[G.R. Nos. 70746-47. September 1, 1992.

BIENVENIDO O. MARCOS, Petitioner, v. HON. FERNANDO S. RUIZ, RTC Judge, 7th Judicial Region,
Tagbilaran City, and THE PEOPLE OF THE PHILIPPINES, Respondents.

Carlos A. Marcos for Petitioner.

SYLLABUS

1. REMEDIAL LAW; CRIMINAL PROCEDURE; MOTION TO DISMISS; MAY BE RESOLVED AFTER

ARRAIGNMENT. — All the parties agree that the 12 November 1984 Motion to Dismiss was not resolved by
the trial court. Respondent Judge asserts that the petitioner is estopped from questioning the inaction on
this motion because he voluntarily appeared at his arraignment, entered a plea and agreed to the scheduling
of the case for trial on the merits; besides, the Prosecution, by presenting its evidence, is deemed to have
abandoned the motion. While the first proposition is incorrect, the second is inaccurate. Estoppel does not
operate in the present case for the motion may still be resolved after the arraignment; by its nature, it may
be filed by the prosecution at any time. As a matter of fact, had the petitioner not signed his conformity
thereto, it would have been to his benefit or advantage that the motion be resolved after his plea for, by
then, if the same is granted, the Prosecution would be precluded from refiling the case on the ground of
double jeopardy.

2. ID.; ID.; ID.; ACTION ON MOTIONS MUST BE UNEQUIVOCAL AND NOT BE LEFT TO CONJECTURE. — The
manifestation and withdrawal of the motion (to dismiss) were made in the presence of the accused and his
counsel; neither of them objected thereto for they knew too well that they had no legal basis therefor. The
only flaw in this regard is the respondent Judge’s failure to explicitly make a ruling on the oral motion. He
merely granted the motion impliedly by immediately directing the arraignment of the accused. He should
have taken the trouble of making an unequivocal ruling thereon by simply stating: "Motion is granted; the
motion to dismiss is considered withdrawn. All right, arraign the accused." The demands of orderly
procedure require that a judge of a court of record must ensure that actions on motions must not be left to
conjecture but must, in a manner of speaking, be done in black and white.

3. ID.; ID.; HEARING IN ABSENTIA, PROPER. — Having failed to appear on 8 April 1985 despite due notice,
and considering that on said date the urgent motion for resetting had not yet been received by the court,
respondent Judge could not be faulted for believing that petitioner’s non-appearance was unjustified. Hence,
a hearing in absentia was proper under the aforequoted provision of the Constitution and Sections 2(c) and
1(c) of Rules 114 and 115, respectively, of the Rules of Court.

4. ID.; ID.; BAILBOND; FORFEITURE. — A bail bond may be forfeited only in instances where the presence
of the accused is specifically required by the court or the Rules of Court and, despite due notice to the
bondsmen to produce him before the court on a given date, the accused fails to appear in person as so
required. There is no showing that the court had specifically required the bonding company to produce the
body of the petitioner on 8 and 9 April 1985. Moreover, since Criminal Cases Nos. 3890 and 3892, which
involve two (2) checks with a face value of P3,000.00 each, were merely for the violation of Batas Pambansa
Blg. 22 which imposes a penalty of "imprisonment of not less than thirty (30) days but not more than one
(1) year or by a fine of not less than but not more than double the amount of the check which fine shall in
no case exceed Two Hundred Thousand Pesos, or both such fine and imprisonment at the discretion of the
court," the presence of the accused at the hearing on 8 and 9 April 1985 was not indispensable.

5. ID.; ID.; ARRAIGNMENT; ACCUSED REQUIRED TO PERSONALLY ENTER HIS PLEA. — It will, however, be
noted that insofar as the second case, Criminal Case No. 3892, is concerned, the court made no ruling on
the manifestation and offer by petitioner’s counsel that the reading of the information be waived and a plea
of not guilty be entered. The petitioner was neither made to confirm the manifestation nor directed to
personally make the plea. There was, therefore, no valid arraignment in Criminal Case No. 3892. Section
1(b), Rule 116 of the Rules of Court, as amended, requires the accused to personally enter his plea.

6. ID.; ID.; MOTION FOR POSTPONEMENT; COUNSEL BOUND TO GIVE PRIORITY TO HEARING SET ON
AGREED DATE. — The motion to reset the hearing was a mere subterfuge to obtain a postponement of and
delay the proceedings. Petitioner and his counsel were notified in open court about the 8 and 9 April 1985
hearing on 7 February 1985. Having agreed to that setting, counsel in effect certified that he had no prior
commitment on those dates and he was thereby bound to give priority to the same, unless events of greater
importance or of a more serious nature requiring his presence, supervened.

7. ID.; ID.; ID.; GRANTING IN CRIMINAL CASE IS LEFT TO SOUND DISCRETION OF COURT. — Counsel for
petitioner should not have presumed that the motion, which he prepared and sent by registered mail only on
29 March 1989, would reach the court and be granted before 8 April 1985. He knew, or ought to know that
the granting of motions for postponement in criminal cases is left to the sound discretion of the Court — a
rule which has been steadfastly adhered to since United States v. Lorenzana and which this Court more
explicitly expressed in Unites States v. Ramirez.

8. ID.; ID.; ID.; A MERE SCRAP OF PAPER WHERE NOTICE OF HEARING IS LACKING. — The urgent motion
for resetting was a mere scrap of paper. As earlier noted, it does not contain a notice of hearing to the
Prosecution; all it had was a mere request, addressed to the Clerk of Court, that it be submitted for the
consideration and approval of the court immediately upon his receipt thereof. There was, therefore, a clear
violation of Section 5, Rule 15 of the Rules of Court, which is also applicable in motions for continuance in
criminal case.

9. ID.; ID.; WHEN NON-APPEARANCE OF ACCUSED CONSIDERED A WAIVER. — With respect to an accused
who is not in custody, his non-appearance constitutes a waiver of his right to be present only for the trial set
for the particular date of which he had notice. Upon the other hand, such non-appearance by an accused in
custody and who later escapes is considered a waiver of the right on such date and all subsequent trial dates
until such custody is regained.

10. ID.; LAWYER-CLIENT RELATIONSHIP; A CLIENT IS BOUND BY THE ACTS OF HIS COUNSEL. — A client is
bound by the acts, even mistakes of his counsel in the realm of procedural technique; however, if the former
is prejudiced by the latter’s negligence or misconduct, he may recover damages.

DECISION

DAVIDE, JR., J.:

In this special civil action for certiorari under Rule 65 of the Rules of Court, petitioner seeks to set aside, for
being null and void, the Orders of respondent Judge of 8 April 1985 which considered the failure of petitioner
and his counsel to appear on that date as a waiver of the right to present evidence, and of 29 April 1985
denying petitioner’s motion for the reconsideration of said order in Criminal Cases No. 3890 and No. 3892.

The facts are not complicated.

On 2 August 1984, after conducting the appropriate preliminary investigation, Acting 2nd Assistant City
Fiscal Lorenzo A. Lopena of the City of Tagbilaran filed with the Regional Trial Court of Bohol two (2)
informations against petitioner herein for violating Batas Pambansa Blg. 22; said violations allegedly took
place on 5 July 1983 in the City of Tagbilaran when the petitioner, knowing fully well that he did not have
sufficient funds deposited with the Far Fast Bank and Trust Company (Cebu North Proclamation Area
Branch), delivered to Fulgencia Oculam, in payment for assorted pieces of jewelry taken by petitioner’s wife
Anacleta Marcos, two (2) checks drawn against said bank in the amount of P3,000.00 each. The
informations were docketed as Criminal Cases No. 3890 1 and No. 3892 2 and were raffled to Branch II of
said court. The petitioner posted a surety bond for his temporary liberty. c hanro bles. com.ph : vi rtua l law lib rary

The arraignment was set for 12 November 1984. The petitioner appeared on that date but asked for a
resetting on the ground that his lawyer had just withdrawn and he had to look for another lawyer. The court
granted his request and the arraignment was reset to 29 November 1984. 3

It turned out, however, that petitioner settled his obligation with the offended party who, on 3 November
1984, executed an Affidavit of Desistance which she subscribed and swore to before Notary Public Paulino G.
Clarin. Pertinent portions thereof read:cha nrob 1es vi rtua l 1aw lib rary

x x x
"2. That upon my instance, I requested that the cases be remanded to the City Fiscal for reinvestigation but
which motion was denied;

3. That meanwhile, the respondent settled all his obligations subject matter of the present cases;

4. That under the circumstances, I possess no ground to further proceed with the prosecution of the cases;

5. That I am willing to have cases dismissed with the consent of the respondent or accused, as I hereby
desist from further proceeding with the case;

6. That this affidavit of desistance may be utilized by the City Fiscal of the City of Tagbilaran for the
dismissal of the cases." 4

x x x

At 10:00 o’clock in the morning of 12 November 1984, Acting 2nd Assistant City Fiscal Lopena filed a Motion
to Dismiss Criminal Case No. 3892 on the ground: jgc:chanro bles.c om.ph

"1. That the complaining witness in this case has turned hostile and shown manifest lack of interest to
prosecute the above-entitled case as evidenced by his (sic) Affidavit of Desistance, which is hereto attached
as Annex "A" and is made an integral part hereof;

2. That without the testimony of said complaining witness, the above-entitled case cannot be prosecuted
successfully, there being no other evidence of hand to prove the guilt of the accused." 5

The motion bears the approval of Acting 1st Assistant City Fiscal Miguel Relampagos who acted for the
Acting City Fiscal because of the latter’s absence, and the consent of petitioner. It also contains the request
of the movant fiscal addressed to the Clerk of Court that the same be set for resolution of the court "upon
receipt hereof." chan roble s law li bra ry

When the cases were called on 29 November 1984, neither petitioner nor his counsel appeared; however,
the court received a telegram from petitioner’s wife. Lita Marcos, advising the court that the petitioner was
indisposed. Without any objection on the part of the prosecution, the court cancelled the arraignment on
that date and re-scheduled the same, together with the trial, for 7 and 8 February 1985. 6

On 7 February 1985, the petitioner appeared together with his counsel de parte, Atty. Carlos Marcos. He
was arraigned in both cases; he entered a plea of not guilty. Forthwith, the court set the trial of the cases
for 8 April 1985 at 2:30 P.M. and 9 April 1985 at 8:30 A.M. The petitioner, his counsel and the Assistant City
Fiscal were notified in open court of the setting. 7

When the cases were called in the afternoon of 8 April 1985, neither petitioner nor counsel appeared. The
prosecution presented its evidence ex-parte and rested its case. The court then issued an Order 8 forfeiting
the bond posted by the petitioner, directing Paramount Insurance Corp., the bondsman, to show cause,
within thirty (30) days form notice, why no judgment should be issued against the bond and declaring that
as no evidence has been submitted by the petitioner, the cases were deemed submitted for decision.

On 9 April 1985, the trial court received an urgent motion for the resetting of the hearing filed by counsel for
the petitioner. 9 The motion, sent by registered mail and dated 29 March 1985, alleges: jgc:chan rob les.com. ph

"1. That undersigned counsel has a previous legal commitment in Manila needing his personal attention;

2. That it would be physically impossible for him to arrive on time for the hearing of the above-entitled case;

3. That because of this unavoidable circumstances (sic) he is constrained to pray for their (sic) resetting."
10

and prays that the hearing of the cases be reset to 13 and 14 May 1985 at 2:30 P.M. and 8:30 A.M.,
respectively. This motion does not contain a notice of hearing to the Prosecuting Fiscal but a mere request
addressed to the Branch Clerk of Court reading: jgc:chan robles. com.ph

"Please submit the foregoing motion for the consideration and approval of this Honorable Court immediately
upon receipt hereof." cralaw vi rt ua1aw lib rary

On 23 April 1985, petitioner’s counsel filed a "Motion for Reconsideration to (sic) Order" dated 8 April 1985.
11 In justifying petitioner’s failure to appear at the hearing on 8 April 1985, counsel contends: jgc:chan robles. com.ph

"THAT in view of the said motion [for resetting of hearing] the accused, in good faith, believed that the
hearing set on April 8, 1985 would not proceed and his presence would thus be unnecessary; that to save
money for fare and meals in a trip to Tagbilaran City from Cebu City, and vice versa, the accused who is a
government employee did not anymore attend the hearing which he believed was cancelled on account of
the motion aforementioned;

THAT the accused likewise believed that aside from the motion for postponement, the pendency of the
Motion to Dismiss filed by the prosecuting fiscal, Lorenzo A. Lopena, in view of complaining ‘witness’
Affidavit of Desistance, this Honorable Court would not proceed to receive the evidence of the prosecution.
In fact, up to the present, the aforementioned Motion to Dismiss dated November 12, 1984 has not been
acted upon by this Honorable Court; chanrob les.co m.ph : virtual law lib rary

THAT the non-appearance of the accused in the scheduled trial is not a sufficient ground for the cancellation
of the bailbond because his failure could still be considered as a waiver of his presence.

THAT it is the stand of the undersigned counsel that the motion to dismiss by the prosecuting fiscal be first
resolved before this Honorable Court could proceed with the further proceeding of this case. Let it be
stressed that the accused was arraigned by this Honorable Court over the objection of the accused AFTER
the Motion to Dismiss was filed by the prosecution and BEFORE it was, as it still is, resolved which could be
a denial or granting (sic) thereof, which to the undersigned does not matter as long as it is acted upon." cralaw virtua1aw li bra ry

Once again, the motion does not contain a notice of hearing to the prosecuting fiscal; it has instead a mere
request that the Clerk of Court submit it for the consideration of the court immediately upon his receipt
thereof.

On 29 April 1985, the court issued an Order 12 denying the aforesaid motion for reconsideration on the
following grounds: that the petitioner should not assume that the motion for postponement would be
granted; he is estopped from insisting on a ruling on the motion to dismiss because he agreed to be
arraigned, pleaded not guilty and did not question the scheduling of the cases for trial; and the presentation
by the Prosecution of its evidence amounted to an abandonment of its motion to dismiss.

On 3 May 1985, a Notice of Promulgation setting the promulgation of sentence in the two (2) cases to 17
May 1985 was sent to the parties by Antonio R. Monungol, 13 the Research Attorney of Branch II of the
court below.

Hence, this petition which was filed on 14 May 1985 and is anchored on and raises the principal issue of the
alleged denial of petitioner’s right to confront the witnesses for the prosecution and to be heard. Corollarily,
petitioner submits that respondent Judge erred in not acting upon the motion to dismiss before setting the
arraignment of the accused and receiving the People’s evidence.

On 16 May 1985, this Court resolved to require the respondents to comment on the petition and to issue a
Temporary Restraining Order enjoining respondent Judge from promulgating the judgment in Criminal Cases
Nos. 3890 and 3892.

Respondent Judge filed his Comment 14 by mail on 30 May 1985. He maintains that petitioner voluntarily
submitted to the arraignment and was not denied due process. On the other hand, Acting 2nd Assistant City
Fiscal Lopena mailed his Comment on 8 June 1985. 15 The Office of the Solicitor General filed its Comment
on 6 September 1985, 16 and asserts therein that the Order in question is interlocutory and hence, not
appealable; respondent Judge acted in accordance with law and sound discretion in issuing the orders; and
petitioner was not denied his day in court.

On 28 October 1985, petitioner mailed his Joint Reply to the Comments.

On 27 November 1985, this Court resolved to give due course to the petition, consider the Comments as
Answer and require the parties to file their respective Memoranda, which they subsequently complied with.

The issues to be resolved in this petition are whether or not the respondent Court committed grave abuse of
discretion amounting to lack or absence of jurisdiction in: chan robles v irt ual lawl ibra ry

(1) ordering the arraignment of the accused and receiving the evidence for the prosecution without first
resolving the motion to dismiss;

(2) ordering the forfeiture of the bail bond when petitioner failed to appear on 8 April 1985; allowing the
Prosecution to present its evidence ex parte and declaring the petitioner as having waived his right to
present his evidence; and

(3) denying the motion to reconsider the Order of 8 April 1985 and setting the promulgation of judgment on
17 May 1985.

1. All the parties agree that the 12 November 1984 Motion to Dismiss was not resolved by the trial court.
Respondent Judge asserts that the petitioner is estopped from questioning the inaction on this motion
because he voluntarily appeared at his arraignment, entered a plea and agreed to the scheduling of the case
for trial on the merits; besides, the Prosecution, by presenting its evidence, is deemed to have abandoned
the motion. While the first proposition is incorrect, the second is inaccurate. Estoppel does not operate in
the present case for the motion may still be resolved after the arraignment; by its nature, it may be filed by
the prosecution at any time. As a matter of fact, had the petitioner not signed his conformity thereto, it
would have been to his benefit or advantage that the motion be resolved after his plea for, by then, if the
same is granted, the Prosecution would be precluded from refiling the case on the ground of double
jeopardy.

This Court noted, however, that the motion to dismiss is for Criminal Case No. 3892 only 17 although the
instant petition makes it appear, and the respondents seem to accede thereto, that the motion affects both
Criminal Cases Nos. 3890 and 3892. This, of course, would become entirely irrelevant in the light of the
succeeding discussion on the second ground stressed by the respondent Judge.

What actually transpired before the court a quo was that the Prosecution orally withdrew the motion to
dismiss. In the transcripts of the stenographic notes of the proceedings on 7 February 1985, 18 We find the
following:jg c:chan roble s.com. ph

"ASST. CITY FISCAL L. LOPENA

Your Honor please, I have conferred with the complaining witness and she manifested her willingness to
testify in this case for the prosecution. In view of this development, we are constrained to withdraw our
motion to dismiss. cralawna d

COURT

All right, then arraign the accused." 19

This manifestation and withdrawal of the motion were made in the presence of the accused and his counsel,
neither of them objected thereto for they knew too well that they had no legal basis therefor. The only flaw
in this regard is the respondent Judge’s failure to explicitly make a ruling on the oral motion. He merely
granted the motion impliedly by immediately directing the arraignment of the accused. He should have
taken the trouble of making an unequivocal ruling thereon by simply stating: "Motion is granted; the motion
to dismiss is considered withdrawn. All right, arraign the accused." The demands of orderly procedure
require that a judge of a court of record must ensure that actions on motions must not be left to conjecture
but must, in a manner of speaking, be done in black and white.

2. Considering that he had been arraigned — which both the parties and the court thought that the same
was for both cases — petitioner was not required to appear at the trial on 8 and 9 April 1985. While it may
be true that he has the right to be present at every stage of the proceedings, i.e., from the arraignment to
the promulgation of judgment, he can waive his presence. The second sentence of paragraph (2), Section
14, Article III of the 1987 Constitution provides as follows: jgc:chan roble s.com.p h

"However, after arraignment, trial may proceed notwithstanding the absence of the accused provided that
he has been duly notified and his failure to appear is unjustifiable." 20

Section 1 (c), Rule 115 of the Rules of Court provides, in part, as follows: jgc:chanrob les.co m.ph
". . . The accused may, however, waive his presence at the trial pursuant to the stipulations set forth in his
bail bond, unless his presence is specifically ordered by the court for purposes of identification. The absence
of the accused without any justifiable cause at the trial on a particular date of which he had notice shall be
considered a waiver of his right to be present during that trial." cralaw virtua1aw l ibra ry

While Section 2(c), Rule 114 of the Rules of Court, on the different conditions attached to a bail bond,
provides:c han rob1es v irt ual 1aw l ibra ry

x x x

"(c) The failure of the accused to appear at the trial without justification despite due notice shall be deemed
an express waiver of his right to be present on the date specified in the notice. In such case, the trial may
proceed in absentia:"

Having failed to appear on 8 April 1985 despite due notice, and considering that on said date the urgent
motion for resetting had not yet been received by the court, respondent Judge could not be faulted for
believing that petitioner’s non-appearance was unjustified. Hence, a hearing in absentia was proper under
the aforequoted provision of the Constitution and Sections 2(c) and 1(c) of Rules 114 and 115, respectively,
of the Rules of Court. chanrobles law lib rary

However, respondent Judge gravely abused his discretion when he ordered the forfeiture of the bond and
required the bonding company to show cause why no judgment should be rendered against it for the
amount of the bond. One other condition for the granting of bail, set forth in Section 2(b), Rule 114 of the
Rules of Court, is that the accused shall appear before the proper court whenever so required by the court
or the rules of Court.

A bail bond may be forfeited only in instances where the presence of the accused is specifically required by
the court or the Rules of Court and, despite due notice to the bondsmen to produce him before the court on
a given date, the accused fails to appear in person as so required. 21 There is no showing that the court had
specifically required the bonding company to produce the body of the petitioner on 8 and 9 April 1985.
Moreover, since Criminal Cases Nos. 3890 and 3892, which involve two (2) checks with a face value of
P3,000.00 each, were merely for the violation of Batas Pambansa Blg. 22 which imposes a penalty of
"imprisonment of not less than thirty (30) days but not more than one (1) year or by a fine of not leas than
but not more than double the amount of the check which fine shall in no case exceed Two Hundred
Thousand Pesos, or both such fine and imprisonment at the discretion of the court," the presence of the
accused at the hearing on 8 and 9 April 1985 was not indispensable.

Under the Rules of Court, the accused has to be present: chan rob1es v irt ual 1aw l ibra ry

(a) at the arraignment pursuant to paragraph (b), Section 1, Rule 116;

(b) at the promulgation of judgment, except when conviction is for a light offense, in which case the
judgment may be pronounced in the presence of his counsel or representative pursuant to Section 6 of Rule
120, or unless promulgation in absentia is allowed under the third paragraph of said section; and

(c) when the prosecution intends to present witnesses who will identify the accused. 22

Before the advent of the 1985 Rules on Criminal Procedure, the accused did not have to be present at the
arraignment if the charge was for a light offense triable by the then justice of the peace or any other inferior
court of similar jurisdiction. Also, his plea may be entered on his behalf by his attorney if the charge is for a
misdemeanor or a minor offense in which the penalty that may be imposed is a fine not exceeding P200.00.
23

3. Petitioner, however, is not fully justified in claiming that he was denied his right to due process by the
respondent Judge. In the first place, it is not true that petitioner was arraigned over his objection. The
transcript of the proceedings on 7 February 1985 24 reveals that his counsel merely asked for "enough time
to confront the accused and advise him of what to plea (sic) in case the arraignment will push through" for
the reason that it was his initial appearance. He asked for a deferment of the arraignment for ten (10) days.
The court, however, gave him until 10:00 o’clock that morning to prepare for the arraignment, to which he
agreed. When the cases were called again at 10:00 o’clock that morning, the following transpired: jgc:cha nrob les.c om.ph
"ATTY. CARLOS MARCOS

Your Honor please, before the arraignment, may I make it of record that the Fiscal just have (sic) today
turned over the information which is for reading by the Clerk of Court. chanrobles law lib rary : re d

COURT

All right, arraign the accused now in the two cases?

NOTE — Information was read to the accused after which . . .

COURT (To accused)

What is your plea?

ACCUSED

Not guilty, Your Honor.

ATTY. CARLOS MARCOS

Your Honor please, the reading of the information of the other case, may we pray that it be waived and the
accused will enter the plea of not guilty?

COURT: chanrob1es v irt ual 1aw l ibra ry

So, what is the pleasure now of the defense?

ATTY. C. MARCOS

Considering that the accused’s arraignment has just been terminated, may we be given ample time to
prepare the defense of our case, Your Honor.

COURT

All right, you agree on the date?

COURT

ORDER

In the above-entitled two cases, the accused assisted by counsel, Atty. Carlos Marcos, pleaded not guilty
upon being arraigned.

Let the joint trial of these cases be set on April 8 at 2:30 p.m. and April 9, 1985, at 8:30 a.m.

Notified in open court are Asst. City Fiscal Lorenzo Lopena, Atty. Carlos Marcos, and the accused.

Notify the private prosecutor, Atty. Paulino G. Clarin.

SO ORDERED."25 cralaw:red

It will, however, be noted that insofar as the second case, Criminal Case No. 3892, is concerned, the court
made no ruling on, the manifestation and offer by petitioner’s counsel that the reading of the information be
waived and a plea of not guilty be entered. The petitioner was neither made to confirm the manifestation
nor directed to personally make the plea. There was, therefore, no valid arraignment in Criminal Case No.
3892 Section 1(b), Rule 116 of the Rules of Court, as amended, requires the accused to personally enter his
plea.

In the second place, the motion to reset the hearing was a mere subterfuge to obtain a postponement of
and delay the proceedings. Petitioner and his counsel were notified in open court about the 8 and 9 April
1985 hearing on 7 February 1985. Having agreed to that setting, counsel in effect certified that he had no
prior commitment on those dates and he was thereby bound to give priority to the same, unless events of
greater importance or of a more serious nature requiring his presence, supervened. The only reason he gave
for the notice was that he "has a previous legal commitment in Manila needing his personal attention." 26
He did not elaborate on what that legal commitment was. If he indeed had such a commitment and his
conformity to the 8 and 9 April 1985 setting was a mistake, he should have immediately filed a motion for
the resetting of hearing. It hardly needs to be said that either the so-called "legal commitment" in Manila —
whatever that could have been — was made sometime after 7 February 1985 or that it never existed at all.
In the motion to reconsider the 8 April 1985 Order, petitioner’s counsel did not bother to explain the
importance of that commitment or convince the court that he actually made the trip to Manila. chanrobles lawlib rary : re dnad

Thirdly, counsel for petitioner should not have presumed that the motion, which he prepared and sent by
registered mail only on 29 March 1989, would reach the court and be granted before 8 April 1985. He knew,
or ought to know that the granting of motions for postponement in criminal cases is left to the sound
discretion of the Court — a rule which has been steadfastly adhered to since United States v. Lorenzana 27
and which this Court more explicitly expressed in United States v. Ramirez 28 in this wise: jgc:cha nrob les.c om.ph

"Applications for continuances are addressed to the sound discretion of the court. In this respect, it may be
said that the discretion which the trial court exercises must be judicial and not arbitrary. It is the guardian of
the rights of the accused as well as those of the people at large, and should not unduly force him to trial,
nor for light causes jeopardize the rights or interests of the public. Where the court conceives it to be
necessary for the more perfect attainment of justice, it has the power upon the motion of either party to
continue the case. But a party charged with a crime has no natural or inalienable right to a continuance." cralaw virt ua1aw li bra ry

This rule was succinctly stated in Section 2 of Rule 119 before its amendment by the 1985 Rules of Criminal
Procedure as follows: jgc:cha nrob les.co m.ph

"SEC. 2. Continuance or postponement of the trial. — The court on the application of either party or on its
own motion, may in its discretion for good cause postpone the trial of the case for such period of time as the
ends of justice and the right of the defendant to a speedy trial require." chanrob les vi rtua l lawlib ra ry

As amended, it now reads: jgc:chanrobles .com.ph

"SEC 2. Continuance trial until terminated; postponements. — Trial once commenced shall continue from
day to day as far as practicable until terminated; but for good cause, it may be postponed for a reasonable
period of time."cra law virtua1aw li bra ry

Finally, the urgent motion for resetting was a mere scrap of paper. As earlier noted, it does not contain a
notice of hearing to the Prosecution; all it had was a mere request, addressed to the Clerk of Court, that it
be submitted for the consideration and approval of the court immediately upon his receipt thereof. There
was, therefore, a clear violation of Section 5, Rule 15 of the Rules of Court, which is also applicable in
motions for continuance in criminal cases. Said section provides as follows: jgc:c han robles. com.ph

"SEC. 5. Contents of notice. — The notice shall be directed to the parties concerned, and shall state the time
and place for the hearing of the motion." cralaw virtua 1aw lib rary

In Bank of the Philippine Islands v. Far East Molasses Corp., 29 this Court explicitly ruled that a motion that
does not contain a notice of hearing is but a mere scrap of paper, it presents no question which merits the
attention and consideration of the court. It is not even a motion for it does not comply with the rules and
hence, the clerk has no right to receive it.

Since on 8 April 1985 the motion for resetting had not yet been received by the court, the respondent Judge
committed no error, much less abuse of discretion, in allowing the prosecution to present, ex parte, its
evidence and rest its case immediately thereafter in Criminal Case No. 3890; the same, however, cannot be
said about Criminal Case No. 3892 for, as earlier mentioned, no valid arraignment had as yet been
conducted thereon. Petitioner should blame no one else but his counsel. Nonetheless, a client is bound by
the acts, even mistakes of his counsel in the realm of procedural technique; however, if the former is
prejudiced by the latter’s negligence or misconduct, he may recover damages. 30

However, respondent Judge committed grave abuse of discretion amounting to lack of jurisdiction when he
capriciously and arbitrarily considered Criminal Cases Nos. 3890 and 3892 — more particularly the latter
wherein there was no valid arraignment — submitted for decision after the prosecution rested its case on 8
April 1985. He thus blatantly ignored and disregarded Section 2(c), Rule 114 and Section 1(c), Rule 115 of
the Rules of Court which merely consider the accused’s non-appearance during trial — 8 April 1985, in this
case — as a waiver of his right to be present for trial on such date only and not for the succeeding trial
dates. This is quite clear from Section 1(c) of Rule 115 which further provides: c han robles vi rt ual lawl ibra ry

". . . The absence of the accused without any justifiable cause at the trial on a particular date of which he
had notice shall be considered a waiver of his right to be present during that trial. When an accused under
custody had been notified of the date of the trial and escapes, he shall be deemed to have waived his right
to be present on said date and on all subsequent trial dates until custody is regained." (Emphasis supplied)

Thus, with respect to an accused who is not in custody, his non-appearance constitutes a waiver of his right
to be present only for the trial set for the particular date of which he had notice. Upon the other hand, such
non-appearance by an accused in custody and who later escapes is considered a waiver of the right on such
date and all subsequent trial dates until such custody is regained.

The hearing on 8 April 1985 was actually the initial hearing for the two (2) cases, albeit erroneously for the
second due to the infirmity referred to earlier, it was likewise for the purpose of receiving the evidence for
the prosecution. It cannot be fairly presumed that said setting was also for the purpose of presenting the
accused’s evidence considering that neither the court nor the parties knew in advance the number of cases
to be tried on those dates and the length of the direct and cross examinations of the witnesses. Besides,
even assuming for the sake of argument that the prosecution could rest its case on 8 April 1985, the
defense could have still filed a demurrer to evidence under Section 15, Rule 119 of the Rules of Court, which
would have necessarily meant a deferment of the reception of the evidence for the accused.

The order of the respondent Judge declaring the two (2) cases submitted for decision is not only a violation
of Section 1(c) of Rule 115 but is also a pronouncement that the petitioner had waived his constitutional
right to be heard by himself and counsel, 31 and present his evidence. This is certainly lamentable for he
thus allowed his court to breach one of its highest, duties — the protection of the citizen and the
maintenance of his constitutional rights. 32

While constitutional rights may be waived, 33 such waiver must be clear and must be coupled with an actual
intention to relinquish the right. 34 There is nothing on record to suggest conduct on the part of the
petitioner from which it may be reasonably inferred that he had waived his right to submit his evidence. On
the contrary, his counsel’s motion for resetting requested specifically for the hearing of the cases on 13 and
14 May 1985.

WHEREFORE, judgment is hereby rendered: c hanro b1es vi rtua l 1aw li bra ry

1. SETTING ASIDE that portion of the Order of respondent Judge of 3 April 1985 forfeiting the bond posted
by petitioner’s bondsmen and declaring Criminal Cases Nos. 3892 and 3892 submitted for decision;

2. DECLARING that there was no valid arraignment in Criminal Case No. 3892; chanrob les law l ibra ry : red

3. UPHOLDING the validity of the ex-parte reception of the prosecution’s evidence on 8 April 1985 insofar as
Criminal Case No. 3890 is concerned and DECLARING petitioner as having waived his right to cross-examine
the witness presented by the prosecution in said case;

4. SETTING ASIDE the Notice of Promulgation issued on 3 May 1985; and

5. DIRECTING the court below to arraign the petitioner in Criminal Case No. 3892, set the case for trial for
the reception of the evidence for the prosecution, hold a joint hearing of both cases for the reception of the
evidence for the petitioner and, in due course, render judgment thereon.

No pronouncement as to costs.

