Cases: Namoge vs Ombudsman

Quisay vs. People, Jan 13, 2016 Enemicio vs Ombudsman

ABS CBN Corp vs. Gozon, et al, March 11, 2015 Quizon vs. Disierto

De Los Santos-Dio vs. CA, June 26, 2013 Soliven vs Macasiar

Mendoza vs. People, April 21, 2014 Ho vs People

Leviste vs. Almeda, Aug 3, 2010

Arroyo vs. DOJ, Sept 18, 2012

People vs. Judge Yadao, Nov. 13, 2013

Sierra vs. Lopez, Aug 29, 2008

Baviera vs. Paglinawan, Feb 8, 2007

Borlongan vs. Pena, May 5, 2010

CASES mentioned during discussion

Yusop vs Sandiganbayan

Honasan vs. Panel of Investigating Pros in DOJ

Uy vs. Sandiganbayan

Webb vs De leon

Ladlad vs Velasco

People vs Hubert Webb

Dimatulac vs. Villon

Roberts vs CA

Ledesma vs CA

Fabian vs Disierto
 FIRST DIVISION
January 13, 2016
G.R. No. 216920
GIRLIE M. QUISAY, Petitioner, 
vs.
PEOPLE OF THE PHILIPPINES, Respondent.
DECISION
PERLAS-BERNABE, J.:
Assailed in this petition for review on certiorari1 are the Decision2 dated October 10,
2014 and the Resolution3 dated January 30, 2015 of the Court of Appeals (CA) in
CA-G.R. SP No. 131968, which affirmed the denial of petitioner Girlie M. Quisay's
(petitioner) Motion to Quash before the Regional Trial Court of Makati, Branch 144
(RTC).
The Facts
On December 28, 2012, the Office of the City Prosecutor of Makati City (OCP-
Makati) issued a Pasiya4 or Resolution finding probable cause against petitioner for
violation of Section 10 of Republic Act No. (RA) 7610, 5otherwise known as the
"Special Protection of Children Against Abuse Exploitation and Discrimination Act."
Consequently, a Pabatid Sakdal6 or Information was filed before the RTC on
January 11, 2013 charging petitioner of such crime.
On April 12, 2013, petitioner moved for the quashal of the Information against her on
the ground of lack of authority of the person who filed the same before the RTC. In
support of her motion, petitioner pointed out that the Pasiya  issued by the OCP-
Makati was penned by Assistant City Prosecutor Estefano H. De La Cruz (ACP De
La Cruz) and approved by Senior Assistant City Prosecutor Edgardo G. Hirang
(SACP Hirang), while the Pabatid Sakdal  was penned by ACP De La Cruz, without
any approval from any higher authority, albeit with a Certification claiming that ACP
De La Cruz has prior written authority or approval from the City Prosecutor in filing
the said Information. In this regard, petitioner claimed that nothing in the
aforesaid Pasiya  and Pabatid Sakdal  would show that ACP De La Cruz and/or
SACP Hirang had prior written authority or approval from the City Prosecutor to file
or approve the filing of the Information against her. As such, the Information must be
quashed for being tainted with a jurisdictional defect that cannot be cured. 7
In its Comment and Opposition,8 the OCP-Makati countered that the review
prosecutor, SACP Hirang, was authorized to approve the Pasiya  pursuant to OCP-
Makati Office Order No. 32.9 Further, it maintained that the Pabatid Sakdal  was filed
with the prior approval of the City Prosecutor as shown in the Certification in the
Information itself.10
The RTC Ruling
In an Order11 dated May 8, 2013, the RTC denied petitioner's motion to quash for
lack of merit. It found the Certification attached to the Pabatid Sakdal  to have
sufficiently complied with Section 4, Rule 112 of the Rules of Court which requires
the prior written authority or approval by, among others, the City Prosecutor, in the
filing of Informations.12
Petitioner moved for reconsideration,13 which was, however, denied in an
Order14 dated July 10, 2013. Aggrieved, petitioner elevated the matter to the
CA via  a petition for certiorari.15
The CA Ruling
In a Decision16 dated October 10, 2014, the CA affirmed the RTC ruling. It held that
pursuant to Section 9 of RA 10071,17 otherwise known as the "Prosecution Service
Act of 201 O," as well as OCP-Makati Office Order No. 32, the City Prosecutor of
Makati authorized SACP Hirang to approve the issuance of, inter alia,  resolutions
finding probable cause and the filing of Informations before the courts. As such,
SACP Hirang may, on behalf of the City Prosecutor, approve the Pasiya  which
found probable cause to indict petitioner of violation of Section 10 of RA 7610. 18
Further, it held that the Certification made by ACP De La Cruz in the Pabatid
Sakdal  clearly indicated that the same was filed after the requisite preliminary
investigation and with the prior written authority or approval of the City Prosecutor.
In this regard, the CA opined that such Certification enjoys the presumption of
regularity accorded to a public officer's performance of official functions, in the
absence of convincing evidence to the contrary.19
Undaunted, petitioner moved for reconsideration,20 but was denied in a
Resolution21 dated January 30, 2015; hence, this petition.
The Issue Before the Court
The core issue for the Court's resolution is whether or not the CA correctly held that
the R TC did not gravely abuse its discretion in dismissing petitioner's motion to
quash.
The Court's Ruling
The petition is meritorious.
Section 4, Rule 112 of the 2000 Revised Rules on Criminal Procedure states that
the filing of a complaint or information requires a prior written authority or approval
of the named officers therein before a complaint or information may be filed before
the courts, viz.:
SECTION 4. Resolution of investigating prosecutor and its review.  - If the
investigating prosecutor finds cause to hold the respondent for trial, he shall prepare
the resolution and information. He shall certify under oath in the information that he,
or as shown by the record, an authorized officer, has personally examined the
complainant and his witnesses; that there is reasonable ground to believe that a
crime has been committed and that the accused is probably guilty thereof; that the
accused was informed of the complaint and of the evidence submitted against him;
and that he was given an opportunity to submit controverting evidence. Otherwise,
he shall recommend the dismissal of the complaint.
Within five (5) days from his resolution, he shall forward the record of the case to the
provincial or city prosecutor or chief state prosecutor, or to the Ombudsman or his
deputy in cases of offenses cognizable by the Sandiganbayan  in the exercise of its
original jurisdiction. They shall act on the resolution within ten (10) days from their
receipt thereof and shall immediately inform the parties of such action. 1âwphi1
No complaint or information may be filed or dismissed by an investigating
prosecutor without the prior written authority or approval of the provincial or city
prosecutor or chief state prosecutor or the Ombudsman or his deputy.
x x x x (Emphases and underscoring supplied)
Thus, as a general rule, complaints or informations filed before the courts without
the prior written authority or approval of the foregoing authorized officers renders the
same defective and, therefore, subject to quashal pursuant to Section 3 (d), Rule 11
7 of the same Rules, to wit:
SECTION 3. Grounds.  - The accused may move to quash the complaint or
information on any of the following grounds:
xxxx
(d) That the officer who filed the information had no authority to do so;
x x x x (Emphasis and underscoring supplied)
In this relation, People v. Garfin22 firmly instructs that the filing of an Information by
an officer without the requisite authority to file the same constitutes a jurisdictional
infirmity which cannot be cured by silence, waiver, acquiescence, or even by
express consent. Hence, such ground may be raised at any stage of the
proceedings.23
In the case at bar, the CA affirmed the denial of petitioner's motion to quash on the
grounds that: (a)  the City Prosecutor ofMakati may delegate its authority to approve
the filing of the Pabatid Sakdal  pursuant to Section 9 of RA 10071, as well as OCP-
Makati Office Order No. 32; and (b)  the Pabatid Sakdal  contained a Certification
stating that its filing before the RTC was with the prior written authority or approval
from the City Prosecutor.
The CA correctly held that based on the wordings of Section 9 of RA 10071, which
gave the City Prosecutor the power to "[i]nvestigate and/or cause to be
investigated  all charges of crimes, misdemeanors and violations of penal laws and
ordinances within their respective jurisdictions, and have the necessary information
or complaint prepared or made and filed  against the persons accused,"24 he may
indeed delegate his power to his subordinates as he may deem necessary in the
interest of the prosecution service. The CA also correctly stressed that it is under
the auspice of this provision that the City Prosecutor of Makati issued OCP-Makati
Office Order No. 32, which gave division chiefs or review prosecutors "authority to
approve or act on any resolution, order, issuance, other action, and any information
recommended by any prosecutor for approval,"25 without necessarily diminishing the
City Prosecutor's authority to act directly in appropriate cases. 26 By virtue of the
foregoing issuances, the City Prosecutor validly designated SACP Hirang, Deputy
City Prosecutor Emmanuel D. Medina, and Senior Assistant City Prosecutor William
Celestino T. Uy as review prosecutors for the OCP-Makati. 27
In this light, the Pasiya  or Resolution finding probable cause to indict petitioner of
the crime charged, was validly made as it bore the approval of one of the
designated review prosecutors for OCP-Makati, SACP Hirang, as evidenced by his
signature therein.
Unfortunately, the same could not be said of the Pabatid Sakdal  or Information filed
before the RTC, as there was no showing that it was approved by either the City
Prosecutor of Makati or any of the OCPMakati' s division chiefs or review
prosecutors. All it contained was a Certification from ACP De La Cruz which stated,
among others, that "DAGDAG KO PANG PINATUTUNAYAN na ang paghahain ng
sakdal na ito ay may nakasulat na naunang pahintulot o pagpapatibay ng
Panlunsod na Taga-Usig"28 - which translates to "and that the filing of the
Information is with the prior authority and approval of the City Prosecutor."
In the cases of People v. Garfin,29 Turingan v. Garfin,30 and Tolentino v.
Paqueo,31 the Court had already rejected similarly-worded certifications, uniformly
holding that despite such certifications, the Informations were defective as it was
shown that the officers filing the same in court either lacked the authority to do so or
failed to show that they obtained prior written authority from any of those authorized
officers enumerated in Section 4, Rule 112 of the 2000 Revised Rules of Criminal
Procedure.
Here, aside from the bare and self-serving Certification, there was no proof that
ACP De La Cruz was authorized to file the Pabatid Sakdal  or Information before the
RTC by himself. Records are bereft of any showing that the City Prosecutor of
Makati had authorized ACP De La Cruz to do so by giving him prior written authority
or by designating him as a division chief or review prosecutor of OCP-Makati. There
is likewise nothing that would indicate that ACP De La Cruz sought the approval of
either the City Prosecutor or any of those authorized pursuant to OCP-Makati Office
Order No. 32 in filing the Pabatid Sakdal.  Quite frankly, it is simply baffling how ACP
De La Cruz was able to have the Pasiya  approved by designated review prosecutor
SACP Hirang but failed to have the Pabatid Sakdal  approved by the same person or
any other authorized officer in the OCP-Makati.
In view of the foregoing circumstances, the CA erred in according the Pabatid
Sakdal  the presumption of regularity in the performance of official functions solely
on the basis of the Certification made by ACP De La Cruz considering the absence
of any evidence on record clearly showing that ACP De La Cruz: (a)  had any
authority to file the same on his own; or (b)  did seek the prior written approval from
those authorized to do so before filing the Information before the RTC.
In conclusion, the CA erred in affirming the RTC's dismissal of petitioner's motion to
quash as the Pabatid Sakdal  or Information suffers from an incurable infirmity - that
the officer who filed the same before the RTC had no authority to do so. Hence,
the Pabatid Sakdal  must be quashed, resulting in the dismissal of the criminal case
against petitioner.
As a final note, it must be stressed that "[t]he Rules of Court governs the pleading,
practice, and procedure in all courts of the Philippines. For the orderly administration
of justice, the provisions contained therein should be followed by all litigants, but
especially by the prosecution arm of the Govemment."32
WHEREFORE, the petition is GRANTED. The Decision dated October 10, 2014 and
the Resolution dated January 30, 2015 of the Court of Appeals in CA-G.R. SP No.
131968 are hereby REVERSED and SET ASIDE. Accordingly, the Information
against petitioner Girlie M. Quisay is QUASHED and the criminal case against her
is DISMISSED.
SO ORDERED.
 SECOND DIVISION
G.R. No. 195956, March 11, 2015
ABS-CBN CORPORATION, Petitioner, v. FELIPE GOZON, GILBERTO R. DUAVIT,
JR., MARISSA L. FLORES, JESSICA A. SOHO, GRACE DELA PE�A-REYES,
JOHN OLIVER T. MANALASTAS, JOHN DOES AND JANE DOES, Respondents.
DECISION
LEONEN, J.:
The main issue in this case is whether there is probable cause to charge
respondents with infringement under Republic Act No. 8293, otherwise known as
the Intellectual Property Code. The resolution of this issue requires clarification of
the concept of "copyrightable material" in relation to material that is rebroadcast live
as a news story. We are also asked to rule on whether criminal prosecution for
infringement of copyrightable material, such as live rebroadcast, can be negated by
good faith.
ABS-CBN Corporation (ABS-CBN) filed the Petition for Review on Certiorari 1 to
assail the November 9, 2010 Decision2 and the March 3, 2011 Resolution3 of the
Court of Appeals. The Court of Appeals reinstated the Department of Justice
Resolution dated August 1, 2005 that ordered the withdrawal of the Information
finding probable cause for respondents' violation of Sections 177 4 and 2115 of the
Intellectual Property Code.6 Respondents are officers and employees of GMA
Network, Inc. (GMA-7). They are: Felipe Gozon (Gozon), GMA-7 President; Gilberto
R. Duavit, Jr. (Duavit, Jr.), Executive Vice-President; Marissa L. Flores (Flores),
Vice-President for News and Public Affairs; Jessica A. Soho (Soho), Director for
News; Grace D�la Pe�a-Reyes (Dela Pe�a-Reyes), Head of News and Public
Affairs; John Oliver Manalastas '(Manalastas), Program Manager; and others.
The controversy arose from GMA-7's news coverage on the homecoming of Filipino
overseas worker and hostage victim Angelo dela Cruz on July 22, 2004. As
summarized by the Court of Appeals:chanroblesvirtuallawlibrary
Overseas Filipino worker Angelo dela Cruz was kidnapped by Iraqi militants and as
a condition for his release, a demand was made for the withdrawal of Filipino troops
in Iraq. After negotiations, he was released by his captors and was scheduled to
return to the country in the afternoon of 22 July 2004. Occasioned by said
homecoming and the public interest it generated, both . . . GMA Network, Inc. . . .
and [petitioner] made their respective broadcasts and coverage of the live event. 7
ABS-CBN "conducted live audio-video coverage of and broadcasted the arrival of
Angelo dela Cruz at the Ninoy Aquino International Airport (NAIA) and the
subsequent press conference."8 ABS-CBN allowed Reuters Television Service
(Reuters) to air the footages it had taken earlier under a special embargo
agreement.9
ABS-CBN alleged that under the special embargo agreement, any of the footages it
took would be for the "use of Renter's international subscribers only, and shall be
considered and treated by Reuters under 'embargo' against use by other
subscribers in the Philippines. . . . [N]o other Philippine subscriber of Reuters would
be allowed to use ABS-CBN footage without the latter's consent." 10
GMA-7, to which Gozon, Duavit, Jr., Flores, Soho, Dela Pe�a-Reyes, and
Manalastas are connected, "assigned and stationed news reporters and technical
men at the NAIA for its live broadcast and non-live news coverage of the arrival of
dela Cruz."11 GMA-7 subscribes to both Reuters and Cable News Network (CNN). It
received a live video feed of the coverage of Angelo dela Cruz's arrival from
Reuters.12
GMA-7 immediately carried the live newsfeed in its program "Flash Report,"
together with its live broadcast.13 Allegedly, GMA-7 did not receive any notice or was
not aware that Reuters was airing footages of ABS-CBN. 14 GMA-7's news control
room staff saw neither the "No Access Philippines" notice nor a notice that the video
feed was under embargo in favor of ABS-CBN.15
On August 13, 2004, ABS-CBN filed the Complaint for copyright infringement under
Sections 17716 and 21117 of the Intellectual Property Code.18
On December 3, 2004, Assistant City Prosecutor Dindo Venturanza issued the
Resolution19 finding probable cause to indict Dela Pe�a-Reyes and
Manalastas.20 Consequently, the Information21 for violation of the Intellectual
Property Code was filed on December 17, 2004. It reads:chanroblesvirtuallawlibrary
That on or about the 22nd of July 2004, in Quezon City, Philippines, the above-
named accused, conspiring together, confederating with and mutually helping each
other, being the Head of News Operations and the Program Manager, respectively,
for the News and Public Affairs Department of GMA Network, Inc., did then and
there, willfully, unlawfully and feloniously use and broadcast the footage of the
arrival of Angelo [d]ela Cruz at the Ninoy Aquino International Airport of which ABS-
CBN holds the exclusive ownership and copyright by then and there using, airing,
and broadcasting the said footage in its news program "FLASH REPORT" without
first obtaining the consent or authority of said copyright owner, to their damage and
prejudice.
Contrary to law.22
On January 4, 2005, respondents filed the Petition for Review before the
Department of Justice.23 In the Resolution (Gonzalez Resolution) dated August 1,
2005, Department of Justice Secretary Raul M. Gonzalez (Secretary Gonzalez)
ruled in favor of respondents and held that good faith may be raised as a defense in
the case.24 The dispositive portion of the Resolution
reads:chanroblesvirtuallawlibrary
WHEREFORE,� THE PETITION FOR REVIEW FILED BY GMA-7 in I.S. No. 04-
10458 is considered meritorious and is hereby GRANTED. This case is
hereby Dismissed, the resolution of the City Prosecutor of Quezon City is hereby
reversed and the same is ordered to withdraw the information if any and report
action taken to this office within ten (10) days.25 (Emphasis in the original)
Both parties moved for reconsideration of the Gonzalez Resolution. 26
Meanwhile, on January 19, 2005, the trial court granted the Motion to Suspend
Proceedings filed earlier by Dela Pe�a-Reyes and Manalastas.27 The trial court
Order reads:chanroblesvirtuallawlibrary
Perusing the motion, the court finds that a petition for review was filed with the
Department of Justice on January 5, 2005 as confirmed by the public prosecutor.
Under Section 11 (c), Rule 116 of the Rules of Criminal Procedure, once a petition
for review is filed with the Department of Justice, a suspension of the criminal
proceedings may be allowed by the court.
Accordingly, to allow the Department of Justice the opportunity to act on said
petition for review, let the proceedings on this case be suspended for a period of
sixty (60) days counted from January 5, 2005, the date the petition was filed with the
Department of Justice. The arraignment of the accused on February 1, 2005 is
accordingly cancelled. Let the arraignment be rescheduled to March 8, 2005 at 8:30
a.m. The accused through counsel are notified in open court.
SO ORDERED.28
On June 29, 2010, Department of Justice Acting Secretary Alberto C. Agra
(Secretary Agra) issued the Resolution (Agra Resolution) that reversed the
Gonzalez Resolution and found probable cause to charge Dela Pe�a-Reyes and
Manalastas for violation of the Intellectual Property Code. 29 Secretary Agra also
found probable cause to indict Gozon, Duavit, Jr., Flores, and Soho for the same
violation.30 He ruled that:chanroblesvirtuallawlibrary
[w]hile good faith may be a defense in copyright infringement, the same is a
disputable presumption that must be proven in a full-blown trial. Disputable
presumptions may be contradicted and overcome by other evidence. Thus, a full-
blown trial is the proper venue where facts, issues and laws are evaluated and
considered. The very purpose of trial is to allow a party to present evidence to
overcome the disputable presumptions involved.31
The dispositive portion of the Agra Resolution provides:chanroblesvirtuallawlibrary
WHEREFORE, premises considered:
(a) The Motion for Reconsideration filed by appellees ABS-CBN Broadcasting
Corporation (ABS-CBN) of our Resolution promulgated on August 1, 2005
(Resolution No. 364, Series of 2005) and the Petition for Review filed by
complainant-appellant ABS-CBN in I.S. No. 04-10458 on April 10, 2006, are
GRANTED and the City Prosecutor of Quezon City is hereby ordered to file the
necessary Information for violation of Section 177 and 211 of Republic Act No. 8293
against GMA-7. Felipe L. Gozon, Gilberto R. Duavit, Jr., Marissa L. Flores, Jessica
A. Soho, Grace Dela Pena-Reyes, John Oliver T. Manalastas[.]
SO ORDERED.32 (Emphasis in the original)
Respondents assailed the Agra Resolution through the Petition for Certiorari with
prayer for issuance of a temporary restraining order and/or Writ of Preliminary
Injunction on September 2, 2010 before the Court of Appeals. In the Resolution
dated September 13, 2010, the Court of Appeals granted the temporary restraining
order preventing the Department of Justice from enforcing the Agra Resolution. 33
On November 9, 2010, the Court of Appeals rendered the Decision granting the
Petition and reversing and setting aside the Agra Resolution. 34 The Court of Appeals
held that Secretary Agra committed errors of jurisdiction in issuing the assailed
Resolution.� Resolving the issue of copyright infringement, the Court of Appeals
said:chanroblesvirtuallawlibrary
Surely, private respondent has a copyright of its news coverage. Seemingly, for
airing said video feed, petitioner GMA is liable under the provisions of the
Intellectual Property Code, which was enacted purposely to protect copyright
owners from infringement. However, it is an admitted fact that petitioner GMA had
only aired a five (5) second footage of the disputed live video feed that it had
received from Reuters and CNN as a subscriber. Indeed, petitioners had no notice
of the right of ownership of private respondent over the same. Without notice of the
"No Access Philippines" restriction of the live video feed, petitioner cannot he
faulted for airing a live video feed from Reuters and CNN.
Verily, as aptly opined by Secretary Gonzalez in his earlier Resolution, the act of
petitioners in airing the five (5) second footage was undeniably attended by good
faith and it thus serves to exculpate them from criminal liability under the
Code.� While the Intellectual Properly Code is a special law, and thus generally
categorized as malum prohibitum, it bears to stress that the provisions of the Code
itself do not ipso facto penalize a person or entity for copyright infringement by the
mere fact that one had used a copyrighted work or material.
Certainly so, in the exercise of one's moral and economic or copyrights, the very
provisions of Part IV of the Intellectual Property Code provide for the scope and
limitations on copyright protection under Section 184 and in fact permit fair use of
copyrighted work under Section 185. With the aforesaid statutory limitations on
one's economic and copyrights and the allowable instances where the other
persons can legally use a copyrighted work, criminal culpability clearly attaches only
when the infringement had been knowingly and intentionally committed. 35 (Emphasis
supplied)
The dispositive portion of the Decision reads:chanroblesvirtuallawlibrary
WHEREFORE, the foregoing considered, the instant petition is
hereby GRANTED and the assailed Resolution dated 29 June
2010 REVERSED and SET ASIDE. Accordingly, the earlier Resolution dated 1
August 2005, which ordered the withdrawal of the Information filed, if any, against
the petitioners for violation of Sections 177 and 211 of the Intellectual Property
Code, is hereby REINSTATED. No costs.
SO ORDERED.36 (Emphasis in the original)
ABS-CBN's Motion for Reconsideration was denied.37 It then filed its Petition for
Review before this court assailing the Decision and Resolution of the Court of
Appeals.38
The issues for this court's consideration are:
First, whether Secretary Agra committed errors of jurisdiction in the Resolution
dated June 29, 2010 and, therefore, whether a petition for certiorari was the proper
remedy in assailing that Resolution;
Second, whether news footage is copyrightable under the law;
Third, whether there was fair use of the broadcast material;
Fourth, whether lack of knowledge that a material is copyrighted is a defense
against copyright infringement;
Fifth, whether good faith is a defense in a criminal prosecution for violation of the
Intellectual Property Code; and
Lastly, whether the Court of Appeals was correct in overturning Secretary Agra's
finding of probable cause.cralawlawlibrary
I
The trial court granted respondents' Motion to Suspend Proceedings and deferred
respondents Dela Pe�a-Reyes and Manalastas' arraignment for 60 days in view of
the Petition for Review filed before the Department of Justice.
Rule 116, Section 11 (c) of the Rules of Criminal Procedure allows the suspension
of the accused's arraignment in certain circumstances
only:chanroblesvirtuallawlibrary
SEC. 11.� Suspension of arraignment.-Upon motion by the proper party, the
arraignment shall be suspended in the following cases:
(a) The accused appears to be suffering from an unsound mental condition which
effectively renders him unable to fully understand the charge against him and to
plead intelligently thereto.� In such case, the court shall order his mental
examination and, if necessary, his confinement for such purpose;
(b) There exists a prejudicial question; and
(c) A petition for review of the resolution of the prosecutor is pending at either the
Department of Justice, or the Office of the President; provided, that the period of
suspension shall not exceed sixty (60) days counted from the filing of the petition
with the reviewing office. (12a) (Emphasis supplied)
In Samson v. Daway,39 this court acknowledged the applicability of Rule 116,
Section (c) in a criminal prosecution for infringement under the Intellectual Property
Code. However, this court emphasized the limits of the order of deferment under the
Rule:
While the pendency of a petition for review is a ground for suspension of the
arraignment, the . . . 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. 40
We clarify that the suspension of the arraignment should always be within the limits
allowed by law. In Crespo v. Judge Mogul,41 this court outlined the effects of filing an
information before the trial court, which includes initiating a criminal action and
giving this court "authority to hear and determine the
case":42ChanRoblesVirtualawlibrary
The preliminary investigation conducted by the fiscal for the purpose of determining
whether a prima facie case exists warranting the prosecution of the accused is
terminated upon the filing of the information in the proper court. In turn, as above
stated, the filing of said information sets in motion the criminal action against the
accused in Court. Should the fiscal find it proper to conduct a reinvestigation of the
case, at such stage, the permission of the Court must be secured.  After such
reinvestigation the finding and recommendations of the fiscal should be submitted to
the Court for appropriate action. While it is true that the fiscal has the quasi judicial
discretion to determine whether or not a criminal case should be filed in court or not,
once the case had already been brought to Court whatever disposition the fiscal
may feel should be proper in the case thereafter should be addressed for the
consideration of the Court, the only qualification is that the action of the Court must
not impair the substantial rights of the accused or the right of the People to due
process of law.
Whether the accused had been arraigned or not and whether it was due to a
reinvestigation by the fiscal or a review by the Secretary of Justice whereby a
motion to dismiss was submitted to the Court, the Court in the exercise of its
discretion may grant the motion or deny it and require that the trial on the merits
proceed for the proper determination of the case.
However, one may ask, if the trial court refuses to grant the motion to dismiss filed
by the fiscal upon the directive of the Secretary of Justice will there not be a vacuum
in the prosecution? A state prosecutor to handle the case cannot possibly be
designated by the Secretary of Justice who does not believe that there is a basis for
prosecution nor can the fiscal be expected to handle the prosecution of the case
thereby defying the superior order of the Secretary of Justice.
The answer is simple. The role of the fiscal or prosecutor as We all know is to see
that justice is done and not necessarily to secure the conviction of the person
accused before the Courts. Thus, in spite of his opinion to the contrary, it is the duty
of the fiscal to proceed with the presentation of evidence of the prosecution to the
Court to enable the Court to arrive at its own independent judgment as to whether
the accused should be convicted or acquitted. The fiscal should not shirk from the
responsibility of appearing for the People of the Philippines even under such
circumstances much less should he abandon the prosecution of the case leaving it
to the hands of a private prosecutor for then the entire proceedings will be null and
void. The least that the fiscal should do is to continue to appear for the prosecution
although he may turn over the presentation of the evidence to the private prosecutor
but still under his direction and control.
The rule therefore in this jurisdiction is that once a complaint or information is filed in
Court any disposition of the case as to its dismissal or the conviction or acquittal of
the accused rests in the sound discretion of the Court.  Although the fiscal retains the
direction and control of the prosecution of criminal cases even while the case is
already in Court he cannot impose his opinion on the trial court. The Court is the
best and sole judge on what to do with the case before it. The determination of the
case is within its exclusive jurisdiction and competence. A motion to dismiss the
case filed by the fiscal should be addressed to the Court who has the option to grant
or deny the same. It does not matter if this is done before or after the arraignment of
the accused or that the motion was filed after a reinvestigation or upon instructions
of the Secretary of Justice who reviewed the records of the
investigation.43 (Emphasis supplied, citations omitted)
The doctrine in Crespo was reiterated in Mayor Balindong v. Court of
Appeals,44 where this court reminded the Department of Justice Secretary to refrain
from entertaining petitions for review when the case is already pending with this
court:chanroblesvirtuallawlibrary
[I]n order to avoid a situation where the opinion of the Secretary of Justice who
reviewed the action of the fiscal may be disregarded by the trial court, the Secretary
of Justice should, as far as practicable, refrain from entertaining a petition for review
or appeal from the action of the fiscal, when the complaint or information has
already been filed in the Court. The matter should be left entirely for the
determination of the Court.45
The trial court should have proceeded with respondents Dela Pe�a-Reyes and
Manalastas' arraignment after the 60-day period from the filing of the Petition for
Review before the Department of Justice on March 8, 2005. It was only on
September 13, 2010 that the temporary restraining order was issued by the Court of
Appeals. The trial court erred when it did not act on the criminal case during the
interim period. It had full control and direction of the case. As Judge Mogul reasoned
in denying the motion to dismiss in Crespo, failure to proceed with the arraignment
"disregards the requirements of due process [and] erodes the Court's independence
and integrity."46
II
According to ABS-CBN, the Court of Appeals erred in finding that: a motion for
reconsideration was not necessary before a petition for certiorari could be filed; the
Department of Justice Secretary committed errors of jurisdiction since the Agra
Resolution was issued within its authority and in accordance with settled laws and
jurisprudence; and respondents were not liable for copyright infringement.
In its assailed Decision, the Court of Appeals found that respondents committed a
procedural error when they failed to file a motion for reconsideration before filing the
Petition for Certiorari. However, the Court of Appeals held that a motion for
reconsideration was unnecessary since the Agra Resolution was a patent nullity and
it would have been useless under the circumstances:chanroblesvirtuallawlibrary
Given that a reading of the assailed Resolution and the instant records readily
reveals errors -of jurisdiction on the part of respondent Secretary, direct judicial
recourse is warranted under the circumstances. Aside from the fact that said
Resolution is a patent nullity having been issued in grave abuse of discretion
amounting to lack or excess of jurisdiction, the filing of a motion for reconsideration
is evidently useless on account of the fact that the issues and arguments before this
Court have already been duly raised and accordingly delved into by respondent
Secretary in his disposition of the petition a quo.47(Emphasis in the original)
In Elma v. Jacobi,48 this court ruled that a petition for certiorari under Rule 65 of the
Rules of Court is proper when assailing adverse resolutions of the Department of
Justice stemming from the determination of probable cause. 49� However, grave
abuse of discretion must be alleged.50
In Sanrio Company Limited v. Lim,51 this court stressed the prosecutor's role in
determining probable cause. Judicial review will only lie when it is shown that the
prosecutor acted with grave abuse of discretion amounting to lack or excess of
jurisdiction:chanroblesvirtuallawlibrary
A prosecutor alone determines the sufficiency of evidence that will establish
probable cause justifying the filing of a criminal information against the respondent.
By way of exception, however, judicial review is allowed where respondent has
clearly established that the prosecutor committed grave abuse of discretion.
Otherwise stated, such review is appropriate only when the prosecutor has
exercised his discretion in an arbitrary, capricious, whimsical or despotic manner by
reason of passion or personal hostility, patent and gross enough to amount to an
evasion of a positive duty or virtual refusal to perform a duty enjoined by law. 52�
(Citations omitted)
Grave abuse of discretion refers to:chanroblesvirtuallawlibrary
such capricious and whimsical exercise of judgment as is equivalent to lack of
jurisdiction. The abuse of discretion must be grave as where the power is exercised
in an arbitrary or despotic manner by reason of passion or personal hostility and
must be so patent and gross as to amount to an evasion of positive duty or to a
virtual refusal to perform the duty enjoined by or to act at all in contemplation of
law.53
Resorting to certiorari requires that there be there be "no appeal, or any plain,
speedy, and adequate remedy in the ordinary course of law[,]" 54 such as a motion
for reconsideration. Generally, "a motion for reconsideration is a condition sine qua
non before a petition for certiorari may lie, its purpose being to grant an opportunity
for the [tribunal or officer] to correct any error attributed to it by a re-examination of
the legal and factual circumstances of the case."55
However, exceptions to the rule exist:chanroblesvirtuallawlibrary
(a) where the order is a patent nullity, as where the Court a quo had no jurisdiction;
(b) where the questions raised in the certiorari proceeding have been duly raised
and passed upon by the lower court, or are the same as those raised and passed
upon in the lower court; (c) where there is an urgent necessity for the resolution of
the question and any further delay would prejudice the interests of the Government
or of the petitioner or the subject matter of the action is perishable; (d) where, under
the circumstances, a motion for reconsideration would be useless; (e) where
petitioner was deprived of due process and there is extreme urgency for relief; (f)
where, in a criminal case, relief from an order of arrest is urgent and the granting of
such relief by the trial Court is improbable; (g) where the proceedings in the lower
court are a nullity for lack of due process; (h) where the proceedings was ex parte or
in which the petitioner had no opportunity to object; and (i) where the issue raised is
one purely of law or where public interest is involved. 56(Emphasis in the original,
citations omitted)
As argued by respondents, "[a] second motion for reconsideration would have been
useless and futile since the Department] [of] J[ustice] had already passed upon the
same issues twice."57 Equally pressing under the circumstances was the need to
resolve the matter, as the Information's filing would lead to respondents' imminent
arrest.58
Moreover, Department of Justice Department Circular No. 70 dated July 3, 2000, or
the 2000 NPS Rules on Appeal, provides that no second motion for reconsideration
of the Department of Justice Secretary's resolution shall be
entertained:chanroblesvirtuallawlibrary
SECTION 13. Motion for reconsideration. The aggrieved party may file a motion for
reconsideration within a non-extendible period of ten (10) days from receipt of the
resolution on appeal, furnishing the adverse party and the Prosecution Office
concerned with copies thereof and submitting proof of such service. No second or
further motion for reconsideration shall be entertained.
The Agra Resolution was the result of respondents' Motion for Reconsideration
assailing the Gonzalez Resolution. To file a motion for reconsideration of the Agra
Resolution would be superfluous. Respondents were, therefore, correct in filing the
Petition for Certiorari of the Agra Resolution before the Court of
Appeals.cralawlawlibrary
III
The Court of Appeals ruled that Secretary Agra committed errors of jurisdiction,
which then required the grant of the writ of certiorari:chanroblesvirtuallawlibrary
So viewed, by ordering the filing of information without proof that probable cause
exists to charge petitioners with a crime, respondent Secretary clearly committed an
error of jurisdiction thus warranting the issuance of the writ of certiorari. Surely,
probable cause cannot be had when the very provisions of the statute exculpates
criminal liability in cases classified as fair use of copyrighted materials. The fact that
they admittedly used the Reuters live video feed is not, as a matter of course,
tantamount to copyright infringement that would justify the filing of an information
against the petitioners.59
Error of jurisdiction must be distinguished from error of judgment:
A line must be drawn between errors of judgment and errors of jurisdiction. An error
of judgment is one which the court may commit in the exercise of its jurisdiction. An
error of jurisdiction renders an order or judgment void or voidable. Errors of
jurisdiction are reviewable on certiorari; errors of judgment, only by appeal. 60
In People v. Hon. Sandiganbayan61:chanroblesvirtuallawlibrary
An error of judgment is one which the court may commit in the exercise of its
jurisdiction. An error of jurisdiction is one where the act complained of was issued by
the court without or in excess of jurisdiction, or with grave abuse of discretion, which
is tantamount to lack or in excess of jurisdiction and which error is correctible only
by the extraordinary writ of certiorari. Certiorari will not be issued to cure errors of
the trial court in its appreciation of the evidence of the parties, or its conclusions
anchored on the said findings and its conclusions of law. 62 (Emphasis supplied)
This court has adopted a deferential attitude towards review of the executive's
finding of probable cause.63 This is based "not only upon the respect for the
investigatory and [prosecutorial] powers granted by the Constitution to the executive
department but upon practicality as well." 64 Review of the Department of Justice
Secretary's decision or resolution will be allowed only when grave abuse of
discretion is alleged:chanroblesvirtuallawlibrary
The full discretionary authority to determine probable cause in a preliminary
investigation to ascertain sufficient ground for the filing of information rests with the
executive branch.Hence, judicial review of the resolution of the Secretary of Justice
is limited to a determination whether there has been a grave abuse of discretion
amounting to lack or excess of jurisdiction. Courts cannot substitute the executive
branch's judgment.
.������ .������ .������ .
It is only where the decision of the Justice Secretary is tainted with grave abuse of
discretion amounting to lack or excess of jurisdiction that the Court of Appeals may
take cognizance of the case in a petition for certiorari under Rule 65 of the Revised
Rules of Civil Procedure.  The Court of Appeals decision may then be appealed to
this Court by way of a petition for review on certiorari. 65 (Emphasis supplied,
citations omitted)
In this case, it must be shown that Secretary Agra exceeded his authority when he
reversed the findings of Secretary Gonzalez. This court must determine whether
there is probable cause to file an information for copyright infringement under the
Intellectual Property Code.cralawlawlibrary
IV
Probable cause pertains to "such facts as are sufficient to engender a well-founded
belief that a crime has been committed and that respondent is probably guilty
thereof." 66 Preliminary investigation is the inquiry or proceeding to determine
whether there is probable cause.67
In Webb v. De Leon,68 this court ruled that determination of probable cause during
preliminary investigation does not require trial-like evaluation of evidence since
existence of probable cause does not equate to guilt:chanroblesvirtuallawlibrary
It ought to be emphasized that in determining probable cause, the average man
weighs facts and circumstances without resorting to the calibrations of our technical
rules of evidence of which his knowledge is nil. Rather, he relies on the calculus of
common sense of which all reasonable men have an abundance.
.������ .������ .������ .
. . . A finding of probable cause merely binds over the suspect to stand trial. It is not
a pronouncement of guilt.69
In Reyes v. Pearlbank Securities, Inc.,70 finding probable cause is not equivalent to
finding with moral certainty that the accused committed the crime:
A finding of probable cause needs only to rest on evidence showing that more likely
than not a crime has been committed by the suspects. It need not be based on clear
and convincing evidence of guilt, not on evidence establishing guilt beyond
reasonable doubt, and definitely not on evidence establishing absolute certainty of
guilt. In determining probable cause, the average man weighs facts and
circumstances without resorting to the calibrations of the rules of evidence of which
he has no technical knowledge. He relies on common sense. 71
During preliminary investigation, a public prosecutor does not adjudicate on the
parties' rights, obligations, or liabilities. 72
In the recent case of Estrada v. Office of the Ombudsman, et al,73 we
reiterated Webb on the determination of probable cause during preliminary
investigation and traced the history of probable cause as borrowed from American
jurisprudence:chanroblesvirtuallawlibrary
The purpose in determining probable cause is to make sure that the courts are not
clogged with weak cases that will only be dismissed, as well as to spare a person
from the travails of a needless prosecution.
.������ .������ .������ .
. . . In the United States, from where we borrowed the concept of probable cause,
the prevailing definition of probable cause is this:chanroblesvirtuallawlibrary
In dealing with probable cause, however, as the very name implies, we deal with
probabilities. These are not technical; they are the factual and practical
considerations of everyday life on which reasonable and prudent men, not legal
technicians, act. The standard of proof is accordingly correlative to what must be
proved.
"The substance of all the definitions" of probable cause "is a reasonable ground for
belief of guilt." McCarthy v. De Armit, 99 Pa. St. 63, 69,  quoted with approval in the
Carroll opinion. 267 U. S. at 161. And this "means less than evidence which would
justify condemnation" or conviction, as Marshall, C. J., said for the Court more than
a century ago in Locke v. United States, 7 Cranch 339, 348. Since Marshall's time,
at any rate, it has come to mean more than bare suspicion: Probable cause exists
where "the facts and circumstances within their [the officers'] knowledge and of
which they had reasonably trustworthy information [are] sufficient in themselves to
warrant a man of reasonable caution in the belief that" an offense has been or is
being committed. Carroll v. United States, 267 U. S. 132, 162.
These long-prevailing standards seek to safeguard citizens from rash and
unreasonable interferences with privacy and from unfounded charges of crime. They
also seek to give fair leeway for enforcing the law in the community's protection.
Because many situations which confront officers in the course of executing their
duties are more or less ambiguous, room must be allowed for some mistakes on
their part. But the mistakes must be those of reasonable men, acting on facts
leading sensibly to their conclusions of probability. The rule of probable cause is a
practical, nontechnical conception affording the best compromise that has been
found for accommodating these often opposing interests. Requiring more would
unduly hamper law enforcement. To allow less would be to leave law-abiding
citizens at the mercy of the officers' whim or caprice.
In the Philippines, there are four instances in the Revised Rules of Criminal
Procedure where probable cause is needed to be established:
� (1) In Sections 1 and 3 of Rule 112: By the investigating officer, to determine
whether there is sufficient ground to engender a well-founded belief that a
crime has been committed and the respondent is probably guilty thereof,
and should be held for trial. A preliminary investigation is required before
the filing of a complaint or information for an offense where the penalty
prescribed by law is at least four years, two months and one day without
regard to the fine;
� �
� (2) In Sections 6 and 9 of Rule 112: By the judge, to determine whether a
warrant of arrest or a commitment order, if the accused has already been
arrested, shall be issued and that there is a necessity of placing the
respondent under immediate custody in order not to frustrate the ends of
justice;
� �
� (3) In Section 5(b) of Rule 113: By a peace officer or a private person making a
warrantless arrest when an offense has just been committed, and he has
probable cause to believe based on personal knowledge of facts or
circumstances that the person to be arrested has committed it; and
� �
� (4) In Section 4 of Rule 126: By the judge, to determine whether a search
warrant shall be issued, and only upon probable cause in connection with
one specific offense to be determined personally by the judge after
examination under oath or affirmation of the complainant and the witnesses
he may produce, and particularly describing the place to be searched and
the things to be seized which may be anywhere in the
Philippines.
In all these instances, the evidence necessary to establish probable cause is based
only on the likelihood, or probability, of guilt.74
Estrada also highlighted that a "[preliminary investigation is not part of the criminal
action. It is merely preparatory and may even be disposed of in certain situations." 75
To determine whether there is probable cause that respondents committed
copyright infringement, a review of the elements of the crime, including the existing
facts, is required.cralawlawlibrary
V does not state that expression of the news of the day, particularly when it underwent
ABS-CBN claims that news footage is subject to copyright and prohibited use of
copyrighted material is punishable under the Intellectual Property Code. It argues
that the new footage is not a "newsworthy event" but "merely an account of the
arrival of Angelo dela Cruz in the Philippines � the latter being the newsworthy
event":76ChanRoblesVirtualawlibrary
To be clear, it is the event itself or the arrival of Angelo dela Cruz which is not
copyrightable because that is the newsworthy event. However, any footage created
from the event itself, in this case the arrival of Angelo dela Cruz, are intellectual
creations which are copyrightable. Thus, the footage created by ABS-CBN during
the arrival of Angelo dela Cruz, which includes the statements of Dindo Amparo, are
copyrightable and protected by the laws on copyright.77
On the other hand, respondents argue that ABS-CBN's news footage of Angelo dela
Cruz's arrival is not copyrightable or subject to protection:chanroblesvirtuallawlibrary
Certainly, the arrival of Angelo [d]ela Cruz, which aroused public attention and the
consciousness of the Filipino people with regard to their countrymen, OFWs working
in foreign countries and how the Philippine government responds to the issues
concerning them, is "news". There is no ingenuity or inventiveness added in the said
news footage. The video footage of this "news" is not copyrightable by any legal
standard as facts of everyday life depicted in the news and items of press
information is part of the public domain.78 (Emphasis in the original)
The news footage is copyrightable.
The Intellectual Property Code is clear about the rights afforded to authors of
various kinds of work. Under the Code, "works are protected by the sole fact of their
creation, irrespective of their mode or form of expression, as well as of their content,
quality and purpose."79 These include "[audio-visual works and cinematographic
works and works produced by a process analogous to cinematography or any
process for making audiovisual recordings."80
Contrary to the old copyright law,81 the Intellectual Property Code does not require
registration of the work to fully recover in an infringement suit. Nevertheless, both
copyright laws provide that copyright for a work is acquired by an intellectual creator
from the moment of creation.82
It is true that under Section 175 of the Intellectual Property Code, "news of the day
and other miscellaneous facts having the character of mere items of press
information" are considered unprotected subject matter. 83� However, the Code
a creative process, is not entitled to protection.
An idea or event must be distinguished from the expression of that idea or event. An
idea has been likened to a ghost in that it "must be spoken to a little before it will
explain itself."84 It is a concept that has eluded exact legal definition. 85 To get a
better grasp of the idea/expression dichotomy, the etymology of the term "idea" is
traced:chanroblesvirtuallawlibrary
The word "idea" is derived from a Greek term, meaning "a form, the look or
appearance of a thing as opposed to its reality, from idein, to see." In
the Timaeus,  Plato saw ideas as eternal paradigms, independent objects to which
the divine demiurge looks as patterns in forming the world. This was later modified
to the religious conception of ideas as the thoughts of God. "It is not a very long step
to extend the term 'idea' to cover patterns, blueprints, or plans in anyone's mind, not
only in God's." The word entered the French and English vernacular in the 1600s
and possessed two meanings. The first was the Platonic meaning of a perfect
exemplar or paradigm. The second, which probably has its origin with Descartes, is
of a mental concept or image or, more broadly, any object of the mind when it is
active. Objects of thought may exist independently. The sun exists (probably) before
and after you think of it. But it is also possible to think of things that have never
existed, such as a unicorn or Pegasus. John Locke defined ideas very
comprehensively, to include: all objects of the mind. Language was a way of
translating the invisible, hidden ideas that make up a person's thoughts into the
external, perceptible world of articulate sounds and visible written symbols that
others can understand.86 (Citations omitted)
There is no one legal definition of "idea" in this jurisdiction. The term "idea" is
mentioned only once in the Intellectual Property Code. 87 In Joaquin, Jr. v. Drilon,88 a
television format (i.e., a dating show format) is not copyrightable under Section 2 of
Presidential Decree No. 49;89 it is a mere concept:chanroblesvirtuallawlibrary
P.D. No. 49, �2, in enumerating what are subject to copyright, refers to finished
works and not to concepts. The copyright does not extend to an idea, procedure,
process, system, method of operation, concept, principle, or discovery, regardless
of the form in which it is described, explained, illustrated, or embodied in such
work. Thus, the new INTELLECTUAL PROPERTY CODE OF THE PHILIPPINES
provides:chanroblesvirtuallawlibrary
SEC. 175. Unprotected Subject Matter.�Notwithstanding the provisions of Sections
172 and 173, no protection shall extend, under this law, to any idea, procedure,
system, method or operation, concept, principle, discovery or mere data as such,
even if they are expressed, explained, illustrated or embodied in a work; news of the
day and other miscellaneous facts having the character of mere items of press
information; or any official text of a legislative, administrative or legal nature, as well
as any official translation thereof.
What then is the subject matter of petitioners' copyright? This Court is of the opinion
that petitioner BJPFs copyright covers audio-visual recordings of each episode of
Rhoda and Me, as falling within the class of works mentioned in P.D. 49, �2(M),  to
wit:chanroblesvirtuallawlibrary
Cinematographic works and works produced by a process analogous to
cinematography or any process for making audio-visual recordings;
The copyright does not extend to the general concept or format of its dating game
show.Accordingly, by the very nature of the subject of petitioner BJPI's copyright,
the investigating prosecutor should have the opportunity to compare the videotapes
of the two shows.
Mere description by words of the general format of the two dating game shows is
insufficient; the presentation of the master videotape in evidence was indispensable
to the determination of the existence of probable cause. As aptly observed by
respondent Secretary of Justice:
A television show includes more than mere words can describe because it involves
a whole spectrum of visuals and effects, video and audio, such that no similarity or
dissimilarity may be found by merely describing the general copyright/format of both
dating game shows90 (Emphasis supplied, citations omitted)
Ideas can be either abstract or concrete.91 It is the concrete ideas that are generally
referred to as expression:chanroblesvirtuallawlibrary
The words "abstract" and "concrete" arise in many cases dealing with� the�
idea/expression distinction.� The Nichols court, for example, found that the
defendant's film did not infringe the plaintiffs play because it was "too generalized an
abstraction from what plaintiff wrote . . . only a part of her ideas." In Eichel v.
Marcin, the court said that authors may exploit facts, experiences, field of thought,
and general ideas found in another's work, "provided they do not substantially copy
a concrete form, in which the circumstances and ideas have been developed,
arranged, and put into shape." Judge Hand, in National Comics Publications, Inc. v.
Fawcett Publications, Inc. said that "no one infringes, unless he descends so far into
what is concrete as to invade. . . 'expression.'"
These cases seem to be distinguishing "abstract" ideas from "concrete" tangible
embodiments of these abstractions that may be termed expression. However, if the
concrete form of a work means more than the literal expression contained within it, it
is difficult to determine what is meant by "concrete." Webster's New Twentieth
Century Dictionary of the English Language provides several meanings for the word
concrete. These include: "having a material, perceptible existence; of, belonging to,
or characterized by things or events that can be perceived by the senses; real;
actual;" and "referring to a particular; specific, not general or abstract." 92
In Pearl & Dean (Phil.), Incorporated v. Shoemart, Incorporated, 93 this court, citing
the American case of Baker v. Selden,  distinguished copyright from patents and
illustrated how an idea or concept is different from the expression of that
idea:chanroblesvirtuallawlibrary
In the oft-cited case of Baker vs. Selden, the United States Supreme Court held
that only the expression of an idea is protected by copyright, not the idea itself.  In
that case, the plaintiff held the copyright of a book which expounded on a new
accounting system he had developed. The publication illustrated blank forms of
ledgers utilized in such a system. The defendant reproduced forms similar to those
illustrated in the plaintiffs copyrighted book. The US Supreme Court ruled
that:chanroblesvirtuallawlibrary
"There is no doubt that a work on the subject of book-keeping, though only
explanatory of well known systems, may be the subject of a copyright; but, then, it is
claimed only as a book, x x x But there is a clear distinction between the books, as
such, and the art, which it is, intended to illustrate. The mere statement of the
proposition is so evident that it requires hardly any argument to support ii. The same
distinction may be predicated of every other art as well as that of bookkeeping.
A treatise on the composition and use of medicines, be they old or new; on the
construction and use of ploughs or watches or churns; or on the mixture and
application of colors for painting or dyeing; or on the mode of drawing lines to
produce the effect of perspective, would be the subject of copyright; but no one
would contend that the copyright of the treatise would give the exclusive right to the
art or manufacture described therein. The copyright of the book, if not pirated from
other works, would be valid without regard to the novelty or want of novelty of its
subject matter. The novelty of the art or thing described or explained has nothing to
do with the validity of the copyright. To give to the author of the book an exclusive
property in the art described therein, when no examination of its novelty has ever
been officially made, would be a surprise and a fraud upon the public. That is the
province of letters patent, not of copyright. The claim to an invention of discovery of
an art or manufacture must be subjected to the examination of the Patent Office
before an exclusive right therein can be obtained; and a patent from the government
can only secure it.
The difference between the two things, letters patent and copyright, may be
illustrated by reference to the subjects just enumerated. Take the case of
medicines. Certain mixtures are found to be of great value in the healing art. If the
discoverer writes and publishes a book on the subject (as regular physicians
generally do), he gains no exclusive right to the manufacture and sale of the
medicine; he gives that to the public. If he desires to acquire such exclusive right,
he must obtain a patent for the mixture as a new art, manufacture or composition of
matter. He may copyright his book, if he pleases; but that only secures to him the
exclusive right of printing and publishing his book. So of all other inventions or
discoveries.
The copyright of a book on perspective, no matter how many drawings and
illustrations it may contain, gives no exclusive right to the modes of drawing
described, though they may never have been known or used before. By publishing
the book without getting a patent for the art, the latter is given to the public.
.��� .��� .��� .
Now, whilst no one has a right to print or publish his book or any material part
thereof, as a hook intended to convey instruction in the art, any person may practice
and use the, art itself which he has described and illustrated therein. The use of the
art is a totally different thing from a publication of the book, explaining it.  The
copyright of a book on bookkeeping cannot secure the exclusive right to make, sell
and use account books prepared upon the plan set forth in such book. Whether the
art might or might not have been patented, is a question, which is not before us.� It
was not patented, and is open and free to the use of the public. And, of course, in
using the art, the ruled lines and headings of accounts must necessarily be used as
incident to it.
The plausibility of the claim put forward by the complainant in this case arises from a
confusion of ideas produced by the peculiar nature of the art described in the books,
which have been made the subject of copyright. In describing the art, the
illustrations and diagrams employed happened to correspond more closely than
usual with the actual work performed by the operator who uses the art. x x x The
description of the art in a book, though entitled to the benefit of copyright, lays no
foundation for an exclusive claim to the art itself. The object of the one is
explanation; the object of the other is use. The former may be secured by copyright.
The latter can only be secured, if it can be secured at all, by letters
patent."94 (Emphasis supplied)
News or the event itself is not copyrightable. However, an event can be captured
and presented in a specific medium. As recognized by this court
in Joaquin, television "involves a whole spectrum of visuals and effects, video and
audio."95 News coverage in television involves framing shots, using images,
graphics, and sound effects. It involves creative process and originality. Television
news footage is an expression of the news.
In the United States, a line of cases dwelt on the possibility of television newscasts
to be copyrighted.97Most of these cases focused on private individuals' sale or
resale of tapes of news broadcasts. Conflicting decisions were rendered by its
courts. Noteworthy, however, is the District Court's pronouncement in Pacific &
Southern Co. v. Duncan,98 which involves a News Monitoring Service's videotaping
and sale of WXIA-TVs news broadcasts:chanroblesvirtuallawlibrary
It is axiomatic that copyright protection does not extend to news "events" or the
facts or ideas which are the subject of news reports. Miller v. Universal City Studios,
Inc., 650 F.2d 1365, 1368 (5th Cir. 1981); Wainwright Securities, Inc. v. Wall Street
Transcript Corp.,  558 F.2d 91, 95 (2d Cir. 1977), cert, denied, 434 U.S. 1014, 98
S.Ct. 730, 54 L.Ed.2d 759 (1978). But it is equally well-settled that copyright
protection does extend to the reports themselves, as distinguished from the
substance of the information contained in the reports.� Wainwright, 558 F.2d at
95; International News Service v. Associated Press, 248 U.S. 215, 39 S.Ct. 68, 63
L.Ed. 211 (1918); see Chicago Record-Herald Co. v. Tribune Assn.,  275 F. 797 (7th
Cir.1921); 1 Nimmer on Copyright � 2.11[B] (1983). Copyright protects the manner
of expression of news reports, "the particular form or collocation of words in which
the writer has communicated it" International News Service, 248 U.S. at 234, 39
S.Ct. at 70. Such protection extends to electronic news reports as well as written
reports. See 17 U.S.C. � 102(a) (5), (6), and (7); see also Iowa State University
Research Foundations, Inc. v. American Broadcasting Cos.,  621 F.2d 57, 61 (2d
Cir. 1980)." (Emphasis supplied)
The idea/expression dichotomy has long been subject to debate in the field of
copyright law. Abolishing the dichotomy has been proposed, in that non-protectibility
of ideas should be re-examined, if not stricken, from decisions and the
law:chanroblesvirtuallawlibrary
If the underlying purpose of the copyright law is the dual one expressed by Lord
Mansfield, the only excuse for the continuance of the idea-expression test as a
judicial standard for determining protectibility would be that it was or could be a truly
useful method of determining the proper balance between the creator's right to profit
from his work and the public's right that the "progress of the arts not be retarded."
. . . [A]s used in the present-day context[,] the dichotomy has little or no relationship
to the policy which it should effectuate. Indeed, all too often the sweeping language
of the courts regarding the nonprotectibility of ideas gives the impression that this is
of itself a policy of the law, instead of merely a clumsy and outdated tool to achieve
a much more basic end.100
The idea/expression dichotomy is a complex matter if one is trying to determine
whether a certain material is a copy of another.101 This dichotomy would be more
relevant in determining, for instance, whether a stage play was an infringement of
an author's book involving the same characters and setting. In this case, however,
respondents admitted that the material under review � which is the subject of the
controversy � is an exact copy of the original. Respondents did not subject ABS-
CBN's footage to any editing of their own. The news footage did not undergo any
transformation where there is a need to track elements of the original.
Having established the protectible nature of news footage, we now discuss the
concomitant rights accorded to authors. The authors of a work are granted several
rights in relation to it, including copyright or economic
rights:chanroblesvirtuallawlibrary
SECTION 177. Copyright or Economic Rights. � Subject to the provisions of
Chapter VIII, copyright or economic rights shall consist of the exclusive right to carry
out, authorize or prevent the following acts:chanroblesvirtuallawlibrary
177.1. Reproduction of the work or substantial portion of the work;
�
177.2. Dramatization, translation, adaptation, abridgment, arrangement or other
transformation of the work;
�
177.3. The first public distribution of the original and each copy of the work by sale
or other forms of transfer of ownership;
�
177.4. Rental of the original or a copy of an audiovisual or cinematographic work, a
work embodied in a sound recording, a computer program, a compilation of
data and other materials or a musical work in graphic form, irrespective of
the ownership of the original or the copy which is the subject of the rental; (n)
�
177.5. Public display of the original or a copy of the work;
�
177.6. Public performance of the work; and
�
177.7. Other communication to the public of the work. (Sec. 5, P. D. No. 49a)
(Emphasis supplied)
Under Section 211 of the Intellectual Property Code, broadcasting organizations are
granted a more specific set of rights called related or neighboring
rights:chanroblesvirtuallawlibrary
SECTION 211. Scope of Right. � Subject to the provisions of Section
212, broadcasting organizations shall enjoy the exclusive right to carry out,
authorize or prevent any of the following acts:
211.1. The rebroadcasting of their broadcasts;
�
211.2. The recording in any manner, including the making of films or the use of
video tape, of their broadcasts for the purpose of communication to the
public of television broadcasts of the same; and
�
211.3. The use of such records for fresh transmissions or for fresh recording. (Sec.
52, P.D. No. 49) (Emphasis supplied)
Section 212 of the Code provides:
CHAPTER XV
LIMITATIONS ON PROTECTION
Section 212. Limitations on Rights. - Sections 203, 208 and 209 shall not apply
where the acts referred to in those Sections are related
to:chanroblesvirtuallawlibrary
212.1. The use by a natural person exclusively for his own personal purposes;
� (c)
212.2. Using short excerpts for reporting current events;
� �
212.3. Use solely for the purpose of teaching or for scientific research; and
� �
212.4. Fair use of the broadcast subject to the conditions under Section 185. (Sec.
44, P.D. No. 49a)
The Code defines what broadcasting is and who broadcasting organizations
include:chanroblesvirtuallawlibrary
202.7. "Broadcasting" means the transmission by wireless means for the public
reception of sounds or of images or of representations thereof;� such transmission
by satellite is also "broadcasting" where the means for decrypting are provided to
the public by the broadcasting organization or with its consent;
202.8. "Broadcasting organization" shall include a natural person or a juridical entity
duly authorized to engage in broadcasting[.]
Developments in technology, including the process of preserving once ephemeral
works and disseminating them, resulted in the need to provide a new kind of
protection as distinguished from copyright.102 The designation "neighboring rights"
was abbreviated from the phrase "rights neighboring to copyright." 103� Neighboring
or related rights are of equal importance with copyright as established in the
different conventions covering both kinds of rights. 104
Several treaties deal with neighboring or related rights of copyright. 105 The most
prominent of these is the "International Convention for the Protection of Performers,
Producers of Phonograms and Broadcasting Organizations" (Rome Convention). 106
The Rome Convention protects the rights of broadcasting organizations in relation to
their broadcasts. Article XIII of the Rome Convention enumerates the minimum
rights accorded to broadcasting organizations:chanroblesvirtuallawlibrary
Article 13
Minimum Rights for Broadcasting Organizations
Broadcasting organisations shall enjoy the right to authorize or prohibit:
(a) the rebroadcasting of their broadcasts;
�
(b) the fixation of their broadcasts;
�
the reproduction:
�
(i) of fixations, made without their consent, of their broadcasts;
�
(ii) of fixations, made in accordance with the provisions of Article 15, of their
broadcasts, if the reproduction is made for purposes different from those
referred to in those provisions;
�
(d) the communication to the public of their television broadcasts if such
communication is made in places accessible to the public against payment of
an entrance fee; it shall be a matter for the domestic law of the State where
protection of this right is claimed to determine the conditions under which it may
be exercised.
With regard to the neighboring rights of a broadcasting organization in this
jurisdiction, this court has discussed the difference between broadcasting and
rebroadcasting:chanroblesvirtuallawlibrary
Section 202.7 of the IP Code defines broadcasting as "the transmission by wireless
means for the public reception of sounds or of images or of representations thereof;
such transmission by satellite is also 'broadcasting' where the means for decrypting
are provided to the public by the broadcasting organization or with its consent."
On the other hand, rebroadcasting as defined in Article 3(g) of the International
Convention for the Protection of Performers, Producers of Phonograms and
Broadcasting Organizations, otherwise known as the 1961 Rome Convention, of
which the Republic of the Philippines is a signatory, is "the simultaneous
broadcasting by one broadcasting organization of the broadcast of another
broadcasting organization."
.���� .���� .���� .
Under the Rome Convention, rebroadcasting is "the simultaneous broadcasting by
one broadcasting organization of the broadcast of another broadcasting
organization." The Working Paper prepared by the Secretariat of the Standing
Committee on Copyright and Related Rights defines broadcasting organizations as
"entities that take the financial and editorial responsibility for the selection and
arrangement of, and investment in, the transmitted content." 107 (Emphasis in the
original, citations omitted)
Broadcasting organizations are entitled to several rights and to the protection of
these rights under the Intellectual Property Code. Respondents' argument that the
subject news footage is not copyrightable is erroneous. The Court of Appeals, in its
assailed Decision, correctly recognized the existence of ABS-CBN's copyright over
the news footage:chanroblesvirtuallawlibrary
Surely, private respondent has a copyright of its news coverage. Seemingly, for
airing said video feed, petitioner GMA is liable under the provisions of the
Intellectual Property Code, which was enacted purposely to protect copyright
owners from infringement.108
News as expressed in a video footage is entitled to copyright protection.��
Broadcasting organizations have not only copyright on but also neighboring rights
over their broadcasts.� Copyrightability of a work is different from fair use of a
work for purposes of news reporting.cralawlawlibrary
VI
ABS-CBN assails the Court of Appeals' ruling that the footage shown by GMA-7
falls under the scope of Section 212.2 and 212.4 of the Intellectual Property
Code:chanroblesvirtuallawlibrary
The evidence on record, as well as the discussions above, show that the footage
used by [respondents] could hardly be characterized as a short excerpt, as it was
aired over one and a half minutes.
Furthermore, the footage used does not fall under the contemplation of Section
212.2 of the Intellectual Property Code. A plain reading of the provision would reveal
that copyrighted material referred to in Section 212 are short portions of an artist's
performance under Section 203, or a producer's sound recordings under Sections
208 and 209. Section 212 does not refer to actual use of video footage of another as
its own.
.��� .��� .��� .
The Angelo dela Cruz footage does not fall under the rule on Section 212.4 of the
Intellectual Property Code on fair use of the broadcast.
In determining fair use, several factors are considered, including the nature of the
copyrighted work, and the amount and substantiality of the person used in relation
to the copyrighted work as a whole.
In the business of television news reporting, the nature of the copyrighted work or
the video footages, are such that, footage created, must be a novelty to be a good
report. Thus, when the . . . Angelo dela Cruz footage was used by [respondents],
the novelty of the footage was clearly affected.
Moreover, given that a substantial portion of the Angelo dela Cruz footage was
utilized by GMA-7 for its own, its use can hardly be classified as fair use.
Hence, [respondents] could not be considered as having used the Angelo dela Cruz
[footage] following the provisions on fair use.
It is also worthy to note that the Honorable Court of Appeals seem to contradict itself
when it relied on the provisions of fair use in its assailed rulings considering that it
found that the Angelo dela Cruz footage is not copyrightable, given that the fair use
presupposes an existing copyright. Thus, it is apparent that the findings of the
Honorable Court of Appeals are erroneous and based on wrong
assumptions.109 (Underscoring in the original)
On the other hand, respondents counter that GMA-7's use of ABS-CBN's news
footage falls under fair use as defined in the Intellectual Property Code.
Respondents, citing the Court of Appeals Decision, argue that a strong statutory
defense negates any finding of probable cause under the same statute.� The
Intellectual Property Code provides that fair use negates infringement.
Respondents point out that upon seeing ABS-CBN's reporter Dindo Amparo on the
footage, GMA-7 immediately shut off the broadcast. Only five (5) seconds passed
before the footage was cut. They argue that this shows that GMA-7 had no prior
knowledge of ABS-CBN's ownership of the footage or was notified of it. They claim
that the Angelo dela Cruz footage is considered a short excerpt of an event's "news"
footage and is covered by fair use.111
Copyright protection is not absolute.112� The Intellectual Property Code provides
the limitations on copyright:
CHAPTER VIII
LIMITATIONS ON COPYRIGHT
Section 184. Limitations on Copyright. - 184.1. Notwithstanding the provisions of
Chapter V, the following acts shall not constitute infringement of copyright:
.���� .���� .���� .
184.2. The provisions of this section shall be interpreted in such a way as to allow
the work to be used in a manner which does not conflict with the normal exploitation
of the work and does not unreasonably prejudice the right holder's legitimate
interests.
.���� .���� .���� .cralawlawlibrary
CHAPTER XV
LIMITATIONS ON PROTECTION
Section 212. Limitations on Rights. - Sections 203, 208 and 209 shall not apply
where the acts referred to in those Sections are related to:
.���� .���� .���� .
212.2. Using short excerpts for reporting current events;
212.4. Fair use of the broadcast subject to the conditions under Section 185.  (Sec.
44, P.D. No. 49a) (Emphasis supplied)
The determination of what constitutes fair use depends on several factors. Section
185 of the Intellectual Property Code states:
SECTION 185. Fair Use of a Copyrighted Work. �
185.1. The fair use of a copyrighted work for criticism, comment, news reporting,
teaching including multiple copies for classroom use, scholarship, research, and
similar purposes is not an infringement of copyright. ... In determining whether the
use made of a work in any particular case is fair use, the factors to be considered
shall include:chanroblesvirtuallawlibrary
a. The purpose and character of the use, including
whether such use is of a commercial nature or is for
non-profit educational purposes;
b. The nature of the copyrighted work;
c. The amount and substantiality of the portion used in
relation to the copyrighted work as a whole; and
d. The effect of the use upon the potential market for or
value of the copyrighted work.
Respondents allege that the news footage was only five (5) seconds long, thus
falling under fair use. ABS-CBN belies this contention and argues that the footage
aired for two (2) minutes and 40 seconds.113According to the Court of Appeals, the
parties admitted that only five (5) seconds of the news footage was broadcasted by
GMA-7.114
This court defined fair use as "a privilege to use the copyrighted material in a
reasonable manner without the consent of the copyright owner or as copying the
theme or ideas rather than their expression."115Fair use is an exception to the
copyright owner's monopoly of the use of the work to avoid stifling "the very
creativity which that law is designed to foster." 116
Determining fair use requires application of the four-factor test. Section 185 of the
Intellectual Property Code lists four (4) factors to determine if there was fair use of a
copyrighted work:
a. The purpose and character of the use, including whether such
use is of a commercial nature or is for non-profit educational
purposes;
b. The nature of the copyrighted work;
c. The amount and substantiality of the portion used in relation to
the copyrighted work as a whole; and
 d. The effect of the use upon the potential market for or value of
the copyrighted work.
First, the purpose and character of the use of the copyrighted material must fall
under those listed in Section 185, thus: "criticism, comment, news reporting,
teaching including multiple copies for classroom use, scholarship, research, and
similar purposes."117 The purpose and character requirement is important in view of
copyright's goal to promote creativity and encourage creation of works. Hence,
commercial use of the copyrighted work can be weighed against fair use.
The "transformative test" is generally used in reviewing the purpose and character
of the usage of the copyrighted work.118 This court must look into whether the copy
of the work adds "new expression, meaning or message" to transform it into
something else.119 "Meta-use" can also occur without necessarily transforming the
copyrighted work used.120
Second, the nature of the copyrighted work is significant in deciding whether its use
was fair. If the nature of the work is more factual than creative, then fair use will be
weighed in favor of the user.
Third, the amount and substantiality of the portion used is important to determine
whether usage falls under fair use. An exact reproduction of a copyrighted work,
compared to a small portion of it, can result in the conclusion that its use is not fair.
There may also be cases where, though the entirety of the copyrighted work is used
without consent, its purpose determines that the usage is still fair.121 For example,
a parody using a substantial amount of copyrighted work may be permissible as fair
use as opposed to a copy of a work produced purely for economic gain.
Lastly, the effect of the use on the copyrighted work's market is also weighed for or
against the user. If this court finds that the use had or will have a negative impact on
the copyrighted work's market, then the use is deemed unfair.
The structure and nature of broadcasting as a business requires assigned values for
each second of broadcast or airtime. In most cases, broadcasting organizations
generate revenue through sale of time or timeslots to advertisers, which, in turn, is
based on market share: 122ChanRoblesVirtualawlibrary
Once a news broadcast has been transmitted, the broadcast becomes relatively
worthless to the station. In the case of the aerial broadcasters, advertising sales
generate most of the profits derived from news reports. Advertising rates are, in
turn, governed by market share. Market share is determined by the number of
people watching a show at any particular time, relative to total viewers at that time.
News is by nature time-limited, and so re-broadcasts are generally of little worth
because they draw few viewers. Newscasts compete for market share by presenting
their news in an appealing format that will capture a loyal audience. Hence, the
primary reason for copyrighting newscasts by broadcasters would seem to be to
prevent competing stations from rebroadcasting current news from the station with
the best coverage of a particular news item, thus misappropriating a portion of the
market share.
Of course, in the real world there are exceptions to this perfect economic view.�
However, there are also many caveats with these exceptions. A common exception
is that some stations rebroadcast the news of others. The caveat is that generally,
the two stations are not competing for market share. CNN, for example, often
makes news stories available to local broadcasters. First, the local broadcaster is
often not affiliated with a network (hence its need for more comprehensive
programming), confining any possible competition to a small geographical area.
Second, the local broadcaster is not in competition with CNN. Individuals who do not
have cable TV (or a satellite dish with decoder) cannot receive CNN; therefore there
is no competition. . . . Third, CNN sells the right of rebroadcast to the local stations.
Ted Turner, owner of CNN, does not have First Amendment freedom of access
argument foremost on his mind. (Else he would give everyone free cable TV so
everyone could get CNN.) He is in the business for a profit. Giving away resources
does not a profit make.123 (Emphasis supplied)
The high value afforded to limited time periods is also seen in other media. In social
media site Instagram, users are allowed to post up to only 15 seconds of video. 124 In
short-video sharing website Vine,125 users are allowed a shorter period of six (6)
seconds per post. The mobile application 1 Second Everyday takes it further by
capturing and stitching one (1) second of video footage taken daily over a span of a
certain period.126
Whether the alleged five-second footage may be considered fair use is a matter of
defense. We emphasize that the case involves determination of probable cause at
the preliminary investigation stage. Raising the defense of fair use does not
automatically mean that no infringement was committed. The investigating
prosecutor has full discretion to evaluate the facts, allegations, and evidence during
preliminary investigation. Defenses raised during preliminary investigation are
subject to further proof and evaluation before the trial court. Given the insufficiency
of available evidence, determination of whether the Angelo dela Cruz footage is
subject to fair use is better left to the trial court where the proceedings are currently
pending.

