G.R. No.

149453 May 28, 2002

PEOPLE OF THE PHILIPPINES, ET AL.,

vs.
PANFILO M. LACSON

RESOLUTION

Before us is a petition for review on certiorari seeking to reverse and set aside the Decision1 of the Court of
Appeals dated August 24, 2001 in CA-G.R. SP No. 65034.2 The said Decision of the appellate court granted
respondent Lacson's Second Amended Petition for Prohibition with application for the issuance of a Temporary
Restraining Order, (1) assailing the Order issued by Judge Herminia Pasamba of the Regional Trial Court
(RTC) of Manila, Branch 40, that allowed the continuation of the re-investigation of Criminal Cases Nos. Q-99-
81679 to Q-99-81689 or the Kuratong Baleleng cases; and (2) praying for the dismissal of Criminal Cases Nos.
Q-01-101102 to Q-01-101112 entitled "People of the Philippines v. Panfilo Lacson, et al." pending before
Branch 81 of the RTC of Quezon City.

The following appear in the records of this case:

(1) On May 18, 1995, then PNP Director-General Recaredo Sarmiento II announced, in a press conference,
the killing of eleven (11) members of the Kuratong Baleleng Gang (KBG) in a shootout with police elements
near the fly-over along Commonwealth Avenue, Quezon City at about 4:00 A.M. that day.3

(2) On May 22, 1995, morning papers carried the news that SPO2 Eduardo delos Reyes had claimed that the
killing of the eleven (11) gang members was a "rub-out" or summary execution and not a shootout.4

(3) In an affidavit he executed the following day, delos Reyes stated, among others, that he was part of a
composite police team called the Anti-Bank Robbery and Intelligence Task Force Group (ABRITFG) composed
of elements of the National Capital Region Command (NCRC) and headed by Chief Superintendent Jewel
Canson; Traffic Management Command, headed by Senior Superintendent Francisco Subia, Jr.; Presidential
Anti-Crime Commission (PACC), headed by Chief Superintendent Panfilo M. Lacson; Central Police District
Command, headed by Chief Superintendent Ricardo de Leon; and Criminal Investigation Command (CIC),
headed by Chief Superintendent Romeo Acop. Delos Reyes claimed that the police team arrested the eleven
(11) gang members in early morning of May 18, 1995 at the gang's safe house in Superville Subdivision,
Parañaque; that after their arrest, the gang members were made to board two vans, their hands tied behind
their backs, and brought initially to Camp Crame where a decision to summarily execute them was made, and
later to Commonwealth Avenue where they were shot to death by elements of ABRITFG.5

(4) On May 26, 1995, SPO2 Corazon dela Cruz, another CIC investigator, executed an affidavit corroborating
the material allegations of delos Reyes. Dela Cruz claimed that she was with delos Reyes from the time the
eleven (11) KBG members were arrested up to the time they were killed in Commonwealth Avenue.6

(5) On May 31, 1995, Armando Capili, a reporter of Remate, executed an affidavit stating that he was present
when the KBG members were arrested in Superville Subdivision.7

(6) On June 1, 1995, Chief Superintendent Job A. Mayo, PNP Director for Investigation, filed murder charges
with the Office of the Ombudsman against ninety-seven (97) officers and personnel of ABRITFG. The next-of-
kin of the slain KBG members also filed murder charges against the same officers and personnel.8

(7) Ombudsman Aniano Desierto then created a panel of investigators to conduct a preliminary investigation of
the murder charges. The panel was headed by Deputy Ombudsman for Military Affairs Bienvenido Blancaflor.
On October 20, 1995, the panel issued a resolution recommending the dismissal of the charges for lack of
probable cause.
(8) Ombudsman Desierto referred the resolution for review by a panel composed of Over-all Deputy
Ombudsman Francisco Villa as head, and Special Prosecutor Leonardo Tamayo and Assistant Ombudsman
Abelardo Aportadera as members. On November 20, 1995, the review panel reversed the Blancaflor resolution
and found probable cause for the prosecution of multiple murder charges against twenty-six (26) officers and
personnel of ABRITFG.9

(9) On November 2, 1995, the Ombudsman filed before the Sandiganbayan eleven (11) Informations for
MURDER, docketed as Criminal Cases Nos. 23047 to 23057, against respondent Panfilo M. Lacson and
twenty-five (25) other accused. All twenty-six (26) of them were charged as principals.10 The following appear
to be the victims: Meleubren Sorronda in Crim. Case No. 23047; Welbor Elcamel in Crim. Case No. 23048;
Carlito Alap-ap in Crim. Case No. 23049; Jevy Redillas in Crim. Case No. 23050; Ray Abalora in Crim. Case
No. 23051; Joel Amora in Crim. Case No. 23052; Alex Neri in Crim. Case No. 23053; Rolando Siplon in Crim.
Case No. 23054; Manuel Montero in Crim. Case No. 23055; Sherwin Abalora in Crim. Case No. 23056; and
Pacifico Montero in Crim. Case No. 23057.

(10) Upon motion of the respondent, the criminal cases were remanded to the Ombudsman for reinvestigation.
On March 1, 1996, Amended Informations were filed against the same twenty-six (26) suspects but the
participation of respondent Lacson was downgraded from principal to accessory. Arraignment then followed
and respondent entered a plea of not guilty.11

(11) With the downgrading of charges against him, respondent Lacson questioned the jurisdiction of
the Sandiganbayan to hear the criminal cases as none of the "principal" accused in the Amended Informations
was a government official with a Salary Grade (SG) 27 or higher, citing Section 2 of R. A. No. 7975 then
prevailing. Accordingly, the Sandiganbayan ordered the cases transferred to the Regional Trial Court.12

(12) The Office of the Special Prosecutor filed a motion for reconsideration of the transfer. Pending resolution
of the motion, R. A. No. 8249 took effect on February 23, 1997, amending R. A. No. 7975. In particular, the
amendatory law deleted the word "principal" in Section 2 of R. A. No. 7975, thereby expanding the jurisdiction
of the Sandiganbayan to include all cases where at least one of the accused, whether principal, accomplice or
accessory, is a government official of Salary Grade (SG) 27 or higher. The amendment is made applicable to
all cases pending in any court in which trial has not yet begun as of the date of its approval. 13

(13) In Lacson v. Executive Secretary,14 respondent Lacson challenged the constitutionality of the amendment
and contended that the Sandiganbayan had no jurisdiction over the criminal cases. This Court, while
dismissing the constitutional challenge, nonetheless ordered the transfer of the criminal cases to the Regional
Trial Court on the ground that the Amended Informations for murder failed to indicate that the offenses charged
therein were committed in relation to, or in discharge of, the official functions of the respondent, as required by
R. A. No. 8249.

(14) Criminal Cases Nos. 23047 to 23057 were raffled off to Branch 81 of the Regional Trial Court of Quezon
City, then presided by Judge, now Associate Justice of the Court of Appeals, Wenceslao Agnir, Jr., and re-
docketed as Criminal Cases Nos. Q-99-81679 to Q-99-81689.

(15) Before the accused could be arraigned, prosecution witnesses Eduardo de los Reyes, Corazon de la
Cruz, Armando Capili and Jane Gomez recanted their affidavits which implicated respondent Lacson in the
murder of the KBG members.

On the other hand, private complainants Myrna Abalora,15 Leonora Amora,16 Nenita Alap-ap,17 Imelda
Montero,18Margarita Redillas,19 Carmelita Elcamel20 and Rolando Siplon21 also executed their respective
affidavits of desistance declaring that they were no longer interested to prosecute these cases.22

(16) Due to these developments, the twenty-six (26) accused, including respondent Lacson, filed five separate
but identical motions to (1) make a judicial determination of the existence of probable cause for the issuance of
warrants of arrest; (2) hold in abeyance the issuance of the warrants, and (3) dismiss the cases should the trial
court find lack of probable cause.
(17) The records of the case before us are not clear whether the private offended parties were notified of the
hearing on March 22, 199923 held by Judge Agnir to resolve the motions filed by respondent Lacson and the
other accused.

(18) During the said hearing, the private offended parties who desisted do not appear to have been presented
on the witness stand. In their stead, Atty. Godwin Valdez testified that he assisted them in preparing their
affidavits of desistance and that he signed said affidavits as witness. On the other hand, Atty. Aurora Bautista
of the Philippine Lawyer's League presented the affidavits of recantation of prosecution witnesses Eduardo de
los Reyes, Armando Capili and Jane Gomez. Only prosecution witness Corazon de la Cruz testified to affirm
her affidavit.24

(19) On March 29, 1999, Judge Agnir issued a Resolution25 dismissing Criminal Cases Nos. Q-99-81679 to Q-
99-81689, as follows:

"As already seen, the documents attached to the Informations in support thereof have been rendered
meaningless, if not absurd, with the recantation of the principal prosecution witnesses and the
desistance of the private complainants. There is no more evidence to show that a crime has been
committed and that the accused are probably guilty thereof. Following the doctrine above-cited, there is
no more reason to hold the accused for trial and further expose them to an open and public accusation.
It is time to write finis to these cases and lay to rest the ghost of the incident of May 18, 1995 so that all
those involved--- the accused, the prosecution witnesses and the private complainants alike--- may get
on with their lives.

The Court is not unmindful of the admonition in the recent case of People vs. Court of Appeals (G.R.
No. 126005, January 21, 1999) where the Supreme Court said that the general rule is that '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', and that the ruling in
Allado vs. Diokno 'is an exception to the general rule and may be invoked only if similar circumstances
are clearly shown to exist.'

This Court holds that the circumstances in the case at bench clearly make an exception to the general
rule.

WHEREFORE, in view of the foregoing, the Court finds no probable cause for the issuance of the
warrants of arrest against the accused or to hold them for trial. Accordingly, the Informations in the
above-numbered cases are hereby ordered dismissed."

SO ORDERED."26

(20) On March 27, 2001, PNP Director Leandro R. Mendoza indorsed to the Department of Justice the new
affidavits of P/Insp. Ysmael S. Yu and P/S Insp. Abelardo Ramos regarding the Kuratong Baleleng incident for
preliminary investigation. On the strength of this indorsement, Secretary of Justice Hernando B. Perez formed
a panel to investigate the matter. On April 17, 2001, the respondent was subpoenaed to attend the
investigation of Criminal Cases Nos. Q-99-81679 to Q-99-81689.27

(21) On May 28, 2001, respondent Lacson, et al., invoking, among others, their constitutional right against
double jeopardy, filed a petition for prohibition with application for temporary restraining order and/or writ of
preliminary injunction with the Regional Trial Court of Manila, primarily to enjoin the State prosecutors from
conducting the preliminary investigation. The petition was docketed as Civil Case No. 01-100933 and raffled to
Branch 40, presided by Judge Herminia V. Pasamba.28

(22) The plea for temporary restraining order was denied by Judge Pasamba in an Order29 dated June 5,
2001, viz:
 "After a study, this Court submits that the dismissal of Criminal Cases Nos. Q-99-81679 to Q-99-81689
is not one on the merits and without any recorded arraignment and entered plea on the part of the
herein petitioners. The dismissal was a direct consequence of the finding of the Quezon City RTC that
no probable cause exists for the issuance of warrants of arrest against petitioners herein and to hold
them for trial. The arraignment had with the Sandiganbayan does not put the case in a different
perspective since the Sandiganbayan was adjudged to be without any jurisdiction to try the cases. It is
the People of the Philippines who is the complainant in the Kuratong Baleleng case and remains to be
the complainant in the present investigation initiated thru a letter of PNP Chief Mendoza dated March
27, 2001 (Exhibit "B") together with the sworn statements of witnesses Ramos and Yu (Exhibits "2" and
"3" - supportive of the refiling of the case (Exhibit "9").

xxx xxx xxx

Above considered, this Court finds petitioners have not preliminarily established that they have a right
to be preserved pending hearing on the injunctive relief.

WHEREFORE, the prayer for temporary restraining order is hereby DENIED.

SO ORDERED."30

(23) On June 6, 2001, eleven (11) Informations for murder involving the killing of the same members of
the Kuratong Baleleng gang were filed before the Regional Trial Court of Quezon City and were docketed as
Criminal Cases Nos. 01-101102 to 01-101112. The new Informations charged as principals thirty-four (34)
people, including respondent Lacson and his twenty-five (25) other co-accused in Criminal Cases Nos. Q-99-
81679 to Q-99-81689. The criminal cases were assigned to Judge Ma. Theresa L. Yadao.

(24) On the same day, respondent Lacson filed before the Court of Appeals a petition for certiorari31 against
Judge Pasamba, the Secretary of Justice, the PNP Chief, State Prosecutors Ong and Zacarias, 2nd Assistant
City Prosecutor Jamolin, and the People of the Philippines. The said petition was amended to implead as
additional party-respondents State Prosecutor Claro Arellano and the RTC, Quezon City, Branch 81 in which
the Informations in Criminal Cases Nos. 01-101102 to 01-101112 were filed.32

(25) The Second Amended Petition33 dated June 14, 2001 and admitted by the Court of Appeals on June 26,
2001, alleged:

"The reliefs of certiorari, prohibition and injunction against the questioned Order (Annex A) and the new
Informations in Criminal Cases Nos. 01-101102 to 01-101112 pending before respondent Yadao
(Annex B) are founded upon the grave abuse of discretion by respondent Judge Pasamba of her
discretion in its issuance, the illegality of the proceedings of the respondent State Prosecutors as they
cannot revive complaints which had been dismissed over two (2) years from the date the dismissal
order was issued, and the invalidity of the new Informations for Murder filed against petitioners and
others, all in defiance of law and jurisprudence as shown by the following:

(a) Respondent judge had ruled on the merits of the main prohibition action a quo rendering the same
moot and academic by concluding that the dismissal of Criminal Cases Nos. Q-99-81679-Q-99-81689
by the QC RTC was not final and executory, hence [i] the complaints therein can be reinvestigated, and
[ii] petitioner's arraignment while the case had not yet been remanded to the QC RTC and while
the Sandiganbayan had valid jurisdiction thereover [Criminal Cases No. 23047-2048] was void,
notwithstanding that the only issue in the TRO application was the existence or lack of a valid complaint
as defined in S1 and S3, Rule 110.

(b) Respondent Judge ruled that respondent State Prosecutors could proceed to re-investigate and
thereafter file new Informations on June 6, 2001 covering those offenses subject of Criminal Cases
Nos. Q-99-81679-Q-99-81689 on the basis of affidavits filed after said cases were dismissed on March
29, 1999, despite the fact that under Section 8, Rule 117, cases similar to those filed against the
 petitioner and others (where the penalty imposable is imprisonment of six (6) years or more) cannot be
revived after two (2) years from the date the dismissal order was issued.

(c) Respondent Judge held that the petitioner had not shown a right to be preserved despite evidence
showing the short cuts taken by respondent State prosecutors in re-investigating a dismissed case, in
not complying with Rules in respect of its re-opening, and in insisting that a valid complaint was filed in
clear violation of the Rules and case law thereon, and despite the fact that the petitioner had shown
that an inextendible deadline of June 5, 2001 was given him to file his counter-affidavit without which
his indictment for a non-bailable offense is assured because of DOJ Secretary Hernando Perez's
political schemes."34

(26) In the meantime, on June 8, 2001, respondent Lacson also filed with the RTC-QC Branch 81 (presided by
Judge Ma. Theresa Yadao), a Motion for Judicial Determination of Probable Cause and in the absence thereof,
to dismiss the cases outright. Respondent Lacson, however, filed a Manifestation and Motion dated June 13,
2001 seeking the suspension of the proceedings before the trial court.35

(27) The Court of Appeals issued a temporary restraining order enjoining Judge Yadao from issuing a warrant
of arrest or conducting any proceeding or hearing in Criminal Cases Nos. 01-101102 to 01-101112.36

(28) On August 24, 2001, the Court of Appeals (Special Third Division), rendered the now assailed Decision. It
characterized the termination of Criminal Cases Nos. Q-99-81679 to Q-99-81689 as "provisional dismissal,"
and considered Criminal Cases Nos. 01-101102 to 01-101112 as mere revivals of the same. Applying Section
8, Rule 117 of the 2000 Revised Rules of Criminal Procedure, it dismissed the criminal cases against the
respondent, viz:

"In sum, this Court is of the considered view that the subject dismissal of [the] criminal cases was
provisional in nature and that the cases presently sought to be prosecuted by the respondents are mere
revival or re-opening of the dismissed cases. The present controversy, being one involving "provisional
dismissal" and revival of criminal cases, falls within the purview of the prescriptive period provided
under Section 8, Rule 117 of the 2000 Revised Rules of Criminal Procedure. The second paragraph of
the said provision is couched in clear, simple and categorical words. It mandates that for offenses
punishable by imprisonment of more than six (6) years, as the subject criminal cases, their provisional
dismissal shall become permanent two (2) years after the issuance of the order without the case having
been revived. It should be noted that the revival of the subject criminal cases, even if reckoned from the
DOJ's issuance of subpoenas to petitioner, was commenced only on April 19, 2001, that is, more than
two (2) years after the issuance, on March 29, 1999, of RTC-Quezon City's Resolution, provisionally
dismissing the criminal cases now sought to be revived. Applying the clear and categorical mandate of
Section 8, Rule 117, supra, such efforts to revive the criminal cases are now definitely barred by the
two-year prescriptive period provided therein.

xxx xxx xxx

WHEREFORE, the petition is GRANTED. As prayed for, the Temporary Restraining Order earlier
issued against the conduct of further proceedings in Criminal Cases Nos. 01-101102 to 01-101112,
including the issuance of warrants of arrest against the petitioner, PANFILO M. LACSON, is hereby
made PERMANENT. Accordingly, with respect to said accused, the proceedings conducted by
respondent State Prosecutors in respect of the said criminal cases are declared NULL AND VOID and
the corresponding Informations, docketed as Criminal Cases Nos. 01-101102 to 01-101112, entitled
'People of the Philippines vs. Panfilo M. Lacson, et al." and filed before respondent Judge Maria
Theresa L. Yadao of Branch 81 of the Regional Trial Court of Quezon City, are hereby ordered
DISMISSED.

SO ORDERED."37
The issue is whether Section 8, Rule 117 bars the filing of the eleven (11) informations against the respondent
Lacson involving the killing of some members of the Kuratong Baleleng gang. This rule which took effect on
December 1, 2000 provides:

"SEC. 8. Provisional dismissal.- A case shall not be provisionally dismissed except with the express
consent of the accused and with notice to the offended party.

The provisional dismissal of offenses punishable by imprisonment not exceeding six (6) years or a fine
of any amount, or both, shall become permanent one (1) year after issuance of the order without the
case having been revived. With respect to offenses punishable by imprisonment of more than six (6)
years, their provisional dismissal shall become permanent two (2) years after issuance of the order
without the case having been revived."

Like any other favorable procedural rule, this new rule can be given retroactive effect. However, this Court
cannot rule on this jugular issue due to the lack of sufficient factual bases. Thus, there is need of proof of the
following facts, viz: (1) whether the provisional dismissal of the cases had the express consent of the accused;
(2) whether it was ordered by the court after notice to the offended party, (3) whether the 2-year period to
revive has already lapsed, and (4) whether there is any justification for the filing of the cases beyond the 2-year
period.

There is no uncertainty with respect to the fact that the provisional dismissal of the cases against respondent
Lacson bears his express consent. It was respondent Lacson himself who moved to dismiss the subject cases
for lack of probable cause before then Judge Agnir, hence, it is beyond argument that their dismissal bears his
express consent.

The records of the case, however, do not reveal with equal clarity and conclusiveness whether notices to the
offended parties were given before the cases against the respondent Lacson were dismissed by then Judge
Agnir. It appears from the resolution of then Judge Agnir that the relatives of the victims who desisted did not
appear during the hearing to affirm their affidavits. Their affidavits of desistance were only presented by Atty.
Godwin Valdez who testified that he assisted the private complainants in preparing their affidavits and he
signed them as a witness. It also appears that only seven (7) persons submitted their affidavits of desistance,
namely:

a. Myrna Abalora, mother of the victims Sherwin Abalora and Rey Abalora

b. Carmelita Elcamel, wife of Wilbur Elcamel;

c. Leonora Amora, mother of victim Joel Amora;

d. Nenita Alap-ap, wife of victim Carlito Alap-ap;

e. Imelda Montero, wife of victim Manuel Montero;

f. Margarita Redillas, mother of victim Hilario Jevy Redillas; and

g. Rolando Siplon.

From the records of the case before us, it cannot be determined whether there were affidavits of desistance
executed by the relatives of the three (3)38 other victims, namely: Meleubren Soronda, Pacifico Montero, Jr.,
and Alex Neri. The same records do not show whether they were notified of the hearing or had knowledge
thereof. To be sure, it is not fair to expect the element of notice to be litigated before then Judge Agnir for
Section 8, Rule 117 was yet inexistent at that time.

The fact of notice to the offended parties was not raised either in the petition for prohibition with application for
temporary restraining order or writ of preliminary injunction filed by respondent Lacson in the RTC of Manila,
presided by Judge Pasamba, to enjoin the prosecutors from reinvestigating the said cases against him. The
only question raised in said petition is whether the reinvestigation will violate the right of respondent Lacson
against double jeopardy. Thus, the issue of whether or not the reinvestigation is barred by Section 8, Rule 117
was not tackled by the litigants.

Nor was the fact of notice to the offended parties the subject of proof after the eleven (11) informations for
murder against respondent Lacson and company were revived in the RTC of Quezon City presided by Judge
Yadao. There was hardly any proceeding conducted in the case for respondent Lacson immediately filed a
petition for certiorari in the appellate court challenging, among others, the authority of Judge Yadao to entertain
the revived informations for multiple murder against him.

This is not to be wondered at. The applicability of Section 8, Rule 117 was never considered in the trial court. It
was in the Court of Appeals where respondent Lacson raised for the first time the argument that Section 8,
Rule 117 bars the revival of the multiple murder cases against him. But even then, the appellate court did not
require the parties to elucidate the crucial issue of whether notices were given to the offended parties before
Judge Agnir ordered the dismissal of the cases against respondent Lacson and company. To be sure, there is
a statement in the Decision of the appellate court to the effect that "records show that the prosecution and the
private offended parties were notified of the hearing x x x."39 It is doubtful whether this finding is supported by
the records of the case. It appears to be contrary to Judge Agnir's finding that only seven (7) of the
complainants submitted affidavits of desistance.

Indeed, the records of this case are inconclusive on the factual issue of whether the multiple murder cases
against respondent Lacson are being revived within or beyond the 2-year bar. The reckoning date of the 2-year
bar has to be first determined - - - whether it is from the date of the Order of then Judge Agnir dismissing the
cases or from the dates the Order were received by the various offended parties or from the date of the
effectivity of the new rule.