SO ORDERED.
G.R. No. 127772 March 22, 2001

ROBERTO P. ALMARIO, petitioner,

vs.
COURT OF APPEALS, HON. FLORENTINO A. TUASON, JR., PEOPLE OF THE PHILIPPINES
AND RIZAL COMMERCIAL BANKING CORP., respondents.

QUISUMBING, J.:

This appeal by certiorari seeks to set aside the resolutions of the Court of Appeals dated November
21, 19961 and of January 7, 1997,2 in CA-G.R. No. SP-42312, which denied the petition for certiorari,
prohibition and mandamus with preliminary injunction instituted by petitioner against the Hon.
Florentino A. Tuason, Jr., in his capacity as Presiding Judge of Branch 139, Regional Trial Court of
Makati City, the Rizal Commercial Banking Corporation (RCBC), and the People of the
Philippines.3 Involved in said petition were the orders of Judge Jaime D. Discaya and Judge Tuason
dated October 25, 19954 and April 11, 1996,5 respectively, issued in Criminal Cases Nos. 91-6761-
62 which petitioner claimed were violative of his constitutional right against double jeopardy but
which respondent appellate court upheld. 1âwphi 1.nêt

The factual antecedents in these cases, as culled by the Court of Appeals, are as follows:

Petitioner is one of the accused in Criminal Case No. 91-6761, for estafa thru falsification of
public document, and Criminal Case No. 91-6762, for estafa, with respondent RCBC as the
offended party in both cases.

The informations were filed on October 22, 1992. After petitioner’s arraignment on March 18,
1992, pre-trial was held, which was terminated on October 21, 1994. Thereafter, the cases
were scheduled for continuous trial in December 1994, and in January and February 1993,
but the hearings were cancelled because the Presiding Judge of the court was elevated to
this Court and no trial judge was immediately appointed/detailed thereto.

The hearing set for June 21, 1995, was postponed for lack of proof of notice to all the
accused and their counsel. The hearing on July 17, 1995, upon request of private
prosecutor, and without objection on the part of petitioner’s counsel, postponed to July 24,
1995. However, for lack of proof of service of notice upon petitioner’s three co-accused, the
hearing set for July 24, 1995, was likewise cancelled and the cases were reset for trial on
September 8 and 25, 1995.

On September 8, 1995, private complainant failed to appear despite due notice. Hence, upon
motion of petitioner’s counsel, respondent court issued the following order:

When this case was called for hearing, private complainant is not in Court despite
notice. Atty. Alabastro, counsel for accused Roberto Almario, moved that the case
against the latter be dismissed for failure to prosecute and considering that accused
is entitled to a speedy trial.
 WHEREFORE, the case against accused Roberto Almario is hereby dismissed. With
respect to accused Spouses Susensio and Guillerma Cruz and Dante Duldulao,
1st warrant be issued for their arrest.

SO ORDERED.

Upon motion of the private prosecutor and despite the opposition of petitioner, respondent
court in its Order dated October 25, 1995, reconsidered the Order of September 8, 1995.
The pertinent portion of said order reads as follows:

In Hipolito vs. Court of Appeals (G.R. No. 108478-79, Feb. 21, 1993) the Supreme
Court held that the right of the accused to a speedy trial is deemed violated only
when the proceedings is attended by vexations, capricious and oppressive delays, or
when unjustified postponements of the trial are asked for and secured, or when
without cause or unjustifiable motive, a long period of time is allowed to (e) lapse
without the party having his case tried. At least this right is relative, taking into (the)
account the circumstances of each case.

There has been no vexations, capricious and oppressive delays, or unjustified

postponements of the trial, or a long time is allowed to (e) lapse without the party
having his case tried which would constitute, according to the above case, violation
of the right of the accused to speedy trial. After arraignment of the accused, the pre-
trial was set and the same was ordered terminated on October 25, 1994. On June
21, 1995, the case was set for initial presentation of evidence of the proof of service
of the notices to the accused and their respective counsels. On July 17, 1995,
counsel for the accused did not interpose objection to private prosecutor's motion to
postpone due to absence of witnesses. On July 24, 1995, the trial could not proceed
as, being a joint trial of three criminal cases, the three other accused were not
present. There were only three settings from the date of termination of the pre-trial
for the prosecution to present evidence and the same were postponed with valid
reasons.

The dismissal in the Order dated September 8, 1995, did not result in the acquittal of
the accused since the right of the accused to speedy trial has not been violated, and
its dismissal having been made upon the motion of the accused there is no double
jeopardy.

WHEREFORE, premises considered, the Order dated September 8, 1995 dismissing

the charge/case against the accused Roberto Almario is reconsidered and set aside.

SO ORDERED.

Petitioner sought a reconsideration of the above order. Acting on the Motion for
Reconsideration dated November 9, 1995, respondent Judge issued his assailed Order of
April 11, 1996, the dispositive portion of which reads as follows:

IN VIEW OF THE FOREGOING, the Motion for Reconsideration dated 9 November

1995 is hereby denied for lack of merit considering that, based on the foregoing
facts, the proceedings in this case have not been prolonged unreasonably nor were
there oppressive delays and unjustified postponements in violation of the Accused's
constitutional right to speedy trial.
 SO ORDERED.6

Aggrieved by the foregoing order, petitioner filed before the Court of Appeals a petition for certiorari,
prohibition and mandamus with preliminary injunction against the presiding judge of Branch 139 of
the Regional Trial Court of Makati City, RCBC and the People of the Philippines. In a resolution
dated November 21, 1996, respondent appellate court denied the petition due course and dismissed
it for lack of merit. Petitioner's motion to reconsider it was likewise denied for lack of merit in a
resolution dated January 7, 1997.

Before us, petitioner maintains that the appellate court erred in sustaining the trial court which, in
turn, had gravely abused its discretion, amounting to lack of jurisdiction, when it reconsidered the
order which dismissed the criminal cases against him. Petitioner asserts that this reversal was a
violation of the doctrine of double jeopardy, as the criminal cases were initially dismissed for an
alleged violation of petitioner's constitutional right to a speedy trial.7

The issue for resolution is whether, in petitioner's cases, double jeopardy had set in so that
petitioner's constitutional right against such jeopardy had been violated.

Article III, Section 21 of the 1987 Constitution provides:

Section 21. No person shall be twice put in jeopardy of punishment for the same offense. 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.

Section 7, Rule 117 of the Revised Rules of Court provides:

Section 7. Former conviction or acquittal; double jeopardy. - When an accused has been
convicted or acquitted, or the case against him dismissed or otherwise terminated without his
express consent by a court of competent jurisdiction, upon a valid complaint or information or
other formal charge sufficient in form and substance to sustain a conviction and after the
accused had leaded to the charge, the conviction or acquittal of the accused or the dismissal
of the case shall be a bar to another prosecution for the offense charged, or for any attempt
to commit the same or frustration thereof, or for any offense which necessarily includes or is
necessarily included in the offense charged in the former complaint or information.

x x x

Clearly, jeopardy 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.8

In the cases at bar, the order of dismissal based on a violation of the right to speedy trial was made
upon motion by counsel for petitioner before the trial court. It was made at the instance of the
accused before the trial court, and with his express consent. Generally, the dismissal of a criminal
case resulting in acquittal made with the express consent of the accused or upon his own motion will
not place the accused in double jeopardy. However, this rule admits of two exceptions, namely:
insufficiency of evidence and denial of the right to speedy trial.9 Double jeopardy may attach when
the proceedings have been prolonged unreasonably, in violation of the accused's right to speedy
trial.10
Here we must inquire whether there was unreasonable delay in the conduct of the trial so that
violation of the right to speedy trial of the accused, herein petitioner, resulted. For it must be recalled
that in the application of the constitutional guaranty of the right to speedy disposition of cases,
particular regard must also be taken of the facts and circumstances peculiar to each case.11 Both the
trial court and the appellate court noted that after pre-trial of petitioner's case was terminated on
October 21, 1994, continuous trial was set in the months of December 1994, and January and
February of 1995. The scheduled hearings, however, were cancelled when the presiding judge was
promoted to the Court of Appeals, and his successor as trial judge was not immediately appointed,
nor another judge detailed to his sala. 1âw phi 1.nêt

Records show that on June 21, 1995, hearing was postponed for lack of proof of notice to the
accused and their counsel. The hearing on July 17, 1995, was postponed upon motion of the private
prosecutor without objection from petitioner's counsel. The hearing set on July 24, 1995 was reset,
despite the presence of petitioner and his counsel, because of lack of proof of service of notice to
co-accused Dante Duldulao and the spouses Susencio and Guillerma Cruz.12

As observed by respondent appellate court, delay in the trial was due to circumstances beyond the
control of the parties and of the trial court. The first and third postponements were clearly justified on
the ground of lack of notice to accused, co-accused, and/or counsel. Another was made without
objection from petitioner's counsel. However, on September 8, 1995, counsel for petitioner moved
for dismissal of this case, because of the absence of the private prosecutor due to a severe attack of
gout and arthritis, although he had sent his associate lawyer acceptable to the court.13 All in all, there
were only three re-setting of hearing dates. Thus, after a closer analysis of these successive events,
the trial court realized that the dates of the hearings were transferred for valid grounds. Hence, the
trial court set aside its initial order and reinstated the cases against petitioner,14 which order the
appellate court later sustained.

That there was no unreasonable delay of the proceedings is apparent from the chronology of the
hearings with the reasons for their postponements or transfers. Petitioner could not refute the
appellate court's findings that petitioner's right to speedy trial had not been violated. As both the trial
and appellate courts have taken pains to demonstrate, there was no unreasonable, vexatious and
oppressive delay in the trial. Hence, there was no violation of petitioner's right to speedy trial as
there were no unjustified postponements which had prolonged the trial for unreasonable lengths of
time.15

There being no oppressive delay in the proceedings, and no postponements unjustifiably sought, we
concur with the conclusion reached by the Court of Appeals that petitioner's right to speedy trial had
not been infringed. Where the right of the accused to speedy trial had not been violated, there was
no reason to support the initial order of dismissal.

It follows that petitioner cannot invoke the constitutional right against double jeopardy when that
order was reconsidered seasonably.16 For as petitioner's right to speedy trial was not transgressed,
this exception to the fifth element of double jeopardy - that the defendant was acquitted or convicted,
or the case was dismissed or otherwise terminated without the express consent of the accused -
was not met. The trial court's initial order of dismissal was upon motion of petitioner's counsel, hence
made with the express consent of petitioner. That being the case, despite the reconsideration of said
order, double jeopardy did not attach. As this Court had occasion to rule in People vs. Tampal, (244
SCRA 202) reiterated in People vs. Leviste,17 where we overturned an order of dismissal by the trial
court predicated on the right to speedy trial -

It is true that in an unbroken line of cases, we have held that the dismissal of cases on the
ground of failure to prosecute is equivalent to an acquittal that would bar further prosecution
 of the accused for the same offense. It must be stressed, however, that these dismissals
were predicated on the clear right of the accused to speedy trial. These cases are not
applicable to the petition at bench considering that the right of the private respondents to
speedy trial has not been violated by the State. For this reason, private respondents cannot
invoke their right against double jeopardy.

Both the trial court and the Court of Appeals were thus not in error when they allowed reinstatement
of the cases against petitioner.

WHEREFORE, the resolutions of the Court of Appeals in CA-G.R. No. SP-42312, dated November
21, 1996 and January 7, 1997, which upheld the orders of the Regional Trial Court of Makati, Branch
139, in Criminal Cases Nos. 91-6761-62, are hereby AFFIRMED. Costs against petitioner.

SO ORDERED.

G.R. No. 210430 February 18, 2015

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,

vs.
RONALD NICAL y ALMINARIO, Accused-Appellant.

DECISION

REYES, J.:

On automatic review is the Decision1 dated April 26, 2013 of the Court of Appeals (CA), in CA-G.R.
CR-HC No. 04072, which affirmed, with modification, the Decision2 of the Regional Trial Court (RTC)
of Dasmariñas, Cavite, Branch 90, in Criminal Case No. 4131-07 on June 5, 2009, convicting Ronald
Nical y Alminario (accused-appellant) of the crime of Rape and imposing on him the penalty of
reclusion perpetua and indemnity for the victim of ₱50,000.00 as civil indemnity, ₱50,000.00 as
moral damages and ₱25,000.00 as exemplary damages.

The Information dated August 28, 2007 charged the accused-appellant with the crime of rape, as
follows:

That on or about the 23rd day of August, 2007, in the Municipality of Dasmariñas, Province of
Cavite, Philippines and within the jurisdiction of this Honorable Court, the above-named accused,
with lewd design and actuated by lust, by means of force, violence and intimidation, did, then and
there, willfully, unlawfully and feloniously have carnal knowledge to one [AAA],3 by inserting his
[p]enis into her genital organ (vagina), against her will and consent, to the latter’s damage and
prejudice.

CONTRARY TO LAW.4
The accused-appellant pleaded not guilty on arraignment, and when trial ensued, the prosecution
presented AAA, the victim, and Dr. Angelito Magno (Dr. Magno), a gynecologist at the Philippine
General Hospital (PGH) who examined her. The accused-appellant testified alone in his defense.

AAA worked as a maid for a certain "Ate Michelle", who owned two adjacent houses, one described
as "big" and the other "small", in Dasmariñas, Cavite. At around 1:00 p.m. on August 23, 2007, AAA
was folding laundry in a room inside the big house when the accused-appellant, who was also a
household helper staying in the small house, suddenly entered the room and immediately proceeded
to embrace her. She tried to run but the accused-appellant grabbed her by her shorts and pushed
her so hard against the concrete wall of the room that she hit her head against it and became dizzy.
Sensing the dark intentions of the accused-appellant, AAA managed to stand up and kick him in the
leg and run out of the room. The accused-appellant gave chase and caught up with her in the sala,
where again he embraced her. At that point, AAA lost consciousness, and when she woke up, she
was back inside the room she had fled, lying naked with the accused-appellant on top of her and half
naked. The accused-appellant inserted his penis into her vagina and she felt pain, but she was able
to muster enough strength to push him off with her knee and make her escape. She ran to the other
house and told Nelyn Nacion (Nelyn), another maid, what the accused-appellant had just done to
her. Nelyn then texted AAA’s sister, BBB, who soon arrived, and they reported the incident to the
barangay officials. Two days later, AAA submitted herself for examination by Dr. Magno at the PGH.
From the hospital, BBB took her sister AAA away from her employer.5

Dr. Magno testified that he examined AAA and he entered the results in a Gynecologic Emergency
Sheet. Hefound no signs of any injury, sexual abuse, lacerations, lesions and bleeding in the private
parts of AAA, whose hymen he noted was no longer intact. Dr. Magno clarified that AAA could have
had prior sexual intercourse months or years earlier, although his medical findings do not exclude
the possibility that AAA was raped or sexually abused by the accused-appellant a few days earlier.6

The accused-appellant in his testimony claimed that at 1:00 p.m. on August 23, 2007, he was resting
in the sala of the small house when AAA entered and sat on his stomach. Fearing that they might be
seen by his employer, the accused-appellant pushed and shooed her away. But as he chased her
off, AAA ran into a chair and tumbled. She hit her head on a hard object and lost consciousness. He
lifted and carried her, laid her on the sofa and revived her by fanning and swabbing her face with a
wet towel. The accused-appellant insisted that the reason AAA sued him for rape was because she
was jealous of another maid, Joan, whom he was courting.7 Ruling of the RTC

In its Decision8 dated June 5, 2009, the RTC gave full credence to AAA’s narration of her ordeal and
found the accused-appellant guilty as charged:

WHEREFORE, premises considered, the Court hereby finds the accused guilty beyond reasonable
doubt of the crime of simple rape, as defined and penalized under Article 335 of the Revised Penal
Code and hereby sentences the accused to suffer the penalty of reclusion perpetua, and to pay the
victim moral damages in the amount of Php50,000.00, civil indemnity ex-delicto in the amount of
Php50,000.00 and exemplary damages in the amount of Php25,000.00. Costs against the accused.

SO ORDERED.9

Appeal to the CA

On appeal to the CA, the accused-appellant maintained that the prosecution’s evidence failed to
meet the quantum of proof required to convict him. He asserted that the medical examination results
negate AAA’s claim that she was raped. They showed no physical injuries, sexual abuse and
lacerations, and since her hymen is no longer intact, it could mean that she had intercourse months
before.

The accused-appellant also argued that the "loss of consciousness theory" advanced by the
prosecution was incompatible with the information which alleged that he committed rape through
force, violence and intimidation. Citing the case of People v. Gavina,10 the accused-appellant
maintained that his right to due process of law was violated because the element of
unconsciousness was not alleged in the Information.

On April 26, 2013, the appellate court rendered judgment affirming the guilt of the accused-
appellant, as follows:

WHEREFORE, premises considered, We AFFIRM the June 5, 2009 Decision of the Regional Trial
Court of Dasmariñas, Cavite, Branch 90, subject to the modification that the award of exemplary
damages is INCREASED from Php25,000.00 to Php30,000.00; and, accused-appellant is further
held liable to pay interest of 6% per annum on the aspects of civil indemnity, moral damages and
exemplary damages, reckoned from the finality of this Decision until full payment.

SO ORDERED.11

Automatic review by the Court

In this automatic appeal, both the accused-appellant and the Office of the Solicitor General (OSG)
waived the filing of supplemental briefs, since they would only be repeating their arguments in the
court. The Court’s review of the assailed decisions yields no new matters that could prompt a
reconsideration or reversal of the accused-appellant’s conviction.

The medical findings on AAA did not preclude rape

In her testimony, AAA gave a clear, credible and complete narration of damning details showing that
the accused-appellant did in fact assault her sexually. Pertinent portions of her testimony are
reproduced below:

Pros. Jarlos: While you were inside the room of the other house, what transpired next?

A: Pagpasok ko po sa cuarto biglang pumasok si Ronald niyakap ako.

Q: Did you not lock the door when you were already inside the room?

A: Ini-locked ko po.

Q: How was he able to enter the room?

A: Mayroon po siyang susi.

Q: When he was already inside the room, what happened next?

A: Nagpumiglas po ako sa kanya. Lalabas na sana ako nahawakan niya iyong shorts ko kaya nahila
ako pabalik sa kwarto. Tinulak niya ako at nauntog ang ulo ko sa pader.
Q: What did you do when you accidentally bumped your head on the wall?

A: Nakabangon pa po ako at tinadyakan ko si Ronald lumabas ako at hinabol niya ako.

Q: So, you kicked him and then you ran outside the room?

A: Opo.

Q: What happened next?

A: Inabutan nya ako dun sa sala, niyakap nya ako ulit at nawalan na ako ng malay.

Court: Bakit ka naman nawalan ng malay sa pagyakap nya lang sa iyo?

A: Kasi po masakit ang ulo ko dahil nauntog ako. Noong nagising ako nasa kwarto na ako.

Pros. Jarlos: When you woke up, what did you find out?

A: Masakit po ang ari ko.

Q: What about him? Where was he when you woke up?

A: Nakapatong pa po sa akin.

Q: What was his attire when he was on top of you?

A: Nakasuot po siya ng t-shirt tapos iyong shorts niya ay nakababa hanggang tuhod po.

Q: What about you?

A: Nakahubad po.

Q: Nakahubo’t hubad ka?

A: Opo.

Pros. Jarlos: After you felt something painful, what did you do next?

A: Pumunta na po ako sa kabila tapos inutusan ko iyong pinsan ko na ipa-test ako.

Q: What about him, what did he do when you left the house?

A: Nandoon po sa bahay. Naiwan po siya doon.

Court: Papaano ka nakawala sa pagkakapatong sa iyo ni Ronald?

A: Tinadyakan ko po siya. Hindi na niya ako hinabol uli.

Court: Naramdaman mo ba noong nagising ka na nasa ibabaw mo pa siya?

A: Opo.

Court: Bakit nakaramdam ka ng masakit?

A: Kasi po pinasok niya iyong ari niya sa ari ko.12

The accused-appellant insisted that he could not be convicted of rape because the medical
examination results showed that AAA suffered no lacerations, abrasions or contusions. But while
AAA testified that she hit her head against the concrete wall and the hard knock caused her to pass
out, Dr. Magno apparently conducted only vaginal and bodily examinations, and did not examine her
for concussion or head contusion. Nonetheless, he admitted that while AAA had had previous sexual
relations, it did not preclude the fact that she was sexually abused.13

It is settled that the absence of physical injuries or fresh lacerations does not negate rape, and
although medical results may not indicate physical abuse or hymenal lacerations, rape can still be
established since medical findings or proof of injuries are not among the essential elements in the
prosecution for rape. As held in People v. Campos:14

But a medical examination is not indispensable in a prosecution for rape. In fact, there can be rape
even if the medical examination shows no vaginal laceration. As we held in People v. Dreu—

It is of no moment either that the medical certificate fails to show that Josephine suffered any
contusion or abrasion. Although the results of a medical examination may be considered strong
evidence to prove that the victim was raped, such evidence is not indispensable in establishing
accused-appellant’s guilt or innocence. In People v. Docena, we stated:

That there was no medical examination report presented, sign of resistance during the actual
copulation, or proof of violence committed against MARGIE does not detract from our conclusion
that she was raped. A medical examination is not indispensable in a prosecution for rape. Medical
findings or proof of injuries, virginity, or an allegation of the exact time and date of the commission of
the crime are not essential in a prosecution for rape.15 (Citations omitted) In People v. Alicante,16 the
Court held that the accused may be convicted on the basis of the lone, uncorroborated testimony of
the rape victim, provided that her testimony is clear, positive, convincing and consistent with human
nature and the normal course of things.17 Truly, the absence of lacerated wounds in the
complainant’s vagina does not negate sexual intercourse.18 In fact, as used in our Revised Penal
Code (RPC), "carnal knowledge," unlike its ordinary connotation of sexual intercourse, does not
require that the vagina be penetrated or that the hymen be ruptured.19

The accused-appellant tried to impute jealousy on the part of AAA when she charged him with rape,
yet he also admitted that he was not courting her. His testimony is rendered more incredible when
he claimed that for a month before the alleged rape, the accused-appellant and AAA often
exchanged kisses and "played around with each other," and this was happening while he admitted to
her that he was courting Joan. The actuations of AAA immediately after the rape belie his story.
Although no person observed what transpired between him and AAA that afternoon of August 23,
2007, immediately after she managed to flee from her assailant, AAA told Nelyn that she had just
been raped by the accused-appellant, and she asked her to text her sister BBB to come
immediately. That same afternoon, after BBB arrived, they reported the incident to the barangay
officials.

No young woman would admit that she was raped, make public the offense and allow the
examination of her private parts, undergo the troubles and humiliation of a public trial and endure the
ordeal of testifying to all the gory details, if she had not in fact been raped.20
While the Information does not allege that the victim was unconscious when the accused- appellant
raped her, it nevertheless alleges the element of use of force and violence by the accused-appellant
which facilitated the commission of the rape.

The accused-appellant insisted that the Information fatally failed to allege that he raped AAA while
she was unconscious, as required under Article 266-A(1)(b) of the RPC. From AAA’s testimony,
when she regained control of her senses, she was aware of the accused-appellant lying on top of
her and inserting his penis into her vagina:

Pros. Jarlos: When you woke up, what did you find out?

A: Masakit po ang ari ko.

Q: What about him? Where was he when you woke up?

A: Nakapatong pa po sa akin.

Q: What was his attire when he was on top of you?

A: Nakasuot po siya ng t-shirt tapos iyong shorts niya ay nakababa hanggang tuhod po.

Q: What about you?

A: Nakahubad po.

Q: Nakahubo’t hubad ka?

A: Opo.

xxxx

Court: Naramdaman mo ba noong nagising ka na nasa ibabaw mo pa siya?

A: Opo.

Court: Bakit nakaramdam ka ng masakit?

A: Kasi po pinasok niya iyong ari niya sa ari ko.21

The accused-appellant now maintains that his right to due process was violated because he was
convicted of a crime which was not alleged in the Information, invoking Gavina. In the said case, the
Court overturned the conviction for rape because, while the Information alleged that the accused
employed force and intimidation, the victim testified that he used no force but gave her a drink which
made her unconscious, an element of the crime which the Information failed to allege. The Court
said:

Second, in convicting appellant, the trial court relied upon a finding that complainant was
unconscious when the appellant had carnal knowledge of her. This contradicts the allegation in the
information. Appellant was charged with rape committed by means of force or intimidation.
Otherwise put, his offense fell under Article 266-A (1) (a) of the Revised Penal Code. But in
convicting him of rape committed while his victim was supposedly unconscious, the trial court
applied Article 266-A (1) (b) of said Code.22 The element of unconsciousness on the victim’s part was
not alleged much less specified in the information. It cannot be made the basis of conviction, without
violating appellant’s right to due process, in particular to be informed of the nature of the accusation
against him. x x x.23 (Citations omitted)

In another case, People v. Mendigurin,24 the victim had a heart condition such that when the accused
suddenly appeared and embraced her in a dark room, she was startled and fell unconscious. After
the rape, the victim awoke and felt pain in her abdomen and noticed blood in her private part. At that
moment, she saw the accused putting on his shorts with a smirk on his face. He then threatened her
not to report the incident or else he would kill her sister. In acquitting the accused, the Court stated:

As the prosecution failed to present evidence to substantiate the charge of rape through force, threat
and intimidation, we are duty-bound to uphold appellant’s innocence. It is an elementary rule in
criminal procedure that an accused cannot be convicted of an offense unless it is clearly charged in
the complaint or information. If the prosecution in this case sought to convict appellant by proving
that complainant was violated while in a state of unconsciousness, as provided under the 2nd
paragraph of Article 355, the information should have stated so. We find, however, that the element
of unconsciousness was not alleged much less specified in the information, which charged appellant
for rape under the first circumstance. Hence, it cannot be made the basis of conviction without
violating appellant’s right to due process, in particular to be informed of the nature of the accusation
against him. We have ruled that this right is accorded by the Constitution so that the accused can
prepare an adequate defense against the charge against him. Convicting him of a ground not
alleged while he is concentrating his defense against the ground alleged would plainly be unfair and
underhanded.

The trial court, in holding for conviction, relied on the praesumptio hominis that no young Filipina
would cry rape if it were not true. However, its decision totally disregarded the paramount
1âwphi1

constitutional presumption that an accused is deemed innocent until proven otherwise. Where the
evidence gives rise to two possibilities, one consistent with the accused’s innocence and the other
indicative of his guilt, that which favors the accused should be properly considered.25 (Citations
omitted)

On the other hand, although the Information below does not allege that the accused-appellant raped
AAA while she was unconscious, the prosecution however alleged and proved the use of force and
violence against her. Article 266-A(1)(a) of the RPC was satisfied because accused-appellant
grabbed and pulled AAA by her shorts and then pushed her hard against the concrete wall, and the
impact of her head bouncing against the wall made her dizzy, weak, and then unconscious, and this
enabled the accused-appellant to consummate his bestial design on her. Her unconsciousness
resulted directly from the force and violence employed by the accused-appellant against her.

The accused-appellant is being charged under Article 266-A(1)(a) of the RPC, and the element of
use of force is not in any way disproved when the RTC found that AAA was partly conscious when it
said that the "private complainant felt the penis of the accused[-appellant] inside her vagina and she
felt pain."26 The appellate court noted too that AAA was not totally unconscious, saying that this
contradicted the accused-appellant's insistence that the RTC found that she was unconscious during
the rape. The OSG also did not agree that AAA was totally unconscious, but as the Court has
already noted, this point is entirely irrelevant. What is clear is that sufficient force was used which
facilitated the consummation of the accused-appellant's lewd design when AAA became weak and
momentarily unconscious.
Coming now to the imposable penalty, the lower courts correctly sentenced the accused-appellant to
reclusion perpetua pursuant to Article 266-B and Article 266-A27 of the RPC. As to the monetary
damages, as held in People of the Philippines v. Adel Ramos y Abellana28 and a long line of the
latest cases, the accused-appellant is liable to AAA for civil indemnity in the amount of ₱50,000.00,
moral damages of ₱50,000.00, exemplary damages of ₱30,000.00, plus six percent (6%) per annum
interest on all these monetary awards29 from finality hereof until full satisfaction.

WHEREFORE, premises considered, the Decision dated April 26, 2013 of the Court of Appeals in
CA-G.R. CR-H.C. No. 04072, finding accused-appellant Ronald Nical y Alminario guilty beyond
reasonable doubt of the crime of Rape, is AFFIRMED.

SO ORDERED.

BIENVENIDO L. REYES
Associate Justice

G.R. No. 175939 April 3, 2013

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,

vs.
CHAD MANANSALA y LAGMAN, Accused-Appellant.

DECISION

BERSAMIN, J.:

The due recognition of the constitutional right of an accused to be informed of the nature and cause
of the accusation through the criminal complaint or information is decisive of whether his prosecution
for a crime stands or not. The right is not transgressed if the information sufficiently alleges facts and
omissions constituting an offense that includes the offense established to have been committed by
the accused.

The Case

Chad Manansala y Lagman seeks to reverse the decision promulgated on July 26, 2006, whereby
the Court of Appeals (CA)1 affirmed .with modification his conviction for the illegal possession and
control of 750 grams of dried marijuana leaves in violation of Section 8 of Republic Act No. 6425
(Dangerous Drugs Act of 1972) that the Regional Trial Court (RTC), Branch 74, Olongapo City had
handed down through its decision dated February 1, 2000,2 sentencing him to suffer the penalties of
"reclusion perpetua maximum or imprisonment from thirty (30) years and one (1) day to forty (40)
years and to pay the fine of Seven Hundred Fifty (₱750,000.00) Thousand Pesos, with subsidiary
imprisonment."

Antecedents

The information filed on October 20, 1994 alleged:

That on or about the nineteenth (19th) day of October, 1994, in the City of Olongapo, Philippines and
within the jurisdiction of this Honorable Court, the above-named accused, without being lawfully
authorized did then and there willfully, unlawfully and knowingly engage in selling, delivering, giving
away to another and distributing more or less 750 grams or 3/4 kilo of marijuana dried leaves placed
in a small wooden box inside the cabinet, which are prohibited drugs, found in his possession and
control.

CONTRARY TO LAW.3

To substantiate the charge, the Prosecution showed the following.

On October 18, 1994 the Philippine National Police in Olongapo City (PNP) conducted a test-buy
operation against Manansala, a suspected dealer of marijuana. On the same date, following the test-
buy, the PNP applied for and obtained a search warrant from the RTC, Branch 72, Olongapo City
(Search Warrant No. 8-94) to authorize the search for and seizure of prohibited drugs in
Manansala’s residence located at No. 55 Johnson Extension, Barangay East Bajac Bajac, Olongapo
City.4 SPO4 Felipe P. Bolina and other elements of the PNP, accompanied by Barangay Chairman
Reynaldo Manalang of Barangay East Bajac Bajac, conducted the search of Manansala’s house at
around 5:30 a.m. on October 19, 1994. The search yielded the 750 grams of dried marijuana leaves
subject of the information, which the search team recovered from a wooden box placed inside a
cabinet. Also seized was the amount of ₱655.00 that included the two marked ₱50.00 bills bearing
serial numbers SNKJ812018 and SNMN426747 used during the test buy.5

All the seized articles were inventoried, and Manansala himself signed the certification to that effect,
along with his father, Jose Manansala, and Barangay Captain Manalang.6 The certification listed the
following seized articles, to wit: (a) one kilo, more or less, of suspected dried marijuana leaves; (b)
rolling paper; and (c) money amounting to ₱655.00.

SPO4 Bolina and his team brought Manansala to Camp Cabal in Olongapo City, where they turned
over the seized articles to the evidence custodian, SPO2 Marcelino R. Sapad. At around 8:20 a.m.
of October 20, 1994, the seized articles were submitted to the PNP Crime Laboratory in Camp
Olivas, San Fernando, Pampanga for qualitative examination.

The PNP Crime Laboratory later issued Technical Report No. D-396-94,7 to wit:

SPECIMEN SUBMITTED:

Spmn "A" – One (1) big transparent plastic bag containing two (2) rectangular bricks of dried
suspected MARIJUANA fruiting tops having a total weight of seven hundred fifty five (755)
grams.
 Spmn "B" – One (1) medium size plastic bag containing dried suspected MARIJUANA
fruiting tops weighing 9.045 grams. x x x.