GMA-7's rebroadcast of ABS-CBN's news footage without the latter's consent is not
an issue. The mere act of rebroadcasting without authority from the owner of the
broadcast gives rise to the probability that a crime was committed under the
Intellectual Property Code.cralawlawlibrary
VII
Respondents cannot invoke the defense of good faith to argue that no probable
cause exists.
Respondents argue that copyright infringement is malum in se,  in that "[c]opying
alone is not what is being prohibited, but its injurious effect which consists in the
lifting from the copyright owners' film or materials, that were the result of the latter's
creativity, work and productions and without authority, reproduced, sold and
circulated for commercial use to the detriment of the latter." 127
Infringement under the Intellectual Property Code is malum prohibitum. The
Intellectual Property Code is a special law. Copyright is a statutory
creation:chanroblesvirtuallawlibrary
Copyright, in the strict sense of the term, is purely a statutory right. It is a new or
independent right granted by the statute, and not simply a pre-existing right
regulated by the statute. Being a statutory grant, the rights are only such as the
statute confers, and may be obtained and enjoyed only with respect to the subjects
and by the persons, and on terms and conditions specified in the statute. 128
The general rule is that acts punished under a special law are malum
prohibitum.129 "An act which is declared malum prohibitum, malice or criminal intent
is completely immaterial."130
In contrast, crimes mala in se concern inherently immoral
acts:chanroblesvirtuallawlibrary
Not every criminal act, however, involves moral turpitude. It is for this reason that
"as to what crime involves moral turpitude, is for the Supreme Court to determine".
In resolving the foregoing question, the Court is guided by one of the general rules
that crimes mala in se involve moral turpitude, while crimes mala prohibita do not,
the rationale of which was set forth in "Zari v. Flores" to
wit:chanroblesvirtuallawlibrary
It (moral turpitude) implies something immoral in itself, regardless of the fact that it
is punishable by law or not.� It must not be merely mala prohibita, but the act itself
must be inherently immoral. The doing of the act itself, and not its prohibition by
statute fixes the moral turpitude. Moral turpitude does not, however, include such
acts as are not of themselves immoral but whose illegality lies in their being
positively prohibited. (Emphasis supplied)
[These] guidelines nonetheless proved short of providing a clear-cut solution, for
in International Rice Research Institute v. NLRC, the Court admitted that it cannot
always be ascertained whether moral turpitude does or does not exist by merely
classifying a crime as malum in se or as malum prohibitum. There are crimes which
are mala in se and yet but rarely involve moral turpitude and there are crimes which
involve moral turpitude and are mala prohibita only. In the final analysis, whether or
not a crime involves moral turpitude is ultimately a question of fact and frequently
depends on all the circumstances surrounding the violation of the
statue.131 (Emphasis in the original)
"Implicit in the concept of mala in se is that of mens rea."132Mens rea is defined as
"the nonphysical element which, combined with the act of the accused, makes up
the crime charged. Most frequently it is the criminal intent, or the guilty mind[.]" 133
Crimes mala in se presuppose that the person who did the felonious act had
criminal intent to do so, while crimes mala prohibita do not require knowledge or
criminal intent:chanroblesvirtuallawlibrary
In the case of mala in se it is necessary, to constitute a punishable offense, for the
person doing the act to have knowledge of the nature of his act and to have a
criminal intent; in the case of mala prohibita, unless such words as "knowingly" and
"willfully" are contained in the statute, neither knowledge nor criminal intent is
necessary. In other words, a person morally quite innocent and with every intention
of being a law-abiding citizen becomes a criminal, and liable to criminal penaltes, if
he does an act prohibited by these statutes.134(Emphasis supplied)
Hence, "[i]ntent to commit the crime and intent to perpetrate the act must be
distinguished. A person may not have consciously intended to commit a crime; but
he did intend to commit an act, and that act is, by the very nature of things, the
crime itself[.]"135 When an act is prohibited by a special law, it is considered injurious
to public welfare, and the performance of the prohibited act is the crime itself. 136
Volition, or intent to commit the act, is different from criminal intent. Volition or
voluntariness refers to knowledge of the act being done. On the other hand, criminal
intent � which is different from motive, or the moving power for the commission of
the crime137 � refers to the state of mind beyond voluntariness. It is this intent that
is being punished by crimes mala in se.
Unlike other jurisdictions that require intent for a criminal prosecution of copyright
infringement, the Philippines does not statutorily support good faith as a defense.
Other jurisdictions provide in their intellectual property codes or relevant laws
that mens rea, whether express or implied, is an element of criminal copyright
infringement.138
In Canada, criminal offenses are categorized under three (3) kinds: " the full mens
rea offence, meaning the accused's actual or subjective state of mind has to be
proved; strict liability offences where no mens rea has to be proved but the accused
can avoid liability if he can prove he took all reasonable steps to avoid the particular
event; [and] absolute liability offences where Parliament has made it clear that guilt
follows proof of the prescribed act only."139 Because of the use of the word
"knowingly" in Canada's Copyright Act, it has been held that copyright infringement
is a full mens rea offense.140
In the United States, willful intent is required for criminal copyright
infringement.141 Before the passage of the No Electronic Theft Act, "civil copyright
infringements were violations of criminal copyright laws only if a defendant willfully
infringed a copyright� 'for purposes� of commercial� advantage or private
financial gain.'"142� However, the No Electronic Theft Act now allows criminal
copyright infringement without the requirement of commercial gain. The infringing
act may or may not be for profit.143
There is a difference, however, between the required liability in civil copyright
infringement and that in criminal copyright infringement in the United States. Civil
copyright infringement does not require culpability and employs a strict liability
regime144 where "lack of intention to infringe is not a defense to an action for
infringement."145
In the Philippines, the Intellectual Property Code, as amended, provides for the
prosecution of criminal actions for the following violations of intellectual property
rights: Repetition of Infringement of Patent (Section 84); Utility Model (Section 108);
Industrial Design (Section 119); Trademark Infringement (Section 155 in relation to
Section 170); Unfair Competition (Section 168 in relation to Section 170); False
Designations of Origin, False Description or Representation (Section 169.1 in
relation to Section 170); infringement of copyright, moral rights, performers' rights,
producers' rights, and broadcasting rights (Section 177, 193, 203, 208 and 211 in
relation to Section 217); and other violations of intellectual property rights as may be
defined by law.
The Intellectual Property Code requires strict liability for copyright infringement
whether for a civil action or a criminal prosecution; it does not require mens
rea or culpa:146ChanRoblesVirtualawlibrary
SECTION 216. Remedies for Infringement. �
216.1. Any person infringing a right protected under this law shall be liable:
a. To an injunction restraining such infringement.� The
court may also order the defendant to desist from an
infringement, among others, to prevent the entry into
the channels of commerce of imported goods that
involve an infringement, immediately after customs
clearance of such goods.
b. Pay to the copyright proprietor or his assigns or heirs
such actual damages, including legal costs and other
expenses, as he may have incurred due to the
infringement as well as the profits the infringer may
have made due to such infringement, and in proving
profits the plaintiff shall be required to prove sales only
and the defendant shall be required�� to prove
every element of cost which he claims, or, in lieu of
actual damages and profits, such damages which to
the court shall appear to be just and shall not be
regarded as penalty.
c. Deliver under oath, for impounding during the
pendency of the action, upon such terms and
conditions as the court may� prescribe,� sales
invoices and other documents evidencing sales, all
articles and their packaging alleged to infringe a
copyright and implements for making them.
d. Deliver under oath for destruction without any
compensation all infringing copies or devices, as well
as all plates, molds, or other means for making such
infringing copies as the court may order.
e. Such other terms and conditions, including the
payment of moral�� and exemplary damages,
which the court may deem proper, wise and equitable
 and the destruction of infringing copies of the work
even in the event of acquittal in a criminal case.
216.2. In an infringement action, the court shall also have the power to order the
seizure and impounding of any article which may serve as evidence in the court
proceedings. (Sec. 28. P.D. No. 49a)
SECTION 217, Criminal Penalties. �
217.1. Any person infringing any right secured by provisions of Part IV of this Act or
aiding or abetting such infringement shall be guilty of a crime punishable by:
a. Imprisonment of one (1) year to three (3) years plus a
fine ranging from Fifty thousand pesos (P50,000) to
One hundred fifty thousand pesos (P150,000) for the
first offense.
b. Imprisonment of three (3) years and one (1) day to six
(6) years plus a fine ranging from One hundred fifty
thousand pesos (P150,000) to Five hundred thousand
pesos (P500,000) for the second offense.
c. Imprisonment of six (6) years and one (1) day to nine
(9) years plus a fine ranging from Five hundred�
thousand pesos (P500,000) to One million five
hundred thousand pesos (P1,500,000) for the third
and�� subsequent offenses.
d. In all cases, subsidiary imprisonment in cases of
insolvency.
217.2. In determining the number of years of imprisonment and the amount of fine,
the court shall consider the value of the infringing materials that the defendant has
produced or manufactured and the damage that the copyright owner has suffered by
reason of the infringement.
217.3. Any person who at the time when copyright subsists in a work has in his
possession an article which he knows, or ought to know, to be an infringing copy of
the work for the purpose of:
a. Selling, letting for hire, or by way of trade offering or
exposing for sale, or hire, the article;
b. Distributing the article for purpose of trade, or for any
other purpose to an extent that will prejudice the rights
of the copyright owner in the work; or
c. Trade exhibit of the article in public, shall be guilty of
an offense and shall be liable on conviction to
imprisonment and fine as above mentioned. (Sec. 29,
P.D. No. 49a) (Emphasis supplied)
The law is clear. Inasmuch as there is wisdom in prioritizing the flow and exchange
of ideas as opposed to rewarding the creator, it is the plain reading of the law in
conjunction with the actions of the legislature to which we defer. We have
continuously "recognized the power of the legislature . . . to forbid certain acts in a
limited class of cases and to make their commission criminal without regard to the
intent of the doer. Such legislative enactments are based on the experience that
repressive measures which depend for their efficiency upon proof of the dealer's
knowledge or of his intent are of little use and rarely accomplish their purposes." 147
Respondents argue that live broadcast of news requires a different treatment in
terms of good faith, intent, and knowledge to commit infringement. To argue this
point, they rely on the differences of the media used in Habana et al. v. Robles,
Columbia Pictures v. Court of Appeals, and this case:chanroblesvirtuallawlibrary
Petitioner ABS-CBN argues that lack of notice that the Angelo dela Cruz was under
embargo is not a defense in copyright infringement and cites the case of Columbia
Pictures vs. Court of Appeals and Habana et al. vs. Robles (310 SCRA 511).
However, these cases refer to film and literary work where obviously there is
"copying" from an existing material so that the copier knew that he is copying from
an existing material not owned by him. But, how could respondents know that what
they are "copying was not [theirs]" when they were not copying but merely receiving
live video feed from Reuters and CNN which they aired? What they knew and what
they aired was the Reuters live video feed and the CNN feed which GMA-7 is
authorized to carry in its news broadcast, it being a subscriber of these companies[.]
It is apt to stress that the subject of the alleged copyright infringement is not a film or
literary work but live broadcast of news footage. In a film or literary work, the
infringer is confronted face to face with the material he is allegedly copying and
therefore knows, or is presumed to know, that what he is copying is owned by
another. Upon the other hand, in live broadcast, the alleged infringer
is not confronted with the fact that the material he airs or re-broadcasts is owned by
another, and therefore, he cannot be charged of knowledge of ownership of the
material by another. This specially obtains in the Angelo dela Cruz news footage
which GMA-7 received from Reuters and CNN. Reuters and CNN were beaming live
videos from the coverage which GMA-7 received as a subscriber and, in the
exercise of its rights as a subscriber, GMA-7 picked up the live video and
simultaneously re-broadcast it. In simultaneously broadcasting the live video footage
of Reuters, GMA-7 did not copy the video footage of petitioner ABS-
CBN[.]148 (Emphasis in the original)
Respondents' arguments must fail.
Respondents are involved and experienced in the broadcasting business. They
knew that there would be consequences in carrying A.BS-CBN's footage in their
broadcast. That is why GMA-7 allegedly cut the feed from Reuters upon seeing
ABS-CBN's logo and reporter. To admit a different treatment for broadcasts would
mean abandonment of a broadcasting organization's minimum rights, including
copyright on the broadcast material and the right against unauthorized re broadcast
of copyrighted material.� The nature of broadcast technology is precisely why
related or neighboring rights were created and developed.� Carving out an
exception for live broadcasts would go against our commitments under relevant
international treaties and agreements, which provide for the same minimum
rights.149
Contrary to respondents' assertion, this court in Habana,150 reiterating the ruling
in Columbia Pictures,151 ruled that lack of knowledge of infringement is not a valid
defense. Habana and Columbia Pictures may have different factual scenarios from
this case, but their rulings on copyright infringement are analogous.
In Habana, petitioners were the authors and copyright owners of English textbooks
and workbooks. The case was anchored on the protection of literary and artistic
creations such as books. In Columbia Pictures, video tapes of copyrighted films
were the subject of the copyright infringement suit.
In Habana, knowledge of the infringement is presumed when the infringer commits
the prohibited act:chanroblesvirtuallawlibrary
The essence of intellectual piracy should be essayed in conceptual terms in order to
underscore its gravity by an appropriate understanding thereof. Infringement of a
copyright is a trespass on a private domain owned and occupied by the owner of the
copyright, and, therefore, protected by law, and infringement of copyright, or piracy,
which is a synonymous term in this connection, consists in the doing by any person,
without the consent of the owner of the copyright, of anything the sole right to do
which is conferred by statute on the owner of the copyright.
.��� .��� .��� .
A copy of a piracy is an infringement of the original, and it is no defense that the
pirate, in such cases, did not know whether or not he was infringing any
copyright; he at least knew that what he was copying was not his, and he copied at
his peril.
.��� .��� .��� .
In cases of infringement, copying alone is not what is prohibited. The copying must
produce an "injurious effect". Here, the injury consists in that respondent Robles
lifted from petitioners' book materials that were the result of the latter's research
work and compilation and misrepresented them as her own. She circulated the book
DEP for commercial use and did not acknowledge petitioners as her
source.152 (Emphasis supplied)
Habana and Columbia Pictures did not require knowledge of the infringement to
constitute a violation of the copyright. One does not need to know that he or she is
copying a work without consent to violate copyright law. Notice of fact of the
embargo from Reuters or CNN is not material to find probable cause that
respondents committed infringement. Knowledge of infringement is only material
when the person is charged of aiding and abetting a copyright infringement under
Section 217 of the Intellectual Property Code.153
We look at the purpose of copyright in relation to criminal prosecutions requiring
willfulness:chanroblesvirtuallawlibrary
Most importantly, in defining the contours of what it means to willfully infringe
copyright for purposes of criminal liability, the courts should remember the ultimate
aim of copyright. Copyright is not primarily about providing the strongest possible
protection for copyright owners so that they have the highest possible incentive to
create more works. The control given to copyright owners is only a means to an
end: the promotion of knowledge and learning. Achieving that underlying goal of
copyright law also requires access to copyrighted works and it requires permitting
certain kinds of uses of copyrighted works without the permission of the copyright
owner. While a particular defendant may appear to be deserving of criminal
sanctions, the standard for determining willfulness should be set with reference to
the larger goals of copyright embodied in the Constitution and the history of
copyright in this country.154
In addition, "[t]he essence of intellectual piracy should be essayed in conceptual
terms in order to underscore its gravity by an appropriate understanding thereof.
Infringement of a copyright is a trespass on a private domain owned and occupied
by the owner of the copyright, and, therefore, protected by law, and infringement of
copyright, or piracy, which is a synonymous term in this connection, consists in the
doing by any person, without the consent of the owner of the copyright, of anything
the sole right to do which is conferred by statute on the owner of the copyright." 155
Intellectual property rights, such as copyright and the neighboring right against
rebroadcasting, establish an artificial and limited monopoly to reward creativity.
Without these legally enforceable rights, creators will have extreme difficulty
recovering their costs and capturing the surplus or profit of their works as reflected
in their markets. This, in turn, is based on the theory that the possibility of gain due
to creative work creates an incentive which may improve efficiency or simply
enhance consumer welfare or utility. More creativity redounds to the public good.
These, however, depend on the certainty of enforcement. Creativity, by its very
nature, is vulnerable to the free rider problem. It is easily replicated despite the costs
to and efforts of the original creator. The more useful the creation is in the market,
the greater the propensity that it will be copied. The most creative and inventive
individuals are usually those who are unable to recover on their creations.
Arguments against strict liability presuppose that the Philippines has a social,
historical, and economic climate similar to those of Western jurisdictions. As it
stands, there is a current need to strengthen intellectual property protection.
Thus, unless clearly provided in the law, offenses involving infringement of copyright
protections should be considered malum prohibitum. It is the act of infringement, not
the intent, which causes the damage. To require or assume the need to prove intent
defeats the purpose of intellectual property protection.
Nevertheless, proof beyond reasonable doubt is still the standard for criminal
prosecutions under the Intellectual Property Code.cralawlawlibrary
VIII
Respondents argue that GMA-7's officers and employees cannot be held liable for
infringement under the Intellectual Property Code since it does not expressly
provide direct liability of the corporate officers. They explain that "(i)
a corporation may be charged and prosecuted for a crime where the penalty is fine
or both imprisonment and fine, and if found guilty, may be fined; or (ii) a corporation
may commit a crime but if the statute prescribes the penalty therefore to be suffered
by the corporate officers, directors or employees or other persons, the latter shall be
responsible for the offense."156
Section 217 of the Intellectual Property Code states that "any person" may be found
guilty of infringement. It also imposes the penalty of both imprisonment and
fine:chanroblesvirtuallawlibrary
Section 217. Criminal Penalties. - 217.1. Any person infringing any right secured by
provisions of Part IV of this Act or aiding or abetting such infringement shall be
guilty of a crime punishable by:
(a) Imprisonment of one (1) year to three (3) years plus a fine ranging from Fifty
thousand pesos (P50,000) to One hundred fifty thousand pesos (P150,000) for
the first offense.
�
(b) Imprisonment of three (3) years and one (1) day to six (6) years plus a fine
ranging from One hundred fifty thousand pesos (P150,000) to Five hundred
thousand pesos (P500,000) for the second offense.
�
(c) Imprisonment of six (6) years and one (1) day to nine (9) years plus a fine
ranging from five hundred thousand pesos (P500,000) to One million five
hundred thousand pesos (P1,500,000) for the third and subsequent offenses.
�
(d) In all cases, subsidiary imprisonment in cases of insolvency. (Emphasis
supplied)
Corporations have separate and distinct personalities from their officers or
directors.157 This court has ruled that corporate officers and/or agents may be held
individually liable for a crime committed under the Intellectual Property
Code:158ChanRoblesVirtualawlibrary
Petitioners, being corporate officers and/or directors, through whose act, default or
omission the corporation commits a crime, may themselves be individually held
answerable for the crime. . . . The existence of the corporate entity does not shield
from prosecution the corporate agent who knowingly and intentionally caused the
corporation to commit a crime. Thus, petitioners cannot hide behind the cloak of the
separate corporate personality of the corporation to escape criminal liability. A
corporate officer cannot protect himself behind a corporation where he is the actual,
present and efficient actor.159
However, the criminal liability of a. corporation's officers or employees stems from
their active participation in the commission of the wrongful
act:chanroblesvirtuallawlibrary
The principle applies whether or not the crime requires the consciousness of
wrongdoing. It applies to those corporate agents who themselves commit the crime
and to those, who, by virtue of their managerial positions or other similar relation to
the corporation, could be deemed responsible for its commission, if by virtue of their
relationship to the corporation, they had the power to prevent the act. Moreover, all
parties active in promoting a crime, whether agents or not, are principals.  Whether
such officers or employees are benefited by their delictual acts is not a touchstone
of their criminal liability. Benefit is not an operative fact. 160 (Emphasis supplied)
An accused's participation in criminal acts involving violations of intellectual property
rights is the subject of allegation and proof. The showing that the accused did the
acts or contributed in a meaningful way in the commission of the infringements is
certainly different from the argument of lack of intent or good faith. Active
participation requires a showing of overt physical acts or intention to commit such
acts. Intent or good faith, on the other hand, are inferences from acts proven to have
been or not been committed.
We find that the Department of Justice committed grave abuse of discretion when it
resolved to file the Information against respondents despite lack of proof of their
actual participation in the alleged crime.
Ordering the inclusion of respondents Gozon, GMA-7 President; Duavit, Jr.,
Executive Vice-President; Flores, Vice-President for News and Public Affairs; and
Soho, Director for News, as respondents, Secretary Agra overturned the City
Prosecutor's finding that only respondents Dela Pe�a-Reyes and Manalastas are
responsible for the crime charged due to their duties. 161 The Agra Resolution
reads:chanroblesvirtuallawlibrary
Thus, from the very nature of the offense and the penalty involved, it is necessary
that GMA-7's directors, officers, employees or other officers thereof responsible for
the offense shall be charged and penalized for violation of the Sections 177 and 211
of Republic Act No. 8293. In their complaint for libel, respondents Felipe L Gozon,
Gilberto R. Duavit, Jr., Marissa L. Flores, Jessica A. Soho, Grace Dela Pena-Reyes,
John Oliver T. Manalastas felt they were aggrieved because they were "in charge of
the management, operations and production of news and public affairs programs of
the network" (GMA-7). This is clearly an admission on respondents' part. Of course,
respondents may argue they have no intention to infringe the copyright of ABS-
CBN; that they acted in good faith; and that they did not directly cause the airing of
the subject footage, but again this is preliminary investigation and what is required is
simply probable cause. Besides, these contentions can best be addressed in the
course of trial.162 (Citation omitted)
In contrast, the Office of the City Prosecutor, in the Resolution dated December 3,
2004, found that respondents Gozon, Duavit, Jr., Flores, and Soho did not have
active participation in the commission of the crime
charged:chanroblesvirtuallawlibrary
This Office, however, does not subscribe to the view that respondents Atty. Felipe
Gozon, Gilberto Duavit, Marissa Flores and Jessica Soho should be held liable for
the said offense. Complainant failed to present clear and convincing evidence that
the said respondents conspired with Reyes and Manalastas. No evidence was
adduced to prove that these respondents had an active participation in the actual
commission of the copyright infringement or they exercised their moral ascendancy
over Reyes and Manalastas in airing the said footage.  It must be stressed that,
conspiracy must be established by positive and conclusive evidence. It must be
shown to exist as clearly and convincingly as the commission of the offense
itself.163 (Emphasis supplied, citations omitted)
The City Prosecutor found respondents Dela Pe�a-Reyes and Manalastas liable
due to the nature of their work and responsibilities. He found
that:chanroblesvirtuallawlibrary
[t]his Office however finds respondents Grace D�la Pe�a-Reyes and John Oliver
T. Manalastas liable for copyright infringement penalized under Republic Act No.
8293. It is undisputed that complainant ABS-CBN holds the exclusive ownership
and copyright over the "Angelo [d]ela Cruz news footage". Hence, any airing and re-
broadcast of the said footage without any consent and authority from ABS-CBN will
be held as an infringement and violation of the intellectual property rights of the
latter. Respondents Grace Dela Pe�a-Reyes as the Head of the News Operation
and John Oliver T. Manalastas as the Program Manager cannot escape liability
since the news control room was under their direct control and supervision. Clearly,
they must have been aware that the said footage coming from Reuters or CNN has
a "No Access Philippines" advisory or embargo thus cannot be re-broadcast. We
find no merit to the defense of ignorance interposed by the respondents. It is simply
contrary to human experience and logic that experienced employees of an
established broadcasting network would be remiss in their duty in ascertaining if the
said footage has an embargo.164 (Emphasis supplied)
We agree with the findings as to respondents Dela Pe�a-Reyes and Manalastas.
Both respondents committed acts that promoted infringement of ABS-CBN's
footage. We note that embargoes are common occurrences in and between news
agencies and/or broadcast organizations.165� Under its Operations Guide, Reuters
has two (2) types of embargoes: transmission embargo and publication
embargo.166Under ABS-CBN's service contract with Reuters, Reuters will embargo
any content contributed by ABS-CBN from other broadcast subscribers within the
same geographical location:chanroblesvirtuallawlibrary
4a. Contributed Content
You agree to supply us at our request with news and sports news stones broadcast
on the Client Service of up to three (3) minutes each for use in our Services on a
non-exclusive basis and at a cost of US$300.00 (Three Hundred United States
Dollars) per story. In respect of such items we agree to embargo them against use
by other broadcast subscribers in the Territory and confirm we will observe all other
conditions of usage regarding Contributed Content, as specified in Section 2.5 of
the Reuters Business Principles for Television Services. For the purposes of
clarification, any geographical restriction imposed by you on your use of Contributed
Content will not prevent us or our clients from including such Contributed Content in
online transmission services including the internet. We acknowledge Contributed
Content is your copyright and we will not acquire any intellectual property rights in
the Contributed Content.167 (Emphasis supplied)
Respondents Dela Pe�a-Reyes and Manalastas merely denied receiving the
advisory sent by Reuters to its clients, including GMA-7. As in the records, the
advisory reads:chanroblesvirtuallawlibrary
ADVISORY - - +++LIVE COVER PLANS+++
PHILIPPINES: HOSTAGE RETURN
* *ATTENTION ALL CLIENTS**
PLEASE BE ADVISED OF THE FOLLOWING LIVE COVER PLANNED FOR
THURSDAY, JULY 22:
.���� .���� .���� .
SOURCE: ABS-CBN
TV AND WEB RESTRICTIONS: NO ACCESS PHILIPPINES.168
There is probable cause that respondents Dela Pe�a-Reyes and Manalastas
directly committed copyright infringement of ABS-CBN's news footage to warrant
piercing of the corporate veil. They are responsible in airing the embargoed Angelo
dela Cruz footage. They could have prevented the act of infringement had they been
diligent in their functions as Head of News Operations and Program Manager.
Secretary Agra, however, committed grave abuse of discretion when he ordered the
filing of the Information against all respondents despite the erroneous piercing of the
corporate veil. Respondents Gozon, Duavit, Jr., Flores, and Soho cannot be held
liable for the criminal liability of the corporation.
Mere membership in the Board or being President per se does not mean
knowledge, approval, and participation in the act alleged as criminal. There must be
a showing of active participation, not simply a constructive one.
Under principles of criminal law, the principals of a crime are those "who take a
direct part in the execution of the act; [t]hose who directly force or induce others to
commit it; [or] [t]hose who cooperate in the commission of the offense by another
act without which it would not have been accomplished." 169There is conspiracy
"when two or more persons come to an agreement concerning the commission of a
felony and decide to commit it":170ChanRoblesVirtualawlibrary
Conspiracy is not presumed. Like the physical acts constituting the crime itself, the
elements of conspiracy must be proven beyond reasonable doubt. While conspiracy
need not be established by direct evidence, for it may be inferred from the conduct
of the accused before, during and after the commission of the crime, all taken
together, however, the evidence must be strong enough to show the community of
criminal design. For conspiracy to exist, it is essential that there must be a
conscious design to commit an offense. Conspiracy is the product of intentionality
on the part of the cohorts.
It is necessary that a conspirator should have performed some overt act as a direct
or indirect contribution to the execution of the crime committed. The overt act may
consist of active participation in the actual commission of the crime itself or it may
consist of moral assistance to his co-conspirators by being present at the
commission of the crime or by exerting moral ascendancy over the other co-
conspirators[.]171� (Emphasis supplied, citations omitted)
In sum, the trial court erred in failing to resume the proceedings after the designated
period. The Court of Appeals erred when it held that Secretary Agra committed
errors of jurisdiction despite its own pronouncement that ABS-CBN is the owner of
the copyright on the news footage. News should be differentiated from expression of
the news, particularly when the issue involves rebroadcast of news footage. The
Court of Appeals also erroneously held that good faith, as. well as lack of knowledge
of infringement, is a defense against criminal prosecution for copyright and
neighboring rights infringement. In its current form, the Intellectual Property Code
is malum prohibitum and prescribes a strict liability for copyright infringement. Good
faith, lack of knowledge of the copyright, or lack of intent to infringe is not a defense
against copyright infringement. Copyright, however, is subject to the rules of fair use
and will be judged on a case-to-case basis. Finding probable cause includes a
determination of the defendant's active participation, particularly when the corporate
veil is pierced in cases involving a corporation's criminal liability.cralawred

WHEREFORE, the Petition is partially GRANTED.� The Department of Justice

Resolution dated June 29, 2010 ordering the filing of the Information is
hereby REINSTATED as to respondents Grace Dela Pe�a-Reyes and John Oliver
T. Manalastas. Branch 93 of the Regional Trial Court of Quezon City is directed to
continue with the proceedings in Criminal Case No. Q-04-131533.

SO ORDERED.chanroblesvirtuallawlibrary

�Carpio, Chairperson, Brion, Del Castillo, and Mendoza, JJ.,  concur.

