumstances which would lead a reasonably discreet and prudent
man to believe that the offense charged in the Information or any offense
included therein has been committed by the person sought to be arrested.45 In
determining probable cause, the average man weighs facts and circumstances
without resorting to the calibrations of the rules of evidence of which he has no
technical knowledge. He relies on common sense.46 A finding of probable cause
needs only to rest on evidence showing that more likely than not a crime has
been committed and that it was committed by the accused. Probable cause
demands more than bare suspicion, it requires less than evidence which would
justify conviction.47
The purpose of the mandate of the judge to first determine probable cause for
the arrest of the accused is to insulate from the very start those falsely charged
of crimes from the tribulations, expenses and anxiety of a public trial:
It must be stressed, however, that in these exceptional cases, the Court
took the extraordinary step of annulling findings of probable cause either
to prevent the misuse of the strong arm of the law or to protect the
orderly administration of justice. The constitutional duty of this Court in
criminal litigations is not only to acquit the innocent after trial but to
insulate, from the start, the innocent from unfounded charges. For the
Court is aware of the strains of a criminal accusation and the stresses of
litigation which should not be suffered by the clearly innocent. The filing
of an unfounded criminal information in court exposes the innocent to
severe distress especially when the crime is not bailable. Even an
acquittal of the innocent will not fully bleach the dark and deep stains left
by a baseless accusation for reputation once tarnished remains
tarnished for a long length of time. The expense to establish innocence
may also be prohibitive and can be more punishing especially to the poor
and the powerless. Innocence ought to be enough and the business of
this Court is to shield the innocent from senseless suits right from the
start.48
In determining the existence or non-existence of probable cause for the arrest of
the accused, the RTC judge may rely on the findings and conclusions in the
resolution of the investigating prosecutor finding probable cause for the filing of
the Information. After all, as the Court held in Webb v. De Leon,49 the judge just
personally reviews the initial determination of the investigating prosecutor finding
a probable cause to see if it is supported by substantial evidence. 50 However, in
determining the existence or non-existence of probable cause for the arrest of

the accused, the judge should not rely solely on the said report.51 The judge
should consider not only the report of the investigating prosecutor but also the
affidavit/affidavits and the documentary evidence of the parties, the counter-
affidavit of the accused and his witnesses, as well as the transcript of
stenographic notes taken during the preliminary investigation, if any, submitted to
the court by the investigating prosecutor upon the filing of the
Information.52 Indeed, in Ho v. People,53 this Court held that:
Lastly, it is not required that the complete or entire records of the case
during the preliminary investigation be submitted to and examined by the
judge. We do not intend to unduly burden trial courts by obliging them to
examine the complete records of every case all the time simply for the
purpose of ordering the arrest of an accused. What is required, rather, is
that the judge must have sufficient supporting documents (such as the
complaint, affidavits, counter-affidavits, sworn statements of witnesses or
transcripts of stenographic notes, if any) upon which to make his
independent judgment or, at the very least, upon which to verify the
findings of the prosecutor as to the existence of probable cause. The
point is: he cannot rely solely and entirely on the prosecutor’s
recommendation, as Respondent Court did in this case. Although the
prosecutor enjoys the legal presumption of regularity in the performance
of his official duties and functions, which in turn gives his report the
presumption of accuracy, the Constitution, we repeat, commands the
judge to personally determine probable cause in the issuance of
warrants of arrest. This Court has consistently held that a judge fails in
his bounden duty if he relies merely on the certification or the report of
the investigating officer.54
The rulings of this Court are now embedded in Section 8(a), Rule 112 of the
Revised Rules on Criminal Procedure which provides that an Information or
complaint filed in court shall be supported by the affidavits and counter-affidavits
of the parties and their witnesses, together with the other supporting evidence of
the resolution:
SEC. 8. Records. – (a) Records supporting the information or
complaint. An information or complaint filed in court shall be supported
by the affidavits and counter-affidavits of the parties and their witnesses,
together with the other supporting evidence and the resolution on the
case.
If the judge is able to determine the existence or non-existence of probable
cause on the basis of the records submitted by the investigating prosecutor,
there would no longer be a need to order the elevation of the rest of the records
of the case. However, if the judge finds the records and/or evidence submitted by
the investigating prosecutor to be insufficient, he may order the dismissal of the
case, or direct the investigating prosecutor either to submit more evidence or to
151
submit the entire records of the preliminary investigation, to enable him to
discharge his duty.55 The judge may even call the complainant and his witness to
themselves answer the court’s probing questions to determine the existence of
probable cause.56 The rulings of this Court in Soliven v. Makasiar57 and Lim v.
Felix58 are now embodied in Section 6, Rule 112 of the Revised Rules on
Criminal Procedure, with modifications, viz:
SEC. 6. When warrant of arrest may issue. – (a) By the Regional Trial
Court. – Within ten (10) days from the filing of the complaint or
information, the judge shall personally evaluate the resolution of the
prosecutor and its supporting evidence. He may immediately dismiss the
case if the evidence on record clearly fails to establish probable cause. If
he finds probable cause, he shall issue a warrant of arrest, or a
commitment order if the accused has already been arrested pursuant to
a warrant issued by the judge who conducted the preliminary
investigation or when the complaint or information was filed pursuant to
section 7 of this Rule. In case of doubt on the existence of probable
cause, the judge may order the prosecutor to present additional evidence
within five (5) days from notice and the issue must be resolved by the
court within thirty (30) days from the filing of the complaint of information.
In this case, the investigating prosecutor submitted to the respondent judge only
his resolution after his preliminary investigation of the case and the affidavit-
complaint of the private complainant, and failed to include the affidavits of the
witnesses of the private complainant, and the latter’s reply affidavit, the counter-
affidavit of the petitioner, as well as the evidence adduced by the private
complainant as required by case law, and now by Section 8(a), Rule 112 of the
Revised Rules on Criminal Procedure. The aforecited affidavits, more specifically
the fax message of Lorna Tanghal and the document signed by her covering the
amount of US$1,000, are of vital importance, as they would enable the
respondent judge to properly determine the existence or non-existence of
probable cause.
First. When respondent Maruyama handed the money to the petitioner, she did
not require the latter to sign a document acknowledging receipt of the amount.
The petitioner avers that it is incredible that Maruyama would entrust P3,993,500
in Japanese Yen to her without even requiring her to sign a receipt therefor,
especially since respondent Maruyama was not even the owner of the money;
Second. The affidavit of Hermogena Santiago, a witness of the respondent, is
unreliable, because it is based on information relayed to her by Lorna Tanghal
that she (Tanghal) saw the petitioner carrying a Louis Vuitton bag while on board
a Mitsubishi L300 van with the petitioner. It appears that Tanghal failed to submit
any counter-affidavit to the investigating prosecutor;

Third. The affidavit of Marilette G. Izumiya, another witness of the respondent, is
also unreliable, as it was based on information relayed to her by Thelma
Barbiran, who used to work for the petitioner as a housemaid, that she (Barbiran)
had in her possession a fax message from Lorna Tanghal, implicating the
petitioner in the crime charged. Barbiran did not execute any affidavit;
Fourth. There is no indication in the resolution of the investigating prosecutor that
the petitioner received the fax message of Lorna Tanghal;
Fifth. The private complainant claims that the petitioner tried to reimburse
the P3,993,500 by remitting US$1,000 to her. However, the latter admitted in her
affidavit-complaint that the document evidencing the remittance was signed by
Lorna Tanghal, not by the petitioner. The petitioner claimed that Lorna Tanghal
had to remit US$1,000 to respondent Maruyama because the latter made it
appear to Tanghal that the police authorities were about to arrest the petitioner,
and Tanghal was impelled to give the amount to respondent Maruyama to avert
her arrest and incarceration;
Sixth. In her counter-affidavit, the petitioner alleged that respondent Maruyama
had no case against her because the crime charged in the latter’s affidavit-
complaint was the same as that filed against her in the Metropolitan Trial Court of
Bulacan, which was withdrawn by the complainant herself;
Seventh. The investigating prosecutor stated in his resolution that the private
complainant established the element of deceit. However, the crime charged
against the petitioner as alleged in the Information is estafa with abuse of
confidence.
In sum, then, we find and so declare that the respondent judge committed a
grave abuse of his discretion amounting to excess or lack of jurisdiction in finding
probable cause for the petitioner’s arrest in the absence of copies of the affidavits
of the witnesses of the private complainant and her reply affidavit, the counter-
affidavit of the petitioner, and the evidence adduced during the preliminary
investigation before the investigating prosecutor.
In view of the foregoing disquisitions, there is no more need to resolve the other
issues raised by the petitioner.
IN LIGHT OF ALL THE FOREGOING, the petition is GRANTED. The assailed
decision of the Court of Appeals isREVERSED and SET ASIDE. The assailed
Orders dated August 25 and 28, 2000 and the Warrant of Arrest issued by the
respondent judge in Criminal Case No. 00-0749 are SET ASIDE. The records
are REMANDED to the Regional Trial Court of Pasay City, Branch 119. The
respondent judge is hereby DIRECTED to determine the existence or non-
existence of probable cause for the arrest of the petitioner based on the complete
152
records, as required under Section 8(a), Rule 112 of the Revised Rules on
Criminal Procedure.
SO ORDERED.
G.R. No. 182677 August 3, 2010
JOSE ANTONIO C. LEVISTE, Petitioner,
vs.
HON. ELMO M. ALAMEDA, HON. RAUL M. GONZALEZ, HON. EMMANUEL Y.
VELASCO, HEIRS OF THE LATE RAFAEL DE LAS ALAS, Respondents.
DECISION
CARPIO MORALES, J.:
Jose Antonio C. Leviste (petitioner) assails via the present petition for review filed
on May 30, 2008 the August 30, 2007 Decision 1 and the April 18, 2008
Resolution2 of the Court of Appeals in CA-G.R. SP No. 97761 that affirmed the
trial court’s Orders of January 24, 31, February 7, 8, all in 2007, and denied the
motion for reconsideration, respectively.
Petitioner was, by Information3 of January 16, 2007, charged with homicide for
the death of Rafael de las Alas on January 12, 2007 before the Regional Trial
Court (RTC) of Makati City. Branch 150 to which the case was raffled, presided
by Judge Elmo Alameda, forthwith issued a commitment order4 against petitioner
who was placed under police custody while confined at the Makati Medical
Center.5
After petitioner posted a P40,000 cash bond which the trial court approved,6 he
was released from detention, and his arraignment was set on January 24, 2007.
The private complainants-heirs of De las Alas filed, with the conformity of the
public prosecutor, an Urgent Omnibus Motion7 praying, inter alia, for the
deferment of the proceedings to allow the public prosecutor to re-examine the
evidence on record or to conduct a reinvestigation to determine the proper
offense.
The RTC thereafter issued the (1) Order of January 24, 20078 deferring
petitioner’s arraignment and allowing the prosecution to conduct a reinvestigation
to determine the proper offense and submit a recommendation within 30 days
from its inception, inter alia; and (2) Order of January 31, 20079 denying
reconsideration of the first order. Petitioner assailed these orders via certiorari
and prohibition before the Court of Appeals.