If the cases were revived only after the 2-year bar, the State must be given the opportunity to justify its failure
to comply with said timeline. The new rule fixes a timeline to penalize the State for its inexcusable delay in
prosecuting cases already filed in courts. It can therefore present compelling reasons to justify the revival of
cases beyond the 2-year bar.

In light of the lack of or the conflicting evidence on the various requirements to determine the applicability of
Section 8, Rule 117, this Court is not in a position to rule whether or not the re-filing of the cases for multiple
murder against respondent Lacson should be enjoined. Fundamental fairness requires that both the
prosecution and the respondent Lacson should be afforded the opportunity to be heard and to adduce
evidence on the presence or absence of the predicate facts upon which the application of the new rule
depends. They involve disputed facts and arguable questions of law. The reception of evidence on these
various issues cannot be done in this Court but before the trial court.

IN VIEW OF THE FOREGOING, the case at bar is remanded to the RTC - Quezon City, Branch 81 so that the
State prosecutors and the respondent Lacson can adduce evidence and be heard on whether the
requirements of Section 8, Rule 117 have been complied with on the basis of the evidence of which the trial
court should make a ruling on whether the Informations in Criminal Cases Nos. 01-101102 to 01-101112
should be dismissed or not. Pending the ruling, the trial court is restrained from issuing any warrant of arrest
against the respondent Lacson. Melo and Carpio, JJ., take no part.

SO ORDERED.
G.R. No. 167571 November 25, 2008

LUIS PANAGUITON, JR., petitioner

vs.
DEPARTMENT OF JUSTICE, RAMON C. TONGSON and RODRIGO G. CAWILI, respondents.

DECISION

TINGA, J.:

This is a Petition for Review1 of the resolutions of the Court of Appeals dated 29 October 2004 and 21 March
2005 in CA G.R. SP No. 87119, which dismissed Luis Panaguiton, Jr.'s (petitioner's) petition for certiorari and
his subsequent motion for reconsideration.2

The facts, as culled from the records, follow.

In 1992, Rodrigo Cawili (Cawili) borrowed various sums of money amounting to P1,979,459.00 from petitioner.
On 8 January 1993, Cawili and his business associate, Ramon C. Tongson (Tongson), jointly issued in favor of
petitioner three (3) checks in payment of the said loans. Significantly, all three (3) checks bore the signatures
of both Cawili and Tongson. Upon presentment for payment on 18 March 1993, the checks were dishonored,
either for insufficiency of funds or by the closure of the account. Petitioner made formal demands to pay the
amounts of the checks upon Cawili on 23 May 1995 and upon Tongson on 26 June 1995, but to no avail.3

On 24 August 1995, petitioner filed a complaint against Cawili and Tongson4 for violating Batas Pambansa
Bilang 22 (B.P. Blg. 22)5 before the Quezon City Prosecutor's Office. During the preliminary investigation, only
Tongson appeared and filed his counter-affidavit.6 Tongson claimed that he had been unjustly included as
party-respondent in the case since petitioner had lent money to Cawili in the latter's personal capacity.
Moreover, like petitioner, he had lent various sums to Cawili and in appreciation of his services, he was

offered to be an officer of Roma Oil Corporation. He averred that he was not Cawili's business associate; in
fact, he himself had filed several criminal cases against Cawili for violation of B.P. Blg. 22. Tongson denied that
he had issued the bounced checks and pointed out that his signatures on the said checks had been falsified.

To counter these allegations, petitioner presented several documents showing Tongson's signatures, which
were purportedly the same as the those appearing on the checks.7 He also showed a copy of an affidavit of
adverse claim wherein Tongson himself had claimed to be Cawili's business associate.8

In a resolution dated 6 December 1995,9 City Prosecutor III Eliodoro V. Lara found probable cause only
against Cawili and dismissed the charges against Tongson. Petitioner filed a partial appeal before the
Department of Justice (DOJ) even while the case against Cawili was filed before the proper court. In a letter-
resolution dated 11 July 1997,10 after finding that it was possible for Tongson to co-sign the bounced checks
and that he had deliberately altered his signature in the pleadings submitted during the preliminary
investigation, Chief State Prosecutor Jovencito R. Zuño directed the City Prosecutor of Quezon City to conduct
a reinvestigation of the case against Tongson and to refer the questioned signatures to the National Bureau of
Investigation (NBI).

Tongson moved for the reconsideration of the resolution, but his motion was denied for lack of merit.
On 15 March 1999, Assistant City Prosecutor Ma. Lelibet S. Sampaga (ACP Sampaga) dismissed the
complaint against Tongson without referring the matter to the NBI per the Chief State Prosecutor's resolution.
In her resolution,11 ACP Sampaga held that the case had already prescribed pursuant to Act No. 3326, as
amended,12 which provides that violations penalized by B.P. Blg. 22 shall prescribe after four (4) years. In this
case, the four (4)-year period started on the date the checks were dishonored, or on 20 January 1993 and 18
March 1993. The filing of the complaint before the Quezon City Prosecutor on 24 August 1995 did not interrupt
the running of the prescriptive period, as the law contemplates judicial, and not administrative proceedings.
Thus, considering that from 1993 to 1998, more than four (4) years had already elapsed and no information
had as yet been filed against Tongson, the alleged violation of B.P. Blg. 22 imputed to him had already
prescribed.13 Moreover, ACP Sampaga stated that the order of the Chief State Prosecutor to refer the matter to
the NBI could no longer be sanctioned under Section 3, Rule 112 of the Rules of Criminal Procedure because
the initiative should come from petitioner himself and not the investigating prosecutor.14 Finally, ACP Sampaga
found that Tongson had no dealings with petitioner.15

Petitioner appealed to the DOJ. But the DOJ, through Undersecretary Manuel A.J. Teehankee, dismissed the
same, stating that the offense had already prescribed pursuant to Act No. 3326.16 Petitioner filed a motion for
reconsideration of the DOJ resolution. On 3 April 2003,17 the DOJ, this time through then Undersecretary Ma.
Merceditas N. Gutierrez, ruled in his favor and declared that the offense had not prescribed and that the filing
of the complaint with the prosecutor's office interrupted the running of the prescriptive period citing Ingco v.
Sandiganbayan.18 Thus, the Office of the City Prosecutor of Quezon City was directed to file three (3) separate
informations against Tongson for violation of B.P. Blg. 22.19 On 8 July 2003, the City Prosecutor's Office filed
an information20 charging petitioner with three (3) counts of violation of B.P. Blg. 22.21

However, in a resolution dated 9 August 2004,22 the DOJ, presumably acting on a motion for reconsideration
filed by Tongson, ruled that the subject offense had already prescribed and ordered "the withdrawal of the
three (3) informations for violation of B.P. Blg. 22" against Tongson. In justifying its sudden turnabout, the DOJ
explained that Act No. 3326 applies to violations of special acts that do not provide for a prescriptive period for
the offenses thereunder. Since B.P. Blg. 22, as a special act, does not provide for the prescription of the
offense it defines and punishes, Act No. 3326 applies to it, and not Art. 90 of the Revised Penal Code which
governs the prescription of offenses penalized thereunder.23 The DOJ also cited the case of Zaldivia v. Reyes,
Jr.,24 wherein the Supreme Court ruled that the proceedings referred to in Act No. 3326, as amended, are
judicial proceedings, and not the one before the prosecutor's office.

Petitioner thus filed a petition for certiorari25 before the Court of Appeals assailing the 9 August 2004 resolution
of the DOJ. The petition was dismissed by the Court of Appeals in view of petitioner's failure to attach a proper
verification and certification of non-forum

shopping. The Court of Appeals also noted that the 3 April 2003 resolution of the DOJ attached to the petition
is a mere photocopy.26 Petitioner moved for the reconsideration of the appellate court's resolution, attaching to
said motion an amended Verification/Certification of Non-Forum Shopping.27 Still, the Court of Appeals denied
petitioner's motion, stating that subsequent compliance with the formal requirements would not per se warrant
a reconsideration of its resolution. Besides, the Court of Appeals added, the petition is patently without merit
and the questions raised therein are too unsubstantial to require consideration.28

In the instant petition, petitioner claims that the Court of Appeals committed grave error in dismissing his
petition on technical grounds and in ruling that the petition before it was patently without merit and the
questions are too unsubstantial to require consideration.

The DOJ, in its comment,29 states that the Court of Appeals did not err in dismissing the petition for non-
compliance with the Rules of Court. It also reiterates that the filing of a complaint with the Office of the City
Prosecutor of Quezon City does not interrupt the running of the prescriptive period for violation of B.P. Blg. 22.
It argues that under B.P. Blg. 22, a special law which does not provide for its own prescriptive period, offenses
prescribe in four (4) years in accordance with Act No. 3326.

Cawili and Tongson submitted their comment, arguing that the Court of Appeals did not err in dismissing the
petition for certiorari. They claim that the offense of violation of B.P. Blg. 22 has already prescribed per Act No.
3326. In addition, they claim that the long delay, attributable to petitioner and the State, violated their
constitutional right to speedy disposition of cases.30

The petition is meritorious.

First on the technical issues.

Petitioner submits that the verification attached to his petition before the Court of Appeals substantially
complies with the rules, the verification being intended simply to secure an assurance that the allegations in
the pleading are true and correct and not a product of the imagination or a matter of speculation. He points out
that this Court has held in a number of cases that a deficiency in the verification can be excused or dispensed
with, the defect being neither jurisdictional nor always fatal. 31

Indeed, the verification is merely a formal requirement intended to secure an assurance that matters which are
alleged are true and correct–the court may simply order the correction of unverified pleadings or act on them
and waive strict compliance with the rules in order that the ends of justice may be served,32 as in the instant
case. In the case at bar, we find that by attaching the pertinent verification to his motion for reconsideration,
petitioner sufficiently complied with the verification requirement.

Petitioner also submits that the Court of Appeals erred in dismissing the petition on the ground that there was
failure to attach a certified true copy or duplicate original of the 3 April 2003 resolution of the DOJ. We agree. A
plain reading of the petition before the

Court of Appeals shows that it seeks the annulment of the DOJ resolution dated 9 August 2004,33 a certified
true copy of which was attached as Annex "A."34 Obviously, the Court of Appeals committed a grievous
mistake.

Now, on the substantive aspects.

Petitioner assails the DOJ's reliance on Zaldivia v. Reyes,35 a case involving the violation of a municipal
ordinance, in declaring that the prescriptive period is tolled only upon filing of the information in court.
According to petitioner, what is applicable in this case is Ingco v. Sandiganbayan,36 wherein this Court ruled
that the filing of the complaint with the fiscal's office for preliminary investigation suspends the running of the
prescriptive period. Petitioner also notes that the Ingco case similarly involved the violation of a special law,
Republic Act (R.A.) No. 3019, otherwise known as the Anti-Graft and Corrupt Practices Act, petitioner
notes.37 He argues that sustaining the DOJ's and the Court of Appeals' pronouncements would result in grave
injustice to him since the delays in the present case were clearly beyond his control.38

There is no question that Act No. 3326, appropriately entitled An Act to Establish Prescription for Violations of
Special Acts and Municipal Ordinances and to Provide When Prescription Shall Begin, is the law applicable to
offenses under special laws which do not provide their own prescriptive periods. The pertinent provisions read:

Section 1. Violations penalized by special acts shall, unless otherwise provided in such acts, prescribe
in accordance with the following rules: (a) x x x; (b) after four years for those punished by imprisonment
for more than one month, but less than two years; (c) x x x

Sec. 2. Prescription shall begin to run from the day of the commission of the violation of the law, and if
the same be not known at the time, from the discovery thereof and the institution of judicial proceedings
for its investigation and punishment.

The prescription shall be interrupted when proceedings are instituted against the guilty person, and
shall begin to run again if the proceedings are dismissed for reasons not constituting jeopardy.

We agree that Act. No. 3326 applies to offenses under B.P. Blg. 22. An offense under B.P. Blg. 22
merits the penalty of imprisonment of not less than thirty (30) days but not more than one year or by a
 fine, hence, under Act No. 3326, a violation of B.P. Blg. 22 prescribes in four (4) years from the
commission of the offense or, if the same be not known at the time, from the discovery thereof.
Nevertheless, we cannot uphold the position that only the filing of a case in court can toll the running of
the prescriptive period.

It must be pointed out that when Act No. 3326 was passed on 4 December 1926, preliminary investigation of
criminal offenses was conducted by justices of the peace, thus, the phraseology in the law, "institution of
judicial proceedings for its investigation and punishment,"39 and the prevailing rule at the time was that once a
complaint is filed with the justice of the peace for preliminary investigation, the prescription of the offense is
halted.40

The historical perspective on the application of Act No. 3326 is illuminating.41 Act No. 3226 was approved on 4
December 1926 at a time when the function of conducting the preliminary investigation of criminal offenses
was vested in the justices of the peace. Thus, the prevailing rule at the time, as shown in the cases of U.S. v.
Lazada42 and People v. Joson,43 is that the prescription of the offense is tolled once a complaint is filed with the
justice of the peace for preliminary investigation inasmuch as the filing of the complaint signifies the

institution of the criminal proceedings against the accused.44 These cases were followed by our declaration
in People v. Parao and Parao45 that the first step taken in the investigation or examination of offenses partakes
the nature of a judicial proceeding which suspends the prescription of the offense.46 Subsequently, in People v.
Olarte,47 we held that the filing of the complaint in the Municipal Court, even if it be merely for purposes of
preliminary examination or investigation, should, and does, interrupt the period of prescription of the criminal
responsibility, even if the court where the complaint or information is filed cannot try the case on the merits. In
addition, even if the court where the complaint or information is filed may only proceed to investigate the case,
its actuations already represent the initial step of the proceedings against the offender,48and hence, the
prescriptive period should be interrupted.

In Ingco v. Sandiganbayan49 and Sanrio Company Limited v. Lim,50 which involved violations of the Anti-Graft
and Corrupt Practices Act (R.A. No. 3019) and the Intellectual Property Code (R.A. No. 8293), which are both
special laws, the Court ruled that the

prescriptive period is interrupted by the institution of proceedings for preliminary investigation against the
accused. In the more recent case of Securities and Exchange Commission v. Interport Resources Corporation,
et al.,51 the Court ruled that the nature and purpose of the investigation conducted by the Securities and
Exchange Commission on violations of the Revised Securities Act,52 another special law, is equivalent to the
preliminary investigation conducted by the DOJ in criminal cases, and thus effectively interrupts the
prescriptive period.

The following disquisition in the Interport Resources case53 is instructive, thus:

While it may be observed that the term "judicial proceedings" in Sec. 2 of Act No. 3326 appears before
"investigation and punishment" in the old law, with the subsequent change in set-up whereby the
investigation of the charge for purposes of prosecution has become the exclusive function of the
executive branch, the term "proceedings" should now be understood either executive or judicial in
character: executive when it involves the investigation phase and judicial when it refers to the trial and
judgment stage. With this clarification, any kind of investigative proceeding instituted against the guilty
person which may ultimately lead to his prosecution should be sufficient to toll prescription.54

Indeed, to rule otherwise would deprive the injured party the right to obtain vindication on account of delays
that are not under his control.55 A clear example would be this case, wherein petitioner filed his complaint-
affidavit on 24 August 1995, well within the four (4)-year prescriptive period. He likewise timely filed his appeals
and his motions for reconsideration on the dismissal of the charges against

Tongson. He went through the proper channels, within the prescribed periods. However, from the time
petitioner filed his complaint-affidavit with the Office of the City Prosecutor (24 August 1995) up to the time the
DOJ issued the assailed resolution, an aggregate period of nine (9) years had elapsed. Clearly, the delay was
beyond petitioner's control. After all, he had already initiated the active prosecution of the case as early as 24
August 1995, only to suffer setbacks because of the DOJ's flip-flopping resolutions and its misapplication of
Act No. 3326. Aggrieved parties, especially those who do not sleep on their rights and actively pursue their
causes, should not be allowed to suffer unnecessarily further simply because of circumstances beyond their
control, like the accused's delaying tactics or the delay and inefficiency of the investigating agencies.

We rule and so hold that the offense has not yet prescribed. Petitioner 's filing of his complaint-affidavit before
the Office of the City Prosecutor on 24 August 1995 signified the commencement of the proceedings for the
prosecution of the accused and thus effectively interrupted the prescriptive period for the offenses they had
been charged under B.P. Blg. 22. Moreover, since there is a definite finding of probable cause, with the
debunking of the claim of prescription there is no longer any impediment to the filing of the information against
petitioner.

WHEREFORE, the petition is GRANTED. The resolutions of the Court of Appeals dated 29 October 2004 and
21 March 2005 are REVERSED and SET ASIDE. The resolution of the Department of Justice dated 9 August
2004 is also ANNULLED and SET ASIDE. The Department of Justice is ORDERED to REFILE the information
against the petitioner.

No costs.

SO ORDERED.

G.R. No. 168918 March 2, 2009

PEOPLE OF THE PHILIPPINES, Petitioner,

vs.
HERMENEGILDO DUMLAO y CASTILIANO and EMILIO LA'O y GONZALES, Respondents.

DECISION

CHICO-NAZARIO, J.:

On appeal is the Resolution1 of the Sandiganbayan in Criminal Case No. 16699 dated 14 July 2005 which
granted the Motion to Dismiss/Quash of respondent Hermenegildo C. Dumlao and dismissed the case against
him. The Sandiganbayan likewise ordered the case against respondent Emilio G. La’o archived. The
dispositive portion of the resolution reads:
WHEREFORE, finding the Motion to Dismiss/Quash filed by accused Hermenegildo C. Dumlao to be
meritorious this case as against him is hereby ordered DISMISSED.

The cash bond posted by him is hereby cancelled and accused Dumlao is allowed to withdraw the same from
the Cashier’s Office of this Court.

The hold departure order issued by this Court against herein accused Dumlao is lifted and set aside.

The Commissioner of the Bureau of Immigration and Deportation is ordered to cancel the name of accused
Hermenegildo C. Dumlao from the Bureau’s Hold Departure List.

This case as against Emilio La’o who is still at large is ordered archived.2

On 19 July 1991, an Amended Information was filed before the Sandiganbayan charging respondents Dumlao
and La’o, Aber P. Canlas, Jacobo C. Clave, Roman A. Cruz, Jr. and Fabian C. Ver with violation of Section
3(g) of Republic Act No. 3019, as amended, otherwise known as the Anti-Graft and Corrupt Practices Act. The
case was docketed as Criminal Case No. 16699. The accusatory portion of the information reads:

That on or about May 10, 1982, or for sometime prior or subsequent thereto, in Manila, Philippines, and within
the jurisdiction of this Honorable Court, the accused Hermenegildo C. Dumlao, Aber Canlas, Jacobo C. Clave,
Roman A. Cruz, Jr., and Fabian C. Ver, being then the members of the Board of Trustees of the Government
Service Insurance System (GSIS) which is a government corporation and therefore all public officers,
conspiring and confederating together and mutually helping one another, while in the performance of their
official functions, did then and there willfully, unlawfully and criminally enter into contract of lease-purchase with
Emilio G. La’o, a private person whereby the GSIS agreed to sell to said Emilio G. La’o, a GSIS acquired
property consisting of three parcels of land with an area of 821 square meters together with a 5-storey building
situated at 1203 A. Mabini St., Ermita, Manila, known as the Government Counsel Centre for the sum of
₱2,000,000.00 with a down payment of ₱200,000.00 with the balance payable in fifteen years at 12% interest
per annum compounded yearly, with a yearly amortization of ₱264,278.37 including principal and interest
granting Emilio G. La’o the right to sub-lease the ground floor for his own account during the period of lease,
from which he collected yearly rentals in excess of the yearly amortization which contract is manifestly and
grossly disadvantageous to the government.3

When arraigned on 9 November 2004, respondent Dumlao, with the assistance of counsel de parte, pleaded
"not guilty" to the offense charged.4 As agreed upon by the prosecution and respondent Dumlao, a Joint
Stipulation of Facts and Admission of Exhibits was submitted to the court on 10 January 2005.5 On the basis
thereof, the court issued on 19 January 2005 the following Pre-Trial Order:

PRE-TRIAL ORDER

The Prosecution and Accused Hermenegildo C. Dumlao, as assisted by counsel, submitted their "JOINT
STIPULATION OF FACTS AND ADMISSION OF EXHIBITS" dated December 21, 2004, quoted hereunder:

I. STIPULATION OF FACTS

The Prosecution and Accused Dumlao jointly stipulate on the following:

1. That at the time material to this case, the following were members of the Board of Trustees of the
Government Service Insurance System (GSIS):

a. Hermenegildo C. Dumlao

b. Aber P. Canlas

c. Jacobo C. Clave
 d. Roman A. Cruz

e. Fabian C. Ver

f. Leonilo M. Ocampo and

g. Benjamin C. Morales;

2. That Emilio Gonzales La’o is a private person;

3. That GSIS was the owner of a property consisting of three (3) parcels of land with an area of 821
square meters, together with a 5-storey building situated as 1203 A. Mabini Street, Ermita, Manila
known as the Government Counsel Centre;

4. That on June 22, 1978, the GSIS entered into a Lease-Purchase Agreement with the Republic of the
Philippines through the Office of the Government Corporate Counsel (OGCC) involving the property
described under paragraph 3 above, for a consideration of ₱1.5 million payable in equal yearly
amortizations for a period of fifteen (15) years with zero interest. The period should commence after the
GSIS shall have renovated the building according to the specification of the OGCC;

5. That in accordance with the June 22, 1978 Lease-Purchase Agreement, the 5-storey building was
renovated. Thereafter, the OGCC occupied the same;

6. That Ferdinand E. Marcos was, at all-times material hereto, the President of the Republic of the
Philippines;

7. That then President was at all times material hereto, legislating through the issuance of Presidential
Decrees, Executive Orders and the like;

8. That among the three Members of the Board who signed the Minutes only accused Dumlao was
charged in this case;

9. That there are only seven (7) members of the Board of Trustees of the GSIS present during the
board meeting held on April 23, 1982;

10. Exhibit "A" and "1" entitled Agreement was signed by Luis A. Javellana, for and in behalf of the
GSIS, Felipe S. Aldaña, for and [in] behalf of the Republic of the Philippines thru Government
Corporate Counsel, and Emilio Gonzales La’o, as buyer.

II. DOCUMENTARY EVIDENCE

The Prosecution and Accused Dumlao admitted the authenticity and due execution of the following
documentary evidence:

EXHIBITS DESCRIPTION
"A" (also Exhibit "1" for The Agreement executed by and among the
accused Dumlao GSIS, the Republic of the Philippines,
through OGCC and accused Emilio
Gonzales La’o on May 10, 1982, consisting
of 11 pages;

"B" (also Exhibit "2" for The pertinent portion, including the
 accused Dumlao) signature page, of Minutes of Meeting No.
14 of the GSIS Board of Trustees held on
April 23, 1982, specifically containing item
no. 326 regarding the approval of the
proposed Agreement by and among the
GSIS, the Republic of the Philippines
through the OGCC and accused Emilio
Gonzales La’o, consisting of 5 pages.