 SECOND DIVISION
G.R. No. 178947               June 26, 2013
VIRGINIA DE LOS SANTOS-DIO, as authorized representative of H.S. EQUITIES,
LTD., and WESTDALE ASSETS, LTD., Petitioner, 
vs.
THE HONORABLE COURT OF APPEALS, JUDGE RAMON S. CAGUIOA, in his
capacity as Presiding Judge of Branch 74, Regional Trial Court, Olongapo City, and
TIMOTHY J. DESMOND, Respondents.
x-----------------------x
G.R. No. 179079
PEOPLE OF THE PHILIPPINES, Petitioner,  While no Certificate of Stock was issued either to HS Equities or to Dio, HS Equities
vs.
TIMOTHY J. DESMOND, Respondent.
DECISION
PERLAS-BERNABE, J.:
Before the Court are consolidated petitions for review on certiorari 1 assailing the
November 8, 2006 Decision2 and July 19, 2007 Resolution3 of the Court of Appeals
(CA) in CA-G.R. SP No. 88285, upholding the validity of the trial court’s dismissal of
separate criminal informations for estafa against private respondent Timothy J.
Desmond (Desmond) due to lack of probable cause.
The Facts
In 2001, petitioner Virginia De Los Santos-Dio (Dio), the majority stockholder of H.S.
Equities, Ltd. (HS Equities) and authorized representative of Westdale Assets, Ltd.
(Westdale),4 was introduced to Desmond, the Chairman and Chief Executive Officer
(CEO) of the Subic Bay Marine Exploratorium, Inc. (SBMEI), and the authorized
representative of Active Environments, Inc. and JV China, Inc. (JV China), the
majority shareholder of SBMEI.5 After some discussion on possible business
ventures, Dio, on behalf of HS Equities, decided to invest a total of
US$1,150,000.006 in SBMEI’s Ocean Adventure Marine Park (Ocean Adventure), a
theme park to be constructed at the Subic Bay Freeport Zone which, when
operational, would showcase live performances of false-killer whales and sea lions.
In this relation, Dio claimed that Desmond led her to believe that SBMEI had a
capital of US$5,500,000.00, inclusive of the value of the marine mammals to be
used in Ocean Adventure,7 and also guaranteed substantial returns on
investment.8 Desmond even presented a Business Plan, indicating that: (a) Ocean
Adventure’s "attendance will rise from 271,192 in 2001 to just over 386,728 in 2006,
with revenues rising from US$4,420,000.00 million to US$7,290,000.00 million in the
same time frame"; (b) "early investors are expected to reap an annual return of 23%
in 2001, rising to 51% in 2006"; and (c) "fully priced shares would yield a 19%
return] in 2001, rising to 42% in 2006."9 Thus, on January 18, 2002, a Subscription
Agreement10 was executed by Desmond, as representative of SBMEI and JV China,
and Dio, as representative of HS Equities.
was expressly granted minority protection rights in a subsequent Subscription and
Shareholders Agreement11 dated March 12, 2002, stating that there shall be "a
nominee of the Subscriber to be elected as Treasurer/Chief Financial Officer, who
may not be removed by the Board of Directors without the affirmative vote of the
Subscriber."12 Accordingly, Dio was elected as a member of SBMEI’s Board of
Directors and further appointed as its Treasurer.13 The parties later executed two (2)
Investor’s Convertible Promissory Notes – one dated April 4, 2001 14 and another
dated May 8, 200115 – covering HS Equities’ infusion of a total of US$1,000,000.00
for the purpose of purchasing machinery, equipment, accessories, and materials to
be used for the construction of Ocean Adventure.
In June 2002, Dio, this time on behalf of Westdale, invested another
US$1,000,000.0016 in a separate business venture, called the Miracle Beach Hotel
Project (Miracle Beach), which involved the development of a resort owned by
Desmond adjoining Ocean Adventure. They agreed that the said investment would
be used to settle SBMEI’s ₱40,000,000.00 loan obligation to First Metro Investment
Corporation and for the construction of 48 lodging units/cabanas. 17 However, when
the corresponding subscription agreement was presented to Dio by SBMEI for
approval, it contained a clause stating that the "funds in the Subscription Bank
Account" were also to be used for the "funding of Ocean Adventure’s Negative Cash
Flow not exceeding US$200,000.00."18 This was in conflict with the exclusive
purpose and intent of Westdale’s investment in Miracle Beach and as such, Dio
refused to sign the subscription agreement.
Dio further claimed that she found out that, contrary to Desmond’s representations,
SBMEI actually had no capacity to deliver on its guarantees, and that in fact, as of
2001, it was incurring losses amounting to ₱62,595,216.00.19 She likewise claimed
to have discovered false entries in the company’s books and financial statements –
specifically, its overvaluation of the marine animals and its non-disclosure of the true
amount of JV China’s investment20 – which prompted her to call for an audit
investigation. Consequently, Dio discovered that, without her knowledge and
consent, Desmond made certain disbursements from Westdale’s special account,
meant only for Miracle Beach expenditures (special account), and diverted a total of
US$72,362.78 therein for the operating expenses of Ocean Adventure. 21 When
Desmond refused to execute an undertaking to return the diverted funds, Dio, in her
capacity as Treasurer of SBMEI, suspended the release of the remaining funds in
the aforesaid special account.22
Eventually, after Dio was ousted as Director and Treasurer of SBMEI, 23 she filed, on
April 19, 2004, two (2) criminal complaints24 (subject criminal complaints) for estafa
(a) through false pretenses under Article 315(1)(b) 25 of the Revised Penal
Code26 (RPC); and (b) with unfaithfulness or abuse of confidence through
misappropriation or conversion under Article 315(2)(a) 27 of the RPC, both against
Desmond before the Olongapo City Prosecutor’s Office (City Prosecutor’s Office),
docketed as IS Nos. 04-M-992 and 04-M-993.
In defense, Desmond maintained that his representation of himself as Chairman and
CEO of SBMEI was not a sham and that Dio has not even proven that he did not
have the expertise and qualifications to double her investment. Among others, he
also denied having been fired from Beijing Landa Aquarium Co. Ltd. for his
supposed incompetence and mismanagement. He further asserted that it was not
deceitful to value the marine mammals at US$3,720,000.00 as equity contribution of
JV China in SBMEI, notwithstanding the fact that two (2) false killer whales had
already perished before the company could start operations. This is because the
said valuation, in any case, would be based on the collective income-earning
capacity of the entire animal operating system derived from revenues generated by
marine park attendance and admission fees.28
In reply, Dio insisted that SBMEI, at the outset, never had sufficient assets or
resources of its own because, contrary to Desmond’s claims, the total amount of
US$2,300,000.00 it purportedly invested in buildings and equipment actually came
from the investments Dio’s company made in SBMEI.29
After the preliminary investigation, the City Prosecutor issued a Resolution 30 dated
August 26, 2004, finding probable cause against Desmond for the abovementioned
crimes, to wit:
The foregoing clearly applies in the instant two (2) cases as borne out by the
following facts, to with [sic]: (1) Desmond, as the Chairman and Chief Executive
Office of SBMEI and in order to persuade Dio to invest, represented that he
possessed the necessary influence, expertise and resources (in terms of credit and
property) for the project knowing the same to be false as he never had the capital
for the project as borne out by his correspondences with Dio; and (2) Dio fell for
these misrepresentations and the lure of profit offered by Desmond, thereby being
induced to invest the amounts of $1,150,000.00 and $1,000,000.00 to the damage
and prejudice of her company.
The elements of the crimes charged were thus established in these cases, namely
Dio parted with her money upon the prodding and enticement of respondent on the
false pretense that he had the capacity and resources for the proposed project. In
the end, Dio was not able to get her money back, thus causing her damage and
prejudice. Moreover, such defraudation or misappropriation having been committed
by Desmond through his company SBMEI involving funds solicited from Dio as a
member of the general public in contravention of the public interest, the probable
cause clearly exists to indict Desmond for the crime of Estafa under Article 315 (1)
(b) and (2)(a) of the Revised Penal Code in relation to PD No. 1689. 31
In view of the foregoing, corresponding criminal informations 32 (subject informations)
were filed with the Regional Trial Court of Olongapo City, Branch 74 (RTC),
docketed as Criminal Case Nos. 516-2004 and 515-2004. The accusatory portions
thereof read as follows:
Criminal Case No. 516-200433
That in or about and sometime in early 2001, in Olongapo City, Philippines, and
within the jurisdiction of this Honorable Court, the abovenamed accused, being the
officer of Subic Bay Marine Exploration, Inc. (SBMEI), acting as a syndicate and by
means of deceit, did then and there, willfully, unlawfully and feloniously defraud H.S.
EQUITIES LIMITED, represented in this case by Virginia S. Delos Santos-Dio in the
following manner, to wit: the said accused by means of false manifestations and
fraudulent representations which he made to said Virginia S. Delos Santos-Dio to
the effect that he had the expertise and qualifications, as well as the resources,
influence, credit and business transaction with the Subic Bay Metropolitan Authority
(SBMA) and other financing institutions to ensure the viability of the Subic Bay
Marine Exploration Ocean Adventure Project (SBMEOA), which he represented to
be a qualified and legally existing investment enterprise with capacity to solicit
investment from the general public, by submitting documents for the purpose, which
representations he knew to be false and fraudulent and the supporting documents
are similarly spurious and were only made in order to induce said Virginia S. Delos
Santos-Dio to invest and deliver as in fact she invested and delivered a total amount
of One Million One Hundred Fifty Thousand US Dollars ($1,150,000.00) to the said
accused on the strength of said manifestations and representations and supporting
documents, and said accused, once in possession of the said amount, misapplied,
converted and misappropriated the same to his own personal use and benefit, to the
damage and prejudice of H.S. Equities Limited in the amount of US $1,150,000.00
or Php57,500,000.00 Pesos, the dollar computed at the rate of Php 50.00 to [US]
$1.00 which was the prevailing rate of exchange of a dollar to peso at the time of the
commission of the offense.
CONTRARY TO LAW.
Criminal Case No. 515-200434
That in or about and sometime during the period from June 2002 to July 2002, in
Olongapo City, Philippines, and within the jurisdiction of this Honorable Court, the
above-named accused, did then and there, willfully, unlawfully and feloniously
defraud Westdale Assets, Limited represented in this case by Virginia S. Delos
Santos-Dio in the following manner to wit: the said accused received in trust and for
administration from the said Virginia S. Delos Santos-Dio the amount of One Million
US Dollars ($1,000,000.00) under the express obligation of using the same to pay
the loan facility of the Subic Bay Marine Exploration, Inc. (SBMEI) with First Metro
Investment Corporation and to fund the construction and development of the Miracle
Beach Project but the said accused, once in possession of the said amount, with
grave abuse of confidence and with intent to defraud, misapplied, misappropriated
and converted the same for his own use and benefit by devoting it to a purpose or
use different from that agreed upon and despite repeated demands made upon him
to account for and to return the said amount, he failed and refused and still fails and
refuses to do so, to the damage and prejudice of the said Westdale Assets, Limited
in the amount of US $1,000,000.00 or its equivalent to FIFTY MILLION (Php
50,000,000.00) Pesos, Philippine Currency, the dollar being computed at the rate of
Php50.00 to $ 1.00 which was the prevailing rate of exchange at the commission of
the offense, to the damage and prejudice of the latter in the aforementioned amount.
CONTRARY TO LAW.
Aggrieved, Desmond filed a Motion for Reconsideration, 35 as well as a Motion to
Withdraw Filed Informations.36 He also filed before the RTC a Motion to Defer
Further Proceedings and to Defer Issuance of Warrant of Arrest 37 but subsequently
withdrew the same and filed, instead, a Motion for Judicial Determination of
Probable Cause.38
The RTC Ruling
In an Order39 dated October 21, 2004, the RTC ruled in favor of Desmond and
declared that no probable cause exists for the crimes charged against him since the
elements of estafa were not all present, to wit:
First, the element of misrepresentation or deceit found in par. 2 (a) Article 315 of the
Revised Penal Code is absent. It must be emphasized that the promises allegedly
made to the complainant by the accused that her company’s investment will
significantly increase, clearly appeared in the Subic Bay Marine Exploration, Inc.’s
("SBMEI", for brevity) printed business plan dated January 12, 2001 (Annex "A",
Complaint-Affidavit dated 19 April 2004). Verily, this is SBMEI’s representation or
"come on" to would-be investors and not a personal assurance of the accused. The
fact that accused was the company’s Chief Executive Officer and Chairman of the
Board of Directors is of no moment in the absence of any evidence to show that
accused personally prepared the business plan thereby making the alleged "rosy
picture" his own personal enticements to the complainant. Therefore, there being a
dearth of evidence pointing to the accused as author of the SBMEI’s business plan,
any misrepresentation or deceit committed cannot be personally attributed to him.
Furthermore, the court cannot find any sufficient evidence that the accused
personally assured the complainant about his so-called power, influence and credit
with the SBMA and other financial institutions that would supposedly insure the
viability and profitability of the project. Note that nowhere in the Complaint-Affidavit
of the private complainant are there specific factual allegations that would show that
the accused had personal business meetings with the SBMA and said financial
institutions. As to how and in what manner and scope accused exercised such
alleged power, influence and credit over these juridical entities remain a bare and
self-serving averment in the absence of any factual detail or account.
Finally, it cannot be gainsaid [sic] that accused was the one who personally valuated
the marine mammals contributed by JV China Incorporated to the Subic Bay Marine
Exploration, Inc. as capital amounting to US$3.724 Million. Evidence clearly point to
an independent valuation done by a third party namely Beijing Landa Aquarium that
valued the marine mammals under the Buy-Out Agreement dated September 9,
1998. Needless to state, the onus is on complainant to controvert this valuation.
Again, however, no adequate proof was adduced along this line.
Second, the element of personal misappropriation by the accused under par. 1(b)
Article 315 of the Revised Penal Code is likewise not present. While it may be
conceded that there was money utilized to pay salaries of expatriates and staff as
well as the cost of utilities amounting to US$72,272.00 complainant failed to show
that said money was taken from her companies’ investments in SBMEI. It must be
pointed out that other than complainant’s bare allegation, there was no document
presented categorically stating that the investment of complainant’s companies were
earmark for a particular payment or project. Hence, when the investment entered
SBMEI’s financial coffers, the same presumably were co-mingled with other monies
of the corporation.
Moreover and more revealing, is the fact that again there was no showing that it was
accused who personally caused the payment of these expenses allegedly in
violation of the objective of the investment. It must be noted that SBMEI is a
corporation and not a single proprietorship. Being a corporation, expenses paid of
such a kind as utilities and salaries are not authorized personally and solely by the
President nor the Chief Executive Officer nor even by the Chairman of the Board for
that matter. These are corporate acts that are passed through board resolutions.
Hence, these corporate acts can in no way be considered personal acts of the
accused. Yet, he was singled out among all 5 members of the Board of Directors
who presumably, in the ordinary course of business, approved by resolution the
payments of such utilities and salaries. Consequently, there is again insufficiency of
evidence that the accused alone caused the payment of these salaries and utilities
for the sole purpose of pocketing the money thereby using the same for personal
gain.40
Consequently, the RTC denied the issuance of a warrant of arrest and hold
departure order against Desmond and ordered the dismissal of the cases against
him:
WHEREFORE, foregoing considered, the subject motion for judicial determination of
probable cause is favorably granted. There being no probable cause, the cases
against the accused must be dismissed as they are hereby DISMISSED. The
motions to issue warrant of arrest and Hold
Departure Order as well as the prayer for provisional remedy are necessarily
DENIED.
SO ORDERED.41
Given the RTC’s dismissal of the foregoing criminal cases, the City Prosecutor’s
Office filed motion for reconsideration which was, however, denied. As such, it filed
a petition for certiorari and mandamus42 before the CA on the ground of grave abuse
of discretion. Relatedly, Dio also filed a petition-in-intervention 43 before the CA,
praying for the reinstatement of the subject criminal complaints.
The CA Ruling
In its November 8, 2006 Decision,44 the CA upheld the RTC’s authority to dismiss a
criminal case if in the process of determining probable cause for issuing a warrant of
arrest, it also finds the evidence on record insufficient to establish probable cause. It
explained that such dismissal is an exercise of judicial discretion sanctioned under
Section 6(a), Rule 112 of the Revised Rules of Criminal Procedure. On this score,
the CA evaluated the evidence presented and agreed with the RTC’s conclusions
that there was no sufficient basis showing that Desmond committed estafa by
means of false pretenses. Neither was it established that the money sourced from
petitioner Dio was converted by respondent Desmond for some other purpose other
than that for which it was intended. Pertinent portions of the CA Decision restated
the RTC’s observations in this wise:
In the instant case, the alleged false representations by Desmond which allegedly
induced private complainants H.S. Equities, Ltd. ("H.S. Equities") and Dio, to part
with their money are not supported by the facts on record. First, the alleged false
representation employed by Desmond with respect to his expertise and
qualifications in the form of influence, credit and business transactions with the
Subic Bay Metropolitan Authority (SBMA) and financial institutions and such
resources to enable private complainants to double its investment with SBMEI has
not been shown to be false.
Indeed, nowhere in the documentary evidence presented by private complainants
that allegedly contained the above false representations does it show that it was
private respondent himself who made such representation. Notably, the SBMEI’s
Business Plan dated January 12, 2001 to which private complainants anchor such
allegation does not indicate that the representations made therein came personally
from Desmond. In addition, neither does it appear from such document that the
statements therein were used as a form of a personal assurance coming from
Desmond that private complainants would indeed double the amount they had
invested with SBMEI. If at all, we agree with the trial court that statements made in
the said business plan were merely a form of enticement to encourage would-be
investors from [sic] investing in such kind of business undertaking.
Moreover, we likewise agree with the trial court that no factual allegations were
made by private complainants as to how such false pretense of power and influence
was made upon them by Desmond and which convinced private complainants to
part with their money. It bears stressing that the allegations of false pretense of
power and influence in a case of estafa are mere conclusions of law which must be
substantiated at the very least by circumstances which would show that the person
accused of committing estafa did indeed commit acts of false representations. As
the records show, there was no misrepresentation on the part of Desmond that he is
the Chairman and Chief Executive Officer of SBMEI which is a corporation engaged
in the business of developing marine parks. Significantly, the records likewise show
that SBMEI did indeed build and develop a marine park in Subic Bay (Ocean
Adventure) for the purposes stated in its business plan and had entered into a long-
term lease agreement with SBMA. Documentary evidence in the form of the Report
of Independent Auditors to SBMEI shows the amount of investment the corporation
had invested in the said business undertaking. For instance, the corporation had
invested the amount of ₱106,788,219.00 in buildings and equipment alone. It has
also assets consisting of marine mammals which are necessary for the operation of
the marine park. In this respect, we cannot subscribe to private complainants’
contention that there was misrepresentation on the part of private respondent that
he had overvalued the worth of the marine mammals it had purchased from Beijing
Landa Aquarium Co., Ltd. of the Republic of China. This claim of private
complainants of the deceitful acts employed by Desmond in overpricing the value of
the marine animals for US$3.724 Million when in fact the sea animals were only
valued for one U.S. dollar was not corroborated by the evidence on hand.
xxxx
In the same manner, the facts in the case at bar that would allegedly constitute a
criminal charge of estafa under par. 1(b) are wanting. Be it noted that under the said
paragraph, estafa with unfaithfulness or abuse of confidence through
misappropriation or conversion of the money, goods or any other personal property
must be received in trust, on commission, for administration, or under any other
obligation which involves the duty to make delivery thereof or to return the same. It
is not amiss to note that a perusal of private complainants’ Complaint-Affidavit
shows that subject money in the amount of US$1,000,000.00 to be used for the
Miracle Beach Project was placed in a special account with Equitable-PCI Bank. As
the records show, the said funds were placed by Dio under the control of Fatima
Paglicawan, an employee of Westdale, such that, no money can be withdrawn from
the special account without the signature of the said employee, Desmond and a
certain John Corcoran. Therefore, at such time, it cannot be said that the funds were
received for administration or already under the juridical possession of Desmond.
Meanwhile, we would like to emphasize that to constitute conversion, it presupposes
that the thing has been devoted to a purpose or use different from that agreed upon.
Verily, a facial examination of the Journal Voucher and Check Voucher pertaining to
the withdrawals made on such account clearly shows that the disbursements were
not only authorized by Paglicawan but likewise indicated that the purpose for such
withdrawals was to cover payments for BIR taxes and the salaries of local
employees and expatriates.
To repeat, these withdrawals as well as the purpose thereof were known to
Paglicawan when [sic] she authorized the disbursements. Paglicawan, who was
designated by private complainant Dio to control the release of the said funds is
presumed to have acted under the latter’s authority. Such miscommunication
between Dio and Paglicawan with respect to the purpose of the funds does not
make out a case of estafa there being no abuse of confidence or conversion to
speak of taking into account that the said funds were released under the presumed
authority of private complainants through Paglicawan, and which were indeed used
for the purpose for which it was withdrawn. That being the case, there can be no
damage or prejudice to Westdale and Dio as there was no disturbance in the
property rights of Westdale and Dio in the said funds since the same were used for
the purpose for which it was disbursed.
Then again, we agree with the trial court that there is no sufficient evidence adduced
to support the criminal charges of estafa against Desmond. As pointed out by the
trial court, while private respondent is the Chairman and Chief Executive Officer of
SBMEI, there is no showing that he had personally and solely authorized the
application of the above funds for the payment of expenses not directly connected
with the Miracle Beach Project. Nor does it appear that as Chairman and Chief
Executive Officer, Desmond has been appointed to execute, on his own, such
corporate acts.45 (Citations omitted)
The City Prosecutor and Dio filed their respective motions for reconsideration which
were both denied in a Resolution46 dated July 19, 2007.
Hence, the instant petitions.
The Issue Before the Court
The primordial issue in this case is whether or not the CA erred in finding no grave
abuse of discretion on the part of the RTC when it dismissed the subject
informations for lack of probable cause.
The Court’s Ruling
The petitions are meritorious.
Determination of probable cause may be either executive or judicial.
The first is made by the public prosecutor, during a preliminary investigation, where
he is given broad discretion to determine whether probable cause exists for the
purpose of filing a criminal information in court. Whether or not that function has
been correctly discharged by the public prosecutor, i.e., whether or not he has made
a correct ascertainment of the existence of probable cause in a case, is a matter
that the trial court itself does not and may not be compelled to pass upon. 47
The second is one made by the judge to ascertain whether a warrant of arrest
should be issued against the accused. In this respect, the judge must satisfy himself
that, on the basis of the evidence submitted, there is a necessity for placing the
accused under custody in order not to frustrate the ends of justice. If the judge,
therefore, finds no probable cause, the judge cannot be forced to issue the arrest
warrant.48 Notably, since the judge is already duty-bound to determine the existence
or non-existence of probable cause for the arrest of the accused immediately upon
the filing of the information, the filing of a motion for judicial determination of
probable cause becomes a mere superfluity,49 if not a deliberate attempt to cut short
the process by asking the judge to weigh in on the evidence without a full-blown
trial.
In the case of Co v. Republic,50 the Court emphasized the settled distinction
between an executive and a judicial determination of probable cause, viz: 51
We reiterate that preliminary investigation should be distinguished as to whether it is
an investigation for the determination of a sufficient ground for the filing of the
information or it is an investigation for the determination of a probable cause for the
issuance of a warrant of arrest. The first kind of preliminary investigation is
executive in nature. It is part of the prosecution's job. 1âwphi1 The second kind of
preliminary investigation which is more properly called preliminary examination is
judicial in nature and is lodged with the judge.
On this score, it bears to stress that a judge is not bound by the resolution of the
public prosecutor who conducted the preliminary investigation and must himself
ascertain from the latter’s findings and supporting documents whether probable
cause exists for the purpose of issuing a warrant of arrest. This prerogative is
granted by no less than the Constitution which provides that "no warrant of arrest
shall issue except upon probable cause to be determined personally by the judge
after examination under oath or affirmation of the complainant and the witnesses he
may produce."52
While a judge’s determination of probable cause is generally confined to the limited
purpose of issuing arrest warrants, Section 5(a), 53 Rule 112 of the Revised Rules of
Criminal Procedure explicitly states that a judge may immediately dismiss a case if
the evidence on record clearly fails to establish probable cause, 54 viz:
SEC. 5. When warrant of arrest may issue. – (a) By the Regional Trial Court. –
Within ten (10) days from the filing of the complaint or information, the judge shall
personally evaluate the resolution of the prosecutor and its supporting evidence. He
may immediately dismiss the case if the evidence on record clearly fails to establish
probable cause. If he finds probable cause, he shall issue a warrant of arrest, or a
commitment order if the accused had already been arrested, pursuant to a warrant
issued by the judge who conducted preliminary investigation or when the complaint
or information was filed pursuant to Section 7 of this Rule. In case of doubt on the
existence of probable cause, the judge may order the prosecutor to present
additional evidence within five (5) days from notice and the issue must be resolved
by the court within thirty (30) days from the filing of the complaint or information.
(Emphasis and underscoring supplied)
In this regard, so as not to transgress the public prosecutor’s authority, it must be
stressed that the judge’s dismissal of a case must be done only in clear-cut cases
when the evidence on record plainly fails to establish probable cause – that is when
the records readily show uncontroverted, and thus, established facts which
unmistakably negate the existence of the elements of the crime charged. On the
contrary, if the evidence on record shows that, more likely than not, the crime
charged has been committed and that respondent is probably guilty of the same, the
judge should not dismiss the case and thereon, order the parties to proceed to trial.
In doubtful cases, however, the appropriate course of action would be to order the
presentation of additional evidence.55
In other words, once the information is filed with the court and the judge proceeds
with his primordial task of evaluating the evidence on record, he may either: (a)
issue a warrant of arrest, if he finds probable cause; (b) immediately dismiss the
case, if the evidence on record clearly fails to establish probable cause; and (c)
order the prosecutor to submit additional evidence, in case he doubts the existence
of probable cause.56
Applying these principles, the Court finds that the RTC’s immediate dismissal, as
affirmed by the CA, was improper as the standard of clear lack of probable cause
was not observed. In this case, records show that certain essential facts – namely,
(a) whether or not Desmond committed false representations that induced Dio to
invest in Ocean Adventure; and (b) whether or not Desmond utilized the funds
invested by Dio solely for the Miracle Beach Project for purposes different from what
was agreed upon – remain controverted. As such, it cannot be said that the absence
of the elements of the crime of estafa under Article 315(2)(a) 57 and 315(1) (b)58 of
the RPC had already been established, thereby rendering the RTC’s immediate
dismissal of the case highly improper.
court the prosecutor would have already presented all the evidence necessary to
secure a conviction of the accused, the objective of a previously-conducted
preliminary investigation being merely to determine whether there is sufficient
ground, to engender a well-founded belief that a crime has been committed and that
the respondent is probably guilty thereof and should be held for trial. 59 In this light,
given that the lack of probable cause had not been clearly established in this case,
the CA erred, and the RTC gravely abused its discretion, by ruling to dismiss
Criminal Case Nos. 515-2004 and 516-2004. Indeed, these cases must stand the
muster of a full-blown trial where the parties could be given, as they should be
given, the opportunity to ventilate their respective claims and defenses, on the basis
of which the court a quo can properly resolve the factual disputes therein.
WHEREFORE, the petitions are GRANTED. The November 8, 2006 Decision and
July 19, 2007 Resolution of the Court of Appeals in CA G.R. SP No. 88285 which
affirmed the October 21, 2004 Order of Dismissal issued by the Regional Trial Court
of Olongapo City, Branch 74 are SET ASIDE. The two (2) criminal informations for
estafa against respondent Timothy J. Desmond in Criminal Case Nos. 515-2004
and 516-2004 are hereby REINSTATED. Accordingly, the trial court is directed to
proceed with the arraignment of the accused and the trial of the case with dispatch.
SO ORDERED.
ESTELA M. PERLAS-BERNABE
Associate Justice
WE CONCUR:

Lest it be misconceived, trial judges will do well to remember that when a perceived
gap in the evidence leads to a "neither this nor that" conclusion, a purposeful
resolution of the ambiguity is preferable over a doubtful dismissal of the case. Verily,
a judge's discretion to dismiss a case immediately after the filing of the information
in court is appropriate only when the failure to establish probable cause can be
clearly inferred from the evidence presented and not when its existence is simply
doubtful. After all, it cannot be expected that upon the filing of the information in
 THIRD DIVISION account the unremitted amounts and the acquisition cost of the Honda City, Alfredo
pilfered a total amount of ₱1,046,000.00 to its prejudice and damage.5
G.R. No. 197293               April 21, 2014
In his counter-affidavit, Alfredo raised, among others, Juno Cars’ supposed failure to
ALFREDO C. MENDOZA, Petitioner,  prove ownership over the five (5) cars or its right to possess them with the purported
vs. unremitted payments. Hence, it could not have suffered damage. 6
PEOPLE OF THE PHILIPPINES AND JUNO CARS, INC., Respondents.
On March 4, 2008, Provincial Prosecutor Rey F. Delgado issued a
DECISION Resolution7 finding probable cause and recommending the filing of an information
against Alfredo for qualified theft and estafa.
LEONEN, J.:
Alfredo moved for reconsideration, but the motion was denied. 8 He then filed a
petition for review with the Department of Justice on May 16, 2008. 9
While the determination of probable cause to charge a person of a crime is the sole
function of the. prosecutor, the trial court may, in the protection of one's fundamental
right to liberty, dismiss the case if, upon a personal assessment of the evidence, it While Alfredo’s motion for reconsideration was still pending before the Office of the
finds that the evidence does not establish probable cause. City Prosecutor of Mandaluyong, two informations for qualified theft 10 and
estafa11 were filed before the Regional Trial Court, Branch 212, Mandaluyong City.
On March 31, 2008, Alfredo filed a motion for determination of probable
This is a petition for review on certiorari1 assailing the Court of Appeals'
cause12 before the trial court. On April 28, 2008, he also filed a motion to defer
decision2 dated January 14, 2011, which reversed the Regional Trial Court's
arraignment.
dismissal of the complaint against petitioner Alfredo C. Mendoza for qualified theft
and estafa.
Several clarificatory hearings were scheduled but were not conducted. 13 On
February 4, 2009, the parties agreed to submit all pending incidents, including the
This case stems from a complaint-affidavit filed by Juno Cars, Inc. through its
clarificatory hearing, for resolution.14
representative, Raul C. Evangelista, on January 8, 2008 for qualified theft and
estafa against Alfredo.3
On March 3, 2009, the trial court, through Presiding Judge Rizalina Capco-Umali,
issued an order15 dismissing the complaint, stating that:
In the complaint-affidavit, Juno Cars alleged that on June 2, 2007, it hired Alfredo as
Trade-In/Used Car Supervisor. On November 19, 2007, its Dealer/Operator,
Rolando Garcia, conducted a partial audit of the used cars and discovered that five After conducting an independent assessment of the evidence on record which
(5) cars had been sold and released by Alfredo without Rolando’s or the finance includes the assailed Resolution dated 04 March 2008, the court holds that the
manager’s permission.4 evidence adduced does not support a finding of probable cause for the offenses of
qualified theft and estafa. x x x.16
The partial audit showed that the buyers of the five cars made payments, but
Alfredo failed to remit the payments totalling ₱886,000.00. It was further alleged Juno Cars filed a motion for reconsideration, which the trial court denied on July 3,
that while there were 20 cars under Alfredo’s custody, only 18 were accounted for. 2009.17
Further investigation revealed that Alfredo failed to turn over the files of a 2001
Hyundai Starex and a Honda City 1.5 LXI. Juno Cars alleged that taking into
Juno Cars then filed a petition for certiorari with the Court of Appeals, arguing that
the trial court acted without or in excess of its jurisdiction and with grave abuse of
discretion when it dismissed the complaint. It argued that "the determination of
probable cause and the decision whether or not to file a criminal case in court,
rightfully belongs to the public prosecutor."18
19
On January 14, 2011, the Court of Appeals rendered a decision,  reversed the trial
court, and reinstated the case. In its decision, the appellate court ruled that the trial
court acted without or in excess of its jurisdiction "in supplanting the public
prosecutor’s findings of probable cause with her own findings of insufficiency of
evidence and lack of probable cause."20
Aggrieved, Alfredo filed a petition for review under Rule 45 before this court. In
essence, he argued that the trial court was correct in finding that there was no
probable cause as shown by the evidence on record. He argued that "judicial
determination of probable cause is broader than [the] executive determination of
probable cause"21 and that "[i]t is not correct to say that the determination of
probable cause is exclusively vested on the prosecutor x x x."22
In its comment,23 Juno Cars argued that Alfredo presented questions, issues, and
arguments that were a mere rehash of those already considered and passed upon
by the appellate court.
The Office of the Solicitor General, arguing for public respondent, stated in its
comment24 that the appellate court correctly sustained the public prosecutor in his
findings of probable cause against Alfredo. Since there was no showing of grave
abuse of discretion on the part of Prosecutor Rey F. Delgado, the trial court should
respect his determination of probable cause.
In his reply,25 Alfredo reiterated that "judicial determination of probable cause[,] while
not a superior faculty[,] covers a broader encompassing perspective in the
disposition of the issue on the existence of probable cause." 26 He argued that the
findings of the trial court should be accorded greater weight than the appellate
court’s. It merely reviewed the findings of the trial court.
The primordial issue is whether the trial court may dismiss an information filed by
the prosecutor on the basis of its own independent finding of lack of probable cause.
Time and again, this court has been confronted with the issue of the difference
between the determination of probable cause by the prosecutor on one hand and
the determination of probable cause by the judge on the other. We examine these
two concepts again.
Juno Cars filed a complaint against Alfredo for qualified theft 27 and estafa under
Article 315, fourth paragraph, no. 3(c) 28 of the Revised Penal Code. Since qualified
theft is punishable by reclusion perpetua, a preliminary investigation must first be
conducted "to determine whether there is sufficient ground to engender a well-
founded belief that a crime has been committed and the respondent is probably
guilty thereof, and should be held for trial," in accordance with Rule 112, Section 1
of the Rules on Criminal Procedure.
At this stage, the conduct of the preliminary investigation and the subsequent
determination of the existence of probable cause lie solely within the discretion of
the public prosecutor.29 If upon evaluation of the evidence, the prosecutor finds
sufficient basis to find probable cause, he or she shall then cause the filing of the
information with the court.
Once the information has been filed, the judge shall then "personally evaluate the
resolution of the prosecutor and its supporting evidence" 30 to determine whether
there is probable cause to issue a warrant of arrest. At this stage, a judicial
determination of probable cause exists.
In People v. Castillo and Mejia,31 this court has stated:
There are two kinds of determination of probable cause: executive and judicial. The
executive determination of probable cause is one made during preliminary
investigation. It is a function that properly pertains to the public prosecutor who is
given a broad discretion to determine whether probable cause exists and to charge
those whom he believes to have committed the crime as defined by law and thus
should be held for trial. Otherwise stated, such official has the quasi-judicial
authority to determine whether or not a criminal case must be filed in court. Whether
or not that function has been correctly discharged by the public prosecutor, i.e.,
whether or not he has made a correct ascertainment of the existence of probable
cause in a case, is a matter that the trial court itself does not and may not be
compelled to pass upon.
The judicial determination of probable cause, on the other hand, is one made by the
judge to ascertain whether a warrant of arrest should be issued against the
accused. The judge must satisfy himself that based on the evidence submitted,
there is necessity for placing the accused under custody in order not to frustrate the
ends of justice. If the judge finds no probable cause, the judge cannot be forced to
issue the arrest warrant.32
The difference is clear: The executive determination of probable cause concerns
itself with whether there is enough evidence to support an Information being filed.
The judicial determination of probable cause, on the other hand, determines
whether a warrant of arrest should be issued. In People v. Inting: 33
x x x Judges and Prosecutors alike should distinguish the preliminary inquiry which
determines probable cause for the issuance of a warrant of arrest from the
preliminary investigation proper which ascertains whether the offender should be
held for trial or released. Even if the two inquiries are conducted in the course of one
and the same proceeding, there should be no confusion about the objectives. The
determination of probable cause for the warrant of arrest is made by the Judge. The
preliminary investigation proper—whether or not there is reasonable ground to
believe that the accused is guilty of the offense charged and, therefore, whether or
not he should be subjected to the expense, rigors and embarrassment of trial—is
the function of the Prosecutor.34 (Emphasis supplied)
While it is within the trial court’s discretion to make an independent assessment of
the evidence on hand, it is only for the purpose of determining whether a warrant of
arrest should be issued. The judge does not act as an appellate court of the
prosecutor and has no capacity to review the prosecutor’s determination of probable
cause; rather, the judge makes a determination of probable cause independent of
the prosecutor’s finding.
People v. Court of Appeals and Jonathan Cerbo35 discussed the rationale. In that
case, Jonathan Cerbo allegedly shot Rosalinda Dy in the presence of his father,
Billy Cerbo. An information for murder was filed against Jonathan Cerbo. The
daughter of Rosalinda Dy, as private complainant, executed a complaint-affidavit
charging Billy Cerbo with conspiracy. The prosecutor then filed a motion to amend
the information, which was granted by the court. The information was then amended
to include Billy Cerbo as one of the accused, and a warrant of arrest was issued
against him.
Billy Cerbo filed a motion to quash the warrant arguing that it was issued without
probable cause. The trial court granted this motion, recalled the warrant, and
dismissed the case against him. The Court of Appeals affirmed this dismissal. This
court, however, reversed the Court of Appeals and ordered the reinstatement of the
amended information against Billy Cerbo, stating that:
In granting this petition, we are not prejudging the criminal case or the guilt or
innocence of Private Respondent Billy Cerbo. We are simply saying that, as a
general rule, if the information is valid on its face and there is no showing of
manifest error, grave abuse of discretion or prejudice on the part of the public
prosecutor, courts should not dismiss it for ‘want of evidence,’ because evidentiary
matters should be presented and heard during the trial. The functions and duties of
both the trial court and the public prosecutor in "the proper scheme of things" in our
criminal justice system should be clearly understood.
The rights of the people from what could sometimes be an "oppressive" exercise of
government prosecutorial powers do need to be protected when circumstances so
require. But just as we recognize this need, we also acknowledge that the State
must likewise be accorded due process. Thus, when there is no showing of
nefarious irregularity or manifest error in the performance of a public prosecutor’s
duties, courts ought to refrain from interfering with such lawfully and judicially
mandated duties.
In any case, if there was palpable error or grave abuse of discretion in the public
prosecutor’s finding of probable cause, the accused can appeal such finding to the
justice secretary and move for the deferment or suspension of the proceedings until
such appeal is resolved.36 (Emphasis supplied)
In this case, the resolution dated March 4, 2008 of Prosecutor Rey F. Delgado found
that the facts and evidence were "sufficient to warrant the indictment of [petitioner] x
x x."37 There was nothing in his resolution which showed that he issued it beyond
the discretion granted to him by law and jurisprudence.
While the information filed by Prosecutor Delgado was valid, Judge Capco-Umali
still had the discretion to make her own finding of whether probable cause existed to
order the arrest of the accused and proceed with trial.
Jurisdiction over an accused is acquired when the warrant of arrest is served.
Absent this, the court cannot hold the accused for arraignment and trial.
Article III, Section 2 of the Constitution states:
The right of the people to be secure in their persons, houses, papers, and effects
against unreasonable searches and seizures of whatever nature and for any
purpose shall be inviolable, and no search warrant or warrant of arrest shall issue
except upon probable cause to be determined personally by the judge after
examination under oath or affirmation of the complainant and the witnesses he may
produce, and particularly describing the place to be searched and the persons or
things to be seized.
The Constitution prohibits the issuance of search warrants or warrants of arrest
where the judge has not personally determined the existence of probable cause.
The phrase "upon probable cause to be determined personally by the judge after
examination under oath or affirmation of the complainant and the witnesses he may
produce" allows a determination of probable cause by the judge ex parte.
For this reason, Section 6, paragraph (a) of Rule 112 of the Rules on Criminal
Procedure mandates the judge to "immediately dismiss the case if the evidence on
record fails to establish probable cause." Section 6, paragraph (a) of Rule 112
reads:
Section 6. When warrant of arrest may issue. — (a) By the Regional Trial Court. —
Within ten (10) days from the filing of the complaint or information, the judge shall
personally evaluate the resolution of the prosecutor and its supporting evidence. He
may immediately dismiss the case if the evidence on record clearly fails to establish
probable cause. If he finds probable cause, he shall issue a warrant of arrest, or a
commitment order if the accused has already been arrested pursuant to a warrant
issued by the judge who conducted the preliminary investigation or when the
complaint or information was filed pursuant to section 7 of this Rule. In case of
doubt on the existence of probable cause, the judge may order the prosecutor to
present additional evidence within five (5) days from notice and the issue must be
resolved by the court within thirty (30) days from the filing of the complaint of
information.
In People v. Hon. Yadao:38
Section 6, Rule 112 of the Rules of Court gives the trial court three options upon the
filing of the criminal information: (1) dismiss the case if the evidence on record
clearly failed to establish probable cause; (2) issue a warrant of arrest if it finds
probable cause; and (3) order the prosecutor to present additional evidence within
five days from notice in case of doubt as to the existence of probable cause.
But the option to order the prosecutor to present additional evidence is not
mandatory.1âwphi1 The court’s first option under the above is for it to "immediately
dismiss the case if the evidence on record clearly fails to establish probable cause."
That is the situation here: the evidence on record clearly fails to establish probable
cause against the respondents.39 (Emphasis supplied)
It is also settled that "once a complaint or information is filed in court, any disposition
of the case, whether as to its dismissal or the conviction or the acquittal of the
accused, rests in the sound discretion of the court."40
In this case, Judge Capco-Umali made an independent assessment of the evidence
on record and concluded that "the evidence adduced does not support a finding of
probable cause for the offenses of qualified theft and estafa." 41Specifically, she
found that Juno Cars "failed to prove by competent evidence" 42 that the vehicles
alleged to have been pilfered by Alfredo were lawfully possessed or owned by them,
or that these vehicles were received by Alfredo, to be able to substantiate the
charge of qualified theft. She also found that the complaint "[did] not state with
particularity the exact value of the alleged office files or their valuation purportedly
have been removed, concealed or destroyed by the accused," 43 which she found
crucial to the prosecution of the crime of estafa under Article 315, fourth paragraph,
no. 3(c) of the Revised Penal Code. She also noted that:
x x x As a matter of fact, this court had even ordered that this case be set for
clarificatory hearing to clear out essential matters pertinent to the offense charged
and even directed the private complainant to bring documents relative to the
same/payment as well as affidavit of witnesses/buyers with the end view of
satisfying itself that indeed probable cause exists to commit the present case which
private complainant failed to do.44
Accordingly, with the present laws and jurisprudence on the matter, Judge Capco-
Umali correctly dismissed the case against Alfredo.
Although jurisprudence and procedural rules allow it, a judge must always proceed
with caution in dismissing cases due to lack of probable cause, considering the
preliminary nature of the evidence before it. It is only when he or she finds that the
evidence on hand absolutely fails to support a finding of probable cause that he or
she can dismiss the case. On the other hand, if a judge finds probable cause, he or
she must not hesitate to proceed with arraignment and trial in order that justice may
be served.

WHEREFORE, the petition is GRANTED. The decision dated January 14, 2011 of
the Court of Appeals in CA-G.R. SP. No. 110774 is REVERSED and SET ASIDE.
Criminal Case Nos. MC08-11604-05 against Alfredo C. Mendoza are DISMISSED.

SO ORDERED.

MARVIC MARIO VICTOR F. LEONEN

Associate Justice

WE CONCUR:
 THIRD DIVISION
(RTC) of Makati City. Branch 150 to which the case was raffled, presided by Judge
 
  Elmo Alameda, forthwith issued a commitment order[4] against petitioner who was
JOSE ANTONIO C. LEVISTE, G.R. No. 182677
Petitioner,   placed under police custody while confined at the Makati Medical Center.[5]
  Present:  
    After petitioner posted a P40,000 cash bond which the trial court approved, [6] he was
- versus - CARPIO MORALES,
  NACHURA,* released from detention, and his arraignment was set on January 24, 2007.
  BERSAMIN,  
HON. ELMO M. ALAMEDA, HON. RAUL M. GONZALEZ, ABAD,** and The private complainants-heirs of De las Alas filed, with the conformity of the public
HON. EMMANUEL Y. VELASCO, HEIRS OF THE LATE VILLARAMA, JR., JJ
RAFAEL DE LAS ALAS,   prosecutor, an Urgent Omnibus Motion[7]praying, inter alia, for the deferment of the
Respondents.  
proceedings to allow the public prosecutor to re-examine the evidence on record or
Promulgated:
August 3, 2010 to conduct a reinvestigation to determine the proper offense.
 
     
x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x The RTC thereafter issued the (1) Order of January 24, 2007[8] deferring
 
  petitioners arraignment and allowing the prosecution to conduct a reinvestigation to
DECISION determine the proper offense and submit a recommendation within 30 days from its
 
  inception, inter alia; and (2) Order of January 31, 2007[9] denying reconsideration of
the first order. Petitioner assailed these orders via certiorari and prohibition before
CARPIO MORALES, J.:
  the Court of Appeals.
Jose Antonio C. Leviste (petitioner) assails via the present petition for review filed  
on May 30, 2008 the August 30, 2007 Decision[1] and the April 18, 2008  
[2]
Resolution  of the Court of Appeals in CA-G.R. SP No. 97761 that affirmed the trial  
courts Orders of January 24, 31, February 7, 8, all in 2007, and denied the motion Meantime, petitioner filed an Urgent Ex-Parte Manifestation and Motion
for reconsideration, respectively. before the trial court to defer acting on the public prosecutors recommendation on
  the proper offense until after the appellate court resolves his application for
Petitioner was, by Information  of January 16, 2007, charged with homicide  for the
[3]
injunctive reliefs, or alternatively, to grant him time to comment on the prosecutors
death of Rafael de las Alas on January 12, 2007 before the Regional Trial Court recommendation and thereafter set a hearing for the judicial determination of

probable cause.[10] Petitioner also separately moved for the inhibition of Judge
Alameda with prayer to defer action on the admission of the Amended Information.
[11]
 
The trial court nonetheless issued the other assailed orders, viz: (1) Order
of February 7, 2007[12] that admitted the Amended Information [13] for murder  and
directed the issuance of a warrant of arrest; and (2) Order of February 8,
2007[14] which set the arraignment on February 13, 2007. Petitioner questioned
these two orders via supplemental petition before the appellate court.
 
The appellate court dismissed petitioners petition, hence, his present
petition, arguing that:
 
PRIVATE RESPONDENT DID NOT HAVE THE RIGHT TO
CAUSE THE REINVESTIGATION OF THE CRIMINAL CASE
BELOW WHEN THE CRIMINAL INFORMATION HAD ALREADY
BEEN FILED WITH THE LOWER COURT. HENCE, THE
COURT OF APPEALS COMMITTED A GRAVE ERROR IN
FINDING THAT RESPONDENT JUDGE DID NOT ACT WITH
GRAVE ABUSE OF DISCRETION IN GRANTING SUCH
REINVESTIGATION DESPITE HAVING NO BASIS IN THE
RULES OF COURT[;]
RESPONDENT JUDGE ACTED WITH GRAVE ABUSE OF
DISCRETION IN ADMITTING STATE PROSECUTOR
VELASCOS AMENDED INFORMATION, ISSUING A WARRANT
OF ARREST, AND SETTING THE CASE BELOW FOR
ARRAIGNMENT, CONSIDERING THAT THE VALIDITY AND
LEGALITY OF HIS ORDERS DATED 24 AND 31 JANUARY
2007, WHICH LED TO THE QUESTIONABLE
REINVESTIGATION AND ILLEGAL AMENDED
INFORMATION[,] ARE YET TO BE RESOLVED BY THIS
HONORABLE COURT (sic); [AND]
 
CONSIDERING THAT PROSECUTOR VELASCOS FINDINGS
IN HIS RESOLUTION DATED 2 FEBRUARY 2007 ARE
BLATANTLY BASED ON MERE SPECULATIONS AND
CONJECTURES, WITHOUT ANY SUBSTANTIAL OR
MATERIAL NEW EVIDENCE BEING ADDUCED DURING THE
REINVESTIGATION, RESPONDENT JUDGE SHOULD HAVE
AT LEAST ALLOWED PETITIONERS MOTION FOR A
HEARING FOR JUDICIAL DETERMINATION OF PROBABLE
CAUSE.[15] (emphasis in the original omitted)
 
Records show that the arraignment scheduled on March 21, 2007 pushed through
during which petitioner refused to plead, drawing the trial court to enter a plea of not
guilty for him.
Prior thereto or on February 23, 2007, petitioner filed an Urgent Application for
Admission to Bail Ex Abundanti Cautela[16] which the trial court, after hearings
thereon, granted by Order of May 21, 2007,[17] it finding that the evidence of guilt for
the crime of murder  is not strong. It accordingly allowed petitioner to post bail in the
amount of P300,000 for his provisional liberty.
 
The trial court, absent any writ of preliminary injunction from the appellate court, went
on to try petitioner under the Amended Information. By Decision of January 14, 2009,
the trial court found petitioner guilty of homicide, sentencing him to suffer an
indeterminate penalty of six years and one day of prision mayor as minimum to 12
years and one day of reclusion temporal as maximum. From the Decision, petitioner
filed an appeal to the appellate court, docketed as CA-G.R. CR No. 32159, during the
pendency of which he filed an urgent application for admission to bail pending
appeal. The appellate court denied petitioners application which this Court, in G.R.
No. 189122, affirmed by Decision of March 17, 2010.
The Office of the Solicitor General (OSG) later argued that the present
petition had been rendered moot since the presentation of evidence, wherein
petitioner actively participated, had been concluded.[18]
 
Waiver on the part of the accused  must be distinguished from mootness of
the petition, for in the present case, petitioner did not, by his active participation in
the trial, waive his stated objections.
 
Section 26, Rule 114 of the Rules of Court provides:
SEC. 26. Bail not a bar to objections on illegal arrest, lack of or
irregular preliminary investigation.  An application for or
admission to bail shall not bar the accused from challenging the
validity of his arrest or the legality of the warrant issued therefor,
or from assailing the regularity or questioning the absence of a
preliminary investigation of the charge against him, provided that
he raises them before entering his plea. The court shall resolve
the matter as early as practicable but not later than the start of
the trial of the case.
By applying for bail, petitioner did not waive his right to challenge the
regularity of the reinvestigation of the charge against him, the validity of the
admission of the Amended Information, and the legality of his arrest under the
Amended Information, as he vigorously raised them prior  to his arraignment. During
the arraignment on March 21, 2007, petitioner refused to enter his plea since the
issues he raised were still pending resolution by the appellate court, thus prompting
the trial court to enter a plea of not guilty for him.
The principle that the accused is precluded after arraignment from
questioning the illegal arrest or the lack of or irregular preliminary
investigation applies only if he voluntarily  enters his plea and participates during
trial, without previously invoking his objections thereto.[19] There must be clear and
convincing proof that petitioner had an actual intention to relinquish his right to
question the existence of probable cause. When the only proof of intention rests on
what a party does, his act should be so manifestly consistent with, and indicative of,
an intent to voluntarily and unequivocally relinquish the particular right that no other
explanation of his conduct is possible.[20]
From the given circumstances, the Court cannot reasonably infer a valid
waiver on the part of petitioner to preclude him from obtaining a definite resolution of
the objections he so timely invoked. Other than its allegation of active participation,
the OSG offered no clear and convincing proof that petitioners participation in the
trial was unconditional with the intent to voluntarily and unequivocally abandon his
petition. In fact, on January 26, 2010, petitioner still moved for the early resolution of
the present petition.[21]
Whatever delay arising from petitioners availment of remedies against the
trial courts Orders cannot be imputed to petitioner to operate as a valid waiver on
his part. Neither can the non-issuance of a writ of preliminary injunction be deemed
as a voluntary relinquishment of petitioners principal prayer. The non-issuance of
such injunctive relief only means that the appellate court did not preliminarily find
any exception[22] to the long-standing doctrine that injunction will not lie to enjoin a
criminal prosecution.[23]Consequently, the trial of the case took its course.
 
The petition is now moot, however, in view of the trial courts rendition of
judgment.
 
A moot and academic case is one that ceases to present a justiciable
controversy by virtue of supervening events, so that a declaration thereon would be
[24]
of no practical use or value.
The judgment convicting petitioner of homicide under the Amended
Information for murder operates as a supervening event that mooted the present
[25]
petition. Assuming that there is ground  to annul the finding of probable cause for
murder, there is no practical use or value in abrogating the concluded proceedings
and retrying the case under the original Information for homicide just to arrive, more
likely or even definitely, at the same conviction of homicide. Mootness would have
also set in had petitioner been convicted of murder, for proof beyond reasonable
doubt, which is much higher than probable cause, would have been established in
that instance.
Instead, however, of denying the petition outright on the ground of
mootness, the Court proceeds to resolve the legal issues in order to formulate
controlling principles to guide the bench, bar and public. [26] In the present case, there
is compelling reason to clarify the remedies available  before  and after  the filing of
an information in cases subject of inquest.
After going over into the substance of the petition and the assailed
issuances, the Court finds no reversible error on the part of the appellate court in
finding no grave abuse of discretion in the issuance of the four trial court Orders.
 
In his first assignment of error, petitioner posits that the prosecution has
no right under the Rules to seek from the trial court an investigation or reevaluation
of the case except through a petition for review before the Department of Justice
(DOJ). In cases when an accused is arrested without a warrant, petitioner contends
that the remedy of preliminary investigation belongs only to the accused.
The contention lacks merit.
 
Section 6,[27] Rule 112 of the Rules of Court reads:
When a person is lawfully arrested without a warrant involving an
offense which requires a preliminary investigation, the complaint
or information may be filed by a prosecutor without need of such
investigation provided an inquest has been conducted in
accordance with existing rules. In the absence or unavailability of
an inquest prosecutor, the complaint may be filed by the offended
party or a peace officer directly with the proper court on the basis
of the affidavit of the offended party or arresting officer or person.
Before the complaint or information is filed, the person arrested
may ask for a preliminary investigation in accordance with this
Rule, but he must sign a waiver of the provisions of Article 125 of
the Revised Penal Code, as amended, in the presence of his
counsel. Notwithstanding the waiver, he may apply for bail and
the investigation must be terminated within fifteen (15) days from
its inception.
 