Meantime, petitioner filed an Urgent Ex-Parte Manifestation and Motion before
the trial court to defer acting on the public prosecutor’s recommendation on the
proper offense until after the appellate court resolves his application for injunctive
reliefs, or alternatively, to grant him time to comment on the prosecutor’s
recommendation and thereafter set a hearing for the judicial determination of
probable cause.10 Petitioner also separately moved for the inhibition of Judge
Alameda with prayer to defer action on the admission of the Amended
Information.11
The trial court nonetheless issued the other assailed orders, viz: (1) Order of
February 7, 200712 that admitted the Amended Information13 for murder and
directed the issuance of a warrant of arrest; and (2) Order of February 8,
200714 which set the arraignment on February 13, 2007. Petitioner questioned
these two orders via supplemental petition before the appellate court.
The appellate court dismissed petitioner’s petition, hence, his present petition,
arguing that:
PRIVATE RESPONDENT DID NOT HAVE THE RIGHT TO CAUSE THE
REINVESTIGATION OF THE CRIMINAL CASE BELOW WHEN THE CRIMINAL
INFORMATION HAD ALREADY BEEN FILED WITH THE LOWER COURT.
HENCE, THE COURT OF APPEALS COMMITTED A GRAVE ERROR IN
FINDING THAT RESPONDENT JUDGE DID NOT ACT WITH GRAVE ABUSE
OF DISCRETION IN GRANTING SUCH REINVESTIGATION DESPITE HAVING
NO BASIS IN THE RULES OF COURT[;]
RESPONDENT JUDGE ACTED WITH GRAVE ABUSE OF DISCRETION IN
ADMITTING STATE PROSECUTOR VELASCO’S AMENDED INFORMATION,
ISSUING A WARRANT OF ARREST, AND SETTING THE CASE BELOW FOR
ARRAIGNMENT, CONSIDERING THAT THE VALIDITY AND LEGALITY OF HIS
ORDERS DATED 24 AND 31 JANUARY 2007, WHICH LED TO THE
QUESTIONABLE REINVESTIGATION AND ILLEGAL AMENDED
INFORMATION[,] ARE YET TO BE RESOLVED BY THIS HONORABLE COURT
(sic); [AND]
CONSIDERING THAT PROSECUTOR VELASCO’S FINDINGS IN HIS
RESOLUTION DATED 2 FEBRUARY 2007 ARE BLATANTLY BASED ON
MERE SPECULATIONS AND CONJECTURES, WITHOUT ANY SUBSTANTIAL
OR MATERIAL NEW EVIDENCE BEING ADDUCED DURING THE
REINVESTIGATION, RESPONDENT JUDGE SHOULD HAVE AT LEAST
ALLOWED PETITIONER’S MOTION FOR A HEARING FOR JUDICIAL
DETERMINATION OF PROBABLE CAUSE.15 (emphasis in the original omitted)
153
Records show that the arraignment scheduled on March 21, 2007 pushed
through during which petitioner refused to plead, drawing the trial court to enter a
plea of "not guilty" for him.
Prior thereto or on February 23, 2007, petitioner filed an Urgent Application for
Admission to Bail Ex Abundanti Cautela16 which the trial court, after hearings
thereon, granted by Order of May 21, 2007,17 it finding that the evidence of guilt
for the crime of murder is not strong. It accordingly allowed petitioner to post bail
in the amount of P300,000 for his provisional liberty.
The trial court, absent any writ of preliminary injunction from the appellate court,
went on to try petitioner under the Amended Information. By Decision of January
14, 2009, the trial court found petitioner guilty of homicide, sentencing him to
suffer an indeterminate penalty of six years and one day of prision mayor as
minimum to 12 years and one day of reclusion temporal as maximum. From the
Decision, petitioner filed an appeal to the appellate court, docketed as CA-G.R.
CR No. 32159, during the pendency of which he filed an urgent application for
admission to bail pending appeal. The appellate court denied petitioner’s
application which this Court, in G.R. No. 189122, affirmed by Decision of March
17, 2010.
The Office of the Solicitor General (OSG) later argued that the present petition
had been rendered moot since the presentation of evidence, wherein petitioner
actively participated, had been concluded.18
Waiver on the part of the accused must be distinguished from mootness of the
petition, for in the present case, petitioner did not, by his active participation in
the trial, waive his stated objections.
Section 26, Rule 114 of the Rules of Court provides:
SEC. 26. Bail not a bar to objections on illegal arrest, lack of or irregular
preliminary investigation. – An application for or admission to bail shall not bar
the accused from challenging the validity of his arrest or the legality of the
warrant issued therefor, or from assailing the regularity or questioning the
absence of a preliminary investigation of the charge against him, provided that he
raises them before entering his plea. The court shall resolve the matter as early
as practicable but not later than the start of the trial of the case.
By applying for bail, petitioner did not waive his right to challenge the regularity of
the reinvestigation of the charge against him, the validity of the admission of the
Amended Information, and the legality of his arrest under the Amended
Information, as he vigorously raised them prior to his arraignment. During the
arraignment on March 21, 2007, petitioner refused to enter his plea since the

issues he raised were still pending resolution by the appellate court, thus
prompting the trial court to enter a plea of "not guilty" for him.
The principle that the accused is precluded after arraignment from questioning
the illegal arrest or the lack of or irregular preliminary investigation applies "only if
he voluntarily enters his plea and participates during trial, without previously
invoking his objections thereto."19 There must be clear and convincing proof that
petitioner had an actual intention to relinquish his right to question the existence
of probable cause. When the only proof of intention rests on what a party does,
his act should be so manifestly consistent with, and indicative of, an intent to
voluntarily and unequivocally relinquish the particular right that no other
explanation of his conduct is possible.20
From the given circumstances, the Court cannot reasonably infer a valid waiver
on the part of petitioner to preclude him from obtaining a definite resolution of the
objections he so timely invoked. Other than its allegation of active participation,
the OSG offered no clear and convincing proof that petitioner’s participation in
the trial was unconditional with the intent to voluntarily and unequivocally
abandon his petition. In fact, on January 26, 2010, petitioner still moved for the
early resolution of the present petition.21
Whatever delay arising from petitioner’s availment of remedies against the trial
court’s Orders cannot be imputed to petitioner to operate as a valid waiver on his
part. Neither can the non-issuance of a writ of preliminary injunction be deemed
as a voluntary relinquishment of petitioner’s principal prayer. The non-issuance of
such injunctive relief only means that the appellate court did not preliminarily find
any exception22 to the long-standing doctrine that injunction will not lie to enjoin a
criminal prosecution.23 Consequently, the trial of the case took its course.
The petition is now moot, however, in view of the trial court’s rendition of
judgment.
A moot and academic case is one that ceases to present a justiciable
controversy by virtue of supervening events, so that a declaration thereon would
be of no practical use or value.24
The judgment convicting petitioner of homicide under the Amended Information
for murder operates as a supervening event that mooted the present petition.
Assuming that there is ground25 to annul the finding of probable cause for
murder, there is no practical use or value in abrogating the concluded
proceedings and retrying the case under the original Information for homicide just
to arrive, more likely or even definitely, at the same conviction of homicide.
Mootness would have also set in had petitioner been convicted of murder, for
proof beyond reasonable doubt, which is much higher than probable cause,
would have been established in that instance.
154
Instead, however, of denying the petition outright on the ground of mootness, the
Court proceeds to resolve the legal issues in order to formulate controlling
principles to guide the bench, bar and public.26 In the present case, there is
compelling reason to clarify the remedies available before and after the filing of
an information in cases subject of inquest.
After going over into the substance of the petition and the assailed issuances, the
Court finds no reversible error on the part of the appellate court in finding no
grave abuse of discretion in the issuance of the four trial court Orders.
In his first assignment of error, petitioner posits that the prosecution has no right
under the Rules to seek from the trial court an investigation or reevaluation of the
case except through a petition for review before the Department of Justice (DOJ).
In cases when an accused is arrested without a warrant, petitioner contends that
the remedy of preliminary investigation belongs only to the accused.
The contention lacks merit.
Section 6,27 Rule 112 of the Rules of Court reads:
When a person is lawfully arrested without a warrant involving an offense which
requires a preliminary investigation, the complaint or information may be filed by
a prosecutor without need of such investigation provided an inquest has been
conducted in accordance with existing rules. In the absence or unavailability of
an inquest prosecutor, the complaint may be filed by the offended party or a
peace officer directly with the proper court on the basis of the affidavit of the
offended party or arresting officer or person.
Before the complaint or information is filed, the person arrested may ask for a
preliminary investigation in accordance with this Rule, but he must sign a waiver
of the provisions of Article 125 of the Revised Penal Code, as amended, in the
presence of his counsel. Notwithstanding the waiver, he may apply for bail and
the investigation must be terminated within fifteen (15) days from its inception.
After the filing of the complaint or information in court without a preliminary
investigation, the accused may, within five (5) days from the time he learns of its
filing, ask for a preliminary investigation with the same right to adduce evidence
in his defense as provided in this Rule. (underscoring supplied)
A preliminary investigation is required before the filing of a complaint or
information for an offense where the penalty prescribed by law is at least four
years, two months and one day without regard to fine.28 As an exception, the
rules provide that there is no need for a preliminary investigation in cases of a
lawful arrest without a warrant29 involving such type of offense, so long as an
inquest, where available, has been conducted. 30

Inquest is defined as an informal and summary investigation conducted by a
public prosecutor in criminal cases involving persons arrested and detained
without the benefit of a warrant of arrest issued by the court for the purpose of
determining whether said persons should remain under custody and
correspondingly be charged in court.31
It is imperative to first take a closer look at the predicament of both the arrested
person and the private complainant during the brief period of inquest, to grasp
the respective remedies available to them before and after the filing of a
complaint or information in court.
BEFORE THE FILING OF COMPLAINT OR INFORMATION IN COURT, the
private complainant may proceed in coordinating with the arresting officer and
the inquest officer during the latter’s conduct of inquest. Meanwhile, the arrested
person has the option to avail of a 15-day preliminary investigation, provided he
duly signs a waiver of any objection against delay in his delivery to the proper
judicial authorities under Article 125 of the Revised Penal Code. For obvious
reasons, this remedy is not available to the private complainant since he cannot
waive what he does not have. The benefit of the provisions of Article 125, which
requires the filing of a complaint or information with the proper judicial authorities
within the applicable period,32 belongs to the arrested person.
The accelerated process of inquest, owing to its summary nature and the
attendant risk of running against Article 125, ends with either the prompt filing of
an information in court or the immediate release of the arrested
person.33 Notably, the rules on inquest do not provide for a motion for
reconsideration.34
Contrary to petitioner’s position that private complainant should have appealed to
the DOJ Secretary, such remedy is not immediately available in cases subject of
inquest.
Noteworthy is the proviso that the appeal to the DOJ Secretary is by "petition by
a proper party under such rulesas the Department of Justice may
prescribe."35 The rule referred to is the 2000 National Prosecution Service Rule
on Appeal,36 Section 1 of which provides that the Rule shall "apply to appeals
from resolutions x x x in cases subject of preliminary investigation/
reinvestigation." In cases subject of inquest, therefore, the private party should
first avail of a preliminary investigation or reinvestigation, if any, before elevating
the matter to the DOJ Secretary.
In case the inquest proceedings yield no probable cause, the private complainant
may pursue the case through the regular course of a preliminary investigation.
155
ONCE A COMPLAINT OR INFORMATION IS FILED IN COURT, the rules yet
provide the accused with another opportunity to ask for a preliminary
investigation within five days from the time he learns of its filing. The Rules of
Court and the New Rules on Inquest are silent, however, on whether the private
complainant could invoke, as respondent heirs of the victim did in the present
case, a similar right to ask for a reinvestigation.
The Court holds that the private complainant can move for reinvestigation,
subject to and in light of the ensuing disquisition.
All criminal actions commenced by a complaint or information shall be
prosecuted under the direction and control of the public prosecutor. 37 The private
complainant in a criminal case is merely a witness and not a party to the case
and cannot, by himself, ask for the reinvestigation of the case after the
information had been filed in court, the proper party for that being the public
prosecutor who has the control of the prosecution of the case.38 Thus, in cases
where the private complainant is allowed to intervene by counsel in the criminal
action,39 and is granted the authority to prosecute,40 the private complainant, by
counsel and with the conformity of the public prosecutor, can file a motion for
reinvestigation.
In fact, the DOJ instructs that before the arraignment of the accused, trial
prosecutors must "examine the Information vis-à-vis the resolution of the
investigating prosecutor in order to make the necessary corrections or revisions
and to ensure that the information is sufficient in form and substance."41
x x x Since no evidence has been presented at that stage, the error would
appear or be discoverable from a review of the records of the preliminary
investigation. Of course, that fact may be perceived by the trial judge himself but,
again, realistically it will be the prosecutor who can initially determine the
same. That is why such error need not be manifest or evident, nor is it required
that such nuances as offenses includible in the offense charged be taken into
account. It necessarily follows, therefore, that the prosecutor can and should
institute remedial measures[.]42 (emphasis and underscoring supplied)
The prosecution of crimes appertains to the executive department of the
government whose principal power and responsibility is to see that our laws are
faithfully executed. A necessary component of this power to execute our laws is
the right to prosecute their violators. The right to prosecute vests the prosecutor
with a wide range of discretion – the discretion of what and whom to charge, the
exercise of which depends on a smorgasbord of factors which are best
appreciated by prosecutors.43
The prosecution’s discretion is not boundless or infinite, however. 44 The standing
principle is that once an information is filed in court, any remedial measure such