III. RESERVATION

The Prosecution and Accused Dumlao reserve the right to mark and offer in evidence the documents
mentioned in their respective Pre-Trial Briefs, as well as to present the witnesses listed therein.

IV. ISSUE

Whether or not accused Dumlao is liable for violation of Section 3(g), RA 3019.

WHEREFORE, with the submission by the parties of their Joint Stipulation of Facts, the pre-trial is deemed
terminated. Let the above-mentioned joint stipulation as recited in this pre-trial order bind the parties, limit the
trial to matters not disposed of, and control the course of the proceedings in this case unless modified by the
Court to prevent manifest injustice.6

On 21 February 2005, respondent Dumlao filed a Motion to Dismiss/Quash on the ground that the facts
charged do not constitute an offense.7 He stated that the prosecution’s main thrust against him was the alleged
approval by the Government Service Insurance System (GSIS) Board of Trustees -- of which he was a
member -- of the Lease-Purchase Agreement entered into by and among the GSIS, the Office of the
Government Corporate Counsel (OGCC) and respondent La’o. He argued that the allegedly approved Board
Resolution was not in fact approved by the GSIS Board of Trustees, contrary to the allegations in the
information. Since the signatures of Fabian Ver, Roman Cruz, Aber Canlas and Jacobo Clave did not appear in
the minutes of the meeting held on 23 April 1982, he said it was safe to conclude that these people did not
participate in the alleged approval of the Lease-Purchase Agreement. This being the case, he maintained that
there was no quorum of the board to approve the supposed resolution authorizing the sale of the GSIS
property. There being no approval by the majority of the Board of Trustees, there can be no resolution
approving the Lease-Purchase Agreement. The unapproved resolution, he added, proved his innocence. He
further contended that the person to be charged should be Atty. Luis Javellana, who sold the subject property
to respondent La’o without the proper authority. He likewise wondered why he alone was charged without
including the other two signatories in the minutes of the meeting held on 23 April 1982.

On 14 July 2005, the Sandiganbayan issued the assailed resolution. It ruled:

The Court finds the motion meritorious. The minutes of the meeting held on April 23, 1982 of the Board of
Trustees of GSIS shows that the Board failed to approve the Lease-Purchase Agreement in question. As
stipulated upon by both parties out of the seven (7) members of GSIS Board of Trustees only three (3)
members signed the minutes, the others did not. In order to validly pass a resolution at least a majority of four
(4) members of the Board of Trustees must sign and approve the same.1avvphi1

No amount of evidence can change the fact that Resolution dated April 23, 1982 was not validly passed by the
Board of Trustees of GSIS since it was only signed by three (3) members of the Board. Thus, it never had the
force and effect of a valid resolution and did not in effect approve the Lease and Purchase Agreement subject
matter hereof. Therefore, the prosecution has no cause of action against herein movant-accused
Hermenegildo C. Dumlao.8

On 2 September 2005, the People of the Philippines, represented by the Office of the Ombudsman, thru the
Office of the Special Prosecutor, filed a petition for certiorari9 under Rule 45 of the Rules of Court seeking the
reversal and setting aside of the Sandiganbayan Resolution dismissing the case against respondent Dumlao.
Petitioner raises the following issues:

I) WHETHER OR NOT THE COURT A QUO ACTED IN ACCORDANCE WITH LAW AND JURISPRUDENCE
WHEN IT RESOLVED TO DISMISS CRIMINAL CASE NO. 16699 AS AGAINST RESPONDENT DUMLAO
AFTER THE PRE-TRIAL AND BEFORE THE PETITIONER COULD PRESENT ITS WITNESSES AND
FORMALLY OFFER ITS EXHIBITS.

II) WHETHER OR NOT THE SIGNATURES OF THE MAJORITY OF THE GSIS BOARD OF TRUSTEES ARE
NECESSARY ON THE MINUTES OF MEETING NO. 14 DATED 23 APRIL 1982 TO GIVE FORCE AND
EFFECT TO RESOLUTION NO. 326 APPROVING THE PROPOSED AGREEMENT BY AND AMONG THE
GSIS, THE OGCC AND RESPONDENT EMILIO LA’O.

III) WHETHER OR NOT THE VALIDITY OF THE CONTRACT IS AN ESSENTIAL ELEMENT OF VIOLATION
OF SECTION 3(G), RA 3019.

IV) WHETHER OR NOT THE COURT A QUO ACTED IN ACCORDANCE WITH LAW AND
JURISPRUDENCE WHEN IT RESOLVED TO ARCHIVE THE CASE AGAINST RESPONDENT LA’O.

On the other hand, respondent Dumlao proffers the following grounds to support the dismissal of the case
against him:

1. TO GIVE DUE COURSE TO THE OMBUDSMAN’S PETITION IS TO PLACE DUMLAO IN DOUBLE

JEOPARDY, IN VIOLATION OF HIS CONSTITUTIONAL RIGHTS;

2. THE SANDIGANBAYAN COULD NOT BE SAID TO HAVE GRAVELY ABUSED ITS DISCRETION
AMOUNTING TO LACK OF JURISDICTION BECAUSE IT MERELY FOLLOWED THE RULE ON PRE-TRIAL
AND DECIDED THE CASE ON THE BASIS OF THE FACTS STIPULATED IN THE PRE-TRIAL;

3. THE FACTS AS AGREE (SIC) BY THE PROSECUTION AND RESPONDENT DUMLAO IN THEIR PRE-
TRIAL STIPULATION AND AS APPROVED BY THE SANDIGANBAYAN SHOWED THAT HE DID NOT
COMMIT ANY CRIME; AND

4. CONTINUALLY PROSECUTING DUMLAO, TO THE EXCLUSION OF OTHER GSIS TRUSTEES, UNDER

THE CIRCUMSTANCES OBTAINING, CONSTITUTES UNFAIR DISCRIMINATION AND VIOLATION OF HIS
CONSTITUTIONAL RIGHT TO EQUAL PROTECTION OF THE LAW.10

Petitioner argues it was denied its right to due process when the court a quo dismissed the case against
respondent Dumlao after pre-trial and before it could present its witnesses and formally offer its exhibits. The
court a quo deprived it of the opportunity to prove its case – that the Resolution dated 23 April 1982 was
passed by the GSIS Board of Trustees and that the Lease-Purchase Agreement was grossly and manifestly
disadvantageous to the government.

Respondent Dumlao was charged, he being one of the members of the GSIS Board of Trustees who allegedly
approved the lease-purchase of the subject GSIS properties consisting of three parcels of land with an area of
821 square meters, together with a five-storey building, in favor of respondent La’o, which lease-purchase
agreement was deemed by the Office of the Ombudsman to be grossly disadvantageous to the government.

A review of the Motion to Dismiss/Quash filed by respondent Dumlao reveals that the ground he invoked was
that "the facts charged do not constitute an offense." He contends that the alleged approved Board Resolution
was not approved by the GSIS Board of Trustees, contrary to the allegation in the information. Since the
signatures of four out of the seven members of the board did not appear in the minutes of the meeting held on
23 April 1982, there was no quorum present or no majority that approved the supposed resolution. This being
the case, he asserts that there was no resolution adopted by the GSIS Board of Trustees approving the sale of
the subject properties to respondent La’o.
The Sandiganbayan, basing its resolution on the Pre-trial Stipulation entered into by the prosecution and
respondent Dumlao, dismissed the case against the latter, since it found that the GSIS Board of Trustees failed
to approve or validly pass the Lease-Purchase Agreement, because only three out of the seven members of
the Board signed the minutes of the meeting held on 23 April 1982. It explained that, "no amount of evidence
can change the fact that the Resolution dated April 23, 1982 was not validly passed by the Board of Trustees
of GSIS since it was only signed by three members of the Board. Thus, it never had the force and effect of a
valid resolution and did not in effect approve the Lease and Purchase Agreement subject matter hereof.
Therefore, the prosecution has no cause of action against herein movant-accused Hermenegildo C. Dumlao."

The ground raised by respondent Dumlao in his Motion to Quash/Dismiss is that the facts charged do not
constitute an offense. The fundamental test in determining the sufficiency of the material averments of an
information is whether the facts alleged therein, which are hypothetically admitted, would establish the
essentials elements of the crime defined by law. Evidence aliunde, or matters extrinsic of the Information, are
not be considered.11

The elements of the crime under Section 3(g) of Republic Act No. 3019 are as follows: (1) that the accused is a
public officer; (2) that he entered into a contract or transaction on behalf of the government; and (3) that such
contract or transaction is grossly and manifestly disadvantageous to the government.12

After examining the information, we find that the facts alleged therein, if hypothetically admitted, will prove all
the elements of Section 3(g) as against respondent Dumlao.

It can be gathered from the resolution of the Sandiganbayan that it did consider the ground invoked by Dumlao
(that the facts charged do not constitute an offense); otherwise, it could have denied respondent Dumlao’s
motion. From the reasoning given by the Sandiganbayan, it is clear that it dismissed the case because of
insufficiency of evidence.

Insufficiency of evidence is not one of the grounds of a Motion to Quash. The grounds, as enumerated in
Section 3, Rule 117 of the Revised Rules of Criminal Procedure, are as follows:

(a) That the facts charged do not constitute an offense;

(b) That the court trying the case has no jurisdiction over the offense charged;

(c) That the court trying the case has no jurisdiction over the person of the accused;

(d) That the officer who filed the information had no authority to do so;

(e) That it does not conform substantially to the prescribed form;

(f) That more than one offense is charged except when a single punishment for various offenses is
prescribed by law;

(g) That the criminal action or liability has been extinguished;

(h) That it contains averments which, if true, would constitute a legal excuse or justification; and

(i) That the accused has been previously convicted or acquitted of the offense charged, or the case
against him was dismissed or otherwise terminated without his express consent.

Insufficiency of evidence is a ground for dismissal of an action only after the prosecution rests its case. Section
23, Rule 119 of the Revised Rules of Criminal Procedure provides:
Sec. 23. Demurrer to evidence. – After the prosecution rests its case, the court may dismiss the action on the
ground of insufficiency of evidence (1) on its own initiative after giving the prosecution the opportunity to be
heard or (2) upon demurrer to evidence filed by the accused with or without leave of court.

In the case under consideration, the Sandiganbayan dismissed the case against respondent for insufficiency of
evidence, even without giving the prosecution the opportunity to present its evidence. In so doing, it violated
the prosecution’s right to due process. It deprived the prosecution of its opportunity to prosecute its case and to
prove the accused’s culpability.

It was therefore erroneous for the Sandiganbayan to dismiss the case under the premises. Not only did it not
consider the ground invoked by respondent Dumlao; it even dismissed the case on a ground not raised by him,
and not at the appropriate time. The dismissal was thus without basis and untimely.

On the second issue raised by petitioner, it maintains that the Sandiganbayan erred in equating, or confusing,
the minutes of the meeting of 23 April 1982 with Resolution No. 326, which allegedly approved the lease-
purchase agreement on the GSIS properties, entered into with respondent La’o. It argues that the
Sandiganbayan incorrectly ruled that the Resolution dated 23 April 1982 regarding the lease-purchase of the
GSIS properties was not approved, because only three out of the seven members of the GSIS Board of
Trustees signed the minutes of the meeting of 23 April 1982.

We agree with petitioner that the Sandiganbayan erred in equating the minutes of the meeting with the
supposed resolution of the GSIS Board of Trustees. A resolution is distinct and different from the minutes of
the meeting. A board resolution is a formal action by a corporate board of directors or other corporate body
authorizing a particular act, transaction, or appointment.13 It is ordinarily special and limited in its operation,
applying usually to some single specific act or affair of the corporation; or to some specific person, situation or
occasion.14 On the other hand, minutes are a brief statement not only of what transpired at a meeting, usually
of stockholders/members or directors/trustees, but also at a meeting of an executive committee. The minutes
are usually kept in a book specially designed for that purpose, but they may also be kept in the form of
memoranda or in any other manner in which they can be identified as minutes of a meeting. 15

The Sandiganbayan concluded that since only three members out of seven signed the minutes of the meeting
of 23 April 1982, the resolution approving the Lease-Purchase Agreement was not passed by the GSIS Board
of Trustees. Such conclusion is erroneous. The non-signing by the majority of the members of the GSIS Board
of Trustees of the said minutes does not necessarily mean that the supposed resolution was not approved by
the board. The signing of the minutes by all the members of the board is not required. There is no provision in
the Corporation Code of the Philippines16 that requires that the minutes of the meeting should be signed by all
the members of the board.

The proper custodian of the books, minutes and official records of a corporation is usually the corporate
secretary. Being the custodian of corporate records, the corporate secretary has the duty to record and
prepare the minutes of the meeting. The signature of the corporate secretary gives the minutes of the meeting
probative value and credibility.17 In this case, Antonio Eduardo B. Nachura,18 Deputy Corporate Secretary,
recorded, prepared and certified the correctness of the minutes of the meeting of 23 April 1982; and the same
was confirmed by Leonilo M. Ocampo, Chairman of the GSIS Board of Trustees. Said minutes contained the
statement that the board approved the sale of the properties, subject matter of this case, to respondent La’o.

The minutes of the meeting of 23 April 1982 were prepared by the Deputy Corporate Secretary of the GSIS
Board of Trustees. Having been made by a public officer, the minutes carry the presumption of regularity in the
performance of his functions and duties. Moreover, the entries contained in the minutes are prima facie
evidence of what actually took place during the meeting, pursuant to Section 44, Rule 130 of the Revised Rule
on Evidence.19 This being the case, the Sandiganbayan erred in dismissing the case, because there was
evidence, at that time, when it dismissed the case against respondent Dumlao. The dismissal by the lower
court of the case against respondent Dumlao was indeed premature. It should have given the prosecution the
opportunity to fully present its case and to establish reasonable doubt on the alleged approval by the GSIS
Board of Trustees of the lease-purchase of the GSIS properties.
Petitioner likewise faults the Sandiganbayan for archiving the case against respondent La’o, arguing that since
he had already been arraigned, it should have ordered the prosecution to adduce evidence against him.

We agree. However, said issue has already been mooted by the death of respondent La’o.20 The death of an
accused prior to final judgment terminates his criminal as well as civil liability based solely
thereon.21 Accordingly, the case against respondent La’o was dismissed.22

In support of the dismissal of the case against him, respondent Dumlao contends that to give due course to the
Ombudsman’s petition would place him in double jeopardy, in violation of his constitutional rights. Respondent
Dumlao asserts that all the elements of double jeopardy are present in the case at bar. Citing Heirs of Tito
Rillorta v. Firme,23 he added: "[A]ssuming arguendo that the Sandiganbayan committed an error, whatever
error may have been committed by the Sandiganbayan was merely an error of judgment and not of jurisdiction.
It did not affect the intrinsic validity of the decision. This is the kind of error that can no longer be rectified on
appeal by the prosecution, no matter how obvious the error may be."

To raise the defense of double jeopardy, three requisites must be present: (1) a first jeopardy must have
attached prior to the second; (2) the first jeopardy must have been validly terminated; and (3) the second
jeopardy must be for the same offense as that in the first.24 The first jeopardy attaches attaches only (1) upon a
valid indictment; (2) before a competent court; (3) after arraignment; (4) when a valid plea has been entered;
and (5) when the defendant was convicted or acquitted, or the case was dismissed or otherwise terminated
without the express consent of the accused.25

We do not agree. In the instant case, double jeopardy has not yet set in. The first jeopardy has not yet
attached. There is no question that four of the five elements of legal jeopardy are present. However, we find
the last element – valid conviction, acquittal, dismissal or termination of the case – wanting. As previously
discussed, the Sandignabayan violated the prosecution’s right to due process. The prosecution was deprived
of its opportunity to prosecute its case and to prove the accused’s culpability. The dismissal was made in a
capricious and whimsical manner. The trial court dismissed the case on a ground not invoked by the
respondent. The Sandiganbayan dismissed the case for insufficiency of evidence, while the ground invoked by
the respondent was that the facts charged did not constitute an offense. The dismissal was clearly premature,
because any dismissal based on insufficiency of evidence may only be made after the prosecution rests its
case and not at any time before then.26 A purely capricious dismissal of an information deprives the State of a
fair opportunity to prosecute and convict. It denies the prosecution a day in court. It is void and cannot be the
basis of double jeopardy.27

The cardinal precept is that where there is a violation of basic constitutional rights, courts are ousted of their
jurisdiction. Where the denial of the fundamental right to due process is apparent, a decision in disregard of the
right is void for lack of jurisdiction.28 In the instant case, there was no error of judgment but a denial of due
process resulting in loss of jurisdiction. Respondent Dumlao would not be placed in double jeopardy
because, from the very beginning, the Sandiganbayan had acted without jurisdiction. Precisely, any ruling
issued without jurisdiction is, in legal contemplation, necessarily null and void and does not exist.29 Otherwise
put, the dismissal of the case below was invalid for lack of a fundamental prerequisite, that is, due process. In
rendering the judgment of dismissal, the trial court acted without or in excess of jurisdiction, for a judgment
which is void for lack of due process is equivalent to excess or lack of jurisdiction.30 This being the case, the
prosecution is allowed to appeal because it was not given its day in court.

As heretofore explained, the Sandiganbayan gravely abused its discretion amounting to lack of jurisdiction
when it dismissed the case against respondent Dumlao based only on the stipulations made by the parties
during pre-trial. The erroneous equation of the number of members who signed the minutes of the meeting with
the number of members who approved the alleged resolution necessarily led to the Sandiganbayan’s faulty
conclusion that there was no evidence showing that the GSIS Board of Trustees approved the alleged Lease-
Purchase Agreement. As we have said, the minutes issued by the Depute Corporate Secretary were enough,
at that time, to set the case for trial and to allow the prosecution to prove its case and to present all its
witnesses and evidence.
Respondent Dumlao claims that the GSIS has not been prejudiced because it still owns the properties subject
matter of this case. This Court cannot rule on this claim, the same being a factual issue and a defense he is
raising. The appreciation of this claim is not proper in this forum and is better left to the trial court, since the
Supreme Court is not a trier of facts.31

Respondent Dumlao maintains he was charged with conspiring with the other GSIS Board Members in
approving the Lease-Purchase Agreement. However, of the seven members, two died, two were acquitted and
the other two were not charged. He was left alone. He argues that since a conspiracy requires two or more
persons agreeing to commit a crime, he can no longer be charged because he was left alone to face a charge
of conspiracy.

His assumption that he can no longer be charged because he was left alone -- since the co-conspirators have
either died, have been acquitted or were not charged -- is wrong. A conspiracy is in its nature a joint offense.
One person cannot conspire alone. The crime depends upon the joint act or intent of two or more person. Yet,
it does not follow that one person cannot be convicted of conspiracy. As long as the acquittal or death of a co-
conspirator does not remove the basis of a charge of conspiracy, one defendant may be found guilty of the
offense.32 In the case at bar, the absence or presence of conspiracy is again factual in nature and involves
evidentiary matters. The same is better left ventilated before the trial court during trial, where the parties can
adduce evidence to prove or disprove its presence.

Lastly, respondent Dumlao submits that his prosecution, to the exclusion of others, constitutes unfair
discrimination and violates his constitutional right to equal protection of the law. He says that the dismissal of
the case against his co-accused Canlas and Clave were not appealed by the prosecution; and the two
government officials who signed the Lease-Purchase Agreement, and the two other members (Ocampo and
Morales) of the GSIS Board of Trustees who signed the minutes were not charged.

We are not convinced that respondent Dumlao was unfairly discriminated against and his constitutional right to
equal protection violated. It must be remembered that the manner in which the prosecution of the case is
handled is within the sound discretion of the prosecutor, and the non-inclusion of other guilty persons is
irrelevant to the case against the accused.33 We find that there was no clear and intentional discrimination in
charging respondent Dumlao. A discriminatory purpose is never presumed.34 It must be remembered that it
was not solely respondent who was charged, but also five of the seven board members. If, indeed, there were
discrimination, respondent Dumlao alone could have been charged. But this was not the case. Further, the fact
that the dismissal of the case against his co-accused Canlas and Clave was not appealed is not sufficient to
cry discrimination. This is likewise true for the non-inclusion of the two government officials who signed the
Lease-Purchase Agreement and the other two board members. Mere speculation, unsupported by convincing
evidence, cannot establish discrimination on the part of the prosecution and the denial to respondent of the
equal protection of the laws.

In Santos v. People,35 citing People v. Dela Piedra,36 the Court explained:

The prosecution of one guilty person while others equally guilty are not prosecuted, however, is not, by itself, a
denial of the equal protection of the laws. Where the official action purports to be in conformity to the statutory
classification, an erroneous or mistaken performance of the statutory duty, although a violation of the statute, is
not without more a denial of the equal protection of the laws. The unlawful administration by officers of a
statute fair on its face, resulting in its unequal application to those who are entitled to be treated alike, is not a
denial of equal protection unless there is shown to be present in it an element of intentional or purposeful
discrimination. This may appear on the face of the action taken with respect to a particular class or person, or it
may only be shown by extrinsic evidence showing a discriminatory design over another not to be inferred from
the action itself. But a discriminatory purpose is not presumed, there must be a showing of "clear and
intentional discrimination."Appellant has failed to show that, in charging appellant in court, that there was a
"clear and intentional discrimination" on the part of the prosecuting officials.

The discretion of who to prosecute depends on the prosecution’s sound assessment whether the evidence
before it can justify a reasonable belief that a person has committed an offense. The presumption is that the
prosecuting officers regularly performed their duties, and this presumption can be overcome only by
proof to the contrary, not by mere speculation. Indeed, appellant has not presented any evidence to
overcome this presumption. The mere allegation that appellant, a Cebuana, was charged with the commission
of a crime, while a Zamboangueña, the guilty party in appellant’s eyes, was not, is insufficient to support a
conclusion that the prosecution officers denied appellant equal protection of the laws.

There is also common sense practicality in sustaining appellant’s prosecution.

While all persons accused of crime are to be treated on a basis of equality before the law, it does not
follow that they are to be protected in the commission of crime. It would be unconscionable, for instance,
to excuse a defendant guilty of murder because others have murdered with impunity. The remedy for unequal
enforcement of the law in such instances does not lie in the exoneration of the guilty at the expense of
society x x x. Protection of the law will be extended to all persons equally in the pursuit of their lawful
occupations, but no person has the right to demand protection of the law in the commission of a crime.