 After the filing of the complaint or information in court without a
signs a waiver of any objection against delay in his delivery to the proper judicial
preliminary investigation, the accused may, within five (5) days
from the time he learns of its filing, ask for a preliminary authorities under Article 125 of the Revised Penal Code. For obvious reasons, this
investigation with the same right to adduce evidence in his
defense as provided in this Rule. (underscoring supplied) remedy is not available to the private complainant since he cannot waive what he
  does not have. The benefit of the provisions of Article 125, which requires the filing
 
of a complaint or information with the proper judicial authorities within the applicable
A preliminary investigation is required before the filing of a complaint or
period,[32] belongs to the arrested person.
information for an offense where the penalty prescribed by law is at least four years,
 
two months and one day without regard to fine. [28] As an exception, the rules provide
The accelerated process of inquest, owing to its summary nature and the
that there is no need for a preliminary investigation in cases of a lawful arrest
attendant risk of running against Article 125, ends with either the prompt filing of an
without a warrant[29] involving such type of offense, so long as an inquest, where
information in court or the immediate release of the arrested person. [33] Notably, the
available, has been conducted.[30]
  rules on inquest do not provide for a motion for reconsideration. [34]

Inquest is defined as an informal and summary investigation conducted by  

a public prosecutor in criminal cases involving persons arrested and detained Contrary to petitioners position that private complainant should have

without the benefit of a warrant of arrest issued by the court for the purpose of appealed to the DOJ Secretary, such remedy is not immediately available in cases

determining whether said persons should remain under custody and subject of inquest.

correspondingly be charged in court.[31]  

 
It is imperative to first take a closer look at the predicament of both the
arrested person and the private complainant during the brief period of inquest, to
grasp the respective remedies available to them before and after the filing of a
complaint or information in court.
BEFORE THE FILING OF COMPLAINT OR INFORMATION IN COURT,
the private complainant may proceed in coordinating with the arresting officer and
the inquest officer during the latters conduct of inquest. Meanwhile, the arrested
person has the option to avail of a 15-day preliminary investigation, provided he duly
Noteworthy is the proviso that the appeal to the DOJ Secretary is by
petition by a proper party under such rules as the Department of Justice may
prescribe.[35] The rule referred to is the 2000 National Prosecution Service Rule on
Appeal,[36] Section 1 of which provides that the Rule shall apply to appeals from
resolutions x x x in cases subject of preliminary investigation/ reinvestigation. In
cases subject of inquest, therefore, the private party should first avail of a
preliminary investigation or reinvestigation, if any, before elevating the matter to the
DOJ Secretary.
 In case the inquest proceedings yield no probable cause, the private
complainant may pursue the case through the regular course of a preliminary
investigation.
ONCE A COMPLAINT OR INFORMATION IS FILED IN COURT, the rules
yet provide the accused with another opportunity to ask for a preliminary
investigation within five days from the time he learns of its filing. The Rules of Court
and the New Rules on Inquest are silent, however, on whether the private
complainant could invoke, as respondent heirs of the victim did in the present case,
a similar right to ask for a reinvestigation.
 
The Court holds that the private complainant can move for reinvestigation,
subject to and in light of the ensuing disquisition.
All criminal actions commenced by a complaint or information shall be
prosecuted under the direction and control of the public prosecutor. [37] The private
complainant in a criminal case is merely a witness and not a party to the case and
cannot, by himself, ask for the reinvestigation of the case after  the information had
been filed in court, the proper party for that being the public prosecutor who has the
[38]
control of the prosecution of the case.  Thus, in cases where the private
complainant is allowed to intervene by counsel in the criminal action, [39] and is
granted the authority to prosecute, [40] the private complainant, by counsel and with
the conformity of the public prosecutor, can file a motion for reinvestigation.
 
In fact, the DOJ instructs that before the arraignment of the accused, trial
prosecutors must examine the Information vis--vis the resolution of the investigating
prosecutor in order to make the necessary corrections or revisions and to ensure
that the information is sufficient in form and substance.[41]
x x x Since no evidence has been presented at that stage, the
error would appear or be discoverable from a review of the
records of the preliminary investigation. Of course, that fact may
be perceived by the trial judge himself but, again, realistically it
will be the prosecutor who can initially determine the same. That
is why such error need not be manifest or evident, nor is it
required that such nuances as offenses includible in the offense
charged be taken into account. It necessarily follows, therefore,
that the prosecutor can and should institute remedial measures[.]
[42]
 (emphasis and underscoring supplied)
The prosecution of crimes appertains to the executive department of the
government whose principal power and responsibility is to see that our laws are
faithfully executed.  A necessary component of this power to execute our laws is the
right to prosecute their violators.  The right to prosecute vests the prosecutor with a
wide range of discretion the discretion of what and whom to charge, the exercise of
which depends on a smorgasbord of factors which are best appreciated by
prosecutors.[43]
 
The prosecutions discretion is not boundless or infinite, however. [44] The
standing principle is that once an information is filed in court, any remedial measure
such as a reinvestigation must be addressed to the sound discretion of the
court. Interestingly, petitioner supports this view. [45] Indeed, the Court ruled in one
case that:
 The rule is now well settled that once a complaint or
information is filed in court, any disposition of the case, whether
as to its dismissal or the conviction or the acquittal of the
accused, rests in the sound discretion of the court. Although the
prosecutor retains the direction and control of the prosecution of
criminal cases even when the case is already in court, he cannot
impose his opinion upon the tribunal. For while it is true that the
prosecutor has the quasi-judicial discretion to determine whether
or not a criminal case should be filed in court, once the case had
already been brought therein any disposition the prosecutor may
deem proper thereafter
should be addressed to the court for its consideration and
approval. The only qualification is that the action of the court
must not impair the substantial rights of the accused or the right
of the People to due process of law.
xxxx
 
In such an instance, before a re-investigation of the
case may be conducted by the public prosecutor, the permission
or consent of the court must be secured. If after such re-
investigation the prosecution finds a cogent basis to withdraw the
information or otherwise cause the dismissal of the case, such
proposed course of action may be taken but shall likewise be
addressed to the sound discretion of the court. [46](underscoring
supplied)
 
While Abugotal v. Judge Tiro[47] held that to ferret out the truth, a trial is to
be preferred to a reinvestigation, the Court therein recognized that a trial court
may, where the interest of justice so requires, grant a motion for reinvestigation of a
criminal case pending before it.
 
Once the trial court grants the prosecutions motion for reinvestigation, the
former is deemed to have deferred to the authority of the prosecutorial arm of the
Government.  Having brought the case back to the drawing board, the prosecution
is thus equipped with discretion wide and far reaching regarding the disposition
thereof,[48] subject to the trial courts approval of the resulting proposed course of
action.
 
Since a reinvestigation may entail a modification of the criminal
information as what happened in the present case, the Courts holding is bolstered
by the rule on amendment of an information under Section 14, Rule 110 of the
Rules of Court:
A complaint or information may be amended, in form or in
substance, without leave of court, at any time before the accused
enters his plea.  After the plea and during the trial, a formal
amendment may only be made with leave of court and when it
can be done without causing prejudice to the rights of the
accused.
 
However, any amendment before plea, which
downgrades the nature of the offense charged in or excludes any
accused from the complaint or information, can be made only
upon motion by the prosecutor, with notice to the offended party
and with leave of court.  The court shall state its reasons in
resolving the motion and copies of its order shall be furnished all
parties, especially the offended party.
 
If it appears at any time before judgment that a mistake
has been made in charging the proper offense, the court shall
dismiss the original complaint or information upon the filing of a
new one charging the proper offense in accordance with section
11, Rule 119, provided the accused would not be placed in
double jeopardy. The court may require the witnesses to give bail
for their appearance at the trial. (emphasis supplied)

In fine, before the accused enters a plea, a formal or substantial amendment of the
complaint or information may be made without leave of court. [49] After the entry of a
plea, only a formal amendment may be made but with leave of court and only if it
does not prejudice the rights of the accused. After arraignment, a substantial
amendment is proscribed except if the same is beneficial to the accused. [50]
 
It must be clarified though that not all defects in an information are curable by
amendment prior to entry of plea. An information which is void ab initio cannot be
amended to obviate a ground for quashal. [51] An amendment which operates to vest
[52]
jurisdiction upon the trial court is likewise impermissible.
 
 
 
Considering the general rule that an information may be amended even in
substance and even without leave of court at any time before entry of plea, does it
mean that the conduct of a reinvestigation at that stage is a mere superfluity?
 
It is not.
 
Any remedial measure springing from the reinvestigation be it a complete
disposition or an intermediate modification[53] of the charge is eventually addressed
to the sound discretion of the trial court, which must make an independent
evaluation or assessment of the merits of the case. Since the trial court would
ultimately make the determination on the proposed course of action, it is for the
prosecution to consider whether a reinvestigation is necessary to adduce and
review the evidence for purposes of buttressing the appropriate motion to be filed in
court.
More importantly, reinvestigation is required in cases involving a substantial
amendment of the information. Due process of law demands that no substantial
amendment of an information may be admitted without conducting another or a new
preliminary investigation. In Matalam v. The 2nd Division of the Sandiganbayan,
[54]
 the Court ruled that a substantial amendment in an information entitles an
accused to another preliminary investigation, unless the amended information
contains a charge related to or is included in the original Information.
The question to be resolved is whether the amendment of the Information from
homicide to murder is considered a substantial amendment, which would make it
not just a right but a duty of the prosecution to ask for a preliminary investigation.
The Court answers in the affirmative.
A substantial amendment consists of the recital of facts
constituting the offense charged and determinative of the
jurisdiction of the court. All other matters are merely of form. The
following have been held to be mere formal amendments: (1)
new allegations which relate only to the range of the penalty that
the court might impose in the event of conviction; (2) an
amendment which does not charge another offense different or
distinct from that charged in the original one; (3) additional
allegations which do not alter the prosecutions theory of the case
so as to cause surprise to the accused and affect the form of
defense he has or will assume; (4) an amendment which does
not adversely affect any substantial right of the accused; and (5)
an amendment that merely adds specifications to eliminate
 vagueness in the information and not to introduce new and
material facts, and merely states with additional precision
something which is already contained in the original information
and which adds nothing essential for conviction for the crime
charged.
The test as to whether a defendant is prejudiced by the
amendment is whether a defense under the information as it
originally stood would be available after the amendment is made,
and whether any evidence defendant might have would be
equally applicable to the information in the one form as in the
other. An amendment to an information which does not change
the nature of the crime alleged therein does not affect the
essence of the offense or cause surprise or deprive the accused
of an opportunity to meet the new averment had each been held
to be one of form and not of substance. [55] (emphasis and
underscoring supplied)
 
Matalam  adds that the mere fact that the two charges are related does not
necessarily or automatically deprive the accused of his right to another preliminary
investigation. Notatu dignum is the fact that both the original Information and the
amended Information in Matalam were similarly charging the accused with violation
of Section 3(e) of the Anti-Graft and Corrupt Practices Act.
 
[56]
In one case,  it was squarely held that the amendment of the Information
from homicide to murder is one of substance with very serious consequences.
[57]
 The amendment involved in the present case consists of additional averments of
the circumstances of treachery, evident premeditation, and cruelty, which qualify the
offense charged from homicide to murder. It being a new and material element of
the offense, petitioner should be given the chance to adduce evidence on the
matter. Not being merely clarificatory, the amendment essentially varies the
prosecutions original theory of the case and certainly affects not just the form but
the weight of defense to be mustered by petitioner.
 
The Court distinguishes the factual milieus in Buhat v. CA[58] and Pacoy v. Cajigal,
[59]
  wherein the amendment of the caption of the Information from homicide to
murder was not considered substantial because there was no real change in the
recital of facts constituting the offense charged as alleged in the body of the
Information, as the allegations of qualifying circumstances were already clearly
embedded in the original Information. Buhat pointed out that the original Information
for homicide already alleged the use of superior strength, while Pacoy states that
the averments in the amended Information for murder are exactly the same as those
already alleged in the original Information for homicide. None of these peculiar
circumstances obtains in the present case.
 
Considering that another or a new preliminary investigation is required, the fact that
what was conducted in the present case was a reinvestigation does not invalidate
the substantial amendment of the Information. There is no substantial distinction
between a preliminary investigation and a reinvestigation  since both are conducted
in the same manner and for the same objective of determining whether there exists
sufficient ground to engender a well-founded belief that a crime has been committed
and the respondent is probably guilty thereof and should be held for trial. [60] What is
essential is that petitioner was placed on guard to defend himself from the charge of
murder[61] after the claimed circumstances were made known to him as early as the
first motion.
 
Petitioner did not, however, make much of the opportunity to present countervailing
evidence on the proposed amended charge.Despite notice of hearing, petitioner
opted to merely observe the proceedings and declined to actively participate, even
with extreme caution, in the reinvestigation. Mercado v. Court of Appeals states that
the rules do not even require, as a condition sine qua non  to the validity of a
preliminary investigation, the presence of the respondent as long as efforts to reach
him were made and an opportunity to controvert the complainants evidence was
accorded him.[62]
In his second assignment of error, petitioner basically assails the hurried
issuance of the last two assailed RTC Orders despite the pendency before the
appellate court of the petition for certiorari challenging the first two trial court Orders
allowing a reinvestigation.
 
The Rules categorically state that the petition shall not interrupt the course
of the principal case unless a temporary retraining order or a writ of preliminary
injunction has been issued.[63] The appellate court, by Resolution
of February 15, 2007,[64] denied petitioners application for a temporary restraining
order and writ of preliminary injunction.Supplementary efforts to seek injunctive
reliefs proved futile.[65] The appellate court thus did not err in finding no grave abuse
of discretion on the part of the trial court when it proceeded with the case and
eventually arraigned the accused on March 21, 2007, there being no injunction
order from the appellate court. Moreover, petitioner opted to forego appealing to the
DOJ Secretary, a post-inquest remedy that was available after the reinvestigation
and which could have suspended the arraignment.[66]
Regarding petitioners protestations of haste, suffice to state that the pace
in resolving incidents of the case is not per se an indication of bias. In Santos-
Concio v. Department of Justice,[67] the Court held:
Speed in the conduct of proceedings by a judicial or quasi-judicial
officer cannot per se be instantly attributed to an injudicious
performance of functions. For ones prompt dispatch may be
anothers undue haste. The orderly administration of justice
remains as the paramount and constant consideration, with
particular regard of the circumstances peculiar to each case.
The presumption of regularity includes the public officers official
actuations in all phases of work. Consistent with such
presumption, it was incumbent upon petitioners to present
contradictory evidence other than a mere tallying of days or
numerical calculation. This, petitioners failed to discharge. The
swift completion of the Investigating Panels initial task cannot be
relegated as shoddy or shady without discounting the
presumably regular performance of not just one but five state
prosecutors.[68]
 
There is no ground for petitioners protestations against the DOJ Secretarys sudden
designation of Senior State Prosecutor Emmanuel Velasco as Acting City
Prosecutor of Makati City for the present case [69] and the latters conformity to the
motion for reinvestigation.
In granting the reinvestigation, Judge Alameda cannot choose the public prosecutor
who will conduct the reinvestigation or preliminary investigation. [70] There is a
hierarchy of officials in the prosecutory arm of the executive branch headed by the
Secretary of Justice[71] who is vested with the prerogative to appoint a special
prosecutor or designate an acting prosecutor to handle a particular case, which
broad power of control has been recognized by jurisprudence. [72]
 
As for the trial courts ignoring the DOJ Secretarys uncontested statements
to the media which aired his opinion that if the assailant merely intended to maim
and not to kill the victim, one bullet would have sufficed the DOJ Secretary
reportedly uttered that the filing of the case of homicide against ano against
Leviste lintek naman eh  I told you to watch over that case there should be a report
about the ballistics, about the paraffin, etc., then thats not a complete investigation,
thats why you should use that as a ground no abuse of discretion, much less a
grave one, can be imputed to it.
 
The statements of the DOJ Secretary do not evince a determination to file
the Information even in the absence of probable cause .[73] On the contrary, the
remarks merely underscored the importance of securing basic investigative reports
to support a finding of probable cause. The original Resolution even recognized that
probable cause for the crime of murder cannot be determined based on the
evidence obtained [u]nless and until a more thorough investigation is conducted and
[74]
eyewitness/es [is/]are presented in evidence[.]
 
The trial court concluded that the wound sustained by the victim at the back of his
head, the absence of paraffin test and ballistic examination, and the handling of
[75]
physical evidence,  as rationalized by the prosecution in its motion, are sufficient
circumstances that require further inquiry.
That the evidence of guilt was not strong as subsequently assessed in the
bail hearings does not affect the prior determination of probable cause because, as
the appellate court correctly stated, the standard of strong evidence of guilt which is
sufficient to deny bail to an accused is markedly higher than the standard of judicial
probable cause which is sufficient to initiate a criminal case. [76]
 
In his third assignment of error, petitioner faults the trial court for not
conducting, at the very least, a hearing for judicial determination of probable cause,
considering the lack of substantial or material new evidence adduced during the
reinvestigation.
 
Petitioners argument is specious.
 
There are two kinds of determination of probable cause: executive and
judicial. The executive determination of probable cause  is one made during
preliminary investigation. It is a function that properly pertains to the public
prosecutor who is given a broad discretion to determine whether probable cause
exists and to charge those whom he believes to have committed the crime as
defined by law and thus should be held for trial. Otherwise stated, such official has
the quasi-judicial authority to determine whether or not a criminal case must be filed
in court. Whether that function has been correctly discharged by the public
prosecutor, i.e., whether he has made a correct ascertainment of the existence of
probable cause in a case, is a matter that the trial court itself does not and may not
be compelled to pass upon.[77]
 The judicial determination of probable cause is one made by the judge to
ascertain whether a warrant of arrest should be issued against the accused. The
judge must satisfy himself that based on the evidence submitted, there is necessity
for placing the accused under custody in order not to frustrate the ends of justice. If
the judge finds no probable cause, the judge cannot be forced to issue the arrest
warrant.[78] Paragraph (a), Section 5,[79] Rule 112 of the Rules of Court outlines the
procedure to be followed by the RTC.
 
To move the court to conduct a judicial determination of probable cause is
a mere superfluity, for with or without such motion, the judge is duty-bound to
personally evaluate the resolution of the public prosecutor and the supporting
evidence. In fact, the task of the presiding judge when the Information is filed with
the court is first and foremost to determine the existence or non-existence of
probable cause for the arrest of the accused.[80]
What the Constitution underscores is the exclusive and personal
responsibility of the issuing judge to satisfy himself of the
existence of probable cause. But the judge is not required to
personally examine the complainant and his
witnesses. Following established doctrine and procedure, he
shall (1) personally evaluate the report and the supporting
documents submitted by the prosecutor regarding the existence
of probable cause, and on the basis thereof, he may already
make a personal determination of the existence of probable
cause; and (2) if he is not satisfied that probable cause exists,
he may disregard the prosecutors report and require the
submission of supporting affidavits of witnesses to aid him in
arriving at a conclusion as to the existence of probable cause.
[81]
 (emphasis and underscoring supplied)
The rules do not require cases to be set for hearing to determine probable cause for
the issuance of a warrant of arrest of the accused before any warrant may be
issued.[82] Petitioner thus cannot, as a matter of right, insist on a hearing for judicial
determination of probable cause. Certainly, petitioner cannot determine beforehand
how cursory or exhaustive the [judge's] examination of the records should be [since
t]he extent of the judges examination depends on the exercise of his sound
discretion as the circumstances of the case require. [83] In one case, the Court
emphatically stated:
The periods provided in the Revised Rules of Criminal
Procedure are mandatory, and as such, the judge must
determine the presence or absence of probable cause within
such periods. The Sandiganbayans determination of probable
cause is made ex parte and is summary in nature, not
adversarial. The Judge should not be stymied and distracted
from his determination of probable cause by needless motions
for determination of probable cause filed by the accused.
[84]
 (emphasis and underscoring supplied)
 
Petitioner proceeds to discuss at length evidentiary matters, arguing that
no circumstances exist that would qualify the crime from homicide to murder.
 
The allegation of lack of substantial or material new evidence deserves no
credence, because new pieces of evidence are not prerequisites for a valid conduct
of reinvestigation. It is not material that no new matter
or evidence was presented during the reinvestigation of the case. It should
 
be stressed that reinvestigation, as the word itself implies, is merely a repeat  
investigation of the case. New matters or evidence are not prerequisites for a WHEREFORE, the petition is DENIED. The assailed Decision and
reinvestigation, which is simply a chance for the prosecutor to review and re- Resolution of the Court of Appeals in CA-G.R. SP No. 97761 are AFFIRMED.
evaluate its findings and the evidence already submitted. [85]  
  SO ORDERED.
Moreover, under Rule 45 of the Rules of Court, only questions of law may
be raised in, and be subject of, a petition for review on certiorari since this Court is
not a trier of facts. The Court cannot thus review the evidence adduced by the
parties on the issue of the absence or presence of probable cause, as there exists
no exceptional circumstances to warrant a factual review. [86]
 
In a petition for certiorari, like that filed by petitioner before the appellate
court, the jurisdiction of the court is narrow in scope. It is limited to resolving only
errors of jurisdiction. It is not to stray at will and resolve questions and issues
beyond its competence, such as an error of judgment. [87] The courts duty in the
pertinent case is confined to determining whether the executive and judicial
determination of probable cause was done without or in excess of jurisdiction or with
grave abuse of discretion. Although it is possible that error may be committed in the
discharge of lawful functions, this does not render the act amenable to correction
and annulment by the extraordinary remedy of certiorari, absent any showing of
grave abuse of discretion amounting to excess of jurisdiction. [88]
 
 

 
 Republic of the Philippines GLORIA MACAPAGAL-ARROYO, Petitioner, 
SUPREME COURT vs.
Manila COMMISSION ON ELECTIONS, represented by Chairperson Sixto S. Brillantes, Jr.,
DEPARTMENT OF JUSTICE, represented by Secretary Leila M. De Lima, JOINT
EN BANC DOJ-COMELEC PRELIMINARY INVESTIGATION COMMITTEE, SENATOR
AQUILINO M. PIMENTEL III, and DOJ-COMELEC FACT FINDING
TEAM, Respondents.
G.R. No. 199082               September 18, 2012