as a reinvestigation must be addressed to the sound discretion of the court.
Interestingly, petitioner supports this view.45 Indeed, the Court ruled in one case
that:
The rule is now well settled that once a complaint or information is filed in court,
any disposition of the case, whether as to its dismissal or the conviction or the
acquittal of the accused, rests in the sound discretion of the court. Although the
prosecutor retains the direction and control of the prosecution of criminal cases
even when the case is already in court, he cannot impose his opinion upon the
tribunal. For while it is true that the prosecutor has the quasi-judicial discretion to
determine whether or not a criminal case should be filed in court, once the case
had already been brought therein any disposition the prosecutor may deem
proper thereafter
should be addressed to the court for its consideration and approval. The only
qualification is that the action of the court must not impair the substantial rights of
the accused or the right of the People to due process of law.
xxxx
In such an instance, before a re-investigation of the case may be conducted by
the public prosecutor, the permission or consent of the court must be secured. If
after such re-investigation the prosecution finds a cogent basis to withdraw the
information or otherwise cause the dismissal of the case, such proposed course
of action may be taken but shall likewise be addressed to the sound discretion of
the court.46 (underscoring supplied)
While Abugotal v. Judge Tiro47 held that to ferret out the truth, a trial is to be
preferred to a reinvestigation, the Court therein recognized that a trial court
may, where the interest of justice so requires, grant a motion for reinvestigation
of a criminal case pending before it.
Once the trial court grants the prosecution’s motion for reinvestigation, the former
is deemed to have deferred to the authority of the prosecutorial arm of the
Government. Having brought the case back to the drawing board, the
prosecution is thus equipped with discretion – wide and far reaching – regarding
the disposition thereof,48 subject to the trial court’s approval of the resulting
proposed course of action.
Since a reinvestigation may entail a modification of the criminal information as
what happened in the present case, the Court’s holding is bolstered by the rule
on amendment of an information under Section 14, Rule 110 of the Rules of
Court:
156
A complaint or information may be amended, in form or in substance,
without leave of court, at any time before the accused enters his plea. After
the plea and during the trial, a formal amendment may only be made with leave
of court and when it can be done without causing prejudice to the rights of the
accused.
However, any amendment before plea, which downgrades the nature of the
offense charged in or excludes any accused from the complaint or information,
can be made only upon motion by the prosecutor, with notice to the offended
party and with leave of court. The court shall state its reasons in resolving the
motion and copies of its order shall be furnished all parties, especially the
offended party.
If it appears at any time before judgment that a mistake has been made in
charging the proper offense, the court shall dismiss the original complaint or
information upon the filing of a new one charging the proper offense in
accordance with section 11, Rule 119, provided the accused would not be placed
in double jeopardy. The court may require the witnesses to give bail for their
appearance at the trial. (emphasis supplied)
In fine, before the accused enters a plea, a formal or substantial amendment of
the complaint or information may be made without leave of court.49 After the entry
of a plea, only a formal amendment may be made but with leave of court and
only if it does not prejudice the rights of the accused. After arraignment, a
substantial amendment is proscribed except if the same is beneficial to the
accused.50
It must be clarified though that not all defects in an information are curable by
amendment prior to entry of plea. An information which is void ab initio cannot be
amended to obviate a ground for quashal.51 An amendment which operates to
vest jurisdiction upon the trial court is likewise impermissible.52
Considering the general rule that an information may be amended even in
substance and even without leave of court at any time before entry of plea, does
it mean that the conduct of a reinvestigation at that stage is a mere superfluity?
It is not.
Any remedial measure springing from the reinvestigation – be it a complete
disposition or an intermediate modification53 of the charge – is eventually
addressed to the sound discretion of the trial court, which must make an
independent evaluation or assessment of the merits of the case. Since the trial
court would ultimately make the determination on the proposed course of action,
it is for the prosecution to consider whether a reinvestigation is necessary to

adduce and review the evidence for purposes of buttressing the appropriate
motion to be filed in court.
More importantly, reinvestigation is required in cases involving a substantial
amendment of the information. Due process of law demands that no substantial
amendment of an information may be admitted without conducting another or a
new preliminary investigation. In Matalam v. The 2nd Division of the
Sandiganbayan,54 the Court ruled that a substantial amendment in an information
entitles an accused to another preliminary investigation, unless the amended
information contains a charge related to or is included in the original Information.
The question to be resolved is whether the amendment of the Information from
homicide to murder is considered a substantial amendment, which would make it
not just a right but a duty of the prosecution to ask for a preliminary investigation.
The Court answers in the affirmative.
A substantial amendment consists of the recital of facts constituting the
offense charged and determinative of the jurisdiction of the court. All other
matters are merely of form. The following have been held to be mere formal
amendments: (1) new allegations which relate only to the range of the
penalty that the court might impose in the event of conviction; (2) an amendment
which does not charge another offense different or distinct from that charged in
the original one; (3) additional allegations which do not alter the prosecution’s
theory of the case so as to cause surprise to the accused and affect the form of
defense he has or will assume; (4) an amendment which does not adversely
affect any substantial right of the accused; and (5) an amendment that
merely adds specifications to eliminate vagueness in the information and not to
introduce new and material facts, and merely states with additional precision
something which is already contained in the original information and which adds
nothing essential for conviction for the crime charged.
The test as to whether a defendant is prejudiced by the amendment is whether a
defense under the information as it originally stood would be available after the
amendment is made, and whether any evidence defendant might have would be
equally applicable to the information in the one form as in the other. An
amendment to an information which does not change the nature of the crime
alleged therein does not affect the essence of the offense or cause surprise or
deprive the accused of an opportunity to meet the new averment had each been
held to be one of form and not of substance.55 (emphasis and underscoring
supplied)
Matalam adds that the mere fact that the two charges are related does not
necessarily or automatically deprive the accused of his right to another
preliminary investigation. Notatu dignum is the fact that both the original
157
Information and the amended Information in Matalam were similarly charging the
accused with violation of Section 3(e) of the Anti-Graft and Corrupt Practices Act.
In one case,56 it was squarely held that the amendment of the Information from
homicide to murder is "one of substance with very serious consequences." 57 The
amendment involved in the present case consists of additional averments of the
circumstances of treachery, evident premeditation, and cruelty, which qualify the
offense charged from homicide to murder. It being a new and material element of
the offense, petitioner should be given the chance to adduce evidence on the
matter. Not being merely clarificatory, the amendment essentially varies the
prosecution’s original theory of the case and certainly affects not just the form but
the weight of defense to be mustered by petitioner.
The Court distinguishes the factual milieus in Buhat v. CA58 and Pacoy v.
Cajigal,59 wherein the amendment of the caption of the Information from homicide
to murder was not considered substantial because there was no real change in
the recital of facts constituting the offense charged as alleged in the body of the
Information, as the allegations of qualifying circumstances were already clearly
embedded in the original Information. Buhat pointed out that the original
Information for homicide already alleged the use of superior strength,
while Pacoy states that the averments in the amended Information for murder are
exactly the same as those already alleged in the original Information for
homicide. None of these peculiar circumstances obtains in the present case.
Considering that another or a new preliminary investigation is required, the fact
that what was conducted in the present case was a reinvestigation does not
invalidate the substantial amendment of the Information. There is no substantial
distinction between a preliminary investigation and a reinvestigation since both
are conducted in the same manner and for the same objective of determining
whether there exists sufficient ground to engender a well-founded belief that a
crime has been committed and the respondent is probably guilty thereof and
should be held for trial.60 What is essential is that petitioner was placed on guard
to defend himself from the charge of murder61 after the claimed circumstances
were made known to him as early as the first motion.
Petitioner did not, however, make much of the opportunity to present
countervailing evidence on the proposed amended charge. Despite notice of
hearing, petitioner opted to merely observe the proceedings and declined to
actively participate, even with extreme caution, in the reinvestigation. Mercado v.
Court of Appeals states that the rules do not even require, as a condition sine
qua non to the validity of a preliminary investigation, the presence of the
respondent as long as efforts to reach him were made and an opportunity to
controvert the complainant’s evidence was accorded him.62

In his second assignment of error, petitioner basically assails the hurried
issuance of the last two assailed RTC Orders despite the pendency before the
appellate court of the petition for certiorari challenging the first two trial court
Orders allowing a reinvestigation.
The Rules categorically state that the petition shall not interrupt the course of the
principal case unless a temporary retraining order or a writ of preliminary
injunction has been issued.63 The appellate court, by Resolution of February 15,
2007,64 denied petitioner’s application for a temporary restraining order and writ
of preliminary injunction. Supplementary efforts to seek injunctive reliefs proved
futile.65 The appellate court thus did not err in finding no grave abuse of
discretion on the part of the trial court when it proceeded with the case and
eventually arraigned the accused on March 21, 2007, there being no injunction
order from the appellate court. Moreover, petitioner opted to forego appealing to
the DOJ Secretary, a post-inquest remedy that was available after the
reinvestigation and which could have suspended the arraignment. 661avvphi1
Regarding petitioner’s protestations of haste, suffice to state that the pace in
resolving incidents of the case is not per se an indication of bias. In Santos-
Concio v. Department of Justice,67 the Court held:
Speed in the conduct of proceedings by a judicial or quasi-judicial officer
cannot per se be instantly attributed to an injudicious performance of functions.
For one’s prompt dispatch may be another’s undue haste. The orderly
administration of justice remains as the paramount and constant consideration,
with particular regard of the circumstances peculiar to each case.
The presumption of regularity includes the public officer’s official actuations in all
phases of work. Consistent with such presumption, it was incumbent upon
petitioners to present contradictory evidence other than a mere tallying of days or
numerical calculation. This, petitioners failed to discharge. The swift completion
of the Investigating Panel’s initial task cannot be relegated as shoddy or shady
without discounting the presumably regular performance of not just one but five
state prosecutors.68
There is no ground for petitioner’s protestations against the DOJ Secretary’s
sudden designation of Senior State Prosecutor Emmanuel Velasco as Acting City
Prosecutor of Makati City for the present case69 and the latter’s conformity to the
motion for reinvestigation.
In granting the reinvestigation, Judge Alameda cannot choose the public
prosecutor who will conduct the reinvestigation or preliminary
investigation.70 There is a hierarchy of officials in the prosecutory arm of the
executive branch headed by the Secretary of Justice71 who is vested with the
prerogative to appoint a special prosecutor or designate an acting prosecutor to
158
handle a particular case, which broad power of control has been recognized by
jurisprudence.72
As for the trial court’s ignoring the DOJ Secretary’s uncontested statements to
the media which aired his opinion that if the assailant merely intended to maim
and not to kill the victim, one bullet would have sufficed — the DOJ Secretary
reportedly uttered that "the filing of the case of homicide against ano against
Leviste lintek naman eh I told you to watch over that case… there should be a
report about the ballistics, about the paraffin, etc., then that’s not a complete
investigation, that’s why you should use that as a ground" — no abuse of
discretion, much less a grave one, can be imputed to it.
The statements of the DOJ Secretary do not evince a "determination to file the
Information even in the absence of probable cause."73 On the contrary, the
remarks merely underscored the importance of securing basic investigative
reports to support a finding of probable cause. The original Resolution even
recognized that probable cause for the crime of murder cannot be determined
based on the evidence obtained "[u]nless and until a more thorough investigation
is conducted and eyewitness/es [is/]are presented in evidence[.]"74
The trial court concluded that "the wound sustained by the victim at the back of
his head, the absence of paraffin test and ballistic examination, and the handling
of physical evidence,"75 as rationalized by the prosecution in its motion, are
sufficient circumstances that require further inquiry.
That the evidence of guilt was not strong as subsequently assessed in the bail
hearings does not affect the prior determination of probable cause because, as
the appellate court correctly stated, the standard of strong evidence of guilt which
is sufficient to deny bail to an accused is markedly higher than the standard of
judicial probable cause which is sufficient to initiate a criminal case. 76
In his third assignment of error, petitioner faults the trial court for not conducting,
at the very least, a hearing for judicial determination of probable cause,
considering the lack of substantial or material new evidence adduced during the
reinvestigation.
Petitioner’s argument is specious.
There are two kinds of determination of probable cause: executive and
judicial. The executive determination of probable cause is one made during
preliminary investigation. It is a function that properly pertains to the public
prosecutor who is given a broad discretion to determine whether probable cause
exists and to charge those whom he believes to have committed the crime as
defined by law and thus should be held for trial. Otherwise stated, such official
has the quasi-judicial authority to determine whether or not a criminal case must