Likewise, [i]f the failure of prosecutors to enforce the criminal laws as to some persons should be converted
into a defense for others charged with crime, the result would be that the trial of the district attorney for
nonfeasance would become an issue in the trial of many persons charged with heinous crimes and the
enforcement of law would suffer a complete breakdown. (Emphases ours.)

WHEREFORE, premises considered, the instant petition is GRANTED. The resolution of the Sandiganbayan in
Criminal Case No. 16699 dated 14 July 2005 granting the Motion to Dismiss/Quash of respondent
Hermenegildo C. Dumlao, is hereby REVERSED and SET ASIDE. The Sandiganbayan is forthwith DIRECTED
to set the case for the reception of evidence for the prosecution.

As to respondent Emilio G. La’o, on account of his demise, the case against him is DISMISSED.

SO ORDERED.

G.R. No. 162336 February 1, 2010

HILARIO P. SORIANO, Petitioner,

vs.
PEOPLE OF THE PHILIPPINES, BANGKO SENTRAL NG PILIPINAS (BSP), PHILIPPINE DEPOSIT
INSURANCE CORPORATION (PDIC), PUBLIC PROSECUTOR ANTONIO C.BUAN, and STATE
PROSECUTOR ALBERTO R. FONACIER, Respondents.

DECISION

DEL CASTILLO, J.:

A bank officer violates the DOSRI2 law when he acquires bank funds for his personal benefit, even if such
acquisition was facilitated by a fraudulent loan application. Directors, officers, stockholders, and their related
interests cannot be allowed to interpose the fraudulent nature of the loan as a defense to escape culpability for
their circumvention of Section 83 of Republic Act (RA) No. 337.3
Before us is a Petition for Review on Certiorari4 under Rule 45 of the Rules of Court, assailing the September
26, 2003 Decision5 and the February 5, 2004 Resolution6 of the Court of Appeals (CA) in CA-G.R. SP No.
67657. The challenged Decision disposed as follows:

WHEREFORE, premises considered, the instant petition for certiorari is hereby DENIED.7

Factual Antecedents

Sometime in 2000, the Office of Special Investigation (OSI) of the Bangko Sentral ng Pilipinas (BSP), through
its officers,8 transmitted a letter9 dated March 27, 2000 to Jovencito Zuño, Chief State Prosecutor of the
Department of Justice (DOJ). The letter attached as annexes five affidavits,10 which would allegedly serve as
bases for filing criminal charges for Estafa thru Falsification of Commercial Documents, in relation to
Presidential Decree (PD) No. 1689,11 and for Violation of Section 83 of RA 337, as amended by PD
1795,12 against, inter alia, petitioner herein Hilario P. Soriano. These five affidavits, along with other
documents, stated that spouses Enrico and Amalia Carlos appeared to have an outstanding loan of ₱8 million
with the Rural Bank of San Miguel (Bulacan), Inc. (RBSM), but had never applied for nor received such loan;
that it was petitioner, who was then president of RBSM, who had ordered, facilitated, and received the
proceeds of the loan; and that the ₱8 million loan had never been authorized by RBSM's Board of Directors
and no report thereof had ever been submitted to the Department of Rural Banks, Supervision and
Examination Sector of the BSP. The letter of the OSI, which was not subscribed under oath, ended with a
request that a preliminary investigation be conducted and the corresponding criminal charges be filed against
petitioner at his last known address.

Acting on the letter-request and its annexes, State Prosecutor Albert R. Fonacier proceeded with the
preliminary investigation. He issued a subpoena with the witnesses’ affidavits and supporting documents
attached, and required petitioner to file his counter-affidavit. In due course, the investigating officer issued a
Resolution finding probable cause and correspondingly filed two separate informations against petitioner
before the Regional Trial Court (RTC) of Malolos, Bulacan.13

The first Information,14 dated November 14, 2000 and docketed as Criminal Case No. 237-M-2001, was for
estafa through falsification of commercial documents, under Article 315, paragraph 1(b), of the Revised Penal
Code (RPC), in relation to Article 172 of the RPC and PD 1689. It basically alleged that petitioner and his co-
accused, in abuse of the confidence reposed in them as RBSM officers, caused the falsification of a number of
loan documents, making it appear that one Enrico Carlos filled up the same, and thereby succeeded in
securing a loan and converting the loan proceeds for their personal gain and benefit.15 The information reads:

That in or about the month of April, 1997, and thereafter, in San Miguel, Bulacan, and within the jurisdiction of
this Honorable Court, the said accused HILARIO P. SORIANO and ROSALINDA ILAGAN, as principals by
direct participation, with unfaithfulness or abuse of confidence and taking advantage of their position as
President of the Rural Bank of San Miguel (Bulacan), Inc. and Branch Manager of the Rural Bank of San
Miguel – San Miguel Branch [sic], a duly organized banking institution under Philippine Laws, conspiring,
confederating and mutually helping one another, did then and there, willfully and feloniously falsify loan
documents consisting of undated loan application/information sheet, credit proposal dated April 14, 1997,
credit proposal dated April 22, 1997, credit investigation report dated April 15, 1997, promissory note dated
April 23, 1997, disclosure statement on loan/credit transaction dated April 23, 1997, and other related
documents, by making it appear that one Enrico Carlos filled up the application/information sheet and filed the
aforementioned loan documents when in truth and in fact Enrico Carlos did not participate in the execution of
said loan documents and that by virtue of said falsification and with deceit and intent to cause damage, the
accused succeeded in securing a loan in the amount of eight million pesos (PhP8,000,000.00) from the Rural
Bank of San Miguel – San Ildefonso branch in the name of Enrico Carlos which amount of PhP8 million
representing the loan proceeds the accused thereafter converted the same amount to their own personal gain
and benefit, to the damage and prejudice of the Rural Bank of San Miguel – San Ildefonso branch, its creditors,
the Bangko Sentral ng Pilipinas, and the Philippine Deposit Insurance Corporation.

CONTRARY TO LAW.16
The other Information17 dated November 10, 2000 and docketed as Criminal Case No. 238-M-2001, was for
violation of Section 83 of RA 337, as amended by PD 1795. The said provision refers to the prohibition against
the so-called DOSRI loans. The information alleged that, in his capacity as President of RBSM, petitioner
indirectly secured an ₱8 million loan with RBSM, for his personal use and benefit, without the written consent
and approval of the bank's Board of Directors, without entering the said transaction in the bank's records, and
without transmitting a copy of the transaction to the supervising department of the bank. His ruse was
facilitated by placing the loan in the name of an unsuspecting RBSM depositor, one Enrico Carlos.18 The
information reads:

That in or about the month of April, 1997, and thereafter, and within the jurisdiction of this Honorable Court, the
said accused, in his capacity as President of the Rural Bank of San Miguel (Bulacan), Inc., did then and there,
willfully and feloniously indirectly borrow or secure a loan with the Rural Bank of San Miguel – San Ildefonso
branch, a domestic rural banking institution created, organized and existing under Philippine laws, amounting
to eight million pesos (PhP8,000,000.00), knowing fully well that the same has been done by him without the
written consent and approval of the majority of the board of directors of the said bank, and which consent and
approval the said accused deliberately failed to obtain and enter the same upon the records of said banking
institution and to transmit a copy thereof to the supervising department of the said bank, as required by the
General Banking Act, by using the name of one depositor Enrico Carlos of San Miguel, Bulacan, the latter
having no knowledge of the said loan, and one in possession of the said amount of eight million pesos
(PhP8,000,000.00), accused converted the same to his own personal use and benefit, in flagrant violation of
the said law.

CONTRARY TO LAW.19

Both cases were raffled to Branch 79 of the RTC of Malolos, Bulacan.20

On June 8, 2001, petitioner moved to quash21 these informations on two grounds: that the court had no
jurisdiction over the offense charged, and that the facts charged do not constitute an offense.

On the first ground, petitioner argued that the letter transmitted by the BSP to the DOJ constituted the
complaint and hence was defective for failure to comply with the mandatory requirements of Section 3(a), Rule
112 of the Rules of Court, such as the statement of address of petitioner and oath and
subscription.22 Moreover, petitioner argued that the officers of OSI, who were the signatories to the "letter-
complaint," were not authorized by the BSP Governor, much less by the Monetary Board, to file the complaint.
According to petitioner, this alleged fatal oversight violated Section 18, pars. (c) and (d) of the New Central
Bank Act (RA 7653).

On the second ground, petitioner contended that the commission of estafa under paragraph 1(b) of Article 315
of the RPC is inherently incompatible with the violation of DOSRI law (as set out in Section 8323 of RA 337, as
amended by PD 1795),24 hence a person cannot be charged for both offenses. He argued that a violation of
DOSRI law requires the offender to obtain a loan from his bank, without complying with procedural,
reportorial, or ceiling requirements. On the other hand, estafa under par. 1(b), Article 315 of the RPC requires
the offender to misappropriate or convert something that he holds in trust, or on commission, or for
administration, or under any other obligation involving the duty to return the same.25

Essentially, the petitioner theorized that the characterization of possession is different in the two offenses. If
petitioner acquired the loan as DOSRI, he owned the loaned money and therefore, cannot misappropriate or
convert it as contemplated in the offense of estafa. Conversely, if petitioner committed estafa, then he merely
held the money in trust for someone else and therefore, did not acquire a loan in violation of DOSRI rules.

Ruling of the Regional Trial Court

In an Order26 dated August 8, 2001, the trial court denied petitioner's Motion to Quash for lack of merit. The
lower court agreed with the prosecution that the assailed OSI letter was not the complaint-affidavit itself; thus, it
need not comply with the requirements under the Rules of Court. The trial court held that the affidavits, which
were attached to the OSI letter, comprised the complaint-affidavit in the case. Since these affidavits were duly
subscribed and sworn to before a notary public, there was adequate compliance with the Rules. The trial court
further held that the two offenses were separate and distinct violations, hence the prosecution of one did not
pose a bar to the other.27

Petitioner’s Motion for Reconsideration was likewise denied in an Order dated September 5, 2001.28

Aggrieved, petitioner filed a Petition for Certiorari29 with the CA, reiterating his arguments before the trial court.

Ruling of the Court of Appeals

The CA denied the petition on both issues presented by petitioner.

On the first issue, the CA determined that the BSP letter, which petitioner characterized to be a fatally infirm
complaint, was not actually a complaint, but a transmittal or cover letter only. This transmittal letter merely
contained a summary of the affidavits which were attached to it. It did not contain any averment of personal
knowledge of the events and transactions that constitute the elements of the offenses charged. Being a mere
transmittal letter, it need not comply with the requirements of Section 3(a) of Rule 112 of the Rules of Court. 30

The CA further determined that the five affidavits attached to the transmittal letter should be considered as the
complaint-affidavits that charged petitioner with violation of Section 83 of RA 337 and for Estafa thru
Falsification of Commercial Documents. These complaint-affidavits complied with the mandatory requirements
set out in the Rules of Court – they were subscribed and sworn to before a notary public and subsequently
certified by State Prosecutor Fonacier, who personally examined the affiants and was convinced that the
affiants fully understood their sworn statements.31

Anent the second ground, the CA found no merit in petitioner's argument that the violation of the DOSRI law
and the commission of estafa thru falsification of commercial documents are inherently inconsistent with each
other. It explained that the test in considering a motion to quash on the ground that the facts charged do not
constitute an offense, is whether the facts alleged, when hypothetically admitted, constitute the elements of the
offense charged. The appellate court held that this test was sufficiently met because the allegations in the
assailed informations, when hypothetically admitted, clearly constitute the elements of Estafa thru Falsification
of Commercial Documents and Violation of DOSRI law.32

Petitioner’s Motion for Reconsideration33 was likewise denied for lack of merit.

Hence, this petition.

Issues

Restated, petitioner raises the following issues34 for our consideration:

Whether the complaint complied with the mandatory requirements provided under Section 3(a), Rule 112 of the
Rules of Court and Section 18, paragraphs (c) and (d) of RA 7653.

II

Whether a loan transaction within the ambit of the DOSRI law (violation of Section 83 of RA 337, as amended)
could also be the subject of Estafa under Article 315 (1) (b) of the Revised Penal Code.

III

Is a petition for certiorari under Rule 65 the proper remedy against an Order denying a Motion to Quash?
 IV

Whether petitioner is entitled to a writ of injunction.

Our Ruling

The petition lacks merit.

First Issue:

Whether the complaint complied with the mandatory requirements provided under Section 3(a), Rule
112 of the Rules of Court and Section 18, paragraphs (c) and (d) of

Republic Act No. 7653

Petitioner moved to withdraw the first issue from the instant petition

On March 5, 2007, the Court noted35 petitioner's Manifestation and Motion for Partial Withdrawal of the
Petition36dated February 7, 2007. In the said motion, petitioner informed the Court of the promulgation of a
Decision entitled Soriano v. Hon. Casanova,37 which also involved petitioner and similar BSP letters to the
DOJ. According to petitioner, the said Decision allegedly ruled squarely on the nature of the BSP letters and
the validity of the sworn affidavits attached thereto. For this reason, petitioner moved for the partial withdrawal
of the instant petition insofar as it involved the issue of "whether or not a court can legally acquire jurisdiction
over a complaint which failed to comply with the mandatory requirements provided under Section 3(a), Rule
112 of the Rules of Court and Section 18, paragraphs (c) and (d) of RA 7653".38

Given that the case had already been submitted for resolution of the Court when petitioner filed his latest
motion, and that all respondents had presented their positions and arguments on the first issue, the Court
deems it proper to rule on the same.

In Soriano v. Hon. Casanova, the Court held that the affidavits attached to the BSP transmittal letter complied
with the mandatory requirements under the Rules of Court.

To be sure, the BSP letters involved in Soriano v. Hon. Casanova39 are not the same as the BSP letter
involved in the instant case. However, the BSP letters in Soriano v. Hon. Casanova and the BSP letter subject
of this case are similar in the sense that they are all signed by the OSI officers of the BSP, they were not sworn
to by the said officers, they all contained summaries of their attached affidavits, and they all requested the
conduct of a preliminary investigation and the filing of corresponding criminal charges against petitioner
Soriano. Thus, the principle of stare decisis dictates that the ruling in Soriano v. Hon. Casanova be applied in
the instant case – once a question of law has been examined and decided, it should be deemed settled and
closed to further argument.40

We held in Soriano v. Hon. Casanova, after a close scrutiny of the letters transmitted by the BSP to the DOJ,
that these were not intended to be the complaint, as envisioned under the Rules. They did not contain
averments of personal knowledge of the events and transactions constitutive of any offense. The letters merely
transmitted for preliminary investigation the affidavits of people who had personal knowledge of the acts of
petitioner. We ruled that these affidavits, not the letters transmitting them, initiated the preliminary investigation.
Since these affidavits were subscribed under oath by the witnesses who executed them before a notary public,
then there was substantial compliance with Section 3(a), Rule 112 of the Rules of Court.

Anent the contention that there was no authority from the BSP Governor or the Monetary Board to file a
criminal case against Soriano, we held that the requirements of Section 18, paragraphs (c) and (d) of RA 7653
did not apply because the BSP did not institute the complaint but merely transmitted the affidavits of the
complainants to the DOJ.
We further held that since the offenses for which Soriano was charged were public crimes, authority holds that
it can be initiated by "any competent person" with personal knowledge of the acts committed by the offender.
Thus, the witnesses who executed the affidavits clearly fell within the purview of "any competent person" who
may institute the complaint for a public crime.

The ruling in Soriano v. Hon. Casanova has been adopted and elaborated upon in the recent case of Santos-
Concio v. Department of Justice.41 Instead of a transmittal letter from the BSP, the Court in Santos-Concio was
faced with an NBI-NCR Report, likewise with affidavits of witnesses as attachments. Ruling on the validity of
the witnesses’ sworn affidavits as bases for a preliminary investigation, we held:

The Court is not unaware of the practice of incorporating all allegations in one document denominated as
"complaint-affidavit." It does not pronounce strict adherence to only one approach, however, for there are
cases where the extent of one’s personal knowledge may not cover the entire gamut of details material to the
alleged offense. The private offended party or relative of the deceased may not even have witnessed the
fatality, in which case the peace officer or law enforcer has to rely chiefly on affidavits of witnesses. The Rules
do not in fact preclude the attachment of a referral or transmittal letter similar to that of the NBI-NCR. Thus,
in Soriano v. Casanova, the Court held:

A close scrutiny of the letters transmitted by the BSP and PDIC to the DOJ shows that these
were not intended to be the complaint envisioned under the Rules. It may be clearly inferred from the tenor of
the letters that the officers merely intended to transmit the affidavits of the bank employees to the DOJ.
Nowhere in the transmittal letters is there any averment on the part of the BSP and PDIC officers of personal
knowledge of the events and transactions constitutive of the criminal violations alleged to have been made by
the accused. In fact, the letters clearly stated that what the OSI of the BSP and the LIS of the PDIC did was to
respectfully transmit to the DOJ for preliminary investigation the affidavits and personal knowledge of the acts
of the petitioner. These affidavits were subscribed under oath by the witnesses who executed them before a
notary public. Since the affidavits, not the letters transmitting them, were intended to initiate the preliminary
investigation, we hold that Section 3(a), Rule 112 of the Rules of Court was substantially complied with.

Citing the ruling of this Court in Ebarle v. Sucaldito, the Court of Appeals correctly held that a complaint for
purposes of preliminary investigation by the fiscal need not be filed by the offended party. The rule has been
that, unless the offense subject thereof is one that cannot be prosecuted de oficio, the same may be
filed, for preliminary investigation purposes, by any competent person. The crime of estafa is a public crime
which can be initiated by "any competent person." The witnesses who executed the affidavits based on their
personal knowledge of the acts committed by the petitioner fall within the purview of "any competent person"
who may institute the complaint for a public crime. x x x (Emphasis and italics supplied)

A preliminary investigation can thus validly proceed on the basis of an affidavit of any competent person,
without the referral document, like the NBI-NCR Report, having been sworn to by the law enforcer as the
nominal complainant. To require otherwise is a needless exercise. The cited case of Oporto, Jr. v. Judge
Monserate does not appear to dent this proposition. After all, what is required is to reduce the evidence into
affidavits, for while reports and even raw information may justify the initiation of an investigation, the
preliminary investigation stage can be held only after sufficient evidence has been gathered and evaluated
which may warrant the eventual prosecution of the case in court.42

Following the foregoing rulings in Soriano v. Hon. Casanova and Santos-Concio v. Department of Justice, we
hold that the BSP letter, taken together with the affidavits attached thereto, comply with the requirements
provided under Section 3(a), Rule 112 of the Rules of Court and Section 18, paragraphs (c) and (d) of RA
7653.

Second Issue:

Whether a loan transaction within the ambit of the DOSRI law (violation of Section 83 of RA 337, as amended)
could be the subject of Estafa under Article 315 (1) (b) of the
 Revised Penal Code

The second issue was raised by petitioner in the context of his Motion to Quash Information on the ground that
the facts charged do not constitute an offense.43 It is settled that in considering a motion to quash on such
ground, the test is "whether the facts alleged, if hypothetically admitted, would establish the essential elements
of the offense charged as defined by law. The trial court may not consider a situation contrary to that set forth
in the criminal complaint or information. Facts that constitute the defense of the petitioner[s] against the charge
under the information must be proved by [him] during trial. Such facts or circumstances do not constitute
proper grounds for a motion to quash the information on the ground that the material averments do not
constitute the offense". 44

We have examined the two informations against petitioner and we find that they contain allegations which, if
hypothetically admitted, would establish the essential elements of the crime of DOSRI violation and estafa thru
falsification of commercial documents.

In Criminal Case No. 238-M-2001 for violation of DOSRI rules, the information alleged that petitioner Soriano
was the president of RBSM; that he was able to indirectly obtain a loan from RBSM by putting the loan in the
name of depositor Enrico Carlos; and that he did this without complying with the requisite board approval,
reportorial, and ceiling requirements.

In Criminal Case No. 237-M-2001 for estafa thru falsification of commercial documents, the information alleged
that petitioner, by taking advantage of his position as president of RBSM, falsified various loan documents to
make it appear that an Enrico Carlos secured a loan of ₱8 million from RBSM; that petitioner succeeded in
obtaining the loan proceeds; that he later converted the loan proceeds to his own personal gain and benefit;
and that his action caused damage and prejudice to RBSM, its creditors, the BSP, and the PDIC.

Significantly, this is not the first occasion that we adjudge the sufficiency of similarly worded informations. In
Soriano v. People,45 involving the same petitioner in this case (but different transactions), we also reviewed the
sufficiency of informations for DOSRI violation and estafa thru falsification of commercial documents, which
were almost identical, mutatis mutandis, with the subject informations herein. We held in Soriano v. People that
there is no basis for the quashal of the informations as "they contain material allegations charging Soriano with
violation of DOSRI rules and estafa thru falsification of commercial documents".

Petitioner raises the theory that he could not possibly be held liable for estafa in concurrence with the charge
for DOSRI violation. According to him, the DOSRI charge presupposes that he acquired a loan, which would
make the loan proceeds his own money and which he could neither possibly misappropriate nor convert to the
prejudice of another, as required by the statutory definition of estafa.46 On the other hand, if petitioner did not
acquire any loan, there can be no DOSRI violation to speak of. Thus, petitioner posits that the two offenses
cannot co-exist. This theory does not persuade us.

Petitioner’s theory is based on the false premises that the loan was extended to him by the bank in his own
name, and that he became the owner of the loan proceeds. Both premises are wrong.