JOSE MIGUEL T. ARROYO, Petitioner, 
vs.
DEPARTMENT OF JUSTICE; COMMISSION ON ELECTIONS; HON. LEILA DE
LIMA, in her capacity as Secretary of the Department of Justice; HON. SIXTO
BRILLANTES, .JR., in his capacity as Chairperson of the Commission on Elections;
and the JOINT DOJ-COMELEC PRELIMINARY INVESTIGATION COMMITTEE
and FACT-FINDING TEAM, Respondents.
x-----------------------x
G.R. No. 199085
BENJAMIN S. ABALOS, SR., Petitioner, 
vs.
HON. LEILA DE LIMA, in her capacity as Secretary of Justice; HON. SIXTO S.
BRILLANTES, JR., in his capacity as COMELEC Chairperson; RENE V.
SARMIENTO, LUCENITO N. TAGLE, ARMANDO V. VELASCO, ELIAS R.
YUSOPH, CHRISTIAN ROBERT S. LIM AND AUGUSTO C. LAGMAN, in their
capacity as COMELEC COMMISSIONERS; CLARO A. ARELLANO, GEOUGE C.
DEE, JACINTO G. ANG, ROMEO B. FORTES AND MICHAEL D. VILLARET, in
their capacity as CHAIRPERSON AND MEMBERS, RESPECTIVELY, OF THE
JOINT DOJ-COMELEC PRELIMINARY INVESTIGATION COMMITEE ON THE
2004 AND 2007 ELECTION FRAUD,Respondents.
x-----------------------x
G.R. No.199118
DECISION
PERALTA, J.:
The Court is vested with the constitutional mandate to resolve justiciable
controversies by applying the rule of law with due deference to the right to due
process, irrespective of the standing in society of the parties involved. It is an
assurance that in this jurisdiction, the wheels of justice turn unimpeded by public
opinion or clamor, but only for the ultimate end of giving each and every member of
society his just due without distinction.
Before the Court are three (3) consolidated petitions and supplemental petitions for
Certiorari and Prohibition under Rule 65 of the Rules of Court filed by Jose Miguel T.
Arroyo (Mike Arroyo) in G.R. No. 199082, Benjamin S. Abalos, Sr. (Abalos) in G.R.
No. 199085 and Gloria Macapagal
Arroyo (GMA) in G.R. No. 199118 assailing the following: (1) Commission on
Elections (Comelec) Resolution No. 9266 "In the Matter of the Commission on
Elections and Department of Justice Joint Investigation on the Alleged Election
Offenses Committed during the 2004 and 2007 Elections Pursuant to Law" 1 dated
August 2, 2011; (2) Joint Order No. 001-2011 (Joint Order) "Creating and
Constituting a Joint DOJ-Comelec Preliminary Investigation Committee [Joint
Committee] and Fact-Finding Team on the 2004 and 2007 National Elections
Electoral Fraud and
Manipulation Cases"2 dated August 15, 2011; (3) Rules of Procedure on the
Conduct of Preliminary Investigation on the Alleged Election Fraud in the 2004 and
2007 National Elections (Joint Committee Rules of Procedure) 3 dated August 23,
2011; and (4) Initial Report of the Fact-Finding Team dated October 20, 2011. 4 The
consolidated petitions and supplemental petitions likewise assail the validity of the
proceedings undertaken pursuant to the aforesaid issuances.
The Antecedents
Acting on the discovery of alleged new evidence and the surfacing of new witnesses
indicating the occurrence of massive electoral fraud and manipulation of election
results in the 2004 and 2007 National Elections, on August 2, 2011, the Comelec
issued Resolution No. 9266 approving the creation of a committee jointly with the
Department of Justice (DOJ), which shall conduct preliminary investigation on the
alleged election offenses and anomalies committed during the 2004 and 2007
elections.5
On August 4, 2011, the Secretary of Justice issued Department Order No.
6406 naming three (3) of its prosecutors to the Joint Committee.
On August 15, 2011, the Comelec and the DOJ issued Joint Order No. 001-2011
creating and constituting a Joint Committee and Fact-Finding Team on the 2004 and
2007 National Elections electoral fraud and manipulation cases. The Joint
Committee and the Fact-Finding Team are composed of officials from the DOJ and
the Comelec. Section 2 of the Joint Order lays down the mandate of the Joint
Committee, to wit:
Section 2. Mandate. – The Committee shall conduct the necessary preliminary
investigation on the basis of the evidence gathered and the charges recommended
by the Fact-Finding Team created and referred to in Section 4 hereof. Resolutions
finding probable cause for election offenses, defined and penalized under the
Omnibus Election Code and other election laws shall be approved by the Comelec
in accordance with the Comelec Rules of Procedure. For other offenses, or those
not covered by the Omnibus Election Code and other election laws, the
corresponding criminal information may be filed directly with the appropriate courts. 7
The Fact-Finding Team,8 on the other hand, was created for the purpose of
gathering real, documentary, and testimonial evidence which can be utilized in the
preliminary investigation to be conducted by the Joint Committee. Its specific duties
and functions as enumerated in Section 4 of the Joint Order are as follows:
a) Gather and document reports, intelligence information, and
investigative leads from official as well as unofficial sources and
informants;
b) Conduct interviews, record testimonies, take affidavits of witnesses,
and collate material and relevant documentary evidence, such as, but not
limited to, election documents used in the 2004 and 2007 national
elections. For security reasons, or to protect the identities of informants,
the Fact-Finding Team may conduct interviews or document testimonies
discreetly;
c) Assess and evaluate affidavits already executed and other
documentary evidence submitted or may be submitted to the Fact-Finding
Team and/or Committee;
d) Identify the offenders, their offenses and the manner of their
commission, individually or in conspiracy, and the provisions of election
and general criminal laws violated, establish evidence for individual
criminal and administrative liability and prosecution, and prepare the
necessary documentation, such as complaints and charge sheets for the
initiation of preliminary investigation proceedings against said individuals
to be conducted by the Committee;
e) Regularly submit to the Committee, the Secretary of Justice and the
Chairman of the Comelec periodic reports and recommendations,
supported by real, testimonial and documentary evidence, which may then
serve as the Committee’s basis for immediately commencing appropriate
preliminary investigation proceedings, as provided under Section 6 of this
Joint Order; and
f) Upon the termination of its investigation, make a full and final report to
the Committee, the Secretary of Justice, and the Chairman of the
Comelec.9
Pursuant to Section 710 of the Joint Order, on August 23, 2011, the Joint Committee
promulgated its Rules of Procedure.
The members of the Fact-Finding Team unanimously agreed that the subject of the
Initial Report would be the electoral fraud and manipulation of election results
allegedly committed during the May 14, 2007 elections. Thus, in its Initial
Report11 dated October 20, 2011, the Fact-Finding Team concluded that
manipulation of the results in the May 14, 2007 senatorial elections in the provinces
of North and South Cotabato and Maguindanao were indeed perpetrated. 12 The
Fact-Finding Team recommended that petitioner Abalos and ten (10) others 13 be
subjected to preliminary investigation for electoral sabotage for conspiring to
manipulate the election results in North and South Cotabato. Twenty-six
(26)14persons, including petitioners GMA and Abalos, were likewise recommended
for preliminary investigation for electoral sabotage for manipulating the election
results in Maguindanao.15 Several persons were also recommended to be charged
administratively, while others,16 including petitioner Mike Arroyo, were recommended
to be subjected to further investigation.17 The case resulting from the investigation of
the Fact-Finding Team was docketed as DOJ-Comelec Case No. 001-2011.
Meanwhile, on October 17, 2011, Senator Aquilino Pimentel III (Senator Pimentel)
filed a Complaint-Affidavit18 for Electoral Sabotage against petitioners and twelve
others19 and several John Does and Jane Does. The case was docketed as DOJ-
Comelec Case No. 002-2011.
On October 24, 2011, the Joint Committee issued two subpoenas against
petitioners in DOJ-Comelec Case Nos. 001-2011 and 002-2011. 20 On November 3,
2011, petitioners, through counsel, appeared before the Joint Committee. 21 On that
preliminary hearing, the Joint Committee consolidated the two DOJ-Comelec cases.
Respondents therein were likewise ordered to submit their Counter-Affidavits by
November 14, 2011.22
Thereafter, petitioners filed before the Court separate Petitions for Certiorari and
Prohibition with Prayer for the Issuance of a Temporary Restraining Order (TRO)
and/or Writ of Preliminary Injunction assailing the creation of the Joint Panel. 23The
petitions were eventually consolidated.
On November 14, 2011, petitioner Mike Arroyo filed a Motion to Defer
Proceedings24 before the Joint Committee, in view of the pendency of his petition
before the Court. On the same day, petitioner GMA filed before the Joint Committee
an Omnibus Motion Ad Cautelam25 to require Senator Pimentel to furnish her with
documents referred to in his complaint-affidavit and for the production of election
documents as basis for the charge of electoral sabotage. GMA contended that for
the crime of electoral sabotage to be established, there is a need to present election
documents allegedly tampered which resulted in the increase or decrease in the
number of votes of local and national candidates. 26 GMA prayed that she be allowed
to file her counter-affidavit within ten (10) days from receipt of the requested
documents.27 Petitioner Abalos, for his part, filed a Motion to Suspend Proceedings
(Ex Abundante Ad Cautelam),28 in view of the pendency of his petition brought
before the Court.
In an Order29 dated November 15, 2011, the Joint Committee denied the aforesaid
motions of petitioners. GMA subsequently filed a motion for reconsideration. 30
On November 16, 2011, the Joint Committee promulgated a Joint Resolution which
was later indorsed to the Comelec.31On November 18, 2011, after conducting a
special session, the Comelec en banc issued a Resolution 32 approving and adopting
the Joint Resolution subject to modifications. The dispositive portion of the Comelec
Resolution reads:
WHEREFORE, premises considered, the Resolution of the Joint DOJ-COMELEC
Preliminary Investigation Committee in DOJ-COMELEC Case No. 001-2011 and
DOJ-COMELEC Case No. 002-2011, upon the recommendation of the COMELEC’s
own representatives in the Committee, is hereby APPROVED and ADOPTED,
subject to the following MODIFICATIONS:
1. That information/s for the crime of ELECTORAL SABOTAGE under
Section 42 (b) of R.A. 9369, amending Section 27 (b) of R.A. 6646, be
filed against GLORIA MACAPAGAL-ARROYO, BENJAMIN ABALOS,
SR., LINTANG H. BEDOL, DATU ANDAL AMPATUAN, SR. and PETER
REYES;
2. That the charges against MICHAEL C. ABAS, NICODEMO FERRER,
REUBEN BASIAO, JAIME PAZ and NORIE K. UNAS be subjected to
further investigation;
3. That the charges against JOSE MIGUEL T. ARROYO, BONG
SERRANO, ALBERTO AGRA, ANDREI BON TAGUM, GABBY
CLAUDIO, ROMY DAYDAY, JEREMY JAVIER, JOHN DOE a.k.a
BUTCH, be DISMISSED for insufficiency of evidence to establish
probable cause;
4. That the recommendation that ESTELITA B. ORBASE, ELIZA A.
GASMIN, ELSA Z. ATINEN, SALIAO S. AMBA, MAGSAYSAY B.
 MOHAMAD, SALONGA K. EDZELA, RAGAH D. AYUNAN, SUSAN U.
CANANBAN, RUSSAM H. MABANG, ASUNCION CORAZON P.
RENIEDO, NENA A. ALID, MA. SUSAN L. ALBANO, ROHAIDA T.
KHALID, ARAW M. CAO, JEEHAN S. NUR, ALICE A. LIM, NORIJEAN P.
HANGKAL, CHRISTINA ROAN M. DALOPE, and MACEDA L. ABO be
administratively charged be subjected to further review by this
Commission to determine the appropriate charge/s that may be filed
against them;
5. That the findings of lack of probable cause against LILIAN S. SUAN-
RADAM and YOGIE G. MARTIRIZAR be REJECTED by reason of the
pendency of their respective cases before the Regional Trial Court of
Pasay (Branch 114) and this Commission for the same offense under
consideration.
In the higher interest of justice and by reason of manifest attempts to frustrate the
government’s right to prosecute and to obtain speedy disposition of the present
case pending before the Commission, the Law Department and/or any COMELEC
legal officers as may be authorized by this Commission is hereby ORDERED to
IMMEDIATELY PREPARE and FILE the necessary Information/s before the
appropriate court/s
SO ORDERED.33 (Emphasis supplied.)
On even date, pursuant to the above Resolution, the Comelec’s Law Department
filed with the Regional Trial Court (RTC), Pasay City, an Information against
petitioner GMA, Governor Andal Ampatuan, Sr., and Atty. Lintang H. Bedol, for
violation of Section 42 (b)(3) of Republic Act (R.A.) No. 9369, amending Section 27
(b) of R.A. No. 6646, docketed as Criminal Case No. RPSY-11-04432-CR. 34 The
case was raffled to Branch 112 and the corresponding Warrant of Arrest was issued
which was served on GMA on the same day.35
On November 18, 2011, petitioner GMA filed with the RTC an Urgent Omnibus
Motion Ad Cautelam36 with leave to allow the Joint Committee to resolve the motion
for reconsideration filed by GMA, to defer issuance of a warrant of arrest and a Hold
Departure Order, and to proceed to judicial determination of probable cause. She,
likewise, filed with the Comelec a Motion to Vacate Ad Cautelam 37 praying that its
Resolution be vacated for being null and void. The RTC nonetheless issued a
warrant for her arrest which was duly served. GMA thereafter filed a Motion for Bail
which was granted.
Issues
In G.R. No. 199082, petitioner Arroyo relies on the following grounds:
A. THE CREATION OF THE JOINT COMMITTEE VIA THE JOINT
ORDER IS AT WAR WITH THE DUE PROCESS AND EQUAL
PROTECTION CLAUSE OF THE CONSTITUTION, HAVING BEEN
CREATED WITH THE SOLE END IN VIEW OF INVESTIGATING AND
PROSECUTING CERTAIN PERSONS AND INCIDENTS ONLY,
SPECIFICALLY THOSE INVOLVING THE 2004 AND 2007 ELECTIONS
TO THE EXCLUSION OF OTHERS, IN VIOLATION OF THE DOCTRINE
IN BIRAOGO V. TRUTH COMMISSION AND COMPANION CASE.
B. NO LAW OR RULE AUTHORIZES THE JOINT COMMITTEE TO
CONDUCT PRELIMINARY INVESTIGATION.
C. THE CREATION OF THE JOINT COMMITTEE, WHICH FUSES THE
COMMISSION ON ELECTIONS - A CONSTITUTIONALLY
INDEPENDENT BODY - WITH THE DEPARTMENT OF JUSTICE – A
POLITICAL AGENT OF THE EXECUTIVE – DEMOLISHES THE
INDEPENDENCE OF THE COMMISSION ON ELECTIONS AS
PROVIDED IN ARTICLE IX(A), SECTIONS 1 AND 2 AND IX(C) OF THE
CONSTITUTION.
D. IN VIEW OF THE NUMEROUS AND PERSISTENT PUBLIC
PRONOUNCEMENTS OF THE PRESIDENT, HIS SPOKESPERSONS,
THE HEADS OF THE DOJ AND THE COMELEC, AND MEMBERS OF
THE JOINT COMMITTEE THAT CASES SHOULD BE FILED AGAINST
PETITIONER AND HIS FAMILY AND ALLEGED ASSOCIATES BY THE
END OF 2011, THE PROCEEDINGS THEREOF SHOULD BE
ENJOINED FOR BEING PERSECUTORY, PURSUANT TO ALLADO V.
DIOKNO AND RELATED CASES.
E. THE CREATION AND CONSTITUTION OF THE JOINT COMMITTEE
TRAMPLES UPON PETITIONER’S RIGHT TO A FAIR PROCEEDING BY
AN INDEPENDENT AND IMPARTIAL TRIBUNAL.
 F. THE COMELEC, AND SUBSEQUENTLY, THE RTC OF PASAY CITY,
HAVE ASSUMED JURISDICTION OVER THE SUBJECT MATTER
SOUGHT TO BE INVESTIGATED BY THE JOINT COMMITTEE, TO THE
EXCLUSION OF ANY BODY, INCLUDING THE JOINT COMMITTEE. 38
In G.R. No. 199085, petitioner Abalos raises the following issues:
I.
DOES JOINT ORDER NO. 001-2011, CREATING THE JOINT DOJ-
COMELEC FACT-FINDING TEAM AND PRELIMINARY INVESTIGATON
COMMITTEE VIOLATE PETITIONER’S CONSTITUTIONAL RIGHT TO
EQUAL PROTECTION OF THE LAW?
II.
DID THE CONDUCT AND PROCEEDINGS OF THE JOINT DOJ-
COMELEC FACT-FINDING TEAM AND PRELIMINARY INVESTIGATION
COMMITTEE VIOLATE PETITIONER’S CONSTITUTIONAL RIGHT TO
DUE PROCESS OF LAW?
III.
DID THE DOJ AND COMELEC VIOLATE THE PRINCIPLE OF
SEPARATION OF POWERS BY CREATING THE JOINT DOJ-COMELEC
FACT-FINDING TEAM AND PRELIMINARY INVESTIGATION
COMMITTEE WHICH ENCROACHED UPON THE POWERS OF THE
LEGISLATURE AND THE REGIONAL TRIAL COURT?
IV.
DOES THE JOINT DOJ-COMELEC FACT-FINDING TEAM AND
PRELIMINARY INVESTIGATION COMMITTEE HAVE THE POWER AND
LEGAL AUTHORITY TO CONDUCT A PRELIMINARY INVESTIGATION
OF THE SAME ELECTORAL SABOTAGE CASES WHICH THE
COMELEC HAD ALREADY TAKEN COGNIZANCE OF?39
In G.R. No. 199118, petitioner GMA anchors her petition on the following grounds:
I. THE EXECUTIVE DEPARTMENT, THROUGH THE DOJ,
OSTENSIBLY ACTING "JOINTLY" WITH THE COMELEC, HAS ACTED
BEYOND THE LIMITS OF THE CONSTITUTION, IN THAT IT HAS
COMPROMISED THE INDEPENDENCE OF THE COMELEC.
II. THE COMELEC HAS EFFECTIVELY ABDICATED ITS
CONSTITUTIONAL MANDATE "TO INVESTIGATE AND, WHERE
APPROPRIATE, PROSECUTE CASES OF VIOLATIONS OF ELECTION
LAWS, INCLUDING ACTS OR OMISSIONS CONSTITUTING ELECTION
FRAUDS, OFFENSES, AND MALPRACTICES" (ARTICLE IX-C,
SECTION 26, 1987 CONSTITUTION OF THE REPUBLIC OF THE
PHILIPPINES) IN FAVOR OF THE EXECUTIVE DEPARTMENT, ACTING
THROUGH RESPONDENT JUSTICE SECRETARY DE LIMA.
III. DOJ-COMELEC JOINT ORDER NO. 001-2011 AND THE JOINT
COMMITTEE RULES HAVE NOT BEEN PUBLISHED PURSUANT TO
TAÑADA V. TUVERA, G.R. No. L-63915 (29 DECEMBER 1986). AFTER
ALL, AS THE HONORABLE COURT LIKEWISE DECLARED IN
REPUBLIC V. PILIPINAS SHELL PETROLEUM CORPORATION, G.R.
No. 173918 (08 APRIL 2008), (SIC)40
We deferred the resolution of petitioners’ Motion for the Issuance of a TRO and,
instead, required the respondents to comment on the petitions. 41
We likewise scheduled the consolidated cases for oral argument for which the
parties were directed to limit their respective discussions to the following issues:
I. Whether or not Joint Order No. 001-2011 "Creating and Constituting a Joint DOJ-
COMELEC Preliminary Investigation Committee and Fact-Finding Team on the
2004 and 2007 National Elections Electoral Fraud and Manipulation Cases" is
constitutional in light of the following:
A. The due process clause of the 1987 Constitution
B. The equal protection clause of the 1987 Constitution
C. The principle of separation of powers
 D. The independence of the COMELEC as a constitutional body
II. Whether or not the COMELEC has jurisdiction under the law to conduct
preliminary investigation jointly with the DOJ.
A. Whether or not due process was observed by the Joint DOJ-COMELEC Fact-
Finding Team and Preliminary Investigation Committee, and the COMELEC in the
conduct of the preliminary investigation and approval of the Joint Panel’s
Resolution.42
The Court, thereafter, required the parties to submit their respective Memoranda. 43
The Court’s Ruling
Procedural Issues
Respondents claim that Mike Arroyo’s petition is moot and that of GMA is moot and
academic. They explain that the Mike Arroyo petition presents no actual controversy
that necessitates the exercise by the Court of its power of judicial review,
considering that he was not among those indicted for electoral sabotage in the 2007
national elections as the Comelec dismissed the case against him for insufficiency
of evidence.44 Anent the 2004 national elections, the Fact-Finding Team is yet to
complete its investigation so Mike Arroyo’s apprehensions are merely speculative
and anticipatory.45 As to the GMA petition, respondents aver that any judgment of
the Court will have no practical legal effect because an Information has already
been filed against her in Branch 112, RTC of Pasay City. 46 With the filing of the
Information, the RTC has already acquired jurisdiction over the case, including all
issues relating to the constitutionality or legality of her preliminary
investigation.47 Respondents also claim that the issues relating to the
constitutionality and validity of the conduct of the preliminary investigation of GMA
are best left to the trial court, considering that it involves questions of
fact.48 Respondents add that considering that the RTC has concurrent jurisdiction to
determine a constitutional issue, it will be practical for the Court to allow the RTC to
determine the constitutional issues in this case.49
We do not agree.
Mootness
It cannot be gainsaid that for a court to exercise its power of adjudication, there
must be an actual case or controversy, that is, one which involves a conflict of legal
rights, an assertion of opposite legal claims susceptible of judicial resolution. 50 The
case must not be moot or academic or based on extra-legal or other similar
considerations not cognizable by a court of justice. 51
A case becomes moot and academic when it ceases to present a justiciable
controversy so that a declaration on the issue would be of no practical use or
value.52 However, a case should not be dismissed simply because one of the issues
raised therein had become moot and academic by the onset of a supervening event,
whether intended or incidental, if there are other causes which need to be resolved
after trial.53
Here, the consolidated cases are not rendered moot and academic by the
promulgation of the Joint Resolution by the Joint Committee and the approval
thereof by the Comelec. It must be recalled that the main issues in the three
petitions before us are the constitutionality and legality of the creation of the Joint
Committee and the Fact-Finding Team as well as the proceedings undertaken
pursuant thereto. The assailed Joint Order specifically provides that the Joint
Committee was created for purposes of investigating the alleged massive electoral
fraud during the 2004 and 2007 national elections. However, in the Fact-Finding
Team’s Initial Report, the team specifically agreed that the report would focus on the
irregularities during the 2007 elections. Also, in its November 18, 2011 Resolution,
the Comelec, while directing the filing of information against petitioners Abalos and
GMA, ordered that further investigations be conducted against the other
respondents therein. Apparently, the Fact-Finding Team’s and Joint
Committee’s respective mandates have not been fulfilled and they are, therefore,
bound to continue discharging their duties set forth in the assailed Joint Order.
Moreover, petitioners question the validity of the proceedings undertaken by the
Fact-Finding Team and the Joint Committee leading to the filing of information, on
constitutional grounds. We are not, therefore, barred from deciding on the petitions
simply by the occurrence of the supervening events of filing an information and
dismissal of the charges.
Jurisdiction over the validity of the
conduct of the preliminary investigation
This is not the first time that the Court is confronted with the issue of jurisdiction to
conduct preliminary investigation and at the same time with the propriety of the
conduct of preliminary investigation. In Cojuangco, Jr. v. Presidential Commission
on Good Government (PCGG),54 the Court resolved two issues, namely: (1) whether
or not the PCGG has the power to conduct a preliminary investigation of the anti-
graft and corruption cases filed by the Solicitor General against Eduardo
Conjuangco, Jr. and other respondents for the alleged misuse of coconut levy funds;
and (2) on the assumption that it has jurisdiction to conduct such a preliminary
investigation, whether or not its conduct constitutes a violation of petitioner’s right to
due process and equal protection of the law.55 The Court decided these issues
notwithstanding the fact that Informations had already been filed with the trial court.
In Allado v. Diokno,56 in a petition for certiorari assailing the propriety of the issuance
of a warrant of arrest, the Court could not ignore the undue haste in the filing of the
information and the inordinate interest of the government in filing the same. Thus,
this Court took time to determine whether or not there was, indeed, probable cause
to warrant the filing of information. This, notwithstanding the fact that information
had been filed and a warrant of arrest had been issued. Petitioners therein came
directly to this Court and sought relief to rectify the injustice that they suffered.
Hierarchy of courts
Neither can the petitions be dismissed solely because of violation of the principle of
hierarchy of courts. This principle requires that recourse must first be made to the
lower-ranked court exercising concurrent jurisdiction with a higher court. 57 The
Supreme Court has original jurisdiction over petitions for certiorari, prohibition,
mandamus, quo warranto, and habeas corpus. While this jurisdiction is shared with
the Court of Appeals and the RTC, a direct invocation of this Court’s jurisdiction is
allowed when there are special and important reasons therefor, clearly and
especially set out in the petition, as in the present case. 58 In the consolidated
petitions, petitioners invoke exemption from the observance of the rule on hierarchy
of courts in keeping with the Court’s duty to determine whether or not the other
branches of government have kept themselves within the limits of the Constitution
and the laws, and that they have not abused the discretion given to them. 59
It is noteworthy that the consolidated petitions assail the constitutionality of
issuances and resolutions of the DOJ and the Comelec. The general rule is that this
Court shall exercise only appellate jurisdiction over cases involving the
constitutionality of a statute, treaty or regulation.
However, such rule is subject to exception, that is, in circumstances where the Court
believes that resolving the issue of constitutionality of a law or regulation at the first
instance is of paramount importance and immediately affects the social, economic,
and moral well-being of the people.60
This case falls within the exception. An expeditious resolution of the issues raised in
the petitions is necessary. Besides, the Court has entertained a direct resort to the
Court without the requisite motion for reconsideration filed below or without
exhaustion of administrative remedies where there is an urgent necessity for the
resolution of the question and any further delay would prejudice the interests of the
government or of the petitioners and when there is an alleged violation of due
process, as in the present case.61 We apply the same relaxation of the Rules in the
present case and, thus, entertain direct resort to this Court.
Substantive Issues
Bases for the Creation of the
Fact-Finding Team and Joint Committee
Section 2, Article IX-C of the 1987 Constitution enumerates the powers and
functions of the Comelec. Paragraph (6) thereof vests in the Comelec the power to:
(6) File, upon a verified complaint, or on its own initiative, petitions in court for
inclusion or exclusion of voters; investigate and, where appropriate, prosecute
cases of violations of election laws, including acts or omissions constituting election
frauds, offenses, and malpractices.
This was an important innovation introduced by the 1987 Constitution, because the
above-quoted provision was not in the 1935 and 1973 Constitutions. 62
The grant to the Comelec of the power to investigate and prosecute election
offenses as an adjunct to the enforcement and administration of all election laws is
intended to enable the Comelec to effectively insure to the people the free, orderly,
and honest conduct of elections. The failure of the Comelec to exercise this power
could result in the frustration of the true will of the people and make a mere idle
ceremony of the sacred right and duty of every qualified citizen to vote. 63
The constitutional grant of prosecutorial power in the Comelec was reflected in
Section 265 of Batas Pambansa Blg. 881, otherwise known as the Omnibus
Election Code, to wit:
Section 265. Prosecution. The Commission shall, through its duly authorized legal
officers, have the exclusive power to conduct preliminary investigation of all election
offenses punishable under this Code, and to prosecute the same. The Commission
may avail of the assistance of other prosecuting arms of the government: Provided,
however, That in the event that the Commission fails to act on any complaint within
four months from his filing, the complainant may file the complaint with the office of
the fiscal [public prosecutor], or with the Ministry Department of Justice for proper
investigation and prosecution, if warranted.
Under the above provision of law, the power to conduct preliminary investigation is
vested exclusively with the Comelec. The latter, however, was given by the same
provision of law the authority to avail itself of the assistance of other prosecuting
arms of the government.64 Thus, under Section 2,65 Rule 34 of the Comelec Rules of
Procedure, provincial and city prosecutors and their assistants are given continuing
authority as deputies to conduct preliminary investigation of complaints involving
election offenses under election laws and to prosecute the same. The complaints
may be filed directly with them or may be indorsed to them by the petitioner or its
duly authorized representatives.66
Thus, under the Omnibus Election Code, while the exclusive jurisdiction to conduct
preliminary investigation had been lodged with the Comelec, the prosecutors had
been conducting preliminary investigations pursuant to the continuing delegated
authority given by the Comelec. The reason for this delegation of authority has been
explained in Commission on Elections v. Español:67
The deputation of the Provincial and City Prosecutors is necessitated by the need
for prompt investigation and dispensation of election cases as an indispensable part
of the task of securing fine, orderly, honest, peaceful and credible elections.
Enfeebled by lack of funds and the magnitude of its workload, the petitioner does
not have a sufficient number of legal officers to conduct such investigation and to
prosecute such cases.68
Moreover, as we acknowledged in People v. Basilla,69 the prompt and fair
investigation and prosecution of election offenses committed before or in the course
of nationwide elections would simply not be possible without the assistance of
provincial and city fiscals prosecutors and their assistants and staff members, and of
the state prosecutors of the DOJ.70
Section 265 of the Omnibus Election Code was amended by Section 43 of R.A. No.
9369,71 which reads:
Section 43. Section 265 of Batas Pambansa Blg. 881 is hereby amended to read as
follows:
SEC. 265. Prosecution. – The Commission shall, through its duly authorized legal
officers, have the power, concurrent with the other prosecuting arms of the
government, to conduct preliminary investigation of all election offenses punishable
under this Code, and to prosecute the same.72
As clearly set forth above, instead of a mere delegated authority, the other
prosecuting arms of the government, such as the DOJ, now exercise concurrent
jurisdiction with the Comelec to conduct preliminary investigation of all election
offenses and to prosecute the same.
It is, therefore, not only the power but the duty of both the Comelec and the DOJ to
perform any act necessary to ensure the prompt and fair investigation and
prosecution of election offenses. Pursuant to the above constitutional and statutory
provisions, and as will be explained further below, we find no impediment for the
Comelec and the DOJ to create the Joint Committee and Fact-Finding Team for the
purpose of conducting a thorough investigation of the alleged massive electoral
fraud and the manipulation of election results in the 2004 and 2007 national
elections relating in particular to the presidential and senatorial elections. 73
Constitutionality of Joint-Order No. 001-2011
A. Equal Protection Clause
Petitioners claim that the creation of the Joint Committee and Fact-Finding Team is
in violation of the equal protection clause of the Constitution because its sole
purpose is the investigation and prosecution of certain persons and incidents. They
argue that there is no substantial distinction between the allegations of massive
electoral fraud in 2004 and 2007, on the one hand, and previous and subsequent
national elections, on the other hand; and no substantial distinction between
petitioners and the other persons or public officials who might have been involved in
previous election offenses. They insist that the Joint Panel was created to target
only the Arroyo Administration as well as public officials linked to the Arroyo
Administration. To bolster their claim, petitioners explain that Joint Order No. 001-
2011 is similar to Executive Order No. 1 (creating the Philippine Truth Commission)
which this Court had already nullified for being
violative of the equal protection clause.
Respondents, however, refute the above contentions and argue that the wide array
of the possible election offenses and broad spectrum of individuals who may have
committed them, if any, immediately negate the assertion that the assailed orders
are aimed only at the officials of the Arroyo Administration.
We agree with the respondents.
The equal protection clause is enshrined in Section 1, Article III of the Constitution
which reads:
Section 1. No person shall be deprived of life, liberty, or property without due
process of law, nor shall any person be denied the equal protection of the laws. 74
The concept of equal protection has been laid down in Biraogo v. Philippine Truth
Commission of 2010:75
One of the basic principles on which this government was founded is that of the
equality of right which is embodied in Section 1, Article III of the 1987 Constitution.
The equal protection of the laws is embraced in the concept of due process, as
every unfair discrimination offends the requirements of justice and fair play. It has
been embodied in a separate clause, however, to provide for a more specific
guaranty against any form of undue favoritism or hostility from the government.
Arbitrariness in general may be challenged on the basis of the due process clause.
But if the particular act assailed partakes of an unwarranted partiality or prejudice,
the sharper weapon to cut it down is the equal protection clause.
According to a long line of decisions, equal protection simply requires that all
persons or things similarly situated should be treated alike, both as to rights
conferred and responsibilities imposed. It requires public bodies and institutions to
treat similarly-situated individuals in a similar manner. The purpose of the equal
protection clause is to secure every person within a state's jurisdiction against
intentional and arbitrary discrimination, whether occasioned by the express terms of
a statute or by its improper execution through the state's duly-constituted
authorities. In other words, the concept of equal justice under the law requires the
state to govern impartially, and it may not draw distinctions between individuals
solely on differences that are irrelevant to a legitimate governmental objective. 76
Unlike the matter addressed by the Court’s ruling in Biraogo v. Philippine Truth
Commission of 2010, Joint Order No. 001-2011 cannot be nullified on the ground
that it singles out the officials of the Arroyo Administration and, therefore, it infringes
the equal protection clause. The Philippine Truth Commission of 2010 was
expressly created for the purpose of investigating alleged graft and corruption during
the Arroyo Administration since Executive Order No. 1 77 specifically referred to the
"previous administration"; while the Joint Committee was created for the purpose of
conducting preliminary investigation of election offenses during the 2004 and 2007
elections. While GMA and Mike Arroyo were among those subjected to preliminary
investigation, not all respondents therein were linked to GMA as there were public
officers who were investigated upon in connection with their acts in the performance
of their official duties. Private individuals were also subjected to the investigation by
the Joint Committee.
The equal protection guarantee exists to prevent undue favor or privilege. It is
intended to eliminate discrimination and oppression based on inequality.
Recognizing the existence of real differences among men, it does not demand
absolute equality. It merely requires that all persons under like circumstances and
conditions shall be treated alike both as to privileges conferred and liabilities
enforced.78
We once held that the Office of the Ombudsman is granted virtually plenary
investigatory powers by the Constitution and by law and thus may, for every
particular investigation, whether commenced by complaint or on its own initiative,
decide how best to pursue each investigation. Since the Office of the Ombudsman
is granted such latitude, its varying treatment of similarly situated investigations
cannot by itself be considered a violation of any of the parties’ rights to the equal
protection of the laws.79 This same doctrine should likewise apply in the present
case.
Thus, as the constitutional body granted with the broad power of enforcing and
administering all laws and regulations relative to the conduct of an election,
plebiscite, initiative, referendum and recall, 80 and tasked to ensure free, orderly,
honest, peaceful, and credible elections,81 the Comelec has the authority to
determine how best to perform such constitutional mandate. Pursuant to this
authority, the Comelec issues various resolutions prior to every local or national
elections setting forth the guidelines to be observed in the conduct of the elections.
This shows that every election is distinct and requires different guidelines in order to
ensure that the rules are updated to respond to existing circumstances.
Moreover, as has been practiced in the past, complaints for violations of election
laws may be filed either with the Comelec or with the DOJ. The Comelec may even
initiate, motu proprio, complaints for election offenses. 82
Pursuant to law and the Comelec’s own Rules, investigations may be conducted
either by the Comelec itself through its law department or through the prosecutors of
the DOJ. These varying procedures and treatment do not, however, mean that
respondents are not treated alike. Thus, petitioners’ insistence of infringement of
their constitutional right to equal protection of the law is misplaced.
B. Due Process
Petitioners claim that the Joint Panel does not possess the required cold neutrality
of an impartial judge because it is all at once the evidence-gatherer, prosecutor and
judge. They explain that since the Fact-Finding Team has found probable cause to
subject them to preliminary investigation, it is impossible for the Joint Committee to
arrive at an opposite conclusion. Petitioners likewise express doubts of any
possibility that the Joint Committee will be fair and impartial to them as Secretary De
Lima and Chairman Brillantes had repeatedly expressed prejudgment against
petitioners through their statements captured by the media.
For their part, respondents contend that petitioners failed to present proof that the
President of the Philippines, Secretary of Justice, and Chairman of the Comelec
actually made the statements allegedly prejudging their case and in the context in
which they interpreted them. They likewise contend that assuming that said
statements were made, there was no showing that Secretary De Lima had tried to
intervene in the investigation to influence its outcome nor was it proven that the
Joint Committee itself had prejudged the case. Lastly, they point out that Joint Order
No. 001-2011 created two bodies, the Fact-Finding Team and the Joint Committee,
with their respective mandates. Hence, they cannot be considered as one.
We find for respondents.
It is settled that the conduct of preliminary investigation is, like court proceedings,
subject to the requirements of both substantive and procedural due
process.83 Preliminary investigation is considered as a judicial proceeding wherein
the prosecutor or investigating officer, by the nature of his functions, acts as a quasi-
judicial officer.84 The authority of a prosecutor or investigating officer duly
empowered to preside over or to conduct a preliminary investigation is no less than
that of a municipal judge or even an RTC Judge.85 Thus, as emphasized by the
Court in Ladlad v. Velasco:86
x x x We cannot emphasize too strongly that prosecutors should not allow, and
should avoid, giving the impression that their noble office is being used or
prostituted, wittingly or unwittingly, for political ends, or other purposes alien to, or
subversive of, the basic and fundamental objective of serving the interest of justice
evenhandedly, without fear or favor to any and all litigants alike, whether rich or
poor, weak or strong, powerless or mighty. Only by strict adherence to the
established procedure may public's perception of the impartiality of the prosecutor
be enhanced.87
In this case, as correctly pointed out by respondents, there was no showing that the
statements claimed to have prejudged the case against petitioners were made by
Secretary De Lima and Chairman Brillantes or were in the prejudicial context in
which petitioners claimed the statements were made. A reading of the statements
allegedly made by them reveals that they were just responding to hypothetical
questions in the event that probable cause would eventually be found by the Joint
Committee.
More importantly, there was no proof or even an allegation that the Joint Committee
itself, tasked to conduct the requisite preliminary investigation against petitioners,
made biased statements that would convey to the public that the members were
favoring a particular party. Neither did the petitioners show that the President of the
Philippines, the Secretary of Justice or the Chairman of the Comelec intervened in
the conduct of the preliminary investigation or exerted undue pressure on their
subordinates to tailor their decision with their public declarations and adhere to a
pre-determined result.88 Moreover, insofar as the Comelec is concerned, it must be
emphasized that the constitutional body is collegial. The act of the head of a
collegial body cannot be considered as that of the entire body itself. 89 In equating the
alleged bias of the above-named officials with that of the Joint Committee, there
would be no arm of the government credible enough to conduct a preliminary
investigation.90
It must also be emphasized that Joint Order No. 001-2011 created two bodies,
namely: (1) the Fact-Finding Team tasked to gather real, documentary and
testimonial evidence which can be utilized in the preliminary investigation to be
conducted by the Joint Committee; and (2) the Joint Committee mandated to
conduct preliminary investigation. It is, therefore, inaccurate to say that there is only
one body which acted as evidence-gatherer, prosecutor and judge.
C. Separation of powers
Petitioners claim that the Joint Panel is a new public office as shown by its
composition, the creation of its own Rules of Procedure, and the source of funding
for its operation. It is their position that the power of the DOJ to investigate the
commission of crimes and the Comelec’s constitutional mandate to investigate and
prosecute violations of election laws do not include the power to create a new public
office in the guise of a joint committee. Thus, in creating the Joint Panel, the DOJ
and the Comelec encroached upon the power of the Legislature to create public
office.
Respondents dispute this and contend that the Joint Committee and Fact-Finding
Team are not new public offices, but merely collaborations between two existing
government agencies sharing concurrent jurisdiction. This is shown by the fact that
the members of the Joint Panel are existing officers of the DOJ and the Comelec
who exercise duties and functions that are already vested in them.
Again, we agree with respondents.
As clearly explained above, the Comelec is granted the power to investigate, and
where appropriate, prosecute cases of election offenses. This is necessary in
ensuring free, orderly, honest, peaceful and credible elections. On the other hand,
the DOJ is mandated to administer the criminal justice system in accordance with
the accepted processes thereof consisting in the investigation of the crimes,
prosecution of offenders and administration of the correctional system. 91 It is
specifically empowered to "investigate the commission of crimes, prosecute
offenders and administer the probation and correction system." 92 Also, the provincial
or city prosecutors and their assistants, as well as the national and regional state
prosecutors, are specifically named as the officers authorized to conduct preliminary
investigation.93 Recently, the Comelec, through its duly authorized legal offices, is
given the power, concurrent with the other prosecuting arms of the government such
as the DOJ, to conduct preliminary investigation of all election offenses. 94
Undoubtedly, it is the Constitution, statutes, and the Rules of Court and not the
assailed Joint Order which give the DOJ and the Comelec the power to conduct
preliminary investigation. No new power is given to them by virtue of the assailed
order. As to the members of the Joint Committee and Fact-Finding Team, they
perform such functions that they already perform by virtue of their current positions
as prosecutors of the DOJ and legal officers of the Comelec. Thus, in no way can
we consider the Joint Committee as a new public office.
D. Independence of the Comelec
Petitioners claim that in creating the Joint Panel, the Comelec has effectively
abdicated its constitutional mandate to investigate and, where appropriate, to
prosecute cases of violation of election laws including acts or omissions constituting
election frauds, offenses, and malpractices in favor of the Executive Department
acting through the DOJ Secretary. Under the set- up, the Comelec personnel is
placed under the supervision and control of the DOJ. The chairperson is a DOJ
official. Thus, the Comelec has willingly surrendered its independence to the DOJ
and has acceded to share its exercise of judgment and discretion with the Executive
Branch.
We do not agree.
Section 1,95 Article IX-A of the 1987 Constitution expressly describes all the
Constitutional Commissions as independent. Although essentially executive in
nature, they are not under the control of the President of the Philippines in the
discharge of their respective functions.96 The Constitution envisions a truly
independent Comelec committed to ensure free, orderly, honest, peaceful, and
credible elections and to serve as the guardian of the people’s sacred right of
suffrage – the citizenry’s vital weapon in effecting a peaceful change of government
and in achieving and promoting political stability. 97
Prior to the amendment of Section 265 of the Omnibus Election Code, the Comelec
had the exclusive authority to investigate and prosecute election offenses. In the
discharge of this exclusive power, the Comelec was given the right to avail and, in
fact, availed of the assistance of other prosecuting arms of the government such as
the prosecutors of the DOJ. By virtue of this continuing authority, the state
prosecutors and the provincial or city prosecutors were authorized to receive the
complaint for election offense and delegate the conduct of investigation to any of
their assistants. The investigating prosecutor, in turn, would make a
recommendation either to dismiss the complaint or to file the information. This
recommendation is subject to the approval of the state, provincial or city prosecutor,
who himself may file the information with the proper court if he finds sufficient cause
to do so, subject, however, to the accused’s right to appeal to the Comelec. 98
Moreover, during the past national and local elections, the Comelec issued
Resolutions99 requesting the Secretary of Justice to assign prosecutors as members
of Special Task Forces to assist the Comelec in the investigation and prosecution of
election offenses. These Special Task Forces were created because of the need for
additional lawyers to handle the investigation and prosecution of election offenses.
Clearly, the Comelec recognizes the need to delegate to the prosecutors the power
to conduct preliminary investigation. Otherwise, the prompt resolution of alleged
election offenses will not be attained. This delegation of power, otherwise known as
deputation, has long been recognized and, in fact, been utilized as an effective
means of disposing of various election offense cases. Apparently, as mere deputies,
the prosecutors played a vital role in the conduct of preliminary investigation, in the
resolution of complaints filed before them, and in the filing of the informations with
the proper court.
As pointed out by the Court in Barangay Association for National Advancement and
Transparency (BANAT) Party-List v. Commission on Elections, 100 the grant of
exclusive power to investigate and prosecute cases of election offenses to the
Comelec was not by virtue of the Constitution but by the Omnibus Election Code
which was eventually amended by Section 43 of R.A. 9369. Thus, the DOJ now
conducts preliminary investigation of election offenses concurrently with the
Comelec and no longer as mere deputies. If the prosecutors had been allowed to
conduct preliminary investigation and file the necessary information by virtue only of
a delegated authority, they now have better grounds to perform such function by
virtue of the statutory grant of authority. If deputation was justified because of lack of
funds and legal officers to ensure prompt and fair investigation and prosecution of
election offenses, the same justification should be cited to justify the grant to the
other prosecuting arms of the government of such concurrent jurisdiction.
In view of the foregoing disquisition, we find no impediment for the creation of a
Joint Committee. While the composition of the Joint Committee and Fact-Finding
Team is dominated by DOJ officials, it does not necessarily follow that the Comelec
is inferior. Under the Joint Order, resolutions of the Joint Committee finding probable
cause for election offenses shall still be approved by the Comelec in accordance
with the Comelec Rules of Procedure. This shows that the Comelec, though it acts
jointly with the DOJ, remains in control of the proceedings. In no way can we say
that the Comelec has thereby abdicated its independence to the executive
department.
The text and intent of the constitutional provision granting the Comelec the authority
to investigate and prosecute election offenses is to give the Comelec all the
necessary and incidental powers for it to achieve the objective of holding free,
orderly, honest, peaceful, and credible elections.101 The Comelec should be allowed
considerable latitude in devising means and methods that will insure the
accomplishment of the great objective for which it was created. 102 We may not agree
fully with its choice of means, but unless these are clearly illegal or constitute gross
abuse of discretion, this Court should not interfere. 103 Thus, Comelec Resolution No.
9266, approving the creation of the Joint Committee and Fact-Finding Team, should
be viewed not as an abdication of the constitutional body’s independence but as a
means to fulfill its duty of ensuring the prompt investigation and prosecution of
election offenses as an adjunct of its mandate of ensuring a free, orderly, honest,
peaceful and credible elections.
Although it belongs to the executive department, as the agency tasked to investigate
crimes, prosecute offenders, and administer the correctional system, the DOJ is
likewise not barred from acting jointly with the Comelec. It must be emphasized that
the DOJ and the Comelec exercise concurrent jurisdiction in conducting preliminary
investigation of election offenses. The doctrine of concurrent jurisdiction means
equal jurisdiction to deal with the same subject matter. 104Contrary to the contention
of the petitioners, there is no prohibition on simultaneous exercise of power between
two coordinate bodies. What is prohibited is the situation where one files a
complaint against a respondent initially with one office (such as the Comelec) for
preliminary investigation which was immediately acted upon by said office and the
re-filing of substantially the same complaint with another office (such as the DOJ).
The subsequent assumption of jurisdiction by the second office over the cases filed
will not be allowed. Indeed, it is a settled rule that the body or agency that first takes
cognizance of the complaint shall exercise jurisdiction to the exclusion of the
others.105 As cogently held by the Court in Department of Justice v. Hon. Liwag: 106
To allow the same complaint to be filed successively before two or more
investigative bodies would promote multiplicity of proceedings. It would also cause
undue difficulties to the respondent who would have to appear and defend his
position before every agency or body where the same complaint was filed. This
would lead hapless litigants at a loss as to where to appear and plead their cause or
defense.
There is yet another undesirable consequence. There is the distinct possibility that
the two bodies exercising jurisdiction at the same time would come up with
conflicting resolutions regarding the guilt of the respondents.
Finally, the second investigation would entail an unnecessary expenditure of public
funds, and the use of valuable and limited resources of Government, in a duplication
of proceedings already started with the Ombudsman.107
None of these problems would likely arise in the present case. The Comelec and the
DOJ themselves agreed that they would exercise their concurrent jurisdiction jointly.
Although the preliminary investigation was conducted on the basis of two complaints
– the initial report of the Fact-Finding Team and the complaint of Senator Pimentel –
both complaints were filed with the Joint Committee. Consequently, the complaints
were filed with and the preliminary investigation was conducted by only one
investigative body. Thus, we find no reason to disallow the exercise of concurrent
jurisdiction jointly by those given such authority. This is especially true in this case
given the magnitude of the crimes allegedly committed by petitioners. The joint
preliminary investigation also serves to maximize the resources and manpower of
both the Comelec and the DOJ for the prompt disposition of the cases.
Citing the principle of concurrent jurisdiction, petitioners insist that the investigation
conducted by the Comelec involving Radam and Martirizar bars the creation of the
Joint Committee for purposes of conducting another preliminary investigation. In
short, they claim that the exercise by the Comelec of its jurisdiction to investigate
excludes other bodies such as the DOJ and the Joint Committee from taking
cognizance of the case. Petitioners add that the investigation should have been
conducted also by the Comelec as the 2007 cases of Radam and Martirizar include
several John Does and Jane Does.
We do not agree.
While the Comelec conducted the preliminary investigation against Radam,
Martirizar and other unidentified persons, it only pertains to election offenses
allegedly committed in North and South Cotabato. On the other hand, the
preliminary investigation conducted by the Joint Committee (involving GMA)
pertains to election offenses supposedly committed in Maguindanao. More
importantly, considering the broad power of the Comelec to choose the means of
fulfilling its duty of ensuring the prompt investigation and prosecution of election
offenses as discussed earlier, there is nothing wrong if the Comelec chooses to
work jointly with the DOJ in the conduct of said investigation. To reiterate, in no way
can we consider this as an act abdicating the independence of the Comelec.
Publication Requirement
In the conduct of preliminary investigation, the DOJ is governed by the Rules of
Court, while the Comelec is governed by the 1993 Comelec Rules of Procedure.
There is, therefore, no need to promulgate new Rules as may be complementary to
the DOJ and Comelec Rules.
As earlier discussed, considering that Joint Order No. 001-2011 only enables the
Comelec and the DOJ to exercise powers which are already vested in them by the
Constitution and other existing laws, it need not be published for it to be valid and
effective. A close examination of the Joint Committee’s Rules of Procedure,
however, would show that its provisions affect the public. Specifically, the following
provisions of the Rules either restrict the rights of or provide remedies to the
affected parties, to wit: (1) Section 1 provides that "the Joint Committee will no
longer entertain complaints from the public as soon as the Fact-Finding Team
submits its final report, except for such complaints involving offenses mentioned in
the Fact-Finding Team’s Final Report"; (2) Section 2 states that "the Joint
Committee shall not entertain a Motion to Dismiss"; and (3) Section 5 provides that
a Motion for Reconsideration may be availed of by the aggrieved parties against the
Joint Committee’s Resolution. Consequently, publication of the Rules is necessary.
The publication requirement covers not only statutes but administrative regulations
and issuances, as clearly outlined in Tañada v. Tuvera: 108 effectivity, which shall
begin fifteen days after publication unless a different effectivity date is fixed by the
legislature. Covered by this rule are presidential decrees and executive orders
promulgated by the President in the exercise of legislative powers whenever the
same are validly delegated by the legislature or, at present, directly conferred by the
Constitution. Administrative rules and regulations must also be published if their
purpose is to enforce or implement existing law pursuant also to a valid delegation.
Interpretative regulations and those merely internal in nature, that is, regulating only
the personnel of the administrative agency and not the public, need not be
published. Neither is publication required of the so called letters of instructions
issued by administrative superiors concerning the rules or guidelines to be followed
by their subordinates in the performance of their duties. 109
As opposed to Honasan II v. The Panel of Investigating Prosecutors of the
Department of Justice,110 where the Court held that OMB-DOJ Joint Circular No. 95-
001 is only an internal arrangement between the DOJ and the Office of the
Ombudsman outlining the authority and responsibilities among prosecutors of both
offices in the conduct of preliminary investigation, the assailed Joint Committee’s
Rules of Procedure regulate not only the prosecutors of the DOJ and the Comelec
but also the conduct and rights of persons, or the public in general. The publication
requirement should, therefore, not be ignored.
Publication is a necessary component of procedural due process to give as wide
publicity as possible so that all persons having an interest in the proceedings may
be notified thereof.111 The requirement of publication is intended to satisfy the basic
requirements of due process. It is imperative for it will be the height of injustice to
punish or otherwise burden a citizen for the transgressions of a law or rule of which
he had no notice whatsoever.112
Nevertheless, even if the Joint Committee’s Rules of Procedure is ineffective for
lack of publication, the proceedings undertaken by the Joint Committee are not
rendered null and void for that reason, because the preliminary investigation was
conducted by the Joint Committee pursuant to the procedures laid down in Rule 112
of the Rules on Criminal Procedure and the 1993 Comelec Rules of Procedure.
Validity of the Conduct of
Preliminary Investigation
In her Supplemental Petition,113 GMA outlines the incidents that took place after the
filing of the instant petition, specifically the issuance by the Joint Committee of the
Joint Resolution, the approval with modification of such resolution by the Comelec
and the filing of information and the issuance of a warrant of arrest by the RTC. With
these supervening events, GMA further assails the validity of the proceedings that
took place based on the following additional grounds: (1) the undue and
unbelievable haste attending the Joint Committee’s conduct of the preliminary
investigation, its resolution of the case, and its referral to and approval by the
Comelec, taken in conjunction with the statements from the Office of the President,
demonstrate a deliberate and reprehensible pattern of abuse of inalienable rights
and a blatant disregard of the envisioned integrity and independence of the
Comelec; (2) as it stands, the creation of the Joint Committee was for the singular
purpose of railroading the proceedings in the prosecution of the petitioner and in
flagrant violation of her right to due process and equal protection of the laws; (3) the
proceedings of the Joint Committee cannot be considered impartial and fair,
considering that respondents have acted as law enforcers, who conducted the
criminal investigation, gathered evidence and thereafter ordered the filing of
complaints, and at the same time authorized preliminary investigation based on the
complaints they caused to be filed; (4) the Comelec became an instrument of
oppression when it hastily approved the resolution of the Joint Committee even if
two of its members were in no position to cast their votes as they admitted to not
having yet read the voluminous records of the cases; and (5) flagrant and repeated
violations of her right to due process at every stage of the proceedings demonstrate
a deliberate attempt to single out petitioner through the creation of the Joint
Committee.114
In their Supplement to the Consolidated Comment, 115 respondents accuse
petitioners of violating the rule against forum shopping. They contend that in filing
the Supplemental Petition before the Court, the Urgent Omnibus Motion Ad
Cautelam with the RTC, and the Motion to Vacate Ad Cautelam with the Comelec,
GMA raises the common issue of whether or not the proceedings before the Joint
Committee and the Comelec are null and void for violating the Constitution.
Respondents likewise claim that the issues raised in the supplemental petition are
factual which is beyond the power of this Court to decide.
We cannot dismiss the cases before us on the ground of forum shopping.
Forum shopping is the act of a party against whom an adverse judgment has been
rendered in one forum, of seeking another and possibly favorable opinion in another
forum other than by appeal or the special civil action of certiorari. 116There can also
be forum shopping when a party institutes two or more suits in different courts,
either simultaneously or successively, in order to ask the courts to rule on the same
and related causes and/or to grant the same or substantially the same reliefs on the
supposition that one or the other court would make a favorable disposition or
increase a party’s chances of obtaining a favorable decision or action. 117
Indeed, petitioner GMA filed a Supplemental Petition before the Court, an Urgent
Omnibus Motion Ad Cautelam before the RTC, and a Motion to Vacate Ad
Cautelam before the Comelec, emphasizing the unbelievable haste committed by
the Joint Committee and the Comelec in disposing of the cases before them.
However, a plain reading of the allegations in GMA’s motion before the RTC would
show that GMA raised the issue of undue haste in issuing the Joint Resolution only
in support of her prayer for the trial court to hold in abeyance the issuance of the
warrant of arrest, considering that her motion for reconsideration of the denial of her
motion to be furnished copies of documents was not yet acted upon by the Joint
Committee. If at all the constitutional issue of violation of due process was raised, it
was merely incidental. More importantly, GMA raised in her motion with the RTC the
finding of probable cause as she sought the judicial determination of probable cause
which is not an issue in the petitions before us. GMA’s ultimate prayer is actually for
the court to defer the issuance of the warrant of arrest. Clearly, the reliefs sought in
the RTC are different from the reliefs sought in this case. Thus, there is no forum
shopping.
With respect to the Motion to Vacate Ad Cautelam filed with the Comelec, while the
issues raised therein are substantially similar to the issues in the supplemental
petition which, therefore, strictly speaking, warrants outright dismissal on the ground
of forum shopping, we cannot do so in this case in light of the due process issues
raised by GMA.118 It is worthy to note that the main issues in the present petitions
are the constitutionality of the creation of the Joint Panel and the validity of the
proceedings undertaken pursuant thereto for alleged violation of the constitutional
right to due process. In questioning the propriety of the conduct of the preliminary
investigation in her Supplemental Petition, GMA only raises her continuing objection
to the exercise of jurisdiction of the Joint Committee and the Comelec. There is,
therefore, no impediment for the Court to rule on the validity of the conduct of
preliminary investigation.
In Uy v. Office of the Ombudsman,119 the Court explained the nature of preliminary
investigation, to wit:
A preliminary investigation is held before an accused is placed on trial to secure the
innocent against hasty, malicious, and oppressive prosecution; to protect him from
an open and public accusation of a crime, as well as from the trouble, expenses,
and anxiety of a public trial. It is also intended to protect the state from having to
conduct useless and expensive trials. While the right is statutory rather than
constitutional, it is a component of due process in administering criminal justice. The
right to have a preliminary investigation conducted before being bound for trial and
before being exposed to the risk of incarceration and penalty is not a mere formal or
technical right; it is a substantive right. To deny the accused's claim to a preliminary
investigation is to deprive him of the full measure of his right to due process. 120
A preliminary investigation is the crucial sieve in the criminal justice system which
spells for an individual the difference between months if not years of agonizing trial
and possibly jail term, on the one hand, and peace of mind and liberty, on the other
hand. Thus, we have characterized the right to a preliminary investigation as not a
mere formal or technical right but a substantive one, forming part of due process in
criminal justice.121
In a preliminary investigation, the Rules of Court guarantee the petitioners basic due
process rights such as the right to be furnished a copy of the complaint, the
affidavits, and other supporting documents, and the right to submit counter-
affidavits, and other supporting documents in her defense. 122 Admittedly, GMA
received the notice requiring her to submit her counter-affidavit. Yet, she did not
comply, allegedly because she could not prepare her counter-affidavit. She claimed
that she was not furnished by Senator Pimentel pertinent documents that she
needed to adequately prepare her counter-affidavit.
In her Omnibus Motion Ad Cautelam123 to require Senator Pimentel to furnish her
with documents referred to in his complaint-affidavit and for production of election
documents as basis for the charge of electoral sabotage, GMA prayed that the Joint
Committee issue an Order directing the Fact-Finding Team and Senator Pimentel to
furnish her with copies of the following documents:
a. Complaint-affidavit and other relevant documents of Senator Aquilino
Pimentel III filed before the Commission on Elections against Attys. Lilia
Suan-Radam and Yogie Martirizar, as well as the Informations filed in the
Regional Trial Court of Pasay City, Branch 114 in Criminal Case Nos. R-
PSU-11-03190-CR to R-PSU-11-03200-CR.
b. Records in the petitions filed by complainant Pimentel before the
National Board of Canvassers, specifically in NBC Case Nos. 07-162, 07-
168, 07-157, 07-159, 07-161 and 07-163.
c. Documents which served as basis in the allegations of "Significant
findings specific to the protested municipalities in the Province of
Maguindanao."
d. Documents which served as basis in the allegations of "Significant
findings specific to the protested municipalities in the Province of Lanao
del Norte."
 e. Documents which served as basis in the allegations of "Significant
findings specific to the protested municipalities in the Province of Shariff
Kabunsuan."
f. Documents which served as basis in the allegations of "Significant
findings specific to the protested municipalities in the Province of Lanao
del Sur."
g. Documents which served as basis in the allegations of "Significant
findings specific to the protested municipalities in the Province of Sulu."
h. Documents which served as basis in the allegations of "Significant
findings specific to the protested municipalities in the Province of Basilan."
i. Documents which served as basis in the allegations of "Significant
findings specific to the protested municipalities in the Province of Sultan
Kudarat."124
GMA likewise requested the production of election documents used in the Provinces
of South and North Cotabato and Maguindanao.125
The Joint Committee, however, denied GMA’s motion which carried with it the denial
to extend the filing of her counter-affidavit. Consequently, the cases were submitted
for resolution sans GMA’s and the other petitioners’ counter-affidavits. This,
according to GMA, violates her right to due process of law.
We do not agree.
GMA’s insistence of her right to be furnished the above-enumerated documents is
based on Section 3 (b), Rule 112 of the Rules on Criminal Procedure, which reads:
(b) x x x
The respondent shall have the right to examine the evidence submitted by the
complainant which he may not have been furnished and to copy them at his
expense. If the evidence is voluminous, the complainant may be required to specify
those which he intends to present against the respondent, and these shall be made
available for examination or copying by the respondent at his expense,
Objects as evidence need not be furnished a party but shall be made available for
examination, copying or photographing at the expense of the requesting party. 126
Section 6 (a), Rule 34 of the Comelec Rules of Procedure also grants the
respondent such right of examination, to wit:
Sec. 6. Conduct of preliminary investigation. – (a) If on the basis of the complaint,
affidavits and other supporting evidence, the investigating officer finds no ground to
continue with the inquiry, he shall recommend the dismissal of the complaint and
shall follow the procedure prescribed in Sec. 8 (c) of this Rule. Otherwise, he shall
issue a subpoena to the respondent, attaching thereto a copy of the complaint,
affidavits and other supporting documents giving said respondent ten (10) days from
receipt within which to submit counter-affidavits and other supporting documents.
The respondent shall have the right to examine all other evidence submitted by the
complainant.127
Clearly from the above-quoted provisions, the subpoena issued against respondent
therein should be accompanied by a copy of the complaint and the supporting
affidavits and documents. GMA also has the right to examine documents but such
right of examination is limited only to the documents or evidence submitted by the
complainants (Senator Pimentel and the Fact-Finding Team) which she may not
have been furnished and to copy them at her expense.
While it is true that Senator Pimentel referred to certain election documents which
served as bases in the allegations of significant findings specific to the protested
municipalities involved, there were no annexes or attachments to the complaint
filed.128 As stated in the Joint Committee’s Order dated November 15, 2011 denying
GMA’s Omnibus Motion Ad Cautelam, Senator Pimentel was ordered to furnish
petitioners with all the supporting evidence129 However, Senator Pimentel
manifested that he was adopting all the affidavits attached to the Fact-Finding
Team’s Initial Report.130Therefore, when GMA was furnished with the documents
attached to the Initial Report, she was already granted the right to examine as
guaranteed by the Comelec Rules of Procedure and the Rules on Criminal
Procedure. Those were the only documents submitted by the complainants to the
Committee. If there are other documents that were referred to in Senator Pimentel’s
complaint but were not submitted to the Joint Committee, the latter considered those
documents unnecessary at that point (without foreclosing the relevance of other
evidence that may later be presented during the trial) 131 as the evidence submitted
before it were considered adequate to find probable cause against her. 132 Anyway,
the failure of the complainant to submit documents supporting his allegations in the
complaint may only weaken his claims and eventually works for the benefit of the
respondent as these merely are allegations unsupported by independent evidence.
We must, however, emphasize at this point that during the preliminary investigation,
the complainants are not obliged to prove their cause beyond reasonable doubt. It
would be unfair to expect them to present the entire evidence needed to secure the
conviction of the accused prior to the filing of information. 133 A preliminary
investigation is not the occasion for the full and exhaustive display of the parties’
respective evidence but the presentation only of such evidence as may engender a
well-grounded belief that an offense has been committed and that the accused is
probably guilty thereof and should be held for trial. 134 Precisely there is a trial to
allow the reception of evidence for the prosecution in support of the charge. 135
With the denial of GMA’s motion to be furnished with and examine the documents
referred to in Senator Pimentel’s complaint, GMA’s motion to extend the filing of her
counter-affidavit and countervailing evidence was consequently denied. Indeed,
considering the nature of the crime for which GMA was subjected to preliminary
investigation and the documents attached to the complaint, it is incumbent upon the
Joint Committee to afford her ample time to examine the documents submitted to
the Joint Committee in order that she would be able to prepare her counter-affidavit.
She cannot, however, insist to examine documents not in the possession and
custody of the Joint Committee nor submitted by the complainants. Otherwise, it
might cause undue and unnecessary delay in the disposition of the cases. This
undue delay might result in the violation of the right to a speedy disposition of cases
as enshrined in Section 16, Article III of the Constitution which states that "all
persons shall have the right to a speedy disposition of their cases before all judicial,
quasi-judicial, or administrative bodies." The constitutional right to speedy
disposition of cases is not limited to the accused in criminal proceedings but extends
to all parties in all cases, including civil and administrative cases, and in all
proceedings, including judicial and quasi-judicial hearings. 136 Any party to a case has
the right to demand on all officials tasked with the administration of justice to
expedite its disposition.137 Society has a particular interest in bringing swift
prosecutions, and the society’s representatives are the ones who should protect that
interest.138
Even assuming for the sake of argument that the denial of GMA’s motion to be
furnished with and examine the documents referred to in Senator Pimentel’s
complaint carried with it the denial to extend the filing of her counter-affidavit and
other countervailing evidence rendering the preliminary investigation irregular, such
irregularity would not divest the RTC of jurisdiction over the case and would not
nullify the warrant of arrest issued in connection therewith, considering that
Informations had already been filed against petitioners, except Mike Arroyo. This
would only compel us to suspend the proceedings in the RTC and remand the case
to the Joint Committee so that GMA could submit her counter-affidavit and other
countervailing evidence if she still opts to. However, to do so would hold back the
progress of the case which is anathema to the accused’s right to speedy disposition
of cases.
It is well settled that the absence or irregularity of preliminary investigation does not
affect the court’s jurisdiction over the case. Nor does it impair the validity of the
criminal information or render it defective. Dismissal is not the remedy. 139Neither is it
a ground to quash the information or nullify the order of arrest issued against the
accused or justify the release of the accused from detention. 140 The proper course of
action that should be taken is to hold in abeyance the proceedings upon such
information and to remand the case for the conduct of preliminary investigation. 141
In the landmark cases of Cojuangco, Jr. v. Presidential Commission on Good
Government (PCGG)142 and Allado v. Diokno,143 we dismissed the criminal cases
and set aside the informations and warrants of arrest. In Cojuangco, we dismissed
the criminal case because the information was filed by the PCGG which we
declared to be unauthorized to conduct the preliminary investigation and,
consequently, file the information as it did not possess the cold neutrality of an
impartial judge. In Allado, we set aside the warrant of arrest issued against
petitioners therein and enjoined the trial court from proceeding further for lack of
probable cause. For one, there was serious doubt on the reported death of the
victim in that case since the corpus delicti had not been established nor had his
remains been recovered;and based on the evidence submitted, there was nothing to
incriminate petitioners therein. In this case, we cannot reach the same conclusion
because the Information filed before the RTC of Pasay City was filed by the
Comelec en banc which had the authority to file the information for electoral
sabotage and because the presence or absence of probable cause is not an issue
herein. As can be gleaned from their assignment of errors/issues, petitioners did not
question the finding of probable cause in any of their supplemental petitions. It was
only in GMA’s memorandum where she belatedly included a discussion on the
"insufficiency" of the evidence supporting the finding of probable cause for the filing
of the Information for electoral sabotage against her. 144 A closer look at her
arguments, however, would show that they were included only to highlight the
necessity of examining the election documents GMA requested to see before she
could file her counter-affidavit. At any rate, since GMA failed to submit her counter-
affidavit and other countervailing evidence within the period required by the Joint
Committee, we cannot excuse her from non-compliance.
There might have been overzealousness on the part of the Joint Committee in
terminating the investigation, endorsing the Joint Resolution to the Comelec for
approval, and in filing the information in court. However, speed in the conduct of
proceedings by a judicial or quasi-judicial officer cannot per se be instantly attributed
to an injudicious performance of functions.145 The orderly administration of justice
remains the paramount consideration with particular regard to the peculiar
circumstances of each case.146 To be sure, petitioners were given the opportunity to
present countervailing evidence. Instead of complying with the Joint Committee’s
directive, several motions were filed but were denied by the Joint Committee.
Consequently, petitioners’ right to submit counter-affidavit and countervailing
evidence was forfeited. Taking into account the constitutional right to speedy
disposition of cases and following the procedures set forth in the Rules on Criminal
Procedure and the Comelec Rules of Procedure, the Joint Committee finally
reached its conclusion and referred the case to the Comelec. The latter, in turn,
performed its task and filed the information in court. Indeed, petitioners were given
the opportunity to be heard. They even actively participated in the proceedings and
in fact filed several motions before the Joint Committee. Consistent with the
constitutional mandate of speedy disposition of cases, unnecessary delays should
be avoided.
Finally, we take judicial notice that on February 23, 2012, GMA was already
arraigned and entered a plea of "not guilty" to the charge against her and thereafter
filed a Motion for Bail which has been granted. Considering that the constitutionality
of the creation of the Joint Panel is sustained, the actions of the Joint Committee
and Fact-Finding Team are valid and effective. As the information was filed by the
Commission authorized to do so, its validity is sustained. Thus, we consider said
entry of plea and the Petition for Bail waiver on the part of GMA of her right to
submit counter-affidavit and countervailing evidence before the Joint Committee,
and recognition of the validity of the information against her. Her act indicates that
she opts to avail of judicial remedies instead of the executive remedy of going back
to the Joint Committee for the submission of the counter-affidavit and countervailing
evidence. Besides, as discussed earlier, the absence or irregularity of preliminary
investigation does not affect the court’s jurisdiction over the case nor does it impair
the validity of the criminal information or render it defective.
It must be stressed, however, that this supervening event does not render the cases
before the Court moot and academic as the main issues raised by petitioners are
the constitutionality of the creation of the Joint Committee and the Fact-Finding
Team and the validity of the proceedings undertaken pursuant to their respective
mandates.
The Court notes that the Joint Committee and the Comelec have not disposed of the
cases of the other respondents subjects of the preliminary investigation as some of
them were subjected to further investigation. In order to remove the cloud of doubt
that pervades that petitioners are being singled out, it is to the best interest of all the
parties concerned that the Joint Committee and the Comelec terminate the
proceedings as to the other respondents therein and not make a piecemeal
disposition of the cases.
A peripheral issue which nonetheless deserves our attention is the question about
the credibility of the Comelec brought about by the alleged professional relationship
between Comelec Chairman Brillantes on one hand and the complainant Senator
Pimentel and Fernando Poe, Jr. (FPJ), GMA’s rival in the 2004 elections, on the
other hand; and by the other Commissioners’ 147 reasons for their partial inhibition. To
be sure, Chairman Brillantes’ relationship with FPJ and Senator Pimentel is not one
of the grounds for the mandatory disqualification of a Commissioner. At its most
expansive, it may be considered a ground for voluntary inhibition which is indeed
discretionary as the same was primarily a matter of conscience and sound
discretion on the part of the Commissioner judge based on his or her rational and
logical assessment of the case.148 Bare allegations of bias and prejudice are not
enough in the absence of clear and convincing evidence to overcome the
presumption that a judge will undertake his noble role to dispense justice according
to law and evidence without fear or favor.149 It being discretionary and since
Commissioner Brillantes was in the best position to determine whether or not there
was a need to inhibit from the case, his decision to participate in the proceedings, in
view of higher interest of justice, equity and public interest, should be respected.
While a party has the right to seek the inhibition or disqualification of a judge (or
prosecutor or Commissioner) who does not appear to be wholly free, disinterested,
impartial, and independent in handling the case, this right must be weighed with his
duty to decide cases without fear of repression.150
Indeed, in Javier v. Comelec,151 the Court set aside the Comelec’s decision against
Javier when it was disclosed that one of the Commissioners who had decided the
case was a law partner of Javier’s opponent and who had refused to excuse himself
from hearing the case. Javier, however, is not applicable in this case. First, the cited
case involves the Comelec’s exercise of its adjudicatory function as it was called
upon to resolve the propriety of the proclamation of the winner in the May 1984
elections for Batasang Pambansa of Antique. Clearly, the grounds for
inhibition/disqualification were applicable. Second, the case arose at the time where
the purity of suffrage has been defiled and the popular will scorned through the
confabulation of those in authority. 152 In other words, the controversy arose at the
time when the public confidence in the Comelec was practically nil because of its
transparent bias in favor of the administration. 153 Lastly, in determining the propriety
of the decision rendered by the Comelec, the Court took into consideration not only
the relationship (being former partners in the law firm) between private respondents
therein, Arturo F. Pacificador, and then Comelec Commissioner Jaime Opinion
(Commissioner Opinion) but also the general attitude of the Comelec toward the
party in power at that time. Moreover, the questioned Comelec decision was
rendered only by a division of the Comelec. The Court thus concluded in Javier that
Commissioner Opinion’s refusal to inhibit himself divested the Comelec’s Second
Division of the necessary vote for the questioned decision and rendered the
proceedings null and void.154
On the contrary, the present case involves only the conduct of preliminary
investigation and the questioned resolution is an act of the Comelec En Banc where
all the Commissioners participated and more than a majority (even if Chairman
Brillantes is excluded) voted in favor of the assailed Comelec resolution. Unlike in
1986, public confidence in the Comelec remains. The Commissioners have already
taken their positions in light of the claim of "bias and partiality" and the causes of
their partial inhibition. Their positions should be respected confident that in doing so,
they had the end in view of ensuring that the credibility of the Commission is not
seriously affected.
To recapitulate, we find and so hold that petitioners failed to establish any
constitutional or legal impediment to the creation of the Joint DOJ-Comelec
Preliminary Investigation Committee and Fact-Finding Team.
First, while GMA and Mike Arroyo were among those subjected to preliminary
investigation, not all respondents therein were linked to GMA; thus, Joint Order No.
001-2011 does not violate the equal protection clause of the Constitution.
Second, the due process clause is likewise not infringed upon by the alleged
prejudgment of the case as petitioners failed to prove that the Joint Panel itself
showed such bias and partiality against them. Neither was it shown that the Justice
Secretary herself actually intervened in the conduct of the preliminary investigation.
More importantly, considering that the Comelec is a collegial body, the perceived
prejudgment of Chairman Brillantes as head of the Comelec cannot be considered
an act of the body itself.
Third, the assailed Joint Order did not create new offices because the Joint
Committee and Fact-Finding Team perform functions that they already perform by
virtue of the Constitution, the statutes, and the Rules of Court. 1âwphi1
Fourth, in acting jointly with the DOJ, the Comelec cannot be considered to have
abdicated its independence in favor of the executive branch of government.
Resolution No. 9266 was validly issued by the Comelec as a means to fulfill its duty
of ensuring the prompt investigation and prosecution of election offenses as an
adjunct of its mandate of ensuring a free, orderly, honest, peaceful, and credible
elections. The role of the DOJ in the conduct of preliminary investigation of election
offenses has long been recognized by the Comelec because of its lack of funds and
legal officers to conduct investigations and to prosecute such cases on its own. This
is especially true after R.A. No. 9369 vested in the Comelec and the DOJ the
concurrent jurisdiction to conduct preliminary investigation of all election offenses.
While we uphold the validity of Comelec Resolution No. 9266 and Joint Order No.
001-2011, we declare the Joint Committee’s Rules of Procedure infirm for failure to
comply with the publication requirement. Consequently, Rule 112 of the Rules on
Criminal Procedure and the 1993 Comelec Rules of Procedure govern.
Fifth, petitioners were given the opportunity to be heard. They were furnished a copy
of the complaint, the affidavits, and other supporting documents submitted to the
Joint Committee and they were required to submit their counter-affidavit and
countervailing evidence. As to petitioners Mike Arroyo and Abalos, the pendency of
the cases before the Court does not automatically suspend the proceedings before
the Joint Committee nor excuse them from their failure to file the required counter-
affidavits. With the foregoing disquisitions, we find no reason to nullify the
proceedings undertaken by the Joint Committee and the Comelec in the electoral
sabotage cases against petitioners.
WHEREFORE, premises considered, the petitions and supplemental petitions are
DISMISSED. Comelec Resolution No. 9266 dated August 2, 2011, Joint Order No.
001-2011 dated August 15, 2011, and the Fact-Finding Team’s Initial Report dated
October 20, 2011, are declared VALID. However, the Rules of Procedure on the
Conduct of Preliminary Investigation on the Alleged Election Fraud in the 2004 and
2007 National Elections is declared INEFFECTIVE for lack of publication.
In view of the constitutionality of the Joint Panel and the proceedings having been
conducted in accordance with Rule 112 of the Rules on Criminal Procedure and
Rule 34 of the Comelec Rules of Procedure, the conduct of the preliminary
investigation is hereby declared VALID.

Let the proceedings in the Regional Trial Court of Pasay City, Branch 112, where
the criminal cases for electoral sabotage against petitioners GMA and Abalos are
pending, proceed with dispatch.

SO ORDERED.