be filed in court. Whether that function has been correctly discharged by the
public prosecutor, i.e., whether he has made a correct ascertainment of the
existence of probable cause in a case, is a matter that the trial court itself does
not and may not be compelled to pass upon.77
The judicial determination of probable cause is one made by the judge to
ascertain whether a warrant of arrest should be issued against the accused. The
judge must satisfy himself that based on the evidence submitted, there is
necessity for placing the accused under custody in order not to frustrate the ends
of justice. If the judge finds no probable cause, the judge cannot be forced to
issue the arrest warrant.78 Paragraph (a), Section 5,79Rule 112 of the Rules of
Court outlines the procedure to be followed by the RTC.
To move the court to conduct a judicial determination of probable cause is a
mere superfluity, for with or without such motion, the judge is duty-bound to
personally evaluate the resolution of the public prosecutor and the supporting
evidence. In fact, the task of the presiding judge when the Information is filed with
the court is first andforemost to determine the existence or non-existence of
probable cause for the arrest of the accused.80
What the Constitution underscores is the exclusive and personal responsibility of
the issuing judge to satisfy himself of the existence of probable cause. But the
judge is not required to personally examine the complainant and his
witnesses. Following established doctrine and procedure, he shall (1) personally
evaluate the report and the supporting documents submitted by the prosecutor
regarding the existence of probable cause, and on the basis thereof, he may
already make a personal determination of the existence of probable cause; and
(2) if he is not satisfied that probable cause exists, he may disregard the
prosecutor’s report and require the submission of supporting affidavits of
witnesses to aid him in arriving at a conclusion as to the existence of probable
cause.81 (emphasis and underscoring supplied)
The rules do not require cases to be set for hearing to determine probable cause
for the issuance of a warrant of arrest of the accused before any warrant may be
issued.82 Petitioner thus cannot, as a matter of right, insist on a hearing for
judicial determination of probable cause. Certainly, petitioner "cannot determine
beforehand how cursory or exhaustive the [judge's] examination of the records
should be [since t]he extent of the judge’s examination depends on the exercise
of his sound discretion as the circumstances of the case require."83 In one case,
the Court emphatically stated:
The periods provided in the Revised Rules of Criminal Procedure are mandatory,
and as such, the judge must determine the presence or absence of probable
cause within such periods. The Sandiganbayan’s determination of probable
cause is made ex parte and is summary in nature, not adversarial. The Judge
159
should not be stymied and distracted from his determination of probable
cause by needless motions for determination of probable cause filed by the
accused.84 (emphasis and underscoring supplied)
Petitioner proceeds to discuss at length evidentiary matters, arguing that no
circumstances exist that would qualify the crime from homicide to murder.
The allegation of lack of substantial or material new evidence deserves no
credence, because new pieces of evidence are not prerequisites for a valid
conduct of reinvestigation. It is not material that no new matter or evidence was
presented during the reinvestigation of the case. It should be stressed that
reinvestigation, as the word itself implies, is merely a repeat investigation of the
case. New matters or evidence are not prerequisites for a reinvestigation, which
is simply a chance for the prosecutor to review and re-evaluate its findings and
the evidence already submitted.85
Moreover, under Rule 45 of the Rules of Court, only questions of law may be
raised in, and be subject of, a petition for review on certiorari since this Court is
not a trier of facts. The Court cannot thus review the evidence adduced by the
parties on the issue of the absence or presence of probable cause, as there
exists no exceptional circumstances to warrant a factual review. 86
In a petition for certiorari, like that filed by petitioner before the appellate court,
the jurisdiction of the court is narrow in scope. It is limited to resolving only errors
of jurisdiction.1avvphi1 It is not to stray at will and resolve questions and issues
beyond its competence, such as an error of judgment.87 The court’s duty in the
pertinent case is confined to determining whether the executive and judicial
determination of probable cause was done without or in excess of jurisdiction or
with grave abuse of discretion. Although it is possible that error may be
committed in the discharge of lawful functions, this does not render the act
amenable to correction and annulment by the extraordinary remedy of certiorari,
absent any showing of grave abuse of discretion amounting to excess of
jurisdiction.88
WHEREFORE, the petition is DENIED. The assailed Decision and Resolution of
the Court of Appeals in CA-G.R. SP No. 97761 are AFFIRMED.
SO ORDERED.
CONCHITA CARPIO MORALES
Associate Justice
Chairperson
WE CONCUR:

G.R. No. 118435 June 20, 1997
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
MARIO SERZO, JR., accused-appellant.
PANGANIBAN, J.:
The right to counsel of an accused is guaranteed by our Constitution, our laws
and our Rules of Court. During custodial investigation, arraignment, trial and
even on appeal, the accused is given the option to be represented by a counsel
of his choice. But when he neglects or refuses to exercise this option during
arraignment and trial, the court shall appoint one for him. While the right to be
represented by counsel is absolute, the accused's option to hire one of his own
choice is limited. Such option cannot be used to sanction reprehensible dilatory
tactics, to trifle with the Rules or to prejudice the equally important rights of the
state and the offended party to speedy and adequate justice.
This will be amplified in this appeal seeking the reversal of the August 23, 1994
Decision of the Regional Trial Court of Antipolo, Rizal, Branch 72, 1 in Criminal
Case No. 90-5997 convicting Appellant Mario Serzo, Jr. of murder under Article
248 of the Revised Penal Code.
Appellant was charged with murder in an Information dated September 4, 1990
filed by Rizal Assistant Provincial Prosecutor Filipinas Z. Aguilar-Ata, worded as
follows: 2
That on or about the 22nd day of August, 1990, in the
Municipality of Antipolo, Province of Rizal, Philippines, and within
the jurisdiction of this Honorable Court, the above-named
accused, armed with bladed weapon, with intent to kill, with
treachery, did then and there willfully, unlawfully and feloniously
attack, assault and stab one Alfredo Alcantara y Casabal at the
back, thereby inflicting upon him stab wounds which directly
caused his death.
Thereafter, pre-trial was waived and the case proceeded to trial on the merits.
After arraignment and trial, appellant was found guilty as charged and sentenced
thus: 3
WHEREFORE, on the basis of the foregoing, the Court finds
accused GUILTY BEYOND REASONABLE DOUBT of having
committed the crime of MURDER and as prescribed under
160
Article 248 of the Revised Penal Code, hereby sentences
accused to suffer the penalty of reclusion perpetua and to
indemnify the victim's wife in the amount of FIFTY THOUSAND
PESOS (P50,000.00) as actual damages and TWENTY FIVE
THOUSAND PESOS (P25,000.00) as moral damages and costs.
The Antecedents
Summarizing the testimonies of Adelaida Alcantara (the victim's widow), Medico-
Legal Officer Dario L. Gajardo and Epifania Andrade, the trial court found the
following facts: 4
Alfredo Alcantara Y Casabal never knew that death was just
around the corner inevitably meeting his way. That fateful night
of August 22, 1990, Alfredo together with his wife Adelaida
Alcantara were (sic) staying inside their house comfortably
watching television when at around 11:30 in the evening, Susana
Serzo, mother of the accused, and one Epifania Bentilacion
came knocking at their doorsteps and pleading for help to bring
out her grandchildren who were being held inside their house by
her son, the accused in this case. Unhesitatingly, the couple
heeded their call and went with them at (sic) their house, located
just across the private complainant's residence. The spouses
were able to rescue the grandchildren and to bring them to a
safer place. When returning to their house, Alfredo Alcantara
who was walking just armslength ahead of his wife, was attacked
by accused Mario Serzo from behind. Accused stabbed Alfredo
at his back forcing the latter to scamper for his dear life.
However, accused was able to overpower him thereby causing
his fall in the canal where he was repeatedly stabbed by the
accused. Adelaida Alcantara shouted for help but was likewise
attacked by the accused as she was only half-meter away from
her husband. However, Adelaida fortunately was able to hold the
hand of the knifewielder and persistently fought the accused. (p.
05 TSN June 3, 1991) At that moment, the commotion had
already caught the attention of the residents within the vicinity
who responded to help her thereby causing the accused to flee.
The victim Alfredo Alcantara, who remained lying and motionless
in the canal, was rushed to the hospital where he was confirmed
dead. (p. 06 TSN June 3, 1991) The Medico-legal Officer, Dr.
Dario Gajardo, testified in Court that the victim sustained three
(3) stab wounds, two at the back and one in his chest, which
instantaneously caused the victim's death. (p. 04 TSN May 13,
1991)

In view of appellant's allegation that he was denied his right to counsel, a
narration of the proceedings before the trial court is now in order. Arraignment
was set by the trial court on January 8, 1991, during which appellant appeared
without counsel. Consequently, the trial court appointed Atty. Wilfredo Lina-ac as
counsel de oficio for the arraignment only. Appellant, however, moved that the
arraignment be reset and that he be given time to engage a counsel of his own
choice, which the trial court granted. 5
On February 11, 1991, appellant appeared without a counsel de parte. He was
nonetheless arraigned with the assistance of Counsel de oficio Wilfredo Lina-
ac. 6 He pleaded "not guilty." Pre-trial was waived and trial was set on April 22,
May 6 and 13, 1991 for the reception of the prosecution evidence and June 3
and 17, 1991 for the defense.
The hearings scheduled on April 22, 1991 and May 6, 1991 were cancelled on
motion of Public Prosecutor Robert H. Tobia. 7 On both dates, appellant
appeared with Atty. Lina-ac. On May 13 and June 3, 1991, trial proceeded with
the testimonies of prosecution witnesses. On behalf of appellant, Atty. Lina-ac
cross-examined the said witnesses.
On June 17, 1991, trial was again cancelled as appellant appeared without
counsel. 8 On August 13, 1991, the prosecution rested its case. 9
On November 4 and 11, 1991, presentation of evidence for the defense was
reset as appellant was not ready to testify 10 and he manifested his intention to
secure the services of a counsel de parte. 11 On March 3, 1992, Atty. Lina-ac was
relieved as counsel de oficio in view of appellant's manifestation and refusal to
cooperate with said counsel. 12 On April 6, 1992 appellant appeared without
counsel, forcing the trial court to appoint another counsel de oficio, Bella
Antonano. Counsels for both parties agreed to reset the trial, but appellant
refused to sign the minutes of the proceedings. 13
On April 27, 1992, 14 over vehement objection from the prosecution, hearing was
reset for the last time as appellant was still looking for a counsel de parte. 15 On
August 25, 1992, appellant appeared without counsel; thus, the trial court
appointed Atty. Bonifacia Garcia of the Public Attorney's Office (PAO) as
appellant's counsel de oficio. Again, trial was postponed. 16 On September 1 and
October 19, 1992, trial was postponed on motion of Atty. Garcia. 17 Appellant
again refused to sign the minutes of the proceedings for both trial dates. On
November 5, 1992, appellant refused to cooperate with Atty. Garcia by declining
to take the witness stand, forcing the defense to rest its case. 18 Both parties
were ordered to submit their respective memoranda in ten days, after which the
case would be submitted for decision. Atty. Garcia was further ordered to
manifest within the same period whether appellant would change his mind and
161
cooperate with her. No memorandum or manifestation was ever filed by
appellant.
Appellant wrote Judge Angeles three times within the period beginning
December 16, 1992 until April 2, 1993, seeking legal advice and the early
resolution of the case. Branch Clerk of Court Melchisedek A. Guan replied to him
twice, informing him that Judge Angeles was prohibited by law from giving legal
advice to litigants in cases pending in his court and that a decision was
forthcoming. On July 13, 1994, appellant wrote Deputy Court Administrator
Reynaldo L. Suarez, asking for the early resolution of his case. 19 The latter
referred said letter to Judge Angeles for appropriate action.
Thereafter, the assailed Decision convicting appellant of murder was
promulgated on August 23, 1994.
Ruling of the Trial Court
In its Decision, the trial court noted that appellant simply refused to secure the
services of a counsel de parte and to present evidence in his defense despite
ample opportunity accorded to him. Said the trial court:
The defense particularly the accused assisted by counsel
however refused to present any evidence despite several
opportunities afforded by the Court. As early as the arraignment
stage, accused refused to be assisted by a counsel de
oficio from the Public Attorney's Office (PAO) insisting that he be
assisted by a counsel of his own choice. For several settings,
accused and her (sic) mother were allowed to secure the
services of a counsel de parte. However, they failed to present
one. Hence, the Court, to avoid further delay in the proceedings
of the case, was constrained to assign a counsel de oficio from
the PAO.
During the presentation of evidence for the defense, accused
and counsel could not present any witness as accused refused
to cooperate and to testify in Court. Hence, the defense waived
its right to present any evidence.
Considering that this case has been dragging for several years
already . . . the court . . . afforded the defense another
opportunity to present its case by submitting its memorandum
simultaneously with the Prosecution. Thereafter, the case was
submitted for decision. 20