The bank money (amounting to ₱8 million) which came to the possession of petitioner was money held in trust
or administration by him for the bank, in his

fiduciary capacity as the President of said bank.47 It is not accurate to say that petitioner became the owner of
the ₱8 million because it was the proceeds of a loan. That would have been correct if the bank knowingly
extended the loan to petitioner himself. But that is not the case here. According to the information for estafa,
the loan was supposed to be for another person, a certain "Enrico Carlos"; petitioner, through falsification,
made it appear that said "Enrico Carlos" applied for the loan when in fact he ("Enrico Carlos") did not. Through
such fraudulent device, petitioner obtained the loan proceeds and converted the same. Under these
circumstances, it cannot be said that petitioner became the legal owner of the ₱8 million. Thus, petitioner
remained the bank’s fiduciary with respect to that money, which makes it capable of misappropriation or
conversion in his hands.
The next question is whether there can also be, at the same time, a charge for DOSRI violation in such a
situation wherein the accused bank officer did not secure a loan in his own name, but was alleged to have
used the name of another person in order to indirectly secure a loan from the bank. We answer this in the
affirmative. Section 83 of RA 337 reads:

Section 83. No director or officer of any banking institution shall, either directly or indirectly, for himself or as
the representative or agent of others, borrow any of the deposits of funds of such bank, nor shall he become a
guarantor, indorser, or surety for loans from such bank to others, or in any manner be an obligor for moneys
borrowed from the bank or loaned by it, except with the written approval of the majority of the directors of the
bank, excluding the director concerned. Any such approval shall be entered upon the records of the
corporation and a copy of such entry shall be transmitted forthwith to the Superintendent of Banks. The office
of any director or officer of a bank who violates the provisions of this section shall immediately become vacant
and the director or officer shall be punished by imprisonment of not less than one year nor more than ten years
and by a fine of not less than one thousand nor more than ten thousand pesos. x x x

The prohibition in Section 83 is broad enough to cover various modes of borrowing.[48] It covers loans by a
bank director or officer (like herein petitioner) which are made either: (1) directly, (2) indirectly, (3) for himself,
(4) or as the representative or agent of others. It applies even if the director or officer is a mere guarantor,
indorser or surety for someone else's loan or is in any manner an obligor for money borrowed from the bank or
loaned by it. The covered transactions are prohibited unless the approval, reportorial and ceiling requirements
under Section 83 are complied with. The prohibition is intended to protect the public, especially the
depositors,[49] from the overborrowing of bank funds by bank officers, directors, stockholders and related
interests, as such overborrowing may lead to bank failures.[50] It has been said that "banking institutions are
not created for the benefit of the directors [or officers]. While directors have great powers as directors, they
have no special privileges as individuals. They cannot use the assets of the bank for their own benefit except
as permitted by law. Stringent restrictions are placed about them so that when acting both for the bank and for
one of themselves at the same time, they must keep within certain prescribed lines regarded by the legislature
as essential to safety in the banking business".51

A direct borrowing is obviously one that is made in the name of the DOSRI himself or where the DOSRI is a
named party, while an indirect borrowing includes one that is made by a third party, but the DOSRI has a stake
in the transaction.52 The latter type – indirect borrowing – applies here. The information in Criminal Case 238-
M-2001 alleges that petitioner "in his capacity as President of Rural Bank of San Miguel – San Ildefonso
branch x x x indirectly borrow[ed] or secure[d] a loan with [RBSM] x x x knowing fully well that the same has
been done by him without the written consent and approval of the majority of the board of directors x x x, and
which consent and approval the said accused deliberately failed to obtain and enter the same upon the records
of said banking institution and to transmit a copy thereof to the supervising department of the said bank x x x
by using the name of one depositor Enrico Carlos x x x, the latter having no knowledge of the said loan, and
once in possession of the said amount of eight million pesos (₱8 million), [petitioner] converted the same to
his own personal use and benefit".53

The foregoing information describes the manner of securing the loan as indirect; names petitioner as the
benefactor of the indirect loan; and states that the requirements of the law were not complied with. It contains
all the required elements54 for a violation of Section 83, even if petitioner did not secure the loan in his own
name.

The broad interpretation of the prohibition in Section 83 is justified by the fact that it even expressly covers
loans to third parties where the third parties are aware of the transaction (such as principals represented by the
DOSRI), and where the DOSRI’s interest does not appear to be beneficial but even burdensome (such as in
cases when the DOSRI acts as a mere guarantor or surety). If the law finds it necessary to protect the bank
and the banking system in such situations, it will surely be illogical for it to exclude a case like this where the
DOSRI acted for his own benefit, using the name of an unsuspecting person. A contrary interpretation will
effectively allow a DOSRI to use dummies to circumvent the requirements of the law.

In sum, the informations filed against petitioner do not negate each other.
 Third Issue:

Is a Rule 65 petition for certiorari the proper remedy against an Order denying a Motion to Quash?

This issue may be speedily resolved by adopting our ruling in Soriano v. People,55 where we held:

In fine, the Court has consistently held that a special civil action for certiorari is not the proper remedy to assail
the denial of a motion to quash an information. The proper procedure in such a case is for the accused to enter
a plea, go to trial without prejudice on his part to present the special defenses he had invoked in his motion to
quash and if after trial on the merits, an adverse decision is rendered, to appeal therefrom in the manner
authorized by law. Thus, petitioners should not have forthwith filed a special civil action for certiorari with the
CA and instead, they should have gone to trial and reiterated the special defenses contained in their motion to
quash. There are no special or exceptional circumstances in the present case that would justify immediate
resort to a filing of a petition for certiorari. Clearly, the CA did not commit any reversible error, much less, grave
abuse of discretion in dismissing the petition.56

Fourth Issue:

Whether petitioner is entitled to a writ of injunction

The requisites to justify an injunctive relief are: (1) the right of the complainant is clear and unmistakable; (2)
the invasion of the right sought to be protected is material and substantial; and (3) there is an urgent and
paramount necessity for the writ to prevent serious damage. A clear legal right means one clearly founded in or
granted by law or is "enforceable as a matter of law." Absent any clear and unquestioned legal right, the
issuance of an injunctive writ would constitute grave abuse of discretion.57 Caution and prudence must, at all
times, attend the issuance of an injunctive writ because it effectively disposes of the main case without trial
and/or due process.58 In Olalia v. Hizon,59 the Court held as follows:

It has been consistently held that there is no power the exercise of which is more delicate, which requires
greater caution, deliberation and sound discretion, or more dangerous in a doubtful case, than the issuance of
an injunction. It is the strong arm of equity that should never be extended unless to cases of great injury, where
courts of law cannot afford an adequate or commensurate remedy in damages.

Every court should remember that an injunction is a limitation upon the freedom of action of the [complainant]
and should not be granted lightly or precipitately. It should be granted only when the court is fully satisfied that
the law permits it and the emergency demands it.

Given this Court's findings in the earlier issues of the instant case, we find no compelling reason to grant the
injunctive relief sought by petitioner.

WHEREFORE, the petition is DENIED. The assailed September 26, 2003 Decision as well as the February 5,
2004 Resolution of the Court of Appeals in CA-G.R. SP No. 67657 are AFFIRMED. Costs against petitioner.

SO ORDERED.
JOSEPH C. CEREZO, G.R. No. 185230
Petitioner,
Present:

CARPIO, J.,
- versus - Chairperson,
NACHURA,
PERALTA,
ABAD, and
PEOPLE OF THE PHILIPPINES, MENDOZA, JJ.
JULIET YANEZA, PABLO ABUNDA, JR., and
VICENTE AFULUGENCIA, Promulgated:
Respondents.
June 1, 2011

x------------------------------------------------------------------------------------x

DECISION

NACHURA, J.:

This petition for review on certiorari under Rule 45 of the Rules of Court seeks to annul the July 11, 2008 Decision[1] and
the November 4, 2008 Resolution[2] of the Court of Appeals (CA) in CA-G.R. SP No. 99088, which reversed and set aside
the October 24, 2006[3] and the February 26, 2007[4] Orders of the Regional Trial Court (RTC) of Quezon City, Branch 92.

The RTC Orders revived Criminal Case No. Q-03-115490, entitled People of the Philippines v. Juliet Yaneza, Pablo
Abunda, Jr., Oscar Mapalo and Vicente Afulugencia, after the same was dismissed in an earlier Order.

The Facts

On September 12, 2002, petitioner Joseph Cerezo filed a complaint for libel against respondents Juliet Yaneza, Pablo
Abunda, Jr., and Vicente Afulugencia (respondents), as well as Oscar Mapalo (Mapalo).[5]

Finding probable cause to indict respondents,[6] the Quezon City Prosecutors Office (OP-QC) filed the
corresponding Information against them on February 18, 2003 before the RTC.[7]
Respondents thereafter filed a Motion for Reconsideration and/or Motion to Re-evaluate Prosecutions Evidence before the
OP-QC.[8]

In its resolution dated November 20, 2003, the OP-QC reversed its earlier finding and recommended the
withdrawal of the Information.[9] Consequently, a Motion to Dismiss and Withdraw Information was filed before the RTC
on December 3, 2003. During the intervening period, specifically on November 24, 2003, respondents were arraigned. All
of them entered a not guilty plea.[10]

In deference to the prosecutors last resolution, the RTC ordered the criminal case dismissed in its Order dated March 17,
2004, viz.:

Settled is the rule that the determination of the persons to be prosecuted rests primarily with the Public
Prosecutor who is vested with quasi-judicial discretion in the discharge of this function. Being vested
with such power, he can reconsider his own resolution if he finds that there is reasonable ground to do so.
x x x.

More so, the Court cannot interfere with the Public Prosecutors discretion to determine probable cause or
the propriety of pursuing or not a criminal case when the case is not yet filed in Court, as a general rule.
However, if the same criminal case has been filed in Court already, the Public Prosecutor can still
interfere with it subject to the approval of the Court. In the case of Republic vs. Sunga, et al., the Supreme
Court held that while it has been settled in the case of Crespo vs. Mogul that the trial court is the sole
judge on whether a criminal case should be dismissed after the complaint or information has been filed in
court, nonetheless any motion of the offended party for the dismissal of the criminal case, even if without
objection of the accused, should first be referred to the prosecuting fiscal and only after hearing should
the court exercise its exclusive authority to dismiss or continue with the prosecution of the case. The
Court, therefore, after hearing and conferring with the fiscal, can dismiss the case if convinced that there
is [no] reason to continue with the prosecution [of] the same. As in this case, the Court finds merit [in] the
motion of the Public Prosecutor.[11]

Aggrieved, petitioner moved for reconsideration of the said Order, arguing that the November 20, 2003 OP-QC resolution
has not yet attained finality, considering that the same was the subject of a Petition for Review filed before the
Department of Justice (DOJ).[12] The RTC deferred action on the said motion to await the resolution of the DOJ.[13]

On June 26, 2006, the Secretary of Justice promulgated his resolution reversing and setting aside the OP-QCs November
20, 2003 resolution, and directing the latter to refile the earlier Information for libel.[14]
On October 24, 2006, the RTC issued its first assailed Order granting petitioners motion for reconsideration, conformably
with the resolution of the DOJ Secretary, thus:

Considering the findings of the Department of Justice reversing the resolution of the City Prosecutor, the Court
gives favorable action to the Motion for Reconsideration. In the same manner as discussed in arriving at
its assailed order dated 17 March 2004, the Court gives more leeway to the Public Prosecutor in
determining whether it has to continue or stop prosecuting a case. While the City Prosecutor has
previously decided not to pursue further the case, the Secretary of Justice, however, through its resolution
on the Petition for Review did not agree with him.

The Court disagrees with the argument raised by the accused that double jeopardy sets in to the
picture. The order of dismissal as well as the withdrawal of the Information was not yet final because of
 the timely filing of the Motion for Reconsideration. The Court[,] therefore, can still set aside its order.
Moreover, there is no refiling of the case nor the filing of a new one. The case filed remains the same and
the order of dismissal was merely vacated because the Court finds the Motion for Reconsideration
meritorious.
WHEREFORE, finding the Motion for Reconsideration meritorious, the Order dated 17 March 2004 is
hereby RECONSIDERED and SET ASIDE.
Let the arraignment of accused Oscar Mapalo and pre-trial [of] the other accused be set on 06 December
2006 at 8:30 in the morning.

SO ORDERED.[15]

Respondents moved for reconsideration, but the motion was denied in the RTCs second assailed Order dated
February 26, 2007.[16]
Relentless, respondents elevated their predicament to the CA through a Petition for Certiorari under Rule 65 of the Rules
of Court, arguing in the main that the RTC Orders violated their constitutional right against double jeopardy.

Ruling of the CA

The appellate court found the RTC to have gravely abused its discretion in ordering the reinstatement of the case. The CA
annulled the impugned RTC Orders, ruling that all the elements of double jeopardy exist. There was a valid
Information sufficient in form and substance filed before a court of competent jurisdiction to which respondents
had pleaded, and that the termination of the case was not expressly consented to by respondents; hence, the same
could not be revived or refiled without transgressing respondents right against double jeopardy.

The CA further found that the DOJ Secretary improperly took cognizance of the Petition for Review because DOJ
Department Order No. 223 mandates that no appeal shall be entertained if the accused has already been arraigned
or, if the arraignment took place during the pendency of the appeal, the same shall be dismissed.[17]

Petitioner interposed the instant appeal when his motion for reconsideration of the CA Decision was denied.[18]

The Issues

Petitioner ascribes the following errors to the CA:

a. The Honorable Court of Appeals erred in finding that there was Double Jeopardy, specifically on the
alleged existence of the requisites to constitute Double Jeopardy;
b. The Honorable Court of Appeals failed to consider the fact that there was NO refiling of the case nor
the filing of a new one in arriving [at] its conclusion that Double Jeopardy sets in to the picture;
c. The Honorable Court of Appeals erred in finding that there was 1.) a valid termination of the case on
the basis of the Order of the Trial Court dated 17 March 2004, and allegedly 2.) without the express
consent of the respondents.[19]

The assigned errors will be subsumed into this issue:

 Whether there was a valid termination of the case so as to usher in the impregnable wall of double jeopardy.

Our Ruling

The petition is impressed with merit.

Well-entrenched is the rule that once a case is filed with the court, any disposition of it rests on the sound

discretion of the court. In thus resolving a motion to dismiss a case or to withdraw an Information, the trial court should

not rely solely and merely on the findings of the public prosecutor or the Secretary of Justice. [20] It is the courts bounden

duty to assess independently the merits of the motion, and this assessment must be embodied in a written order disposing

of the motion.[21] While the recommendation of the prosecutor or the ruling of the Secretary of Justice is persuasive, it is

not binding on courts.

In this case, it is obvious from the March 17, 2004 Order of the RTC, dismissing the criminal case, that the RTC
judge failed to make his own determination of whether or not there was a prima facie case to hold respondents for trial.
He failed to make an independent evaluation or assessment of the merits of the case. The RTC judge blindly relied on the
manifestation and recommendation of the prosecutor when he should have been more circumspect and judicious in
resolving the Motion to Dismiss and Withdraw Information especially so when the prosecution appeared to be uncertain,
undecided, and irresolute on whether to indict respondents.

The same holds true with respect to the October 24, 2006 Order, which reinstated the case. The RTC judge failed
to make a separate evaluation and merely awaited the resolution of the DOJ Secretary. This is evident from the general
tenor of the Order and highlighted in the following portion thereof:

As discussed during the hearing of the Motion for Reconsideration, the Court will resolve it
depending on the outcome of the Petition for Review. Considering the findings of the Department of
Justice reversing the resolution of the City Prosecutor, the Court gives favorable action to the Motion for
Reconsideration.[22]

By relying solely on the manifestation of the public prosecutor and the resolution of the DOJ Secretary, the trial
court abdicated its judicial power and refused to perform a positive duty enjoined by law. The said Orders were thus
stained with grave abuse of discretion and violated the complainants right to due process. They were void, had no legal
standing, and produced no effect whatsoever.[23]
 This Court must therefore remand the case to the RTC, so that the latter can rule on the merits of the case to

determine if a prima facie case exists and consequently resolve the Motion to Dismiss and Withdraw Information anew.

It is beyond cavil that double jeopardy did not set in. Double jeopardy exists when the following requisites are
present: (1) a first jeopardy attached prior to the second; (2) the first jeopardy has been validly terminated; and (3) a
second jeopardy is for the same offense as in the first. A first jeopardy attaches only (a) after a valid indictment; (b) before
a competent court; (c) after arraignment; (d) when a valid plea has been entered; and (e) when the accused has been
acquitted or convicted, or the case dismissed or otherwise terminated without his express consent.[24]

Since we have held that the March 17, 2004 Order granting the motion to dismiss was committed with grave abuse

of discretion, then respondents were not acquitted nor was there a valid and legal dismissal or termination of the case.

Ergo, the fifth requisite which requires the conviction and acquittal of the accused, or the dismissal of the case without the

approval of the accused, was not met. Thus, double jeopardy has not set in.

WHEREFORE, the petition is hereby GIVEN DUE COURSE, and the assailed July 11, 2008 Decision and the
November 4, 2008 Resolution of the Court of Appeals in CA-G.R. SP No. 99088, and the October 24, 2006 and the
February 26, 2007 Orders of the Regional Trial Court of Quezon City, Branch 92, are hereby ANNULLED and SET
ASIDE. The case is REMANDED to the Quezon City RTC, Branch 92, for evaluation on whether probable cause exists
to hold respondents for trial.

No costs.

SO ORDERED.

G.R. No. 183994 June 30, 2014

WILLIAM CO a.k.a. XU QUING HE, Petitioner,

vs.
NEW PROSPERITY PLASTIC PRODUCTS, represented by ELIZABETH UY,1 Respondent.

DECISION

PERALTA, J.:
Assailed in this petition for review on certiorari under Rule 45 of the 1997 Revised Rules on Civil Procedure
(Rules) are the April 30, 20082 and August 1, 20083 Resolutions of the Court of Appeals (CA) in CA-G.R. SP
No. 102975, which dismissed the petition and denied the motion for reconsideration, respectively. In effect, the
CA affirmed the January 28, 2008 Decision4 of the Regional Trial Court (RTC) Branch 121 of Caloocan City,
which annulled and set aside the Orders dated September 4, 20065 and November 16, 20066 of the
Metropolitan Trial Court (MeTC), Branch 50 of Caloocan City, permanently dismissing Criminal Case Nos.
206655-59, 206661-77 and 209634.

The facts are simple and undisputed:

Respondent New Prosperity Plastic Products, represented by Elizabeth Uy (Uy), is the private complainant in
Criminal Case Nos. 206655-59, 206661-77 and 209634 for Violation of Batas Pambansa (B.P.) Bilang 22 filed
against petitioner William Co (Co), which were raffled to the MeTC Branch. 49 of Caloocan City. In the
absence of Uy and the private counsel, the cases were provisionally dismissed on June 9, 2003 in open court
pursuant to Section 8, Rule 117 of the Revised Rules of Criminal Procedure (Rules).7 Uy received a copy of
the June9, 2003 Order on July 2, 2003, while her counsel-of-record received a copy a day after.8 On July 2,
2004, Uy, through counsel, filed a Motion to Revive the Criminal Cases.9 Hon. Belen B. Ortiz, then Presiding
Judge of the MeTC Branch 49, granted the motion on October 14, 2004 and denied Co’s motion for
reconsideration.10 When Co moved for recusation, Judge Ortiz inhibited herself from handling the criminal
cases per Order dated January 10, 2005.11The cases were, thereafter, raffled to the MeTC Branch 50 of
Caloocan City. On March 17, 2005, Co filed a petition for certiorari and prohibition with prayer for the issuance
of a temporary restraining order (TRO)/writ of preliminary injunction (WPI) before the RTC of Caloocan City
challenging the revival of the criminal cases.12 It was, however, dismissed for lack of merit on May 23,
2005.13 Co’s motion for reconsideration was, subsequently, denied on December 16, 2005.14 Co then filed a
petition for review on certiorari under Rule 45 before the Supreme Court, which was docketed as G.R. No.
171096.15 We dismissed the petition per Resolution dated February 13, 2006.16There being no motion for
reconsideration filed, the dismissal became final and executory on March 20, 2006.17

Before the MeTC Branch 50 where Criminal Case Nos. 206655-59, 206661-77 and 209634 were re-raffled
after the inhibition of Judge Ortiz, Co filed a "Motion for Permanent Dismissal" on July 13, 2006.18 Uy opposed
the motion, contending that the motion raised the same issues already resolved with finality by this Court in
G.R. No. 171096.19In spite of this, Judge Esteban V. Gonzaga issued an Order dated September 4, 2006
granting Co’s motion.20 When the court subsequently denied Uy’s motion for reconsideration on November 16,
2006,21 Uy filed a petition for certiorari before the RTC of Caloocan City. On January 28, 2008, Hon. Judge
Adoracion G. Angeles of the RTC Branch 121 acted favorably on the petition, annulling and setting aside the
Orders dated September 4, 2006 and November 16, 2006 and directing the MeTC Branch 50 to proceed with
the trial of the criminal cases.22 Co then filed a petition for certiorari before the CA, which, as aforesaid,
dismissed the petition and denied his motion for reconsideration. Hence, this present petition with prayer for
TRO/WPI.

According to Co, the following issues need to be resolved in this petition:

1. WHETHER OR NOT THE DISMISSAL OF THE CRIMINAL CASES AGAINST PETITIONER ONTHE
GROUND OF DENIAL OF HIS RIGHT TO SPEEDY TRIAL CONSTITUTES FINAL DISMISSAL OF
THESE CASES;

2. WHETHER OR NOT THE METC ACTED WITH JURISDICTION IN REVIVING THE CRIMINAL
CASES AGAINST PETITIONER WHICH WERE DISMISSED ON THE GROUND OF DENIAL OF HIS
RIGHT TO SPEEDY TRIAL; and

3. ASSUMING POR GRATIA ARGUMENTITHE CASES WERE ONLY PROVISIONALLY DISMISSED:

a. WHETHER THE ONE-YEAR TIMEBAR OF THEIR REVIVAL IS COMPUTED FROM

ISSUANCE OF THE ORDER OF PROVISIONAL DISMISSAL;
 b. WHETHER THE ACTUAL NUMBER OF DAYS IN A YEAR IS THE BASIS FOR
COMPUTING THE ONE-YEAR TIME BAR;

c. WHETHER THE PROVISIONALLY DISMISSED CASES AGAINST PETITIONER ARE

REVIVED IPSO FACTO BY THE FILING OF MOTION TO REVIVE THESE CASES.23

Co argues that the June 9, 2003 Order provisionally dismissing Criminal Case Nos. 206655-59, 206661-77 and
209634 should be considered as a final dismissal on the ground that his right to speedy trial was denied. He
reasons out that from his arraignment on March 4, 2002 until the initial trial on June 9, 2003, there was already
a "vexatious, capricious and oppressive" delay, which is in violation of Section 6 of Republic Act 8493 (Speedy
Trial Act of 1998)24 and Section 2, Paragraph 2, Rule 119 of the Revised Rules of Criminal
Procedure25 mandating that the entire trial period should not exceed 180 days from the first day of trial. As the
dismissal is deemed final, Co contends that the MeTC lost its jurisdiction over the cases and cannot reacquire
jurisdiction over the same based on a mere motion because its revival would already put him in double
jeopardy.

Assuming that the criminal cases were only provisionally dismissed, Co further posits that such dismissal
became permanent one year after the issuance of the June 9, 2003 Order, not after notice to the offended
party. He also insists that both the filing of the motion to revive and the trial court’s issuance of the order
granting the revival must be within the one-year period. Lastly, even assuming that the one-year period to
revive the criminal cases started on July 2, 2003 when Uy received the June 9, 2003 Order, Co asserts that the
motion was filed one day late since year 2004 was a leap year.

The petition is unmeritorious.