PURPOSE OF LABORATORY EXAMINATION:

To determine the presence of any prohibited and/or regulated drug in the above-stated
specimen. x x x.

FINDINGS:

Qualitative examination conducted on the above-stated specimen gave POSITIVE result for
MARIJUANA, a prohibited drug. x x x.

CONCLUSION:

Spmns "A" and "B" – contain MARIJUANA, a prohibited drug.8

Manansala pleaded not guilty on November 22, 1994.9

On January 4, 1995, First Asst. City Prosecutor Mario F. Manalansan filed a motion for the
admission of an amended information, ostensibly to modify the offense charged from illegal sale of
prohibited drugs under Section 4 of Republic Act No. 6425 to illegal possession of prohibited drugs
under Section 8 of the same law.10 But the RTC did not act on the motion.

Nonetheless, the trial proceeded, with the Prosecution establishing the matters earlier summarized.

In his turn, Manansala denied the charge, alleging that he had been the victim of a frame-up. His
version follows.

On October 19, 1994, military men clad in civilian attire arrived at his house and arrested him without
any warrant, and brought him to an office he referred to simply as S2, then to a club located on
Magsaysay Street in Olongapo City known as Dorris 2. His captors mugged and then detained him
when he refused to admit the sale and possession of marijuana. They turned down his request to be
brought to a hospital for the treatment of the injuries he thereby sustained. As of the time of his
testimony, he conceded that he could not identify his captors and whoever had maltreated him,
except SPO4 Bolina whom he recognized in court when the latter testified at the trial.11

Decision of the RTC

As stated, the RTC convicted Manansala for illegal possession of marijuana in violation of Section 8
of Republic Act No. 6425, holding thus:

The Information to which accused pleaded "not guilty" charges that accused willfully, unlawfully and
knowingly x x x engage in selling, delivering, giving away to another and distributing x x x falling
under the more embracing term known as "drug pushing". The alleged act of allegedly knowingly
selling or pushing prohibited drugs by the accused was however, not sufficiently proven. The
member of the team who is alleged to have acted as a poseur-buyer of the illegal stuff from the
accused was not presented as a witness, hence, the testimony of SPO4 Felipe Bolina, to the effect
that during the surveillance conducted prior to the application of the search warrant, a member of the
team acting as poseur buyer was able to buy marijuana from the accused, cannot be given weight,
being hearsay.
However, the fact that the enforcing team where witness Bolina is a member, was able to find
marijuana leaves in the custody, possession and control of the accused, in the course of the
enforcement of the search warrant and has been established by the prosecution beyond reasonable
doubt, without controversion but the denial of the accused, which like alibi, is the weakest defense,
this Court is convinced that accused is guilty instead of violating Section 8, Article II of the
Dangerous Drugs Act as amended, a crime that is necessarily included in the crime of drug pushing
or dealing, for which the accused have been charged with. In light of these circumstances, this Court
has no option that to find accused guilty and liable for the crime proved. Since the date of the
commission of the crime as proved is October 19, 1994, the provisions of Republic Act No. 7659, in
so far as the imposable penalty is concerned, will find application.

WHEREFORE, finding accused Chad Manansala y Lagman, GUILTY of Violation of Section 8,

Article II of Republic Act No. 6425 as amended by Republic Act No. 7659, he is hereby sentenced to
suffer the penalty of reclusion perpetua maximum or imprisonment from thirty (30) years and one (1)
day to forty (40) years and to pay the fine of Seven Hundred Fifty (₱750,000.00) Thousand Pesos,
with subsidiary imprisonment.

Costs de oficio.

SO ORDERED.12

Ruling of the CA

On intermediate appeal, the CA reviewed the conviction upon the following issues, namely:

1. That the conviction, being anchored on evidence procured by virtue of an invalid warrant,
was erroneous;

2. That the RTC erred in convicting the accused for illegal possession of prohibited drug on
the misplaced and inaccurate theory that the offense in violation of Section 8 of Republic Act
No. 6425 was necessarily included in the offense in violation of Section 4 of Republic Act No.
6425; and

3. That the RTC overlooked, misinterpreted, misapplied and misrepresented facts and
evidences of substance and importance that, if weighed, assayed and considered were
enough to acquit the accused.13

On July 26, 2006, the CA promulgated its assailed decision, affirming the conviction subject to
modification, viz:

WHEREFORE, the foregoing considered, the appeal is hereby DISMISSED and the assailed
Decision AFFIRMED with MODIFICATION that the accused-appellant is sentenced to suffer the
penalty of reclusion perpetua and to pay a fine of seven hundred fifty thousand pesos (₱750,000.00)
with subsidiary imprisonment.

Accordingly, the prohibited drugs confiscated from the appellant are hereby ordered transmitted to
the Philippine Drug Enforcement Agency (PDEA) through the Dangerous Drugs Board for proper
disposition. Without pronouncement as to costs.

SO ORDERED.14
Hence, this appeal, in which Manansala reiterates the errors he already assigned before the CA.

Ruling

The appeal lacks merit.

The information alleged that "on or about the nineteenth (19th) day of October, 1994, in the City of
Olongapo, Philippines and within the jurisdiction of this Honorable Court, the above-named accused,
without being lawfully authorized did then and there willfully, unlawfully and knowingly engage in
selling, delivering, giving away to another and distributing more or less 750 grams or 3/4 kilo of
marijuana dried leaves placed in a small wooden box inside the cabinet, which are prohibited drugs,
found in his possession and control."

The crime thereby charged was a violation of Section 4 of Republic Act No. 6425, as amended by
Republic Act No. 7659,15 which provides:

Section 4. Sale, Administration, Delivery, Distribution and Transportation of Prohibited Drugs. - The
penalty of reclusion perpetua to death and a fine ranging from five hundred thousand pesos to ten
million pesos shall be imposed upon any person who, unless authorized by law, shall sell,
administer, deliver, give away to another, distribute, dispatch in transit or transport any prohibited
drug, or shall act as a broker in any such transactions.

Arraigned under such information, Manansala pleaded not guilty to it. But instead of finding him
guilty of the crime charged after trial, the RTC convicted him for a violation of Section 8, of Republic
Act No. 6425, as amended by Republic Act No. 7659, which states:

Section 8. Possession or Use of Prohibited Drugs. - The penalty of reclusion perpetua to death and
a fine ranging from five hundred thousand pesos to ten million pesos shall be imposed upon any
person who, unless authorized by law, shall possess or use any prohibited drug subject to the
provisions of Section 20 hereof.

On appeal, Manansala assigned as one of the reversible errors committed by the RTC that the trial
court had erred in convicting him for illegal possession of prohibited drugs on the misplaced and
inaccurate theory that the offense of illegal possession of marijuana in violation of Section 8 was
necessarily included in the offense of illegal sale of marijuana in violation of Section 4.

The CA disagreed with Manansala, however, and held that his conviction for the illegal possession
of marijuana in violation of Section 8 under the information that had alleged the illegal sale of
marijuana under Section 4 was proper, giving its reasons as follows:

xxxx

Indispensable in every prosecution for the illegal sale of marijuana, a prohibited drug, is the
submission of proof that the sale of the illicit drug took place between the poseur-buyer and the
seller thereof, coupled with the presentation in court of the corpus delicti as evidence. The element
of sale must be unequivocally established in order to sustain a conviction. In the case before Us, the
trial court correctly held that the prosecution failed to establish, much less adduce proof, that
accused-appellant was indeed guilty of the offense of illegal sale of marijuana. But it is beyond doubt
that he was found in possession of the same.
While no conviction for the unlawful sale of prohibited drugs may be had under the present
circumstances, the established principle is that possession of marijuana is absorbed in the
sale thereof, except where the seller is further apprehended in possession of another
quantity of the prohibited drugs not covered by or included in the sale and which are
probably intended for some future dealings or use by the seller. In the case before Us, it has
been satisfactorily ascertained that the bricks of marijuana confiscated from accused-
appellant were the same prohibited drugs subject of the original Information. In this light, We
find that the court a quo committed no reversible error in convicting the accused-appellant of
illegal possession of dangerous drugs under Section 8, Article II of the Dangerous Drugs Act
of 1972, as amended.

Again, it should be stressed that the crime of unlawful sale of marijuana penalized under
Section 4 of RA 6425 necessarily includes the crime of unlawful possession thereof. As borne
by the records, it has been sufficiently proven beyond any doubt that the lawful search conducted at
the house of the accused yielded a total of 764.045 grams marijuana dried leaves as verified by the
PNP Forensic Chemist. Thus, on the face of the positive testimony of the prosecution witness and
the presentation of the corpus delicti, it is indubitable that a crime had in fact been committed and
that accused-appellant was the author of the same.16

xxxx

To properly resolve the appeal, therefore, it is necessary to determine whether the conviction of
Manansala for a violation of Section 8, which the information did not allege, instead of for a violation
of Section 4, which the information alleged, was not in violation of his constitutional right to be
informed of the nature and cause of the accusation brought against him.

For sure, there have been many occasions in which the Court has found an accused charged with
the illegal sale of marijuana in violation of Section 4 guilty instead of the illegal possession of
marijuana in violation of Section 8. In the oft-cited case of People v. Lacerna,17 the Court held as
prevailing the doctrine that the illegal sale of marijuana absorbs the illegal possession of marijuana,
except if the seller was also apprehended in the illegal possession of another quantity of marijuana
not covered by or not included in the illegal sale, and the other quantity of marijuana was probably
intended for some future dealings or use by the accused. The premise used in Lacerna was that the
illegal possession, being an element of the illegal sale, was necessarily included in the illegal sale.
The Court observed thusly:

In People vs. Manzano, the Court identified the elements of illegal sale of prohibited drugs, as
follows: (1) the accused sold and delivered a prohibited drug to another, and (2) he knew that what
he had sold and delivered was a dangerous drug. Although it did not expressly state it, the Court
stressed delivery, which implies prior possession of the prohibited drugs. Sale of a prohibited drug
can never be proven without seizure and identification of the prohibited drug, affirming that
possession is a condition sine qua non.

It being established that illegal possession is an element of and is necessarily included in the illegal
sale of prohibited drugs, the Court will thus determine appellant’s culpability under Section 8.

From the penal provision under consideration and from the cases adjudicated, the elements of illegal
possession of prohibited drugs are as follows: (a) the accused is in possession of an item or object
which is identified to be a prohibited drug; (b) such possession is not authorized by law; and (c) the
accused freely and consciously possessed the prohibited drug.18
In all the convictions premised on the situation described in Lacerna, however, the involvement of a
single object in both the illegal sale as the crime charged and the illegal possession as the crime
proved is indispensable, such that only the prohibited drugs alleged in the information to be the
subject of the illegal sale is considered competent evidence to support the conviction of the accused
for the illegal possession. As such, the illegal possession is either deemed absorbed by or is
considered a necessary element of the illegal sale. On the other hand, any other illegal substance
found in the possession of the accused that is not part of the subject of the illegal sale should be
prosecuted under a distinct and separate information charging illegal possession; otherwise, the
fundamental right of the accused to be informed of the nature and cause of the accusation against
him would be flagrantly violated.

It is true that there was an error in the information’s statement of the facts essential to properly
describe the offense being charged against Manansala as that of illegal possession of marijuana;
and that the error became known to the Prosecution, leading Prosecutor Manalansan to himself file
the motion for the admission of the amended information dated January 3, 1995.19 In the motion,
Prosecutor Manalansan manifested that the information as filed charged a violation of Section 4; and
that during the preliminary investigation, he had concluded that Manansala should have been
charged with a violation of Section 8 instead of a violation of Section 4 as far as the 750 grams of
dried marijuana leaves seized from his possession during the implementation of Search Warrant No.
8-94 was concerned. The distinct and separate nature of the 750 grams of marijuana leaves from
the quantity of marijuana worth ₱100.00 that was the object of the test buy became all the more
evident in Prosecutor Manalansan’s letter dated December 28, 1994 addressed to City Prosecutor
Prudencio B. Jalandoni.20

There, Prosecutor Manalansan stated that the 750 grams of marijuana dried leaves had been seized
from the possession Manansala on October 19, 1994 by virtue of the search warrant, while the
attributed illegal sale of marijuana had happened on October 18, 1994 during the test buy conducted
to support the application of the search warrant. The letter specifically stated:

xxxx

3. The two incidents, the sale on 18 October 1994 and the seizure on 19 October 1994 are
separate incidents giving rise to two distinct offenses;

4. We cannot assume that the accused was engaged in the "sale of prohibited drugs" on 19
October 1994 because he was engaged in it before. There is no evidence to show that the
1âwphi1

accused was engaged in the sale, administration, delivery, distribution and transportation of
drugs as provided under Section 4;

5. The two (2) ₱50.00 bills are not enough to prove that the accused was engaged in selling
the 750 grams of marijuana leaves. They can prove the sale on 18 October 1994 but cannot
qualify his possession of the 750 grams of the drugs.

xxxx

Nonetheless, the conviction of Manansala stands.

The CA correctly declared that the illegal possession of marijuana was "a crime that is necessarily
included in the crime of drug pushing or dealing, for which the accused have been charged with."
The right of Manansala to be informed of the nature and cause of the accusation against him
enunciated in Section 14(2), Article III of the 1987 Constitution21 was not violated simply because the
information had precisely charged him with selling, delivering, giving away and distributing more or
less 750 grams of dried marijuana leaves. Thereby, he was being sufficiently given notice that he
was also to be held to account for possessing more or less 750 grams of dried marijuana leaves. As
Lacerna and similar rulings have explained, the crime of illegal sale of marijuana defined and
punished under Section 4 of Republic Act No. 6425, as amended, implied the prior possession of the
marijuana. As such, the crime of illegal sale included or absorbed the crime of illegal possession.
The rule is that when there is a variance between the offense charged in the complaint or
information, and that proved or established by the evidence, and the offense as charged necessarily
includes the offense proved, the accused shall be convicted of the offense proved included in that
which is charged.22 According to Section 5, Rule 120, Rules of Court (1985), the rule then applicable,
an offense charged necessarily includes that which is proved, when some of the essential elements
or ingredients of the former, as this is alleged in the complaint or information, constitute the latter.

WHEREFORE, the Court AFFIRMS the decision promulgated on July 26, 2006;
and ORDERS accused CHAD MANANSALA y LAGMAN to pay the costs of suit.

SO ORDERED.

LUCAS P. BERSAMIN
Associate Justice

WE CONCUR:

MARIA LOURDES P. A. SERENO

Chief Justice

TERESITA J. LEONARDO-DE CASTRO MARTIN S. VILLARAMA, JR.

Associate Justice Associate Justice

BIENVENIDO L. REYES
Associate Justice

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, I certify that the conclusions in the above
decision had been reached in consultation before the case was assigned to the writer of the opinion
of the Court's Division.

MARIA LOURDES P. A. SERENO

Chief Justice

G.R. No. 206442 July 1, 2015

JOVITO CANCERAN, Petitioner,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.

DECISION

MENDOZA, J.:

This is a petition for review on certiorari seeking to reverse and set aside the August 10, 2012
Decision1 and the March 7, 2013 Resolution2 of the Court of Appeals (CA), in CA-G.R. CR No.
00559, which affirmed and modified the September 20, 2007 Judgment3 of the Regional Trial Court,
Branch 39, Misamis Oriental, Cagayan de Oro City (RTC), in Criminal Case No. 2003-141,
convicting petitioner Jovito Canceran (Canceran) for consummated Theft.

The records disclose that Canceran, together with Frederick Vequizo and Marcial Diaz, Jr., was
charged with "Frustrated Theft." The Information reads:

That on or about October 6, 2002, at more or less 12:00 noon, at Ororama Mega Center Grocery
Department, Lapasan, Cagayan de Oro City, Philippines, and within the jurisdiction of this Honorable
Court, the above-named accused, Jovito Canceran, conspiring, confederating together and mutually
helping one another with his co-accused Frederick Vequizo, URC Merchandiser, and Marcial Diaz,
Jr., a Unilever Philippines merchandiser both of Ororama Mega Center, with intent to gain and
without the knowledge and consent of the owner thereof, did then and there wilfully, unlawfully and
feloniously take, steal and carry away 14 cartons of Ponds White Beauty Cream valued at
₱28,627,20, belonging to Ororama Mega Center, represented by William Michael N. Arcenio, thus,
performing all the acts of execution which would produce the crime of theft as a consequence but,
nevertheless, did not produce it by reason of some cause independent of accused’s will, that is, they
were discovered by the employees of Ororama Mega Center who prevented them from further
carrying away said 14 cartons of Ponds White Beauty Cream, to the damage and prejudice of the
Ororama Mega Center.

Article 308 in relation to Article 309, and 6 of the Revised Penal Code.4

Version of the Prosecution

To prove the guilt of the accused, the prosecution presented Damalito Ompoc (Ompoc),a security
guard; and William Michael N. Arcenio (Arcenio), the Customer Relation Officer of Ororama Mega
Center (Ororama),as its witnesses. Through their testimonies, the prosecution established that on or
about October 6, 2002, Ompoc saw Canceran approach one of the counters in Ororama; that
Canceran was pushing a cart which contained two boxes of Magic Flakes for which he paid
₱1,423.00; that Ompoc went to the packer and asked if the boxes had been checked; that upon
inspection by Ompoc and the packer, they found out that the contents of the two boxes were not
Magic Flakes biscuits, but 14 smaller boxes of Ponds White Beauty Cream worth ₱28,627.20; that
Canceran hurriedly left and a chase ensued; that upon reaching the Don Mariano gate, Canceran
stumbled as he attempted to ride a jeepney; that after being questioned, he tried to settle with the
guards and even offered his personal effects to pay for the items he tried to take; that Arcenio
refused to settle; and that his personal belongings were deposited in the office of Arcenio.5

Version of the Defense

Canceran vehemently denied the charges against him. He claimed that he was a promo
merchandiser of La Tondeña, Inc. and that on October 6, 2002, he was in Ororama to buy
medicinefor his wife. On his way out, after buying medicine and mineral water, a male person
ofaround 20 years of age requested him to pay for the items in his cart at the cashier; that he did not
know the name of this man who gavehim ₱1,440.00 for payment of two boxes labelled Magic
Flakes; that he obliged with the request of the unnamed person because he was struck by his
conscience; that he denied knowing the contents of the said two boxes; that after paying at the
cashier, he went out of Ororama towards Limketkai to take a jeepney; that three persons ran after
him, and he was caught; that he was brought to the 4th floor of Ororama, where he was mauled and
kicked by one of those who chased him; that they took his Nokia 5110 cellular phone and cash
amounting to ₱2,500.00; and that Ompoc took his Seiko watch and ring, while a certain Amion took
his necklace.6

Canceran further claimed that an earlier Information for theft was already filed on October 9,2002
which was eventually dismissed. In January 2003, a second Information was filed for the same
offense over the same incident and became the subject of the present case.7

The Ruling of the Regional Trial Court

In its Judgment, dated September 20, 2007, the RTC found Canceran guilty beyond reasonable
doubt of consummated Theft in line with the ruling of the Court in Valenzuela v. People8 that under
Article 308 of the Revised Penal Code (RPC),there is no crime of "Frustrated Theft." Canceran was
sentenced to suffer the indeterminate penalty of imprisonment from ten (10) years and one (1) day to
ten (10) years, eight (8) months of prision mayor, as minimum, to fourteen (14) years, eight (8)
months of reclusion temporal, as maximum.9

The RTC wrote that Canceran’s denial deserved scant consideration because it was not supported
by sufficient and convincing evidence and no disinterested witness was presented to corroborate his
claims. As such, his denial was considered self-serving and deserved no weight. The trial court was
also of the view that his defense, that the complaint for theft filed against him before the sala of
Judge Maximo Paderanga was already dismissed, was not persuasive. The dismissal was merely a
release order signed by the Clerk of Court because he had posted bail.10

The Ruling of the Court of Appeals

Aggrieved, Canceran filed an appeal where he raised the issue of double jeopardy for the first time.
The CA held that there could be no double jeopardy because he never entered a valid plea and so
the first jeopardy never attached.11

The CA also debunked Canceran’s contention that there was no taking because he merely pushed
the cart loaded with goods to the cashier’s booth for payment and stopped there. The appellate court
held that unlawful taking was deemed complete from the moment the offender gained possession of
the thing, even if he had no opportunity to dispose of the same.12

The CA affirmed with modification the September 20, 2007 judgment of the RTC, reducing the
penalty ranging from two (2) years, four (4) months and one (1) day of prision correccional, as
minimum, to eight (8) years, eight (8) months and one (1) day of prision mayor, as maximum.
Canceran moved for the reconsideration of the said decision, but his motion was denied by the CA in
its March 7, 2013 resolution.

Hence, this petition.

As can be synthesized from the petition and other pleadings, the following are the issues: 1] whether
Canceran should be acquitted in the crime of theft as it was not charged in the information; and 2]
whether there was double jeopardy.

Canceran argues that the CA erred in affirming his conviction. He insists that there was already
double jeopardy as the first criminal case for theft was already dismissed and yet he was convicted
in the second case. Canceran also contends that there was no taking of the Ponds cream
considering that "the information in Criminal Case No. 2003-141 admits the act of the petitioner did
not produce the crime of theft."13 Thus, absent the element of taking, the felony of theft was never
proved.

In its Comment,14 the Office of the Solicitor General (OSG)contended that there was no double
jeopardy as the first jeopardy never attached. The trial court dismissed the case even before
Canceran could enter a plea during the scheduled arraignment for the first case. Further, the
prosecution proved that all the elements of theft were present in this case.

In his Reply,15 Canceran averred that when the arraignment of the first case was scheduled, he was
already bonded and ready to enter a plea. It was the RTC who decided that the evidence was
insufficient or the evidence lacked the element to constitute the crime of theft. He also stressed that
there was no unlawful taking as the items were assessed and paid for.

The Court's Ruling

The Court finds the petition partially meritorious.

Constitutional Right of the

Accused to be Informed of
the Nature and Cause of
Accusation against Him.

No less than the Constitution guarantees the right of every person accused in a criminal prosecution
to be informed of the nature and cause of accusation against him.16 It is fundamental that every
element of which the offense is composed must be alleged in the complaint or information. The main
purpose of requiring the various elements of a crime to be set out in the information is to enable the
accused to suitably prepare his defense. He is presumed to have no independent knowledge of the
facts that constitute the offense.17

Under Article 308 of the RPC, the essential elements of theft are (1) the taking of personal property;
(2) the property belongs to another; (3) the taking away was done with intent of gain; (4) the taking
away was done without the consent of the owner; and (5) the taking away is accomplished without
violence or intimidation against person or force upon things. "Unlawful taking, which is the
deprivation of one’s personal property, is the element which produces the felony in its consummated
stage. At the same time, without unlawful taking as an act of execution, the offense could only be
attempted theft, if at all."18

"It might be argued, that the ability of the offender to freely dispose of the property stolen delves into
the concept of ‘taking’ itself, in that there could be no true taking until the actor obtains such degree
of control over the stolen item. But even if this were correct, the effect would be to downgrade the
crime to its attempted, and not frustrated stage, for it would mean that not all the acts of execution
have not been completed, the "taking not having been accomplished."19
A careful reading of the allegations in the Information would show that Canceran was charged with
"Frustrated Theft" only. Pertinent parts of the Information read:

x x x did then and there wilfully, unlawfully and feloniously take, steal and carry away 14 cartons of
Ponds White Beauty Cream valued at ₱28,627,20, belonging to Ororama Mega Center, represented
by William Michael N. Arcenio, thus performing all the acts of execution which would produce the
crime of theft as a consequence, but nevertheless, did not produce it by reason of some cause
independent of accused’s will x x x.

[Emphasis and Underscoring Supplied]

As stated earlier, there is no crime of Frustrated Theft. The Information can never be read to charge
Canceran of consummated Theft because the indictment itself stated that the crime was never
produced. Instead, the Information should be construed to mean that Canceran was being charged
with theft in its attempted stage only. Necessarily, Canceran may only be convicted of the lesser
crime of Attempted Theft.

"[A]n accused cannot be convicted of a higher offense than that with which he was charged in the
complaint or information and on which he was tried. It matters not how conclusive and convincing
the evidence of guilt may be, an accused cannot be convicted in the courts of any offense, unless it
is charged in the complaint or information on which he is tried, or necessarily included therein. He
has a right to be informed as to the nature of the offense with which he is charged before he is put
on trial, and to convict him of an offense higher than that charged in the complaint or information on
which he is tried would be an unauthorized denial of that right."20 Indeed, an accused cannot be
convicted of a crime, even if duly proven, unless it is alleged or necessarily included in the
information filed against him.21 An offense charged necessarily includes the offense proved when
some of the essential elements or ingredients of the former, as alleged in the complaint or
information, constitute the latter.22

The crime of theft in its consummated stage undoubtedly includes the crime in its attempted stage.
In this case, although the evidence presented during the trial prove the crime of consummated Theft,
he could be convicted of Attempted Theft only. Regardless of the overwhelming evidence to convict
him for consummated Theft, because the Information did not charge him with consummated Theft,
the Court cannot do so as the same would violate his right to be informed of the nature and cause of
the allegations against him, as he so protests.

The Court is not unmindful of the rule that "the real nature of the criminal charge is determined, not
from the caption or preamble of the information nor from the specification of the law alleged to have
been violated – these being conclusions of law – but by the actual recital of facts in the complaint or
information."23 In the case of Domingo v. Rayala,24 it was written:

What is controlling is not the title of the complaint, nor the designation of the offense charged or the
particular law or part thereof allegedly violated, these being mere conclusions of law made by the
prosecutor, but the description of the crime charged and the particular facts therein recited. The acts
or omissions complained of must be alleged in such form as is sufficient to enable a person of
common understanding to know what offense is intended to be charged, and enable the court to
pronounce proper judgment. No information for a crime will be sufficient if it does not accurately and
clearly allege the elements of the crime charged. Every element of the offense must be stated in the
information. What facts and circumstances are necessary to be included therein must be determined
by reference to the definitions and essentials of the specified crimes. The requirement of alleging the
elements of a crime in the information is to inform the accused of the nature of the accusation
against him so as to enable him to suitably prepare his defense.25
In the subject information, the designation of the prosecutor of the offense, which was "Frustrated
Theft," may be just his conclusion. Nevertheless, the fact remains that the charge was qualified by
the additional allegation, "but, nevertheless, did not produce it by reason of some cause independent
of accused’s will, that is, they were discovered by the employees of Ororama Mega Center who
prevented them from further carrying away said 14 cartons of Ponds White Beauty Cream, x x
x.26 This averment, which could also be deemed by some as a mere conclusion, rendered the charge
nebulous. There being an uncertainty, the Court resolves the doubt in favor of the accused,
Canceran, and holds that he was not properly informed that the charge against him was
consummated theft.

No double jeopardy when

the first jeopardy never
attached

Anent the issue of double jeopardy, the Court finds no reason to deviate from the ruling of the CA.

No person shall be twice put in jeopardy for punishment for the same offense. The rule of double
jeopardy has a settled meaning in this jurisdiction. It means that when a person is charged with an
offense and the case is terminated either by acquittal or conviction or in any other manner without
the consent of the accused, the latter cannot again be charged with the same or identical offense.
This principle is founded upon the law of reason, justice and conscience.27

Canceran argues that double jeopardy exists as the first case was scheduled for arraignment and
he, already bonded, was ready to enter a plea. It was the RTC who decided that there was
insufficient evidence to constitute the crime of theft.

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. Legal jeopardy attaches only
(a) upon a valid indictment, (b) before a competent court, (c) after arraignment, (d) a valid plea
having been entered; and (e) the case was dismissed or otherwise terminated without the express
consent of the accused.28

Here, the CA correctly observed that Canceran never raised the issue of double jeopardy before the
RTC. Even assuming that he was able to raise the issue of double jeopardy earlier, the same must
1âwphi1

still fail because legal jeopardy did not attach. First, he never entered a valid plea. He himself
admitted that he was just about to enter a plea, but the first case was dismissed even before he was
able to do so. Second, there was no unconditional dismissal of the complaint. The case was not
terminated by reason of acquittal nor conviction but simply because he posted bail. Absent these two
elements, there can be no double jeopardy.

Penalty of Attempted Theft

The penalty for consummated theft is prision mayor in its minimum and medium periods.29 The
penalty lower by two degrees than that prescribed by law for the consummated felony shall be
imposed upon principals in an attempt to commit a felony.30 The basis for reduction of penalty by two
degrees is the penalty prescribed by law for the consummated crime. Also, when the offenses
defined in the RPC are punished with a penalty composed of two periods, like in the crime of theft,
the penalty lower by one degree is formed by two periods to be taken from the same penalty
prescribed.31
Here, the products stolen were worth ₱28,627.20. Following Article 309 par. 1 of the RPC, the
penalty shall be the maximum period of the penalty prescribed in. the same paragraph, because the
value of the things stolen exceeded ₱22,000.00. In other words, a special aggravating circumstance
shall affect the imposable penalty.

Applying the Indeterminate Sentence Law, the minimum penalty should be within the range of
Arresto Mayor Minimum to Arresto Mayor Medium. In view of the special aggravating circumstance
under Article 309 (1), the maximum penalty should be Arresto Mayor Maximum to Prision
Correccional Minimum in its maximum period.

WHEREFORE, the petition is PARTIALLY GRANTED. The August 10, 2012 Decision and the March
7, 2013 Resolution of the Court of Appeals in CA-G.R. CR No. 00559 are hereby MODIFIED, in that,
the Court finds accused Jovito Canceran guilty beyond reasonable doubt of the crime of Attempted
Theft.

Accordingly, the Court sentences the accused to suffer the indeterminate prison term ranging from
Four (4) Months of Arresto Mayor, as minimum, to Two (2) Years, Four (4) Months of Prision
Correccional, as maximum.

SO ORDERED.

JOSE CATRAL MENDOZA

Associate Justice

WE CONCUR:

ANTONIO T. CARPIO
Associate Justice
Chairperson

LUCAS P. BERSAMIN* MARIANO C. DEL CASTILLO

Associate Justice Associate Justice

MARVIC M.V.F. LEONEN

Associate Justice

ATTESTATION

I attest that the conclusions in the above Decision had been reached in consultation before the case
was assigned to the writer of the opinion of the Court's Division.

ANTONIO T. CARPIO
Associate Justice
Chairperson, Second Division

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution and the Division Chairperson's Attestation, I
certify that the conclusions in the above Decision had been reached in consultation before the case
was assigned to the writer 'of the opinion of the Court's Division.
MARIA LOURDES P.A. SERENO
Chief Justice

G.R. Nos. 115236-37 January 16, 2003

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
BRYAN FERDINAND DY y LA MADRID and GIOVAN BERNARDINO y GARCIA, accused-
appellants.

RESOLUTION

YNARES-SANTIAGO, J.:

Accused-appellants Bryan Ferdinand Dy and Giovan Bernardino filed separate motions for
reconsideration of our Decision1 which affirmed the judgment of the Regional Trial Court of Baguio
City, Branch 5, finding them guilty of rape and acts of lasciviousness.

In his motion, accused-appellant Dy submits that our decision should have been merely
recommendatory, in view of the provision of Article VIII, Section 5 (2) (d) of the Constitution which
provides that the Supreme Court sitting en banc has jurisdiction over "[a]ll criminal cases in which
the penalty imposed is reclusion perpetua or higher." He contends that Supreme Court Circular No.
2-89 which provides that death penalty cases shall be within the jurisdiction of the Court en banc is
incongruous and incompatible with the aforementioned constitutional provision.

The contention is misleading. Under Article VIII, Section 4 (1) of the Constitution, the Supreme Court
may sit en banc or, in its discretion, in divisions of three, five, or seven Members. At present, it is
made up of three divisions. However, the divisions of the Supreme Court are not to be considered as
separate and distinct courts. Actions considered in any of these divisions and decisions rendered
therein are, in effect, by the same Tribunal. The divisions are not to be considered as separate and
distinct courts, but as divisions of one and the same court.2

Accused-appellant Dy further contends that: (1) the sexual intercourse between him and
complainant Mobley was consensual; (2) there is no evidence of rape except for Mobley’s bare
claim; (3) there is no conclusive evidence that Mobley and Tennican were drugged which caused
them to black out and become unaware of what was happening to them; (4) Bernardino did not
commit acts of lasciviousness; and (5) there is no conclusive proof of conspiracy between the two
accused-appellants.