Consequently, the trial court convicted appellant on the basis of the evidence
presented by the prosecution. Appellant was positively identified as the assailant
by the widow, Adelaida Alcantara, who survived his attack. In her distinct and
vivid narration of the sequence of events leading to the murder, she showed that
the attack was treacherous as the victim was stabbed at the back and without
warning.
Not satisfied with the trial court's Decision, appellant through Counsel Carmelo L.
Arcilla 21 appealed to this Court.
Assignment of Errors
In his Brief filed by Atty. Arcilla, appellant questions his conviction for murder
based on the following alleged errors on the part of the trial court: 22
I
The lower court erred in not giving the defendant-appellant time
to engage counsel of his own choice.
II
The lower court erred in not affording the defendant-appellant
the chance to present evidence for his defense.
III
The lower court erred in not acquitting the defendant-appellant.
Mainly, appellant alleges that he had been denied effective legal representation.
His thesis is that the trial court did not give him enough time to engage a
counsel de parte, effectively depriving him of the chance to present evidence in
his defense. In fact, the scant five-page Appellant's Brief was dedicated entirely
to this argument without contesting the facts found by the trial court.
The Court's Ruling
The right of an accused to counsel is guaranteed by the Constitution, the
supreme law of the land. This right is granted to minimize the imbalance in the
adversarial system where the accused is pitted against the awesome prosecutory
machinery of the state. In the words of Justice Black, 23 this is a "recognition . . .
that an average (accused) does not have the professional skill to protect himself .
. . before a tribunal with power to take his life or liberty, wherein
the (prosecutor) is . . . an experienced and learned counsel." In Powell
162
vs. Alabama, 24 Mr. Justice Sutherland wrote at greater length on why an
accused needs a competent counsel:
Even the intelligent and educated layman has small and
sometimes no skill in the science of law. If charged with crime,
he is incapable, generally, of determining for himself whether the
indictment is good or bad. He is unfamiliar with the rules of
evidence. Left without the aid of counsel he may be put on trial
without a proper charge, and convicted upon incompetent
evidence, or evidence irrelevant to the issue or otherwise
inadmissible. He lacks both the skill and knowledge adequately
to prepare his defense, even though he has a perfect one. He
requires the guiding hand of counsel at every step in the
proceedings against him. Without it, though he be not guilty, he
faces the danger of conviction because he does not know how to
establish his innocence.
The right covers the period beginning from custodial investigation, well into the
rendition of judgment, 25 and even on appeal. Article III of the 1987 Constitution
provides this right to an accused not only during trial but even before an
information is filed. It provides:
Sec. 12. (1) Any person under investigation for the commission
of an offense shall have the right to be informed of his right to
remain silent and to have competent and independent counsel
preferably of his own choice. If the person cannot afford the
services of counsel, he must be provided with one. These rights
cannot be waived except in writing and in the presence of
counsel.
Sec. 14 (1) No person shall be held to answer for a criminal
offense without due process of law.
(2) In all criminal prosecutions, the accused shall be presumed
innocent until the contrary is proved, and shall enjoy the right to
be heard by himself and counsel, . . .
With these precepts as springboard, the Rules of Court grants an accused the
right to counsel under the following provisions, viz.:
RULE 112
PRELIMINARY INVESTIGATION
xxx xxx xxx

Sec. 7. When accused lawfully arrested without warrant. — . . .
However, before the filing of such complaint or information, the
person arrested may ask for a preliminary investigation by a
proper officer in accordance with this Rule, but he must sign a
waiver of the provisions of Article 125 of the Revised Penal
Code, as amended, with the assistance of a lawyer and in case
of non-availability of a lawyer, a responsible person of his choice.
....
xxx xxx xxx
RULE 113
ARREST
Even on appeal, the accused is still afforded the right to counsel under Rule
122: 26
Sec. 14. Right of attorney or relative to visit person arrested. —
Any member of the bar shall, at the request of the person
arrested or of another acting in his behalf, have the right to visit
and confer privately with such person, in the jail or any other
place of custody at any hour of the day or, in urgent cases, of the
night. This right shall also be exercised by any relative of the
person arrested subject to reasonable regulation.
Rule 115
RIGHTS OF ACCUSED
The foregoing is buttressed by another provision in Rule 124:
Sec. 1. Rights of accused at the trial.— In all criminal
prosecutions, the accused shall be entitled:
xxx xxx xxx
(c) To be present and defend in person and by counsel at every
stage of the proceedings, from the arraignment to the
promulgation of the judgment. . . . .
xxx xxx xxx
Rule 116 of the Rules of Court makes it compulsory that the trial court inform the
accused of his right to counsel prior to arraignment, thus:
Sec. 6. Duty of court to inform accused of his right to counsel. —
Before arraignment, the court shall inform the accused of his
163
right to counsel and shall ask him if he desires to have one.
Unless the accused is allowed to defend himself in person, or he
has employed counsel of his choice, the court must assign a
counsel de oficio to defend him.
Sec. 7. Appointment of counsel de oficio. — The court,
considering the gravity of the offense and the difficulty of the
questions that may arise, shall appoint as counsel de oficio only
such members of the bar in good standing who, by reason of
their experience and ability may adequately defend the accused.
But in localities where such members of the bar are not
available, the court may appoint any person, resident of the
province and of good repute for probity and ability, to defend the
accused.
Sec. 13. Appointment of counsel de oficio for accused on appeal.
— It shall be the duty of the clerk of the trial court upon the
presentation of a notice of appeal in a criminal case, to ascertain
from the appellant, if he be confined in prison, whether he
desires the Court of Appeals or the Supreme Court to appoint a
counsel to defend him de oficio and to transmit with the record,
upon a form to be prepared by the clerk of the appellate court, a
certificate of compliance with this duty and of the response of the
appellant to his inquiry.
Sec. 2. Appointment of counsel de oficio for the accused. — If it
appears from the record of the case as transmitted: (a) that the
accused is confined in prison, (b) without counsel de parte on
appeal, and (c) signed the notice of appeal himself, then the
clerk of the Court of Appeals shall designate a member of the
bar to defend him, such designation to be made by rotation,
unless otherwise directed by order of the court.
An accused-appellant not confined in prison shall not be entitled
to a counsel de oficio, unless the appointment of such counsel is
requested in the appellate court within ten (10) days from receipt
of the notice to file brief and the right thereto is established by
affidavit.

Recently, Republic Act No. 7438 was enacted providing, inter alia, that any
person arrested, detained or under custodial investigation shall at all times be
assisted by counsel.
A deprivation of the right to counsel divests the accused of an equality in arms
resulting in the denial of a level playing field, so to speak. In a previous case, this
Court held that an accused was deprived of his right to counsel when he retained
the services of a person who misrepresented himself as a lawyer. 27 In People
vs. Malunsing, 28retrial was ordered on the ground that petitioner was denied his
constitutional right to counsel. Very old and unlettered, he was shown not to have
understood what was going on during the trial. In said case, although the lawyer
of his co-accused was appointed as his counsel, petitioner was not properly
apprised by said court of his right to be assisted by counsel. No evidence was
presented for and on his behalf and the trial court did not even bother to inquire
why he did not take the witness stand when all the other defendants were
presented as witnesses.
This is the legal backdrop against which appellant's allegation of deprivation of
his right to counsel shall be measured.
Right to Counsel De Parte Is Not Absolute
Accordingly, an accused may exercise his right to counsel by electing to be
represented either by a court-appointed lawyer or by one of his own choice.
While his right to be represented by counsel is immutable, his option to secure
the services of counsel de parte, however, is not absolute. The court is obliged to
balance the privilege to retain a counsel of choice against the states's and the
offended party's equally important right to speedy and adequate justice. Thus,
the court may restrict the accused's option to retain a counsel de parte if the
accused insists on an attorney he cannot afford, or the chosen counsel is not a
member of the bar, or the attorney declines to represent the accused for a valid
reason, e.g. conflict of interest and the like. 29
Also, the right to counsel de parte is, like other personal rights,
waivable 30 so long as (1) the waiver is not contrary to law, public order, public
policy, morals or good customs; or prejudicial to a third person with a right
recognized by law 31 and (2) the waiver is unequivocally, knowingly and
intelligently made. 32
In Sayson vs. People, 33 this Court held that the duty of the court to appoint a
counsel de oficio is not mandatory where the accused has proceeded with the
arraignment and the trial with a counsel of his choice but, when the time for the
presentation of the evidence for the defense was due, he appears by himself
alone because of the inexcusable absence of his counsel. In another case, this
Court held that the right to be heard and to reopen the case (and send it to trial
164
anew) could not be allowed if doing so would sanction a plainly dilatory tactic and
a reprehensible trifling with the orderly administration of justice. 34
In the present case, appellant claims that he was not given sufficient time to
engage a counsel de parte, thereby preventing him from presenting evidence in
his defense. In his Brief he adds, but without giving particulars or proof, that
allegedly his counsels de oficio did not exert their "utmost efforts" in representing
him, thus: 35
. . . (T)he lower court afforded the accused the assistance of
counsel de oficio as early as the arraignment stage but failed to
show that utmost efforts were exerted by said counsel to defend
the life and liberty of the accused. The duty of the court is not
ended with such appointment, however, as it should also see to
it that the counsel does his duty by the defendant. Counsel de
oficio should not merely make the motions of defending the
accused but exert his utmost efforts as if he were representing a
paying client.
The Solicitor General, in his eleven-page Brief, 36 rebuts this, arguing that
appellant's actions during the trial showed instead a "lackadaisical stance on his
own defense."
Appellant had been given ample time to secure the services of a counsel de
parte, but his subsequent appearances in court without such counsel and his act
of allowing this situation to continue until the presentation of his evidence betrays
his lack of intention to do so. It even appears that he was merely delaying his
own presentation of evidence on purpose to the prejudice of the offended party,
the trial court and the orderly administration of justice.
Furthermore, appellant did not demonstrate in what way the services of his
counsels de oficio were unsatisfactory. He did not cite any instance
substantiating his claim that he was not effectively represented. In short, he was
afforded a chance to be heard by counsel of his own choice, but by his own
neglect or mischief, he effectively waived such right. It taxes the mind to think
that, almost two years 37 since appellant first invoked his right to be represented
by counsel de parte, he still could not find one who would suit his needs and
desires. Neither did he cooperate with his court-named lawyers.
The facts of this case do not constitute a deprivation of appellant's constitutional
right to counsel because he was adequately represented by three court-
appointed lawyers: Atty. Lina-ac, Atty. Antonano and Atty. Garcia. Courts are not
required to await indefinitely the pleasure and convenience of the accused as
they are also mandated to promote the speedy and orderly administration of
justice. Nor should they countenance such an obvious trifling with the rules.
 165