At the outset, it must be noted that the issues raised in this petition were also the meat of the controversy in
Co’s previous petition in G.R. No. 171096, which We dismissed per Resolution dated February 13, 2006. Such
dismissal became final and executory on March 20, 2006. While the first petition was dismissed mainly due to
procedural infirmities, this Court nonetheless stated therein that "[i]n any event, the petition lacks sufficient
showing that respondent court had committed any reversible error in the questioned judgment to warrant the
exercise by this Court of its discretionary appellate jurisdiction in this case." Hence, upon the finality of Our
February 13, 2006 Resolution in G.R. No. 171096, the same already constitutes as res judicata between the
parties. On this ground alone, this petition should have been dismissed outright.

Even if We are to squarely resolve the issues repeatedly raised in the present petition, Co’s arguments are
nonetheless untenable on the grounds as follows:

First, Co’s charge that his right to a speedy trial was violated is baseless. Obviously, he failed to show any
evidence that the alleged "vexatious, capricious and oppressive" delay in the trial was attended with malice or
that the same was made without good cause or justifiable motive on the part of the prosecution. This Court has
emphasized that "‘speedy trial’ is a relative term and necessarily a flexible concept."26 In determining whether
the accused's right to speedy trial was violated, the delay should be considered in view of the entirety of the
proceedings.27 The factors to balance are the following: (a) duration of the delay; (b) reason therefor; (c)
assertion of the right or failure to assert it; and (d) prejudice caused by such delay.28 Surely, mere
mathematical reckoning of the time involved would not suffice as the realities of everyday life must be regarded
in judicial proceedings which, after all, do not exist in a vacuum, and that particular regard must be given to the
facts and circumstances peculiar to each case.29 "While the Court recognizes the accused's right to speedy
trial and adheres to a policy of speedy administration of justice, we cannot deprive the State of a reasonable
opportunity to fairly prosecute criminals. Unjustified postponements which prolong the trial for an unreasonable
length of time are what offend the right of the accused to speedy trial."30

Second, Co is burdened to establish the essential requisites of the first paragraph of Section 8, Rule 117 of the
Rules, which are conditions sine qua non to the application of the time-bar in the second paragraph thereof, to
wit: (1) the prosecution with the express conformity of the accused or the accused moves for a provisional (sin
perjuicio) dismissal of the case; or both the prosecution and the accused move for a provisional dismissal of
the case; (2) the offended party is notified of the motion for a provisional dismissal of the case; (3) the court
issues an order granting the motion and dismissing the case provisionally; and (4) the public prosecutor is
served with a copy of the order of provisional dismissal of the case.31 In this case, it is apparent from the
records that there is no notice of any motion for the provisional dismissal of Criminal Cases Nos. 206655-59,
206661-77 and 209634 or of the hearing thereon which was served on the private complainant at least three
days before said hearing as mandated by Section 4, Rule 15 of the Rules.32 The fact is that it was only in open
court that Co moved for provisional dismissal "considering that, as per records, complainant had not shown
any interest to pursue her complaint."33 The importance of a prior notice to the offended party of a motion for
provisional dismissal is aptly explained in People v. Lacson:34

x x x It must be borne in mind that in crimes involving private interests, the new rule requires that the offended
party or parties or the heirs of the victims must be given adequate a priori notice of any motion for the
provisional dismissal of the criminal case. Such notice may be served on the offended party or the heirs of the
victim through the private prosecutor, if there is one, or through the public prosecutor who in turn must relay
the notice to the offended party or the heirs of the victim to enable them to confer with him before the hearing
or appear in court during the hearing. The proof of such service must be shown during the hearing on the
motion, otherwise, the requirement of the new rule will become illusory. Such notice will enable the offended
party or the heirs of the victim the opportunity to seasonably and effectively comment on or object to the motion
on valid grounds, including: (a) the collusion between the prosecution and the accused for the provisional
dismissal of a criminal case thereby depriving the State of its right to due process; (b) attempts to make
witnesses unavailable; or (c) the provisional dismissal of the case with the consequent release of the accused
from detention would enable him to threaten and kill the offended party or the other prosecution witnesses or
flee from Philippine jurisdiction, provide opportunity for the destruction or loss of the prosecution’s physical and
other evidence and prejudice the rights of the offended party to recover on the civil liability of the accused by
his concealment or furtive disposition of his property or the consequent lifting of the writ of preliminary
attachment against his property.35

Third, there is evident want of jurisprudential support on Co’s supposition that the dismissal of the cases
became permanent one year after the issuance of the June 9, 2003 Order and not after notice to the offended
party. When the Rules states that the provisional dismissal shall become permanent one year after the
issuance of the order temporarily dismissing the case, it should not be literally interpreted as such. Of course,
there is a vital need to satisfy the basic requirements of due process; thus, said in one case:

Although the second paragraph of the new rule states that the order of dismissal shall become permanent one
year after the issuance thereof without the case having been revived, the provision should be construed to
mean that the order of dismissal shall become permanent one year after service of the order of dismissal on
the public prosecutor who has control of the prosecution without the criminal case having been revived. The
public prosecutor cannot be expected to comply with the timeline unless he is served with a copy of the order
of dismissal.36

We hasten to add though that if the offended party is represented by a private counsel the better rule is that the
reckoning period should commence to run from the time such private counsel was actually notified of the order
of provisional dismissal. When a party is represented by a counsel, notices of all kinds emanating from the
court should be sent to the latter at his/her given address.37 Section 2, Rule 13 of the Rules analogously
provides that if any party has appeared by counsel, service upon the former shall be made upon the latter. 38

Fourth, the contention that both the filing of the motion to revive the case and the court order reviving it must
be made prior to the expiration of the one-year period is unsustainable. Such interpretation is not found in the
Rules. Moreover, to permit otherwise would definitely put the offended party at the mercy of the trial court,
which may wittingly or unwittingly not comply. Judicial notice must be taken of the fact that most, if not all, of
our trial court judges have to deal with clogged dockets in addition to their administrative duties and functions.
Hence, they could not be expected to act at all times on all pending decisions, incidents, and related matters
within the prescribed period of time. It is likewise possible that some of them, motivated by ill-will or malice,
may simply exercise their whims and caprices in not issuing the order of revival on time.

Fifth, the fact that year 2004 was a leap year is inconsequential to determine the timeliness of Uy’s motion to
revive the criminal cases. What is material instead is Co’s categorical admission that Uy is represented by a
private counsel who only received a copy of the June 9, 2003 Order on July 3, 2003. Therefore, the motion
was not belatedly filed on July 2, 2004. Since the period for filing a motion to revive is reckoned from the
private counsel's receipt of the order of provisional dismissal, it necessarily follows that the reckoning period for
the permanent dismissal is likewise the private counsel's date of receipt of the order of provisional dismissal.

And Sixth, granting for the sake of argument that this Court should take into account 2004 as a leap year and
that the one-year period to revive the case should be reckoned from the date of receipt of the order of
provisional dismissal by Uy, We still hold that the motion to revive the criminal cases against Co was timely
filed. A year is equivalent to 365 days regardless of whether it is a regular year or a leap year.39 Equally so,
under the Administrative Code of 1987, a yearis composed of 12 calendar months. The number of days is
irrelevant. This was our ruling in Commissioner of Internal Revenue v. Primetown Property Group, Inc.,40 which
was subsequently reiterated in Commissioner of Internal Revenue v. Aichi Forging Company of Asia,
Inc.,41 thus:

x x x [In] 1987, EO 292 or the Administrative Code of 1987 was enacted. Section 31, Chapter VIII, Book I
thereof provides:

Sec. 31.Legal Periods.- "Year" shall be understood to be twelve calendar months; "month" of thirty days,
unless it refers to a specific calendar month in which case it shall be computed according to the number of
days the specific month contains; "day", to a day of twenty-four hours and; "night" from sunrise to sunset.
(emphasis supplied)

A calendar month is "a month designated in the calendar without regard to the number of days it may contain."
It is the "period of time running from the beginning of a certain numbered day up to, but not including, the
corresponding numbered day of the next month, and if there is not a sufficient number of days in the next
month, then up to and including the last day of that month." To illustrate, one calendar month from December
31, 2007 will be from January 1, 2008 to January 31, 2008; one calendar month from January 31, 2008 will be
from February 1, 2008 until February 29, 2008.42

Applying Section 31, Chapter VIII, Book I of the Administrative Code of 1987 to this case, the one-year period
reckoned from the time Uy received the order of dismissal on July2, 2003 consisted of 24 calendar months,
computed as follows:

1st calendar month July 3, 2003 to August 2, 2003

2nd calendar month August 3, 2003 to September 2, 2003

3rd calendar month September 3, 2003 to October 2, 2003

4th calendar month October 3, 2003 to November 2, 2003

5th calendar month November 3, 2003 to December 2, 2003

6th calendar month December 3, 2003 to January 2, 2004

7th calendar month January 3, 2004 to February 2, 2004

8th calendar month February 3, 2004 to March 2, 2004

9th calendar month March 3, 2004 to April 2, 2004

10th calendar month April 3, 2004 to May 2, 2004

11th calendar month May 3, 2004 to June 2, 2004

 12th calendar month June 3, 2004 to July 2, 2004

In the end, We find it hard to disregard the thought that the instant petition was filed as a dilatory tactic to
prosecute Criminal Case Nos. 206655-59, 206661-77 and 209634. As correctly pointed out by Uy since the
time when the "Motion for Permanent Dismissal" was filed, the issues raised herein were already resolved with
finality by this Court in G.R. No. 171096. Verily, Co, acting through the guidance and advice of his counsel,
Atty. Oscar C. Maglaque, adopted a worthless and vexatious legal maneuver for no purpose other than to
delay the trial court proceedings. It appears that Atty. Maglaque’s conduct contravened the Code of
Professional Responsibility which enjoins lawyers to observe the rules of procedure and not to misuse them to
defeat the ends of justice (Rule 10.03, Canon 10) as well as not to unduly delay a case or misuse court
processes (Rule 12.04, Canon 12). The Lawyer’s Oath also upholds in particular:

x x x I will not wittingly or willingly promote or sue any groundless, false or unlawful suit, nor give aid nor
consent to the same; I will delay no man for money or malice, and will conduct myself as a lawyer according to
the best of my knowledge and discretion with all good fidelity as well to the courts as to my clients x x
x.1âwphi1

This Court has repeatedly impressed upon counsels that the need for the prompt termination of litigation is
essential to an effective and efficient administration of justice. In Spouses Aguilar v. Manila Banking
Corporation,43 We said:

The Court reminds petitioners' counsel of the duty of lawyers who, as officers of the court, must see to it that
the orderly administration of justice must not be unduly impeded. It is the duty of a counsel to advise his client,
ordinarily a layman on the intricacies and vagaries of the law, on the merit or lack of merit of his case. If he
finds that his client's cause is defenseless, then it is his bounden duty to advise the latter to acquiesce and
submit, rather than traverse the incontrovertible. A lawyer must resist the whims and caprices of his client, and
temper his client's propensity to litigate. A lawyer’s oath to uphold the cause of justice is superior to his duty to
his client; its primacy is indisputable.44

WHEREFORE, premises considered, the Petition is DENIED. The April 30, 2008 and August 1, 2008
Resolutions of the Court of Appeals, respectively, in CA-G.R. SP No. 102975, which affirmed the January 28,
2008 Decision of the Regional Trial Court, Branch 121 of Caloocan City, annulling and setting aside the Orders
dated September 4, 2006 and November 16, 2006 of the Metropolitan Trial Court, Branch 50 of Caloocan City
that permanently dismissed Criminal Case Nos. 206655-59, 206661-77 and 209634, are hereby AFFIRMED.
Costs of suit to be paid by the petitioner.

The Commission on Bar Discipline-Integrated Bar of the Philippines is DIRECTED to investigate Atty. Oscar C.
Maglaque for his acts that appear to have violated the Lawyer's Oath, the Code of Professional Responsibility,
and the Rule on Forum Shopping.

SO ORDERED.
G.R. No. 197546 March 23, 2015

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,

vs.
BAYANI DE LEON, ANTONIO DE LEON, DANILO DE LEON and YOYONG DE LEON, Accused-Appellants.

DECISION

PEREZ, J.:

For review is the conviction for the crime of Murder of accused-appellants BAYANI DE LEON (Bayani),
ANTONIO DE LEON (Antonio), DANILO DE LEON (Danilo), and YOYONG DE LEON (Yoyong) by the
Regional Trial Court (RTC),1 in Criminal Case No. Q-02-113990, which Decision2 was affirmed with
modifications by the Court of Appeals.

The accused-appellants were charged with Robbery with Homicide under an Information which reads:

That on or about the 2nd day of March, 2002, in Quezon City, Philippines, the above-named accused,
conspiring together, confederating with and mutually helping one another, with intent to gain, by means of
violence and/or intimidation against [sic] person, did then and there wilfully, unlawfully and feloniously rob one
EMILIO A. PRASMO, in the following manner, to wit: on the date and place aforementioned, while
victim/deceased Emilio A. Prasmo was walking along A. Bonifacio Street, Barangay Sta. Lucia, Novaliches,
this City, together with his wife and daughter in-law, accused pursuant to their conspiracy armed with sumpak,
samurai, lead pipe and .38 cal. revolver rob EMILIO A. PRASMO and took and carried away ₱7,000.00,
Philippine currency, and by reason or on the occasion thereof, with evident premeditation, abuse of superior
strength and treachery, accused with intent to kill[,] attack, assault and employ personal violence upon
EMILIOA. PRASMO by then and there shooting and hacking the victim with the use of said weapons, thereby
inflicting upon him serious and grave wounds which were the direct and immediate cause of his untimely
death, to the damage and prejudice of the heirs of said Emilio A. Prasmo.3

When arraigned, all the accused-appellants entered a plea of not guilty except accused Antonio. Thus, the
RTC ordered a reverse trial in so far as Antonio is concerned.

Evidence of the Prosecution

The prosecution presented Erlinda A. Prasmo (Erlinda), wife of the victim, Emilio Prasmo (Emilio), who testified
that on 2 March 2002, while they were walking along Sta. Lucia Street, Novaliches, on their way to RP Market,
the accused-appellants, who are siblings, blocked their way. Accused-appellant Danilo, armed with a
"sumpak", suddenly hit Emilio with a "bakal" while accused-appellant Antonio, who was armed with a
"samurai", hacked Emilio in the forehead and struck him with a lead pipe at the right back portion of his legs
and middle back portion of his torso. Accused-appellant Danilo then took Emilio’s money in the amount of
₱7,000.00 and thereafter aimed the "sumpak" at the lower portion of Emilio’s chest and fired the same, causing
Emilio to slump on the ground. Accused-appellant Yoyong also hit Emilio with a lead pipe at the back of the
neck and middle portion of his back.

As accused-appellants attacked and mauled Emilio, Erlinda, seeing her husband sprawled motionless on the
ground, shouted for help, but nobody dared to help because accused-appellant Bayani, armed with a gun, was
shouting "walang lalapit". The accused-appellants immediately left and Emilio was brought to the FEU Fairview
Hospital, where Emilio died.
Gina Prasmo, Emilio’s daughter, testified that at the time of the incident, she was at their house when she was
informed of the news. She immediately went to the hospital where she learned that her father was already
dead.

The testimony of Dr. Editha Martinez, a medico-legal officer of the Medico-Legal Division, Philippine National
Police Crime Laboratory, Camp Crame, Quezon City, was dispensed with because she was not the one who
performed the autopsy on the cadaver of Emilio, but nevertheless, she identified such documents as Medico-
Legal Report, Autopsy Report, Sketch of the head showing contusion, anatomical sketch showing the gunshot
wound on the right portion of the chest, and the anatomical sketch of Emilio.

Evidence of the Defense

Carmelita de Leon (Carmelita), sister of the accused-appellants, testified that on the evening of 1 March 2002,
she was at her house when her brothers, accused-appellants Danilo and Antonio, arrived. Upon observing that
the heads of Antonio and Danilo were bleeding, she was informed that Emilio and his son, Edgardo Prasmo
(Edgardo), attacked and mauled them, which caused their injuries. They reported the incident to a "tanod" in
the barangay hall, Julio Batingaw, who told them to return in the afternoon so they could have a meeting with
Emilio and Edgardo. When they returned, Emilio and Edgardo did not appear.

In the evening, at around 7 o’clock, fifteen (15) men carrying firearms, who included Jerry and Edgar, sons of
Emilio, stormed her house looking for accused-appellants and threatened to kill her if she will not disclose their
whereabouts. To support her testimony, the defense offered in evidence the medical certificates for the injuries
sustained by accused-appellants Antonio and Danilo dated 1 March 2002 and the entry in the barangay blotter
book dated 2 March 2002,about the mauling of accused-appellants Antonio and Danilo.

The accused-appellants gave their testimonies that follow:

Jose de Leon, also known as Yoyong, was at the house of his brother-in-law, Willie Bandong, in Bagong
Barrio, Caloocan City to discuss the schedule of the "pabasa". He stayed there between 8:00 to 9:00 o’clock in
the evening. Danilo, at that time, was with his mother in Pugad Lawin in Quezon City, to accompany his mother
in doing her work as a "manghihilot". They left Pugad Lawin between 8:00 to 9:00 o’clock in the evening and
went home. Bayani, a police civilian agent, at the night of the crime, was at the Police Station No. 5 in Fairview,
Quezon City, talking to a police officer.

Antonio, in the morning of 2 March 2002, went to the barangayhall with his mother, Carmelita, and accused-
appellant Danilo, to file a complaint against Emilio and Emilio’s son, Edgardo, due to the mauling incident the
previous evening. In the barangayhall, they were told to return in the afternoon so they could have a meeting
with Emilio and Edgardo. They returned as told. Emilio and Edgardo did not.

On the way home, accused-appellant Antonio met Emilio, Erlinda, and Gina, Emilio’s daughter, walking along
A. Bonifacio Street. Emilio, upon seeing Antonio, immediately opened his jacket and tried to pull "something"
out. Antonio then instantlytried to grab that "something" from Emilio. While grappling for the possession of that
"something", which turned out to be a "sumpak", it fired.

Bernaly Aguilar, while on her way to the market in Sta. Lucia, witnessed a fight involving accused-appellant
Antonio and another man, who were grappling for the possession over a "bakal". After walking a few meters
away from the incident, she heard a shot.

The Ruling of the Regional Trial Court

According to the accused-appellants, Erlinda is not a credible witness and that her testimony is barren of
probative value for having grave and irreconcilable inconsistencies, as opposed to accused-appellant Antonio’s
testimony which supposedly established the presence of all the essential requisites of self-defense. Accused-
appellants referred to the inconsistency between Erlinda’s court testimony and her Sinumpaang Salaysay. In
her Sinumpaang Salaysay, she identified accused-appellant Antonio as the one who fired the "sumpak" at the
lower chest of Emilio and took Erlinda’s money. However, during her direct examination, she testified that it
was accused-appellant Danilo who shot Emilio with a "sumpak" and thereafter, took his wallet.

Accused-appellants further argued that Erlinda could not have mistaken Danilo for Antonio, because she knew
them both as they reside six (6) houses away from the house of the Prasmos and that accused-appellant
Antonio has a distinctive feature — having a cleft palate or is "ngongo".

The RTC rejected accused-appellants’ contentions. According to the RTC, Erlinda’s narration of the incident is
clear and convincing. While her testimony has some inconsistencies, they refer only to collateral and minor
matters, which do not detract from the probative value of her testimony.

The trial court found established the circumstances of abuse of superior strength and treachery, abuse of
strength absorbed by the aggravating circumstance of treachery:4

These requisites are obviously present in this case considering that the evidence shows that after Danilo
suddenly fired at Emilio’s lower portion of the chest accused Antonio and Yoyong ganged up on Emilio, with
Antonio hitting him with a lead pipe on the right back portion of his legs and in the middle back torso and
hacking him with a samurai, and accused Yoyong hitting also (sic) him with a lead pipe on the right back leg
and middle portion of his back. Said action of the four (4) accused rendered it difficult for the victim to defend
himself.5

However, citing People v. Nimo,6 the RTC ruled that because robbery was not duly established, it cannot
convict accused-appellants for robbery with homicide. It relied on the principle that in order to sustain a
conviction for robbery with homicide, robbery must be proven as conclusively as the killing itself. 7 Thus, as
opposed to the Information which charged the accused-appellants of the crime of Robbery with Homicide, the
RTC found accused-appellants guilty beyond reasonable doubt of the crime of Murder by conspiracy. The
dispositive portion of the RTC Decision reads:

WHEREFORE, the Court finds accused BAYANI DE LEON, ANTONIO DE LEON, DANILO DE LEON and
YOYONG DE LEON guilty beyond reasonable doubt of the crime of MURDER defined and penalized under
Article 248 of the Revised Penal Code as amended and are hereby sentenced to suffer the penalty of
RECLUSION PERPETUA with all the accessory penalties provided by law and to jointly and severally
indemnify the heirs of the late EMILIO PRASMO the amounts of ₱50,000.00 as indemnity for his death and
₱50,000.00 as moral damages.8

The Ruling of the Court of Appeals

The Court of Appeals affirmed the conviction of the accused-appellants. Contrary to the accused-appellants’
contention that the trial court committed a reversible error when it gave credence to Erlinda’s testimony, the
Court of Appeals considered Erlinda’s recollection of the events as direct, positive and convincing manner,
unshaken by a tedious and grueling cross-examination.9

With regard to the crime charged, the Court of Appeals agreed that the accused-appellants are guilty of the
crime of Murder instead of Robbery with Homicide. As borne by the records, the only intent of the accused-
appellants was to kill Emilio. The "accused-appellants had an axe to grind against Emilio x x x. The means
used by the accused-appellants as well as the nature and number of wounds - debilitating, fatal and multiple –
inflicted by appellants on the deceased manifestly revealed their design to kill him. The robbery committed by
appellant Danilo [was on] the spur of the moment or [was] a mere afterthought."10

Also, the Court of Appeals found accused-appellant Danilo guilty of Robbery for unlawfully divesting Emilio of
₱7,000.00, which it considered as an action independent of and outside the original design to murder Emilio.
The dispositive portion of the Court of Appeals Decision reads: WHEREFORE, the appealed Decision dated
May 25, 2007 of the Regional Trial Court of Quezon City, Branch 81 is hereby AFFIRMED in toto with the
added MODIFICATION that accused-appellant Danilo de Leon is also found guilty beyond reasonable doubt of
the crime of Robbery defined under Article 293 and penalized under Article 294 (5) of the Revised Penal Code,
and is sentenced to suffer the indeterminate penalty of two (2) years and seven (7) months of prision
correccional, as minimum, to eight (8) years and ten (10) days of prision mayor, as maximum. He is ordered to
return to the heirs of Emilio Prasmo the cash of ₱7,000.00, representing the amount he took from said victim. 11

Now, before the Court on automatic review, accused-appellants contend, by way of assignment of errors, that
the appellate court gravely erred when:

1. it gave full credence to the inconsistent testimony of the alleged eyewitness Erlinda Prasmo; and

2. it disregarded the self-defense interposed by Antonio De Leon and the denial and alibi interposed by
Bayani, Danilo, and Yoyong, all surnamed De Leon.12

Our Ruling

The accused-appellants’ attempt to discredit Erlinda’s testimony must fail. Inconsistencies between the
declaration of the affiant in her sworn statements and those in open court do not necessarily discredit the
witness;13 it is not fatal to the prosecution’s cause. In fact, contrary to the defense’s claim, discrepancies erase
suspicion that the witness was rehearsed or that the testimony was fabricated. As correctly held by the Court of
Appeals, despite minor inconsistencies, Erlinda’s narration revealed each and every detail of the incident,
which gave no impression whatsoever that her testimony is a mere fabrication. As we already enunciated in
previous rulings, "[i]t is a matter of judicial experience that affidavits or statements taken ex parte are generally
incomplete and inaccurate. Thus, by nature, they are inferior to testimony given in court, and whenever there is
inconsistency between the affidavit and the testimony of a witness in court, the testimony commands greater
weight."14

Before us is a reversed trial. As one of the accused-appellants, Antonio, pleaded self-defense, he admitted
authorship of the crime. At this juncture, the burden of proof is upon the accused-appellants to prove with clear
and convincing evidence the elements of self-defense: (1) unlawful aggression on the part of the victim; (2)
reasonable necessity of the means employed to prevent or repel the attack; and (3) lack of sufficient
provocation on the part of the person defending himself,15 which the defense failed to discharge.