The issues raised by accused-appellant Dy have been exhaustively considered and discussed in our
Decision and there is no need to reassess them or reconsider our stand.
Bernardino, on the other hand, alleges that: (1) accused-appellants were not accorded their right to a
fair, unbiased resolution of the preliminary investigation when the reviewing prosecutor unilaterally
reversed the findings of the three-man investigating panel that recommended the dismissal of the
charges against them; (2) the right to be arraigned is not among the rights that are susceptible to
waiver or estoppel, thus the lack of arraignment cannot be deemed cured by their participation in the
trial; (3) the erroneous decision of the trial judge to hold an expedited trial effectively deprived them
of proper preparation for and presentation of an adequate defense; (4) the evidence presented by
the prosecution was insufficient to establish his guilt with moral certainty; (5) the trial court
erroneously allowed accused-appellant Dy to remain at liberty even after promulgation of judgment
on the strength of the same bail bond posted by him during trial, while denying accused-appellant
Bernardino’s petition for bail; (6) the legal doctrines cited in our Decision do not apply in this case
since the premises upon which these principles lie are not present herein; and (7) as a matter of
equity, the significant delay in the resolution of this appeal should at least merit our attention to the
peculiar effects of the decision in this case particularly as regards accused-appellant Bernardino.

We find that the points raised by Bernardino on matters of substance and procedure have likewise
been extensively discussed in our Decision.

However, two points raised by accused-appellant Bernardino must be clarified.

First, the allegation that there was no valid arraignment is misleading and betrays a lack of
comprehension regarding the procedural requirements of arraignment in the context of the
constitutional right of an accused to be informed of the nature and cause of the accusation against
him. In our decision, we stated:

Concededly, the right to be informed of the nature and cause of the accusation may not be
waived. Indeed, the defense may waive their right to enter a plea and let the court enter a
plea of "not guilty" in their behalf. However, it becomes altogether a different matter if the
accused themselves refuse to be informed of the nature and cause of the accusation against
them. The defense can not hold hostage the court by their refusal to the reading of the
complaint or information.

Second, Bernardino argues that the circumstances obtaining in the case at bar are not on all fours
with the doctrine that findings of fact of the trial court are best left undisturbed on appeal; and that no
woman would concoct a story of defloration, allow examination of her private parts and subject
herself to trial and ridicule if she has not, in truth, been a victim of rape and impelled to seek justice
for the wrong done to her. He claims that we should have disregarded the findings of the trial court
for the reason that the haste with which the trial was conducted necessarily casts a cloud of doubt
over the validity of the proceedings; that the conflicting findings of the investigating panel and the
reviewing prosecutor should have alerted us to varying interpretations of the facts at hand; and that
there was no independent proof that complainant was drugged aside from self-serving documents
relied upon by medical experts who did not examine complainant.

The records show that the proceedings were not hastily conducted. While the proceedings might
have been of short duration than usual, they were nevertheless conducted with due regard to the
right of each party to due process. The trial court should even be commended for conducting a
speedy trial, which should be the rule, rather than the exception. What is of prime consideration is
not the speed by which the trial was conducted but the manner by which the procedural and
substantial requirements were complied with. The records show that these requirements were
adequately met.
We do not see any irregularity in the conflicting findings of the investigating panel vis-à-vis those of
the reviewing prosecutor. It is the prerogative of the reviewing prosecutor to overturn the findings of
the investigating panel depending on how he appreciates the evidence.

Bernardino further claims that the principle that no woman would concoct a story of defloration is
largely an interpretation rooted in the Philippine context where in a number of cases, we have taken
judicial notice of the Filipina’s inbred modesty and shyness and her antipathy in publicly airing acts
which blemish her honor and virtue. We do not agree. The outrage and cry for justice of rape victims
are universal and are not limited to or the exclusive prerogatives of any one race or culture.

IN VIEW OF THE FOREGOING, the Motions for Reconsideration filed by accused-appellants Bryan
Ferdinand Dy and Giovan Bernardino are DENIED WITH FINALITY.

Let a warrant of arrest be issued against accused-appellant Bryan Ferdinand Dy. In this connection,
the National Bureau of Investigation is DIRECTED to serve the warrant of arrest against him, to
make a report thereon and submit the same to this Court within five (5) days after serving the same.

SO ORDERED.

G.R. No. L-80845 March 14, 1994

PEOPLE OF THE PHILIPPINES, petitioner,

vs.
HON. ERNESTO M. MENDOZA, Presiding Judge, Regional Trial Court of Malaybalay,
Bukidnon, Branch 10, and JUAN MAGALOP y SALVACION, respondents.

The Solicitor General for petitioner.

Public Attorney's Office for private respondent.

BELLOSILLO, J.:

This is a petition for certiorari and mandamus filed by the Office of the Provincial Fiscal (now
Provincial Prosecutor) of Malaybalay, Bukidnon, in behalf of the People of the Philippines, assailing
the judgment of respondent Judge Ernesto M. Mendoza in Crim. Case No. 4264 acquitting accused
Juan Magalop y Salvacion, private respondent herein, of the crime of robbery with force upon things
notwithstanding his plea of guilt. Petitioner prays that respondent Judge be ordered to reverse his
judgment exonerating Magalop and, instead, to impose upon him the proper penalty for the offense
to which he pleaded guilty.

The evidence discloses that on 20 January 1987, the storeroom of the Bukidnon National School of
Home Industries (BNSHI) in Maramag, Bukidnon, was ransacked. After an on-the-spot investigation,
the police found themselves at a loss as to the identity of the culprit or culprits. The value of the
missing articles was estimated at P15,298.15.

Eventually, responsibility for the robbery with force upon things was laid on accused Juan Magalop y
Salvacion, Petronilo Fernandez y Cano and Ricarte Dahilan alias Ricky. All three (3) were
represented by District Citizens Attorney Isidro L. Caracol. At the arraignment on 23 June 1987,
Magalop pleaded "guilty" while Fernandez pleaded "not guilty." The arraignment of Dahilan was
deferred as he was "not mentally well."

Instead of pronouncing judgment on Magalop, the court a quo conducted trial. The prosecution
presented Pat. Jakosalem, INP, who investigated the break-in, as well as a clerk and a storekeeper
of the BNSHI. The prosecution likewise offered in evidence colored pictures of the ransacked
storeroom, a pair of ordinary pliers colored blue, a pair of long-nose pliers colored red, and a coping
saw. The last three items were said to have been recovered by the police.

The defense having opted to waive its right to present evidence, the case was submitted for
decision.

On 8 October 1987, respondent Judge acquitted accused Fernandez as well as Magalop who earlier
pleaded guilty to the charge. The two-paged, single-spaced judgment is quoted hereunder for careful
scrutiny and better appreciation. Thus —

This is a case where three accused were allegedly responsible for forcibly taking
things from the storeroom of the Bukidnon National School of Home Industries.

It was established by the prosecution that the storeroom of the Bukidnon National
School of Home Industries at Maramag, Bukidnon, on January 20, 1987 was
ransacked as shown by the testimonies of the policemen and by the keepers of the
storeroom. After on the spot investigation, the policemen were at a loss to identify the
person or persons responsible thereof.

Except for the accused Juan Magalop who pleaded guilty, the identity of the
perpetrators remained a problem. Accused Ricarte Dahilan is mentally deranged;
hence the trial was separate for accused Petronilo Fernandez and Juan Magalop.

As shown by the evidence of the prosecution, some of the stolen things were in the
possession of a certain Babie Tan, consisting of two pliers and a saw, and these
were all allegedly sold to said Babie Tan who refused to testify on the matter.

The evidence of the prosecution failed to prove that the three accused were
responsible for stealing these three articles or tools.

Although Juan Magalop pleaded guilty, it was not shown who (how?) they conspired
and helped each other in the commission of the crime charged. To the Court, the
plea of Juan Magalop was not intelligently done. In the course of the proceedings, it
was not established how Juan Magalop and Petronilo Fernandez participated in the
looting. No evidence was introduced to show that the accused sold the stolen things
to Babie Tan, which the prosecution could have proved to show that the possessors
of the stolen things could have been identified as the thief or thieves; hence, the
prosecution utterly failed to prove the guilt of the accused beyond doubt (emphasis
supplied).
 PREMISES CONSIDERED, the accused Petronilo Fernandez and Juan Magalop are
hereby ACQUITTED. With respect to Ricarte Dahilan, let this case be held in
abeyance until he is mentally well.1

Its motion for reconsideration having been denied, petitioner is now before us contending that the
decision of 8 October 1987 and the order of 4 November 1987 denying reconsideration are "purely
capricious and arbitrary, made for no proper reason at all and rendered without legal authority
whatsoever, thereby amounting to lack of jurisdiction and/or grave abuse of discretion, and curtailed
the power of the state to punish criminals."2

Petitioner submits that the accused Magalop, who was assisted by counsel, had voluntarily,
spontaneously and intelligently pleaded guilty to the crime of robbery with force upon things. Thus,
the trial court had no alternative but to pronounce judgment and impose the proper penalty.

Parenthetically, petitioner interposed no objection to the acquittal of accused Fernandez.

It may be stressed that the petition is defective since it was filed by the Provincial Fiscal and
Assistant Provincial Fiscal of Malaybalay, Bukidnon, and not by the Solicitor General. We have
already ruled in a number of cases that only the Solicitor General may bring or defend actions on
behalf of the People of the Philippines once such actions are brought before the Court of Appeals or
the Supreme Court.3 As a matter of fact, in his Manifestation filed with this Court on 8 June 1989, the
Solicitor General steered away from the case, explaining that the petition was filed directly by the
Provincial Fiscal of Malaybalay, Bukidnon, "without coursing it through the OSG," as a consequence
of which it should be the fiscal who should submit the required pleadings.

Nonetheless, even if we overlook this procedural lapse and treat the case on the merits, the petition
should, just the same, be dismissed.

Petitioner would have this Court set aside the acquittal of Magalop, insisting that with his voluntary
plea of guilt, the trial court had no other recourse but to pronounce judgment and impose the proper
penalty.

The essence of a plea of guilty is that the accused admits his guilt freely, voluntarily and with full
knowledge and understanding of the precise nature of the crime charged in the information as well
as the consequences of his plea.4 It is an unconditional admission of guilt with respect to the offense
charged. It forecloses the right to defend oneself from said charge and leaves the court with no
alternative but to impose the penalty fixed by law under the circumstances.5 Thus, under the 1985
New Rules on Criminal Procedure, as amended, when the accused pleads guilty to a non-capital
offense, the court may receive evidence from the parties to determine the penalty to be imposed.6

This rule is at most directory. It will certainly be a clear abuse of discretion on the part of the judge to
persist in holding the accused bound to his admission of guilt and sentencing him accordingly when
the totality of the evidence points to his acquittal. There is no rule which provides that simply
because the accused pleaded guilty to the charge that his conviction automatically follows.
Additional evidence independent of the plea may be considered to convince the judge that it was
intelligently made.

Here it is evident, even from the start, that the case of the prosecution against the three (3) accused
was virtually non-existent as the asported articles were found in the possession of a certain Babie
Tan and yet, quite inexplicably, the prosecution did not summon him to the witness stand. Babie Tan
could have positively identified those who sold him the stolen articles if called to testify. Or, he could
very well have been the perpetrator of the crime himself. In the absence of an explanation of how
one has come into possession of stolen effects, the possessor is presumed to be the author of the
crime of robbery.7

Indeed, not even the testimonies and the mute exhibits introduced during the trial could breathe life
into the moribund state of the case for the prosecution. While the loss of articles in the storeroom of
the BNSHI was established, there was nothing, independent of the acknowledgment of guilt, which
could link accused Magalop to the robbery. As the trial court succinctly put it, "the plea of Juan
Magalop was not intelligently done."

Admittedly, the procedure followed by respondent judge was not the normal course, as the better
procedure would have been that set forth in People v. Padernal, 8 where the court sustained the
exoneration of the accused notwithstanding his plea of guilt. In that case, in view of the exculpatory
testimony of the accused who had earlier pleaded guilty to the charge of homicide, the trial court
correctly considered the plea as withdrawn and, in its place, ordered a plea of not guilty entered.
This was not done by respondent judge. For even after finding that the plea of Magalop was not
intelligently made, Judge Mendoza proceeded to pass judgment without requiring Magalop to plead
anew to the charge. Applying the principle laid down in the Padernal case, it can fairly be concluded
that there was no standing plea at the time the court rendered its judgment of acquittal hence said
acquittal was a nullity.

Be that as it may, however, in the interest of substantial justice, we cannot allow such procedural
error to prevail over the constitutional right of the accused to be presumed innocent until the contrary
is proved. In fairness to Magalop, outside of his improvident plea of guilt, there is absolutely no
evidence against him — presented or forthcoming. From the evidence of the prosecution, there is no
way by which accused Magalop could have been implicated. It is for this fundamental reason that,
even pro hac vice, his acquittal must be sustained. Interdum even it ut exceptio quae prima facie
justa videtur, tamen inique noceat. It may sometime happen that a plea which on its face seem just,
nevertheless is injurious and inequitable. It is so in this instance.

WHEREFORE, in view of the foregoing, the petition is DISMISSED for lack of merit and the acquittal
of the accused-respondent JUAN MAGALOP Y SALVACION is sustained.

SO ORDERED.

Cruz J., Davide, Jr., Quiason and Kapunan, JJ., concur.

G.R. No. L-26734 September 5, 1967

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellant,

vs.
PANFILO PADERNAL, defendant-appellee.
Office of the Solicitor General for plaintiff-appellant.
Benjamin Pongas for defendant-appellee.

BENGZON, J.P., J.:

The present case is an appeal by the prosecution from a decision acquitting the accused. At issue is
the purely legal question of whether the principle of double jeopardy bars this appeal.

The facts are fully and well recounted in the resolution of the Court of Appeals of September 13,
1966, certifying the appeal to us, as follows:

On January 4, 1961, Panfilo Padernal was charged by Asst. Provincial Fiscal Eleodoro G.
Alvero in the CFI of Ormoc City with the crime of homicide in connection with the death of
Brigido Rodila thru stabbing which took place in the Municipality of Kananga, Province of
Leyte, on December 3, 1960. The witnesses listed in the Information are: (1) Felicidad
Rodila, sister of the deceased; (2) Nemesio Ouano, Municipal Policeman of Kananga; (3)
Sanitary Inspector Joaquin Demillo; and (4) Municipal Judge Demetrio D. Sarit of Kananga.
On January 12, 1961, the CFI presided over by Hon. Numeriano G. Estenzo reduced the bail
bond of accused Panfilo Padernal to P8,000.00 and set the arraignment and trial for January
26, 1961 at 7:30 A.M. with notice to Fiscal Eleodoro G. Alvero and to defense counsel Atty.
Benjamin T. Pongos (See Minutes, Roll 6).

When the case was called for arraignment and trial on January 26, 1961, the transcript
shows the following incidents:

"Atty. Pongos (defense counsel):

The accused in this case, Your Honor, is willing to enter the plea of guilty to the crime
charged in the Information. 1awphîl.nèt

"Court:

"Arraign the accused.

(The Court interpreter, Mr. Edilberto Maglasang, read the information to the
accused).

"Court Interpreter: (To the accused)

"Q Are you guilty or not guilty?

"Accused:

"I plead guilty, Your Honor.

"Atty. Pongos (defense counsel):

 "Your Honor, please, before the imposition of the penalty, I invoke the presence of
the following mitigating circumstances in favor of the accused for the imposition of
the penalty, to wit: (1) Incomplete self-defense; (2) lack of education and instruction;
(3) voluntary surrender; and (4) spontaneous plea of guilty.

"The accused, Your Honor was wounded in the right arm and in the head by the bolo
belonging to the deceased and this occurred during the scuffle in order to wrest the
bolo that was in the possession of the deceased who was responsible for the
unlawful aggression. When the accused wrested the bolo from the deceased, Your
Honor, and in order to defend himself, he struck the deceased who was then
advancing notwithstanding the fact that the bolo was already in the possession of the
accused. So, we pray that the mitigating circumstance of incomplete self-defense be
considered in favor of the accused for the imposition of the penalty.

"Court:

"What do you say fiscal?

"Fiscal:

"As regards the voluntary surrender, Your Honor, there is a warrant of arrest issued
without any showing that the accused surrendered voluntarily. The record does not
indubitably show there was unlawful aggression on the part of the deceased.

"Court:

(To Atty. Pongos)

"You present your evidence to prove the mitigating circumstances of incomplete self-
defense and voluntary surrender. (tsn 1-3)."

xxx xxx xxx

Thereupon in compliance with the trial court's directive, defense counsel put on the witness stand on
January 26, 1961, Municipal Policeman Nemesio Ouano, whose name is listed in the Information as
a prosecution witness and whose brief testimony was to the effect "that this accused killed Brigido
Rodila" and "he surrendered to the Police Department of Kananga, Leyte, on the very night of the
incident" (tsn 3-4). Evidently, the purpose of defense counsel was to prove voluntary surrender. After
the defense was through with the testimony of Policeman Nemesio Ouano, the prosecution placed
on the witness-box Felicidad Rodila, sister of the deceased Brigido, who testified that her brother
was stabbed three times by accused Panfilo Padernal with a bolo at about 7:30 in the evening (tsn
4-6). Asked whether the deceased was armed, Felicidad replied she could not tell, her exact
testimony being "I do not know whether he had a weapon, but at the time of his death I was present"
(tsn 7). She further testified she did not know the cause of the fight and who provoked it (tsn 8). After
Felicidad Rodila as prosecution witness had testified, the trial Court (addressing the defense
counsel) said: "You present the accused" (tsn 9). As a result, accused Panfilo Padernal took the
stand and testified as follows to quote:

(1) "I betted with Brigido Rodila in the amount of P.50 in the hantak game. When I won I
asked from him the money, but immediately hacked me" (tsn 10).
 (2) "At first I was hit on the head; he stabbed me again and I was hit on my right forearm"
(tsn 10).

(3) "I took hold of his bolo and I was able to wrest it from him" (tsn 10).

(4) "I did not run, because I was close to the fence of the house" (tsn 10).

(5) "I have no more chance of running away because I was already close to the fence" (tsn
12).

(6) "That is the bolo I wrested and I used in killing the deceased" (tsn 13).

(7) "I was squatting when the victim slashed me" (tsn 13).

(8) "Because I exerted efforts to wrest the bolo from his possession because I was already
hit" (tsn 15).

From the above quotations taken from the transcript, it will be noted that on January 26, 1961, the
trial (which was for the purpose of proving incomplete self-defense) started with the testimony of
Policeman Nemesio Ouano, as a defense witness, followed by Felicidad Rodila as a prosecution
witness, and ended with the testimony of accused Panfilo Padernal. For lack of time, however, the
trial was reset for the following day, January 27, 1961, at 7:30 with notice to Atty. B. Pongos and
Fiscal Alvero in open court (See Minutes, Roll 4). When the case was called for continuation on
January 27, 1961, upon realizing from accused's testimony given on the day before, January 26,
1961, that he (accused) was invoking complete self-defense, what the trial Judge did was to make
the following order:

"Let a plea of not guilty be entered by the accused and let it be tried on the merits on
January 31, 1961 at 8:30 A.M. with notice to Atty. B. Pongos and Fiscal Alvero and also Sgt.
Nemesio Ouano, in open court (See Minutes on January 27, 1961, Roll 5)."

As directed by the trial court, the case was called for trial on the merits on January 31, 1961, with the
same appearance (tsn 16). The transcript discloses the following:

"Court:

"Do you submit the case?

"Fiscal Alvero:

"We will submit the case, Your Honor, without presenting any further evidence.

"Atty. Pongos (defense counsel):

"We submit, Your Honor, the case.

"Court:

"The evidence presented by the prosecution and the defense during the time the case was
heard for the purpose of determining presence of incomplete self-defense shall
 be considered as evidence for the purpose of determining the guilt of the accused, by virtue
of which this case shall be deemed submitted for decision." (tsn 16-17).

"Atty. Pongos (defense):

"We submit, Your Honor. We adopt the testimony of the accused.

"Fiscal Alvero:

"We submit, Your Honor. (tsn 17)."

Right after the above statements had been given by the prosecution and the defense, the trial Judge
dictated in open court on January 31, 1961, a decision acquitting accused Panfilo Padernal of the
crime of homicide with which he was charged "on the ground of reasonable doubt" (tsn 17-19).
Thereafter, Fiscal Alvero verbally moved for a reconsideration alleging that the accused has entered
a plea of guilty which is "sufficient to sustain conviction of the offense charged in the Information
without the introduction of further evidence, the accused himself has supplied the necessary proof of
his guilt and which closes the right of the accused to defend himself and leaves the Court with no
alternative but to impose the penalty prescribed by law" (tsn 19-20). The defense counsel, on the
other hand, argued "there was a trial on the merits in this case, Your Honor, the evidence presented
in the previous hearing to prove the privileged mitigating circumstance of incomplete self-defense
was the same evidence that were presented during the trial on the merits" (tsn 20). In denying the
prosecution's oral motion for reconsideration, the trial Judge draws attention to the fact that "a plea
of not guilty has been ordered entered for the accused and that this cases be tried on the merits.
Assistant Provincial Fiscal Alvero petitioned this Court for the postponement of the trial of this case
until today (Jan. 31, 1961). Said motion for postponement was granted by the Court. When this case
was called for hearing today (Jan. 31, 1961), both parties submitted that whatever evidence had
been presented by both the prosecution and the defense during the hearing on January 27, 1961
(sic Jan. 26) would be considered in the decision of this case, to avoid any repetition" (see Denial
Order, tsn 21). The trial Judge also invoked double jeopardy, "if the decision will be modified or
amended" (tsn 22).

Appellants' contention is that defendant, having pleaded guilty, cannot be acquitted and that there
was no trial on the merits but only a hearing to establish mitigating circumstances. In People v.
Balisacan, L-26376, August 31, 1966, this Court ruled that where the accused pleads guilty and
proceeds, in a hearing to prove mitigating circumstance of incomplete self-defense, to state facts
constituting full and complete self-defense, the trial judge should declare his plea of guilty thereby
withdrawn, order that a plea of not guilty be entered and proceed to trial on the merits. For failure, in
the Balisacan case, to follow this procedure, We ruled therein that there was deprivation of day in
court against the prosecution. An acquittal on the merits thus made without the requisite trial
providing sufficient opportunity to the prosecution to present evidence to prove the guilt of the
accused, was held improper. And in said Balisacan case, We held that the right to appeal existed in
favor of the prosecution because there was in effect no plea, since the testimony of the defendant
operated to withdraw his plea of guilty and the trial court failed to order that a plea of not guilty be
entered in its place; and because there was no due process in proceeding to dispose of the case on
the merits without trial on the merits. And thus, without a standing plea, and without due process,
double jeopardy was not attendant to bar the appeal therein.

Not so are the facts in this case. As stated, the court a quo caused a plea of not guilty to be entered
in place of the plea of guilty considered withdrawn by the exculpatory testimony of the accused. And
the trial judge re-set the case for hearing on the merits four days thereafter, giving the prosecution
and the defense sufficient opportunity to prepare for such trial on the merits. The fact that on the
date of the trial itself, the prosecution and the defense chose to adopt the testimonies adduced
during the previous hearing as their evidence on the merits, to save the trouble of re-taking them,
does not mean there was no trial on the merits. The prosecution and the defense simply adopted the
testimonies already taken as the testimonies for the trial on the merits. Due process of law was
observed and both parties were given full and adequate opportunity to prove their respective case.
Accordingly, the case was duly submitted for decision upon evidence on the merits after the requisite
trial providing fair opportunity to the prosecution and the defense to adduce evidence in chief and
rebuttal evidence. The decision of acquittal, therefore, can no longer be reviewed herein, since the
appeal is barred by the principle of double jeopardy, the requisites, among others, of a plea and due
process, not to mention trial on the merits, being attendant herein.

WHEREFORE, the present appeal is hereby dismissed for being barred by the principle of double
jeopardy. No costs. So ordered.

G.R. Nos. 163972-77 March 28, 2008

JOSELITO RANIERO J. DAAN, Petitioner,

vs.
THE HON. SANDIGANBAYAN Respondent.

DECISION

AUSTRIA-MARTINEZ, J.:

Joselito Raniero J. Daan (petitioner), one of the accused in Criminal Cases Nos. 24167-24170,
24195-24196,1 questions the denial by the Sandiganbayan of his plea bargaining proposal.

The antecedents facts are laid down by Sandiganbayan in its Resolution dated March 25, 2004, as
follows:

Said accused,2 together with accused Benedicto E. Kuizon, were charged before this Court for three
counts of malversation of public funds involving the sums of ₱3,293.00, ₱1,869.00, and ₱13,528.00,
respectively, which they purportedly tried to conceal by falsifying the time book and payrolls for given
period making it appear that some laborers worked on the construction of the new municipal hall
building of Bato, Leyte and collected their respective salaries thereon when, in truth and in fact, they
did not. Thus, in addition to the charge for malversation, the accused were also indicted before this
Court for three counts of falsification of public document by a public officer or employee.

In the falsification cases, the accused offered to withdraw their plea of "not guilty" and substitute the
same with a plea of "guilty", provided, the mitigating circumstances of confession or plea of guilt and
voluntary surrender will be appreciated in their favor. In the alternative, if such proposal is not
acceptable, said accused proposed instead to substitute their plea of "not guilty" to the crime of
falsification of public document by a public officer or employee with a plea of "guilty", but to the
lesser crime of falsification of a public document by a private individual. On the other hand, in the
malversation cases, the accused offered to substitute their plea of "not guilty" thereto with a plea of
"guilty", but to the lesser crime of failure of an accountable officer to render accounts.

Insofar as the falsification cases are concerned, the prosecution found as acceptable the proposal of
the accused to plead "guilty" to the lesser crime of falsification of public document by a private
individual. The prosecution explained:

"With respect to the falsification cases earlier mentioned, it appears that the act of the accused in
pleading guilty for a lesser offense of falsification by a private individual defined and penalized under
Article 172 of the Revised Penal code will strengthen our cases against the principal accused,
Municipal Mayor Benedicto Kuizon, who appears to be the master mind of these criminal acts."

Insofar as the malversation cases are concerned, the prosecution was likewise amenable to the offer
of said accused to plead "guilty" to the lesser crime of failure of an accountable officer to render
accounts because:

"x x x JOSELITO RANIERO J. DAAN has already restituted the total amount of ₱18,860.00 as per
official receipt issued by the provincial government of Leyte dated February 26, 2002. In short, the
damage caused to the government has already been restituted x x x.3

The Sandiganbayan, in the herein assailed Resolution,4 dated March 25, 2004, denied petitioner’s
Motion to Plea Bargain, despite favorable recommendation by the prosecution, on the main ground
that no cogent reason was presented to justify its approval.5

The Sandiganbayan likewise denied petitioner's Motion for Reconsideration in a Resolution dated
May 31, 2004.

This compelled petitioner to file the present case for certiorari and prohibition with prayer for the
issuance of a temporary restraining order and/ or writ of preliminary injunction under Rule 65 of the
Rules of Court.

Petitioner argues that the Sandiganbayan committed grave abuse of discretion in denying his plea
bargaining offer on the following grounds: first, petitioner is not an accountable officer and he merely
affixed his signature on the payrolls on a "routinary basis," negating any criminal intent; and that the
amount involved is only ₱18,860.00, which he already restituted.6

The petition is meritorious.

Plea bargaining in criminal cases is a process whereby the accused and the prosecution work out a
mutually satisfactory disposition of the case subject to court approval. It usually involves the
defendant's pleading guilty to a lesser offense or to only one or some of the counts of a multi-count
indictment in return for a lighter sentence than that for the graver charge.7

Plea bargaining is authorized under Section 2, Rule 116 of the Revised Rules of Criminal Procedure,
to wit:

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)

Ordinarily, plea bargaining is made during the pre-trial stage of the proceedings. Sections 1 and 2,
Rule 118 of the Rules of Court, require plea bargaining to be considered by the trial court at the pre-
trial conference,8 viz:

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. Pre-trial agreement. – All agreements or admissions made or entered during the pre-trial
conference shall be reduced in writing and signed by the accused and counsel, otherwise, they
cannot be used against the accused. The agreements covering the matters referred to in section 1 of
this Rule shall be approved by the court. (Emphasis supplied)

But it may also be made during the trial proper and even after the prosecution has finished
presenting its evidence and rested its case. Thus, the Court has held that it is immaterial that plea
bargaining was not made during the pre-trial stage or that it was made only after the prosecution
already presented several witnesses.9

Section 2, Rule 116 of the Rules of Court presents the basic requisites upon which plea bargaining
may be made, i.e., that it should be with the consent of the offended party and the prosecutor,10 and
that the plea of guilt should be to a lesser offense which is necessarily included in the offense
charged. The rules however use word may in the second sentence of Section 2, denoting an
exercise of discretion upon the trial court on whether to allow the accused to make such plea.11 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.12

In People of the Philippines v. Villarama,13 the Court ruled that the acceptance of an offer to plead
guilty to a lesser offense is not demandable by the accused as a matter of right but is a matter that is
addressed entirely to the sound discretion of the trial court,14 viz:
x x x In such situation, jurisprudence has provided the trial court and the Office of the Prosecutor
with a yardstick within which their discretion may be properly exercised. Thus, in People v.
Kayanan (L-39355, May 31, 1978, 83 SCRA 437, 450), We held that the rules allow such a plea only
when the prosecution does not have sufficient evidence to establish the guilt of the crime charged. In
his concurring opinion in People v. Parohinog (G.R. No. L-47462, February 28, 1980, 96 SCRA 373,
377), then Justice Antonio Barredo explained clearly and tersely the rationale or the law:

x x x (A)fter the prosecution had already rested, the only basis on which the fiscal and the court
could rightfully act in allowing the appellant to change his former plea of not guilty to murder to guilty
to the lesser crime of homicide could be nothing more nothing less than the evidence already in the
record. The reason for this being that Section 4 of Rule 118 (now Section 2, Rule 116) under which a
plea for a lesser offense is allowed was not and could not have been intended as a procedure for
compromise, much less bargaining.15 (Emphasis supplied)

However, Villarama involved plea bargaining after the prosecution had already rested its case.

As regards plea bargaining during the pre-trial stage, as in the present case, the trial court's exercise
of its discretion should neither be arbitrary nor should it amount to a capricious and whimsical
exercise of discretion. Grave abuse of discretion implies such capricious and whimsical exercise of
judgment as is equivalent to lack of jurisdiction or, in other words, where the power is exercised in an
arbitrary manner by reason of passion, prejudice, or personal hostility; and it must be so patent or
gross as to amount to an evasion of a positive duty or to a virtual refusal to perform the duty
enjoined by law, or to act at all in contemplation of law.16

In the present case, the Sandiganbayan rejected petitioner's plea offer on the ground that petitioner
and the prosecution failed to demonstrate that the proposal would redound to the benefit of the
public. The Sandiganbayan believes that approving the proposal would "only serve to trivialize the
seriousness of the charges against them and send the wrong signal to potential grafters in public
office that the penalties they are likely to face would be lighter than what their criminal acts would
have merited or that the economic benefits they are likely to derive from their criminal activities far
outweigh the risks they face in committing them; thus, setting to naught the deterrent value of the
laws intended to curb graft and corruption in government."17 1avv phi 1

Apparently, the Sandiganbayan has proffered valid reasons in rejecting petitioner's plea offer.
However, subsequent events and higher interests of justice and fair play dictate that petitioner's plea
offer should be accepted. The present case calls for the judicious exercise of this Court's equity
jurisdiction -

Equity as the complement of legal jurisdiction seeks to reach and do complete justice where courts
of law, through the inflexibility of their rules and want of power to adapt their judgments to the special
circumstances of cases, are incompetent so to do. Equity regards the spirit of and not the letter, the
intent and not the form, the substance rather than the circumstance, as it is variously expressed by
different courts.18

and of its power of control and supervision over the proceedings of lower courts,19 in order to afford
equal justice to petitioner.