Indeed, public policy requires that the trial continue as scheduled, considering Q: What was the help she was asking Mrs.
that appellant was adequately represented by counsels who were not shown to witness?
be negligent, incompetent or otherwise unable to represent him.
xxx xxx xxx
Crime and Punishment
A: She was asking to help her children being
In spite of appellant's failure, either through negligence or unreasonable refusal, held by Mario Serzo by not letting them go out of
to impute errors to the assailed Decision — other than the alleged violation of his the house.
right to counsel — this Court nonetheless scoured the records of the trial,
perused the transcripts of the testimony of the witnesses for the prosecution, xxx xxx xxx
evaluated the evidence and examined the applicable laws and jurisprudence to
determine the correctness of the trial court's Decision. We, however, find no Q: Were you able to help the grandchildren of
cogent reason to reverse the conviction of appellant. In a case of murder or
Suzana Serzo?
homicide, it is enough that the death of the victim and the responsibility of the
person who caused such death are proven 38beyond reasonable doubt. Both
elements were duly established by the prosecution witnesses. Dr. Gajardo A: Yes, sir.
testified to the fact of death while Widow Adelaida Alcantara positively identified
the appellant as the assailant. Q: And after you help (sic) them what happened
next?
Based on the facts established by the prosecution which remain uncontested, the
Court affirms the trial court's appreciation of the qualifying circumstance of A: We brought them to where they could hide
treachery. To constitute treachery, two conditions must concur: (1) the and then we went home.
employment of means of execution that gives the person attacked no opportunity
to defend himself or to retaliate and (2) deliberate or conscious adoption of the Q: You said you heard somebody approaching
means of execution. 39 The manner of the attack itself is proof enough you at the back through the sound of his
of alevosia. Widow Adelaida vividly described the stabbing as footsteps is that right?
follows: 40
A: Yes, sir.
Q: And you said a certain Suzana Serzo
together with one Epifania Bentilacion came to xxx xxx xxx
your house and asked for help from you, is that
right?
Q: What happened next after you hear (sic)
those footsteps at your back?
A: Yes, sir.
A: My husband was just beside me.
Q: And that you responded for help Mrs.
witness?
Q: And immediately your husband was stabbed
by the accused?
A: Yes, sir.
A: Yes, sir.
Q: And you are together with your husband in
helping Suzana Serzo?
From this testimony, it appears that appellant waited for the victim and his wife
and pounced on them swiftly and without warning. The victim and his wife were
A: Yes, sir. already on their way home after transferring appellant's children to a safe place.

They were unarmed as they had absolutely no idea that appellant would attack
them right then and from behind. The manner of the attack tended directly and
especially to insure the execution of the crime without risk to appellant and
virtually no chance for the victim to defend himself. 41 Even Adelaida's life would
have been mortally threatened were it not for the timely intervention of her
neighbors.
Damages and Indemnity
Actual and moral damages require the presentation of proof before they can be
awarded by the trial court. 42According to Adelaida, burial expenses in the
amount of P2,000.00 were incurred. 43 This is separate and distinct from civil
indemnity awarded under prevailing jurisprudence, which is granted without
further proof beyond the fact of death and the accused's responsibility therefor.
Moral damages were not discussed at all in Adelaida's testimony. Hence, without
any factual basis, the award of moral damages is not justified.
WHEREFORE, the assailed Decision is hereby AFFIRMED, but the award of
moral damages is DELETED. Instead, appellant is ORDERED TO PAY the
amount of P50,000.00 as civil indemnity and actual damages of P2,000.00 as
burial expenses.
SO ORDERED.
G.R. No. 160739 July 17, 2013
ANITA MANGILA, Petitioner,
vs.
JUDGE HERIBERTO M. PANGILINAN, ASST. CITY PROSECUTOR II LUCIA
JUDY SOLINAP, and NATIONAL BUREAU OF INVESTIGATION (DIRECTOR
REYNALDO WYCOCO), Respondents.
DECISION
BERSAMIN, J.:
Restraint that is lawful and pursuant to a court process cannot be inquired into
through habeas corpus.
Antecedents
On June 16, 2003, seven criminal complaints charging petitioner Anita Mangila
and four others with syndicated estafa in violation of Article 315 of the Revised
Penal Code, in relation to Presidential Decree No. 1689, and with violations of
166
Section 7(b) of Republic Act No. 8042 (Migrant Workers and Overseas Filipino
Act of 1995) were filed in the Municipal Trial Court in Cities in Puerto Princesa
City (MTCC), docketed as Criminal Cases No. 16916 to No. 16922. The
complaints arose from the recruiting and promising of employment by Mangila
and the others to the private complainants as overseas contract workers in
Toronto, Canada, and from the collection of visa processing fees, membership
fees and on-line application the private complainants without lawful authority from
the Philippine Overseas Employment Administration (POEA).1
On the following day, June 17, 2003, Judge Heriberto M. Pangilinan, Presiding
Judge of the MTCC, conducted a preliminary investigation on the complaints.
After examining Miguel Aaron Palayon, one of the complainants, Judge
Pangilinan issued a warrant for the arrest of Mangila and her cohorts without
bail.2 On the next day, the entire records of the cases, including the warrant of
arrest, were transmitted to the City Prosecutor of Puerto Princesa City for further
proceedings and appropriate action in accordance with the prevailing rules. 3
As a consequence, Mangila was arrested on June 18, 2003 and detained at the
headquarters on Taft Avenue, Manila of the National Bureau of Investigation
(NBI).4
Claiming that Judge Pangilinan did not have the authority to conduct the
preliminary investigation; that the preliminary investigation he conducted was not
yet completed when he issued the warrant of arrest; and that the issuance of the
warrant of arrest was without sufficient justification or without a prior finding of
probable cause, Mangila filed in the Court of Appeals (CA)a petition for habeas
corpus to obtain her release from detention. Her petition averred that the remedy
of habeas corpus was available to her because she could no longer file a motion
to quash or a motion to recall the warrant of arrest considering that Judge
Pangilinan had already forwarded the entire records of the case to the City
Prosecutor who had no authority to lift or recall the warrant. 5
In its resolution promulgated on October 14, 2003,6 the CA denied the petition for
habeas corpus for its lack of merit, explaining:
As a general rule, a writ of habeas corpus will not be granted where relief may be
had or could have been procured by resort to another general remedy. As
pointed out in Luna vs. Plaza, if petitioner is detained by virtue of a warrant of
arrest, which is allegedly invalid, the remedy available to her is not a petition for
habeas corpus but a petition to quash the warrant of arrest or a petition for a
reinvestigation of the case by the Municipal Judge or by the Provincial Fiscal.
Section 5, Rule 112 of the Revised Rules of Criminal Procedure provides that the
Municipal Judge who conducted the preliminary investigation shall transmit his
resolution, together with the record of the case, including the warrant of arrest, to

the Provincial Prosecutor, who shall review the same and order the release of an
accused who is detained if no probable cause is found against him. Thus, the
proper remedy available to petitioner is for her to file with the Provincial
Prosecutor a motion to be released from detention on the grounds alleged in the
instant petition.
WHEREFORE, the petition for habeas corpus is DENIED for lack of merit.
SO ORDERED.7
Mangila moved for the reconsideration of the denial of her petition for habeas
corpus,8 but the CA denied the motion on November 19, 2003.9
Hence, this appeal via petition for review on certiorari.
Issue
Did the CA err in ruling that habeas corpus was not the proper remedy to obtain
the release of Mangila from detention?
Ruling of the Court
The petition for review lacks merit.
The high prerogative writ of habeas corpus has been devised as a speedy and
effective remedy to relieve persons from unlawful restraint. In Caballes v. Court
of Appeals,10 the Court discoursed on the nature of the special proceeding of
habeas corpus in the following manner:
A petition for the issuance of a writ of habeas corpus is a special proceeding
governed by Rule 102 of the Rules of Court, as amended. In Ex Parte Billings, it
was held that habeas corpus is that of a civil proceeding in character. It seeks the
enforcement of civil rights. Resorting to the writ is not to inquire into the criminal
act of which the complaint is made, but into the right of liberty, notwithstanding
the act and the immediate purpose to be served is relief from illegal restraint. The
rule applies even when instituted to arrest a criminal prosecution and secure
freedom. When a prisoner petitions for a writ of habeas corpus, he thereby
commences a suit and prosecutes a case in that court.
Habeas corpus is not in the nature of a writ of error; nor intended as substitute for
the trial court’s function. It cannot take the place of appeal, certiorari or writ of
error. The writ cannot be used to investigate and consider questions of error that
might be raised relating to procedure or on the merits. The inquiry in a habeas
corpus proceeding is addressed to the question of whether the proceedings and
167
the assailed order are, for any reason, null and void. The writ is not ordinarily
granted where the law provides for other remedies in the regular course, and in
the absence of exceptional circumstances. Moreover, habeas corpus should not
be granted in advance of trial. The orderly course of trial must be pursued and
the usual remedies exhausted before resorting to the writ where exceptional
circumstances are extant. In another case, it was held that habeas corpus cannot
be issued as a writ of error or as a means of reviewing errors of law and
irregularities not involving the questions of jurisdiction occurring during the
course of the trial, subject to the caveat that constitutional safeguards of human
life and liberty must be preserved, and not destroyed. It has also been held that
where restraint is under legal process, mere errors and irregularities, which do
not render the proceedings void, are not grounds for relief by habeas corpus
because in such cases, the restraint is not illegal.
Habeas corpus is a summary remedy. It is analogous to a proceeding in rem
when instituted for the sole purpose of having the person of restraint presented
before the judge in order that the cause of his detention may be inquired into and
his statements final. The writ of habeas corpus does not act upon the prisoner
who seeks relief, but upon the person who holds him in what is alleged to be the
unlawful authority. Hence, the only parties before the court are the petitioner
(prisoner) and the person holding the petitioner in custody, and the only question
to be resolved is whether the custodian has authority to deprive the petitioner of
his liberty. The writ may be denied if the petitioner fails to show facts that he is
entitled thereto ex merito justicias.
A writ of habeas corpus, which is regarded as a "palladium of liberty," is a
prerogative writ which does not issue as a matter of right but in the sound
discretion of the court or judge. It is, however, a writ of right on proper formalities
being made by proof. Resort to the writ is not to inquire into the criminal act of
which a complaint is made but unto the right of liberty, notwithstanding the act,
and the immediate purpose to be served is relief from illegal restraint. The
primary, if not the only object of the writ of habeas corpus ad subjuciendum, is to
determine the legality of the restraint under which a person is held.11 (Bold
underscoring supplied for emphasis)
The object of the writ of habeas corpus is to inquire into the legality of the
detention, and, if the detention is found to be illegal, to require the release of the
detainee. Equally well-settled however, is that the writ will not issue where the
person in whose behalf the writ is sought is out on bail, or is in the custody of an
officer under process issued by a court or judge with jurisdiction or by virtue of a
judgment or order of a court of record.12
There is no question that when the criminal complaints were lodged against
Mangila and her cohorts on June 16, 2003,Judge Pangilinan, as the Presiding
Judge of the MTCC, was empowered to conduct preliminary investigations
involving "all crimes cognizable by the proper court in their respective territorial