DIOSDADO M. PERALTA
Associate Justice

WE CONCUR:
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. Nos. 162144-54               November 13, 2012
PEOPLE OF THE PHILIPPINES, Petitioner, 
vs.
HON. MA. THERESA L. DELA TORRE- YADAO, in her capacity as Presiding
Judge, Branch 81, Regional Trial Court of Quezon City, HON. MA. NATIVIDAD M.
DIZON, in her capacity as Executive Judge of the Regional Trial Court of Quezon
City, PANFILO M. LACSON, JEWEL F. CANSON, ROMEO M. ACOP, FRANCISCO
G. ZUBIA, JR., MICHAEL RAY B. AQUINO, CEZAR O. MANCAO II, ZOROBABEL
S. LAURELES, GLENN G. DUMLAO, ALMARIO A. HILARIO, JOSE ERWIN T.
VILLACORTE, GIL C. MENESES, ROLANDO ANDUYAN, JOSELITO T.
ESQUIVEL, RICARDO G. DANDAN, CEASAR TANNAGAN, VICENTE P.
ARNADO, ROBERTO T. LANGCAUON, ANGELITO N. CAISIP, ANTONIO FRIAS,
CICERO S. BACOLOD, WILLY NUAS, JUANITO B. MANAOIS, VIRGILIO V.
PARAGAS, ROLANDO R. JIMENEZ, CECILIO T. MORITO, REYNALDO C. LAS
PINAS, WILFREDO G CUARTERO, ROBERTO O. AGBALOG, OSMUNDO B.
CARINO, NORBERTO LASAGA, LEONARDO GLORIA, ALEJANDRO G
LIWANAG, ELMER FERRER and ROMY CRUZ, Respondents.
DECISION
ABAD, J.:
This case, which involves the alleged summary execution of suspected members of
the Kuratong Bale/eng Gang, is once again before this Court this time questioning,
among other things, the trial qmrt's determination of the absence of probable cause
and its dismissal of the criminal actions.1
The Facts and the Case
In the early morning of May 18, 1995, the combined forces of the Philippine National
Police's Anti-Bank Robbery and Intelligence Task Group (PNP ABRITG) composed
of Task Force Habagat (then headed by Police Chief Superintendent Panfilo M.
Lacson), Traffic Management Command ([TMC] led by then Police Senior
Superintendent Francisco G. Zubia, Jr.), Criminal Investigation Command (led by
then Police Chief Superintendent Romeo M. Acop ), and National Capital Region
Command (headed by then Police Chief Superintendent Jewel F. Canson) killed 11
suspected members of the Kuratong Baleleng Gang 2 along Commonwealth Avenue
in Quezon City.
Subsequently, SPO2 Eduardo Delos Reyes of the Criminal Investigation Command
told the press that it was a summary execution, not a shoot-out between the police
and those who were slain. After investigation, the Deputy Ombudsman for Military
Affairs absolved all the police officers involved, including respondents Panfilo M.
Lacson, Jewel F. Canson, Romeo M. Acop, Francisco G. Zubia, Jr., Michael Ray B.
Aquino, Cezar O. Mancao II, and 28 others (collectively, the respondents). 3 On
review, however, the Office of the Ombudsman reversed the finding and filed
charges of murder against the police officers involved before the Sandiganbayan in
Criminal Cases 23047 to 57, except that in the cases of respondents Zubia, Acop,
and Lacson, their liabilities were downgraded to mere accessory. On arraignment,
Lacson pleaded not guilty.
Upon respondents’ motion, the Sandiganbayan ordered the transfer of their cases to
the Regional Trial Court (RTC) of Quezon City on the ground that none of the
principal accused had the rank of Chief Superintendent or higher. Pending the
resolution of the Office of the Special Prosecutor’s motion for reconsideration of the
transfer order, Congress passed Republic Act (R.A.) 8249 that expanded the
Sandiganbayan’s jurisdiction by deleting the word "principal" from the phrase
"principal accused" to apply to all pending cases where trial had not begun. As a
result of this new law, the Sandiganbayan opted to retain and try the Kuratong
Baleleng murder cases.
Respondent Lacson challenged the constitutionality of R.A. 8249 in G.R.
1280964 but this Court upheld its validity. Nonetheless, the Court ordered the
transfer of the trial of the cases to the RTC of Quezon City since the amended
informations contained no allegations that respondents committed the offenses
charged in relation to, or in the discharge of, their official functions as required by
R.A. 8249.
Before the RTC of Quezon City, Branch 81, then presided over by Judge
Wenceslao Agnir, Jr., could arraign respondents in the re-docketed Criminal Cases
Q-99-81679 to 89, however, SPO2 Delos Reyes and the other prosecution
witnesses recanted their affidavits. Some of the victims’ heirs also executed
affidavits of desistance. These prompted the respondents to file separate motions
for the determination of probable cause before the issuance of warrants of arrests.
On March 29, 1999 the RTC of Quezon City ordered the provisional dismissal of the
cases for lack of probable cause to hold the accused for trial following the
recantation of the principal prosecution witnesses and the desistance of the private
complainants.
Two years later or on March 27, 2001 PNP Director Leandro R. Mendoza sought to
revive the cases against respondents by requesting the Department of Justice
(DOJ) to conduct another preliminary investigation in their cases on the strength of
the affidavits of P/Insp. Ysmael S. Yu and P/S Insp. Abelardo Ramos. In response,
then DOJ Secretary Hernando B. Perez constituted a panel of prosecutors to
conduct the requested investigation.
Invoking their constitutional right against double jeopardy, Lacson and his co-
accused filed a petition for prohibition with application for temporary restraining
order and writ of preliminary injunction before the RTC of Manila in Civil Case 01-
100933. In an Order dated June 5, 2001, that court denied the plea for temporary
restraining order. Thus, on June 6, 2001 the panel of prosecutors found probable
cause to hold Lacson and his co-accused liable as principals for 11 counts of
murder, resulting in the filing of separate informations against them in Criminal
Cases 01-101102 to 12 before the RTC of Quezon City, Branch 81, now presided
over by respondent Judge Ma. Theresa L. Yadao.
On the same day, respondent Lacson filed a petition for certiorari before the Court
of Appeals (CA), assailing the RTC of Manila’s order which allowed the renewed
preliminary investigation of the murder charges against him and his co-accused.
Lacson also filed with the RTC of Quezon City a motion for judicial determination of
probable cause. But on June 13, 2001 he sought the suspension of the proceedings
in that court.
In the meantime, the CA issued a temporary restraining order enjoining the RTC of
Quezon City from issuing warrants of arrest or conducting any proceeding in
Criminal Cases 01-101102 to 12 before it. On August 24, 2001 the CA rendered a
Decision, granting Lacson’s petition on the ground of double jeopardy since,
although the dismissal of Criminal Cases Q-99-81679 to 89 was provisional, such
dismissal became permanent two years after when they were not revived.
Upon the prosecution’s appeal to this Court in G.R. 149453, 5 the Court ruled that,
based on the record, Lacson failed to prove compliance with the requirements of
Section 8, Rule 117 governing provisional dismissals. The records showed that the
prosecution did not file a motion for provisional dismissal and, for his part,
respondent Lacson had merely filed a motion for judicial determination of probable
cause. Nowhere did he agree to some proposal for a provisional dismissal of the
cases. Furthermore, the heirs of the victims had no notice of any motion for such
provisional dismissal.
The Court thus set aside the CA Decision of August 24, 2001 and directed the RTC
of Quezon City to try the cases with dispatch. On motion for reconsideration by
respondent Lacson, the Court ordered the re-raffle of the criminal cases to a
heinous crimes court. Upon re-raffle, however, the cases still went to Branch 81,
which as already stated was now presided over by Judge Yadao.
On October 12, 2003 the parents of two of the victims submitted birth certificates
showing that they were minors. Apparently reacting to this, the prosecution
amended the informations to show such minority and asked respondent Executive
Judge Ma. Natividad M. Dizon to recall the assignment of the cases to Branch 81
and re-raffle them to a family court. The request for recall was denied.
On October 20, 2003 the prosecution filed an omnibus motion before Branch 81,
praying for the re-raffle of Criminal Cases 01-101102 to12 to the family courts in
view of the changes in the two informations. On October 24, 2003 the prosecution
also filed its consolidated comment ex-abundanti cautela on the motions to
determine probable cause.
On November 12, 20036 Judge Yadao issued an order, denying the prosecution’s
motion for re-raffle to a family court on the ground that Section 5 of R.A. 8369
applied only to living minors. She also granted the motions for determination of
probable cause and dismissed the cases against the respondents since the
affidavits of the prosecution witnesses were inconsistent with those they submitted
in the preliminary investigations before the Ombudsman for the crime of robbery.
On November 25, 2003 the prosecution filed a verified motion to recuse or disqualify
Judge Yadao and for reconsideration of her order. It also filed an administrative
complaint against her for dishonesty, conduct prejudicial to the best interests of the
service, manifest partiality, and knowingly rendering an unjust judgment. 7 On
January 14, 2004, the prosecution filed an urgent supplemental motion for
compulsory disqualification with motion for cancellation of the hearing on motion for
reconsideration.
On January 21, 2004 Judge Yadao issued an order, denying the motion to recuse
her, prompting the prosecution to appeal from that order. Further, on January 22,
2004 Judge Yadao issued another order, denying the prosecution’s motion for
reconsideration of the Order dated November 12, 2003 that dismissed the action
against the respondents. In response, the prosecution filed a notice of appeal from
the same. Finally, on January 26, 2004 Judge Yadao issued an order, denying the
prosecution’s motion for reconsideration of its January 16, 2004 Order not only for
lack of merit but also for having become moot and academic.
On February 16, 2004 the prosecution withdrew ex-abundanti cautela the notices of
appeal that it filed in the cases. Subsequently, on March 3, 2004 it filed the present
special civil action of certiorari.
The Issues Presented
The prosecution presents the following issues:
1. Whether or not Executive Judge Dizon gravely abused her discretion in
allowing Criminal Cases 01-101102 to 12 to be re-raffled to other than
among the RTC of Quezon City’s family courts.
2. Whether or not Judge Yadao gravely abused her discretion when she
took cognizance of Criminal Cases 01-101102 to 12 contrary to the
prosecution’s view that such cases fell under the jurisdiction of family
courts.
3. Whether or not Judge Yadao gravely abused her discretion when she
did not inhibit and disqualify herself from taking cognizance of the cases.
4. Whether or not Judge Yadao gravely abused her discretion when she
dismissed the criminal actions on the ground of lack of probable cause
and barred the presentation of additional evidence in support of the
prosecution’s motion for reconsideration.
5. Whether or not Judge Yadao gravely abused her discretion when she
adopted certain policies concerning the conduct of hearings in her court.
The Court’s Rulings
Before addressing the above issues, the Court notes respondents’ contention that
the prosecution’s resort to special civil action of certiorari under Rule 65 is improper.
Since the trial court dismissed the criminal actions against respondents, the
prosecution’s remedy was to appeal to the CA from that order of dismissal.
Ordinarily, the proper remedy from an order dismissing an action is an
appeal.8 Here, the prosecution in fact filed a notice of appeal from such an order
issued in the subject cases. But it reconsidered its action and withdrew that notice,
believing that appeal was not an effective, speedy, and adequate remedy. 9 In other
words, the prosecution’s move was not a case of forgotten remedy but a conscious
resort to another based on a belief that respondent Judge Yadao gravely abused
her discretion in issuing her various orders and that certiorari under Rule 65 was the
proper and all-encompassing remedy for the prosecution. The Court is not prepared
to say that the remedy is altogether implausible as to throw out the petition outright.
Still, the Court notes that the prosecution skipped the CA and filed its action directly
with this Court, ignoring the principle of judicial hierarchy of courts. Although the
Supreme Court, the CA, and the RTCs have concurrent jurisdiction to issue a writ of
certiorari, such concurrence does not give the People the unrestricted freedom of
choice of forum.10 In any case, the immense public interest in these cases, the
considerable length of time that has passed since the crime took place, and the
numerous times these cases have come before this Court probably warrant a waiver
of such procedural lapse.
1. Raffle of the Cases
The prosecution points out that the RTC of Quezon City Executive Judge gravely
abused her discretion when she placed Criminal Cases 01-101102 to 12 under a
separate category which did not restrict their raffle to the city’s special criminal and
family courts in accordance with SC Administrative Order 36-96. Further, the
prosecution points out that she violated Administrative Order 19-98 when Branches
219 and 102 were left out of the raffle. The presiding judges of these two branches,
both heinous crimes courts eligible to receive cases by raffle, had just been
appointed to the CA.
The records of the cases show nothing irregular in the conduct of the raffle of the
subject cases. The raffle maintained a separate list for criminal and civil cases.
Criminal cases cognizable by special criminal courts were separately listed. Criminal
Cases 01-101102 to 12 were given a separate heading, "Re-Raffle," but there was
nothing irregular in this since it merely indicated that the cases were not being
raffled for the first time.
The Executive Judge did not err in leaving out Branches 219 and 102 from raffle
since these branches remained without regularly appointed judges. Although the
pairing judges of these branches had authority to act on incidental, interlocutory,
and urgent matters, this did not mean that such branches should already be
included in the raffle of cases.
Parenthetically, the prosecution was represented during the raffle yet it did not then
object to the manner by which it was conducted. The prosecution raised the
question only when it filed this petition, a clear afterthought.
2. Jurisdiction of Family Courts
The prosecution points out that, although this Court’s October 7, 2003 Resolution
directed a re-raffle of the cases to a heinous crimes court, the prosecution in the
meantime amended the informations to reflect the fact that two of the murder victims
were minors. For this reason, the Executive Judge should have raffled the cases to
a family court pursuant to Section 5 of R.A. 8369.
The Court is not impervious to the provisions of Section 5 of R.A. 8369, that vests in
family courts jurisdiction over violations of R.A. 7610, which in turn covers murder
cases where the victim is a minor. Thus:
Sec. 5. Jurisdiction of Family Courts. – The Family Courts shall have exclusive
original jurisdiction to hear and decide the following cases:
a) Criminal cases where one or more of the accused is below eighteen (18) years of
age but not less than nine (9) years of age, or where one or more of the victims is a
minor at the time of the commission of the offense: Provided, That if the minor is
found guilty, the court shall promulgate sentence and ascertain any civil liability
which the respondent may have incurred. (Emphasis supplied)
Undoubtedly, in vesting in family courts exclusive original jurisdiction over criminal
cases involving minors, the law but seeks to protect their welfare and best interests.
For this reason, when the need for such protection is not compromised, the Court is
able to relax the rule. In several cases,11 for instance, the Court has held that the CA
enjoys concurrent jurisdiction with the family courts in hearing petitions for habeas
corpus involving minors.
Here, the two minor victims, for whose interests the people wanted the murder
cases moved to a family court, are dead. As respondents aptly point out, there is no
living minor in the murder cases that require the special attention and protection of a
family court. In fact, no minor would appear as party in those cases during trial since
the minor victims are represented by their parents who had become the real private
offended parties.
3. Inhibition of Judge Yadao
The prosecution claims that Judge Yadao committed grave abuse of discretion in
failing to inhibit herself from hearing the cases against the respondents.
The rules governing the disqualification of judges are found, first, in Section 1, Rule
137 of the Rules of Court, which provides:
Sec. 1. Disqualification of judges. – No judge or judicial officer shall sit in any case
in which he, or his wife or child, is pecuniarily interested as heir, legatee, creditor or
otherwise, or in which he is related to either party within the sixth degree of
consanguinity or affinity, or to counsel within the fourth degree, computed according
to the rules of the civil law, or in which he has been executor, administrator,
guardian, trustee or counsel, or in which he has presided in any inferior court when
his ruling or decision is the subject of review, without the written consent of all
parties in interest, signed by them and entered upon the record.
A judge may, in the exercise of his sound discretion, disqualify himself from sitting in
a case, for just or valid reasons other than those mentioned above.
and in Rule 3.12, Canon 3 of the Code of Judicial Conduct, which states:
Rule 3.12. – A judge should take no part in a proceeding where the judge’s
impartiality might reasonably be questioned. These cases include among others,
proceedings where:
(a) the judge has personal knowledge of disputed evidentiary facts
concerning the proceeding;
xxxx
(e) the judge knows the judge’s spouse or child has a financial interest, as
heir, legatee, creditor, fiduciary, or otherwise, in the subject matter in
controversy or in a party to the proceeding, or any other interest that could
be substantially affected by the outcome of the proceeding. In every
instance, the judge shall indicate the legal reason for inhibition.
The first paragraph of Section 1, Rule 137 and Rule 3.12, Canon 3 provide for the
compulsory disqualification of a judge while the second paragraph of Section 1,
Rule 137 provides for his voluntary inhibition.
The matter of voluntary inhibition is primarily a matter of conscience and sound
discretion on the part of the judge since he is in a better position to determine
whether a given situation would unfairly affect his attitude towards the parties or
their cases. The mere imputation of bias, partiality, and prejudgment is not enough
ground, absent clear and convincing evidence that can overcome the presumption
that the judge will perform his duties according to law without fear or favor. The
Court will not disqualify a judge based on speculations and surmises or the adverse
nature of the judge’s rulings towards those who seek to inhibit him. 12
Here, the prosecution contends that Judge Yadao should have inhibited herself for
improperly submitting to a public interview on the day following her dismissal of the
criminal cases against the respondents. But the Court finds nothing basically
reprehensible in such interview. Judge Yadao’s dismissal of the multiple murder
cases aroused natural public interest and stirred the media into frenzy for correct
information. Judge Yadao simply accommodated, not sought, the requests for such
an interview to clarify the basis of her order. There is no allegation that she gave out
false information. To be sure, the prosecution never once accused her of making
public disclosures regarding the merits of those cases prior to her order dismissing
such cases.
The prosecution also assails as constituting bias Judge Yadao’s statement that a
very close relative stood to be promoted if she was to issue a warrant of arrest
against the respondents. But this statement merely shows that she cannot be
dissuaded by some relative who is close to her. How can this constitute bias?
Besides, there is no evidence that the close relative she referred to was her spouse
or child which would be a mandatory ground for disqualification.
Further, the prosecution claims that Judge Yadao prejudged its motion for
reconsideration when she said in her comment to the administrative complaint
against her that such motion was merely the prosecution’s stubborn insistence on
the existence of probable cause against the respondents. The comment could of
course not be regarded as a prejudgment of the issue since she had precisely
already issued an order holding that the complainant’s evidence failed to establish
probable cause against the respondents. And there is nothing wrong about
characterizing a motion for reconsideration as a "stubborn" position taken by the
party who filed it. Judge Yadao did not characterize the motion as wholly unjustified
at the time she filed her comment.
4. Dismissal of the Criminal Cases
The prosecution claims that Judge Yadao gravely abused her discretion when she
set the motions for determination of probable cause for hearing, deferred the
issuance of warrants of arrest, and allowed the defense to mark its evidence and
argue its case. The prosecution stresses that under Section 6, Rule 112 of the
Rules of Court Judge Yadao’s duty was to determine probable cause for the
purpose of issuing the arrest warrants solely on the basis of the investigating
prosecutor’s resolution as well as the informations and their supporting documents.
And, if she had some doubts as to the existence of probable cause, the rules
required her to order the investigating prosecutor to present additional evidence to
support the finding of probable cause within five days from notice.
Rather than take limited action, said the prosecution, Judge Yadao dug up and
adopted the Ombudsman’s findings when the latter conducted its preliminary
investigation of the crime of robbery in 1996. Judge Yadao gave weight to the
affidavits submitted in that earlier preliminary investigation when such documents
are proper for presentation during the trial of the cases. The prosecution added that
the affidavits of P/S Insp. Abelardo Ramos and SPO1 Wilmor B. Medes reasonably
explained the prior inconsistent affidavits they submitted before the Ombudsman.
The general rule of course is that the judge is not required, when determining
probable cause for the issuance of warrants of arrests, to conduct a de novo
hearing. The judge only needs to personally review the initial determination of the
prosecutor finding a probable cause to see if it is supported by substantial
evidence.13
But here, the prosecution conceded that their own witnesses tried to explain in their
new affidavits the inconsistent statements that they earlier submitted to the Office of
the Ombudsman. Consequently, it was not unreasonable for Judge Yadao, for the
purpose of determining probable cause based on those affidavits, to hold a hearing
and examine the inconsistent statements and related documents that the witnesses
themselves brought up and were part of the records. Besides, she received no new
evidence from the respondents.14
The public prosecutor submitted the following affidavits and documents along with
the criminal informations to enable Judge Yadao to determine the presence of
probable cause against the respondents:
1. P/Insp. Ysmael S. Yu’s affidavit of March 24, 2001 15 in which he said
that on May 17, 1995 respondent Canson, NCR Command Head, ordered
him to form two teams that would go after suspected Kuratong Baleleng
Gang members who were seen at the Superville Subdivision in
Parañaque City. Yu headed the assault team while Marlon Sapla headed
the perimeter defense. After the police team apprehended eight men
inside the safe house, it turned them over to their investigating unit. The
following day, Yu just learned that the men and three others were killed in
a shoot-out with the police in Commonwealth Avenue in Quezon City.
2. P/S Insp. Abelardo Ramos’ affidavit of March 24, 2001 16 in which he
said that he was part of the perimeter defense during the Superville
operation. After the assault team apprehended eight male suspects, it
brought them to Camp Crame in two vans. Ramos then went to the office
of respondent Zubia, TMC Head, where he saw respondents Lacson,
Acop, Laureles, Villacorte and other police officers.
According to Ramos, Zubia said that the eight suspects were to be
brought to Commonwealth Avenue and killed in a supposed shoot-out and
that this action had been cleared with higher authorities, to which remark
Lacson nodded as a sign of approval. Before Ramos left the meeting,
Lacson supposedly told him, "baka may mabuhay pa diyan." Ramos then
boarded an L-300 van with his men and four male suspects. In the early
morning of May 18, 1995, they executed the plan and gunned down the
suspects. A few minutes later, P/S Insp. Glenn G. Dumlao and his men
arrived and claimed responsibility for the incident.
3. SPO1 Wilmor B. Medes’ affidavit of April 24, 2001 17 in which he
corroborated Ramos’ statements. Medes said that he belonged to the
same team that arrested the eight male suspects. He drove the L-300 van
in going to Commonwealth Avenue where the suspects were killed.
4. Mario C. Enad’s affidavit of August 8, 199518 in which he claimed having
served as TMC civilian agent. At around noon of May 17, 1995, he went to
Superville Subdivision together with respondents Dumlao, Tannagan, and
Nuas. Dumlao told Enad to stay in the car and observe what went on in
the house under surveillance. Later that night, other police officers arrived
and apprehended the men in the house. Enad went in and saw six men
lying on the floor while the others were handcuffed. Enad and his
companions left Sucat in the early morning of May 18, 1995. He fell
asleep along the way but was awaken by gunshots. He saw Dumlao and
other police officers fire their guns at the L-300 van containing the
apprehended suspects.
5. SPO2 Noel P. Seno’s affidavit of May 31, 2001 19 in which he
corroborated what Ramos said. Seno claimed that he was part of the
advance party in Superville Subdivision and was also in Commonwealth
Avenue when the suspected members of the Kuratong Baleleng Gang
were killed.
6. The PNP ABRITG After Operations Report of May 31, 1995 20 which
narrated the events that took place on May 17 and 18, 1995. This report
was submitted by Lacson, Zubia, Acop and Canson.
 7. The PNP Medico-Legal Reports21 which stated that the suspected
members of the Kuratong Baleleng Gang tested negative for gunpowder
nitrates.
The Court agrees with Judge Yadao that the above affidavits and reports, taken
together with the other documents of record, fail to establish probable cause against
the respondents.
First. Evidently, the case against respondents rests on the testimony of Ramos,
corroborated by those of Medes, Enad, and Seno, who supposedly heard the
commanders of the various units plan the killing of the Kuratong Baleleng Gang
members somewhere in Commonwealth Avenue in Quezon City and actually
execute such plan. Yu’s testimony is limited to the capture of the gang members
and goes no further. He did not see them killed.
Second. Respecting the testimonies of Ramos, Medes, Enad, and Seno, the
prosecution’s own evidence—the PNP ABRITG’s After Operations Report of May
31, 1995—shows that these men took no part in the operations against the
Kuratong Baleleng Gang members. The report included a comprehensive list of
police personnel from Task Force Habagat (Lacson), Traffic Management
Command (Zubia), Criminal Investigation Command (Acop), and National Capital
Region Command (Canson) who were involved. The names of Ramos, Medes,
Enad, and Seno were not on that list. Notably, only Yu’s name, among the new set
of witnesses, was on that list. Since an after-battle report usually serves as basis for
commendations and promotions, any omitted name would hardly have gone
unchallenged.
Third. Ramos, whose story appeared to be the most significant evidence against the
respondents, submitted in the course of the preliminary investigation that the Office
of the Ombudsman conducted in a related robbery charge against the police officers
involved a counter-affidavit. He claimed in that counter-affidavit that he was neither
in Superville Subdivision nor Commonwealth Avenue during the Kuratong Baleleng
operations since he was in Bulacan on May 17, 1995 and at his home on May
18.22 Notably, Medes claimed in a joint counter-affidavit that he was on duty at the
TMC headquarters at Camp Crame on May 17 and 18.23
Fourth. The Office of the Ombudsman, looking at the whole picture and giving
credence to Ramos and Medes’ statements, dismissed the robbery case. More, it
excluded Ramos from the group of officers that it charged with the murder of the
suspected members of the Kuratong Baleleng Gang. Under the circumstances, the
Court cannot be less skeptical than Judge Yadao was in doubting the sudden
reversal after six years of testimony of these witnesses.
Of course, Yu may have taken part in the subject operation but, as he narrated, his
role was limited to cornering and arresting the suspected Kuratong Baleleng Gang
members at their safe house in Superville Subdivision. After his team turned the
suspects over to an investigating unit, he no longer knew what happened to them.
Fifth. True, the PNP Medico-Legal Reports showed that the Kuratong Baleleng
Gang members tested negative for gunpowder nitrates. But this finding cannot have
any legal significance for the purpose of the preliminary investigation of the murder
cases against the respondents absent sufficient proof that they probably took part in
gunning those gang members down.
The prosecution points out that, rather than dismiss the criminal action outright,
Judge Yadao should have ordered the panel of prosecutors to present additional
evidence pursuant to Section 6, Rule 112 of the Rules of Court which provides:
Sec. 6. When warrant of arrest may issue. – (a) By the Regional Trial Court. –
Within ten (10) days from the filing of the complaint or information, the judge shall
personally evaluate the resolution of the prosecutor and its supporting evidence. He
may immediately dismiss the case if the evidence on record clearly fails to establish
probable cause. If he finds probable cause, he shall issue a warrant of arrest, or a
commitment order if the accused has already been arrested pursuant to a warrant
issued by the judge who conducted the preliminary investigation or when the
complaint or information was filed pursuant to section 7 of this Rule. In case of
doubt on the existence of probable cause, the judge may order the prosecutor to
present additional evidence within five (5) days from notice and the issue must be
resolved by the court within thirty (30) days from the filing of the complaint of
information.
Section 6, Rule 112 of the Rules of Court gives the trial court three options upon the
filing of the criminal information: (1) dismiss the case if the evidence on record
clearly failed to establish probable cause; (2) issue a warrant of arrest if it finds
probable cause; and (3) order the prosecutor to present additional evidence within
five days from notice in case of doubt as to the existence of probable cause. 24
But the option to order the prosecutor to present additional evidence is not
mandatory. The court’s first option under the above is for it to "immediately dismiss
the case if the evidence on record clearly fails to establish probable cause." That is
the situation here: the evidence on record clearly fails to establish probable cause
against the respondents.
It is only "in case of doubt on the existence of probable cause" that the judge may
order the prosecutor to present additional evidence within five days from notice. But
that is not the case here. Discounting the affidavits of Ramos, Medes, Enad, and
Seno, nothing is left in the record that presents some doubtful probability that
respondents committed the crime charged. PNP Director Leandro Mendoza sought
the revival of the cases in 2001, six years after it happened. It would have been
ridiculous to entertain the belief that the police could produce new witnesses in the
five days required of the prosecution by the rules.
In the absence of probable cause to indict respondents for the crime of multiple
murder, they should be insulated from the tribulations, expenses and anxiety of a
public trial.25
5. Policies Adopted for Conduct of Court Hearing
The prosecution claims that Judge Yadao arbitrarily recognized only one public
prosecutor and one private prosecutor for all the offended parties but allowed each
of the counsels representing the individual respondents to be heard during the
proceedings before it. She also unjustifiably prohibited the prosecution’s use of tape
recorders.
But Section 5, Rule 135 of the Rules of Court gives the trial court ample inherent
and administrative powers to effectively control the conduct of its proceedings.
Thus:
Sec. 5. Inherent powers of court. — Every court shall have power:
xxxx
(b) To enforce order in proceedings before it, or before a person or persons
empowered to conduct a judicial investigation under its authority;
xxxx
(d) To control, in furtherance of justice, the conduct of its ministerial officers, and of
all other persons in any manner connected with a case before it, in every manner
appertaining thereto;
xxxx
(g) To amend and control its process and orders so as to make them conformable to
law and justice;
xxxx
There is nothing arbitrary about Judge Yadao’s policy of allowing only one public
prosecutor and one private prosecutor to address the court during the hearing for
determination of probable cause but permitting counsels representing the individual
accused to do so. A criminal action is prosecuted under the direction and control of
the public prosecutor.26 The burden of establishing probable cause against all the
accused is upon him, not upon the private prosecutors whose interests lie solely in
their clients’ damages claim. Besides, the public and the private prosecutors take a
common position on the issue of probable cause. On the other hand, each of the
accused is entitled to adopt defenses that are personal to him.
As for the prohibition against the prosecution’s private recording of the proceedings,
courts usually disallows such recordings because they create an unnecessary
distraction and if allowed, could prompt every lawyer, party, witness, or reporter
having some interest in the proceeding to insist on being given the same privilege.
Since the prosecution makes no claim that the official recording of the proceedings
by the court’s stenographer has been insufficient, the Court finds no grave abuse of
discretion in Judge Yadao’s policy against such extraneous recordings.
WHEREFORE, the Court DISMISSES this petition and AFFIRMS the following
assailed Orders of the Regional Trial Court of Quezon City, Branch 81 in Criminal
Cases 01-101102 to 12:
1. the Order dated November 12, 2003 which denied the prayer for re-
raffle, granted the motions for determination of probable cause, and
dismissed the criminal cases;
 2. the Order dated January 16, 2004 which granted the motion of the
respondents for the immediate resolution of the three pending incidents
before the court;

3. the Order dated January 21, 2004 which denied the motion to recuse
and the urgent supplemental motion for compulsory disqualification;

4. the Order dated January 22, 2004 which denied the motion for
reconsideration of the Order dated November 12, 2003; and

5. the Order dated January 26, 2004 which denied the motion for
reconsideration of the January 16, 2004 Order.

SO ORDERED.

ROBERTO A. ABAD
Associate Justice

WE CONCUR:
 Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION
Adm. Case No. 7549             August 29, 2008
AURELIO M. SIERRA, complainant, 
vs.
JHOSEP Y. LOPEZ, City Prosecutor of Manila, EUFROCINO SULLA, 1 st Assistant
City Prosecutor (ACP), ACP ALEXANDER T. YAP, ACP MARLO CAMPANILLA,
and ACP ARMANDO VELASCO, respondents.
DECISION
NACHURA, J.:
The instant controversy arose from a complaint for dereliction of duty and gross
ignorance of the law by Aurelio M. Sierra against City Prosecutor of Manila Jhosep
Y. Lopez, 1st Assistant City Prosecutor (ACP) Eufrocino Sulla, Assistant City
Prosecutors Alexander Yap, Marlo Campanilla and Armando Velasco.
The facts of the case are as follows:
On July 27, 2006 and August 1, 2006, complainant Aurelio M. Sierra filed several
cases before the Office of the City Prosecutor of Manila for Misrepresentation
through Deceit and Syndicated Large Scale Fraud in Land Titling with Conspiracy,
Land Grabbing, Falsification of Public Document and Economic Sabotage.
These cases were first assigned to ACP Alexander T. Yap. The principal
respondents therein, namely: Alfredo C. Ramos, Presentacion Ramos, George S.K.
Ty, Atty. Emmanuel Leonardo, and a certain Mr. Cayaban, did not appear during the
scheduled hearing. However, Alfredo and Presentacion Ramos appeared in the
morning of that day ahead of the complainant in which they submitted their
respective counter-affidavits, subscribed and sworn to before ACP Yap. The
respondents asked that they be allowed to submit their counter-affidavits ahead of
the scheduled hearing because they had an urgent matter to attend to in the
afternoon. In the case of George S.K. Ty and Mr. Cayaban, their respective counter-
affidavits were submitted by their lawyers during the scheduled hearing in the
afternoon, already subscribed and sworn to before a Pasig Prosecutor. Atty.
Leonardo did not submit any counter-affidavit.
Because of ACP Yap’s failure to require the presence of respondents in said cases
simultaneously with the complainant, Mr. Sierra asked for the prosecutor’s inhibition.
The cases were then re-raffled to the respondent ACP Marlo Campanilla who
likewise did not require the presence of the respondents in the preliminary
investigation. Because of this, he too was asked to inhibit from the cases by
complainant.
The cases were then re-raffled to ACP Armando Velasco who also handled the
cases in the same manner as the two other prosecutors before him. City Prosecutor
Jhosep Y. Lopez and 1st ACP Eufrocino A. Sulla affirmed the correctness of the
manner in which their investigating prosecutors handled the cases.
On April 26, 2007, Sierra filed a complaint with the Supreme Court for dereliction of
duty and gross ignorance of the law against City Prosecutor Lopez, 1 st ACP Sulla,
ACP Yap, ACP Campanilla, and ACP Velasco.
In his complaint, Sierra raises the following questions of law: (1) whether the parties
must appear together before the investigating prosecutor during preliminary
investigation; (2) whether the counter-affidavits of the respondents should be sworn
to only before the investigating prosecutor; and (3) whether the investigating
prosecutor erred in denying the request of the complainant for clarificatory
questioning.
The Supreme Court Third Division then issued a Resolution dated July 25, 2008
requiring respondents to comment on the complaint.
In compliance with the Honorable Court’s order, respondents filed their Comment
dated March 7, 2008 stating that they handled the cases properly and in accordance
with what was provided by law. They also argued that they had not committed any
dereliction of duty and gross ignorance of the law.
We find no merit in the complaint.
Rule 112, particularly Section 3 of the Rules of Court, lays down the basic
procedure in preliminary investigation, as follows:
Sec. 3. Procedure. – The preliminary investigation shall be conducted in
the following manner:
(a) The complaint shall state the address of the respondent and shall be
accompanied by the affidavits of the complainant and his witnesses, as
well as other supporting documents to establish probable cause. They
shall be in such number of copies as there are respondents, plus two (2)
copies for the official file. The affidavits shall be subscribed and sworn to
before any prosecutor or government official authorized to administer
oath, or, in their absence or unavailability, before a notary public, each of
whom must certify that he personally examined the affiants and that he is
satisfied that they voluntarily executed and understood their affidavits.
(b) Within ten (10) days after the filing of the complaint, the investigating
officer shall either dismiss it if he finds no ground to continue with the
investigation, or issue a subpoena to the respondent attaching to it a copy
of the complaint and its supporting affidavits and documents.
The respondent shall have the right to examine the evidence submitted by
the complainant which he may not have been furnished and to copy them
at his expense. If the evidence is voluminous, the complainant may be
required to specify those which he intends to present against the
respondent, and these shall be made available for examination or copying
by the respondent at his expense.
Objects as evidence need not be furnished a party but shall be made
available for examination, copying, or photographing at the expense of the
requesting party.
(c) Within ten (10) days from receipt of the subpoena with the complaint
and supporting affidavits and documents, the respondent shall submit his
counter-affidavit and that of his witnesses and other supporting
documents relied upon for his defense. The counter-affidavits, shall be
subscribed and sworn to and certified as provided in paragraph (a) of this
section, with copies thereof furnished by him to the complainant. The
respondent shall not be allowed to file a motion to dismiss in lieu of a
counter-affidavit.
(d) If the respondent cannot be subpoenaed, or if subpoenaed, does not
submit counter-affidavits within the ten (10) day period, the investigating
officer shall resolve the complaint based on the evidence presented by the
complainant.
(e) The investigating officer may set a hearing if there are facts and issues
to be clarified from a party or a witness. The parties can be present at the
hearing but without the right to examine or cross-examine. They may,
however, submit to the investigating officer questions which may be asked
to the party or witness concerned.
The hearing shall be held within ten (10) days from submission of the
counter-affidavits and other documents or from the expiration of the period
for their submission. It shall be terminated within five (5) days.
(f) Within ten (10) days after the investigation, the investigating officer
shall determine whether or not there is sufficient ground to hold the
respondent for trial.
This provision of the Rules does not require a confrontation between the parties.
Preliminary investigation is ordinarily conducted through submission of affidavits and
supporting documents, through the exchange of pleadings.
In Rodis, Sr. v. Sandiganbayan1 we ruled that -
(the New Rules on Criminal Procedure) do not require as a condition sine
qua non to the validity of the proceedings ( in the preliminary investigation)
the presence of the accused for as long as efforts to reach him were
made, and an opportunity to controvert evidence of the complainant is
accorded him. The obvious purpose of the rule is to block attempts of
unscrupulous respondents to thwart the prosecution of offenses by hiding
themselves or by employing dilatory tactics.
Since confrontation between the parties is not imperative, it follows that it is not
necessary that the counter-affidavit of respondent be sworn to before the
investigating prosecutor himself. It can be sworn to before another prosecutor. In
fact, this is specifically provided in paragraph (c) of Sec. 3, which states that the
"counter-affidavit shall be subscribed and sworn to and certified as provided in
paragraph (a) of this section x x x"; and paragraph (a), provides:

the affidavits shall be subscribed and sworn to before any prosecutor or

government official or in their absence or unavailability, before a notary
public x x x.

Lastly, we hold that the investigating prosecutors did not abuse their discretion when
they denied the request of the complainant for the conduct of clarificatory
questioning. Under paragraph (e) of Section 3 above, the conduct of clarificatory
questioning is discretionary upon the prosecutor. Indeed, we already held in Webb
v. De Leon2 that the decision to call witnesses for clarificatory questions is
addressed to the sound discretion of the investigator, and the investigator alone.

WHEREFORE, premises considered, the complaint is DENIED for lack of merit.

SO ORDERED.

Ynares-Santiago, Chairperson, Austria-Martinez, Chico-Nazario, Reyes, JJ.,  concur.

 Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 168380             February 8, 2007
MANUEL V. BAVIERA, Petitioner,  The common factual antecedents of these cases as shown by the records are:
vs.
ESPERANZA PAGLINAWAN, in her capacity as Department of Justice State
Prosecutor; LEAH C. TANODRA-ARMAMENTO, In her capacity as Assistant Chief
State Prosecutor and Chairwoman of Task Force on Business Scam; JOVENCITO
R. ZUNO, in his capacity as Department of Justice Chief State Prosecutor;
STANDARD CHARTERED BANK, PAUL SIMON MORRIS, AJAY KANWAL,
SRIDHAR RAMAN, MARIVEL GONZALES, CHONA REYES, MARIA ELLEN
VICTOR, and ZENAIDA IGLESIAS, Respondents.
x-----------------------------x
G.R. No. 170602            February 8, 2007
MANUEL V. BAVIERA, Petitioner,  establishment of such accounts had reduced the indebtedness of
vs.
STANDARD CHARTERED BANK, BRYAN K. SANDERSON, THE RIGHT
HONORABLE LORD STEWARTBY, EVAN MERVYN DAVIES, MICHAEL
BERNARD DENOMA, CHRISTOPHER AVEDIS KELJIK, RICHARD HENRY
MEDDINGS, KAI NARGOLWALA, PETER ALEXANDER SANDS, RONNIE CHI
CHUNG CHAN, SIR CK CHOW, BARRY CLARE, HO KWON PING, RUDOLPH
HAROLD PETER ARKHAM, DAVID GEORGE MOIR, HIGH EDWARD NORTON,
SIR RALPH HARRY ROBINS, ANTHONY WILLIAM PAUL STENHAM (Standard
Chartered Bank Chairman, Deputy Chairman, and Members of the Board),
SHERAZAM MAZARI (Group Regional Head for Consumer Banking), PAUL SIMON
MORRIS, AJAY KANWAL, SRIDHAR RAMAN, MARIVEL GONZALES, CHONA
REYES, ELLEN VICTOR, RAMONA H. BERNAD, DOMINGO CARBONELL, JR.,
and ZENAIDA IGLESIAS (Standard Chartered Bank-Philippines Branch
Heads/Officers), Respondents.
DECISION
SANDOVAL-GUTIERREZ, J.:
Before us are two consolidated Petitions for Review on Certiorari assailing the
Decisions of the Court of Appeals in CA-G.R. SP No. 87328 1 and in CA-G.R. SP No.
85078.2
Manuel Baviera, petitioner in these cases, was the former head of the HR Service
Delivery and Industrial Relations of Standard Chartered Bank-Philippines (SCB),
one of herein respondents. SCB is a foreign banking corporation duly licensed to
engage in banking, trust, and other fiduciary business in the Philippines. Pursuant to
Resolution No. 1142 dated December 3, 1992 of the Monetary Board of the Bangko
Sentral ng Pilipinas (BSP), the conduct of SCB’s business in this jurisdiction is
subject to the following conditions:
1. At the end of a one-year period from the date the SCB starts its trust
functions, at least 25% of its trust accounts must be for the account of
non-residents of the Philippines and that actual foreign exchange had
been remitted into the Philippines to fund such accounts or that the
residents (individuals or corporations or government agencies) of the
Philippines to non-residents. At the end of the second year, the above
ratio shall be 50%, which ratio must be observed continuously thereafter;
2. The trust operations of SCB shall be subject to all existing laws, rules
and regulations applicable to trust services, particularly the creation of a
Trust Committee; and
3. The bank shall inform the appropriate supervising and examining
department of the BSP at the start of its operations.
Apparently, SCB did not comply with the above conditions. Instead, as early as
1996, it acted as a stock broker, soliciting from local residents foreign securities
called "GLOBAL THIRD PARTY MUTUAL FUNDS" (GTPMF), denominated in US
dollars. These securities were not registered with the Securities and Exchange
Commission (SEC). These were then remitted outwardly to SCB-Hong Kong and
SCB-Singapore.
SCB’s counsel, Romulo Mabanta Buenaventura Sayoc and Delos Angeles Law
Office, advised the bank to proceed with the selling of the foreign securities although
unregistered with the SEC, under the guise of a "custodianship agreement;" and
should it be questioned, it shall invoke Section 723 of the General Banking Act
(Republic Act No.337).4 In sum, SCB was able to sell GTPMF securities worth
around ₱6 billion to some 645 investors.
However, SCB’s operations did not remain unchallenged. On July 18, 1997, the
Investment Capital Association of the Philippines (ICAP) filed with the SEC a
complaint alleging that SCB violated the Revised Securities Act, 5particularly the
provision prohibiting the selling of securities without prior registration with the SEC;
and that its actions are potentially damaging to the local mutual fund industry.
In its answer, SCB denied offering and selling securities, contending that it has been
performing a "purely informational function" without solicitations for any of its
investment outlets abroad; that it has a trust license and the services it renders
under the "Custodianship Agreement" for offshore investments are authorized by
Section 726 of the General Banking Act; that its clients were the ones who took the
initiative to invest in securities; and it has been acting merely as an agent or
"passive order taker" for them.
On September 2, 1997, the SEC issued a Cease and Desist Order against SCB,
holding that its services violated Sections 4(a)7 and 198 of the Revised Securities
Act.
Meantime, the SEC indorsed ICAP’s complaint and its supporting documents to the
BSP.
On October 31, 1997, the SEC informed the Secretary of Finance that it withdrew
GTPMF securities from the market and that it will not sell the same without the
necessary clearances from the regulatory authorities.
Meanwhile, on August 17, 1998, the BSP directed SCB not to include investments in
global mutual funds issued abroad in its trust investments portfolio without prior
registration with the SEC.
On August 31, 1998, SCB sent a letter to the BSP confirming that it will withdraw
third-party fund products which could be directly purchased by investors.
However, notwithstanding its commitment and the BSP directive, SCB continued to
offer and sell GTPMF securities in this country. This prompted petitioner to enter
into an Investment Trust Agreement with SCB wherein he purchased US$8,000.00
worth of securities upon the bank’s promise of 40% return on his investment and a
guarantee that his money is safe. After six (6) months, however, petitioner learned
that the value of his investment went down to US$7,000.00. He tried to withdraw his
investment but was persuaded by Antonette de los Reyes of SCB to hold on to it for
another six (6) months in view of the possibility that the market would pick up.
Meanwhile, on November 27, 2000, the BSP found that SCB failed to comply with
its directive of August 17, 1998. Consequently, it was fined in the amount of
₱30,000.00.
The trend in the securities market, however, was bearish and the worth of
petitioner’s investment went down further to only US$3,000.00.
On October 26, 2001, petitioner learned from Marivel Gonzales, head of the SCB
Legal and Compliance Department, that the latter had been prohibited by the BSP
to sell GPTMF securities. Petitioner then filed with the BSP a letter-complaint
demanding compensation for his lost investment. But SCB denied his demand on
the ground that his investment is "regular."
On July 15, 2003, petitioner filed with the Department of Justice (DOJ), represented
herein by its prosecutors, public respondents, a complaint charging the above-
named officers and members of the SCB Board of Directors and other SCB officials,
private respondents, with syndicated estafa, docketed as I.S. No. 2003-1059.
For their part, private respondents filed the following as counter-charges against
petitioner: (1) blackmail and extortion, docketed as I.S. No. 2003-1059-A; and
blackmail and perjury, docketed as I.S. No. 2003-1278.
On September 29, 2003, petitioner also filed a complaint for perjury against private
respondents Paul Simon Morris and Marivel Gonzales, docketed as I.S. No. 2003-
1278-A.
On December 4, 2003, the SEC issued a Cease and Desist Order against SCB
restraining it from further offering, soliciting, or otherwise selling its securities to the
public until these have been registered with the SEC.
Subsequently, the SEC and SCB reached an amicable settlement. 1awphi1.net
On January 20, 2004, the SEC lifted its Cease and Desist Order and approved the
₱7 million settlement offered by SCB. Thereupon, SCB made a commitment not to
offer or sell securities without prior compliance with the requirements of the SEC.
On February 7, 2004, petitioner filed with the DOJ a complaint for violation of
Section 8.19 of the Securities Regulation Code against private respondents,
docketed as I.S. No. 2004-229.
On February 23, 2004, the DOJ rendered its Joint Resolution 10 dismissing
petitioner’s complaint for syndicated estafa in I.S. No. 2003-1059; private
respondents’ complaint for blackmail and extortion in I.S. No. 2003-1059-A; private
respondents’ complaint for blackmail and perjury in I.S. No. 2003-1278; and
petitioner’s complaint for perjury against private respondents Morris and Gonzales in
I.S. No. 2003-1278-A.
Meanwhile, in a Resolution11 dated April 4, 2004, the DOJ dismissed petitioner’s
complaint in I.S. No. 2004-229 (violation of Securities Regulation Code), holding that
it should have been filed with the SEC.
Petitioner’s motions to dismiss his complaints were denied by the DOJ. Thus, he
filed with the Court of Appeals a petition for certiorari, docketed as CA-G.R. SP No.
85078. He alleged that the DOJ acted with grave abuse of discretion amounting to
lack or excess of jurisdiction in dismissing his complaint for  syndicated estafa.
He also filed with the Court of Appeals a separate petition for certiorari assailing the
DOJ Resolution dismissing I.S. No. 2004-229 for violation of the Securities
Regulation Code. This petition was docketed as CA-G.R. SP No. 87328. Petitioner
claimed that the DOJ acted with grave abuse of discretion tantamount to lack or
excess of jurisdiction in holding that the complaint should have been filed with the
SEC.
On January 7, 2005, the Court of Appeals promulgated its Decision dismissing the
petition.1avvphi1.net It sustained the ruling of the DOJ that the case should have
been filed initially with the SEC.
Petitioner filed a motion for reconsideration but it was denied in a Resolution dated
May 27, 2005.
Meanwhile, on February 21, 2005, the Court of Appeals rendered its Decision in CA-
G.R. SP No. 85078 (involving petitioner’s charges and respondents’ counter
charges) dismissing the petition on the ground that the purpose of a petition for
certiorari is not to evaluate and weigh the parties’ evidence but to determine
whether the assailed Resolution of the DOJ was issued with grave abuse of
discretion tantamount to lack of jurisdiction. Again, petitioner moved for a
reconsideration but it was denied in a Resolution of November 22, 2005.
Hence, the instant petitions for review on certiorari.
For our resolution is the fundamental issue of whether the Court of Appeals erred in
concluding that the DOJ did not commit grave abuse of discretion in dismissing
petitioner’s complaint in I.S. 2004-229 for violation of Securities Regulation Code
and his complaint in I.S. No. 2003-1059 for syndicated estafa.
G.R. No 168380
Re: I.S. No. 2004-229
For violation of the Securities Regulation Code
Section 53.1 of the Securities Regulation Code provides:
SEC. 53. Investigations, Injunctions and Prosecution of Offenses .–
53. 1. The Commission may, in its discretion, make such investigation as it deems
necessary to determine whether any person has violated or is about to violate any
provision of this Code, any rule, regulation or order thereunder, or any rule of an
Exchange, registered securities association, clearing agency, other self-regulatory
organization, and may require or permit any person to file with it a statement in
writing, under oath or otherwise, as the Commission shall determine, as to all facts
and circumstances concerning the matter to be investigated. The Commission may
publish information concerning any such violations and to investigate any fact,
condition, practice or matter which it may deem necessary or proper to aid in the
enforcement of the provisions of this Code, in the prescribing of rules and
regulations thereunder, or in securing information to serve as a basis for
recommending further legislation concerning the matters to which this Code
relates: Provided, however, That any person requested or subpoenaed to produce
documents or testify in any investigation shall simultaneously be notified in writing of
the purpose of such investigation: Provided, further, That all criminal complaints for
violations of this Code and the implementing rules and regulations enforced or
administered by the Commission shall be referred to the Department of Justice for
preliminary investigation and prosecution before the proper court: Provided,
furthermore,  That in instances where the law allows independent civil or criminal
proceedings of violations arising from the act, the Commission shall take
appropriate action to implement the same: Provided, finally; That the investigation,
prosecution, and trial of such cases shall be given priority.
The Court of Appeals held that under the above provision, a criminal complaint for
violation of any law or rule administered by the SEC must first be filed with the latter.
If the Commission finds that there is probable cause, then it should refer the case to
the DOJ. Since petitioner failed to comply with the foregoing procedural
requirement, the DOJ did not gravely abuse its discretion in dismissing his complaint
in I.S. No. 2004-229.
A criminal charge for violation of the Securities Regulation Code is a specialized
dispute. Hence, it must first be referred to an administrative agency of special
competence, i.e., the SEC. Under the doctrine of primary jurisdiction, courts will not
determine a controversy involving a question within the jurisdiction of the
administrative tribunal, where the question demands the exercise of sound
administrative discretion requiring the specialized knowledge and expertise of said
administrative tribunal to determine technical and intricate matters of fact. 12 The
Securities Regulation Code is a special law. Its enforcement is particularly vested in
the SEC. Hence, all complaints for any violation of the Code and its implementing
rules and regulations should be filed with the SEC. Where the complaint is criminal
in nature, the SEC shall indorse the complaint to the DOJ for preliminary
investigation and prosecution as provided in Section 53.1 earlier quoted.
We thus agree with the Court of Appeals that petitioner committed a fatal procedural
lapse when he filed his criminal complaint directly with the DOJ. Verily, no grave
abuse of discretion can be ascribed to the DOJ in dismissing petitioner’s complaint.
G.R. No. 170602
Re: I.S. No. 2003-1059 for
Syndicated Estafa
Section 5, Rule 110 of the 2000 Rules of Criminal Procedure, as amended, provides
that all criminal actions, commenced by either a complaint or an information, shall
be prosecuted under the direction and control of a public prosecutor. This mandate
is founded on the theory that a crime is a breach of the security and peace of the
people at large, an outrage against the very sovereignty of the State. It follows that a
representative of the State shall direct and control the prosecution of the
offense.13 This representative of the State is the public prosecutor, whom this Court
described in the old case of Suarez v. Platon,14 as:
[T]he representative not of an ordinary party to a controversy, but of a sovereignty
whose obligation to govern impartially is as compelling as its obligation to govern at
all; and whose interest, therefore, in a criminal prosecution is not that it shall win a
case, but that justice shall be done. As such, he is in a peculiar and very definite
sense a servant of the law, the twofold aim of which is that guilt shall not escape or
innocence suffers.
Concomitant with his authority and power to control the prosecution of criminal
offenses, the public prosecutor is vested with the discretionary power to determine
whether a prima facie case exists or not.15 This is done through a preliminary
investigation designed to secure the respondent from hasty, malicious and
oppressive prosecution. A preliminary investigation is essentially an inquiry to
determine whether (a) a crime has been committed; and (b) whether there is
probable cause that the accused is guilty thereof. 16 In Pontejos v. Office of the
Ombudsman,17probable cause is defined as such facts and circumstances that
would engender a well-founded belief that a crime has been committed and that the
respondent is probably guilty thereof and should be held for trial. It is the public
prosecutor who determines during the preliminary investigation whether probable
cause exists. Thus, the decision whether or not to dismiss the criminal complaint
against the accused depends on the sound discretion of the prosecutor.
Given this latitude and authority granted by law to the investigating prosecutor, the
rule in this jurisdiction is that courts will not interfere with the conduct of preliminary
investigations or reinvestigations or in the determination of what constitutes
sufficient probable cause for the filing of the corresponding information against an
offender.18 Courts are not empowered to substitute their own judgment for that of the
executive branch.19 Differently stated, as the matter of whether to prosecute or not is
purely discretionary on his part, courts cannot compel a public prosecutor to file the
corresponding information, upon a complaint, where he finds the evidence before
him insufficient to warrant the filing of an action in court. In sum, the prosecutor’s
findings on the existence of probable cause are not subject to review by the courts,
unless these are patently shown to have been made with grave abuse of
discretion.20
Grave abuse of discretion is such capricious and whimsical exercise of judgment on
the part of the public officer concerned which is equivalent to an excess or lack of
jurisdiction. The abuse of discretion must be as patent and gross as to amount to an
evasion of a positive duty or a virtual refusal to perform a duty enjoined by law, or to
act at all in contemplation of law, as where the power is exercised in an arbitrary
and despotic manner by reason of passion or hostility. 21
Hence, we hold that the Court of Appeals was correct in dismissing the petition for
review against private respondents and in concluding that the DOJ did not act with
grave abuse of discretion tantamount to lack or excess of jurisdiction.
On petitioner’s complaint for violation of the Securities Regulation Code, suffice it to
state that, as aptly declared by the Court of Appeals, he should have filed it with the
SEC, not the DOJ. Again, there is no indication here that in dismissing petitioner’s
complaint, the DOJ acted capriciously or arbitrarily.
WHEREFORE, we DENY the petitions and AFFIRM the assailed Decisions of the
Court of Appeals in CA-G.R. SP No. 87328 and in CA-G.R. SP No. 85078.
Costs against petitioner.
SO ORDERED.

In determining whether the DOJ committed grave abuse of discretion, it is expedient ANGELINA SANDOVAL-GUTIERREZ
to know if the findings of factof herein public prosecutors were reached in an Associate Justice
arbitrary or despotic manner.
WE CONCUR:
The Court of Appeals held that petitioner’s evidence is insufficient to establish
probable cause for syndicated estafa. There is no showing from the record that
private respondents herein did induce petitioner by false representations to invest in
the GTPMF securities. Nor did they act as a syndicate to misappropriate his money
for their own benefit. Rather, they invested it in accordance with his written
instructions. That he lost his investment is not their fault since it was highly
speculative.