Unlawful Aggression

Unlawful aggression refers to an assault to attack, or threat in an imminent and immediate manner, which
places the defendant’s life in actual peril. Mere threatening or intimidating attitude will not suffice. There must
be actual physical force or actual use of weapon.16

Applying the aforesaid legal precept, Emilio’s act of pulling "something" out from his jacket while he was three
(3) to four (4) meters away from accused-appellant Antonio cannot amount to unlawful aggression. Neither can
the act of pulling "something" out amount to physical force or actual use of weapon, or even threat or
intimidating attitude. Even if accused-appellant Antonio’s account of the incident is truthful, that Emilio had
motive to kill accused-appellant Antonio, giving accused-appellant reasonable grounds to believe that his life
and limb was in danger, and that the "something" was indeed a "sumpak", it can hardly be recognized as
unlawful aggression to justify self-defense.17 There is no showing that accused-appellant Antonio’s life was in
peril by the act of pulling "something" out. As correctly observed by the Court of Appeals, "it must be noted that
appellant never said that Emilio aimed or pointed the "sumpak" at him or at least made an attempt to shoot
him".18 The threat on accused-appellant Antonio’s life is more imagined than real. As we already held in a
catena of cases, the act of pulling "something" out cannot constitute unlawful aggression.19

Accused-appellant Antonio cannot allege that it was Emilio who instigated the incident; that Emilio’s fate was
brought about by his own actuations. There is no sufficient provocation, nay, provocation at all in the act of
pulling "something" out.

Contrary to accused-appellant Antonio’s contention that he acted in self-defense, the Medico-Legal Report No.
M-685-02 dated 12 March 2002 proved otherwise. As borne by the records, Emilio sustained numerous
wounds, including the fatal gunshot wound in the chest, which belie accused-appellants’ defense that Antonio
was alone at the scene of the crime and acted in self-defense. The Medico-Legal Report No. M-685-02 dated
12 March 2002 revealed that the victim sustained the following multiple injuries:

HEAD AND NECK:

1. Lacerated wound, right parietal region, measuring 4 x 3 cm, 7 cm from the mid-sagittal line.

2. Contusion, right mandibular region, measuring 11 x 2 cm, 7 cm from the anterior midline.

3. Contusion, nasal region, measuring 3 x 2.5 cm, along the anterior midline.

4. Hematoma, left parietal region, measuring 5 x 4 cm, 8 cm from the anterior midline.

5. Contusion, left cheek, measuring 11 x 3 cm, 8 cm from the anterior midline.

6. Contusion, left lateral neck region, measuring 6 x 3 cm, 4 cm from the anterior midline.

7. Lacerated wound, occipital region, measuring 5 x 1.8 cm, bisected by the anterior midline.

8. There is a scalp hematoma at the right parieto-occipital region.

9. There are subdural, sub arachnoid hemorrhages at the right celebrum.

10. The right parietal bone is fractured.

TRUNK AND ABDOMEN:

1. Gunshot wound, right chest, measuring 2.6 cm x 2.3 cm, 4 cm from the anterior midline, 112 cm from
the right heel, directed posteriorwards, downwards, and slightly lateralwards, fracturing the 6th and 7th
ribs, lacerating the lower lobe of the right lung, diaphragm, right lobe of the liver with the deformed
plastic wad embedded, right kidney with 2 lead pellets found embedded and the aorta with 3 pellets
embedded thereat and 2 lead pellets found at the right thoracic cavity.

2. Contusion, right shoulder region, measuring 12 x 3 cm, 8 cm from the posterior midline.

3. Abrasion, right shoulder region, measuring 3.5 x 2 cm, 12 cm from the posterior midline.

4. Contusion, left shoulder region, measuring 4 x 2 cm, 6 cm from the posterior midline.

EXTREMITIES:

1. Contusion, left elbow, measuring 8 x 2 cm, 5 cm medial to its posterior midline.

2. Abrasion, dorsal aspect of the left hand, measuring 0.6 x 0.3 cm, 3 cm medial to its posterior
midline.20

As we already held, the nature and location of wounds are considered important indicators which disprove a
plea of self-defense.21 A perusal of the evidence would depict the presence of a deliberate onslaught against
Emilio. The means used by accused-appellants as shown by the nature, location and number of wounds
sustained by Emilio are so much more than sufficient to repel or prevent any alleged attack of Emilio against
accused-appellant Antonio. Evidently, the accused-appellants’ intent to kill was clearly established by the
nature and number of wounds sustained by Emilio. The wounds sustained by Emilio indubitably reveal that the
assault was no longer an act of self-defense but a homicidal aggression on the part of accused-
appellants.22 Double Jeopardy

The RTC did not find the accused guilty of the crime of robbery with homicide as charged in the Information,
but found all the accused guilty of the crime of murder. According to the RTC, contrary to the charge of robbery
with homicide, the accused is guilty of the crime of murder because the prosecution failed to establish the
crime of robbery. The RTC, citing People v. Nimo,23 ratiocinated that in order to sustain a conviction for robbery
with homicide, robbery must be proven as conclusively as the killing itself.

On the other hand, the Court of Appeals affirmed with modifications the ruling of the RTC and found all of the
accused guilty of the crime of murder. However, contrary to the findings of the RTC with regard to the crime of
robbery, the Court of Appeals reversed the ruling of the RTC and found accused Danilo guilty of the separate
crime of robbery. We find that the appellate court erred for violating the constitutional right of Danilo against
double jeopardy as enshrined in Section 21, Article III of the 1987 Constitution, to wit:

Section 21. No person shall be twice put in jeopardy of punishment for the same offense.1âwphi1 If an act is
punished by a law and an ordinance, conviction or acquittal under either shall constitute a bar to another
prosecution for the same act.24

Double jeopardy attaches if the following elements are present: (1) a valid complaint or information; (2) a court
of competent jurisdiction; (3) the defendant had pleaded to the charge; and (4) the defendant was acquitted, or
convicted or the case against him was dismissed or otherwise terminated without his express consent.25

In case at bar, it is undisputed the presence of all the elements of double jeopardy: (1) a valid Information for
robbery with homicide was filed; (2) the Information was filed in the court of competent jurisdiction; (3) the
accused pleaded not guilty to the charge; and (4) the RTC acquitted Danilo for the crime of robbery for lack of
sufficient evidence, which amounted to an acquittal from which no appeal can be had. Indeed the conviction for
murder was premised on the fact that robbery was not proven. The RTC Decision which found accused guilty
of the crime of murder and not of robbery with homicide on the ground of insufficiency of evidence is a
judgment of acquittal as to the crime of robbery alone.

As the first jeopardy already attached, the appellate court is precluded from ruling on the innocence or guilt of
Danilo of the crime of robbery. To once again rule on the innocence or guilt of the accused of the same crime
transgresses the Constitutional prohibition not to put any person "twice x x x in jeopardy of punishment for the
same offense."26As it stands, the acquittal on the crime of robbery based on lack of sufficient evidence is
immediately final and cannot be appealed on the ground of double jeopardy.27 A judgment of acquittal is final
and unappealable. In fact, the Court cannot, even an appeal based on an alleged misappreciation of evidence,
review the verdict of acquittal of the trial court28 due to the constitutional proscription, the purpose of which is to
afford the defendant, who has been acquitted, final repose and safeguard from government oppression
through the abuse of criminal processes.29 The crime of robbery was not proven during the trial. As we
discussed, the acquittal of the accused-appellant, including Danilo, is not reversible.

WHEREFORE, the Decision of the Court of Appeals is hereby AFFIRMED with MODIFICATIONS. Accused-
Appellants BAYANI DE LEON, ANTONIO DE LEON, DANILO DE LEON and YOYONG DE LEON are hereby
declared guilty beyond reasonable doubt of the crime

of Murder and are sentenced to suffer the penalty of reclusion perpetua. The accused-appellants are ordered
to pay Emilio Prasmo's heirs the following amounts: ₱75,000.00 as civil indemnity for Emilio Prasmo's death,
₱75,000.00 as moral damages, and ₱30,000.00 as exemplary damages.

All monetary awards shall earn interest at the rate of 6% per annum from the date of finality until fully paid.

SO ORDERED.
RULE 118

G.R. No. 226679

SALVADOR ESTIPONA, JR. y ASUELA, Petitioner,

vs.
HON. FRANK E. LOBRIGO, Presiding Judge of the Regional Trial Court, Branch 3, Legazpi City, Albay,
and PEOPLE OF THE PHILIPPINES, Respondents.

DECISION

PERALTA, J.:

Challenged in this petition for certiorari and prohibition1 is the constitutionality of Section 23 of Republic
Act (R.A.)No. 9165, or the "Comprehensive Dangerous Drugs Act of 2002, "2 which provides:

SEC 23. Plea-Bargaining Provision. - Any person charged under any provision of this Act regardless of the
imposable penalty shall not be allowed to avail of the provision on plea-bargaining.3

The facts are not in dispute.

Petitioner Salvador A. Estipona, Jr. (Estipona) is the accused in Criminal Case No. 13586 for violation of
Section 11, Article II of R.A. No. 9165 (Possession of Dangerous Drugs). The Information alleged:

That on or about the 21st day of March, 2016, in the City of Legazpi, Philippines, and within the jurisdiction of
this Honorable Court, the above-named accused, not being lawfully authorized to possess or otherwise use
any regulated drug and without the corresponding license or prescription, did then and there, willfully,
unlawfully and feloniously have, in his possession and under his control and custody, one (1) piece heat-
sealed transparent plastic sachet marked as VOP 03/21/16- l G containing 0.084 [gram] of white crystalline
substance, which when examined were found to be positive for Methamphetamine Hydrocloride (Shabu), a
dangerous drug.

CONTRARY TO LAW.4

On June 15, 2016, Estipona filed a Motion to Allow the Accused to Enter into a Plea Bargaining
Agreement,5 praying to withdraw his not guilty plea and, instead, to enter a plea of guilty for violation of Section
12, Article II of R.A. No. 9165 (Possession of Equipment, Instrument, Apparatus and Other Paraphernalia for
Dangerous Drugs) with a penalty of rehabilitation in view of his being a first-time offender and the minimal
quantity of the dangerous drug seized in his possession. He argued that Section 23 of R.A. No. 9165 violates:
(1) the intent of the law expressed in paragraph 3, Section 2 thereof; (2) the rule-making authority of the
Supreme Court under Section 5(5), Article VIII of the 1987 Constitution; and (3) the principle of separation of
powers among the three equal branches of the government.

In its Comment or Opposition6 dated June 27, 2016, the prosecution moved for the denial of the motion for
being contrary to Section 23 of R.A. No. 9165, which is said to be justified by the Congress' prerogative to
choose which offense it would allow plea bargaining. Later, in a Comment or Opposition7 dated June 29, 2016,
it manifested that it "is open to the Motion of the accused to enter into plea bargaining to give life to the intent
of the law as provided in paragraph 3, Section 2 of [R.A. No.] 9165, however, with the express mandate of
Section 23 of [R.A. No.] 9165 prohibiting plea bargaining, [it] is left without any choice but to reject the proposal
of the accused."

On July 12, 2016, respondent Judge Frank E. Lobrigo of the Regional Trial Court (RTC), Branch 3, Legazpi
City, Albay, issued an Order denying Estipona's motion. It was opined:

The accused posited in his motion that Sec. 23 of RA No. 9165, which prohibits plea bargaining, encroaches
on the exclusive constitutional power of the Supreme Court to promulgate rules of procedure because plea
bargaining is a "rule of procedure." Indeed, plea bargaining forms part of the Rules on Criminal Procedure,
particularly under Rule 118, the rule on pre-trial conference. It is only the Rules of Court promulgated by the
Supreme Court pursuant to its constitutional rule-making power that breathes life to plea bargaining. It cannot
be found in any statute.

Without saying so, the accused implies that Sec. 23 of Republic Act No. 9165 is unconstitutional because it, in
effect, suspends the operation of Rule 118 of the Rules of Court insofar as it allows plea bargaining as part of
the mandatory pre-trial conference in criminal cases.

The Court sees merit in the argument of the accused that it is also the intendment of the law, R.A. No. 9165, to
rehabilitate an accused of a drug offense. Rehabilitation is thus only possible in cases of use of illegal drugs
because plea bargaining is disallowed. However, by case law, the Supreme Court allowed rehabilitation for
accused charged with possession of paraphernalia with traces of dangerous drugs, as held in People v.
Martinez, G.R. No. 191366, 13 December 2010. The ruling of the Supreme Court in this case manifested the
relaxation of an otherwise stringent application of Republic Act No. 9165 in order to serve an intent for the
enactment of the law, that is, to rehabilitate the offender.

Within the spirit of the disquisition in People v. Martinez, there might be plausible basis for the declaration of
Sec. 23 of R.A. No. 9165, which bars plea bargaining as unconstitutional because indeed the inclusion of the
provision in the law encroaches on the exclusive constitutional power of the Supreme Court.

While basic is the precept that lower courts are not precluded from resolving, whenever warranted,
constitutional questions, the Court is not unaware of the admonition of the Supreme Court that lower courts
must observe a becoming modesty in examining constitutional questions. Upon which admonition, it is thus not
for this lower court to declare Sec. 23 of R.A. No. 9165 unconstitutional given the potential ramifications that
such declaration might have on the prosecution of illegal drug cases pending before this judicial station. 8

Estipona filed a motion for reconsideration, but it was denied in an Order9 dated July 26, 2016; hence, this
petition raising the issues as follows:

I.

WHETHER SECTION 23 OF REPUBLIC ACT NO. 9165, WHICH PROHIBITS PLEA BARGAINING IN ALL
VIOLATIONS OF THE SAID LAW, IS UNCONSTITUTIONAL FOR BEING VIOLATIVE OF THE
CONSTITUTIONAL RIGHT TO EQUAL PROTECTION OF THE LAW.

II.

WHETHER SECTION 23 OF REPUBLIC ACT NO. 9165 IS UNCONSTITUTIONAL AS IT ENCROACHED

UPON THE POWER OF THE SUPREME COURT TO PROMULGATE RULES OF PROCEDURE.

III.

WHETHER THE REGIONAL TRIAL COURT, AS PRESIDED BY HON. FRANK E. LOBRIGO, COMMITTED
GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION WHEN IT
REFUSED TO DECLARE SECTION 23 OF REPUBLIC ACT NO. 9165 AS UNCONSTITUTIONAL.10
We grant the petition.

PROCEDURAL MATTERS

The People of the Philippines, through the Office of the Solicitor General (OSG), contends that the petition
should be dismissed outright for being procedurally defective on the grounds that: (1) the Congress should
have been impleaded as an indispensable party; (2) the constitutionality of Section 23 of R.A. No. 9165 cannot
be attacked collaterally; and (3) the proper recourse should have been a petition for declaratory relief before
this Court or a petition for certiorari before the RTC. Moreover, the OSG argues that the petition fails to satisfy
the requisites of judicial review because: (1) Estipona lacks legal standing to sue for failure to show direct
injury; (2) there is no actual case or controversy; and (3) the constitutionality of Section 23 of R.A. No. 9165 is
not the lis mota of the case.

On matters of technicality, some points raised by the OSG maybe correct.1âwphi1 Nonetheless, without much
further ado, it must be underscored that it is within this Court's power to make exceptions to the rules of court.
Under proper conditions, We may permit the full and exhaustive ventilation of the parties' arguments and
positions despite the supposed technical infirmities of a petition or its alleged procedural flaws. In discharging
its solemn duty as the final arbiter of constitutional issues, the Court shall not shirk from its obligation to
determine novel issues, or issues of first impression, with far-reaching implications.11

Likewise, matters of procedure and technicalities normally take a backseat when issues of substantial and
transcendental importance are present.12 We have acknowledged that the Philippines' problem on illegal drugs
has reached "epidemic," "monstrous," and "harrowing" proportions,13 and that its disastrously harmful social,
economic, and spiritual effects have broken the lives, shattered the hopes, and destroyed the future of
thousands especially our young citizens.14 At the same time, We have equally noted that "as urgent as the
campaign against the drug problem must be, so must we as urgently, if not more so, be vigilant in the
protection of the rights of the accused as mandated by the Constitution x x x who, because of excessive zeal
on the part of the law enforcers, may be unjustly accused and convicted."15 Fully aware of the gravity of the
drug menace that has beset our country and its direct link to certain crimes, the Court, within its sphere, must
do its part to assist in the all-out effort to lessen, if not totally eradicate, the continued presence of drug lords,
pushers and users.16

Bearing in mind the very important and pivotal issues raised in this petition, technical matters should not deter
Us from having to make the final and definitive pronouncement that everyone else depends for enlightenment
and guidance.17 When public interest requires, the Court may brush aside procedural rules in order to resolve a
constitutional issue.18

x x x [T]he Court is invested with the power to suspend the application of the rules of procedure as a necessary
complement of its power to promulgate the same. Barnes v. Hon. Quijano Padilla discussed the rationale for
this tenet, viz. :

Let it be emphasized that the rules of procedure should be viewed as mere tools designed to facilitate the
attainment of justice. Their strict and rigid application, which would result in technicalities that tend to frustrate
rather than promote substantial justice, must always be eschewed. Even the Rules of Court reflect this
principle. The power to suspend or even disregard rules can be so pervasive and compelling as to alter even
that which this Court itself has already declared to be final, x x x.

The emerging trend in the rulings of this Court is to afford every party litigant the amplest opportunity for the
proper and just determination of his cause, free from the constraints of technicalities. Time and again, this
Court has consistently held that rules must not be applied rigidly so as not to override substantial justice. 19

SUBSTANTIVE ISSUES

Rule-making power of the Supreme

Court under the 1987 Constitution
Section 5(5), A1iicle VIII of the 1987 Constitution explicitly provides:

Sec. 5. The Supreme Court shall have the following powers:

xxxx

(5) Promulgate rules concerning the protection and enforcement of constitutional rights, pleading, practice, and
procedure in all courts, the admission to the practice of law, the Integrated Bar, and legal assistance to the
underprivileged. Such rules shall provide a simplified and inexpensive procedure for the speedy disposition of
cases, shall be uniform for all courts of the same grade, and shall not diminish, increase, or modify substantive
rights. Rules of procedure of special courts and quasi-judicial bodies shall remain effective unless disapproved
by the Supreme Court.

The power to promulgate rules of pleading, practice and procedure is now Our exclusive domain and no longer
shared with the Executive and Legislative departments.20 In Echegaray v. Secretary of Justice, 21 then
Associate Justice (later Chief Justice) Reynato S. Puno traced the history of the Court's rule-making power and
highlighted its evolution and development.

x x x It should be stressed that the power to promulgate rules of pleading, practice and procedure was granted
by our Constitutions to this Court to enhance its independence, for in the words of Justice Isagani Cruz
"without independence and integrity, courts will lose that popular trust so essential to the maintenance of their
vigor as champions of justice." Hence, our Constitutions continuously vested this power to this Court for it
enhances its independence. Under the 1935 Constitution, the power of this Court to promulgate rules
concerning pleading, practice and procedure was granted but it appeared to be co-existent with legislative
power for it was subject to the power of Congress to repeal, alter or supplement. Thus, its Section 13, Article
VIII provides:

"Sec. 13. The Supreme Court shall have the power to promulgate rules concerning pleading, practice and
procedure in all courts, and the admission to the practice of law. Said rules shall be uniform for all courts of the
same grade and shall not diminish, increase, or modify substantive rights. The existing laws on pleading,
practice and procedure are hereby repealed as statutes, and are declared Rules of Court, subject to the power
of the Supreme Court to alter and modify the same. The Congress shall have the power to repeal, alter or
supplement the rules concerning pleading, practice and procedure, and the admission to the practice of law in
the Philippines."

The said power of Congress, however, is not as absolute as it may appear on its surface. In In re:
Cunanan Congress in the exercise of its power to amend rules of the Supreme Court regarding admission to
the practice of law, enacted the Bar Flunkers Act of 1953 which considered as a passing grade, the average of
70% in the bar examinations after July 4, 1946 up to August 1951 and 71 % in the 1952 bar examinations. This
Court struck down the law as unconstitutional. In his ponencia, Mr. Justice Diokno held that "x x x the disputed
law is not a legislation; it is a judgment - a judgment promulgated by this Court during the aforecited years
affecting the bar candidates concerned; and although this Court certainly can revoke these judgments even
now, for justifiable reasons, it is no less certain that only this Court, and not the legislative nor executive
department, that may do so. Any attempt on the part of these departments would be a clear usurpation of its
function, as is the case with the law in question." The venerable jurist further ruled: "It is obvious, therefore,
that the ultimate power to grant license for the practice of law belongs exclusively to this Court, and the law
passed by Congress on the matter is of permissive character, or as other authorities say, merely to fix the
minimum conditions for the license." By its ruling, this Court qualified the absolutist tone of the power of
Congress to "repeal, alter or supplement the rules concerning pleading, practice and procedure, and the
admission to the practice of law in the Philippines.