jurisdictions." His authority was expressly provided in Section 2, Rule 112 of the
Revised Rules of Criminal Procedure, to wit:
Section 2.Officers authorized to conduct preliminary investigations.
– The following may conduct preliminary investigations:
(a) Provincial or City Prosecutors and their assistants;
(b) Judges of the Municipal Trial Courts and Municipal Circuit Trial
Courts;
(c) National and Regional State Prosecutors; and
(d) Other officers as may be authorized by law.
Their authority to conduct preliminary investigations shall include all crimes
cognizable by the proper court in their respective territorial jurisdictions. (2a)
Under Section 6(b) of Rule 112of the Revised Rules of Criminal Procedure, the
investigating judge could issue a warrant of arrest during the preliminary
investigation even without awaiting its conclusion should he find after an
examination in writing and under oath of the complainant and the witnesses in
the form of searching questions and answers that a probable cause existed, and
that there was a necessity of placing the respondent under immediate custody in
order not to frustrate the ends of justice.1âwphi1 In the context of this rule, Judge
Pangilinan issued the warrant of arrest against Mangila and her cohorts.
Consequently, the CA properly denied Mangila’s petition for habeas corpus
because she had been arrested and detained by virtue of the warrant issued for
her arrest by Judge Pangilinan, a judicial officer undeniably possessing the legal
authority to do so.
It is relevant to point out at this juncture that the authority of the MTC and MTCC
judges to conduct preliminary investigations was removed only effective on
October 3, 2005 pursuant to A.M. No. 05-8-26-SC.
With Mangila’s arrest and ensuing detention being by virtue of the order lawfully
issued by Judge Pangilinan, the writ of habeas corpus was not an appropriate
remedy to relieve her from the restraint on her liberty. This is because the
restraint, being lawful and pursuant to a court process, could not be inquired into
through habeas corpus. To quote the dictum enunciated by Justice Malcolm in
Quintos v. Director of Prisons:13
168
The writ of habeas corpus secures to a prisoner the right to have the cause of his
detention examined and determined by a court of justice, and to have
ascertained if he is held under lawful authority. The function of habeas corpus,
where the party who has appealed to its aid is in custody under process, does
not extend beyond an inquiry into the jurisdiction of the court by which it was
issued and the validity of the process upon its face. It is not a writ of error. xxx
(Bold underscoring supplied for emphasis)
Accordingly, Section 4, Rule 102 of the Rules of Court explicitly states:
Section 4.When writ not allowed or discharge authorized. — If it appears that the
person alleged to be restrained of his liberty is in the custody of an officer under
process issued by a court or judge or by virtue of a judgment or order of a court
of record, and that the court or judge had jurisdiction to issue the process, render
the judgment, or make the order, the writ shall not be allowed; or if the jurisdiction
appears after the writ is allowed, the person shall not be discharged by reason of
any informality or defect in the process, judgment, or order. Nor shall anything in
this rule be held to authorize the discharge of a person charged with or convicted
of an offense in the Philippines, or of a person suffering imprisonment under
lawful judgment. (Bold underscoring supplied for emphasis)
Still, Mangila harps on the procedural flaws supposedly committed by Judge
Pangilinan in her attempt to convince the Court on her entitlement to the
issuance of the writ of habeas corpus. She insists that the illegality and invalidity
of the warrant of arrest because of its having been issued without an exhaustive
examination of the complainants and the witnesses in writing and under oath;
without a prior finding of probable cause; and without consideration of the
necessity for its issuance in order not to frustrate the ends of justice were enough
reasons for granting the writ of habeas corpus.14
Mangila fails to persuade.
To begin with, Judge Pangilinan issued the order of arrest after examining
Palayon, one of the complainants against Mangila and her cohorts. If he, as the
investigating judge, considered Palayon’s evidence sufficient for finding probable
cause against her and her cohorts, which finding the Court justifiably presumes
from his act of referring the case and its records to the Office of the City
Prosecutor on the day immediately following the preliminary investigation he
conducted, her petition for habeas corpus could not be the proper remedy by
which she could assail the adequacy of the adverse finding. Even granting that
there was a failure to adhere to the law or rule, such failure would not be the
equivalent of a violation of her constitutional rights.15
Secondly, it was not procedurally correct for her to impugn the issuance of the
warrant of arrest by hinting that the investigating judge did not at all consider the
 169

necessity of determining the existence of probable cause for its issuance due to x----------------------------------------------------------
time constraints and in order not to frustrate the ends of justice, for that - -x
consideration was presumed.

And, lastly, it was clear that under Section 5,16 Rule 112 of the Revised Rules of DECISION
Criminal Procedure, the resolution of the investigating judge was not final but
was still subject to the review by the public prosecutor who had the power to
order the release of the detainee if no probable cause should beultimately found PEREZ, J.:
against her. In the context of the rule, Mangila had no need to seek the issuance
of the writ of habeas corpus to secure her release from detention. Her proper
recourse was to bring the supposed irregularities attending the conduct of the Before this Court is a Petition for Certiorari under Rule 65[1] of the Rules
preliminary investigation and the issuance of the warrant for her arrest to the
attention of the City Prosecutor, who had been meanwhile given the most direct of Court assailing the Order dated 25 April 2008 of the Regional Trial Court
access to the entire records of the case, including the warrant of arrest, following
(RTC) of Manila, Branch 37, in Special Proceeding No. 08-119132 which denied
Judge Pangilinan’s transmittal of them to the City Prosecutor for appropriate
action.17 We agree with the CA, therefore, that the writ of habeas corpus could the petition for Habeas Corpus filed by herein Petitioner Nurhida Juhuri
not be used as a substitute for another available remedy.18
Ampatuan in behalf of her husband Police Officer 1 Basser B. Ampatuan [2] (PO1
WHEREFORE, the Court AFFIRMS the resolutions promulgated on October 14, Ampatuan).
2003 and November 19, 2003 in C.A.-G.R. SP No. 79745; and ORDERS the
petitioner to pay the costs of suit.
Petitioner alleged in her petition that her husband PO1 Ampatuan was
SO ORDERED.
assigned at Sultan Kudarat Municipal Police Station.On 14 April 2008, he was

NURHIDA JUHURI AMPATUAN, G.R. No. 182497 asked by his Chief of Police to report to the Provincial Director of Shariff
Petitioner, Kabunsuan, Superintendent Esmael Pua Ali (Supt. Ali). The latter brought PO1
Ampatuan to Superintendent Piang Adam, Provincial Director of the Philippine
Present:
National Police (PNP) Maguindanao. PO1 Ampatuan was directed to stay at the
- versus -
CORONA, C.J., Police Provincial Office of Maguindanao without being informed of the cause of
Chairperson,
VELASCO, JR., his restraint. The next day, 15 April 2008, PO1 Ampatuan was brought to
LEONARDO-DE CASTRO, the General Santos CityAirport and was made to board a Philippine Airlines
JUDGE VIRGILIO V. MACARAIG, DEL CASTILLO, and
REGIONAL TRIAL PEREZ, JJ. plane bound for Manila. Upon landing at the Manila Domestic Airport, PO1
COURT, MANILA, BRANCH 37, Ampatuan was turned over to policemen of Manila and brought to Manila Mayor
DIRECTOR GENERAL AVELINO
RAZON, JR., DIRECTOR GEARY Alfredo Lim by Police Director Geary Barias and General Roberto Rosales. A
BARIAS, PSSUPT. CO YEE M. CO,
press briefing was then conducted where it was announced that PO1 Ampatuan
JR. and POLICE CHIEF
INSPECTOR AGAPITO QUIMSON, was arrested for the killing of two Commission on Elections (COMELEC)
Respondents.
Promulgated: Officials. He was then detained at the Police Jail in United Nations
Avenue,Manila. Thereafter, PO1 Ampatuan was brought to inquest Prosecutor
June 29, 2010
 170

Renato Gonzaga of the Office of the City Prosecutor of Manila due to the alleged On even date, a charge sheet for Grave Misconduct was executed
murder of Atty. Alioden D. Dalaig, head of the Law Department of the against PO1 Ampatuan, the accusatory portion of which reads:
COMELEC. On 20 April 2008, PO1 Ampatuan was turned-over to the Regional
CHARGE SHEET
Headquarters Support Group in Camp Bagong Diwa, Taguig City.[3]
THE UNDERSIGNED NOMINAL COMPLAINANT
hereby charges above-named respondent of the administrative
Petitioner continues that on 21 April 2008, Chief Inquest Prosecutor offense of Grave Misconduct (murder) pursuant to Section 52 of
Nelson Salva ordered the release for further investigation of PO1 R.A. 8551[6] in relation to NAPOLCOM Memorandum Circular 93-
024, committed as follows:
Ampatuan.[4] The Order was approved by the City Prosecutor of Manila. But
Police Senior Superintendent Co Yee Co, Jr., and Police Chief Inspector Agapito That on or about 7:08 in the evening of November 10,
2007, in M.H. Del Pilar and Pedro Gil St., Ermita, Manila, above-
Quimson refused to release PO1 Ampatuan. named respondent while being an active member of
the PNP and within the jurisdiction of this office, armed with a cal
.45 pistol, with intent to kill, did then and there willfully, unlawfully
This prompted Petitioner to file the petition for writ of habeas corpus in and feloniously, shot Atty. Alioden D. Dalaig, Jr., COMELEC
official on the different parts of his body, thereby inflicting upon
the RTC of Manila, Branch 37.[5] the latter mortal gunshot wounds which directly cause (sic) his
death.

Private respondents had another version of the antecedent facts. They Acts contrary to the existing PNP Laws rules and Regulations.[7]
narrated that at around 7:08 oclock in the evening of 10 November 2007, a sixty-
four-year-old man, later identified as Atty. Alioden D. Dalaig, Head of the
Also, through a Memorandum dated 18 April 2008, Police Director
COMELEC Legal Department, was killed at the corner of M. H. Del Pilar and
General Avelino I. Razon, Jr. directed the Regional Director of the National
Pedro Gil Streets, Ermita, Manila. Investigation conducted by the Manila Police
Capital Regional Police Office (NCRPO) to place PO1 Ampatuan under
District (MPD) Homicide Section yielded the identity of the male perpetrator as
restrictive custody, thus:
PO1 Ampatuan. Consequently, PO1 Ampatuan was commanded to the MPD
District Director for proper disposition. Likewise, inquest proceedings were 1. Reference: Memo from that Office dated April
15, 2008 re Arrest of PO1 Busser Ampatuan, suspect
conducted by the Manila Prosecutors Office.
in the killing of Atty. Alioden Dalaig and Atty. Wynee
Asdala, both COMELEC Legal Officers.
On 18 April 2008, Police Senior Superintendent Atty. Clarence V. Guinto, 2. This pertains to the power of the
rendered his Pre-Charge Evaluation Report against PO1 Ampatuan, finding Chief, PNP embodied in Section 52 of RA 8551, to
place police personnel under restrictive custody
probable cause to charge PO1 Ampatuan with Grave Misconduct (Murder) and during the pendency of a grave administrative case
recommending that said PO1 Ampatuan be subjected to summary hearing. filed against him or even after the filing of a criminal
complaint, grave in nature, against such police
personnel.

3. In this connection, you are hereby directed to
place PO1 Busser Ampatuan, suspect in the killing of
Atty. Alioden Dalaig and Atty. Wynee Asdala, both
COMELEC Legal Officers, under your restrictive
custody.
4. For strict compliance.[8]
On 19 April 2008, through a Memorandum Request dated 18 April 2008,
respondent Police Director Geary L. Barias requested for the creation of the
Summary Hearing Board to hear the case of PO1 Ampatuan.[9]
On 20 April 2008, Special Order No. 921 was issued by Police Director
Edgardo E. Acua, placing PO1 Ampatuan under restrictive custody of the
Regional Director, NCRPO, effective 19 April 2008. Said Special Order No. 921,
reads:
Restrictive Custody
PO1 Basser B. Ampatuan 128677, is placed under
restrictive custody of the Regional Director, NCRPO
effective April 19, 2008. (Reference: Memorandum from CPNP
dated 18 April 2008).
BY COMMAND OF POLICE DIRECTOR GENERAL
RAZON:[10]
Meanwhile, on 21 April 2008, the City Prosecutor of
recommended that the case against PO1 Ampatuan be set for further
investigation and that the latter be released from custody unless he is being held
for other charges/legal grounds.[11]
Armed with the 21 April 2008 recommendation of the Manila Citys
Prosecution Office, petitioner, who is the wife of PO1 Ampatuan, filed a Petition
for the Issuance of a Writ of Habeas Corpus before the RTC of Manila on 22 April
171
2008. The petition was docketed as Special Proceeding No. 08-119132 and was
raffled to Branch 37.
On 24 April 2008, finding the petition to be sufficient in form and
substance, respondent Judge Virgilio V. Macaraig ordered the issuance of a writ
of habeas corpus commanding therein respondents to produce the body of PO1
Ampatuan and directing said respondents to show cause why they are
withholding or restraining the liberty of PO1 Ampatuan.[12]
On 25 April 2008, the RTC resolved the Petition in its Order which reads:
Essentially, counsels for petitioner insists that PO1
Basser Ampatuan is being illegally detained by the respondents
despite the order of release of Chief Inquest Prosecutor Nelson
Salva dated April 21, 2008. They further claim that as of April 23,
2008, no administrative case was filed against PO1 Ampatuan.
Respondents, while admitting that to date no criminal
case was filed against PO1 Ampatuan, assert that the latter is
under restrictive custody since he is facing an administrative
case for grave misconduct. They submitted to this Court the Pre-
charge Evaluation Report and Charge Sheet. Further, in support
of their position, respondents cited the case of SPO2 Manalo, et
al. v. Hon. Calderon, G.R. No. 178920 claiming that habeas
corpus will not lie for a PNP personnel under restrictive
custody. They claim that this is authorized under Section 52, Par.
4 of R.A. 8551 authorizing the Chief of PNP to place
the PNP personnel under restrictive custody during the
pendency of administrative case for grave misconduct.
Manila Petitioner countered that the administrative case filed
against PO1 Ampatuan was ante-dated to make it appear that
there was such a case filed before April 23, 2008.
The function of habeas corpus is to determine the
legality of ones detention, meaning, if there is sufficient cause for
deprivation or confinement and if there is none to discharge him
at once. For habeas corpus to issue, the restraint of liberty must
be in the nature of illegal and involuntary deprivation of freedom
which must be actual and effective, not nominal or moral.