In People of the Philippines v. Estrada,20 the Sandiganbayan, in its Resolution dated March 14,
2007, approved the Plea Bargaining Agreement entered into by the prosecution and one of the
accused, Charlie "Atong" Ang. The agreement provided that the accused undertakes to assist in the
prosecution of the case and promises to return the amount of ₱25,000,000.00. In approving the Plea
Bargaining Agreement, the Sandiganbayan took into consideration the timeliness of the plea
bargaining and whether the agreement complied with the requirements of Section 2, Rule 116 of the
Rules of Court. The Sandigabayan noted that the accused had already withdrawn his earlier plea of
"not guilty"; and that the prosecution consented to the plea of guilt to a lesser offense; and the lesser
offense, which is Corruption of Public Officials in relation to Indirect Bribery, is necessarily included
in the offense charged, which is Plunder.21

The Court sees no reason why the standards applied by the Sandiganbayan to Estrada should not
be applied to the present case. Records show that there was a favorable recommendation by the
Office of the Special Prosecutor to approve petitioner's motion to plea bargain. Thus, in its
Memorandum dated August 16, 2002, the Office of the Special Prosecutor rationalized:

In the cases at bar, there is no dispute that JOSELITO RANIERO J. DAAN has already restituted the
total amount of ₱18,860.00 as per official receipt issued by the provincial government of Leyte dated
February 26, 2002. In short, the damage caused to the government has already been restituted by
the accused.

There is also no dispute that accused DAAN voluntarily surrendered in the instant cases. Moreover,
the accused is also willing to plead guilty to a lesser offense which to our mind, merits consideration.

With respect to the falsification cases earlier mentioned, it appears that the act of the accused in
pleading guilty for a lesser offense of falsification by private individual defined and penalized under
Article 172 of the Revised Penal Code will strengthen our cases against the principal accused, the
Municipal Mayor Benedicto Kuizon, who appears to be the master mind of these criminal acts. After
all, the movants herein JOSELITO RANIERO J. DAAN was merely designated as draftsman detailed
as foreman/timekeeper of the Municipality of Bato, Leyte.22

Moreover, the lesser offenses of Falsification by Private Individuals and Failure to Render Account
by an Accountable Officer are necessarily included in the crimes of Falsification of Public Documents
and Malversation of Public Funds, respectively, with which petitioner was originally charged.

Under Article 171, paragraph 4 of the Revised Penal Code, for the crime of Falsification of Public
Documents through an untruthful narration of facts to be established, the following elements must
concur: (a) the offender makes in a document untruthful statements in a narration of facts; (b) the
offender has a legal obligation to disclose the truth of the facts narrated; (c) the facts narrated by the
offender are absolutely false; and (d) the perversion of truth in the narration of facts was made with
the wrongful intent of injuring a third person.23

On the other hand, Falsification by Private Individuals penalized under Article 172, paragraph 1 of
the Revised Penal Code has the following elements: (a) the offender is a private individual or a
public officer or employee who did not take advantage of his official position; (b) the offender
committed any of the acts of falsification enumerated under Article 171 of the Revised Penal Code;
and (c) the falsification was committed in a public or official or commercial document.24

As regards the crime of Malversation of Public Funds defined and penalized under Article 217 of the
Revised Penal Code, with which petitioner was also charged, the elements are as follows: (a) the
offender is a public officer; (b) he has custody or control of funds or property by reason of the duties
of his office; (c) the funds or property involved are public funds or property for which he is
accountable; and (d) he has appropriated, taken or misappropriated, or has consented to, or through
abandonment or negligence permitted, the taking by another person of such funds or
property.25 Article 217 also provides that the failure of the public officer to have duly forthcoming
such public funds or property, upon demand by a duly authorized officer, "shall be prima
facie evidence that he has put such missing funds or property to personal use." In this regard, it has
been ruled that once such presumption is rebutted, then it is completely destroyed; in fact, the
presumption is never deemed to have existed at all.26

Meanwhile, under Article 218 of the Revised Penal Code, Failure to Render Account by an
Accountable Officer, the lesser offense which petitioner seeks to plead guilty of, the following
elements must concur: (a) the offender is a public officer; (b) the offender must be an accountable
officer for public funds or property; (c) the offender is required by law or regulation to render
accounts to the COA or to a provincial auditor; and (d) the offender fails to render an account for a
period of two months after such accounts should be rendered.27

Section 5, Rule 120 of the Rules of Court states when an offense includes or is included in the other,
to wit:

SEC. 5. When an offense includes or is included in another. — An offense charged necessarily

includes the offense proved when some of the essential elements or ingredients of the former, as
alleged in the complaint or information, constitute the latter. And an offense charged is necessarily
included in the offense proved, when the essential ingredients of the former constitute or form part of
those constituting the latter.

An offense may be said to necessarily include another when some of the essential elements or
ingredients of the former as alleged in the complaint or information constitute the latter. And
vice versa, an offense may be said to be necessarily included in another when the essential
ingredients of the former constitute or form part of those constituting the latter.28

In this case, the allegations in the Informations filed against petitioner are sufficient to hold petitioner
liable for the lesser offenses. Thus, in the charge for Falsification of Public Documents, petitioner
may plead guilty to the lesser offense of Falsification by Private Individuals inasmuch as it does not
appear that petitioner took advantage of his official position in allegedly falsifying the timebook and
payroll of the Municipality of Bato, Leyte. In the same vein, with regard to the crime of Malversation
of Public Funds, while the Informations contain allegations which make out a case for Malversation
against petitioner, nevertheless, absent the element of conversion, theoretically, petitioner may still
be held liable for Failure to Render Account by an Accountable Officer if it is shown that the failure to
render account was in violation of a law or regulation that requires him to render such an accounting
within the prescribed period.

Given, therefore, that some of the essential elements of offenses charged in this case likewise
constitute the lesser offenses, then petitioner may plead guilty to such lesser offenses.

Finally, as propounded by petitioner, indeed, he is not an accountable officer in that the nature of his
duty as foreman/timekeeper does not permit or require possession or custody of local government
funds,29 not to mention that petitioner has already restituted the amount of ₱18,860.00 involved in
this case. Unlike Estrada which involves a crime punishable by reclusion perpetua to death,30 and a
whopping ₱25,000,000.00 taken from the public coffers, this case tremendously pales in
comparison.

Under the peculiar circumstances of the present case, where gross inequity will result in a
discriminatory dispensation of justice, the Court will not hesitate to intervene in order to equalize the
imbalance.

WHEREFORE, the petition is GRANTED. The Resolutions dated March 25, 2004 and May 31, 2004
are SET ASIDE. The Sandiganbayan is hereby ORDERED to grant petitioner's Motion to Plea
Bargain. Let records of this case be REMANDED to the Sandiganbayan for further proceedings in
accordance with this Decision.

SO ORDERED.

G.R. No. 196231 January 28, 2014

EMILIO A. GONZALES III, Petitioner,

vs.
OFFICE OF THE PRESIDENT OF THE PHILIPPINES, ACTING THROUGH AND REPRESENTED
BY EXECUTIVE SECRETARY PAQUITO N. OCHOA, JR., SENIOR DEPUTY EXECUTIVE
SECRETARY JOSE AMOR M. AMORANDO, OFFICER-IN-CHARGE - OFFICE OF THE DEPUTY
EXECUTIVE SECRETARY FOR LEGAL AFFAIRS, ATTY. RONALDO A. GERON, DIR. ROWENA
TURINGAN-SANCHEZ, AND ATTY. CARLITO D. CATAYONG, Respondents.

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

G.R. No. 196232

WENDELL BARRERAS-SULIT Petitioner,

vs.
ATTY. PAQUITO N. OCHOA, JR., IN HIS CAP A CITY AS EXECUTIVE SECRETARY, OFFICE OF
THE PRESIDENT, ATTY. DENNIS F. ORTIZ, ATTY. CARLO D. SULAY AND ATTY. FROILAN D.
MONTALBAN, JR., IN THEIR CAPACITIES AS CHAIRMAN AND MEMBERS OF OFFICE OF
MALACANANG LEGAL AFFAIRS, Respondents.

DECISION

BRION, J.:

We resolve the Office of the President's (OP 's) motion for reconsideration of our September 4, 2012
Decision1 which ruled on the petitions filed by Deputy Ombudsman Emilio Gonzales III and Special
Prosecutor Wendell Barreras-Sulit. Their petitions challenged the constitutionality of Section 8(2) of
Republic Act (RA) No. 6770.2

In the challenged Decision, the Court upheld the constitutionality of Section 8(2) of RA No. 6770 and
ruled that the President has disciplinary jurisdiction over a Deputy Ombudsman and a Special
Prosecutor. The Court, however, reversed the OP ruling that: (i) found Gonzales guilty of Gross
Neglect of Duty and Grave Misconduct constituting betrayal of public trust; and (ii) imposed on him
the penalty of dismissal.
Sulit, who had not then been dismissed and who simply sought to restrain the disciplinary
proceedings against her, solely questioned the jurisdiction of the OP to subject her to disciplinary
proceedings. The Court affirmed the continuation of the proceedings against her after upholding the
constitutionality of Section 8(2) of RA No. 6770.

The fallo of our assailed Decision reads:

WHEREFORE, in G.R. No. 196231, the decision of the Office of the President in OP Case No. 1 O-
J-460 is REVERSED and SET ASIDE. Petitioner Emilio A. Gonzales III is ordered REINSTATED
with payment of backwages corresponding to the period of suspension effective immediately, even
as the Office of the Ombudsman is directed to proceed with the investigation in connection with the
above case against petitioner. In G.R. No. 196232, We AFFIRM the continuation of OP-DC Case
No. ll-B-003 against Special Prosecutor Wendell Barreras-Sulit for alleged acts and omissions
tantamount to culpable violation of the Constitution and a betrayal of public trust, in accordance with
Section 8(2) of the Ombudsman Act of 1989.3

In view of the Court’s ruling, the OP filed the present motion for reconsideration through the Office of
the Solicitor General (OSG).

We briefly narrate the facts that preceded the filing of the petitions and the present motion for
reconsideration.

I. ANTECEDENTS

A. Gonzales’ petition (G.R. No. 196231)

a. Factual antecedents

On May 26, 2008, Christian Kalaw filed separate charges with the Philippine National Police Internal
Affairs Service (PNP-IAS) and with the Manila City Prosecutor’s Office against Manila Police District
Senior Inspector Rolando Mendoza and four others (Mendoza, et al.) for robbery, grave threat,
robbery extortion and physical injury.4

On May 29, 2008, Police Senior Superintendent Atty. Clarence Guinto filed an administrative charge
for grave misconduct with the National Police Commission (NAPOLCOM) PNP-NCRPO against
Mendoza, et al. based on the same allegations made by Kalaw before the PNP-IAS.5

On July 2, 2008, Gonzales, Deputy Ombudsman for Military and Other Law Enforcement Officers
(MOLEO), directed the NAPOLCOM to turn over the records of Mendoza’s case to his office. The
Office of the Regional Director of the NAPOLCOM duly complied on July 24, 2008.6 Mendoza, et al.
filed their position papers with Gonzales, in compliance with his Order.7

Pending Gonzales’ action on Mendoza, et al.’s case (on August 26, 2008), the Office of the City
Prosecutor of Manila City dismissed Kalaw’s complaint against Mendoza, et al. for his failure to
substantiate his allegations.8 Similarly, on October 17, 2008, the PNP-IAS recommended the
dismissal without prejudice of the administrative case against Mendoza, et al. for Kalaw’s failure to
prosecute.9

On February 16, 2009, after preparing a draft decision on Mendoza, et al.’s case, Gonzales
forwarded the entire records to the Office of then Ombudsman Merceditas Gutierrez for her
review.10 In his draft decision, Gonzales found Mendoza, et al. guilty of grave misconduct and
imposed on them the penalty of dismissal from the service.11

Mendoza, et al. received a copy of the Ombudsman’s decision that approved Gonzales’
recommendation on October 30, 2009. Mendoza, et al. filed a motion for reconsideration12 on
November 5, 2009, followed by a Supplement to the Motion for Reconsideration.13

On December 10, 2009, the MOLEO-Records Section forwarded Mendoza, et al.’s case records to
the Criminal Investigation, Prosecution and Administrative Bureau-MOLEO. On December 14, 2009,
the case was assigned to Graft Investigation and Prosecution Officer (GIPO) Dennis Garcia for
review and recommendation.14

GIPO Garcia released a draft order15 to his immediate superior, Director Eulogio S. Cecilio, for
appropriate action on April 5, 2010. Dir. Cecilio signed and forwarded the draft order to Gonzales’
office on April 27, 2010. Gonzales reviewed the draft and endorsed the order, together with the case
records, on May 6, 2010 for the final approval by the Ombudsman.16

On August 23, 2010, pending final action by the Ombudsman on Mendoza, et al.’s case, Mendoza
hijacked a tourist bus and held the 21 foreign tourists and the four Filipino tour assistants on board
as hostages. While the government exerted earnest attempts to peacefully resolve the hostage-
taking, it ended tragically, resulting in the deaths of Mendoza and several others on board the
hijacked bus.

In the aftermath, President Benigno C. Aquino III directed the Department of Justice and the
Department of Interior and Local Government to conduct a joint thorough investigation of the
incident. The two departments issued Joint Department Order No. 01-2010, creating an Incident
Investigation and Review Committee (IIRC).

In its September 16, 2010 First Report, the IIRC found the Ombudsman and Gonzales accountable
for their "gross negligence and grave misconduct in handling the case against Mendoza."17 The IIRC
stated that the Ombudsman and Gonzales’ failure to promptly resolve Mendoza’s motion for
reconsideration, "without justification and despite repeated pleas" xxx "precipitated the desperate
resort to hostage-taking."18 The IIRC recommended the referral of its findings to the OP for further
determination of possible administrative offenses and for the initiation of the proper administrative
proceedings.19

Accordingly, on October 15, 2010, Gonzales was formally charged before the OP for Gross Neglect
of Duty and/or Inefficiency in the Performance of Official Duty and for Misconduct in Office.20

b. The OP ruling

On March 31, 2011, the OP found Gonzales guilty as charged and dismissed him from the
service.21 According to the OP, "the inordinate and unjustified delay in the resolution of [Mendoza’s]
Motion for Reconsideration [‘that spanned for nine (9) long months’] xxx amounted to gross neglect
of duty" and "constituted a flagrant disregard of the Office of the Ombudsman’s own Rules of
Procedure."22

c. The Petition
Gonzales posited in his petition that the OP has no administrative disciplinary jurisdiction over a
Deputy Ombudsman. Under Section 21 of RA No. 6770, it is the Ombudsman who exercises
administrative disciplinary jurisdiction over the Deputy Ombudsman.

On the merits, Gonzales argued that his office received the draft order from GIPO Garcia on April
27, 2010. On May 6, 2010, he completed his review of the draft, approved it, and transmitted it to the
Office of the Ombudsman for final approval. Since the draft order on Mendoza’s motion for
reconsideration had to undergo different levels of preparation, review and approval, the period it took
to resolve the motion could not be unjustified, since he himself acted on the draft order only within
nine (9) calendars days from his receipt of the order.23

B. Sulit’s petition (G.R. No. 196232)

In April 2005, the Office of the Ombudsman charged Major General Carlos F. Garcia and several
others, before the Sandiganbayan, with plunder and money laundering. On May 7, 2007, Garcia filed
an Urgent Petition for Bail which the prosecution opposed. The Sandiganbayan denied Garcia's
urgent petition for bail on January 7, 2010, in view of the strength of the prosecution’s evidence
against Garcia.

On February 25, 2010, the Office of the Ombudsman, through Sulit and her prosecutorial staff,
entered into a plea bargaining agreement (Agreement) with Garcia.24 Garcia thereby agreed to: (i)
withdraw his plea of not guilty to the charge of plunder and enter a plea of guilty to the lesser offense
of indirect bribery; and (ii) withdraw his plea of not guilty to the charge of money laundering and
enter a guilty plea to the lesser offense of facilitating money laundering. In exchange, he would
convey to the government his ownership, rights and other interests over the real and personal
properties enumerated in the Agreement and the bank deposits alleged in the information.25

The Sandiganbayan approved the Agreement on May 4, 201026 based on the parties’ submitted Joint
Motion for Approval.27

The apparent one-sidedness of the Agreement drew public outrage and prompted the Committee on
Justice of the House of Representatives to conduct an investigation. After public hearings, the
Committee found that Sulit, her deputies and assistants committed culpable violations of the
Constitution and betrayal of public trust – grounds for removal under Section 8(2) of RA No.
6770.28 The Committee recommended to the President the dismissal from the service of Sulit and the
filing of appropriate charges against her deputies and assistants before the appropriate government
office.

Accordingly, the OP initiated an administrative disciplinary proceeding against Sulit.29 On March 24,
2011, Sulit filed her Written Explanation, questioning the OP’s jurisdiction.30 The question of
jurisdiction notwithstanding, the OP set the case for preliminary investigation on April 15, 2011,
prompting Sulit to seek relief from this Court.

II. COURT’S RULING

On motion for reconsideration and further reflection, the Court votes to grant Gonzales’ petition and
to declare Section 8(2) of RA No. 6770 unconstitutional with respect to the Office of the
Ombudsman. (As the full explanation of the Court’s vote describes below, this conclusion does not
apply to Sulit as the grant of independence is solely with respect to the Office of the Ombudsman
which does not include the Office of the Special Prosecutor under the Constitution. The prevailing
ruling on this latter point is embodied in the Concurring and Dissenting Opinion of J. Marvic Mario
Victor Leonen).
A. Preliminary considerations:

a. Absence of motion for reconsideration on the part of the petitioners

At the outset, the Court notes that Gonzales and Sulit did not file a motion for reconsideration of the
Court’s September 4, 2012 Decision; only the OP, through the OSG, moved for the reconsideration
of our ruling reinstating Gonzales.

This omission, however, poses no obstacle for the Court’s review of its ruling on the whole case
since a serious constitutional question has been raised and is one of the underlying bases for the
validity or invalidity of the presidential action. If the President does not have any constitutional
authority to discipline a Deputy Ombudsman and/or a Special Prosecutor in the first place, then any
ruling on the legal correctness of the OP’s decision on the merits will be an empty one.

In other words, since the validity of the OP’s decision on the merits of the dismissal is inextricably
anchored on the final and correct ruling on the constitutional issue, the whole case – including the
constitutional issue – remains alive for the Court’s consideration on motion for reconsideration.

b. The justiciability of the constitutional

issue raised in the petitions

We clarify, too, that the issue of whether a Deputy Ombudsman may be subjected to the
administrative disciplinary jurisdiction of the President (concurrently with that of the Ombudsman) is
a justiciable – not a political – question. A justiciable question is one which is inherently susceptible
of being decided on grounds recognized by law,31 as where the court finds that there are
constitutionally-imposed limits on the exercise of the powers conferred on a political branch of the
government.32

In resolving the petitions, we do not inquire into the wisdom of the Congress’ choice to grant
concurrent disciplinary authority to the President. Our inquiry is limited to whether such statutory
grant violates the Constitution, particularly whether Section 8(2) of RA No. 6770 violates the core
constitutional principle of the independence of the Office of the Ombudsman as expressed in Section
5, Art. XI of the Constitution.

To be sure, neither the Executive nor the Legislative can create the power that Section 8(2) of RA
No. 6770 grants where the Constitution confers none. When exercised authority is drawn from a
vacuum, more so when the authority runs counter to a core constitutional principle and constitutional
intents, the Court is duty-bound to intervene under the powers and duties granted and imposed on it
by Article VIII of the Constitution.

B. The Deputy Ombudsman: Constitutional Issue

a. The Philippine Ombudsman

Prior to the 1973 Constitution, past presidents established several Ombudsman-like agencies to
serve as the people's medium for airing grievances and for direct redress against abuses and
misconduct in the government. Ultimately, however, these agencies failed to fully realize their
objective for lack of the political independence necessary for the effective performance of their
function as government critic.33
It was under the 1973 Constitution that the Office of the Ombudsman became a constitutionally-
mandated office to give it political independence and adequate powers to enforce its mandate.
Pursuant to the 1973 Constitution, President Ferdinand Marcos enacted Presidential Decree (PD)
No. 1487, as amended by PD No. 1607 and PD No. 1630, creating the Office of the Ombudsman to
be known as Tanodbayan. It was tasked principally to investigate, on complaint or motu proprio, any
administrative act of any administrative agency, including any government-owned or controlled
corporation. When the Office of the Tanodbayan was reorganized in 1979, the powers previously
vested in the Special Prosecutor were transferred to the Tanodbayan himself. He was given the
exclusive authority to conduct preliminary investigation of all cases cognizable by the
Sandiganbayan, file the corresponding information, and control the prosecution of these cases.34

With the advent of the 1987 Constitution, a new Office of the Ombudsman was created by
constitutional fiat. Unlike in the 1973 Constitution, its independence was expressly and
constitutionally guaranteed. Its objectives are to enforce the state policy in Section 27, Article II35 and
the standard of accountability in public service under Section 1, Article XI of the 1987 Constitution.
These provisions read:

Section 27. The State shall maintain honesty and integrity in the public service and take positive and
effective measures against graft and corruption.

Section 1. Public office is a public trust. Public officers and employees must, at all times, be
accountable to the people, serve them with utmost responsibility, integrity, loyalty, and efficiency; act
with patriotism and justice, and lead modest lives.

Under Section 12, Article XI of the 1987 Constitution, the Office of the Ombudsman is envisioned to
be the "protector of the people" against the inept, abusive, and corrupt in the Government, to
function essentially as a complaints and action bureau.36 This constitutional vision of a Philippine
Ombudsman practically intends to make the Ombudsman an authority to directly check and guard
against the ills, abuses and excesses of the bureaucracy. Pursuant to Section 13(8), Article XI of the
1987 Constitution, Congress enacted RA No. 6770 to enable it to further realize the vision of the
Constitution. Section 21 of RA No. 6770 provides:

Section 21. Official Subject to Disciplinary Authority; Exceptions. — The Office of the Ombudsman
shall have disciplinary authority over all elective and appointive officials of the Government and its
subdivisions, instrumentalities and agencies, including Members of the Cabinet, local government,
government-owned or controlled corporations and their subsidiaries, except over officials who may
be removed only by impeachment or over Members of Congress, and the Judiciary. [emphasis ours,
italics supplied]

As the Ombudsman is expected to be an "activist watchman,"37 the Court has upheld its actions,
although not squarely falling under the broad powers granted it by the Constitution and by RA No.
6770, if these actions are reasonably in line with its official function and consistent with the law and
the Constitution.38

The Ombudsman’s broad investigative and disciplinary powers include all acts of malfeasance,
misfeasance, and nonfeasance of all public officials, including Members of the Cabinet and key
Executive officers, during their tenure. To support these broad powers, the Constitution saw it fit to
insulate the Office of the Ombudsman from the pressures and influence of officialdom and partisan
politics and from fear of external reprisal by making it an "independent" office. Section 5,

Article XI of the Constitution expressed this intent, as follows:

Section 5. There is hereby created the independent Office of the Ombudsman, composed of the
Ombudsman to be known as Tanodbayan, one overall Deputy and at least one Deputy each for
Luzon, Visayas, and Mindanao. A separate Deputy for the military establishment may likewise be
appointed. [emphasis ours]

Given the scope of its disciplinary authority, the Office of the Ombudsman is a very powerful
government constitutional agency that is considered "a notch above other grievance-handling
investigative bodies."39 It has powers, both constitutional and statutory, that are commensurate with
its daunting task of enforcing accountability of public officers.40

b. "Independence" of constitutional bodies vis-a-vis the Ombudsman’s independence

Under the Constitution, several constitutional bodies have been expressly labeled as
"independent."41 The extent of the independence enjoyed by these constitutional bodies however
varies and is to be interpreted with two significant considerations in mind: first, the functions
performed or the powers involved in a given case; and second, consistency of any allowable
interference to these powers and functions, with the principle of checks and balances.

Notably, the independence enjoyed by the Office of the Ombudsman and by the Constitutional
Commissions shares certain characteristics – they do not owe their existence to any act of
Congress, but are created by the Constitution itself; additionally, they all enjoy fiscal autonomy. In
general terms, the framers of the Constitution intended that these "independent" bodies be insulated
from political pressure to the extent that the absence of "independence" would result in the
impairment of their core functions.

In Bengzon v. Drilon,42 involving the fiscal autonomy of the Judiciary, we ruled against the
interference that the President may bring and maintained that the independence and the flexibility of
the Judiciary, the Constitutional Commissions and the Office of the Ombudsman are crucial to our
legal system.

The Judiciary, the Constitutional Commissions, and the Ombudsman must have the independence
and flexibility needed in the discharge of their constitutional duties. The imposition of restrictions and
constraints on the manner the independent constitutional offices allocate and utilize the funds
appropriated for their operations is anathema to fiscal autonomy and violative not only the express
mandate of the Constitution but especially as regards the Supreme Court, of the independence and
separation of powers upon which the entire fabric of our constitutional system is based.

The constitutional deliberations explain the Constitutional Commissions’ need for independence. In
the deliberations of the 1973 Constitution, the delegates amended the 1935 Constitution by
providing for a constitutionally-created Civil Service Commission, instead of one created by law, on
the premise that the effectivity of this body is dependent on its freedom from the tentacles of
politics.43 In a similar manner, the deliberations of the 1987 Constitution on the Commission on Audit
highlighted the developments in the past Constitutions geared towards insulating the Commission on
Audit from political pressure.44

Notably, the Constitution also created an "independent" Commission on Human Rights, although it
enjoys a lesser degree of independence since it is not granted fiscal autonomy in the manner fiscal
autonomy is granted to the constitutional commissions. The lack of fiscal autonomy notwithstanding,
the framers of the 1987 Constitution clearly expressed their desire to keep the Commission
independent from the executive branch and other political leaders:
MR. MONSOD. We see the merits of the arguments of Commissioner Rodrigo. If we explain to him
our concept, he can advise us on how to reconcile his position with ours. The position of the
committee is that we need a body that would be able to work and cooperate with the executive
because the Commissioner is right. Many of the services needed by this commission would need not
only the cooperation of the executive branch of the government but also of the judicial branch of
government. This is going to be a permanent constitutional commission over time. We also want a
commission to function even under the worst circumstance when the executive may not be very
cooperative. However, the question in our mind is: Can it still function during that time? Hence, we
are willing to accept suggestions from Commissioner Rodrigo on how to reconcile this. We realize
the need for coordination and cooperation. We also would like to build in some safeguards that it will
not be rendered useless by an uncooperative executive.

xxxx

MR. GARCIA. xxx Very often, when international commissions or organizations on human rights go
to a country, the most credible organizations are independent human rights bodies. Very often these
are private organizations, many of which are prosecuted, such as those we find in many countries in
Latin America. In fact, what we are proposing is an independent body on human rights, which would
provide governments with credibility precisely because it is independent of the present
administration. Whatever it says on the human rights situation will be credible because it is not
subject to pressure or control from the present political leadership.

Secondly, we all know how political fortunes come and go. Those who are in power yesterday are in
opposition today and those who are in power today may be in the opposition tomorrow. Therefore, if
we have a Commission on Human Rights that would investigate and make sure that the rights of
each one is protected, then we shall have a body that could stand up to any power, to defend the
rights of individuals against arrest, unfair trial, and so on.45

These deliberative considerations abundantly show that the independent constitutional commissions
have been consistently intended by the framers to be independent from executive control or
supervision or any form of political influence. At least insofar as these bodies are concerned,
jurisprudence is not scarce on how the "independence" granted to these bodies prevents
presidential interference.

In Brillantes, Jr. v. Yorac,46 we emphasized that the Constitutional Commissions, which have been
characterized under the Constitution as "independent," are not under the control of the President,
even if they discharge functions that are executive in nature. The Court declared as unconstitutional
the President’s act of temporarily appointing the respondent in that case as Acting Chairman of the
Comelec "however well-meaning"47 it might have been.

In Bautista v. Senator Salonga,48 the Court categorically stated that the tenure of the commissioners
of the independent Commission on Human Rights could not be placed under the discretionary power
of the President:

Indeed, the Court finds it extremely difficult to conceptualize how an office conceived and created by
the Constitution to be independent – as the Commission on Human Rights – and vested with the
delicate and vital functions of investigating violations of human rights, pinpointing responsibility and
recommending sanctions as well as remedial measures therefor, can truly function with
independence and effectiveness, when the tenure in office of its Chairman and Members is made
dependent on the pleasure of the President. Executive Order No. 163-A, being antithetical to the
constitutional mandate of independence for the Commission on Human Rights has to be declared
unconstitutional.
Again, in Atty. Macalintal v. Comelec,49 the Court considered even the mere review of the rules of the
Commission on Elections by Congress a "trampling" of the constitutional mandate of independence
of this body. Obviously, the mere review of rules places considerably less pressure on a
constitutional body than the Executive’s power to discipline and remove key officials of the Office of
the Ombudsman, yet the Court struck down the law as unconstitutional.

The kind of independence enjoyed by the Office of the Ombudsman certainly cannot be inferior – but
is similar in degree and kind – to the independence similarly guaranteed by the Constitution to the
Constitutional Commissions since all these offices fill the political interstices of a republican
democracy that are crucial to its existence and proper functioning.50

c. Section 8(2) of RA No. 6770

vesting disciplinary authority
in the President over the
Deputy Ombudsman violates
the independence of the Office
of the Ombudsman and is thus
unconstitutional

Our discussions, particularly the Court’s expressed caution against presidential interference with the
constitutional commissions, on one hand, and those expressed by the framers of the 1987
Constitution, on the other, in protecting the independence of the Constitutional Commissions, speak
for themselves as overwhelming reasons to invalidate Section 8(2) of RA No. 6770 for violating the
independence of the Office of the Ombudsman.

In more concrete terms, we rule that subjecting the Deputy Ombudsman to discipline and removal by
the President, whose own alter egos and officials in the Executive Department are subject to the
Ombudsman’s disciplinary authority, cannot but seriously place at risk the independence of the
Office of the Ombudsman itself. The Office of the Ombudsman, by express constitutional mandate,
includes its key officials, all of them tasked to support the Ombudsman in carrying out her mandate.
Unfortunately, intrusion upon the constitutionally-granted independence is what Section 8(2) of RA
No. 6770 exactly did. By so doing, the law directly collided not only with the independence that the
Constitution guarantees to the Office of the Ombudsman, but inevitably with the principle of checks
and balances that the creation of an Ombudsman office seeks to revitalize.

What is true for the Ombudsman must be equally and necessarily true for her Deputies who act as
agents of the Ombudsman in the performance of their duties. The Ombudsman can hardly be
expected to place her complete trust in her subordinate officials who are not as independent as she
is, if only because they are subject to pressures and controls external to her Office. This need for
complete trust is true in an ideal setting and truer still in a young democracy like the Philippines
where graft and corruption is still a major problem for the government. For these reasons, Section
8(2) of RA No. 6770 (providing that the President may remove a Deputy Ombudsman) should be
declared void.

The deliberations of the Constitutional Commission on the independence of the Ombudsman fully
support this position. Commissioner Florenz Regalado of the Constitutional Commission expressed
his apprehension that any form of presidential control over the Office of the Ombudsman would
diminish its independence.51 The following exchanges between Commissioners Blas Ople and
Christian Monsod further reveal the constitutional intent to keep the Office of the Ombudsman
independent from the President:

MR. OPLE. xxx

May I direct a question to the Committee? xxx [W]ill the Committee consider later an amendment
xxx, by way of designating the office of the Ombudsman as a constitutional arm for good
government, efficiency of the public service and the integrity of the President of the Philippines,
instead of creating another agency in a kind of administrative limbo which would be accountable to
no one on the pretext that it is a constitutional body?