Records show that public respondents examined petitioner’s evidence with care,
well aware of their duty to prevent material damage to his constitutional right to
liberty and fair play. In Suarez  previously cited, this Court made it clear that a public
prosecutor’s duty is two-fold. On one hand, he is bound by his oath of office to
prosecute persons where the complainant’s evidence is ample and sufficient to
show prima facie guilt of a crime. Yet, on the other hand, he is likewise duty-bound
to protect innocent persons from groundless, false, or malicious prosecution. 22
 SECOND DIVISION The pivotal issue in this case is whether or not the Court of Appeals, in
  its Decision[1] dated 20 June 2000 in CA-G.R. SP No. 49666, is correct when
it dismissed the petition for certiorari filed by petitioners Teodoro C. Borlongan, Jr.,
TEODORO C. BORLONGAN, JR.,CORAZON M.   G.R. No. 143591
BEJASA, ARTURO E.   Corazon M. Bejasa, Arturo E. Manuel, Jr., Benjamin de Leon, P. Siervo H. Dizon,
MANUEL, JR., ERIC L. LEE, P.   Delfin C. Gonzales, Jr., Eric L. Lee and Ben Yu Lim, Jr., and ruled that the Municipal
SIERVO H. DIZON, BENJAMIN DE Present:
LEON, DELFIN C. GONZALES, JR., Trial Court in Cities (MTCC), Bago City, did not gravely abuse its discretion in
and BEN YU LIM, JR., Petitioners,   denying the motion for reinvestigation and recall of the warrants of arrest in Criminal
  BRION, J.,
Acting Case Nos. 6683, 6684, 6685, and 6686.
  Chairperson,  
DEL CASTILLO,
- versus - VILLARAMA, The factual antecedents of the case are as follows:
JR.,*  
  PEREZ, and
MENDOZA, JJ.** Respondent Atty. Magdaleno M. Pea (Atty. Pea) instituted a civil case for recovery
    of agents compensation and expenses, damages, and attorneys fees [2] against
MAGDALENO M. PEA and HON.   Urban Bank and herein petitioners, before the Regional Trial Court (RTC) of Negros
MANUEL Q. LIMSIACO, JR., as Judge Designate of the Occidental, BagoCity. The case was raffled to Branch 62 and was docketed as Civil
Municipal Trial Court in Cities, Bago City,  
Respondents. Case No. 754. Atty. Pea anchored his claim for compensation on the Contract of
  Agency[3] allegedly entered into with the petitioners, wherein the former undertook to
Promulgated: perform such acts necessary to prevent any intruder and squatter from unlawfully
occupying Urban Banks property located along Roxas
May 5, 2010 [4]
Boulevard, Pasay City. Petitioners filed a Motion to Dismiss  arguing that they
x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x never appointed the respondent as agent or counsel. Attached to the motion were
  the following documents: 1) a Letter[5] dated 19 December 1994 signed by Herman
Ponce and Julie Abad on behalf of Isabela Sugar Company, Inc. (ISCI), the original
DECISION
owner of the subject property; 2) an unsigned Letter [6] dated 7 December 1994
  addressed to Corazon Bejasa from Marilyn G. Ong; 3) a Letter [7] dated 9 December
PEREZ, J.: 1994 addressed to Teodoro Borlongan, Jr. and signed by Marilyn G. Ong; and 4) a
Memorandum[8] dated 20 November 1994 from Enrique Montilla III. Said documents
 
were presented in an attempt to show that the respondent was appointed as agent
by ISCI and not by Urban Bank or by the petitioners.
 
In view of the introduction of the above-mentioned documents, Atty. Pea filed his
Complaint-Affidavit[9] with the Office of the City Prosecutor, Bago City.[10] He claimed
that said documents were falsified because the alleged signatories did not actually
affix their signatures, and the signatories were neither stockholders nor officers and
[11]
employees of ISCI.  Worse, petitioners introduced said documents as evidence
before the RTC knowing that they were falsified.
 
[12]
In a Resolution  dated 24 September 1998, the City Prosecutor found probable
cause for the indictment of petitioners for four (4) counts of the crime of Introducing
Falsified Documents, penalized by the second paragraph of Article 172 of the
Revised Penal Code. The City Prosecutor concluded that the documents were
falsified because the alleged signatories untruthfully stated that ISCI was the
principal of the respondent; that petitioners knew that the documents were falsified
considering that the signatories were mere dummies; and that the documents
formed part of the record of Civil Case No. 754 where they were used by petitioners
as evidence in support of their motion to dismiss, and then adopted in their answer
[13] [14]
and in their Pre-Trial Brief.  Subsequently, the corresponding Informations  were
filed with the MTCC, Bago City. The cases were docketed as Criminal Case Nos.
6683, 6684, 6685, and 6686. Thereafter, Judge Primitivo Blanca issued the
[15]
warrants  for the arrest of the petitioners.
On 1 October 1998, petitioners filed an Omnibus Motion to Quash, Recall Warrants
of Arrest and/or For Reinvestigation. [16]Petitioners insisted that they were denied due
process because of the non-observance of the proper procedure on preliminary
investigation prescribed in the Rules of Court. Specifically, they claimed that they
were not afforded the right to submit their counter-affidavit. Then they argued that
since no such counter-affidavit and supporting documents were submitted by the
petitioners, the trial judge merely relied on the complaint-affidavit and attachments
of the respondent in issuing the warrants of arrest, also in contravention with
the Rules of Court. Petitioners further prayed that the information be quashed for
lack of probable cause. Moreover, one of the accused, i.e., Ben Lim, Jr., is not even
a director of Urban Bank, contrary to what complainant stated. Lastly, petitioners
posited that the criminal cases should have been suspended on the ground that the
issue being threshed out in the civil case is a prejudicial question.
In an Order[17] dated 13 November 1998, the MTCC denied the omnibus
motion primarily on the ground that preliminary investigation was not available in the
instant case which fell within the jurisdiction of the first-level court. The court,
likewise, upheld the validity of the warrant of arrest, saying that it was issued in
accordance with the Rules of Court. Besides, the court added, petitioners could no
longer question the validity of the warrant since they already posted bail. The court
also believed that the issue involved in the civil case was not a prejudicial question,
and, thus, denied the prayer for suspension of the criminal proceedings. Lastly, the
court was convinced that the Informations contained all the facts necessary to
constitute an offense.
 
Petitioners immediately instituted a special civil action for Certiorari and Prohibition
with Prayer for Writ of Preliminary Injunction and Temporary Restraining Order
(TRO) before the Court of Appeals, ascribing grave abuse of discretion amounting
to lack or excess of jurisdiction on the part of the MTCC in issuing and not recalling
the warrants of arrest, reiterating the arguments in their omnibus motion. [18] They,
likewise, questioned the courts conclusion that by posting bail, petitioners already
waived their right to assail the validity of the warrants of arrest.
 
On 20 June 2000, the Court of Appeals dismissed the petition. [19] Thus, petitioners
filed the instant petition for review on certiorariunder Rule 45 of the Rules of Court,
raising the following issues:
 
A.
Where the offense charged in a criminal complaint is not
cognizable by the Regional Trial Court and not covered by the
Rule on Summary Procedure, is the finding of probable cause
required for the filing of an Information in court?
 
If the allegations in the complaint-affidavit do not
establish probable cause, should not the investigating
prosecutor dismiss the complaint, or at the very least, require
the respondent to submit his counter-affidavit?
 
B.
Can a complaint-affidavit containing matters which are
not within the personal knowledge of the complainant be
sufficient basis for the finding of probable cause?
 
C.
Where there is offense charged in a criminal complaint
is not cognizable by the Regional Trial Court and not covered by
the Rule on Summary Procedure, and the record of the
preliminary investigation does not show the existence of
probable cause, should not the judge refuse to issue a warrant
of arrest and dismiss the criminal case, or at the very least,
require the accused to submit his counter-affidavit in order to aid
the judge in determining the existence of probable cause?
D.
Can a criminal prosecution be restrained?
 
E.
Can this Honorable Court itself determine the
existence of probable cause?[20]
 
On the other hand, respondent contends that the issues raised by the
petitioners had already become moot and academic when the latter posted bail and
were already arraigned.
On 2 August 2000, this Court issued a TRO [21] enjoining the judge of the
MTCC from proceeding in any manner with Criminal Case Nos. 6683 to 6686,
effective during the entire period that the case is pending before, or until further
orders of, this Court.
 
We will first discuss the issue of mootness.
The issues raised by the petitioners have not been mooted by the fact that
they had posted bail and were already arraigned.
It appears from the records that upon the issuance of the warrant of
arrest, petitioners immediately posted bail as they wanted to avoid embarrassment,
being then the officers of Urban Bank. On the scheduled date for the arraignment,
despite the petitioners refusal to enter a plea, the court a quo  entered a plea of Not
Guilty for them.
The erstwhile ruling of this Court was that posting of bail constitutes a
waiver of any irregularity in the issuance of a warrant of arrest, that has already
been superseded by Section 26, Rule 114 of the Revised Rule of Criminal
Procedure. The principle that the accused is precluded from questioning the legality
of the arrest after arraignment is true only if he voluntarily enters his plea and
participates during trial, without previously invoking his objections thereto. [22]
 
As held in Okabe v. Hon. Gutierrez:[23]
  
It bears stressing that Section 26, Rule 114 of the
Revised Rules on Criminal Procedure is a new one, intended to
modify previous rulings of this Court that an application for bail
or the admission to bail by the accused shall be considered as a
waiver of his right to assail the warrant issued for his arrest on
the legalities or irregularities thereon. The new rule has reverted
to the ruling of this Court in People v. Red. The new rule is
curative in nature because precisely, it was designed to supply
defects and curb evils in procedural rules. Hence, the rules
governing curative statutes are applicable. Curative statutes are
by their essence retroactive in application. Besides, procedural
rules as a general rule operate retroactively, even without
express provisions to that effect, to cases pending at the time of
their effectivity, in other words to actions yet undetermined at
the time of their effectivity. Before the appellate court rendered
its decision on January 31, 2001, the Revised Rules on Criminal
Procedure was already in effect. It behoved the appellate court
to have applied the same in resolving the petitioners petition for
certiorari and her motion for partial reconsideration.
 
Moreover, considering the conduct of the petitioner
after posting her personal bail bond, it cannot be argued that
she waived her right to question the finding of probable cause
and to assail the warrant of arrest issued against her by the
respondent judge. There must be clear and convincing proof
that the petitioner had an actual intention to relinquish her right
to question the existence of probable cause. When the only
proof of intention rests on what a party does, his act should be
so manifestly consistent with, and indicative of, an intent to
voluntarily and unequivocally relinquish the particular right that
no other explanation of his conduct is possible. x x x.
Herein petitioners filed the Omnibus Motion to Quash, Recall Warrants of
Arrest and/or For Reinvestigation on the same day that they posted bail. Their bail
bonds likewise expressly contained a stipulation that they were not waiving their
[24]
right to question the validity of their arrest.  On the date of their arraignment,
petitioners refused to enter their plea due to the fact that the issue on the legality of
their arrest is still pending with the Court. Thus, when the court a quo entered a plea
of not guilty for them, there was no valid waiver of their right to preclude them from
raising the same with the Court of Appeals or this Court. The posting of bail bond
was a matter of imperative necessity to avert their incarceration; it should not be
deemed as a waiver of their right to assail their arrest. The ruling to which we have
returned in People v. Red[25] stated:
 
x x x The present defendants were arrested towards the end of January,
1929, on the Island and Province of Marinduque by order of the judge of
the Court of First Instance of Lucena, Tayabas, at a time when there were
no court sessions being held in Marinduque. In view of these
circumstances and the number of the accused, it may properly be held
that the furnishing of the bond was prompted by the sheer necessity of not
remaining in detention, and in no way implied their waiver of any right,
such as the summary examination of the case before their detention. That
they had no intention of waiving this right is clear from their motion of
January 23, 1929, the same day on which they furnished a bond, and the
fact that they renewed this petition on February 23, 1929, praying for the
stay of their arrest for lack of the summary examination; the first motion
being denied by the court on January 24, 1929 (G.R. No. 33708, page 8),
and the second remaining undecided, but with an order to have it
presented in Boac, Marinduque.
 
Therefore, the defendants herein cannot be said to have waived
the right granted to them by section 13, General Order No. 58, as
amended by Act No. 3042.
 
The rest of the issues raised by the petitioners may be grouped into two, which are:
(1) the procedural aspect, i.e., whether the prosecution and the court a quo properly
observed the required procedure in the instant case, and, (2) the substantive
aspect, which is whether there was probable cause to pursue the criminal cases to
trial.

THE PROCEDURAL ASPECT:
 
Petitioners contend that they were denied due process as they were unable to
submit their counter-affidavits and were not accorded the right to a preliminary
investigation. Considering that the complaint of Atty. Pea was filed in September
1998, the rule then applicable was the 1985 Rules of Criminal Procedure.
The provisions of the 1985 Rules of Criminal Procedure relevant to the
issue are Sections 1, 3(a) and 9(a) of Rule 112, to wit:
 
Section 1. Definition. Preliminary investigation is an
inquiry or proceeding for the purpose of determining whether
there is sufficient ground to engender a well founded belief that
a crime cognizable by the Regional Trial Court has been
committed and that the respondent is probably guilty thereof,
and should be held for trial.
Sec. 3. Procedure. Except as provided for in Section 7
hereof, no complaint or information for an offense cognizable by
the Regional Trial Court shall be filed without a preliminary
investigation having been first conducted in the following
manner:
 
(a) The complaint shall state the known address of the
respondent and be accompanied by affidavits of the
complainant and his witnesses as well as other supporting
documents, in such number of copies as there are respondents,
plus two (2) copies for the official file. The said affidavits shall be
sworn to before any fiscal, state prosecutor or government
official authorized to administer oath, or, in their absence or
unavailability, a notary public, who must certify that he
personally examined the affiants and that he is satisfied that
they voluntarily executed and understood their affidavits.
Sec. 9. Cases not falling under the original jurisdiction
of the Regional Trial Courts nor covered by the Rule on
Summary Procedure. 
(a) Where filed with the fiscal. If the complaint is filed directly
with the fiscal or state prosecutor, the procedure outlined in
Section 3(a) of this Rule shall be observed. The fiscal shall take
appropriate action based on the affidavits and other supporting
documents submitted by the complainant. (underscoring
supplied)
 
The crime to which petitioners were charged was defined and penalized
under second paragraph of Article 172 in relation to Article 171 of the Revised Penal
Code.
 
Art. 172. Falsification by private individual and use of falsified
documents. The penalty of prision correccional in its medium
and maximum periods and a fine of not more than P5,000 pesos
shall be imposed upon:
1. Any private individual who shall commit any of the
falsifications enumerated in the next preceding article in any
public or official document or letter of exchange or any other
kind of commercial document; and
 
2. Any person who, to the damage of a third party, or with the
intent to cause such damage, shall in any private document
commit any of the acts of falsification enumerated in the next
preceding article.
 
Any person who shall knowingly introduce in evidence in any
judicial proceeding or to the damage of another or who, with the
intent to cause such damage, shall use any of the false
documents embraced in the next preceding article or in any of
the foregoing subdivisions of this article, shall be punished by
the penalty next lower in degree.
 

Prision correccional in its medium and maximum periods translates to
imprisonment of 2 years, 4 months and 1 day. [26] The next lower in degree to prision
correccional  is arresto mayor in its maximum period to prision correccional in its
minimum period which translates to 4 months and 1 day to 2 years and 4
months[27] of imprisonment. Since the crime committed is not covered by the Rules
of Summary Procedure,[28] the case falls within the exclusive jurisdiction of the first
level courts but applying the ordinary rules. In such instance, preliminary
investigation as defined in Section 1, Rule 112 of the 1985 Rules of Criminal
Procedure is not applicable since such section covers only crimes cognizable by the
RTC. That which is stated in Section 9(a) is the applicable rule.
 
Under this Rule, while probable cause should first be determined before an
information may be filed in court, the prosecutor is not mandated to require the
respondent to submit his counter-affidavits to oppose the complaint. In the
determination of probable cause, the prosecutor may solely rely on the complaint,
affidavits and other supporting documents submitted by the complainant. If he does
not find probable cause, the prosecutor may dismiss outright the complaint or if he
finds probable cause or sufficient reason to proceed with the case, he shall issue a
resolution and file the corresponding information.
 
The complaint of respondent, verbatim, is as follows:
COMPLAINT AFFIDAVIT
 
I, MAGDALENO M. PEA, Filipino, of legal age, with address at
Brgy. Ubay, Pulupandan, Negros Occidental, after having been
sworn in accordance with law hereby depose and state:
1.                  I am the Plaintiff in Civil Case No. 754
pending with the Regional Trial Court of Bago City entitled Atty.
Magdaleno M. Pea v. Urban Bank, et al Impleaded therein as
defendants of the board of the bank, namely, Teodoro
Borlongan, Delfin Gonzales, Jr., Benjamin De Leon, P. Siervo
Dizon, Eric Lee, Ben Lim Jr., Corazon Bejasa and Arturo
Manuel.(underlining ours)
 
2.                  I filed the said case to collect my fees as
agent of Urban Bank, Inc.(hereinafter referred to as the bank) in
ridding a certain parcel of land in Pasay City of squatters and
intruders. A certified true copy of the Complaint in the said case
is hereto attached as Annex A.
3.                  In the Motion to Dismiss dated 12 March
1996 (a certified true copy of which is attached as Annex B),
Answer dated 28 October 1996 (Annex C), and Pre-Trial Brief
dated 28 January 1997 (Annex D) filed by the bank and the
respondent members of the board, the said respondents used
as evidence the following documents:
 
a. Letter dated 19 December 1994 supposedly signed by
a certain Herman Ponce and Julie Abad for Isabela Sugar
Company (ISC) (a copy of which is attached as Annex E), which
states:
 
December 19, 1994
 
Urban Bank
Urban Avenue, Makati
Metro Manila
Gentlemen:
 
This has reference to your property located among Roxas
Boulevard, Pasay City which you purchased from Isabela Sugar
Company under a Deed of Absolute Sale executed on
December 1, 1994.
In line with our warranties as the Seller of the said property and
our undertaking to deliver to you the full and actual possession
and control of said property, free from tenants, occupants or  
squatters and from any obstruction or impediment to the free Atty. Magdaleno M. Pea, who has been assigned by Isabela
use and occupancy of the property and to prevent the former Sugar Company inc. to take charge of inspecting the tenants
tenants or occupants from entering or returning to the premises. would like to request an authority similar to this from the Bank to
In view of the transfer of ownership of the property to Urban new owners. Can you please issue something like this today as
Bank, it may be necessary for Urban Bank to appoint Atty. Pea he (unreadable) this.
likewise as its authorized representative for purposes of  
holding/maintaining continued possession of the said property  
and to represent Urban Bank in any court action that may be b.            Letter dated 9 December 1994 supposedly
instituted for the abovementioned purposes. executed by the same Marilyn Ong, a copy of which is hereto
  attached as Annex G, which states:
It is understood that any attorneys fees, cost of litigation and any  
other charges or expenses that may be incurred relative to the December 9, 1994
exercise by Atty. Pea of his abovementioned duties shall be for  
the account of Isabela Sugar Company and any loss or damage Atty. Ted Borlongan
that may be incurred to third parties shall be answerable by URBAN BANK OF THE PHILIPPINES
Isabela Sugar Company. MAKATI, METRO MANILA
   
   
Very truly yours, Attention: Mr. Ted Borlongan
  Dear Mr. Borlongan
Isabela Sugar Company  
  I would like to request for an authority from Urban Bank per
By: attached immediately as the tenants are questioning authority of
  the people who are helping us to take possession of the
HERMAN PONCE property.
   
JULIE ABAD  
  Marilyn Ong
   
b. Memorandum dated 7 December 1994 supposedly executed  
by a certain Marilyn Ong on behalf of ISC, a copy of which is c.       Memorandum dated 20 November 1994, copy
hereto attached as annex F, which states: of which is attached as annex H, which states:
   
December 7, 1994  
  MEMORANDUM
To: ATTY. CORA BEJASA To: Atty. Magadaleno M. Pea
From: MARILYN G. ONG Director
   
RE: ISABELA SUGAR CO., INC. From: Enrique C. Montilla III
President
 
Date: 20 November 1994
 
You are hereby directed to recover and take possession of the
property of the corporation situated at Roxas Boulevard covered
by TCT No. 5382 of the Registry of Deeds for Pasay City,
immediately upon the expiration of the contract of lease over the
said property on 29 November 1994. For this purpose, you are
authorized to engage the services of security guards to protect
the property against intruders. You may also engage the
services of a lawyer in case there is a need to go to court to
protect the said property of the corporation. In addition, you may
take whatever steps or measures are necessary to ensure our
continued possession of the property.
 
 
ENRIQUE C. MONTILLA III
President
 
4.      The respondent member of the board of the bank used
and introduced the aforestated documents as evidence in
the civil case knowing that the same are falsified. They
used thae said documents to justify their refusal to pay my
agents fees, to my damage and prejudice.
 
5.      The 19 December 1994 letter (Annex E) is a falsified
document, in that the person who supposedly executed the
letter on behalf of ISC, a certain Herman Ponce and Julie
Abad did not actually affix their signatures on the
document. The execution of the letter was merely
simulated by making it appear that Ponce and Abad
executed the letter on behalf of ISC when they did not in
fact do so.
 
6.      No persons by the name of Herman Ponce and Julie Abad
were ever stockholders, officers, employees or
representatives of ISC. In the letter, Herman Ponce was
represented to be the President of ISC and Julie Abad, the
Corporate Secretary. However, as of 19 December 1994,
the real President of plaintiff was Enrique Montilla, III and
Cristina Montilla was the Corporate Secretary. A copy of
the Minutes of the Regular Meeting of ISC for the year
1994, during which Montilla, et al. Were elected is hereto
attached as Annex I. On the otherhand, a list of the
stockholders of ISC on or about the time of the transaction
is attached as Annex J.
 
7.      The same holds true with respect to the Memorandum
dated 7 December 1994 and athe letter dated 9 December
1994 allegedly written by a ceratin Marilyn Ong. Nobody by
the said name was ever a stockholder of ISC.
 
8.      Lastly, with respect to the supposed Memorandum issued
by Enrique Montilla, III his signature thereon was merely
forged by respondents. Enrique Montilla III, did not affix his
signature on any such document.
 
9.      I am executing this affidavit for the purpose of
charging Teodoro C. Borlongan, Corazon M. Bejasa and
Arturo E. Manuel, Delfin C. Gonzales Jr., Benjamin L. De
Leon, P. Siervo H. Dizon and Eric Lee, with the crime of
use of falsified documents under Artilce 172, paragraph 2,
of the Revised Penal Code.(underlining ours)
 
10.  I am likewise executing this affidavit for whatever legal
purpose it may serve.
 
FURTHER AFFIANT SAYETH NAUGHT.
 
 
Sgd. MAGDALENO M. PEA
 
 
It is evident that in the affidavit-complaint, specifically in paragraph 1, respondent
merely introduced and identified the board of the bank, namely, Teodoro Borlongan,
Jr., Delfin Gonzales, Jr., Benjamin De Leon, P. Siervo Dizon, Eric Lee, Ben Lim, Jr.,
Corazon Bejasa and Arturo Manuel, Sr. However, in the accusatory portion of the
complaint which is paragraph number 9, Mr. Ben Lim, Jr. was not included among
those charged with the crime of use of falsified documents under Article 172,
paragraph 2, of the Revised Penal Code. The omission indicates that respondent
did not intend to criminally implicate Mr. Ben Lim, Jr., even as he was acknowledged
to be a member of the board. And there was no explanation in the Resolution and
Information by the City Prosecutor why Mr. Ben Lim, Jr. was included. Moreover, as
can be gleaned from the body of the complaint and the specific averments therein,
Mr. Ben Lim, Jr. was never mentioned.
 
The City Prosecutor should have cautiously reviewed the complaint to
determine whether there were inconsistencies which ought to have been brought to
the attention of the respondent or, on his own, considered for due evaluation. It is a
big mistake to bring a man to trial for a crime he did not commit.
 
Prosecutors are endowed with ample powers in order that they may
properly fulfill their assigned role in the administration of justice. It should be
realized, however, that when a man is hailed to court on a criminal charge, it brings
in its wake problems not only for the accused but for his family as well. Therefore, it
behooves a prosecutor to weigh the evidence carefully and to deliberate thereon to
determine the existence of a prima facie case before filing the information in
court. Anything less would be a dereliction of duty.[29]
Atty. Pea, in his Second Manifestation [30] dated 16 June 1999, averred that
petitioners, including Mr. Ben Lim, Jr., were already estopped from raising the fact
that Mr. Ben Lim, Jr. was not a member of the board of directors of Urban Bank, as
the latter participated and appeared through counsel in Civil Case No. 754 without
raising any opposition. However, this does not detract from the fact that the City
Prosecutor, as previously discussed, did not carefully scrutinize the complaint of
Atty. Pea, which did not charge Mr. Ben Lim, Jr. of any crime.
 
What tainted the procedure further was that the Judge issued a warrant
for the arrest of the petitioners, including, Mr. Ben Lim, Jr. despite the filing of the
Omnibus Motion to Quash, Recall Warrants of Arrest and/or For Reinvestigation
raising among others the issue that Mr. Ben Lim, Jr., was not even a member of the
board of directors. With the filing of the motion, the judge is put on alert that an
innocent person may have been included in the complaint. In the Order[31] dated 13
November 1998, in denying the motion to quash, Judge Primitivo Blanca ruled that:
 
Courts in resolving a motion to quash cannot consider facts
contrary to those alleged in the information or which do not
appear on the face of the information because said motion is
hypothethical admission of the facts alleged in the information x
x x. (citations omitted.)
 
We cannot accept as mere oversight the mistake of respondent judge
since it was at the expense of liberty. This cannot be condoned.
 
In the issuance of a warrant of arrest, the mandate of the Constitution is for the
judge to personally determine the existence of probable cause:
Section 2, Article III of the Constitution provides:
 
Section 2. The right of the people to be secure in their persons,
houses, papers and effects against unreasonable searches and
seizures of whatever nature and for any purpose shall be
inviolable, and no search warrant or warrant of arrest shall issue
except upon probable cause to be determined personally by the
judge after examination under oath or affirmation of the
complainant and the witnesses he may produce, and particularly
 describing the place to be searched and the persons or things to
be seized.
 
Corollary thereto, Section 9(b) of the 1985 Rules of Criminal Procedure
provides:
 
Sec. 9. Cases not falling under the original jurisdiction of the
Regional Trial Courts nor covered by the Rule on Summary
Procedure.
 
(a) x x x.
 
(b) Where filed directly with the Municipal Trial Court. If the
complaint or information is filed directly with the Municipal Trial
Court, the procedure provided for in Section 3(a) of this Rule
shall likewise be observed. If the judge finds no sufficient ground
to hold the respondent for trial, he shall dismiss the complaint or
information. Otherwise, he shall issue a warrant of arrest after
personally examining in writing and under oath the complainant
and his witnesses in the form of searching questions and
answers.
Enshrined in our Constitution is the rule that [n]o x x x warrant of arrest
shall issue except upon probable cause to be determined personally by the judge
after examination under oath or affirmation of the complainant and the witnesses he
may produce, and particularly describing x x x the persons x x x to be seized.
[32]
 Interpreting the words personal determination, we said in Soliven v.
Makasiar  that it does not thereby mean that judges are obliged to conduct the
[33]
personal examination of the complainant and his witnesses themselves. To require
thus would be to unduly laden them with preliminary examinations and
investigations of criminal complaints instead of concentrating on hearing and
deciding cases filed before them. Rather, what is emphasized merely is the
exclusive and personal responsibility of the issuing judge to satisfy himself as to the
existence of probable cause. To this end, he may: (a) personally evaluate the report
and the supporting documents submitted by the prosecutor regarding the existence
of probable cause and, on the basis thereof, issue a warrant of arrest; or (b) if on the
basis thereof he finds no probable cause, disregard the prosecutor's report and
require the submission of supporting affidavits of witnesses to aid him in determining
its existence. What he is never allowed to do is to follow blindly the prosecutor's
bare certification as to the existence of probable cause. Much more is required by
the constitutional provision. Judges have to go over the report, the affidavits, the
transcript of stenographic notes if any, and other documents supporting the
prosecutor's certification. Although the extent of the judge's personal examination
depends on the circumstances of each case, to be sure, he cannot just rely on the
bare certification alone but must go beyond it. This is because the warrant of arrest
issues not on the strength of the certification standing alone but because of the
records which sustain it.[34] He should even call for the complainant and the
witnesses to answer the court's probing questions when the circumstances warrant.
[35]
An arrest without a probable cause is an unreasonable seizure of a
person, and violates the privacy of persons which ought not to be intruded by the
State.[36]
 
Measured against the constitutional mandate and established rulings, there was
here a clear abdication of the judicial function and a clear indication that the judge
blindly followed the certification of a city prosecutor as to the existence of probable
cause for the issuance of a warrant of arrest with respect to all of the
petitioners. The careless inclusion of Mr. Ben Lim, Jr., in the warrant of arrest gives
flesh to the bone of contention of petitioners that the instant case is a matter of
persecution rather than prosecution.[37]On this ground, this Court may enjoin the

criminal cases against petitioners. As a general rule, criminal prosecutions cannot
be enjoined. However, there are recognized exceptions which, as summarized
in Brocka v. Enrile,[38] are:
 
a. To afford adequate protection to the constitutional rights of
the accused;[39]
 
b. When necessary for the orderly administration of justice or to
avoid oppression or multiplicity of actions;[40]
c. When there is a prejudicial question which is sub judice;[41]
 
d. When the acts of the officer are without or in excess of
authority;[42]
 
e. Where the prosecution is under an invalid law, ordinance or
regulation;[43]
 
f. When double jeopardy is clearly apparent;[44]
 
g. Where the court had no jurisdiction over the offense; [45]
h. Where it is a case of persecution rather than prosecution; [46]
 
i. Where the charges are manifestly false and motivated by the
lust for vengeance;[47] and
j. When there is clearly no prima facie case against the accused
and a motion to quash on that ground has been denied. [48]
 
THE SUBSTANTIVE ASPECT:
 
Petitioners were charged with violation of par. 2, Article 172 of the Revised Penal
Code or Introduction of Falsified Document in a judicial proceeding. The elements of
the offense are as follows:
1.                  That the offender knew that a document was
falsified by another person.
2.                  That the false document is embraced in Article 171
or in any subdivisions Nos. 1 or 2 of Article 172.
3.                  That he introduced said document in evidence in
any judicial proceeding.[49]
 
The falsity of the document and the defendants knowledge of its falsity are
essential elements of the offense. The Office of the City Prosecutor filed the
Informations against the petitioners on the basis of the Complaint-Affidavit of
respondent Atty. Pea, attached to which were the documents contained in the
Motion to Dismiss filed by the petitioners in Civil Case No. 754. Also included as
attachments to the complaint were the Answers, Pre-Trial Brief, the alleged falsified
documents, copy of the regular meetings of ISCI during the election of the Board of
Directors and the list of ISCI Stockholders.[50] Based on these documents and the
complaint-affidavit of Atty. Pea, the City Prosecutor concluded that probable cause
for the prosecution of the charges existed. On the strength of the same documents,
the trial court issued the warrants of arrest.
This Court, however, cannot find these documents sufficient to support the
existence of probable cause.
Probable cause is such set of facts and circumstances as would lead a reasonably
discreet and prudent man to believe that the offense charged in the Information or
any offense included therein has been committed by the person sought to be
arrested. In determining probable cause, the average man weighs the facts and
circumstances without restoring to the calibrations of the rules of evidence of which
he has no technical knowledge. He relies on common sense. A finding of probable
cause needs only to rest on evidence showing that, more likely than not, a crime
has been committed and that it was committed by the accused. Probable cause
demands more than suspicion; it requires less than evidence that would justify
[51]
conviction.
 
As enunciated in Baltazar v. People,  the task of the presiding judge
[52]
when the Information is filed with the court is first and foremost to determine the
existence or non-existence of probable cause for the arrest of the accused.
The purpose of the mandate of the judge to first determine probable cause
for the arrest of the accused is to insulate from the very start those falsely charged
[53]
with crimes from the tribulations, expenses and anxiety of a public trial.
 
We do not see how it can be concluded that the documents mentioned by
respondent in his complaint-affidavit were falsified. In his complaint, Atty. Pea stated
that Herman Ponce, Julie Abad and Marilyn Ong, the alleged signatories of the
questioned letters, did not actually affix their signatures therein; and that they were
[54]
not actually officers or stockholders of ISCI.  He further claimed that Enrique
Montillas signature appearing in another memorandum addressed to respondent
[55]
was forged.  These averments are mere assertions which are insufficient to
warrant the filing of the complaint or worse the issuance of warrants of arrest. These
averments cannot be considered as proceeding from the personal knowledge of
herein respondent who failed to, basically, allege that he was present at the time of
the execution of the documents. Neither was there any mention in the complaint-
affidavit that herein respondent was familiar with the signatures of the mentioned
signatories to be able to conclude that they were forged. What Atty. Pea actually
stated were but sweeping assertions that the signatories are mere dummies of ISCI
and that they are not in fact officers, stockholders or representatives of the
corporation. Again, there is no indication that the assertion was based on the
personal knowledge of the affiant.
The reason for the requirement that affidavits must be based on personal
knowledge is to guard against hearsay evidence. A witness, therefore, may not
testify as what he merely learned from others either because he was told or read or
heard the same. Such testimony is considered hearsay and may not be received as
proof of the truth of what he has learned. [56] Hearsay is not limited to oral testimony
or statements; the general rule that excludes hearsay as evidence applies to written,
as well as oral statements.[57]
 
The requirement of personal knowledge should have been strictly applied
considering that herein petitioners were not given the opportunity to rebut the
complainants allegation through counter-affidavits.
 
Quite noticeable is the fact that in the letter dated 19 December 1994 of Herman
Ponce and Julie Abad, neither of the two made the representation that they were the
president or secretary of ISCI. It was only Atty. Pea who asserted that the two made
such representation. He alleged that Marilyn Ong was never a stockholder of ISCI
but he did not present the stock and transfer book of ISCI. And, there was neither
allegation nor proof that Marilyn Ong was not connected to ISCI in any other
way. Moreover, even if Marilyn Ong was not a stockholder of ISCI, such would not
prove that the documents she signed were falsified.
 
The Court may not be compelled to pass upon the correctness of the
exercise of the public prosecutors function without any showing of grave abuse of
discretion or manifest error in his findings. [58] Considering, however, that the
prosecution and the court a quo committed manifest errors in their findings of
probable cause, this Court therefore annuls their findings.
 
Our pronouncement in Jimenez v. Jimenez[59]  as reiterated in Baltazar v. People  is
apropos:
 
It is x x x imperative upon the fiscal or the judge as the case
may be, to relieve the accused from the pain of going through a
trial once it is ascertained that the evidence is insufficient to
sustain a prima facie case or that no probable cause exists to
form a sufficient belief as to the guilt of the accused. Although
there is no general formula or fixed rule for the determination of
probable cause since the same must   be decided in the light of
the conditions obtaining in given situations and its existence
depends to a large degree upon the finding or opinion of the
judge conducting the examination, such a finding should not
disregard the facts before the judge nor run counter to the clear
dictates of reasons. The judge or fiscal, therefore, should not go
on with the prosecution in the hope that some credible evidence
might later turn up during trial for this would be a flagrant
violation of a basic right which the courts are created to uphold.
It bears repeating that the judiciary lives up to its mission by
visualizing and not denigrating constitutional rights. So it has
been before. It should continue to be so.
On the foregoing discussion, we find that the Court of Appeals erred in affirming the
findings of the prosecutor as well as the court a quo as to the existence of probable
cause. The criminal complaint against the petitioners should be dismissed.
 
WHEREFORE, the petition is hereby GRANTED. The Decision of the
Court of Appeals dated 20 June 2000, in CA-G.R. SP No. 49666,
is REVERSED and SET ASIDE. The Temporary Restraining Order dated 2 August
2000 is hereby made permanent. Accordingly, the Municipal Trial Court in Cities,
Negros Occidental, Bago City, is hereby DIRECTED to DISMISS Criminal Case
Nos. 6683, 6684, 6685 and 6686.
 