The ruling of this Court in In re Cunanan was not changed by the 1973 Constitution. For the 1973 Constitution
reiterated the power of this Court "to promulgate rules concerning pleading, practice and procedure in all
courts, x x x which, however, may be repealed, altered or supplemented by the Batasang Pambansa x x x."
More completely, Section 5(2)5 of its Article X provided:
xxxx

"Sec. 5. The Supreme Court shall have the following powers.

xxxx

(5) Promulgate rules concerning pleading, practice, and procedure in all courts, the admission to the practice of
law, and the integration of the Bar, which, however, may be repealed, altered, or supplemented by the
Batasang Pambansa. Such rules shall provide a simplified and inexpensive procedure for the speedy
disposition of cases, shall be uniform for all courts of the same grade, and shall not diminish, increase, or
modify substantive rights."

Well worth noting is that the 1973 Constitution further strengthened the independence of the judiciary by giving
to it the additional power to promulgate rules governing the integration of the Bar.

The 1987 Constitution molded an even stronger and more independent judiciary. Among others, it enhanced
the rule making power of this Court. Its Section 5(5), Article VIII provides:

xxxx

"Section 5. The Supreme Court shall have the following powers:

xxx

(5) Promulgate rules concerning the protection and enforcement of constitutional rights, pleading, practice and
procedure in all courts, the admission to the practice of law, the Integrated Bar, and legal assistance to the
underprivileged. Such rules shall provide a simplified and inexpensive procedure for the speedy disposition of
cases, shall be uniform for all courts of the same grade, and shall not diminish, increase, or modify substantive
rights. Rules of procedure of special courts and quasi-judicial bodies shall remain effective unless disapproved
by the Supreme Court. "

The rule making power of this Court was expanded. This Court for the first time was given the power to
promulgate rules concerning the protection and enforcement of constitutional rights. The Court was also
granted for the .first time the power to disapprove rules of procedure of special courts and quasi-judicial
bodies. But most importantly, the 1987 Constitution took away the power of Congress to repeal, alter, or
supplement rules concerning pleading, practice and procedure. In fine, the power to promulgate rules of
pleading, practice and procedure is no longer shared by this Court with Congress, more so with the Executive.
x x x.22

Just recently, Carpio-Morales v. Court of Appeals (Sixth Division)23 further elucidated:

While the power to define, prescribe, and apportion the jurisdiction of the various courts is, by constitutional
design, vested unto Congress, the power to promulgate rules concerning the protection and enforcement
of constitutional rights, pleading, practice, and procedure in all courts belongs exclusively to this
Court.Section 5 (5), Article VIII of the 1987 Constitution reads:

xxxx

In Echegaray v. Secretary of Justice (Echegaray), the Court traced the evolution of its rule-making authority,
which, under the 1935 and 1973 Constitutions, had been priorly subjected to a power-sharing scheme with
Congress. As it now stands, the 1987 Constitution textually altered the old provisions by deleting the
concurrent power of Congress to amend the rules, thus solidifying in one body the Court's rule-making
powers, in line with the Framers' vision of institutionalizing a " [ s] tronger and more independent judiciary."
The records of the deliberations of the Constitutional Commission would show that the Framers debated on
whether or not the Court's rulemaking powers should be shared with Congress. There was an initial suggestion
to insert the sentence "The National Assembly may repeal, alter, or supplement the said rules with the advice
and concurrence of the Supreme Court," right after the phrase "Promulgate rules concerning the protection and
enforcement of constitutional rights, pleading, practice, and procedure in all courts, the admission to the
practice of law, the integrated bar, and legal assistance to the underprivileged[,]" in the enumeration of powers
of the Supreme Court. Later, Commissioner Felicitas S. Aquino proposed to delete the former sentence and,
instead, after the word "[under]privileged," place a comma(,) to be followed by "the phrase with the
concurrence of the National Assembly." Eventually, a compromise formulation was reached wherein (a) the
Committee members agreed to Commissioner Aquino's proposal to delete the phrase "the National Assembly
may repeal, alter, or supplement the said rules with the advice and concurrence of the Supreme Court"
and (b) in turn, Commissioner Aquino agreed to withdraw his proposal to add "the phrase with the
concurrence of the National Assembly." The changes were approved, thereby leading to the present lack
of textual reference to any form of Congressional participation in Section 5 (5), Article
VIII, supra. Theprevailing consideration was that "both bodies, the Supreme Court and the Legislature,
have their inherent powers."

Thus, as it now stands, Congress has no authority to repeal, alter, or supplement rules concerning pleading,
practice, and procedure.x x x.24

The separation of powers among the three co-equal branches of our government has erected an impregnable
wall that keeps the power to promulgate rules of pleading, practice and procedure within the sole province of
this Court.25 The other branches trespass upon this prerogative if they enact laws or issue orders that
effectively repeal, alter or modify any of the procedural rules promulgated by the Court. 26 Viewed from this
perspective, We have rejected previous attempts on the part of the Congress, in the exercise of its legislative
power, to amend the Rules of Court (Rules), to wit:

1. Fabian v. Desierto27 -Appeal from the decision of the Office of the Ombudsman in an administrative
disciplinary case should be taken to the Court of Appeals under the provisions of Rule 43 of the Rulesinstead
of appeal by certiorari under Rule 45 as provided in Section 27 of R.A. No. 6770.

2. Cathay Metal Corporation v. Laguna West Multi-Purpose Cooperative, Inc. 28 - The Cooperative Code
provisions on notices cannot replace the rules on summons under Rule 14 of the Rules.

3. RE: Petition for Recognition of the Exemption of the GSIS from Payment of Legal Fees; 29 Baguio Market
Vendors Multi-Purpose Cooperative (BAMARVEMPCO) v. Hon. Judge Cabato-Cortes;30 In Re: Exemption of
the National Power Corporation from Payment of Filing/Docket Fees; 31 and Rep. of the Phils. v. Hon.
Mangotara, et al. 32 - Despite statutory provisions, the GSIS, BAMARVEMPCO, and NPC are not exempt from
the payment of legal fees imposed by Rule 141 of the Rules.

4. Carpio-Morales v. Court of Appeals (Sixth Division)33 - The first paragraph of Section 14 of R.A. No. 6770,
which prohibits courts except the Supreme Court from issuing temporary restraining order and/or writ of
preliminary injunction to enjoin an investigation conducted by the Ombudsman, is unconstitutional as it
contravenes Rule 58 of the Rules.

Considering that the aforesaid laws effectively modified the Rules, this Court asserted its discretion to amend,
repeal or even establish new rules of procedure, to the exclusion of the legislative and executive branches of
government. To reiterate, the Court's authority to promulgate rules on pleading, practice, and procedure is
exclusive and one of the safeguards of Our institutional independence.34

Plea bargaining in criminal cases

Plea bargaining, as a rule and a practice, has been existing in our jurisdiction since July 1, 1940, when the
1940 Rules took effect. Section 4, Rule 114 (Pleas) of which stated:
SEC. 4. Plea of guilty of lesser offense. - The defendant, with the consent of the court and of the fiscal, may
plead guilty of any lesser offense than that charged which is necessarily included in the offense charged in the
complaint or information.

When the 1964 Rules became effective on January 1, 1964, the same provision was retained under Rule 118
(Pleas).1âwphi1 Subsequently, with the effectivity of the 1985 Rules on January 1, 1985, the provision on plea
of guilty to a lesser offense was amended. Section 2, Rule 116 provided:

SEC. 2. Plea of guilty to a lesser offense. - The accused with the consent of the offended party and the fiscal,
may be allowed by the trial court to plead guilty to a lesser offense, regardless of whether or not it is
necessarily included in the crime charged, or is cognizable by a court of lesser jurisdiction than the trial court.
No amendment of the complaint or information is necessary. (4a, R-118)

As well, the term "plea bargaining" was first mentioned and expressly required during pre-trial. Section 2, Rule
118 mandated:

SEC. 2. Pre-trial conference; subjects. - The pre-trial conference shall consider the following:

(a) Plea bargaining;

(b) Stipulation of facts;

(c) Marking for identification of evidence of the parties;

(d) Waiver of objections to admissibility of evidence; and

(e) Such other matters as will promote a fair and expeditious trial. (n)

The 1985 Rules was later amended. While the wordings of Section 2, Rule 118 was retained, Section 2, Rule
116 was modified in 1987. A second paragraph was added, stating that "[a] conviction under this plea shall be
equivalent to a conviction of the offense charged for purposes of double jeopardy."

When R.A. No. 8493 ("Speedy Trial Act of 1998 ') was enacted,35 Section 2, Rule 118 of the Rules was
substantially adopted. Section 2 of the law required that plea bargaining and other matters36 that will promote a
fair and expeditious trial are to be considered during pre-trial conference in all criminal cases cognizable by the
Municipal Trial Court, Municipal Circuit Trial Court, Metropolitan Trial Court, Regional Trial Court, and the
Sandiganbayan.

Currently, the pertinent rules on plea bargaining under the 2000 Rules37 are quoted below:

RULE 116 (Arraignment and Plea):

SEC. 2. Plea of guilty to a lesser offense. - At arraignment, the accused, with the consent of the offended party
and the prosecutor, may be allowed by the trial court to plead guilty to a lesser offense which is necessarily
included in the offense charged. After arraignment but before trial, the accused may still be allowed to plead
guilty to said lesser offense after withdrawing his plea of not guilty. No amendment of the complaint or
information is necessary. (Sec. 4, Cir. 38-98)

RULE 118 (Pre-trial):

SEC. 1. Pre-trial; mandatory in criminal cases. - In all criminal cases cognizable by

the Sandiganbayan,Regional Trial Court, Metropolitan Trial Court, Municipal Trial Court in Cities, Municipal
Trial Court and Municipal Circuit Trial Court, the court shall, after arraignment and within thirty (30) days from
the date the court acquires jurisdiction over the person of the accused, unless a shorter period is provided for
in special laws or circulars of the Supreme Court, order a pre-trial conference to consider the following:
(a) plea bargaining;

(b) stipulation of facts;

(c) marking for identification of evidence of the parties;

(d) waiver of objections to admissibility of evidence;

(e) modification of the order of trial if the accused admits the charge but interposes a lawful defense; and

(f) such matters as will promote a fair and expeditious trial of the criminal and civil aspects of the case. (Sec. 2
& 3, Cir. 38-98)

Plea bargaining is a rule of procedure

The Supreme Court's sole prerogative to issue, amend, or repeal procedural rules is limited to the preservation
of substantive rights, i.e., the former should not diminish, increase or modify the latter.38 "Substantive law is
that part of the law which creates, defines and regulates rights, or which regulates the right and duties which
give rise to a cause of action; that part of the law which courts are established to administer; as opposed to
adjective or remedial law, which prescribes the method of enforcing rights or obtain redress for their
invasions."39 Fabian v. Hon. Desierto40 laid down the test for determining whether a rule is substantive or
procedural in nature.

It will be noted that no definitive line can be drawn between those rules or statutes which are procedural, hence
within the scope of this Court's rule-making power, and those which are substantive. In fact, a particular rule
may be procedural in one context and substantive in another. It is admitted that what is procedural and what is
substantive is frequently a question of great difficulty. It is not, however, an insurmountable problem if a
rational and pragmatic approach is taken within the context of our own procedural and jurisdictional system.

In determining whether a rule prescribed by the Supreme Court, for the practice and procedure of the lower
courts, abridges, enlarges, or modifies any substantive right, the test is whether the rule really regulates
procedure, that is, the judicial process for enforcing rights and duties recognized by substantive law and for
justly administering remedy and redress for a disregard or infraction of them. If the rule takes away a vested
right, it is not procedural. If the rule creates a right such as the right to appeal, it may be classified as a
substantive matter; but if it operates as a means of implementing an existing right then the rule deals merely
with procedure.41

In several occasions, We dismissed the argument that a procedural rule violates substantive rights. For
example, in People v. Lacson, 42 Section 8, Rule 117 of the Rules on provisional dismissal was held as a
special procedural limitation qualifying the right of the State to prosecute, making the time-bar an essence of
the given right or as an inherent part thereof, so that its expiration operates to extinguish the right of the State
to prosecute the accused.43Speaking through then Associate Justice Romeo J. Callejo, Sr., the Court opined:

In the new rule in question, as now construed by the Court, it has fixed a time-bar of one year or two years for
the revival of criminal cases provisionally dismissed with the express consent of the accused and with a
priori notice to the offended party. The time-bar may appear, on first impression, unreasonable compared to
the periods under Article 90 of the Revised Penal Code. However, in fixing the time-bar, the Court balanced
the societal interests and those of the accused for the orderly and speedy disposition of criminal cases with
minimum prejudice to the State and the accused. It took into account the substantial rights of both the State
and of the accused to due process. The Court believed that the time limit is a reasonable period for the State to
revive provisionally dismissed cases with the consent of the accused and notice to the offended parties. The
time-bar fixed by the Court must be respected unless it is shown that the period is manifestly short or
insufficient that the rule becomes a denial of justice. The petitioners failed to show a manifest shortness or
insufficiency of the time-bar.
The new rule was conceptualized by the Committee on the Revision of the Rules and approved by the
Court en banc primarily to enhance the administration of the criminal justice system and the rights to due
process of the State and the accused by eliminating the deleterious practice of trial courts of provisionally
dismissing criminal cases on motion of either the prosecution or the accused or jointly, either with no time-bar
for the revival thereof or with a specific or definite period for such revival by the public prosecutor. There were
times when such criminal cases were no longer revived or refiled due to causes beyond the control of the
public prosecutor or because of the indolence, apathy or the lackadaisical attitude of public prosecutors to the
prejudice of the State and the accused despite the mandate to public prosecutors and trial judges to expedite
criminal proceedings.

It is almost a universal experience that the accused welcomes delay as it usually operates in his favor,
especially if he greatly fears the consequences of his trial and conviction. He is hesitant to disturb the hushed
inaction by which dominant cases have been known to expire.

The inordinate delay in the revival or refiling of criminal cases may impair or reduce the capacity of the State to
prove its case with the disappearance or nonavailability of its witnesses. Physical evidence may have been
lost. Memories of witnesses may have grown dim or have faded. Passage of time makes proof of any fact
more difficult. The accused may become a fugitive from justice or commit another crime. The longer the lapse
of time from the dismissal of the case to the revival thereof, the more difficult it is to prove the crime.

On the other side of the fulcrum, a mere provisional dismissal of a criminal case does not terminate a criminal
case. The possibility that the case may be revived at any time may disrupt or reduce, if not derail, the chances
of the accused for employment, curtail his association, subject him to public obloquy and create anxiety in him
and his family. He is unable to lead a normal life because of community suspicion and his own anxiety. He
continues to suffer those penalties and disabilities incompatible with the presumption of innocence. He may
also lose his witnesses or their memories may fade with the passage of time. In the long run, it may diminish
his capacity to defend himself and thus eschew the fairness of the entire criminal justice system.

The time-bar under the new rule was fixed by the Court to excise the malaise that plagued the administration of
the criminal justice system for the benefit of the State and the accused; not for the accused only.44

Also, We said in Jaylo, et al. v. Sandiganbayan, et al. 45 that Section 6, Rule 120 of the Rules, which provides
that an accused who failed to appear at the promulgation of the judgment of conviction shall lose the remedies
available against the judgment, does not take away substantive rights but merely provides the manner through
which an existing right may be implemented.

Section 6, Rule 120, of the Rules of Court, does not take away per se the right of the convicted accused to
avail of the remedies under the Rules. It is the failure of the accused to appear without justifiable cause on the
scheduled date of promulgation of the judgment of conviction that forfeits their right to avail themselves of the
remedies against the judgment.

It is not correct to say that Section 6, Rule 120, of the Rules of Court diminishes or modifies the substantive
rights of petitioners. It only works in pursuance of the power of the Supreme Court to "provide a simplified and
inexpensive procedure for the speedy disposition of cases." This provision protects the courts from delay in the
speedy disposition of criminal cases - delay arising from the simple expediency of nonappearance of the
accused on the scheduled promulgation of the judgment of conviction.46

By the same token, it is towards the provision of a simplified and inexpensive procedure for the speedy
disposition of cases in all courts47 that the rules on plea bargaining was introduced. As a way of disposing
criminal charges by agreement of the parties, plea bargaining is considered to be an "important," "essential,"
"highly desirable," and "legitimate" component of the administration of justice.48 Some of its salutary effects
include:

x x x For a defendant who sees slight possibility of acquittal, the advantages of pleading guilty and limiting the
probable penalty are obvious - his exposure is reduced, the correctional processes can begin immediately, and
the practical burdens of a trial are eliminated. For the State there are also advantages - the more promptly
imposed punishment after an admission of guilt may more effectively attain the objectives of punishment; and
with the avoidance of trial, scarce judicial and prosecutorial resources are conserved for those cases in which
there is a substantial issue of the defendant's guilt or in which there is substantial doubt that the State can
sustain its burden of proof. (Brady v. United States, 397 U.S. 742, 752 [1970])

Disposition of charges after plea discussions x x x leads to prompt and largely final disposition of most criminal
cases; it avoids much of the corrosive impact of enforced idleness during pretrial confinement for those who
are denied release pending trial; it protects the public from those accused persons who are prone to continue
criminal conduct even while on pretrial release; and, by shortening the time between charge and disposition, it
enhances whatever may be the rehabilitative prospects of the guilty when they are ultimately
imprisoned. (Santobello v. New York, 404 U.S. 257, 261 [1971])

The defendant avoids extended pretrial incarceration and the anxieties and uncertainties of a trial; he gains a
speedy disposition of his case, the chance to acknowledge his guilt, and a prompt start in realizing whatever
potential there may be for rehabilitation. Judges and prosecutors conserve vital and scarce resources. The
public is protected from the risks posed by those charged with criminal offenses who are at large on bail while
awaiting completion of criminal proceedings. (Blackledge v. Allison, 431 U.S. 63, 71 [1977])

In this jurisdiction, plea bargaining has been defined as "a process whereby the accused and the prosecution
work out a mutually satisfactory disposition of the case subject to court approval."49 There is give-and-take
negotiation common in plea bargaining.50 The essence of the agreement is that both the prosecution and the
defense make concessions to avoid potential losses.51 Properly administered, plea bargaining is to be
encouraged because the chief virtues of the system - speed, economy, and finality - can benefit the accused,
the offended party, the prosecution, and the court.52

Considering the presence of mutuality of advantage,53 the rules on plea bargaining neither create a right nor
take away a vested right. Instead, it operates as a means to implement an existing right by regulating the
judicial process for enforcing rights and duties recognized by substantive law and for justly administering
remedy and redress for a disregard or infraction of them.

The decision to plead guilty is often heavily influenced by the defendant's appraisal of the prosecution's case
against him and by the apparent likelihood of securing leniency should a guilty plea be offered and
accepted.54 In any case, whether it be to the offense charged or to a lesser crime, a guilty plea is a "serious
and sobering occasion" inasmuch as it constitutes a waiver of the fundamental rights to be presumed innocent
until the contrary is proved, to be heard by himself and counsel, to meet the witnesses face to face, to bail
(except those charged with offenses punishable by reclusion perpetua when evidence of guilt is strong), to be
convicted by proof beyond reasonable doubt, and not to be compelled to be a witness against himself.55

Yet a defendant has no constitutional right to plea bargain. No basic rights are infringed by trying him rather
than accepting a plea of guilty; the prosecutor need not do so if he prefers to go to trial. 56 Under the
present Rules, the acceptance of an offer to plead guilty is not a demandable right but depends on the consent
of the offended party57and the prosecutor, which is a condition precedent to a valid plea of guilty to a lesser
offense that is necessarily included in the offense charged.58 The reason for this is that the prosecutor has full
control of the prosecution of criminal actions; his duty is to always prosecute the proper offense, not any lesser
or graver one, based on what the evidence on hand can sustain.59

[Courts] normally must defer to prosecutorial decisions as to whom to prosecute. The reasons for judicial
deference are well known. Prosecutorial charging decisions are rarely simple. In addition to assessing the
strength and importance of a case, prosecutors also must consider other tangible and intangible factors, such
as government enforcement priorities. Finally, they also must decide how best to allocate the scarce resources
of a criminal justice system that simply cannot accommodate the litigation of every serious criminal charge.
Because these decisions "are not readily susceptible to the kind of analysis the courts are competent to
undertake," we have been "properly hesitant to examine the decision whether to prosecute. "60
The plea is further addressed to the sound discretion of the trial court, which may allow the accused to plead
guilty to a lesser offense which is necessarily included in the offense charged. The word may denotes an
exercise of discretion upon the trial court on whether to allow the accused to make such plea.61 Trial courts are
exhorted to keep in mind that a plea of guilty for a lighter offense than that actually charged is not supposed to
be allowed as a matter of bargaining or compromise for the convenience of the accused.62

Plea bargaining is allowed during the arraignment, the pre-trial, or even up to the point when the prosecution
already rested its case.63 As regards plea bargaining during the pre-trial stage, the trial court's exercise of
discretion should not amount to a grave abuse thereof.64 "Grave abuse of discretion" is a capricious and
whimsical exercise of judgment 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, as where the power is exercised in an arbitrary and despotic manner
because of passion or hostility; it arises when a court or tribunal violates the Constitution, the law or existing
jurisprudence.65

If the accused moved to plead guilty to a lesser offense subsequent to a bail hearing or after the prosecution
rested its case, the rules allow such a plea only when the prosecution does not have sufficient evidence to
establish the guilt of the crime charged.66 The only basis on which the prosecutor and the court could rightfully
act in allowing change in the former plea of not guilty could be nothing more and nothing less than the
evidence on record. As soon as the prosecutor has submitted a comment whether for or against said motion, it
behooves the trial court to assiduously study the prosecution's evidence as well as all the circumstances upon
which the accused made his change of plea to the end that the interests of justice and of the public will be
served.67 The ruling on the motion must disclose the strength or weakness of the prosecution's
evidence.68 Absent any finding on the weight of the evidence on hand, the judge's acceptance of the
defendant's change of plea is improper and irregular.69

On whether Section 23 of R.A. No.

9165 violates the equal protection
clause

At this point, We shall not resolve the issue of whether Section 23 of R.A. No. 9165 is contrary to the
constitutional right to equal protection of the law in order not to preempt any future discussion by the Court on
the policy considerations behind Section 23 of R.A. No. 9165. Pending deliberation on whether or not to adopt
the statutory provision in toto or a qualified version thereof, We deem it proper to declare as invalid the
prohibition against plea bargaining on drug cases until and unless it is made part of the rules of procedure
through an administrative circular duly issued for the purpose.

WHEREFORE, the petition for certiorari and prohibition is GRANTED. Section 23 of Republic Act No. 9165 is
declared unconstitutional for being contrary to the rule-making authority of the Supreme Court under Section
5(5), Article VIII of the 1987 Constitution.

SO ORDERED.