MR. MONSOD. The Committee discussed that during our committee deliberations and when we
prepared the report, it was the opinion of the Committee — and I believe it still is — that it may not
contribute to the effectiveness of this office of the Ombudsman precisely because many of the
culprits in inefficiency, injustice and impropriety are in the executive department. Therefore, as we
saw the wrong implementation of the Tanodbayan which was under the tremendous influence of the
President, it was an ineffectual body and was reduced to the function of a special fiscal. The whole
purpose of our proposal is precisely to separate those functions and to produce a vehicle that will
give true meaning to the concept of Ombudsman. Therefore, we regret that we cannot accept the
proposition.52

The statements made by Commissioner Monsod emphasized a very logical principle: the Executive
power to remove and discipline key officials of the Office of the Ombudsman, or to exercise any
power over them, would result in an absurd situation wherein the Office of the Ombudsman is given
the duty to adjudicate on the integrity and competence of the very persons who can remove or
suspend its members. Equally relevant is the impression that would be given to the public if the rule
were otherwise. A complainant with a grievance against a high-ranking official of the Executive, who
appears to enjoy the President’s favor, would be discouraged from approaching the Ombudsman
with his complaint; the complainant’s impression (even if misplaced), that the Ombudsman would be
susceptible to political pressure, cannot be avoided. To be sure, such an impression would erode the
constitutional intent of creating an Office of the Ombudsman as champion of the people against
corruption and bureaucracy.

d. The mutual-protection argument for

crafting Section 8(2)of RA No. 6770

In crafting Section 8(2) of RA No. 6770, Congress apparently addressed the concern that a lack of
an external check against the Deputy Ombudsman would result in mutual protection between the
Ombudsman and her Deputies.

While the preceding discussion already suffices to address this concern, it should be added that this
concern stands on shaky grounds since it ignores the existing checks and balances already in place.
On the one hand, the Ombudsman’s Deputies cannot protect the Ombudsman because she is
subject to the impeachment power of Congress. On the other hand, the Ombudsman’s attempt to
cover up the misdeeds of her Deputies can be questioned before the Court on appeal or certiorari.
The same attempt can likewise subject her to impeachment.

The judicial recourse available is only consistent with the nature of the Supreme Court as a non-
political independent body mandated by the Constitution to settle judicial and quasi-judicial disputes,
whose judges and employees are not subject to the disciplinary authority of the Ombudsman and
whose neutrality would be less questionable. The Members of the Court themselves may be
subjected to the impeachment power of Congress.

In these lights, the appeal, if any, of the mutual protection argument becomes distinctly implausible.
At the same time, the Court remains consistent with its established rulings - that the independence
granted to the Constitutional Commissions bars any undue interference from either the Executive or
Congress – and is in full accord with constitutional intent.
e. Congress’ power determines the
manner and causes for the removal
of non-impeachable officers is not a
carte blanch authority

Under Section 2, Article XI of the 1987 Constitution,53 Congress is empowered to determine the
modes of removal from office of all public officers and employees except the President, the Vice-
President, the Members of the Supreme Court, the Members of the Constitutional Commissions, and
the Ombudsman, who are all impeachable officials.

The intent of the framers of the Constitution in providing that "[a]ll other public officers and
employees may be removed from office as provided by law, but not by impeachment" in the second
sentence of Section 2, Article XI is to prevent Congress from extending the more stringent rule of
"removal only by impeachment" to favored public officers.54 Understandably so, impeachment is the
most difficult and cumbersome mode of removing a public officer from office. It is, by its nature, a sui
generis politico-legal process55 that signals the need for a judicious and careful handling as shown by
the process required to initiate the proceeding;56 the one-year limitation or bar for its initiation;57 the
limited grounds for impeachment;58 the defined instrumentality given the power to try impeachment
cases;59 and the number of votes required for a finding of guilt.60 All these argue against the extension
of this removal mechanism beyond those mentioned in the Constitution.

On the practical side, our nation has witnessed the complications and problems an impeachment
proceeding entails, thus justifying its limited application only to the officials occupying the highest
echelons of responsibility in our government. To name a few, some of the negative practical effects
of impeachment are: it stalls legislative work; it is an expensive process in terms of the cost of
prosecution alone; and, more importantly, it is inherently divisive of the nation.61 Thus, in a cost-
benefit analysis of adopting impeachment as a mechanism, limiting Congress’ power to otherwise
legislate on the matter is far more advantageous to the country.

It is in these lights that the second sentence in Section 2, Article XI of the 1987 Constitution should
be read. Contrary to the implied view of the minority, in no way can this provision be regarded as
blanket authority for Congress to provide for any ground of removal it deems fit. While the manner
and cause of removal are left to congressional determination, this must still be consistent with
constitutional guarantees and principles, namely: the right to procedural and substantive due
process; the constitutional guarantee of security of tenure; the principle of separation of powers; and
the principle of checks and balances.62

In short, the authority granted by the Constitution to Congress to provide for the manner and cause
of removal of all other public officers and employees does not mean that Congress can ignore the
basic principles and precepts established by the Constitution.

In the same manner, the congressional determination of the identity of the disciplinary authority is
not a blanket authority for Congress to repose it on whomsoever Congress chooses without running
afoul of the independence enjoyed by the Office of the Ombudsman and without disrupting the
delicate check and balance mechanism under the Constitution. Properly viewed from this
perspective, the core constitutional principle of independence is observed and any possible
absurdity resulting from a contrary interpretation is avoided. In other words, while the Constitution
itself vested Congress with the power to determine the manner and cause of removal of all non-
impeachable officials, this power must be interpreted consistent with the core constitutional principle
of independence of the Office of the Ombudsman. Our observation in Macalintal v. Comelec63 is apt:
The ambit of legislative power under Article VI of the Constitution is circumscribed by other
constitutional provisions. One such provision is Section 1 of Article IX-A of the 1987 Constitution
ordaining that constitutional commissions such as the COMELEC shall be "independent."

While one may argue that the grounds for impeachment under Section 8(2) of RA No. 6770 is
intended as a measure of protection for the Deputy Ombudsman and Special Prosecutor – since
these grounds are not intended to cover all kinds of official wrongdoing and plain errors of judgment
- this argument seriously overlooks the erosion of the independence of the Office of the Ombudsman
that it creates. The mere fact that a statutorily-created sword of Damocles hangs over the Deputy
Ombudsman’s head, by itself, opens up all the channels for external pressures and influence of
officialdom and partisan politics. The fear of external reprisal from the very office he is to check for
excesses and abuses defeats the very purpose of granting independence to the Office of the
Ombudsman.

That a judicial remedy is available (to set aside dismissals that do not conform to the high standard
required in determining whether a Deputy Ombudsman committed an impeachable offense) and that
the President’s power of removal is limited to specified grounds are dismally inadequate when
balanced with the constitutional principle of independence. The mere filing of an administrative case
against the Deputy Ombudsman and the Special Prosecutor before the OP can already result in
their suspension and can interrupt the performance of their functions, in violation of Section 12,
Article XI of the Constitution. With only one term allowed under Section 11, a Deputy Ombudsman or
Special Prosecutor, if removable by the President, can be reduced to the very same ineffective
Office of the Ombudsman that the framers had foreseen and carefully tried to avoid by making these
offices independent constitutional bodies.

At any rate, even assuming that the OP has disciplinary authority over the Deputy Ombudsman, its
decision finding Gonzales guilty of Gross Neglect of Duty and Grave Misconduct constituting
betrayal of public trust is patently erroneous. The OP’s decision perfectly illustrates why the
requirement of impeachment-grounds in Section 8(2) of RA No. 6770 cannot be considered, even at
a minimum, a measure of protection of the independence of the Office of the Ombudsman.

C. The Deputy Ombudsman: The Dismissal Issue

a. The Office of the President’s

finding of gross negligence
has no legal and factual leg to
stand on

The OP’s decision found Gonzales guilty of Gross Neglect of Duty and of Grave Misconduct. The
assailed Decision of the OP reads:

Upon consideration of the First Report, the evidence and allegations of respondent Deputy
Ombudsman himself, and other documentary evidence gathered, this Office finds that the inordinate
and unjustified delay in the resolution of Captain Mendoza’s Motion for Reconsideration timely filed
on 5 November 2009 xxx amounted to gross neglect of duty and/or inefficiency in the performance of
official duty.64

b. No gross neglect of duty or inefficiency

Let us again briefly recall the facts.

 1. November 5, 2009 - Mendoza filed a Motion for Reconsideration of the decision of the
Ombudsman,65 which was followed by a Supplement to the Motion for Reconsideration;66

2. December 14, 200967 - GIPO Garcia, who was assigned to review these motions and
make his recommendation for the appropriate action, received the records of the case;

3. April 5, 2010 – GIPO Garcia released a draft order to be reviewed by his immediate
superior, Dir. Cecilio;68

4. April 27, 2010 – Dir. Cecilio signed and forwarded to Gonzales this draft order;69

5. May 6, 2010 (or nine days after the records were forwarded to Gonzales) – Gonzales
endorsed the draft order for the final approval of the Ombudsman.70

Clearly, when Mendoza hijacked the tourist bus on August 23, 2010, the records of the case were
already pending before Ombudsman Gutierrez.

Gross negligence refers to negligence characterized by the want of even the slightest care, acting or
omitting to act in a situation where there is a duty to act, not inadvertently but willfully and
intentionally, with a conscious indifference to consequences insofar as other persons may be
affected. In the case of public officials, there is gross negligence when a breach of duty is flagrant
and palpable.71

Gonzales cannot be guilty of gross neglect of duty and/or inefficiency since he acted on the case
forwarded to him within nine days. In finding Gonzales guilty, the OP72 relied on Section 8, Rule III of
Administrative Order No. 7 (or the Rules of Procedure of the Office of the Ombudsman, series of
1990, as amended) in ruling that Gonzales should have acted on Mendoza’s Motion for
Reconsideration within five days:

Section 8. Motion for reconsideration or reinvestigation: Grounds – Whenever allowable, a motion for
reconsideration or reinvestigation may only be entertained if filed within ten (10) days from receipt of
the decision or order by the party on the basis of any of the following grounds:

a) New evidence had been discovered which materially affects the order, directive or
decision;

b) Grave errors of facts or laws or serious irregularities have been committed prejudicial to
the interest of the movant.

Only one motion for reconsideration or reinvestigation shall be allowed, and the Hearing Officer shall
resolve the same within five (5) days from the date of submission for resolution. [emphasis and
underscore ours]

Even if we consider this provision to be mandatory, the period it requires cannot apply to Gonzales
since he is a Deputy Ombudsman whose obligation is to review the case; he is not simply a Hearing
Officer tasked with the initial resolution of the motion. In Section 6 of Administrative Order No. 7 on
the resolution of the case and submission of the proposed decision, the period for resolving the case
does not cover the period within which it should be reviewed:

Section 6. Rendition of decision. – Not later than thirty (30) days after the case is declared submitted
for resolution, the Hearing Officer shall submit a proposed decision containing his findings and
recommendation for the approval of the Ombudsman. Said proposed decision shall be reviewed by
the Directors, Assistant Ombudsmen and Deputy Ombudsmen concerned. With respect to low
ranking public officials, the Deputy Ombudsman concerned shall be the approving authority. Upon
approval, copies thereof shall be served upon the parties and the head of the office or agency of
which the respondent is an official or employee for his information and compliance with the
appropriate directive contained therein. [italics and emphases supplied]

Thus, the OP’s ruling that Gonzales had been grossly negligent for taking nine days, instead of five
days, to review a case was totally baseless.

c. No actionable failure to supervise subordinates

The OP’s claims that Gonzales could have supervised his subordinates to promptly act on
Mendoza’s motion and apprised the Tanodbayan of the urgency of resolving the same are similarly
groundless.

The Office of the Ombudsman is not a corner office in our bureaucracy. It handles numerous cases
that involve the potential loss of employment of many other public employees. We cannot
conclusively state, as the OP appears to suggest, that Mendoza’s case should have been prioritized
over other similar cases.

The Court has already taken judicial notice of the steady stream of cases reaching the Office of the
Ombudsman.73 This consideration certainly militates against the OSG’s observation that there was "a
grossly inordinate and inexcusable delay"74 on the part of Gonzales.

Equally important, the constitutional guarantee of "speedy disposition of cases" before, among
others, quasi-judicial bodies,75 like the Office of the Ombudsman, is itself a relative concept.76 Thus,
the delay, if any, must be measured in this objective constitutional sense. Unfortunately, because of
the very statutory grounds relied upon by the OP in dismissing Gonzales, the political and, perhaps,
"practical" considerations got the better of what is legal and constitutional.

The facts do not show that Gonzales’ subordinates had in any way been grossly negligent in their
work. While GIPO Garcia reviewed the case and drafted the order for more than three months, it is
noteworthy that he had not drafted the initial decision and, therefore, had to review the case for the
first time.77 Even the Ombudsman herself could not be faulted for acting on a case within four
months, given the amount of cases that her office handles.

The point is that these are not inordinately long periods for the work involved: examination of the
records, research on the pertinent laws and jurisprudence, and exercise of legal judgment and
discretion. If this Court rules that these periods per se constitute gross neglect of duty, the
Ombudsman’s constitutional mandate to prosecute all the erring officials of this country would be
subjected to an unreasonable and overwhelming constraint. Similarly, if the Court rules that these
periods per se constitute gross neglect of duty, then we must be prepared to reconcile this with the
established concept of the right of speedy disposition of cases – something the Court may be hard
put to justify.

d. No undue interest

The OP also found Gonzales guilty of showing undue interest in Mendoza’s case by having the case
endorsed to the Office of the Ombudsman and by resolving it against Mendoza on the basis of the
unverified complaint-affidavit of the alleged victim, Kalaw.
The fact that Gonzales had Mendoza’s case endorsed to his office lies within his mandate, even if it
were based merely on the request of the alleged victim’s father. The Constitution empowers the
Ombudsman and her Deputies to act promptly on complaints filed in any form or manner against any
public official or employee of the government.78 This provision is echoed by Section 13 of RA No.
6770,79 and by Section 3, Rule III of Administrative Order No. 7, series of 1990, as amended.80

Moreover, Gonzales and his subordinates did not resolve the complaint only on the basis of the
unverified affidavit of Kalaw. Based on the prosecution officer’s recommendations, the finding of guilt
on the part of Mendoza, et al. was based on their admissions as well. Mendoza, et al. admitted that
they had arrested Kalaw based on two traffic violations and allowed him to stay the whole night until
the following morning in the police precinct. The next morning, Kalaw was allowed to leave the
precinct despite his failure to show a valid license and based merely on his promise to return with
the proper documents.81 These admissions led Gonzales and his staff to conclude that Mendoza, et
al. irregularly acted in apprehending Kalaw, since the proper procedure for the apprehension of
traffic violators would be to give them a ticket and to file a case, when appropriate.82

Lastly, we cannot deduce undue interest simply because Gonzales’ decision differs from the
decision of the PNP-IAS (which dismissed the complaint against Mendoza). To be sure, we cannot
tie the hands of any judicial or quasi-judicial body by ruling that it should always concur with the
decisions of other judicial or quasi-judicial bodies which may have also taken cognizance of the
case. To do so in the case of a Deputy Ombudsman would be repugnant to the independence that
our Constitution has specifically granted to this office and would nullify the very purpose for which it
was created.

e. Penalty of dismissal totally

incommensurate with established facts

Given the lack of factual basis for the charges against Gonzales, the penalty of removal imposed by
the OP necessarily suffers grave infirmity. Basic strictures of fair play dictate that we can only be
held liable for our own misdeeds; we can be made to account only for lapses in our responsibilities.
It is notable that of all the officers, it was Gonzales who took the least time — nine days — followed
by Cecilio, who took 21 days; Garcia — the writer of the draft — took less than four months, and the
Ombudsman, less than four months until the kidnapping incident rendered Mendoza’s motion moot.

In these lights, the decision of the OP is clearly and patently wrong. This conclusion, however, does
not preclude the Ombudsman from looking into any other possible administrative liability of Gonzales
under existing Civil Service laws, rules and regulations.

D. The Special Prosecutor: The Constitutional Issue

The 1987 Constitution created a new, independent Office of the Ombudsman. The existing
Tanodbayan at the time83 became the Office of the Special Prosecutor under the 1987 Constitution.
While the composition of the independent Office of the Ombudsman under the 1987 Constitution
does not textually include the Special Prosecutor, the weight of the foregoing discussions on the
unconstitutionality of Section 8(2) of RA No. 6770 should equally apply to the

Special Prosecutor on the basis of the legislative history of the Office of the Ombudsman as
expounded in jurisprudence.

Under the 1973 Constitution,84 the legislature was mandated to create the Office of the Ombudsman,
known as the Tanodbayan, with investigative and prosecutorial powers. Accordingly, on June 11,
1978, President Ferdinand Marcos enacted PD No. 1487.85
Under PD No. 1486,86 however, the "Chief Special Prosecutor" (CSP) was given the "exclusive
authority" to conduct preliminary investigation and to prosecute cases that are within the jurisdiction
of the Sandiganbayan.87 PD No. 1486 expressly gave the Secretary of Justice the power of control
and supervision over the Special Prosecutor.88 Consistent with this grant of power, the law also
authorized the Secretary of Justice to appoint or detail to the Office of the CSP "any officer or
employee of Department of Justice or any Bureau or Office under the executive supervision thereof"
to assist the Office of the CSP.

In December 1978, PD No. 160789 practically gave back to the Tanodbayan the powers taken away
from it by the Office of the CSP. The law "created in the Office of the Tanodbayan an Office of the
Chief Special Prosecutor" under the Tanodbayan’s control,90 with the exclusive authority to conduct
preliminary investigation and prosecute all cases cognizable by the Sandiganbayan. Unlike the
earlier decree, the law also empowered the Tanodbayan to appoint Special Investigators and
subordinate personnel and/or to detail to the Office of the CSP any public officer or employees who
"shall be under the supervision and control of the Chief Special Prosecutor."91 In 1979, PD No. 1630
further amended the earlier decrees by transferring the powers previously vested in the Special
Prosecutor directly to the Tanodbayan himself.92

This was the state of the law at the time the 1987 Constitution was ratified. Under the 1987
Constitution, an "independent Office of the Ombudsman" is created.93 The existing Tanodbayan is
made the Office of the Special Prosecutor, "who shall continue to function and exercise its powers
as now94 or hereafter may be provided by law."95

Other than the Ombudsman’s Deputies, the Ombudsman shall appoint all other officials and
employees of the Office of the Ombudsman.96 Section 13(8), Article XI of the 1987 Constitution
provides that the Ombudsman may exercise "such other powers or perform such functions or duties
as may be provided by law." Pursuant to this constitutional command, Congress enacted RA No.
6770 to provide for the functional and structural organization of the Office of the Ombudsman and
the extent of its disciplinary authority.

In terms of composition, Section 3 of RA No. 6770 defines the composition of the Office of the
Ombudsman, including in this Office not only the offices of the several Deputy Ombudsmen but the
Office of the Special Prosecutor as well. In terms of appointment, the law gave the President the
authority to appoint the Ombudsman, his Deputies and the Special Prosecutor, from a list of
nominees prepared by the Judicial and Bar Council. In case of vacancy in these positions, the law
requires that the vacancy be filled within three (3) months from occurrence.97

The law also imposes on the Special Prosecutor the same qualifications it imposes on the
Ombudsman himself/herself and his/her deputies.98 Their terms of office,99 prohibitions and
qualifications,100 rank and salary are likewise the same.101 The requirement on disclosure102 is imposed
on the Ombudsman, the Deputies and the Special Prosecutor as well. In case of vacancy in the
Office of the Ombudsman, the Overall Deputy cannot assume the role of Acting Ombudsman; the
President may designate any of the Deputies or the Special Prosecutor as Acting
Ombudsman.103 The power of the Ombudsman and his or her deputies to require other government
agencies to render assistance to the Office of the Ombudsman is likewise enjoyed by the Special
Prosecutor.104

Given this legislative history, the present overall legal structure of the Office of the Ombudsman,
both under the 1987 Constitution and RA No. 6770, militates against an interpretation that would
insulate the Deputy Ombudsman from the disciplinary authority of the OP and yet expose the
Special Prosecutor to the same ills that a grant of independence to the Office of the Ombudsman
was designed for.
Congress recognized the importance of the Special Prosecutor as a necessary adjunct of the
Ombudsman, aside from his or her deputies, by making the Office of the Special Prosecutor an
organic component of the Office of the Ombudsman and by granting the Ombudsman control and
supervision over that office.105 This power of control and supervision includes vesting the Office of the
Ombudsman with the power to assign duties to the Special Prosecutor as he/she may deem
fit. Thus, by constitutional design, the Special Prosecutor is by no means an ordinary subordinate
1âwphi1

but one who effectively and directly aids the Ombudsman in the exercise of his/her duties, which
include investigation and prosecution of officials in the Executive Department.

Under Section 11(4) of RA No. 6770, the Special Prosecutor handles the prosecution of criminal
cases within the jurisdiction of the Sandiganbayan and this prosecutorial authority includes high-
ranking executive officials. For emphasis, subjecting the Special Prosecutor to disciplinary and
removal powers of the President, whose own alter egos and officials in the Executive Department
are subject to the prosecutorial authority of the Special Prosecutor, would seriously place the
independence of the Office of the Ombudsman itself at risk.

Thus, even if the Office of the Special Prosecutor is not expressly made part of the composition of
the Office of the Ombudsman, the role it performs as an organic component of that Office militates
against a differential treatment between the Ombudsman’s Deputies, on one hand, and the Special
Prosecutor himself, on the other. What is true for the Ombudsman must be equally true, not only for
her Deputies but, also for other lesser officials of that Office who act directly as agents of the
Ombudsman herself in the performance of her duties.

In Acop v. Office of the Ombudsman,106 the Court was confronted with an argument that, at bottom,
the Office of the Special Prosecutor is not a subordinate agency of the Office of the Ombudsman
and is, in fact, separate and distinct from the latter. In debunking that argument, the Court said:

Firstly, the petitioners misconstrue Commissioner Romulo's statement as authority to advocate that
the intent of the framers of the 1987 Constitution was to place the Office of the Special Prosecutor
under the Office of the President. Xxx

In the second place, Section 7 of Article XI expressly provides that the then existing Tanodbayan, to
be henceforth known as the Office of the Special Prosecutor, "shall continue to function and exercise
its powers as now or hereafter may be provided by law, except those conferred on the Office of the
Ombudsman created under this Constitution." The underscored phrase evidently refers to the
Tanodbayan's powers under P.D. No. 1630 or subsequent amendatory legislation. It follows then
that Congress may remove any of the Tanodbayan's/Special Prosecutor's powers under P.D. N0.
1630 or grant it other powers, except those powers conferred by the Constitution on the Office of the
Ombudsman.

Pursuing the present line of reasoning, when one considers that by express mandate of paragraph
8, Section 13, Article XI of the Constitution, the Ombudsman may "exercise such other powers or
perform functions or duties as may be provided by law," it is indubitable then that Congress has the
power to place the Office of the Special Prosecutor under the Office of the Ombudsman.107

Thus, under the present Constitution, there is every reason to treat the Special Prosecutor to be at
par with the Ombudsman's deputies, at least insofar as an extraneous disciplinary authority is
concerned, and must also enjoy the same grant of independence under the Constitution.

III. SUMMARY OF VOTING

In the voting held on January 28, 2014, by a vote of 8-7,108 the Court resolved to reverse its
September 4, 2012 Decision insofar as petitioner Gonzales is concerned (G.R. No. 196231). We
declared Section 8(2) of RA No. 6770 unconstitutional by granting disciplinary jurisdiction to the
President over a Deputy Ombudsman, in violation of the independence of the Office of the
Ombudsman.

However, by another vote of 8-7,109 the Court resolved to maintain the validity of Section 8(2) of RA
No. 6770 insofar as Sulit is concerned. The Court did not consider the Office of the Special
Prosecutor to be constitutionally within the Office of the Ombudsman and is, hence, not entitled to
the independence the latter enjoys under the Constitution.

WHEREFORE, premises considered, the Court resolves to declare Section 8(2)

UNCONSTITUTIONAL. This ruling renders any further ruling on the dismissal of Deputy
Ombudsman Emilio Gonzales III unnecessary, but is without prejudice to the power of the
Ombudsman to conduct an administrative investigation, if warranted, into the possible administrative
liability of Deputy Ombudsman Emilio Gonzales III under pertinent Civil Service laws, rules and
regulations.

SO ORDERED.

G.R. No. 176033

FELILIBETH AGUINALDO and BENJAMIN PEREZ, Petitioners,

vs.
REYNALDO P. VENTUS and JOJO B. JOSON, Respondents.

DECISION

PERALTA, J.:

Before the Court is a Petition for Review on Certiorari under Rule 45 of the Rules of Court, seeking
to nullify and set aside the Decision1 dated August 11, 2006 of the Court of Appeals (CA) and its
December 4, 2006 Resolution2 in CA-G.R. SP No. 92094. The CA dismissed for lack of merit the
Petition for Certiorari under Rule 65 filed by petitioners Felilibeth Aguinaldo and Benjamin Perez,
praying for the following reliefs: (1) the issuance of a Writ of Preliminary Injunction and/or Temporary
Restraining Order to enjoin the public respondent Judge Felixberto T. Olalia from implementing the
Orders dated May 16, 2005 and August 23, 2005; (2) the issuance of a Writ of Certiorari to annul the
said Orders, and (3) the dismissal of the estafa case against them for having been prematurely filed
and for lack of cause of action.

The procedural antecedents are as follows:

On December 2, 2002, private respondents Reynaldo P. Ventus and Jojo B. Joson filed a
Complaint-Affidavit3 for estafa against petitioners Aguinaldo and Perez before the Office of the City
Prosecutor (OCP) of Manila. Claiming to be business partners in financing casino players, private
respondents alleged that sometime in March and April 2002, petitioners connived in convincing them
to part with their Two Hundred Sixty Thousand (P260,000.00) Pesos in consideration of a pledge of
two motor vehicles which the latter had misrepresented to be owned by Aguinaldo, but turned out to
be owned by one Levita De Castro, manager/operator of LEDC Rent-A-Car.

On January 15, 2003, Perez filed his Counter-Affidavit,4 denying the accusation against him, and
claiming that his only participation in the transaction between private respondents and Aguinaldo
was limited to having initially introduced them to each other.

On January 22, 2003, private respondents filed their Reply-Affidavit,5 asserting that Perez was the
one who showed them photocopies of the registration paper of the motor vehicles in the name of
Aguinaldo, as well as the one who personally took them out from the rent-a-car company.

On January 29, 2003, Perez filed his Rejoinder-Affidavit,6 stating that neither original nor photocopies
of the registration was required by private respondents to be submitted to them because from the
very start, they were informed by Aguinaldo that she merely leased the vehicles from LEDC Rent-a-
Car.

On February 25, 2003, Assistant City Prosecutor (ACP) Renato F. Gonzaga issued a
Resolution7 recommending both petitioners to be indicted in court for estafa under Article 315,
paragraph (2) of the Revised Penal Code (RPC). He also noted that Aguinaldo failed to appear and
to submit any controverting evidence despite the subpoena.

On July 16, 2003, an Information8 (I.S. No. 02L-51569) charging petitioners with the crime of estafa
under Article 315, paragraph 2 (a) of the RPC was filed with the Regional Trial Court of Manila.
Docketed as Criminal Case No. 03-216182, entitled "People of the Philippines v. Felilibeth Aguinaldo
and Benjamin Perez," the case was raffled to the public respondent.

On July 31, 2003, Perez was arrested, so he filed an Urgent Motion for Reduction of Bail to be
Posted in Cash, which the public respondent granted in an Order of even date.9

On the same day, petitioners filed through counsel a Very Urgent Motion to Recall or Quash
Warrants of Arrest,10 alleging that the Resolution dated February 25, 2003 has not yet attained
finality, and that they intended to file a motion for reconsideration.

On August 4, 2003, petitioners jointly filed with the OCP of Manila their "Motion for Reconsideration
and Motion for the Withdrawal of the Information Prematurely Filed With the Regional Trial Court,
Branch 8, City of Manila."11 Citing the Counter-Affidavit and Rejoinder-Affidavit of Perez, Aguinaldo
asserted, among others, that no deceit or false pretenses was committed because private
respondents were fully aware that she does not own the pledged motor vehicles.
On August 6, 2003, the public respondent issued an Order12 granting the motion for withdrawal of
information, and directing the recall of the arrest warrant only insofar as Aguinaldo was concerned,
pending resolution of her motion for reconsideration with the OCP.

On August 9, 2003, petitioners filed an Urgent Motion for Cancellation of Arraignment, pending
resolution of their motion for reconsideration filed with the OCP of Manila. Upon the prosecution's
motion,13 the public respondent ordered the proceedings to be deferred until the resolution of
petitioners' motion for reconsideration.14

On December 23, 2003, the public respondent ordered the case archived pending resolution of
petitioners' motion for reconsideration with the OCP of Manila.15

On January 16, 2004, the OCP of Manila, through ACP Antonio M. Israel, filed a Motion to Set Case
for Trial,16 considering that petitioners' motions for reconsideration and for withdrawal of the
information have already been denied for lack of merit.

On February 27, 2004, petitioners filed with the Department of Justice (DOJ) a petition for review17 in
I.S. No. 02L-51569 for estafa, entitled "Benjamin Perez and Felilibeth Aguinaldo v. Reynaldo P.
Ventus and Jojo B. Joson."

Acting on the prosecution's recommendation for the denial of petitioners' motions for reconsideration
and withdrawal of the information, and its motion to set the case for trial, the public respondent
issued an Order18 dated March 15, 2004 directing the issuance of a warrant of arrest against
Aguinaldo and the setting of the case for arraignment.

On March 26, 2004, petitioners filed an Urgent Motion to Cancel Arraignment and Suspend Further
Proceedings,19 until their petition for review before the DOJ is resolved with finality. Petitioners
reiterated the same prayer in their Urgent Motion for Reconsideration20 of the Order dated March 15,
2004.

On April 16, 2004, the public respondent granted petitioners' urgent motion to cancel arraignment
and suspend proceedings, and motion for reconsideration.21

On June 23, 2004, Levita De Castro, through the Law Firm of Lapeña and Associates, filed a Motion
to Reinstate Case and to Issue Warrant of Arrest.22 De Castro alleged that she was the private
complainant in the estafa case that had been ordered archived. Petitioners filed an Opposition with
Motion to Expunge,23 alleging that De Castro is not a party to the said case, which is in active file,
awaiting the resolution of their petition for review before the DOJ.

On October 15, 2004, De Castro filed a Manifestation24 informing the public respondent that the DOJ
had already promulgated a Resolution dated September 6, 2004 denying petitioners' petition for
review in I.S. No. 02G- 29349 & 02G-28820 for estafa, entitled "Levita De Castro v. Felilibeth
Aguinaldo."25

On May 16, 2005, the public respondent issued an Order granting the Motion to Reinstate Case and
to Issue Warrant of Arrest, thus:

Pending with this Court are (1) Motion to Reinstate Case and to Issue Warrant of Arrest against
accused Aguinaldo filed by private prosecutor with conformity of the public prosecutor. x x x

It appears from the records that:

 (1)the warrant of arrest issued against accused Aguinaldo was recalled pending resolution of
the Petition for Review filed with the DOJ; x x x

(2)the Petition for Review was subsequently dismissed

xxx

(3)accused Aguinaldo has not yet posted bail bond.

In view of the foregoing, (the) Motion to Reinstate Case and to Issue Warrant of Arrest is GRANTED.
Let this case be REINSTATED and let warrant of arrest be issued against accused Aguinaldo.

xxxx

SO ORDERED.26

On May 30, 2005, petitioners filed a Motion for Reconsideration with Motion to Quash Warrant of
Arrest.27

On August 23, 2005, the public respondent issued an Order denying petitioners' Motion for
Reconsideration with Motion to Quash Warrant of Arrest, and setting petitioners' arraignment, as the
Revised Rules on Criminal Procedure (or Rules of Court) allows only a 60-day period of suspension
of arraignment. Citing Crespo v. Mogul,28 he also ruled that the issuance of the warrant of arrest is
best left to the discretion of the trial court. He also noted that records do not show that the DOJ has
resolved the petition for review, although photocopies were presented by De Castro.