Granting arguendo that the administrative case was
ante-dated, the Court cannot simply ignore the filing of an
administrative case filed against PO1 Ampatuan. It cannot be
denied that the PNP has its own administrative disciplinary
mechanism and as clearly pointed out by the respondents, the
Chief PNP is authorized to place PO1 Ampatuan under
restrictive custody pursuant to Section 52, Par. 4 of R.A. 8551.
The filing of the administrative case against PO1
Ampatuan is a process done by the PNP and this Court has no
authority to order the release of the subject police officer.
Lastly, anent the contention of the petitioner that the
letter resignation of PO1 Ampatuan has rendered the
administrative case moot and academic, the same could not be
accepted by this Court. It must be stressed that the resignation
has not been acted (sic) by the appropriate police officials of
the PNP, and that the administrative case was filed while PO1
Ampatuan is still in the active status of thePNP.
WHEREFORE, premises considered, the petition
for habeas corpus is hereby DISMISSED.[13]
Distressed, petitioner is now before this Court via a
for Certiorari under Rule 65 of the Rules of Court to question the validity of the
RTC Order dated 25 April 2008. The issues are:
I. THE RESPONDENT COURT GRAVELY
ABUSED ITS DISCRETION WHEN IT FAILED TO
CONSIDER THAT THE ARREST AND DETENTION OF
PO1 BASSER B. AMPATUAN WAS MADE WITHOUT
ANY WARRANT ANDTHEREFORE, ILLEGAL;
II. THE RESPONDENT COURT GRAVELY
ABUSED ITS DISCRETION WHEN IT CONCEDED THE
AUTHORITY OF RESPONDENT AVELINO RAZON, JR.
UNDER SEC. 52, PAR. 4, R.A. 8551 TO PLACE
AMPATUAN UNDER RESTRICTIVE CUSTODY FOR
ADMINISTRATIVE PROCEEDINGS;
III. THE RESPONDENT COURT GRAVELY
ABUSED ITS DISCRETION WHEN IT SHIRKED FROM
ITS JUDICIAL DUTY TO ORDER THE RELEASE OF
172
PO1 AMPATUAN FROM THE CUSTODY OF
RESPONDENTS MAMANG PULIS.[14]
Essentially, a writ of habeas corpus applies to all cases of illegal
confinement or detention by which any person is deprived of his liberty. [15]
Rule 102 of the 1997 Rules of Court sets forth the procedure to be
followed in the issuance of the writ. The Rule provides:
RULE 102
HABEAS CORPUS
SECTION 1. To what habeas corpus extends. Except as
otherwise expressly provided by law, the writ of habeas
corpus shall extend to all cases of illegal confinement or
detention by which any person is deprived of his liberty, or by
which the rightful custody of any person is withheld from the
Petition
person entitled thereto.
SEC 2. Who may grant the writ. The writ of habeas
corpus may be granted by the Supreme Court, or any member
thereof, on any day and at any time, or by the Court of Appeals
or any member thereof in the instances authorized by law, and if
so granted it shall be enforceable anywhere in the Philippines,
and may be made returnable before the court or any member
thereof, or before a Court of First Instance, or any judge thereof
for hearing and decision on the merits. It may also be granted by
a Court of First Instance, or a judge thereof, on any day and at
any time, and returnable before himself, enforceable only within
his judicial district.
xxxx
SEC. 4. When writ not allowed or discharge authorized.
If it appears that the person alleged to be restrained of his liberty
is in the custody of an officer under process issued by a court or
judge or by virtue of a judgment or order of a court of record, and
that the court or judge had jurisdiction to issue the process,
render the judgment, or make the order, the writ shall not be

allowed; or if the jurisdiction appears after the writ is allowed, the
person shall not be discharged by reason of any informality or
defect in the process, judgment, or order. Nor shall anything in
this rule be held to authorize the discharge of a person charged
with or convicted of an offense in thePhilippines, or of a person
suffering imprisonment under lawful judgment.
The objective of the writ is to determine whether the confinement or
detention is valid or lawful. If it is, the writ cannot be issued. What is to be
inquired into is the legality of a person's detention as of, at the earliest, the filing
of the application for the writ of habeas corpus, for even if the detention is at its
inception illegal, it may, by reason of some supervening events, such as the
instances mentioned in Section 4 of Rule 102, be no longer illegal at the time of
the filing of the application.[16]
Plainly stated, the writ obtains immediate relief for those who have been
illegally confined or imprisoned without sufficient cause. The writ, however,
should not be issued when the custody over the person is by virtue of a judicial
process or a valid judgment.[17]
The most basic criterion for the issuance of the writ, therefore, is that the
individual seeking such relief is illegally deprived of his freedom of movement or
placed under some form of illegal restraint. If an individuals liberty is
restrained via some legal process, the writ of habeas corpus is
unavailing.[18] Fundamentally, in order to justify the grant of the writ of habeas
corpus, the restraint of liberty must be in the nature of an illegal and involuntary
deprivation of freedom of action.[19]
In general, the purpose of the writ of habeas corpus is to determine
whether or not a particular person is legally held. A prime specification of an
application for a writ of habeas corpus, in fact, is an actual and effective, and not
173
merely nominal or moral, illegal restraint of liberty. The writ of habeas corpus was
devised and exists as a speedy and effectual remedy to relieve persons from
unlawful restraint, and as the best and only sufficient defense of personal
freedom. A prime specification of an application for a writ of habeas corpus is
restraint of liberty. The essential object and purpose of the writ of habeas
corpus is to inquire into all manner of involuntary restraint as distinguished from
voluntary, and to relieve a person therefrom if such restraint is illegal. Any
restraint which will preclude freedom of action is sufficient. [20]
In passing upon a petition for habeas corpus, a court or judge must first
inquire into whether the petitioner is being restrained of his liberty. If he is not, the
writ will be refused. Inquiry into the cause of detention will proceed only where
such restraint exists.If the alleged cause is thereafter found to be unlawful, then
the writ should be granted and the petitioner discharged. Needless to state, if
otherwise, again the writ will be refused.[21]
While habeas corpus is a writ of right, it will not issue as a matter of
course or as a mere perfunctory operation on the filing of the petition. Judicial
discretion is called for in its issuance and it must be clear to the judge to whom
the petition is presented that,prima facie, the petitioner is entitled to the writ. It is
only if the court is satisfied that a person is being unlawfully restrained of his
liberty will the petition for habeas corpus be granted. If the respondents are not
detaining or restraining the applicant or the person in whose behalf the petition is
filed, the petition should be dismissed.[22]
Petitioner contends that when PO1 Ampatuan was placed under the
custody of respondents on 20 April 2008, there was yet no administrative case
filed against him. When the release order of Chief Inquest Prosecutor Nelson
Salva was served upon respondents on 21 April 2008, there was still no

administrative case filed against PO1 Ampatuan. She also argues that the arrest
on14 April 2008 of PO1 Ampatuan in Shariff Kabunsuan was illegal because
there was no warrant of arrest issued by any judicial authority against him.
On the other hand, respondents, in their Comment[23] filed by the Office
of the Solicitor General, argue that the trial court correctly denied the subject
petition. Respondents maintain that while the Office of the City Prosecutor of
Manila had recommended that PO1 Ampatuan be released from custody, said
recommendation was made only insofar as the criminal action for murder that
was filed with the prosecution office is concerned and is without prejudice to
other legal grounds for which he may be held under custody. In the instant case,
PO1 Ampatuan is also facing administrative charges for Grave Misconduct. They
cited the case ofManalo v. Calderon,[24] where this Court held that a petition
for habeas corpus will be given due course only if it shows that petitioner is being
detained or restrained of his liberty unlawfully, but a restrictive custody and
monitoring of movements or whereabouts of police officers under investigation by
their superiors is not a form of illegal detention or restraint of liberty. [25]
The Solicitor General is correct.
In this case, PO1 Ampatuan has been placed under Restrictive
Custody. Republic Act No. 6975 (also known as the Department of Interior and
Local Government Act of 1990), as amended by Republic Act No. 8551 (also
known as the Philippine National Police Reform and Reorganization Act of 1998),
clearly provides that members of the police force are subject to the administrative
disciplinary machinery of the PNP. Section 41(b) of the said law enumerates the
174
disciplinary actions, including restrictive custody that may be imposed by duly
designated supervisors and equivalent officers of the PNP as a matter of internal
discipline. The pertinent provision of Republic Act No. 8551 reads:
Sec. 52 x x x.
xxxx
4. The Chief of the PNP shall have the power to impose the
disciplinary punishment of dismissal from the service;
suspension or forfeiture of salary; or any combination thereof for
a period not exceeding one hundred eighty (180)
days. Provided, further, That the Chief of thePNP shall have
the authority to place police personnel under restrictive
custody during the pendency of a grave administrative case
filed against him or even after the filing of a criminal
complaint, grave in nature, against such police
personnel. [Emphasis ours].
Given that PO1 Ampatuan has been placed under restrictive custody,
such constitutes a valid argument for his continued detention. This Court has
held that a restrictive custody and monitoring of movements or whereabouts of
police officers under investigation by their superiors is not a form of illegal
detention or restraint of liberty.[26]
Restrictive custody is, at best, nominal restraint which is beyond the
ambit of habeas corpus. It is neither actual nor effective restraint that would call
for the grant of the remedy prayed for. It is a permissible precautionary measure
 175

to assure the PNP authorities that the police officers concerned are always
Having conceded that there is no grave abuse of discretion on the part of
accounted for.[27]
the trial court, we have to dismiss the petition.

Since the basis of PO1 Ampatuans restrictive custody is the

In sum, petitioner is unable to discharge the burden of showing that she
administrative case filed against him, his remedy is within such administrative
is entitled to the issuance of the writ prayed for in behalf of her husband, PO1
process.
Ampatuan. The petition fails to show on its face that the latter is unlawfully

deprived of his liberty guaranteed and enshrined in the Constitution.

We likewise note that PO1 Ampatuan has been under restrictive custody

since 19 April 2008. To date, the administrative case against him should have
WHEREFORE, premises considered, the instant petition
already been resolved and the issue of his restrictive custody should have been is DISMISSED for lack of merit.
rendered moot and academic, in accordance with Section 55 of Republic Act No.

8551, which provides: Costs against petitioner.

SEC. 55. Section 47 of Republic Act No. 6975 is hereby

amended to read as follows:

Sec. 47. Preventive Suspension Pending Criminal Case.

Upon the filing of a complaint or information sufficient in form and
substance against a member of the PNP for grave felonies
where the penalty imposed by law is six (6) years and one (1)
day or more, the court shall immediately suspend the accused
from office for a period not exceeding ninety (90) days from
arraignment: Provided, however, That if it can be shown by
evidence that the accused is harassing the complainant and/or
witnesses, the court may order the preventive suspension of the
accused PNP member even if the charge is punishable by a
penalty lower than six (6) years and one (1) day: Provided,
further, That the preventive suspension shall not be more than
ninety (90) days except if the delay in the disposition of the case
is due to the fault, negligence or petitions of the
respondent: Provided, finally, That such preventive suspension
may be sooner lifted by the court in the exigency of the service
upon recommendation of the Chief, PNP. Such case shall be
subject to continuous trial and shall be terminated within
ninety (90) days from arraignment of the accused. (Emphasis
supplied.)