Aggrieved, petitioners filed with the CA a Petition for Certiorari under Rule 65 of the Rules of Court,
attributing grave abuse of discretion amounting to lack or excess of jurisdiction on the part of the
public respondent in issuing the Orders dated May 16, 2005 and August 23, 2005. On August 11,
2006, the CA dismissed the petition for lack of merit. Petitioners filed a motion for reconsideration,
but the CA denied it in a Resolution29 dated December 4, 2006. Hence, this instant petition for review
on certiorari.

Petitioners raise the following issues:

I.

THE HONORABLE COURT OF APPEALS FAILED TO APPRECIATE THAT THE MOTION TO

REINSTATE THE CASE AND ISSUE A WARRANT OF ARREST WAS FILED BY ONE LEVITA DE
CASTRO WHO IS NOT A PARTY TO CRIMINAL CASE NO. 03-21[6]182.

II.

A PROCEDURAL TECHINICALITY THAT THE SUSPENSION ALLOWED FOR ARRAIGNMENT IS

ALREADY BEYOND THE 60- DAY PERIOD MAY BE RELAXED IN THE INTEREST OF AN
ORDERLY AND SPEEDY ADMINISTRATION OF JUSTICE.

III.
THE PRELIMINARY INVESTIGATION ON THE I.S. NO. 02L-51569 (CRIMINAL CASE NO. 03-
21[6]182) BY THE OFFICE OF THE CITY PROSECUTOR OF MANILA HAS NOT YET BEEN
COMPLETED.30

On the first issue, petitioners argue that the public respondent erred in issuing the Order dated May
16, 2005 reinstating the case and issuing an arrest warrant against Aguinaldo. They point out that
the Motion to Reinstate the Case and to Issue a Warrant of Arrest against Aguinaldo was filed by De
Castro who is not a party in Criminal Case No. 03-216182, entitled "People of the Philippines v.
Felilibeth Aguinaldo and Benjamin Perez," instead of private complainants Reynaldo P. Ventus and
Jojo B. Joson. They also assert that said motion was erroneously granted based on the purported
denial of their petition for review by the DOJ, despite a Certification showing that their actual petition
in I.S. Number 02L-51569, entitled "Reynaldo Ventus, et al. v. Felilibeth Aguinaldo," has not yet been
resolved and is still pending with the DOJ.

On the second issue, petitioners argue that the provision of Section 11, Rule 116 of the Rules of
Court limiting the suspension for arraignment to only sixty (60) days is merely directory; thus, it
cannot deprive petitioners of their procedural right to due process, as their petition for review has not
yet been resolved by the DOJ.

On the third issue, petitioners take exception that even before they could receive a copy of the DOJ
resolution denying their petition for review, and thus move for its reconsideration, the Information in
Criminal Case No. 03-216182 had already been filed with the RTC on July 16, 2003. They contend
that such precipitate filing of the Information and issuance of a warrant of arrest put petitioners at the
risk of incarceration without the preliminary investigation having been completed because they were
not afforded their right to file a motion for reconsideration of the DOJ resolution. In support of their
contention, they raise the following arguments: that the right to preliminary investigation is a
substantive, not merely a procedural right; that an Information filed without affording the respondent
his right to file a motion for reconsideration of an adverse resolution, is fatally premature; and, that a
denial of a complete preliminary investigation deprives the accused of the full measure of his right to
due process and infringes on his constitutional right to liberty.

The petition is denied for lack of merit.

On the first issue, petitioners are correct in pointing out that the Motion to Reinstate the Case and
Issue a Warrant of Arrest31 was filed by one Levita De Castro who is not a party to Criminal Case No.
03-216182. Records show that De Castro is not even a private complainant, but a mere witness for
being the owner of the vehicles allegedly used by petitioners in defrauding and convincing private
respondents to part with their P260,000.00. Thus, the public respondent should have granted
petitioners' motion to expunge, and treated De Castro's motion as a mere scrap of paper with no
legal effect, as it was filed by one who is not a party to that case.

Petitioners are also correct in noting that De Castro's motion was granted based on the purported
dismissal of their petition for review with the DOJ. In reinstating the case and issuing the arrest
warrant against Aguinaldo, the public respondent erroneously relied on the DOJ Resolution dated
September 6, 2004 dismissing the petition for review in a different case, i.e., I.S. No. 02G-29349 &
02G-28820, entitled "Levita De Castro v. Felilibeth Aguinaldo, for two (2) counts of estafa." As
correctly noted by petitioners, however, their petition for review with the DOJ is still pending
resolution. In particular, Assistant Chief State Prosecutor Miguel F. Guido, Jr. certified that based on
available records of the Office of the Chief State Prosecutor, their petition for review filed in I.S.
Number 02L-51569, entitled "Reynaldo Ventus, et al. v. Felilibeth Aguinaldo" for estafa, is still
pending resolution as of May 27, 2005.32 It bears stressing that their petition stemmed from Criminal
Case No. 03-216812, entitled "People of the Philippines v. Felilibeth Aguinaldo and Benjamin Perez"
wherein the public respondent issued the interlocutory orders assailed before the CA, and now
before the Court.

On the second issue, the Court disagrees with petitioners' contention that the provision of Section 11
(c),33 Rule 116 of the Rules of Court limiting the suspension for arraignment to only sixty (60) days is
merely directory; thus, the estafa case against them cannot proceed until the DOJ resolves their
petition for review with finality.

In Samson v. Judge Daway,34 the Court explained that while the pendency of a petition for review is a
ground for suspension of the arraignment, the aforecited provision limits the deferment of the
arraignment to a period of 60 days reckoned from the filing of the petition with the reviewing office. It
follows, therefore, that after the expiration of said period, the trial court is bound to arraign the
accused or to deny the motion to defer arraignment.35

In Diño v. Olivarez,36 the Court held that it did not sanction an indefinite suspension of the
proceedings in the trial court. Its reliance on the reviewing authority, the Justice Secretary, to decide
the appeal at the soonest possible time was anchored on the rule provided under Department
Memorandum Order No. 12, dated 3 July 2000, which mandates that the period for the disposition of
appeals or petitions for review shall be seventy- five (75) days.37

In Heirs of Feraren v. Court of Appeals,38 the Court ruled that in a long line of decisions, it has
repeatedly held that while rules of procedure are liberally construed, the provisions on reglementary
periods are strictly applied, indispensable as they are to the prevention of needless delays, and are
necessary to the orderly and speedy discharge of judicial business. After all, rules of procedure do
not exist for the convenience of the litigants, and they are not to be trifled with lightly or overlooked
by the mere expedience of invoking "substantial justice." Relaxation or suspension of procedural
rules, or the exemption of a case from their operation, is warranted only by compelling reasons or
when the purpose of justice requires it.39

Consistent with the foregoing jurisprudence, and there being no such reasons shown to warrant
relaxation of procedural rules in this case, the CA correctly ruled, thus:

In the case at bar, the petitioners' petition for review was filed with the Secretary of Justice on
February 27, 2004. As early as April 16, 2004, upon the petitioners' motion, the arraignment of the
petitioners herein was ordered deferred by the public respondent. We believe that the period of one
year and one month from April 16, 2004 to May 16, 2005 when the public respondent ordered the
issuance of a warrant for the arrest of petitioner Aguinaldo, was more than ample time to give the
petitioners the opportunity to obtain a resolution of their petition for review from the DOJ. The
petitioners though submitted a Certification from the DOJ dated May 30, 2005 stating that their
petition for review is pending resolution by the Department as of May 27, 2005. However, such delay
in the resolution does not extend the period of 60 days prescribed under the afore-quoted Section
11(c), Rule 116 of the Revised Rules on Criminal Procedure. Besides, the petitioners may be faulted
for the delay in the resolution of their petition. According to their counsel, she received the letter
dated April 15, 2004 from the DOJ requiring her to submit the pertinent pleadings relative to
petitioners' petition for review; admittedly, however, the same was complied with only on October 15,
2004. We therefore find that the trial court did not commit grave abuse of discretion in issuing the
assailed orders.40

On the third issue, the Court is likewise unconvinced by petitioners' argument that the precipitate
filing of the Information and the issuance of a warrant of arrest put petitioners at the risk of
incarceration without the preliminary investigation having been completed because they were not
afforded their right to file a motion for reconsideration of the DOJ resolution.
While they are correct in stating that the right to preliminary investigation is a substantive, not merely
a procedural right, petitioners are wrong in arguing that the Information filed, without affording the
respondent his right to file a motion for reconsideration of an adverse DOJ resolution, is fatally
premature. In support of their argument, petitioners cite Sales v. Sandiganbayan41 wherein it was
held that since filing of a motion for reconsideration is an integral part of the preliminary investigation
proper, an Information filed without first affording the accused his right to a motion for
reconsideration, is tantamount to a denial of the right itself to a preliminary investigation.

The Court finds petitioners' reliance on Sales42 as misplaced. A closer look into said case would
reveal that the accused therein was denied his right to move for a reconsideration or a
reinvestigation of an adverse resolution in a preliminary investigation under the Rules of Procedure
of the Ombudsman before the filing of an Information. In contrast, petitioners in this case were
afforded their right to move for reconsideration of the adverse resolution in a preliminary
investigation when they filed their "Motion for Reconsideration and Motion for the Withdrawal of
Information Prematurely Filed with the Regional Trial Court, Branch 8, City of Manila,"43 pursuant to
Section 3 of the 2000 National Prosecution Service (NPS Rule on Appeal)44 and Section 56 of the
Manual for Prosecutors45 .

With the Information for estafa against petitioners having been filed on July 16, 2003, the public
respondent cannot be faulted with grave abuse of discretion in issuing the August 23, 2005 Order
denying their motion to quash warrant of arrest, and setting their arraignment, pending the final
resolution of their petition for review by the DOJ. The Court believes that the period of almost one (1)
year and seven (7) months from the time petitioners filed their petition for review with the DOJ on
February 27, 2004 to September 14, 200546 when the trial court finally set their arraignment, was
more than ample time to give petitioners the opportunity to obtain a resolution of their petition. In
fact, the public respondent had been very liberal with petitioners in applying Section 11 (c), Rule 116
of the Rules of Court which limits the suspension of arraignment to a 60-day period from the filing of
such petition. Indeed, with more than eleven (11) years having elapsed from the filing of the petition
for review and petitioners have yet to be arraigned, it is now high time for the continuation of the trial
on the merits in the criminal case below, as the 60-day period counted from the filing of the petition
for review with the DOJ had long lapsed.

On whether petitioners were accorded their right to a complete preliminary investigation as part of
their right to due process, the Court rules in the affirmative. Having submitted his Counter-Affidavit
and Rejoinder- Affidavit to the OCP of Manila before the filing of Information for estafa, Perez cannot
be heard to decry that his right to preliminary investigation was not completed. For her part, while
Aguinaldo was not personally informed of any notice of preliminary investigation prior to the filing of
the Information, she was nonetheless given opportunity to be heard during such investigation. In
petitioners' motion for reconsideration47 of the February 25, 2003 Resolution of ACP Gonzaga,
Aguinaldo relied mostly on the Counter- Affidavit and Rejoinder-Affidavit of Perez to assail the
recommendation of the prosecutor to indict her for estafa. Since the filing of such motion for
reconsideration was held to be consistent with the principle of due process and allowed under
Section 56 of the Manual for Prosecutors,48 she cannot complain denial of her right to preliminary
investigation.

Both petitioners cannot, therefore, claim denial of their right to a complete preliminary investigation
as part of their right to due process. After all, "[d]ue process simply demands an opportunity to be
heard. Due process is satisfied when the parties are afforded a fair and reasonable opportunity to
explain their respective sides of the controversy. Where an opportunity to be heard either through
oral arguments or through pleadings is accorded, there is no denial of procedural due process."49
In fine, the Court holds that public respondent erred in issuing the May 16, 2005 Order granting the
Motion to Reinstate Case and to Issue Warrant of Arrest, as it was filed by one who is not a party to
the case, and it was based on the DOJ's dismissal of a petition for review in a different case.
Nevertheless, the Court upholds the CA ruling that the public respondent committed no grave abuse
of discretion when he issued the August 23, 2005 Order denying petitioners' motion to quash warrant
of arrest, and setting their arraignment, despite the pendency of their petition for review with the
DOJ. For one, the public respondent had been very liberal in applying Section 11 (c), Rule 116 of the
Rules of Court which allows suspension of arraignment for a period of 60 days only. For another,
records show that petitioners were given opportunity to be heard during the preliminary investigation
of their estafa case.

Considering that this case had been held in abeyance long enough without petitioners having been
arraigned, the Court directs the remand of this case to the trial court for trial on the merits with strict
observance of Circular No. 38-98 dated August 11, 1998, or the "Implementing the Provisions of
Republic Act No. 8493, entitled 'An Act to Ensure a Speedy Trial of All Criminal Cases Before the
Sandiganbayan, Regional Trial Court, Metropolitan Trial Court, Municipal Trial Court in Cities,
Municipal Trial Court and Municipal Circuit Trial Court, Appropriating Funds Therefor, and for Other
Purposes.'" In this regard, suffice it to state that petitioners cannot invoke violation of their right to
speedy trial because Section 9 (3) of Circular No. 38-98 excludes in computing the time within which
trial must commence the delay resulting from extraordinary remedies against interlocutory orders,
such as their petitions before the CA and the Court.

Finally, in order to avoid delay in the proceedings, judges are reminded that the pendency of a
motion for reconsideration, motion for reinvestigation, or petition for review is not a cause for the
quashal of a warrant of arrest previously issued because the quashal of a warrant of arrest may only
take place upon the finding that no probable cause exists. Moreover, judges should take note of the
following:

1.If there is a pending motion for reconsideration or motion for reinvestigation of the resolution of the
public prosecutor, the court may suspend the proceedings upon motion by the parties. However, the
court should set the arraignment of the accused and direct the public prosecutor to submit the
resolution disposing of the motion on or before the period fixed by the court, which in no instance
could be more than the period fixed by the court counted from the granting of the motion to suspend
arraignment, otherwise the court will proceed with the arraignment as scheduled and without further
delay.

2.If there is a pending petition for review before the DOJ, the court may suspend the proceedings
upon motion by the parties. However, the court should set the arraignment of the accused and direct
the DOJ to submit the resolution disposing of the petition on or before the period fixed by the Rules
which, in no instance, could be more than sixty (60) days from the filing of the Petition for Review
before the DOJ, otherwise, the court will proceed with the arraignment as scheduled and without
further delay.

WHEREFORE, premises considered, the petition is DENIED. The Decision dated August 11, 2006
of the Court of Appeals and its Resolution dated December 4, 2006 in CA-G.R. SP No. 92094, are
AFFIRMED. Considering that the proceedings in this criminal case had been held in abeyance long
enough, let the records of this case be remanded to the trial court which is hereby DIRECTED to try
the case on the merits with dispatch in accordance with the Court's Circular No. 38-98 dated August
11, 1998.

SO ORDERED.
G.R. No. 196231 January 28, 2014

EMILIO A. GONZALES III, Petitioner,

vs.
OFFICE OF THE PRESIDENT OF THE PHILIPPINES, ACTING THROUGH AND REPRESENTED
BY EXECUTIVE SECRETARY PAQUITO N. OCHOA, JR., SENIOR DEPUTY EXECUTIVE
SECRETARY JOSE AMOR M. AMORANDO, OFFICER-IN-CHARGE - OFFICE OF THE DEPUTY
EXECUTIVE SECRETARY FOR LEGAL AFFAIRS, ATTY. RONALDO A. GERON, DIR. ROWENA
TURINGAN-SANCHEZ, AND ATTY. CARLITO D. CATAYONG, Respondents.

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

G.R. No. 196232

WENDELL BARRERAS-SULIT Petitioner,

vs.
ATTY. PAQUITO N. OCHOA, JR., IN HIS CAP A CITY AS EXECUTIVE SECRETARY, OFFICE OF
THE PRESIDENT, ATTY. DENNIS F. ORTIZ, ATTY. CARLO D. SULAY AND ATTY. FROILAN D.
MONTALBAN, JR., IN THEIR CAPACITIES AS CHAIRMAN AND MEMBERS OF OFFICE OF
MALACANANG LEGAL AFFAIRS, Respondents.

DECISION

BRION, J.:

We resolve the Office of the President's (OP 's) motion for reconsideration of our September 4, 2012
Decision1 which ruled on the petitions filed by Deputy Ombudsman Emilio Gonzales III and Special
Prosecutor Wendell Barreras-Sulit. Their petitions challenged the constitutionality of Section 8(2) of
Republic Act (RA) No. 6770.2

In the challenged Decision, the Court upheld the constitutionality of Section 8(2) of RA No. 6770 and
ruled that the President has disciplinary jurisdiction over a Deputy Ombudsman and a Special
Prosecutor. The Court, however, reversed the OP ruling that: (i) found Gonzales guilty of Gross
Neglect of Duty and Grave Misconduct constituting betrayal of public trust; and (ii) imposed on him
the penalty of dismissal.
Sulit, who had not then been dismissed and who simply sought to restrain the disciplinary
proceedings against her, solely questioned the jurisdiction of the OP to subject her to disciplinary
proceedings. The Court affirmed the continuation of the proceedings against her after upholding the
constitutionality of Section 8(2) of RA No. 6770.

The fallo of our assailed Decision reads:

WHEREFORE, in G.R. No. 196231, the decision of the Office of the President in OP Case No. 1 O-
J-460 is REVERSED and SET ASIDE. Petitioner Emilio A. Gonzales III is ordered REINSTATED
with payment of backwages corresponding to the period of suspension effective immediately, even
as the Office of the Ombudsman is directed to proceed with the investigation in connection with the
above case against petitioner. In G.R. No. 196232, We AFFIRM the continuation of OP-DC Case
No. ll-B-003 against Special Prosecutor Wendell Barreras-Sulit for alleged acts and omissions
tantamount to culpable violation of the Constitution and a betrayal of public trust, in accordance with
Section 8(2) of the Ombudsman Act of 1989.3

In view of the Court’s ruling, the OP filed the present motion for reconsideration through the Office of
the Solicitor General (OSG).

We briefly narrate the facts that preceded the filing of the petitions and the present motion for
reconsideration.

I. ANTECEDENTS

A. Gonzales’ petition (G.R. No. 196231)

a. Factual antecedents

On May 26, 2008, Christian Kalaw filed separate charges with the Philippine National Police Internal
Affairs Service (PNP-IAS) and with the Manila City Prosecutor’s Office against Manila Police District
Senior Inspector Rolando Mendoza and four others (Mendoza, et al.) for robbery, grave threat,
robbery extortion and physical injury.4

On May 29, 2008, Police Senior Superintendent Atty. Clarence Guinto filed an administrative charge
for grave misconduct with the National Police Commission (NAPOLCOM) PNP-NCRPO against
Mendoza, et al. based on the same allegations made by Kalaw before the PNP-IAS.5

On July 2, 2008, Gonzales, Deputy Ombudsman for Military and Other Law Enforcement Officers
(MOLEO), directed the NAPOLCOM to turn over the records of Mendoza’s case to his office. The
Office of the Regional Director of the NAPOLCOM duly complied on July 24, 2008.6 Mendoza, et al.
filed their position papers with Gonzales, in compliance with his Order.7

Pending Gonzales’ action on Mendoza, et al.’s case (on August 26, 2008), the Office of the City
Prosecutor of Manila City dismissed Kalaw’s complaint against Mendoza, et al. for his failure to
substantiate his allegations.8 Similarly, on October 17, 2008, the PNP-IAS recommended the
dismissal without prejudice of the administrative case against Mendoza, et al. for Kalaw’s failure to
prosecute.9

On February 16, 2009, after preparing a draft decision on Mendoza, et al.’s case, Gonzales
forwarded the entire records to the Office of then Ombudsman Merceditas Gutierrez for her
review.10 In his draft decision, Gonzales found Mendoza, et al. guilty of grave misconduct and
imposed on them the penalty of dismissal from the service.11

Mendoza, et al. received a copy of the Ombudsman’s decision that approved Gonzales’
recommendation on October 30, 2009. Mendoza, et al. filed a motion for reconsideration12 on
November 5, 2009, followed by a Supplement to the Motion for Reconsideration.13

On December 10, 2009, the MOLEO-Records Section forwarded Mendoza, et al.’s case records to
the Criminal Investigation, Prosecution and Administrative Bureau-MOLEO. On December 14, 2009,
the case was assigned to Graft Investigation and Prosecution Officer (GIPO) Dennis Garcia for
review and recommendation.14

GIPO Garcia released a draft order15 to his immediate superior, Director Eulogio S. Cecilio, for
appropriate action on April 5, 2010. Dir. Cecilio signed and forwarded the draft order to Gonzales’
office on April 27, 2010. Gonzales reviewed the draft and endorsed the order, together with the case
records, on May 6, 2010 for the final approval by the Ombudsman.16

On August 23, 2010, pending final action by the Ombudsman on Mendoza, et al.’s case, Mendoza
hijacked a tourist bus and held the 21 foreign tourists and the four Filipino tour assistants on board
as hostages. While the government exerted earnest attempts to peacefully resolve the hostage-
taking, it ended tragically, resulting in the deaths of Mendoza and several others on board the
hijacked bus.

In the aftermath, President Benigno C. Aquino III directed the Department of Justice and the
Department of Interior and Local Government to conduct a joint thorough investigation of the
incident. The two departments issued Joint Department Order No. 01-2010, creating an Incident
Investigation and Review Committee (IIRC).

In its September 16, 2010 First Report, the IIRC found the Ombudsman and Gonzales accountable
for their "gross negligence and grave misconduct in handling the case against Mendoza."17 The IIRC
stated that the Ombudsman and Gonzales’ failure to promptly resolve Mendoza’s motion for
reconsideration, "without justification and despite repeated pleas" xxx "precipitated the desperate
resort to hostage-taking."18 The IIRC recommended the referral of its findings to the OP for further
determination of possible administrative offenses and for the initiation of the proper administrative
proceedings.19

Accordingly, on October 15, 2010, Gonzales was formally charged before the OP for Gross Neglect
of Duty and/or Inefficiency in the Performance of Official Duty and for Misconduct in Office.20

b. The OP ruling

On March 31, 2011, the OP found Gonzales guilty as charged and dismissed him from the
service.21 According to the OP, "the inordinate and unjustified delay in the resolution of [Mendoza’s]
Motion for Reconsideration [‘that spanned for nine (9) long months’] xxx amounted to gross neglect
of duty" and "constituted a flagrant disregard of the Office of the Ombudsman’s own Rules of
Procedure."22

c. The Petition
Gonzales posited in his petition that the OP has no administrative disciplinary jurisdiction over a
Deputy Ombudsman. Under Section 21 of RA No. 6770, it is the Ombudsman who exercises
administrative disciplinary jurisdiction over the Deputy Ombudsman.

On the merits, Gonzales argued that his office received the draft order from GIPO Garcia on April
27, 2010. On May 6, 2010, he completed his review of the draft, approved it, and transmitted it to the
Office of the Ombudsman for final approval. Since the draft order on Mendoza’s motion for
reconsideration had to undergo different levels of preparation, review and approval, the period it took
to resolve the motion could not be unjustified, since he himself acted on the draft order only within
nine (9) calendars days from his receipt of the order.23

B. Sulit’s petition (G.R. No. 196232)

In April 2005, the Office of the Ombudsman charged Major General Carlos F. Garcia and several
others, before the Sandiganbayan, with plunder and money laundering. On May 7, 2007, Garcia filed
an Urgent Petition for Bail which the prosecution opposed. The Sandiganbayan denied Garcia's
urgent petition for bail on January 7, 2010, in view of the strength of the prosecution’s evidence
against Garcia.

On February 25, 2010, the Office of the Ombudsman, through Sulit and her prosecutorial staff,
entered into a plea bargaining agreement (Agreement) with Garcia.24 Garcia thereby agreed to: (i)
withdraw his plea of not guilty to the charge of plunder and enter a plea of guilty to the lesser offense
of indirect bribery; and (ii) withdraw his plea of not guilty to the charge of money laundering and
enter a guilty plea to the lesser offense of facilitating money laundering. In exchange, he would
convey to the government his ownership, rights and other interests over the real and personal
properties enumerated in the Agreement and the bank deposits alleged in the information.25

The Sandiganbayan approved the Agreement on May 4, 201026 based on the parties’ submitted Joint
Motion for Approval.27

The apparent one-sidedness of the Agreement drew public outrage and prompted the Committee on
Justice of the House of Representatives to conduct an investigation. After public hearings, the
Committee found that Sulit, her deputies and assistants committed culpable violations of the
Constitution and betrayal of public trust – grounds for removal under Section 8(2) of RA No.
6770.28 The Committee recommended to the President the dismissal from the service of Sulit and the
filing of appropriate charges against her deputies and assistants before the appropriate government
office.

Accordingly, the OP initiated an administrative disciplinary proceeding against Sulit.29 On March 24,
2011, Sulit filed her Written Explanation, questioning the OP’s jurisdiction.30 The question of
jurisdiction notwithstanding, the OP set the case for preliminary investigation on April 15, 2011,
prompting Sulit to seek relief from this Court.

II. COURT’S RULING

On motion for reconsideration and further reflection, the Court votes to grant Gonzales’ petition and
to declare Section 8(2) of RA No. 6770 unconstitutional with respect to the Office of the
Ombudsman. (As the full explanation of the Court’s vote describes below, this conclusion does not
apply to Sulit as the grant of independence is solely with respect to the Office of the Ombudsman
which does not include the Office of the Special Prosecutor under the Constitution. The prevailing
ruling on this latter point is embodied in the Concurring and Dissenting Opinion of J. Marvic Mario
Victor Leonen).
A. Preliminary considerations:

a. Absence of motion for reconsideration on the part of the petitioners

At the outset, the Court notes that Gonzales and Sulit did not file a motion for reconsideration of the
Court’s September 4, 2012 Decision; only the OP, through the OSG, moved for the reconsideration
of our ruling reinstating Gonzales.

This omission, however, poses no obstacle for the Court’s review of its ruling on the whole case
since a serious constitutional question has been raised and is one of the underlying bases for the
validity or invalidity of the presidential action. If the President does not have any constitutional
authority to discipline a Deputy Ombudsman and/or a Special Prosecutor in the first place, then any
ruling on the legal correctness of the OP’s decision on the merits will be an empty one.

In other words, since the validity of the OP’s decision on the merits of the dismissal is inextricably
anchored on the final and correct ruling on the constitutional issue, the whole case – including the
constitutional issue – remains alive for the Court’s consideration on motion for reconsideration.

b. The justiciability of the constitutional

issue raised in the petitions

We clarify, too, that the issue of whether a Deputy Ombudsman may be subjected to the
administrative disciplinary jurisdiction of the President (concurrently with that of the Ombudsman) is
a justiciable – not a political – question. A justiciable question is one which is inherently susceptible
of being decided on grounds recognized by law,31 as where the court finds that there are
constitutionally-imposed limits on the exercise of the powers conferred on a political branch of the
government.32

In resolving the petitions, we do not inquire into the wisdom of the Congress’ choice to grant
concurrent disciplinary authority to the President. Our inquiry is limited to whether such statutory
grant violates the Constitution, particularly whether Section 8(2) of RA No. 6770 violates the core
constitutional principle of the independence of the Office of the Ombudsman as expressed in Section
5, Art. XI of the Constitution.

To be sure, neither the Executive nor the Legislative can create the power that Section 8(2) of RA
No. 6770 grants where the Constitution confers none. When exercised authority is drawn from a
vacuum, more so when the authority runs counter to a core constitutional principle and constitutional
intents, the Court is duty-bound to intervene under the powers and duties granted and imposed on it
by Article VIII of the Constitution.

B. The Deputy Ombudsman: Constitutional Issue

a. The Philippine Ombudsman

Prior to the 1973 Constitution, past presidents established several Ombudsman-like agencies to
serve as the people's medium for airing grievances and for direct redress against abuses and
misconduct in the government. Ultimately, however, these agencies failed to fully realize their
objective for lack of the political independence necessary for the effective performance of their
function as government critic.33
It was under the 1973 Constitution that the Office of the Ombudsman became a constitutionally-
mandated office to give it political independence and adequate powers to enforce its mandate.
Pursuant to the 1973 Constitution, President Ferdinand Marcos enacted Presidential Decree (PD)
No. 1487, as amended by PD No. 1607 and PD No. 1630, creating the Office of the Ombudsman to
be known as Tanodbayan. It was tasked principally to investigate, on complaint or motu proprio, any
administrative act of any administrative agency, including any government-owned or controlled
corporation. When the Office of the Tanodbayan was reorganized in 1979, the powers previously
vested in the Special Prosecutor were transferred to the Tanodbayan himself. He was given the
exclusive authority to conduct preliminary investigation of all cases cognizable by the
Sandiganbayan, file the corresponding information, and control the prosecution of these cases.34

With the advent of the 1987 Constitution, a new Office of the Ombudsman was created by
constitutional fiat. Unlike in the 1973 Constitution, its independence was expressly and
constitutionally guaranteed. Its objectives are to enforce the state policy in Section 27, Article II35 and
the standard of accountability in public service under Section 1, Article XI of the 1987 Constitution.
These provisions read:

Section 27. The State shall maintain honesty and integrity in the public service and take positive and
effective measures against graft and corruption.

Section 1. Public office is a public trust. Public officers and employees must, at all times, be
accountable to the people, serve them with utmost responsibility, integrity, loyalty, and efficiency; act
with patriotism and justice, and lead modest lives.

Under Section 12, Article XI of the 1987 Constitution, the Office of the Ombudsman is envisioned to
be the "protector of the people" against the inept, abusive, and corrupt in the Government, to
function essentially as a complaints and action bureau.36 This constitutional vision of a Philippine
Ombudsman practically intends to make the Ombudsman an authority to directly check and guard
against the ills, abuses and excesses of the bureaucracy. Pursuant to Section 13(8), Article XI of the
1987 Constitution, Congress enacted RA No. 6770 to enable it to further realize the vision of the
Constitution. Section 21 of RA No. 6770 provides:

Section 21. Official Subject to Disciplinary Authority; Exceptions. — The Office of the Ombudsman
shall have disciplinary authority over all elective and appointive officials of the Government and its
subdivisions, instrumentalities and agencies, including Members of the Cabinet, local government,
government-owned or controlled corporations and their subsidiaries, except over officials who may
be removed only by impeachment or over Members of Congress, and the Judiciary. [emphasis ours,
italics supplied]

As the Ombudsman is expected to be an "activist watchman,"37 the Court has upheld its actions,
although not squarely falling under the broad powers granted it by the Constitution and by RA No.
6770, if these actions are reasonably in line with its official function and consistent with the law and
the Constitution.38

The Ombudsman’s broad investigative and disciplinary powers include all acts of malfeasance,
misfeasance, and nonfeasance of all public officials, including Members of the Cabinet and key
Executive officers, during their tenure. To support these broad powers, the Constitution saw it fit to
insulate the Office of the Ombudsman from the pressures and influence of officialdom and partisan
politics and from fear of external reprisal by making it an "independent" office. Section 5,

Article XI of the Constitution expressed this intent, as follows:

Section 5. There is hereby created the independent Office of the Ombudsman, composed of the
Ombudsman to be known as Tanodbayan, one overall Deputy and at least one Deputy each for
Luzon, Visayas, and Mindanao. A separate Deputy for the military establishment may likewise be
appointed. [emphasis ours]

Given the scope of its disciplinary authority, the Office of the Ombudsman is a very powerful
government constitutional agency that is considered "a notch above other grievance-handling
investigative bodies."39 It has powers, both constitutional and statutory, that are commensurate with
its daunting task of enforcing accountability of public officers.40

b. "Independence" of constitutional bodies vis-a-vis the Ombudsman’s independence

Under the Constitution, several constitutional bodies have been expressly labeled as
"independent."41 The extent of the independence enjoyed by these constitutional bodies however
varies and is to be interpreted with two significant considerations in mind: first, the functions
performed or the powers involved in a given case; and second, consistency of any allowable
interference to these powers and functions, with the principle of checks and balances.

Notably, the independence enjoyed by the Office of the Ombudsman and by the Constitutional
Commissions shares certain characteristics – they do not owe their existence to any act of
Congress, but are created by the Constitution itself; additionally, they all enjoy fiscal autonomy. In
general terms, the framers of the Constitution intended that these "independent" bodies be insulated
from political pressure to the extent that the absence of "independence" would result in the
impairment of their core functions.

In Bengzon v. Drilon,42 involving the fiscal autonomy of the Judiciary, we ruled against the
interference that the President may bring and maintained that the independence and the flexibility of
the Judiciary, the Constitutional Commissions and the Office of the Ombudsman are crucial to our
legal system.

The Judiciary, the Constitutional Commissions, and the Ombudsman must have the independence
and flexibility needed in the discharge of their constitutional duties. The imposition of restrictions and
constraints on the manner the independent constitutional offices allocate and utilize the funds
appropriated for their operations is anathema to fiscal autonomy and violative not only the express
mandate of the Constitution but especially as regards the Supreme Court, of the independence and
separation of powers upon which the entire fabric of our constitutional system is based.

The constitutional deliberations explain the Constitutional Commissions’ need for independence. In
the deliberations of the 1973 Constitution, the delegates amended the 1935 Constitution by
providing for a constitutionally-created Civil Service Commission, instead of one created by law, on
the premise that the effectivity of this body is dependent on its freedom from the tentacles of
politics.43 In a similar manner, the deliberations of the 1987 Constitution on the Commission on Audit
highlighted the developments in the past Constitutions geared towards insulating the Commission on
Audit from political pressure.44

Notably, the Constitution also created an "independent" Commission on Human Rights, although it
enjoys a lesser degree of independence since it is not granted fiscal autonomy in the manner fiscal
autonomy is granted to the constitutional commissions. The lack of fiscal autonomy notwithstanding,
the framers of the 1987 Constitution clearly expressed their desire to keep the Commission
independent from the executive branch and other political leaders:
MR. MONSOD. We see the merits of the arguments of Commissioner Rodrigo. If we explain to him
our concept, he can advise us on how to reconcile his position with ours. The position of the
committee is that we need a body that would be able to work and cooperate with the executive
because the Commissioner is right. Many of the services needed by this commission would need not
only the cooperation of the executive branch of the government but also of the judicial branch of
government. This is going to be a permanent constitutional commission over time. We also want a
commission to function even under the worst circumstance when the executive may not be very
cooperative. However, the question in our mind is: Can it still function during that time? Hence, we
are willing to accept suggestions from Commissioner Rodrigo on how to reconcile this. We realize
the need for coordination and cooperation. We also would like to build in some safeguards that it will
not be rendered useless by an uncooperative executive.

xxxx

MR. GARCIA. xxx Very often, when international commissions or organizations on human rights go
to a country, the most credible organizations are independent human rights bodies. Very often these
are private organizations, many of which are prosecuted, such as those we find in many countries in
Latin America. In fact, what we are proposing is an independent body on human rights, which would
provide governments with credibility precisely because it is independent of the present
administration. Whatever it says on the human rights situation will be credible because it is not
subject to pressure or control from the present political leadership.

Secondly, we all know how political fortunes come and go. Those who are in power yesterday are in
opposition today and those who are in power today may be in the opposition tomorrow. Therefore, if
we have a Commission on Human Rights that would investigate and make sure that the rights of
each one is protected, then we shall have a body that could stand up to any power, to defend the
rights of individuals against arrest, unfair trial, and so on.45

These deliberative considerations abundantly show that the independent constitutional commissions
have been consistently intended by the framers to be independent from executive control or
supervision or any form of political influence. At least insofar as these bodies are concerned,
jurisprudence is not scarce on how the "independence" granted to these bodies prevents
presidential interference.

In Brillantes, Jr. v. Yorac,46 we emphasized that the Constitutional Commissions, which have been
characterized under the Constitution as "independent," are not under the control of the President,
even if they discharge functions that are executive in nature. The Court declared as unconstitutional
the President’s act of temporarily appointing the respondent in that case as Acting Chairman of the
Comelec "however well-meaning"47 it might have been.

In Bautista v. Senator Salonga,48 the Court categorically stated that the tenure of the commissioners
of the independent Commission on Human Rights could not be placed under the discretionary power
of the President:

Indeed, the Court finds it extremely difficult to conceptualize how an office conceived and created by
the Constitution to be independent – as the Commission on Human Rights – and vested with the
delicate and vital functions of investigating violations of human rights, pinpointing responsibility and
recommending sanctions as well as remedial measures therefor, can truly function with
independence and effectiveness, when the tenure in office of its Chairman and Members is made
dependent on the pleasure of the President. Executive Order No. 163-A, being antithetical to the
constitutional mandate of independence for the Commission on Human Rights has to be declared
unconstitutional.
Again, in Atty. Macalintal v. Comelec,49 the Court considered even the mere review of the rules of the
Commission on Elections by Congress a "trampling" of the constitutional mandate of independence
of this body. Obviously, the mere review of rules places considerably less pressure on a
constitutional body than the Executive’s power to discipline and remove key officials of the Office of
the Ombudsman, yet the Court struck down the law as unconstitutional.

The kind of independence enjoyed by the Office of the Ombudsman certainly cannot be inferior – but
is similar in degree and kind – to the independence similarly guaranteed by the Constitution to the
Constitutional Commissions since all these offices fill the political interstices of a republican
democracy that are crucial to its existence and proper functioning.50

c. Section 8(2) of RA No. 6770

vesting disciplinary authority
in the President over the
Deputy Ombudsman violates
the independence of the Office
of the Ombudsman and is thus
unconstitutional

Our discussions, particularly the Court’s expressed caution against presidential interference with the
constitutional commissions, on one hand, and those expressed by the framers of the 1987
Constitution, on the other, in protecting the independence of the Constitutional Commissions, speak
for themselves as overwhelming reasons to invalidate Section 8(2) of RA No. 6770 for violating the
independence of the Office of the Ombudsman.

In more concrete terms, we rule that subjecting the Deputy Ombudsman to discipline and removal by
the President, whose own alter egos and officials in the Executive Department are subject to the
Ombudsman’s disciplinary authority, cannot but seriously place at risk the independence of the
Office of the Ombudsman itself. The Office of the Ombudsman, by express constitutional mandate,
includes its key officials, all of them tasked to support the Ombudsman in carrying out her mandate.
Unfortunately, intrusion upon the constitutionally-granted independence is what Section 8(2) of RA
No. 6770 exactly did. By so doing, the law directly collided not only with the independence that the
Constitution guarantees to the Office of the Ombudsman, but inevitably with the principle of checks
and balances that the creation of an Ombudsman office seeks to revitalize.

What is true for the Ombudsman must be equally and necessarily true for her Deputies who act as
agents of the Ombudsman in the performance of their duties. The Ombudsman can hardly be
expected to place her complete trust in her subordinate officials who are not as independent as she
is, if only because they are subject to pressures and controls external to her Office. This need for
complete trust is true in an ideal setting and truer still in a young democracy like the Philippines
where graft and corruption is still a major problem for the government. For these reasons, Section
8(2) of RA No. 6770 (providing that the President may remove a Deputy Ombudsman) should be
declared void.

The deliberations of the Constitutional Commission on the independence of the Ombudsman fully
support this position. Commissioner Florenz Regalado of the Constitutional Commission expressed
his apprehension that any form of presidential control over the Office of the Ombudsman would
diminish its independence.51 The following exchanges between Commissioners Blas Ople and
Christian Monsod further reveal the constitutional intent to keep the Office of the Ombudsman
independent from the President:

MR. OPLE. xxx

May I direct a question to the Committee? xxx [W]ill the Committee consider later an amendment
xxx, by way of designating the office of the Ombudsman as a constitutional arm for good
government, efficiency of the public service and the integrity of the President of the Philippines,
instead of creating another agency in a kind of administrative limbo which would be accountable to
no one on the pretext that it is a constitutional body?

MR. MONSOD. The Committee discussed that during our committee deliberations and when we
prepared the report, it was the opinion of the Committee — and I believe it still is — that it may not
contribute to the effectiveness of this office of the Ombudsman precisely because many of the
culprits in inefficiency, injustice and impropriety are in the executive department. Therefore, as we
saw the wrong implementation of the Tanodbayan which was under the tremendous influence of the
President, it was an ineffectual body and was reduced to the function of a special fiscal. The whole
purpose of our proposal is precisely to separate those functions and to produce a vehicle that will
give true meaning to the concept of Ombudsman. Therefore, we regret that we cannot accept the
proposition.52

The statements made by Commissioner Monsod emphasized a very logical principle: the Executive
power to remove and discipline key officials of the Office of the Ombudsman, or to exercise any
power over them, would result in an absurd situation wherein the Office of the Ombudsman is given
the duty to adjudicate on the integrity and competence of the very persons who can remove or
suspend its members. Equally relevant is the impression that would be given to the public if the rule
were otherwise. A complainant with a grievance against a high-ranking official of the Executive, who
appears to enjoy the President’s favor, would be discouraged from approaching the Ombudsman
with his complaint; the complainant’s impression (even if misplaced), that the Ombudsman would be
susceptible to political pressure, cannot be avoided. To be sure, such an impression would erode the
constitutional intent of creating an Office of the Ombudsman as champion of the people against
corruption and bureaucracy.

d. The mutual-protection argument for

crafting Section 8(2)of RA No. 6770

In crafting Section 8(2) of RA No. 6770, Congress apparently addressed the concern that a lack of
an external check against the Deputy Ombudsman would result in mutual protection between the
Ombudsman and her Deputies.

While the preceding discussion already suffices to address this concern, it should be added that this
concern stands on shaky grounds since it ignores the existing checks and balances already in place.
On the one hand, the Ombudsman’s Deputies cannot protect the Ombudsman because she is
subject to the impeachment power of Congress. On the other hand, the Ombudsman’s attempt to
cover up the misdeeds of her Deputies can be questioned before the Court on appeal or certiorari.
The same attempt can likewise subject her to impeachment.

The judicial recourse available is only consistent with the nature of the Supreme Court as a non-
political independent body mandated by the Constitution to settle judicial and quasi-judicial disputes,
whose judges and employees are not subject to the disciplinary authority of the Ombudsman and
whose neutrality would be less questionable. The Members of the Court themselves may be
subjected to the impeachment power of Congress.

In these lights, the appeal, if any, of the mutual protection argument becomes distinctly implausible.
At the same time, the Court remains consistent with its established rulings - that the independence
granted to the Constitutional Commissions bars any undue interference from either the Executive or
Congress – and is in full accord with constitutional intent.
e. Congress’ power determines the
manner and causes for the removal
of non-impeachable officers is not a
carte blanch authority

Under Section 2, Article XI of the 1987 Constitution,53 Congress is empowered to determine the
modes of removal from office of all public officers and employees except the President, the Vice-
President, the Members of the Supreme Court, the Members of the Constitutional Commissions, and
the Ombudsman, who are all impeachable officials.

The intent of the framers of the Constitution in providing that "[a]ll other public officers and
employees may be removed from office as provided by law, but not by impeachment" in the second
sentence of Section 2, Article XI is to prevent Congress from extending the more stringent rule of
"removal only by impeachment" to favored public officers.54 Understandably so, impeachment is the
most difficult and cumbersome mode of removing a public officer from office. It is, by its nature, a sui
generis politico-legal process55 that signals the need for a judicious and careful handling as shown by
the process required to initiate the proceeding;56 the one-year limitation or bar for its initiation;57 the
limited grounds for impeachment;58 the defined instrumentality given the power to try impeachment
cases;59 and the number of votes required for a finding of guilt.60 All these argue against the extension
of this removal mechanism beyond those mentioned in the Constitution.

On the practical side, our nation has witnessed the complications and problems an impeachment
proceeding entails, thus justifying its limited application only to the officials occupying the highest
echelons of responsibility in our government. To name a few, some of the negative practical effects
of impeachment are: it stalls legislative work; it is an expensive process in terms of the cost of
prosecution alone; and, more importantly, it is inherently divisive of the nation.61 Thus, in a cost-
benefit analysis of adopting impeachment as a mechanism, limiting Congress’ power to otherwise
legislate on the matter is far more advantageous to the country.

It is in these lights that the second sentence in Section 2, Article XI of the 1987 Constitution should
be read. Contrary to the implied view of the minority, in no way can this provision be regarded as
blanket authority for Congress to provide for any ground of removal it deems fit. While the manner
and cause of removal are left to congressional determination, this must still be consistent with
constitutional guarantees and principles, namely: the right to procedural and substantive due
process; the constitutional guarantee of security of tenure; the principle of separation of powers; and
the principle of checks and balances.62

In short, the authority granted by the Constitution to Congress to provide for the manner and cause
of removal of all other public officers and employees does not mean that Congress can ignore the
basic principles and precepts established by the Constitution.

In the same manner, the congressional determination of the identity of the disciplinary authority is
not a blanket authority for Congress to repose it on whomsoever Congress chooses without running
afoul of the independence enjoyed by the Office of the Ombudsman and without disrupting the
delicate check and balance mechanism under the Constitution. Properly viewed from this
perspective, the core constitutional principle of independence is observed and any possible
absurdity resulting from a contrary interpretation is avoided. In other words, while the Constitution
itself vested Congress with the power to determine the manner and cause of removal of all non-
impeachable officials, this power must be interpreted consistent with the core constitutional principle
of independence of the Office of the Ombudsman. Our observation in Macalintal v. Comelec63 is apt:
The ambit of legislative power under Article VI of the Constitution is circumscribed by other
constitutional provisions. One such provision is Section 1 of Article IX-A of the 1987 Constitution
ordaining that constitutional commissions such as the COMELEC shall be "independent."

While one may argue that the grounds for impeachment under Section 8(2) of RA No. 6770 is
intended as a measure of protection for the Deputy Ombudsman and Special Prosecutor – since
these grounds are not intended to cover all kinds of official wrongdoing and plain errors of judgment
- this argument seriously overlooks the erosion of the independence of the Office of the Ombudsman
that it creates. The mere fact that a statutorily-created sword of Damocles hangs over the Deputy
Ombudsman’s head, by itself, opens up all the channels for external pressures and influence of
officialdom and partisan politics. The fear of external reprisal from the very office he is to check for
excesses and abuses defeats the very purpose of granting independence to the Office of the
Ombudsman.

That a judicial remedy is available (to set aside dismissals that do not conform to the high standard
required in determining whether a Deputy Ombudsman committed an impeachable offense) and that
the President’s power of removal is limited to specified grounds are dismally inadequate when
balanced with the constitutional principle of independence. The mere filing of an administrative case
against the Deputy Ombudsman and the Special Prosecutor before the OP can already result in
their suspension and can interrupt the performance of their functions, in violation of Section 12,
Article XI of the Constitution. With only one term allowed under Section 11, a Deputy Ombudsman or
Special Prosecutor, if removable by the President, can be reduced to the very same ineffective
Office of the Ombudsman that the framers had foreseen and carefully tried to avoid by making these
offices independent constitutional bodies.

At any rate, even assuming that the OP has disciplinary authority over the Deputy Ombudsman, its
decision finding Gonzales guilty of Gross Neglect of Duty and Grave Misconduct constituting
betrayal of public trust is patently erroneous. The OP’s decision perfectly illustrates why the
requirement of impeachment-grounds in Section 8(2) of RA No. 6770 cannot be considered, even at
a minimum, a measure of protection of the independence of the Office of the Ombudsman.

C. The Deputy Ombudsman: The Dismissal Issue

a. The Office of the President’s

finding of gross negligence
has no legal and factual leg to
stand on

The OP’s decision found Gonzales guilty of Gross Neglect of Duty and of Grave Misconduct. The
assailed Decision of the OP reads:

Upon consideration of the First Report, the evidence and allegations of respondent Deputy
Ombudsman himself, and other documentary evidence gathered, this Office finds that the inordinate
and unjustified delay in the resolution of Captain Mendoza’s Motion for Reconsideration timely filed
on 5 November 2009 xxx amounted to gross neglect of duty and/or inefficiency in the performance of
official duty.64

b. No gross neglect of duty or inefficiency

Let us again briefly recall the facts.

 1. November 5, 2009 - Mendoza filed a Motion for Reconsideration of the decision of the
Ombudsman,65 which was followed by a Supplement to the Motion for Reconsideration;66

2. December 14, 200967 - GIPO Garcia, who was assigned to review these motions and
make his recommendation for the appropriate action, received the records of the case;

3. April 5, 2010 – GIPO Garcia released a draft order to be reviewed by his immediate
superior, Dir. Cecilio;68

4. April 27, 2010 – Dir. Cecilio signed and forwarded to Gonzales this draft order;69

5. May 6, 2010 (or nine days after the records were forwarded to Gonzales) – Gonzales
endorsed the draft order for the final approval of the Ombudsman.70

Clearly, when Mendoza hijacked the tourist bus on August 23, 2010, the records of the case were
already pending before Ombudsman Gutierrez.

Gross negligence refers to negligence characterized by the want of even the slightest care, acting or
omitting to act in a situation where there is a duty to act, not inadvertently but willfully and
intentionally, with a conscious indifference to consequences insofar as other persons may be
affected. In the case of public officials, there is gross negligence when a breach of duty is flagrant
and palpable.71

Gonzales cannot be guilty of gross neglect of duty and/or inefficiency since he acted on the case
forwarded to him within nine days. In finding Gonzales guilty, the OP72 relied on Section 8, Rule III of
Administrative Order No. 7 (or the Rules of Procedure of the Office of the Ombudsman, series of
1990, as amended) in ruling that Gonzales should have acted on Mendoza’s Motion for
Reconsideration within five days:

Section 8. Motion for reconsideration or reinvestigation: Grounds – Whenever allowable, a motion for
reconsideration or reinvestigation may only be entertained if filed within ten (10) days from receipt of
the decision or order by the party on the basis of any of the following grounds:

a) New evidence had been discovered which materially affects the order, directive or
decision;

b) Grave errors of facts or laws or serious irregularities have been committed prejudicial to
the interest of the movant.

Only one motion for reconsideration or reinvestigation shall be allowed, and the Hearing Officer shall
resolve the same within five (5) days from the date of submission for resolution. [emphasis and
underscore ours]

Even if we consider this provision to be mandatory, the period it requires cannot apply to Gonzales
since he is a Deputy Ombudsman whose obligation is to review the case; he is not simply a Hearing
Officer tasked with the initial resolution of the motion. In Section 6 of Administrative Order No. 7 on
the resolution of the case and submission of the proposed decision, the period for resolving the case
does not cover the period within which it should be reviewed:

Section 6. Rendition of decision. – Not later than thirty (30) days after the case is declared submitted
for resolution, the Hearing Officer shall submit a proposed decision containing his findings and
recommendation for the approval of the Ombudsman. Said proposed decision shall be reviewed by
the Directors, Assistant Ombudsmen and Deputy Ombudsmen concerned. With respect to low
ranking public officials, the Deputy Ombudsman concerned shall be the approving authority. Upon
approval, copies thereof shall be served upon the parties and the head of the office or agency of
which the respondent is an official or employee for his information and compliance with the
appropriate directive contained therein. [italics and emphases supplied]

Thus, the OP’s ruling that Gonzales had been grossly negligent for taking nine days, instead of five
days, to review a case was totally baseless.

c. No actionable failure to supervise subordinates

The OP’s claims that Gonzales could have supervised his subordinates to promptly act on
Mendoza’s motion and apprised the Tanodbayan of the urgency of resolving the same are similarly
groundless.

The Office of the Ombudsman is not a corner office in our bureaucracy. It handles numerous cases
that involve the potential loss of employment of many other public employees. We cannot
conclusively state, as the OP appears to suggest, that Mendoza’s case should have been prioritized
over other similar cases.

The Court has already taken judicial notice of the steady stream of cases reaching the Office of the
Ombudsman.73 This consideration certainly militates against the OSG’s observation that there was "a
grossly inordinate and inexcusable delay"74 on the part of Gonzales.

Equally important, the constitutional guarantee of "speedy disposition of cases" before, among
others, quasi-judicial bodies,75 like the Office of the Ombudsman, is itself a relative concept.76 Thus,
the delay, if any, must be measured in this objective constitutional sense. Unfortunately, because of
the very statutory grounds relied upon by the OP in dismissing Gonzales, the political and, perhaps,
"practical" considerations got the better of what is legal and constitutional.

The facts do not show that Gonzales’ subordinates had in any way been grossly negligent in their
work. While GIPO Garcia reviewed the case and drafted the order for more than three months, it is
noteworthy that he had not drafted the initial decision and, therefore, had to review the case for the
first time.77 Even the Ombudsman herself could not be faulted for acting on a case within four
months, given the amount of cases that her office handles.

The point is that these are not inordinately long periods for the work involved: examination of the
records, research on the pertinent laws and jurisprudence, and exercise of legal judgment and
discretion. If this Court rules that these periods per se constitute gross neglect of duty, the
Ombudsman’s constitutional mandate to prosecute all the erring officials of this country would be
subjected to an unreasonable and overwhelming constraint. Similarly, if the Court rules that these
periods per se constitute gross neglect of duty, then we must be prepared to reconcile this with the
established concept of the right of speedy disposition of cases – something the Court may be hard
put to justify.

d. No undue interest

The OP also found Gonzales guilty of showing undue interest in Mendoza’s case by having the case
endorsed to the Office of the Ombudsman and by resolving it against Mendoza on the basis of the
unverified complaint-affidavit of the alleged victim, Kalaw.
The fact that Gonzales had Mendoza’s case endorsed to his office lies within his mandate, even if it
were based merely on the request of the alleged victim’s father. The Constitution empowers the
Ombudsman and her Deputies to act promptly on complaints filed in any form or manner against any
public official or employee of the government.78 This provision is echoed by Section 13 of RA No.
6770,79 and by Section 3, Rule III of Administrative Order No. 7, series of 1990, as amended.80

Moreover, Gonzales and his subordinates did not resolve the complaint only on the basis of the
unverified affidavit of Kalaw. Based on the prosecution officer’s recommendations, the finding of guilt
on the part of Mendoza, et al. was based on their admissions as well. Mendoza, et al. admitted that
they had arrested Kalaw based on two traffic violations and allowed him to stay the whole night until
the following morning in the police precinct. The next morning, Kalaw was allowed to leave the
precinct despite his failure to show a valid license and based merely on his promise to return with
the proper documents.81 These admissions led Gonzales and his staff to conclude that Mendoza, et
al. irregularly acted in apprehending Kalaw, since the proper procedure for the apprehension of
traffic violators would be to give them a ticket and to file a case, when appropriate.82

Lastly, we cannot deduce undue interest simply because Gonzales’ decision differs from the
decision of the PNP-IAS (which dismissed the complaint against Mendoza). To be sure, we cannot
tie the hands of any judicial or quasi-judicial body by ruling that it should always concur with the
decisions of other judicial or quasi-judicial bodies which may have also taken cognizance of the
case. To do so in the case of a Deputy Ombudsman would be repugnant to the independence that
our Constitution has specifically granted to this office and would nullify the very purpose for which it
was created.

e. Penalty of dismissal totally

incommensurate with established facts

Given the lack of factual basis for the charges against Gonzales, the penalty of removal imposed by
the OP necessarily suffers grave infirmity. Basic strictures of fair play dictate that we can only be
held liable for our own misdeeds; we can be made to account only for lapses in our responsibilities.
It is notable that of all the officers, it was Gonzales who took the least time — nine days — followed
by Cecilio, who took 21 days; Garcia — the writer of the draft — took less than four months, and the
Ombudsman, less than four months until the kidnapping incident rendered Mendoza’s motion moot.

In these lights, the decision of the OP is clearly and patently wrong. This conclusion, however, does
not preclude the Ombudsman from looking into any other possible administrative liability of Gonzales
under existing Civil Service laws, rules and regulations.

D. The Special Prosecutor: The Constitutional Issue

The 1987 Constitution created a new, independent Office of the Ombudsman. The existing
Tanodbayan at the time83 became the Office of the Special Prosecutor under the 1987 Constitution.
While the composition of the independent Office of the Ombudsman under the 1987 Constitution
does not textually include the Special Prosecutor, the weight of the foregoing discussions on the
unconstitutionality of Section 8(2) of RA No. 6770 should equally apply to the

Special Prosecutor on the basis of the legislative history of the Office of the Ombudsman as
expounded in jurisprudence.

Under the 1973 Constitution,84 the legislature was mandated to create the Office of the Ombudsman,
known as the Tanodbayan, with investigative and prosecutorial powers. Accordingly, on June 11,
1978, President Ferdinand Marcos enacted PD No. 1487.85
Under PD No. 1486,86 however, the "Chief Special Prosecutor" (CSP) was given the "exclusive
authority" to conduct preliminary investigation and to prosecute cases that are within the jurisdiction
of the Sandiganbayan.87 PD No. 1486 expressly gave the Secretary of Justice the power of control
and supervision over the Special Prosecutor.88 Consistent with this grant of power, the law also
authorized the Secretary of Justice to appoint or detail to the Office of the CSP "any officer or
employee of Department of Justice or any Bureau or Office under the executive supervision thereof"
to assist the Office of the CSP.

In December 1978, PD No. 160789 practically gave back to the Tanodbayan the powers taken away
from it by the Office of the CSP. The law "created in the Office of the Tanodbayan an Office of the
Chief Special Prosecutor" under the Tanodbayan’s control,90 with the exclusive authority to conduct
preliminary investigation and prosecute all cases cognizable by the Sandiganbayan. Unlike the
earlier decree, the law also empowered the Tanodbayan to appoint Special Investigators and
subordinate personnel and/or to detail to the Office of the CSP any public officer or employees who
"shall be under the supervision and control of the Chief Special Prosecutor."91 In 1979, PD No. 1630
further amended the earlier decrees by transferring the powers previously vested in the Special
Prosecutor directly to the Tanodbayan himself.92

This was the state of the law at the time the 1987 Constitution was ratified. Under the 1987
Constitution, an "independent Office of the Ombudsman" is created.93 The existing Tanodbayan is
made the Office of the Special Prosecutor, "who shall continue to function and exercise its powers
as now94 or hereafter may be provided by law."95

Other than the Ombudsman’s Deputies, the Ombudsman shall appoint all other officials and
employees of the Office of the Ombudsman.96 Section 13(8), Article XI of the 1987 Constitution
provides that the Ombudsman may exercise "such other powers or perform such functions or duties
as may be provided by law." Pursuant to this constitutional command, Congress enacted RA No.
6770 to provide for the functional and structural organization of the Office of the Ombudsman and
the extent of its disciplinary authority.

In terms of composition, Section 3 of RA No. 6770 defines the composition of the Office of the
Ombudsman, including in this Office not only the offices of the several Deputy Ombudsmen but the
Office of the Special Prosecutor as well. In terms of appointment, the law gave the President the
authority to appoint the Ombudsman, his Deputies and the Special Prosecutor, from a list of
nominees prepared by the Judicial and Bar Council. In case of vacancy in these positions, the law
requires that the vacancy be filled within three (3) months from occurrence.97

The law also imposes on the Special Prosecutor the same qualifications it imposes on the
Ombudsman himself/herself and his/her deputies.98 Their terms of office,99 prohibitions and
qualifications,100 rank and salary are likewise the same.101 The requirement on disclosure102 is imposed
on the Ombudsman, the Deputies and the Special Prosecutor as well. In case of vacancy in the
Office of the Ombudsman, the Overall Deputy cannot assume the role of Acting Ombudsman; the
President may designate any of the Deputies or the Special Prosecutor as Acting
Ombudsman.103 The power of the Ombudsman and his or her deputies to require other government
agencies to render assistance to the Office of the Ombudsman is likewise enjoyed by the Special
Prosecutor.104

Given this legislative history, the present overall legal structure of the Office of the Ombudsman,
both under the 1987 Constitution and RA No. 6770, militates against an interpretation that would
insulate the Deputy Ombudsman from the disciplinary authority of the OP and yet expose the
Special Prosecutor to the same ills that a grant of independence to the Office of the Ombudsman
was designed for.
Congress recognized the importance of the Special Prosecutor as a necessary adjunct of the
Ombudsman, aside from his or her deputies, by making the Office of the Special Prosecutor an
organic component of the Office of the Ombudsman and by granting the Ombudsman control and
supervision over that office.105 This power of control and supervision includes vesting the Office of the
Ombudsman with the power to assign duties to the Special Prosecutor as he/she may deem
fit. Thus, by constitutional design, the Special Prosecutor is by no means an ordinary subordinate
1âwphi1

but one who effectively and directly aids the Ombudsman in the exercise of his/her duties, which
include investigation and prosecution of officials in the Executive Department.

Under Section 11(4) of RA No. 6770, the Special Prosecutor handles the prosecution of criminal
cases within the jurisdiction of the Sandiganbayan and this prosecutorial authority includes high-
ranking executive officials. For emphasis, subjecting the Special Prosecutor to disciplinary and
removal powers of the President, whose own alter egos and officials in the Executive Department
are subject to the prosecutorial authority of the Special Prosecutor, would seriously place the
independence of the Office of the Ombudsman itself at risk.

Thus, even if the Office of the Special Prosecutor is not expressly made part of the composition of
the Office of the Ombudsman, the role it performs as an organic component of that Office militates
against a differential treatment between the Ombudsman’s Deputies, on one hand, and the Special
Prosecutor himself, on the other. What is true for the Ombudsman must be equally true, not only for
her Deputies but, also for other lesser officials of that Office who act directly as agents of the
Ombudsman herself in the performance of her duties.

In Acop v. Office of the Ombudsman,106 the Court was confronted with an argument that, at bottom,
the Office of the Special Prosecutor is not a subordinate agency of the Office of the Ombudsman
and is, in fact, separate and distinct from the latter. In debunking that argument, the Court said:

Firstly, the petitioners misconstrue Commissioner Romulo's statement as authority to advocate that
the intent of the framers of the 1987 Constitution was to place the Office of the Special Prosecutor
under the Office of the President. Xxx

In the second place, Section 7 of Article XI expressly provides that the then existing Tanodbayan, to
be henceforth known as the Office of the Special Prosecutor, "shall continue to function and exercise
its powers as now or hereafter may be provided by law, except those conferred on the Office of the
Ombudsman created under this Constitution." The underscored phrase evidently refers to the
Tanodbayan's powers under P.D. No. 1630 or subsequent amendatory legislation. It follows then
that Congress may remove any of the Tanodbayan's/Special Prosecutor's powers under P.D. N0.
1630 or grant it other powers, except those powers conferred by the Constitution on the Office of the
Ombudsman.

Pursuing the present line of reasoning, when one considers that by express mandate of paragraph
8, Section 13, Article XI of the Constitution, the Ombudsman may "exercise such other powers or
perform functions or duties as may be provided by law," it is indubitable then that Congress has the
power to place the Office of the Special Prosecutor under the Office of the Ombudsman.107

Thus, under the present Constitution, there is every reason to treat the Special Prosecutor to be at
par with the Ombudsman's deputies, at least insofar as an extraneous disciplinary authority is
concerned, and must also enjoy the same grant of independence under the Constitution.

III. SUMMARY OF VOTING

In the voting held on January 28, 2014, by a vote of 8-7,108 the Court resolved to reverse its
September 4, 2012 Decision insofar as petitioner Gonzales is concerned (G.R. No. 196231). We
declared Section 8(2) of RA No. 6770 unconstitutional by granting disciplinary jurisdiction to the
President over a Deputy Ombudsman, in violation of the independence of the Office of the
Ombudsman.

However, by another vote of 8-7,109 the Court resolved to maintain the validity of Section 8(2) of RA
No. 6770 insofar as Sulit is concerned. The Court did not consider the Office of the Special
Prosecutor to be constitutionally within the Office of the Ombudsman and is, hence, not entitled to
the independence the latter enjoys under the Constitution.

WHEREFORE, premises considered, the Court resolves to declare Section 8(2)

UNCONSTITUTIONAL. This ruling renders any further ruling on the dismissal of Deputy
Ombudsman Emilio Gonzales III unnecessary, but is without prejudice to the power of the
Ombudsman to conduct an administrative investigation, if warranted, into the possible administrative
liability of Deputy Ombudsman Emilio Gonzales III under pertinent Civil Service laws, rules and
regulations.

SO ORDERED.

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. Nonetheless, without
1âw phi 1

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 Rules instead 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). Subsequently, with the effectivity of the 1985 Rules on January 1, 1985, the
1âwphi1

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.43 Speaking 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 party57 and 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.