SO ORDERED.
 THIRD DIVISION
[G.R. Nos. 138859-60. February 22, 2001]
ALVAREZ ARO YUSOP, petitioner, vs.  The Honorable SANDIGANBAYAN (First
Division), respondent.
DECISION
PANGANIBAN, J.:
The right of a person to preliminary investigation is recognized by the law and
is governed by the Rules of Court. However, the failure to accord this right does
not ipso facto  result in the dismissal of the information; the case is merely
suspended, and the prosecutor directed to conduct the proper investigation.
The Case
Before us is a Petition for Certiorari under Rule 65 of the Rules of Court,
assailing two Orders[1] of the Sandiganbayan,[2] both dated February 15, 1999. The
first Order rejected the attempt of petitioner to stop his arraignment in Criminal Case
Nos. 24524-25, on the ground that he had been denied the right to a preliminary
investigation. In the assailed second Order, the Sandiganbayan directed that a plea
of not guilty be entered for all the accused, including herein petitioner.
The Facts
Acting on an Affidavit-Complaint[3] filed by a certain Erlinda Fadri, the Office of
the Ombudsman-Mindanao issued an Order [4] dated September 19, 1995, naming
the following as respondents: Benjamin Arao, Frederick Winters, Pelaez Pantaran,
Eduardo Dablo, Efren Sissay and the city jail warden of Pagadian City. The Order
also required respondents, within ten days from receipt thereof to submit their
counter-affidavits and other pieces of controverting evidence.
The Office of the Ombudsman for Mindanao issued a Resolution dated
January 15, 1998,[5] recommending the prosecution of the aforenamed respondents
for violation of Article 269 of the Revised Penal Code and Section 3-a in relation to
Section 3-e of Republic Act No. 3019 as amended.Significantly, the name of
Petitioner Alvarez A. Yusop was included as one of the persons to be prosecuted,
although he was not one of the original respondents mentioned in the Order of
September 19, 1995. Ombudsman Aniano A. Desierto approved the
recommendation.
Accordingly, two Informations were filed with the Sandiganbayan. They were
docketed as Criminal Case Nos. 24524 (violation of Section 3-a of RA 3019) and
24525 (unlawful arrest under Article 269 of the Revised Penal Code).
On April 16, 1998, an Order of Arrest was issued by the Sandiganbayan in
Criminal Case No. 24524. Petitioner, however, posted a bail bond before the
Regional Trial Court of Dipolog City on May 20 of the same year. On the same day,
he filed a Motion To Remand Case To The Ombudsman - Mindanao For Preliminary
Investigation.
In a Resolution dated June 8, 1998, the Sandiganbayan denied the Motion of
petitioner for his alleged failure to submit himself to the jurisdiction of the anti-graft
court.
On August 8, 1998, petitioner filed a Motion to Dismiss, grounded again on
the lack of preliminary investigation. In an Order dated September 22, 1998, the
Sandiganbayan resolved not to take action on the Motion, because petitioner had
not yet submitted himself to its jurisdiction insofar as Criminal Case No. 24525 was
concerned.
On the scheduled arraignment on February 15, 1999, petitioner reiterated his
claim that he had not been accorded preliminary investigation. In its two assailed
Orders, the Sandiganbayan rejected his claim and proceeded with the arraignment.
Hence, this recourse.[6]
Ruling of the Sandiganbayan
 The Sandiganbayan rejected petitioners plea for preliminary investigation in
this wise:
This morning, the accused herein appeared for arraignment duly represented by
their counsel. Before proceeding, Atty. Omar A. Rivera appearing in behalf of
accused Yusop informed this court of his reservations about proceeding with the
arraignment this morning, primarily on the ground that accused Yusop did not
undergo preliminary investigation, with the additional claim that he had not been
furnished any notice nor was he informed of the proceedings before the
Ombudsman with respect to these cases. It would appear that one of the reasons
[therefor] is that the accused despite notice of the existence of the accusation
against him in Criminal Case No. 24525, had not given any timely notice nor any
statement of any alleged inadequacy of the proceeding regarding the filing of the
Information herein; thus, the Court is not persuaded that the claim of the accused
Yusop with regard to the inadequacy of the proceedings as against him could still be
validly entertained at this time. This is more particularly significant under Section 27
of Republic Act 6770 and x x x Criminal Cases 24524 and 24525 refer to the same
incident although the prosecution, for its part, has filed Informations under different
statutes covering the same incident. Thus, the claim of accused Yusop that he was
not notified with respect to one of the cases on an identical set of facts herein is not
[of] particular significance since this would be indulging in a superfluity.
x x x x x x x x x
Thus, in view of all the following, the Court will now proceed to the arraignment of
the accused herein.
The Issue
Although the parties did not specify the issue in this case, it is clear from their
submissions that they are asking this Court to resolve this question:Whether the
Sandiganbayan, despite being informed of the lack of preliminary investigation with
respect to petitioner, in Criminal Case No. 24524, committed grave abuse of
discretion in proceeding with his arraignment.
The Courts Ruling
The Petition is meritorious in part. While petitioner is entitled to preliminary
investigation, the case against him should not be dismissed.
Main Issue:
Preliminary Investigation
Preliminary investigation is an inquiry or proceeding to determine whether
there is sufficient ground to engender a well-founded belief that a crime has been
committed and the respondent is probably guilty thereof, and should be held for trial.
[7]
 The Court explained that the rationale of a preliminary investigation is to protect
the accused from the inconvenience, expense and burden of defending himself in a
formal trial unless the reasonable probability of his guilt shall have been first
ascertained in a fairly summary proceeding by a competent officer. [8]
The Rules of Court requires such investigation before an information for an
offense punishable by at least four years, two months and one day may be filed in
court.[9] The old Rules, on the other hand, mandates preliminary investigation of an
offense cognizable by the regional trial court.[10]
Petitioner is charged in Criminal Case No. 24524 with violation of Section 3-a
of RA 3019. Such offense is punishable with, among other penalties, imprisonment
of six years and one month to fifteen years. [11] Under the aforecited Rules, whether
in the old or the revised version, he is entitled to a preliminary investigation.
It is undisputed, however, that before the Information against petitioner was
filed, no preliminary investigation had been conducted. In fact, the Office of the
Ombudsman admitted that petitioner was denied of his right to preliminary
investigation.[12]
We find no basis for the Sandiganbayans ruling that petitioner had not given
timely notice nor any statement of the alleged inadequacy of the proceeding
regarding the filing of the Information.
First, there was no showing that petitioner was notified of the charges filed by
Erlinda Fadri. As earlier noted, he had not been named as a respondent in the
September 19, 1995 Order of the Office of the Ombudsman in Mindanao. His name
did not even appear in the caption of its January 15, 1998 Resolution, [13] which
recommended the filing of charges against the accused. Indeed, in his Compliance
with the August 26, 1998 Sandiganbayan Resolution, [14] Special Prosecution Officer
Diosdado V. Calonge manifested that petitioner was not notified of the proceedings
of the preliminary investigation and was accordingly not given the opportunity to be
heard thereon.[15]
After learning of the filing of the Information against him when he was served
a Warrant of Arrest, petitioner did not dally. He immediately informed the
Sandiganbayan that no preliminary investigation had been conducted in regard to
him. Several months later, moments before his arraignment, he reiterated his prayer
that the preliminary investigation be conducted. In this light, the Sandiganbayan
erred in saying that he had not given the court timely notice of this deficiency.
Even assuming that prior to the filing of the Information, petitioner had known
that the proceedings and the investigation against his co-accused were pending, he
cannot be expected to know of the investigators subsequent act of charging
him. Precisely, he had not been previously included therein and, consequently, he
had not been notified thereof.
In Go v. Court of Appeals,[16] this Court held that the right to preliminary
investigation is waived when the accused fails to invoke it before or at the time of
entering a plea at arraignment. Conversely, if the accused does invoke it before
arraignment, as the petitioner did in this case, the right is not waived.
Neither did the filing of a bail bond constitute a waiver of petitioners right to
preliminary investigation. Under Section 26, Rule 114 of the Revised Rules of
Criminal Procedure, [a]n application for or admission to bail shall not bar the
accused from challenging the validity of his arrest or the legality of the warrant
issued therefor, or from assailing the regularity or questioning the absence of a
preliminary investigation of the charge against him, provided that he raises them
before entering his plea. x x x.
We stress that the right to preliminary investigation is substantive, not merely
formal or technical. To deny it to petitioner would deprive him of the full measure of
his right to due process. [17] Hence, preliminary investigation with regard to him must
be conducted.
We disagree with the Sandiganbayans reliance on Section 27 of Republic Act
6770.[18] This provision cannot justify the evasion of the requirement set forth in the
Rules of Court for conducting preliminary investigation. The law does not sanction
such interpretation, for it deals merely with the finality of orders, directives and
decisions of the Office of the Ombudsman -- not the deprivation of the substantive
right to a preliminary investigation. Moreover, petitioner cannot be bound by the
Ombudsmans January 15, 1998 Resolution, which recommended the filing of
charges. He was not a party to the case and was not accorded any right to present
evidence on his behalf.
In any event, even the Ombudsman agrees that petitioner was deprived of this
right and believes that the former has the duty x x x to see to it that the basic
rudiments of due process are complied with. [19] For its part, the Sandiganbayan
opted to remain silent when asked by this Court to comment on the Petition.
Dismissal of the Charges
Not Justified
Petitioner also prays that the cases against him be dismissed for lack of
preliminary investigation.[20] We disagree. In the first place, nowhere in the Revised
Rules of Criminal Procedure, or even the old Rules, is there any mention that this
lack is a ground for a motion to quash. [21] Furthermore, it has been held that
responsibility for the absence of a preliminary investigation does not go to the
jurisdiction of the court but merely to the regularity of the proceedings. [22] We
reiterate the following ruling of the Court in People v. Gomez:
If there were no preliminary investigations and the defendants, before entering their
plea, invite the attention of the court to their absence, the court, instead of
dismissing the information, should conduct such investigation, order the fiscal to
conduct it or remand the case to the inferior court so that the preliminary
investigation may be conducted.[23]
In sum, Criminal Case No. 24524 must be suspended with respect to
petitioner even if the case is already undergoing trial, because [t]o reach any other
conclusion here, that is, to hold that petitioners rights to a preliminary investigation
and to bail were effectively obliterated by evidence subsequently admitted into the
record would be to legitimize the deprivation of due process and to permit the
government to benefit from its own wrong or culpable omission and effectively to
dilute important rights of accused persons well-nigh to the vanishing point. [24]
WHEREFORE, the Petition is partially GRANTED.  The assailed Orders
are REVERSED, and the Office of the Ombudsman is hereby ORDERED to conduct
forthwith a preliminary investigation of the charge of violation of Section 3-a of RA
3019 against Petitioner Alvarez Aro Yusop. The trial on the merits of Criminal Case
No. 24524 shall be SUSPENDED in regard to petitioner until the conclusion of the
preliminary investigation. No pronouncement as to costs.
SO ORDERED.
 EN BANC
G.R. No. 159747             April 13, 2004
GREGORIO B. HONASAN II, petitioner, 
vs.
THE PANEL OF INVESTIGATING PROSECUTORS OF THE DEPARTMENT OF
JUSTICE (LEO DACERA, SUSAN F. DACANAY, EDNA A. VALENZUELA AND
SEBASTIAN F. CAPONONG, JR.), CIDG-PNP- P/DIRECTOR EDUARDO
MATILLANO, and HON. OMBUDSMAN SIMEON V. MARCELO, respondents.
DECISION
The Sworn Statement of AFP Major Perfecto Ragil referred to by PNP/P Director
Matillano is quoted verbatim, to wit:
AUSTRIA-MARTINEZ, J.:
On August 4, 2003, an affidavit-complaint was filed with the Department of Justice
(DOJ) by respondent CIDG-PNP/P Director Eduardo Matillano. It reads in part:
…
2. After a thorough investigation, I found that a crime of coup d'etat was
indeed committed by military personnel who occupied Oakwood on the
27th day of July 2003 and Senator Gregorio "Gringo"Honasan, II …
3. …
4. The said crime was committed as follows:
4.1 On June 4, 2003, at on or about 11 p.m., in a house located in San
Juan, Metro Manila, a meeting was held and presided by Senator
Honasan. Attached as Annex "B" is the affidavit of Perfecto Ragil and
made an integral part of this complaint.
…
4.8 In the early morning of July 27, 2003, Capt. Gerardo
Gambala, for and in behalf of the military rebels occupying
Oakwood, made a public statement aired on nation television,
stating their withdrawal of support to the chain of command of
the AFP and the Government of President Gloria Macapagal
Arroyo and they are willing to risk their lives in order to achieve
the National Recovery Agenda of Sen. Honasan, which they
believe is the only program that would solve the ills of society. . .
. (Emphasis supplied).
1. That I am a member of the Communication –Electronics and
Information Systems Services, Armed Forces of the Philippines with the
rank of Major;
2. That I met a certain Captain Gary Alejano of the Presidential Security
Guard (PSG) during our Very Important Person (VIP) Protection Course
sometime in last week of March 2003;
3. That sometime in May 2003, Captain Alejano gave me a copy of the
pamphlet of the National Recovery Program (NRP) and told me that:
"Kailangan ng Bansa ng taong kagaya mo na walang bahid ng corruption
kaya basahin mo ito (referring to NRP) pamphlet. I took the pamphlet but
never had the time to read it;
4. That sometime in the afternoon of June 4, 2003, Captain Alejano invited
me to join him in a meeting where the NRP would be discussed and that
there would be a special guest;
5. That Capt. Alejano and I arrived at the meeting at past 9 o'clock in the
evening of June 4, 2003 in a house located somewhere in San Juan,
Metro Manila;
6. That upon arrival we were given a document consisting of about 3-4
pages containing discussion of issues and concerns within the framework
of NRP and we were likewise served with dinner;
7. That while we were still having dinner at about past 11 o'clock in the
evening, Sen. Gregorio "Gringo" Honasan arrived together with another
fellow who was later introduced as Capt. Turingan;
8. That after Sen. Honasan had taken his dinner, the meeting proper
started presided by Sen. Honasan;
9. That Sen. Honasan discussed the NRP, the graft and corruption in the
government including the military institution, the judiciary, the executive
branch and the like;
10. That the discussion concluded that we must use force, violence and
armed struggle to achieve the vision of NRP. At this point, I raised the
argument that it is my belief that reforms will be achieved through the
democratic processes and not thru force and violence and/or armed
struggle. Sen. Honasan countered that "we will never achieve reforms
through the democratic processes because the people who are in power
will not give up their positions as they have their vested interests to
protect." After a few more exchanges of views, Sen. Honasan appeared
irritated and asked me directly three (3) times: "In ka ba o out?" I then
asked whether all those present numbering 30 people, more or less, are
really committed, Sen. Honasan replied: "Kung kaya nating pumatay sa
ating mga kalaban, kaya din nating pumatay sa mga kasamahang
magtataksil." I decided not to pursue further questions;
11. That in the course of the meeting, he presented the plan of action to
achieve the goals of NRP, i.e., overthrow of the government under the
present leadership thru armed revolution and after which, a junta will be
constituted and that junta will run the new government. He further said
that some of us will resign from the military service and occupy civilian
positions in the new government. He also said that there is urgency that
we implement this plan and that we would be notified of the next activities.
12. That after the discussion and his presentation, he explained the rites
that we were to undergo-some sort of "blood compact". He read a prayer
that sounded more like a pledge and we all recited it with raised arms and
clenched fists. He then took a knife and demonstrated how to make a cut
on the left upper inner arm until it bleeds. The cut was in form of the letter
"I" in the old alphabet but was done in a way that it actually looked like
letter "H". Then, he pressed his right thumb against the blood and pressed
the thumb on the lower middle portion of the copy of the Prayer. He then
covered his thumb mark in blood with tape. He then pressed the cut on his
left arm against the NRP flag and left mark of letter "I" on it. Everybody
else followed;
13. That when my turn came, I slightly made a cut on my upper inner arm
and pricked a portion of it to let it bleed and I followed what Senator
HONASAN did;
14. That I did not like to participate in the rites but I had the fear for my life
with what Senator HONASAN said that "…kaya nating pumatay ng
kasamahan";
15. That after the rites, the meeting was adjourned and we left the place;
16. That I avoided Captain Alejano after that meeting but I was extra
cautious that he would not notice it for fear of my life due to the threat
made by Senator HONASAN during the meeting on June 4, 2003 and the
information relayed to me by Captain Alejano that their group had already
deeply established their network inside the intelligence community;
17. That sometime in the first week of July 2003, Captain Alejano came to
see me to return the rifle that he borrowed and told me that when the
group arrives at the Malacañang Compound for "D-DAY", my task is to
switch off the telephone PABX that serves the Malacañang complex. I told
him that I could not do it. No further conversation ensued and he left;
18. That on Sunday, July 27, 2003, while watching the television, I saw
flashed on the screen Lieutenant Antonio Trillanes, Captain Gerardo
 Gambala, Captain Alejano and some others who were present during the
June 4th meeting that I attended, having a press conference about their
occupation of the Oakwood Hotel. I also saw that the letter "I" on the arm
bands and the banner is the same letter "I" in the banner which was
displayed and on which we pressed our wound to leave the imprint of the
letter "I";
19. That this Affidavit is being executed in order to attest the veracity of
the foregoing and in order to charge SENATOR GREGORIO "GRINGO"
HONASAN, Capt. FELIX TURINGAN, Capt. GARY ALEJANO, Lt.
ANTONIO TRILLANES, Capt. GERARDO GAMBALA and others for
violation of Article 134-A of the Revised Penal Code for the offense of
"coup d'etat". (Emphasis supplied)
The affidavit-complaint is docketed as I.S. No. 2003-1120 and the Panel of
Investigating Prosecutors of the Department of Justice (DOJ Panel for brevity) sent
a subpoena to petitioner for preliminary investigation.
On August 27, 2003, petitioner, together with his counsel, appeared at the DOJ. He
filed a Motion for Clarification questioning DOJ's jurisdiction over the case, asserting
that since the imputed acts were committed in relation to his public office, it is the
Office of the Ombudsman, not the DOJ, that has the jurisdiction to conduct the
corresponding preliminary investigation; that should the charge be filed in court, it is
the Sandiganbayan, not the regular courts, that can legally take cognizance of the
case considering that he belongs to the group of public officials with Salary Grade
31; and praying that the proceedings be suspended until final resolution of his
motion.
Respondent Matillano submitted his comment/opposition thereto and petitioner filed
a reply.
On September 10, 2003, the DOJ Panel issued an Order, to wit:
On August 27, 2003, Senator Gregorio B. Honasan II filed through
counsel a "Motion to Clarify Jurisdiction". On September 1, 2003,
complainant filed a Comment/Opposition to the said motion.
The motion and comment/opposition are hereby duly noted and shall be
passed upon in the resolution of this case.
In the meantime, in view of the submission by complainant of additional
affidavits/evidence and to afford respondents ample opportunity to
controvert the same, respondents, thru counsel are hereby directed to file
their respective counter-affidavits and controverting evidence on or before
September 23, 2003.1
Hence, Senator Gregorio B. Honasan II filed the herein petition for certiorari under
Rule 65 of the Rules of Court against the DOJ Panel and its members, CIDG-PNP-
P/Director Eduardo Matillano and Ombudsman Simeon V. Marcelo, attributing grave
abuse of discretion on the part of the DOJ Panel in issuing the aforequoted Order of
September 10, 2003 on the ground that the DOJ has no jurisdiction to conduct the
preliminary investigation.
Respondent Ombudsman, the Office of Solicitor General in representation of
respondents DOJ Panel, and Director Matillano submitted their respective
comments.
The Court heard the parties in oral arguments on the following issues:
1) Whether respondent Department of Justice Panel of Investigators has
jurisdiction to conduct preliminary investigation over the charge of coup
d'etat against petitioner;
2) Whether Ombudsman-DOJ Circular No. 95-001 violates the
Constitution and Republic Act No. 6770 or Ombudsman Act of 1989; and
3) Whether respondent DOJ Panel of Investigators committed grave
abuse of discretion in deferring the resolution of the petitioner's motion to
clarify jurisdiction considering the claim of the petitioner that the DOJ
Panel has no jurisdiction to conduct preliminary investigation.
After the oral arguments, the parties submitted their respective memoranda. The
arguments of petitioner are:
1. The Office of the Ombudsman has jurisdiction to conduct the
preliminary investigation over all public officials, including petitioner.
 2. Respondent DOJ Panel is neither authorized nor deputized under
OMB-DOJ Joint Circular No. 95-001 to conduct the preliminary
investigation involving Honasan.
3. Even if deputized, the respondent DOJ Panel is still without authority
since OMB-DOJ Joint Circular No. 95-001 is ultra vires  for being violative
of the Constitution, beyond the powers granted to the Ombudsman by
R.A. 6770 and inoperative due to lack of publication, hence null and void.
4. Since petitioner is charged with coup de 'etat in relation to his office, it
is the Office of the Ombudsman which has the jurisdiction to conduct the
preliminary investigation.
5. The respondent DOJ Panel gravely erred in deferring the resolution of
petitioner's Motion to Clarify Jurisdiction since the issue involved therein is
determinative of the validity of the preliminary investigation.
The arguments of respondent Ombudsman are:
6. Respondent DOJ Panel gravely erred when it resolved petitioner's
Motion in the guise of directing him to submit Counter-Affidavit and yet
refused and/or failed to perform its duties to resolve petitioner's Motion
stating its legal and factual bases.
The arguments of respondent DOJ Panel are:
1. The DOJ has jurisdiction to conduct the preliminary investigation on
petitioner pursuant to Section 3, Chapter I, Title III, Book IV of the Revised
Administrative Code of 1987 in relation to P.D. No. 1275, as amended by
P.D. No. 1513.
2. Petitioner is charged with a crime that is not directly nor intimately
related to his public office as a Senator. The factual allegations in the
complaint and the supporting affidavits are bereft of the requisite nexus
between petitioner's office and the acts complained of.
3. The challenge against the constitutionality of the OMB-DOJ Joint
Circular, as a ground to question the jurisdiction of the DOJ over the
complaint below, is misplaced. The jurisdiction of the DOJ is a statutory
grant under the Revised Administrative Code. It is not derived from any
provision of the joint circular which embodies the guidelines governing the
authority of both the DOJ and the Office of the Ombudsman to conduct
preliminary investigation on offenses charged in relation to public office.
4. Instead of filing his counter-affidavit, petitioner opted to file a motion to
clarify jurisdiction which, for all intents and purposes, is actually a motion
to dismiss that is a prohibited pleading under Section 3, Rule 112 of the
Revised Rules of Criminal Procedure. The DOJ Panel is not required to
act or even recognize it since a preliminary investigation is required solely
for the purpose of determining whether there is a sufficient ground to
engender a well founded belief that a crime has been committed and the
respondent is probably guilty thereof and should be held for trial. The DOJ
panel did not outrightly reject the motion of petitioner but ruled to pass
upon the same in the determination of the probable cause; thus, it has not
violated any law or rule or any norm of discretion.
1. The DOJ Panel has full authority and jurisdiction to conduct preliminary
investigation over the petitioner for the reason that the crime of coup
d'etat under Article No. 134-A of the Revised Penal Code (RPC) may fall
under the jurisdiction of the Sandiganbayan only if the same is committed
"in relation to office" of petitioner, pursuant to Section 4, P.D. No. 1606, as
amended by R.A. No. 7975 and R.A. No. 8249.
2. Petitioner's premise that the DOJ Panel derives its authority to conduct
preliminary investigation over cases involving public officers solely from
the OMB-DOJ Joint Circular No. 95-001 is misplaced because the DOJ's
concurrent authority with the OMB to conduct preliminary investigation of
cases involving public officials has been recognized in Sanchez vs.
Demetriou (227 SCRA 627 [1993]) and incorporated in Section 4, Rule
112 of the Revised Rules of Criminal Procedure.
3. Petitioner's assertion that the Joint Circular is ultra vires  and the DOJ
cannot be deputized by the Ombudsman en masse but must be given in
reference to specific cases has no factual or legal basis. There is no rule
or law which requires the Ombudsman to write out individualized
authorities to deputize prosecutors on a per case basis. The power of the
Ombudsman to deputize DOJ prosecutors proceeds from the
 Constitutional grant of power to request assistance from any government
agency necessary to discharge its functions, as well as from the statutory
authority to so deputize said DOJ prosecutors under Sec. 31 of RA 6770.
4. The Joint Circular which is an internal arrangement between the DOJ
and the Office of the Ombudsman need not be published since it neither
contains a penal provision nor does it prescribe a mandatory act or
prohibit any under pain or penalty. It does not regulate the conduct of
persons or the public, in general.
The Court finds the petition without merit.
The authority of respondent DOJ Panel is based not on the assailed OMB-DOJ
Circular No. 95-001 but on the provisions of the 1987 Administrative Code under
Chapter I, Title III, Book IV, governing the DOJ, which provides:
Sec. 1. Declaration of policy - It is the declared policy of the State to
provide the government with a principal law agency which shall be both
its legal counsel and prosecution arm; administer the criminal justice
system in accordance with the accepted processes thereof consisting in
the investigation of the crimes, prosecution of offenders and
administration of the correctional system; …
Sec. 3. Powers and Functions - To accomplish its mandate, the
Department shall have the following powers and functions:
… The Court is not convinced. Paragraph (1) of Section 13, Article XI of the
(2) Investigate the commission of crimes, prosecute offenders and
administer the probation and correction system; (Emphasis supplied)
and Section 1 of P.D. 1275, effective April 11, 1978, to wit:
SECTION 1. Creation of the National Prosecution Service; Supervision
and Control of the Secretary of Justice. – There is hereby created and
established a National Prosecution Service under the supervision and
control of the Secretary of Justice, to be composed of the Prosecution
Staff in the Office of the Secretary of Justice and such number of Regional
State Prosecution Offices, and Provincial and City Fiscal's Offices as are
hereinafter provided, which shall be primarily responsible for the
investigation and prosecution of all cases involving violations of penal
laws. (Emphasis supplied)
Petitioner claims that it is the Ombudsman, not the DOJ, that has the jurisdiction to
conduct the preliminary investigation under paragraph (1), Section 13, Article XI of
the 1987 Constitution, which confers upon the Office of the Ombudsman the power
to investigate on its own, or on complaint by any person, any act or omission of any
public official, employee, office or agency, when such act or omission appears to be
illegal, unjust, improper, or inefficient. Petitioner rationalizes that the 1987
Administrative Code and the Ombudsman Act of 1989 cannot prevail over the
Constitution, pursuant to Article 7 of the Civil Code, which provides:
Article 7. Laws are repealed only by subsequent ones, and their violation
or non-observance shall not be excused by disuse, or custom or practice
to the contrary.
When the courts declare a law to be inconsistent with the Constitution, the
former shall be void and the latter shall govern.
Administrative or executive acts, orders and regulations shall be valid only when
they are not contrary to the laws or the Constitution.
and Mabanag vs. Lopez Vito.2
Constitution, viz:
SEC. 13. The Office of the Ombudsman shall have the following powers,
functions, and duties:
1. Investigate on its own, or on complaint by any person, any act or
omission of any public official, employee, office or agency, when such act
or omission appears to be illegal, unjust, improper, or inefficient.
does not exclude other government agencies tasked by law to investigate and
prosecute cases involving public officials. If it were the intention of the framers of the
1987 Constitution, they would have expressly declared the exclusive conferment of
the power to the Ombudsman. Instead, paragraph (8) of the same Section 13 of the
Constitution provides:
(8) Promulgate its rules of procedure and exercise such other powers or
perform such functions or duties as may be provided by law.
Accordingly, Congress enacted R.A. 6770, otherwise known as "The Ombudsman
Act of 1989." Section 15 thereof provides:
Sec. 15. Powers, Functions and Duties. - The Office of the Ombudsman
shall have the following powers, functions and duties:
(1) Investigate and prosecute on its own or on complaint by any person,
any act or omission of any public officer or employee, office or agency,
when such act or omission appears to be illegal, unjust, improper or
inefficient. It has primary jurisdiction over cases cognizable by the
Sandiganbayan and, in the exercise of this primary jurisdiction, it may take
over, at any stage, from any investigatory agency of the government, the
investigation of such cases.
…. (Emphasis supplied)
Pursuant to the authority given to the Ombudsman by the Constitution and the
Ombudsman Act of 1989 to lay down its own rules and procedure, the Office of the
Ombudsman promulgated Administrative Order No. 8, dated November 8, 1990,
entitled, Clarifying and Modifying Certain Rules of Procedure of the Ombudsman , to
wit:
A complaint filed in or taken cognizance of by the Office of the
Ombudsman charging any public officer or employee including those in
government-owned or controlled corporations, with an act or omission
alleged to be illegal, unjust, improper or inefficient is an Ombudsman
case. Such a complaint may be the subject of criminal or administrative
proceedings, or both.
For purposes of investigation and prosecution, Ombudsman cases
involving criminal offenses may be subdivided into two classes, to wit: (1)
those cognizable by the Sandiganbayan, and (2) those falling under the
jurisdiction of the regular courts. The difference between the two, aside
from the category of the courts wherein they are filed, is on the authority to
investigate as distinguished from the authority to prosecute, such cases.
The power to investigate or conduct a preliminary investigation on any
Ombudsman case may be exercised by an investigator or prosecutor of
the Office of the Ombudsman, or by any Provincial or City Prosecutor or
their assistance, either in their regular capacities or as deputized
Ombudsman prosecutors.
The prosecution of cases cognizable by the Sandiganbayan shall be
under the direct exclusive control and supervision of the Office of the
Ombudsman. In cases cognizable by the regular Courts, the control and
supervision by the Office of the Ombudsman is only in Ombudsman cases
in the sense defined above. The law recognizes a concurrence of
jurisdiction between the Office of the Ombudsman and other investigative
agencies of the government in the prosecution of cases cognizable by
regular courts. (Emphasis supplied)
It is noteworthy that as early as 1990, the Ombudsman had properly differentiated
the authority to investigate cases from the authority to prosecute cases. It is on this
note that the Court will first dwell on the nature or extent of the authority of the
Ombudsman to investigate cases. Whence, focus is directed to the second
sentence of paragraph (1), Section 15 of the Ombudsman Act which specifically
provides that the Ombudsman has primary jurisdiction over cases cognizable by the
Sandiganbayan, and, in the exercise of this primary jurisdiction, it may take over, at
any stage, from any investigating agency of the government, the investigation of
such cases.
That the power of the Ombudsman to investigate offenses involving public officers
or employees is not exclusive but is concurrent with other similarly authorized
agencies of the government such as the provincial, city and state prosecutors has
long been settled in several decisions of the Court.
In Cojuangco, Jr. vs. Presidential Commission on Good Government,  decided in
1990, the Court expressly declared:
 A reading of the foregoing provision of the Constitution does not show that
the power of investigation including preliminary investigation vested on the
Ombudsman is exclusive.3
Interpreting the primary jurisdiction of the Ombudsman under Section 15 (1) of the
Ombudsman Act, the Court held in said case:
Under Section 15 (1) of Republic Act No. 6770 aforecited, the
Ombudsman has primary jurisdiction over cases cognizable by the
Sandiganbayan so that it may take over at any stage from any
investigatory agency of the government, the investigation of such
cases. The authority of the Ombudsman to investigate offenses involving
public officers or employees is not exclusive but is concurrent with other
similarly authorized agencies of the government. Such investigatory
agencies referred to include the PCGG and the provincial and city
prosecutors and their assistants, the state prosecutors and the judges of
the municipal trial courts and municipal circuit trial court.
In other words the provision of the law has opened up the authority to
conduct preliminary investigation of offenses cognizable by the
Sandiganbayan to all investigatory agencies of the government duly
authorized to conduct a preliminary investigation under Section 2, Rule
112 of the 1985 Rules of Criminal Procedure with the only qualification
that the Ombudsman may take over at any stage of such investigation in
the exercise of his primary jurisdiction.4 (Emphasis supplied)
A little over a month later, the Court, in Deloso vs. Domingo,5 pronounced that the
Ombudsman, under the authority of Section 13 (1) of the 1987 Constitution, has
jurisdiction to investigate any crime committed by a public official, elucidating thus:
As protector of the people, the office of the Ombudsman has the power,
function and duty to "act promptly on complaints filed in any form or
manner against public officials" (Sec. 12) and to "investigate x x x any act
or omission of any public official x x x when such act or omission appears
to be illegal, unjust, improper or inefficient." (Sec. 13[1].) The Ombudsman
is also empowered to "direct the officer concerned," in this case the
Special Prosecutor, "to take appropriate action against a public official x x
x and to recommend his prosecution" (Sec. 13[3]).
The clause "any [illegal] act or omission of any public official" is broad
enough to embrace any crime committed by a public official. The law does
not qualify the nature of the illegal act or omission of the public official or
employee that the Ombudsman may investigate. It does not require that
the act or omission be related to or be connected with or arise from, the
performance of official duty. Since the law does not distinguish, neither
should we.
The reason for the creation of the Ombudsman in the 1987 Constitution
and for the grant to it of broad investigative authority, is to insulate said
office from the long tentacles of officialdom that are able to penetrate
judges' and fiscals' offices, and others involved in the prosecution of erring
public officials, and through the exertion of official pressure and influence,
quash, delay, or dismiss investigations into malfeasances and
misfeasances committed by public officers. It was deemed necessary,
therefore, to create a special office to investigate all  criminal complaints
against public officers regardless of whether or not the acts or omissions
complained of are related to or arise from the performance of the duties of
their office. The Ombudsman Act makes perfectly clear that the
jurisdiction of the Ombudsman encompasses "all kinds of malfeasance,
misfeasance, and non-feasance that have been committed by any officer
or employee as mentioned in Section 13 hereof, during his tenure  of
office" (Sec. 16, R.A. 6770).
.........
Indeed, the labors of the constitutional commission that created the
Ombudsman as a special body to investigate erring public officials would
be wasted if its jurisdiction were confined to the investigation of minor and
less grave offenses arising from, or related to, the duties of public office,
but would exclude those grave and terrible crimes that spring from abuses
of official powers and prerogatives, for it is the investigation of the latter
where the need for an independent, fearless, and honest investigative
body, like the Ombudsman, is greatest.6
At first blush, there appears to be conflicting views in the rulings of the Court in
the Cojuangco, Jr. case and the Deloso  case. However, the contrariety is more
apparent than real. In subsequent cases, the Court elucidated on the nature of the
powers of the Ombudsman to investigate.
In 1993, the Court held in Sanchez vs. Demetriou,7 that while it may be true that the
Ombudsman has jurisdiction to investigate and prosecute any illegal act or omission
of any public official, the authority of the Ombudsman to investigate is merely a
primary and not an exclusive authority, thus:
The Ombudsman is indeed empowered under Section 15, paragraph (1)
of RA 6770 to investigate and prosecute any illegal act or omission of any
public official. However as we held only two years ago in the case of
Aguinaldo vs. Domagas,8 this authority "is not an exclusive authority but
rather a shared or concurrent authority in respect of the offense charged."
Petitioners finally assert that the information and amended information
filed in this case needed the approval of the Ombudsman. It is not
disputed that the information and amended information here did not have
the approval of the Ombudsman. However, we do not believe that such
approval was necessary at all. In Deloso v. Domingo, 191 SCRA 545
(1990), the Court held that the Ombudsman has authority to investigate
charges of illegal acts or omissions on the part of any public official, i.e.,
any crime imputed to a public official. It must, however, be pointed out that
the authority of the Ombudsman to investigate "any [illegal] act or
omission of any public official" (191 SCRA 550) is not an exclusive
authority but rather a shared or concurrent authority in respect of the
offense charged, i.e., the crime of sedition. Thus, the non-involvement of
the office of the Ombudsman in the present case does not have any
adverse legal consequence upon the authority of the panel of prosecutors
to file and prosecute the information or amended information.
In fact, other investigatory agencies of the government such as the
Department of Justice in connection with the charge of sedition, and the
Presidential Commission on Good Government, in ill gotten wealth cases,
may conduct the investigation.9 (Emphasis supplied)
In Natividad vs. Felix,10 a 1994 case, where the petitioner municipal mayor
contended that it is the Ombudsman and not the provincial fiscal who has the
authority to conduct a preliminary investigation over his case for alleged Murder, the
Court held:
The Deloso case has already been re-examined in two cases,
namely Aguinaldo vs. Domagas and Sanchez vs. Demetriou. However, by
way of amplification, we feel the need for tracing the history of the
legislation relative to the jurisdiction of Sandiganbayan since the
Ombudsman's primary jurisdiction is dependent on the cases cognizable
by the former.
In the process, we shall observe how the policy of the law, with reference
to the subject matter, has been in a state of flux.
These laws, in chronological order, are the following: (a) Pres. Decree No.
1486, -- the first law on the Sandiganbayan; (b) Pres. Decree No. 1606
which expressly repealed Pres. Decree No. 1486; (c) Section 20 of Batas
Pambansa Blg. 129; (d) Pres. Decree No. 1860; and (e) Pres. Decree No.
1861.
The latest law on the Sandiganbayan, Sec. 1 of Pres. Decree No. 1861
reads as follows:
"SECTION 1. Section 4 of Presidential Decree No. 1606 is
hereby amended to read as follows:
'SEC. 4. Jurisdiction. – The Sandiganbayan shall exercise:
'(a) Exclusive original jurisdiction in all cases involving:
...
(2) Other offenses or felonies committed by public
officers and employees in relation to their office,
including those employed in government-owned or
controlled corporation, whether simple or complexed
with other crimes, where the penalty prescribed by law
is higher that prision correccional or imprisonment for
six (6) years, or a fine of P6,000: PROVIDED,
HOWEVER, that offenses or felonies mentioned in
this paragraph where the penalty prescribed by law
does not exceed prision correccional or imprisonment
for six (6) years or a fine of P6,000 shall be tried by
the proper Regional Trial Court, Metropolitan Trial
 Court, Municipal Trial Court and Municipal Circuit Trial
Court."
A perusal of the aforecited law shows that two requirements must concur
under Sec. 4 (a) (2) for an offense to fall under the Sandiganbayan's
jurisdiction, namely: the offense committed by the public officer must be in
relation to his office and the penalty prescribed be higher then prision
correccional or imprisonment for six (6) years, or a fine of P6,000.00.11
Applying the law to the case at bench, we find that although the second
requirement has been met, the first requirement is wanting. A review of
these Presidential Decrees, except Batas Pambansa Blg. 129, would
reveal that the crime committed by public officers or employees must be
"in relation to their office" if it is to fall within the jurisdiction of the
Sandiganbayan. This phrase which is traceable to Pres. Decree No. 1468,
has been retained by Pres. Decree No. 1861 as a requirement before the
Ombudsman can acquire primary jurisdiction on its power to investigate.
It cannot be denied that Pres. Decree No. 1861 is in pari materia to Article
XI, Sections 12 and 13 of the 1987 Constitution and the Ombudsman Act
of 1989 because, as earlier mentioned, the Ombudsman's power to
investigate is dependent on the cases cognizable by the Sandiganbayan.
Statutes are in pari materia when they relate to the same person or thing
or to the same class of persons or things, or object, or cover the same
specific or particular subject matter.
It is axiomatic in statutory construction that a statute must be interpreted,
not only to be consistent with itself, but also to harmonize with other laws
on the same subject matter, as to form a complete, coherent and
intelligible system. The rule is expressed in the maxim, "interpretare et
concordare legibus est optimus interpretandi," or every statute must be so
construed and harmonized with other statutes as to form a uniform system
of jurisprudence. Thus, in the application and interpretation of Article XI,
Sections 12 and 13 of the 1987 Constitution and the Ombudsman Act of
1989, Pres. Decree No. 1861 must be taken into consideration. It must be
assumed that when the 1987 Constitution was written, its framers had in
mind previous statutes relating to the same subject matter. In the absence
of any express repeal or amendment, the 1987 Constitution and the
Ombudsman Act of 1989 are deemed in accord with existing statute,
specifically, Pres. Decree No. 1861.12 (Emphasis supplied)
R.A. No. 8249 which amended Section 4, paragraph (b) of the Sandiganbayan Law
(P.D. 1861) likewise provides that for other offenses, aside from those enumerated
under paragraphs (a) and (c), to fall under the exclusive jurisdiction of the
Sandiganbayan, they must have been committed by public officers or employees in
relation to their office.
In summation, the Constitution, Section 15 of the Ombudsman Act of 1989 and
Section 4 of the Sandiganbayan Law, as amended, do not give to the Ombudsman
exclusive jurisdiction to investigate offenses committed by public officers or
employees. The authority of the Ombudsman to investigate offenses involving public
officers or employees is concurrent with other government investigating agencies
such as provincial, city and state prosecutors. However, the Ombudsman, in the
exercise of its primary jurisdiction over cases cognizable by the Sandiganbayan,
may take over, at any stage, from any investigating agency of the government, the
investigation of such cases.
In other words, respondent DOJ Panel is not precluded from conducting any
investigation of cases against public officers involving violations of penal laws but if
the cases fall under the exclusive jurisdiction of the Sandiganbayan, then
respondent Ombudsman may, in the exercise of its primary jurisdiction take over at
any stage.
Thus, with the jurisprudential declarations that the Ombudsman and the DOJ have
concurrent jurisdiction to conduct preliminary investigation, the respective heads of
said offices came up with OMB-DOJ Joint Circular No. 95-001 for the proper
guidelines of their respective prosecutors in the conduct of their investigations, to
wit:
OMB-DOJ JOINT CIRCULAR NO. 95-001
Series of 1995
TO: ALL GRAFT INVESTIGATION/SPECIAL PROSECUTION OFFICERS
OF THE OFFICE OF THE OMBUDSMAN
ALL REGIONAL STATE PROSECUTORS AND THEIR ASSISTANTS,
PROVINCIAL/CITY PROSECUTORS AND THEIR ASSISTANTS, STATE
PROSECUTORS AND PROSECUTING ATTORNEYS OF THE
DEPARTMENT OF JUSTICE.
SUBJECT: HANDLING COMPLAINTS FILED AGAINST PUBLIC
OFFICERS AND EMPLOYEES, THE CONDUCT OF PRELIMINARY
INVESTIGATION, PREPARATION OF RESOLUTIONS AND
INFORMATIONS AND PROSECUTION OF CASES BY PROVINCIAL
AND CITY PROSECUTORS AND THEIR ASSISTANTS.
x-------------------------------------------------------------------------------------------------
------x
In a recent dialogue between the OFFICE OF THE OMBUDSMAN and the
DEPARTMENT OF JUSTICE, discussion centered around the latest
pronouncement of the supreme court on the extent to which the
ombudsman may call upon the government prosecutors for assistance in
the investigation and prosecution of criminal cases cognizable by his
office and the conditions under which he may do so. Also discussed was
Republic Act No. 7975 otherwise known as "an act to strengthen the
functional and structural organization of the sandiganbayan, amending for
the purpose presidential decree no. 1606, as amended" and its
implications on the jurisdiction of the office of the Ombudsman on criminal
offenses committed by public officers and employees.
Concerns were expressed on unnecessary delays that could be caused
by discussions on jurisdiction between the OFFICE OF THE
OMBUDSMAN and the department of justice, and by procedural conflicts
in the filing of complaints against public officers and employees, the
conduct of preliminary investigations, the preparation of resolutions and
informations, and the prosecution of cases by provincial and city
prosecutors and their assistants as deputized prosecutors of the
ombudsman.
Recognizing the concerns, the office of the ombudsman and the
department of justice, in a series of consultations, have agreed on the
following guidelines to be observed in the investigation and prosecution of
cases against public officers and employees:
1. Preliminary investigation and prosecution of offenses committed by
public officers and employees in relation to office whether cognizable by
the sandiganbayan or the regular courts, and whether filed with the office
of the ombudsman or with the office of the provincial/city prosecutor shall
be under the control and supervision of the office of the ombudsman.
2. Unless the Ombudsman under its Constitutional mandate finds reason
to believe otherwise, offenses not in relation to office and cognizable by
the regular courts shall be investigated and prosecuted by the office of the
provincial/city prosecutor, which shall rule thereon with finality.
3. Preparation of criminal information shall be the responsibility of the
investigating officer who conducted the preliminary investigation.
Resolutions recommending prosecution together with the duly
accomplished criminal informations shall be forwarded to the appropriate
approving authority.
4. Considering that the office of the ombudsman has jurisdiction over
public officers and employees and for effective monitoring of all
investigations and prosecutions of cases involving public officers and
employees, the office of the provincial/city prosecutor shall submit to the
office of the ombudsman a monthly list of complaints filed with their
respective offices against public officers and employees.
Manila, Philippines, October 5, 1995.
(signed) (signed)
TEOFISTO T. GUINGONA, JR. ANIANO A. DESIERTO
Secretary Ombudsman
Department of Justice Office of the Ombudsman
A close examination of the circular supports the view of the respondent
Ombudsman that it is just an internal agreement between the Ombudsman and the
DOJ.
Sections 2 and 4, Rule 112 of the Revised Rules on Criminal Procedure on
Preliminary Investigation, effective December 1, 2000, to wit:
SEC. 2. Officers authorized to conduct preliminary investigations-
The following may conduct preliminary investigations:
(a) Provincial or City Prosecutors and their assistants;
(b) Judges of the Municipal Trial Courts and Municipal Circuit
Trial Courts;
(c) National and Regional State Prosecutors; and
(d) Other officers as may be authorized by law.
Their authority to conduct preliminary investigation shall include all crimes
cognizable by the proper court in their respective territorial jurisdictions.
SEC. 4. Resolution of investigating prosecutor and its review. - If the
investigating prosecutor finds cause to hold the respondent for trial, he
shall prepare the resolution and information, He shall certify under oath in
the information that he, or as shown by the record, an authorized officer,
has personally examined the complainant and his witnesses; that there is
reasonable ground to believe that a crime has been committed and that
the accused is probably guilty thereof; that the accused was informed of
the complaint and of the evidence submitted against him; and that he was
given an opportunity to submit controverting evidence. Otherwise, he shall
recommend the dismissal of the complaint.
Within five (5) days from his resolution, he shall forward the record of the
case to the provincial or city prosecutor or chief state prosecutor, or to the
Ombudsman or his deputy in cases of offenses cognizable by the
Sandiganbayan in the exercise of its original jurisdiction. They shall act on
the resolution within ten (10) days from their receipt thereof and shall
immediately inform the parties of such action.
No complaint or information may be filed or dismissed by an investigating
prosecutor without the prior written authority or approval of the provincial
or city prosecutor or chief state prosecutor or the Ombudsman or his
deputy.
Where the investigating prosecutor recommends the dismissal of the
complaint but his recommendation is disapproved by the provincial or city
prosecutor or chief state prosecutor or the Ombudsman or his deputy on
the ground that a probable cause exists, the latter may, by himself file the
information against the respondent, or direct another assistant prosecutor
or state prosecutor to do so without conducting another preliminary
investigation.
If upon petition by a proper party under such rules as the Department of
Justice may prescribe or motu proprio, the Secretary of Justice reverses
or modifies the resolution of the provincial or city prosecutor or chief state
prosecutor, he shall direct the prosecutor concerned either to file the
corresponding information without conducting another preliminary
investigation, or to dismiss or move for dismissal of the complaint or
information with notice to the parties. The same Rule shall apply in
preliminary investigations conducted by the officers of the Office of the
Ombudsman. (Emphasis supplied)
confirm the authority of the DOJ prosecutors to conduct preliminary investigation of
criminal complaints filed with them for offenses cognizable by the proper court within
their respective territorial jurisdictions, including those offenses which come within
the original jurisdiction of the Sandiganbayan; but with the qualification that in
offenses falling within the original jurisdiction of the Sandiganbayan, the prosecutor
shall, after their investigation, transmit the records and their resolutions to the
Ombudsman or his deputy for appropriate action. Also, the prosecutor cannot
dismiss the complaint without the prior written authority of the Ombudsman or his
deputy, nor can the prosecutor file an Information with the Sandiganbayan without
being deputized by, and without prior written authority of the Ombudsman or his
deputy.
Next, petitioner contends that under OMB-Joint Circular No. 95-001, there is no
showing that the Office of the Ombudsman has deputized the prosecutors of the
DOJ to conduct the preliminary investigation of the charge filed against him.
We find no merit in this argument. As we have lengthily discussed, the Constitution,
the Ombudsman Act of 1989, Administrative Order No. 8 of the Office of the
Ombudsman, the prevailing jurisprudence and under the Revised Rules on Criminal
Procedure, all recognize and uphold the concurrent jurisdiction of the Ombudsman
and the DOJ to conduct preliminary investigation on charges filed against public
officers and employees.
To reiterate for emphasis, the power to investigate or conduct preliminary
investigation on charges against any public officers or employees may be exercised
by an investigator or by any provincial or city prosecutor or their assistants, either in
their regular capacities or as deputized Ombudsman prosecutors. The fact that all
prosecutors are in effect deputized Ombudsman prosecutors under the OMB-DOJ
Circular is a mere superfluity. The DOJ Panel need not be authorized nor deputized
by the Ombudsman to conduct the preliminary investigation for complaints filed with
it because the DOJ's authority to act as the principal law agency of the government
and investigate the commission of crimes under the Revised Penal Code is derived
from the Revised Administrative Code which had been held in
the Natividad  case13 as not being contrary to the Constitution. Thus, there is not
even a need to delegate the conduct of the preliminary investigation to an agency
which has the jurisdiction to do so in the first place. However, the Ombudsman may
assert its primary jurisdiction at any stage of the investigation.
Petitioner's contention that OMB-DOJ Joint Circular No. 95-001 is ineffective on the
ground that it was not published is not plausible. We agree with and adopt the
Ombudsman's dissertation on the matter, to wit:
Petitioner appears to be of the belief, although NOT founded on a proper
reading and application of jurisprudence, that OMB-DOJ Joint Circular No.
95-001, an internal arrangement between the DOJ and the Office of the
Ombudsman, has to be published.
As early as 1954, the Honorable Court has already laid down the rule in
the case of People vs. Que Po Lay, 94 Phil. 640 (1954) that only circulars
and regulations which prescribe a penalty for its violation should be
published before becoming effective, this, on the general principle and
theory that before the public is bound by its contents, especially its penal
provision, a law, regulation or circular must first be published and the
people officially and specifically informed of said contents and its
penalties: said precedent, to date, has not yet been modified or reversed.
OMB-DOJ Joint Circular No. 95-001 DOES NOT contain any penal
provision or prescribe a mandatory act or prohibit any, under pain or
penalty.
What is more, in the case of Tanada v. Tuvera, 146 SCRA 453 (1986), the
Honorable Court ruled that:
Interpretative regulations and those merely internal in nature, that is,
regulating only the personnel of the administrative agency and not the
public, need not be published. Neither is publication required of the so-
called letters of instructions issued by administrative superiors concerning
the rules or guidelines to be followed by their subordinates in the
performance of their duties. (at page 454. emphasis supplied)
OMB-DOJ Joint Circular No. 95-001 is merely an internal circular between
the DOJ and the Office of the Ombudsman, outlining authority and
responsibilities among prosecutors of the DOJ and of the Office of the
Ombudsman in the conduct of preliminary investigation. OMB-DOJ Joint
Circular No. 95-001 DOES NOT regulate the conduct of persons or the
public, in general.
Accordingly, there is no merit to petitioner's submission that OMB-DOJ
Joint Circular No. 95-001 has to be published.14
Petitioner insists that the Ombudsman has jurisdiction to conduct the preliminary
investigation because petitioner is a public officer with salary Grade 31 so that the
case against him falls exclusively within the jurisdiction of the Sandiganbayan.
Considering the Court's finding that the DOJ has concurrent jurisdiction to
investigate charges against public officers, the fact that petitioner holds a Salary
Grade 31 position does not by itself remove from the DOJ Panel the authority to
investigate the charge of coup d'etat against him.
The question whether or not the offense allegedly committed by petitioner is one of
those enumerated in the Sandiganbayan Law that fall within the exclusive
jurisdiction of the Sandiganbayan will not be resolved in the present petition so as
not to pre-empt the result of the investigation being conducted by the DOJ Panel as
to the questions whether or not probable cause exists to warrant the filing of the
information against the petitioner; and to which court should the information be filed
considering the presence of other respondents in the subject complaint.
WHEREFORE, the petition for certiorari is DISMISSED for lack of merit.
SO ORDERED.
Davide, Jr., C.J., Panganiban, Carpio, Corona, Carpio-Morales, Callejo, Sr.,
Azcuna, and Tinga, JJ., concur.
Puno, J., joins J. Ynares-Santiago.
Vitug, J., see separate dissenting opinion.
Quisumbing, J., joins the dissent.
Ynares-Santiago, J., see separate dissenting opinion.
Sandoval-Gutierrez, J., see dissenting opinion.
SEPARATE OPINION
VITUG, J.:
Preliminary investigation is an initial step in the indictment of an accused; it is a
substantive right, not merely a formal or a technical requirement, 1 which an accused
can avail himself of in full measure. Thus, an accused is entitled to rightly assail the
conduct of an investigation that does not accord with the law. He may also question
the jurisdiction or the authority of the person or agency conducting that investigation
and, if bereft of such jurisdiction or authority, to demand that it be undertaken strictly
in conformity with the legal prescription.2
The Ombudsman is empowered3 to, among other things, investigate and prosecute
on its own or on complaint by any person, any act or omission of any public officer
or employee, office or agency, when such act or omission appears to be illegal,
unjust, improper or inefficient. It has primary jurisdiction over cases cognizable by
the Sandiganbayan and, in the exercise of this primary jurisdiction, it may, at any
stage, take over from any agency of Government the investigation of such cases.
This statutory provision, by and large, is a restatement of the constitutional grant to
the Ombudsman of the power to investigate and prosecute "any act or omission of
any public officer or employee, office or agency, when such act or omission appears
to be illegal x x x."4
The Panel of Investigating Prosecutors of the Department of Justice, in taking
cognizance of the preliminary investigation on charges of coup d'etat against
petitioner Gregorio Honasan, relies on OMB-DOJ Circular No. 95-001. That joint
circular must be understood as being merely a working arrangement between the
Office of the Ombudsman (OMB) and the Department of Justice (DOJ) that must not
be meant to be such a blanket delegation to the DOJ as to generally allow it to
conduct preliminary investigation over any case cognizable by the OMB.
While Section 31 of Republic Act No. 6770 states that the Ombudsman may
"designate or deputize any fiscal, state prosecutor or lawyer in the government
service to act as special investigator or prosecutor to assist in the investigation and
prosecution of certain cases," the provision cannot be assumed, however, to be an
undefined and broad entrustment of authority. If it were otherwise, it would be
unable to either withstand the weight of burden to be within constitutional
parameters or the proscription against undue delegation of powers. The deputized
fiscal, state prosecutor or government lawyer must in each instance be named; the
case to which the deputized official is assigned must be specified; and the
investigation must be conducted under the supervision and control of the
Ombudsman. The Ombudsman remains to have the basic responsibility, direct or
incidental, in the investigation and prosecution of such cases.
The Sandiganbayan law5 grants to the Sandiganbayan exclusive original jurisdiction
over offenses or felonies, whether simple or complexed with other crimes,
committed by the public officials, including members of Congress, in relation to their
office. The crime of coup d'etat, with which petitioner, a member of the Senate, has
been charged, is said to be closely linked to his "National Recovery Program," a
publication which encapsules the bills and resolutions authored or sponsored by him
on the senate floor. I see the charge as being then related to and bearing on his
official function.
On the above score, I vote to grant the petition.
DISSENTING OPINION
YNARES-SANTIAGO, J.:
The first question to answer is which court has jurisdiction to try a Senator who is
accused of coup d'etat. Behind the simple issue is a more salient question - Should
this Court allow an all too restrictive and limiting interpretation of the law rather than
take a more judicious approach of interpreting the law by the spirit, which vivifies,
and not by the letter, which killeth?
The elemental thrust of the Majority view is that the Department of Justice
(DOJ), not the Office of the Ombudsman, has the jurisdiction to
investigate the petitioner, a Senator, for the crime of coup d'etat  pursuant
to Section 4 of Presidential Decree No. 1606 as amended by Republic Act
No. 8249 (Sandiganbayan Law). The Majority maintains that since the
crime for which petitioner is charged falls under Section 4, paragraph (b)
of the Sandiganbayan Law, it is imperative to show that petitioner
committed the offense in relation to his office as Senator. It reasoned that
since petitioner committed the felonious acts, as alleged in the complaint,
not in connection with or in relation to his public office, it is the DOJ, and
not the Office of the Ombudsman, which is legally tasked to conduct the
preliminary investigation.
In light of the peculiar circumstances prevailing in the instant case and in
consideration of the policies relied upon by the Majority, specifically, the
Sandiganbayan Law and Republic Act No. 6770 (The Ombudsman Act of
1989), I submit that the posture taken by the Majority seriously deviates
from and renders nugatory the very intent for which the laws were
enacted.
The crime of coup d'etat, if committed by members of Congress or by a
public officer with a salary grade above 27, falls within the exclusive
original jurisdiction of the Sandiganbayan. Section 4 of P.D. 1606, as
amended, provides:
Sec. 4. Jurisdiction.- The Sandiganbayan shall exercise exclusive original
jurisdiction in all cases involving:
a. Violations of Republic Act No. 3019, as amended, otherwise known as
the Anti-Graft and Corrupt Practices Act, Republic Act No. 1379, and
Chapter II, Section 2, Title VII, Book II of the Revised Penal Code, where
one or more of the accused are officials occupying the following positions
in the government, whether in a permanent, acting or interim capacity, at
the time of the commission of the offense:
xxxxxxxxx
(2) Members of Congress and officials thereof classified as Grade "27"
and up under the Compensation and Position Classification Act of 1989;
x x x x x x x x x.
In the case of Lacson v. Executive Secretary,1 we clarified the exclusive original
jurisdiction of the Sandiganbayan pursuant to Presidential Decree ("PD") No. 1606,
as amended by Republic Act ("RA") Nos. 7975 and 8249, and made the following
definitive pronouncements:
Considering that herein petitioner and intervenors are being charged with
murder which is a felony punishable under Title VIII of the Revised Penal
Code, the governing provision on the jurisdictional offense is not
paragraph but paragraph b, Section 4 of R.A. 8249. This paragraph b
pertains to "other offenses or felonies whether simple or complexed with
other crimes committed by the public officials and employees mentioned
in subsection a of [Section 4, R.A. 8249] in relation to their office." The
phrase "other offenses or felonies" is too broad as to include the crime of
murder, provided it was committed in relation to the accused's official
functions. Thus, under said paragraph b, what determines the
Sandiganbayan's jurisdiction is the official position or rank of the offender
– that is, whether he is one of those public officers or employees
enumerated in paragraph a of Section 4. The offenses mentioned in
paragraphs a, b and c of the same Section 4 do not make any reference
to the criminal participation of the accused public officer as to whether he
is charged as a principal, accomplice or accessory. In enacting R.A. 8249,
the Congress simply restored the original provisions of P.D. 1606 which
does not mention the criminal participation of the public officer as a
requisite to determine the jurisdiction of the Sandiganbayan.
As worded, the Sandiganbayan Law requires that for a felony, coup d'etat in this
case, to fall under the exclusive jurisdiction of the Sandiganbayan, two requisites
must concur, namely: (1) that the public officer or employee occupies the position
corresponding to Salary Grade 27 or higher; and (2) that the crime is committed by
the public officer or employee in relation to his office. Applying the law to the case at
bar, the Majority found that although the first requirement has been met, the second
requirement is wanting. I disagree.
Following its definition, coup d'etat can only be committed by members of the
military or police or holding any public office or employment, with or without civilian
support. Article 134-A of the Revised Penal Code states:
 Article 134-A. Coup d'etat. – How committed. – The crime of coup d'etat is
a swift attack accompanied by violence, intimidation, threat, strategy or
stealth, directed against duly constituted authorities of the Republic of the
Philippines, or any military camp or installation, communications network,
public utilities or other facilities needed for the exercise and continued
possession of power, singly or simultaneously carried out anywhere in the
Philippines by any person or persons, belonging to the military or police or
holding any public office or employment, with or without civilian support or
participation for the purpose of seizing or diminishing state power.
A coup consists mainly of the military personnel and public officers and employees
seizing the controlling levers of the state, which is then used to displace the
government from its control of the remainder. As defined, it is a swift attack directed
against the duly constituted authorities or vital facilities and installations to seize
state power. It is therefore inherent in coup d'etat that the crime be committed "in
relation to" the office of a public officer or employee. The violence, intimidation,
threat, strategy or stealth which are inherent in the crime can only be accomplished
by those who possess a degree of trust reposed on such person in that position by
the Republic of the Philippines. It is by exploiting this trust that the swift attack can
be made. Since the perpetrators take advantage of their official positions, it follows
that coup d'etat can be committed only through acts directly or intimately related to
the performance of official functions, and the same need not be proved since it
inheres in the very nature of the crime itself.
It is contended by public respondent that the crime of coup d'etat cannot be
committed "in relation" to petitioner's office, since the performance of legislative
functions does not include its commission as part of the job description. To
accommodate this reasoning would be to render erroneous this Court's ruling
in People v. Montejo2 that "although public office is not an element of the crime of
murder in [the] abstract," the facts in a particular case may show that ". . . the
offense therein charged is intimately connected with [the accuseds'] respective
offices and was perpetrated while they were in the performance, though improper or
irregular, of their official functions." Simply put, if murder can be committed in the
performance of official functions, so can the crime of coup d'etat.
The Ombudsman is wrong when he says that legislative function is only "to make
laws, and to alter and repeal them." The growing complexity of our society and
governmental structure has so revolutionized the powers and duties of the
legislative body such that its members are no longer confined to making laws. They
can perform such other functions, which are, strictly speaking, not within the ambit
of the traditional legislative powers, for instance, to canvass presidential elections,
give concurrence to treaties, to propose constitutional amendments as well as
oversight functions. As an incident thereto and in pursuance thereof, members of
Congress may deliver privilege speeches, interpellations, or simply inform and
educate the public in respect to certain proposed legislative measures.
The complaint alleges that the meeting on June 4, 2003 of the alleged coup plotters
involved a discussion on the issues and concerns within the framework of the
National Recovery Program (NRP), a bill which petitioner authored in the Senate.
The act of the petitioner in ventilating the ails of the society and extolling the merits
of the NRP is part of his duties as legislator not only to inform the public of his
legislative measures but also, as a component of the national leadership, to find
answers to the many problems of our society. One can see therefore that Senator
Honasan's acts were "in relation to his office."
It is true that not every crime committed by a high-ranking public officer falls within
the exclusive original jurisdiction of the Sandiganbayan. It is also true that there
is no public office or employment that includes the commission of a crime as part of
its job description. However, to follow this latter argument would mean that there
would be no crime falling under Section 4, paragraph (b) PD No. 1606, as amended.
This would be an undue truncation of the Sandiganbayan's exclusive original
jurisdiction and contrary to the plain language of the provision.
Only by a reasonable interpretation of the scope and breadth of the term "offense
committed in relation to [an accused's] office" in light of the broad powers and
functions of the office of Senator, can we subserve the very purpose for which the
Sandiganbayan and the Office of the Ombudsman were created.
The raison d' etre for the creation of the Office of the Ombudsman in the 1987
Constitution and for the grant of its broad investigative authority, is to insulate said
office from the long tentacles of officialdom that are able to penetrate judges' and
fiscals' offices, and others involved in the prosecution of erring public officials, and
through the exertion of official pressure and influence, quash, delay, or dismiss
investigations into malfeasances, and misfeasances committed by public officers. 3
In similar vein, the Constitution provides for the creation of the Sandiganbayan to
attain the highest norms of official conduct required of public officers and
employees. It is a special court that tries cases involving public officers and
employees that fall within specific salary levels. Thus, section 4 of the
Sandiganbayan Law makes it a requirement that for offenses to fall under the
exlusive jurisdiction of the Sandiganbayan, the public officer involved must occupy a
position equivalent to Salary Grade 27 or higher. This salary grade requirement is
not a product of whim or an empty expression of fancy, but a way to ensure that
offenses which spring from official abuse will be tried by a judicial body insulated
from official pressure and unsusceptible to the blandishments, influence and
intimidation from those who seek to subvert the ends of justice.
If we were to give our assent to respondent's restrictive interpretation of the term "in
relation to his office," we would be creating an awkward situation wherein a powerful
member of Congress will be investigated by the DOJ which is an adjunct of the
executive department, and tried by a regular court which is much vulnerable to
outside pressure. Contrarily, a more liberal approach would bring the case to be
investigated and tried by specialized Constitutional bodies and, thus ensure the
integrity of the judicial proceedings.
Second, the "primary jurisdiction" of the Office of the Ombudsman to conduct the
preliminary investigation of an offense within the exclusive original jurisdiction of the
Sandiganbayan operates as a mandate on the Office of the Ombudsman, especially
when the person under investigation is a member of Congress. The Ombudsman's
refusal to exercise such authority, relegating the conduct of the preliminary
investigation of I.S. No. 2003-1120 to the respondent Investigating Panel appointed
by the Department of Justice ("DOJ") under DOJ Department Order No. 279, s.
2003, is a dereliction of a duty imposed by no less than the Constitution.
Insofar as the investigation of said crimes is concerned, I submit that the same
belongs to the primary jurisdiction of the Ombudsman. R.A. No. 6770 or the
Ombudsman Act of 1989, empowers the Ombudsman to conduct the investigation
of cases involving illegal acts or omissions committed by any public officer or
employee. Section 15, paragraph (1) of the Ombudsman Act of 1989 provides:
SECTION 15. Powers, Functions and Duties. – The Office of the
Ombudsman shall have the following powers, functions and duties:
1. Investigate and prosecute on its own or on complaint by any
person, any act or omission of any public officer or employee,
office or agency, when such act or omission appears to be
illegal, unjust, improper or inefficient. It has primary jurisdiction
over cases cognizable by the Sandiganbayan and, in the
exercise of this primary jurisdiction, it may take over, at any
stage, from any investigatory agency of Government, the
investigation of such cases; x x x.4
In Uy v. Sandiganbayan,5 the extent and scope of the jurisdiction of the Office of the
Ombudsman to conduct investigations was described as:
The power to investigate and to prosecute granted by law to the
Ombudsman is plenary and unqualified. It pertains to any act or omission
of any public officer or employee when such act or omission appears to be
illegal, unjust, improper or inefficient. The law does not make a distinction
between cases cognizable by the Sandiganbayan and those cognizable
by regular courts. It has been held that the clause "any illegal act or
omission of any public official" is broad enough to embrace any crime
committed by a public officer or employee.
The reference made by RA 6770 to cases cognizable by the
Sandiganbayan, particularly in Section 15 (1) giving the Ombudsman
primary jurisdiction over cases cognizable by the Sandiganbayan, and
Section 11 (4) granting the Special Prosecutor the power to conduct
preliminary investigation and prosecute criminal cases within the
jurisdiction of the Sandiganbayan, should not be construed as confining
the scope of the investigatory and prosecutory power of the Ombudsman
to such cases.
The "primary jurisdiction" of the Office of the Ombudsman in cases cognizable by
the Sandiganbayan was reiterated in Laurel v. Desierto:6
Section 15 of RA 6770 gives the Ombudsman primary jurisdiction over
cases cognizable by the Sandiganbayan. The law defines such primary
jurisdiction as authorizing the Ombudsman "to take over, at any stage,
from any investigatory agency of the government, the investigation of such
cases." The grant of this authority does not necessarily imply the
exclusion from its jurisdiction of cases involving public officers and
employees cognizable by other courts. The exercise by the Ombudsman
of his primary jurisdiction over cases cognizable by the Sandiganbayan is
not incompatible with the discharge of his duty to investigate and
prosecute other offenses committed by public officers and employees.
Indeed, it must be stressed that the powers granted by the legislature to
 the Ombudsman are very broad and encompass all kinds of malfeasance,
misfeasance and non-feasance committed by public officers and
employees during their tenure of office.
"Primary Jurisdiction" usually refers to cases involving specialized disputes where
the practice is to refer the same to an administrative agency of special competence
in observance of the doctrine of primary jurisdiction. This Court has said that it
cannot or will not determine a controversy involving a question which is within the
jurisdiction of the administrative tribunal before the question is resolved by the
administrative tribunal, where the question demands the exercise of sound
administrative discretion requiring the special knowledge, experience and services
of the administrative tribunal to determine technical and intricate matters of fact, and
a uniformity of ruling is essential to comply with the premises of the regulatory
statute administered.7 The objective of the doctrine of primary jurisdiction is "to
guide a court in determining whether it should refrain from exercising its jurisdiction
until after an administrative agency has determined some question or some aspect
of some question arising in the proceeding before the court." 8 It applies where a
claim is originally cognizable in the courts and comes into play whenever
enforcement of the claim requires the resolution of issues which, under a regulatory
scheme, has been placed within the special competence of an administrative body;
in such case, the judicial process is suspended pending referral of such issues to
the administrative body for its view.9
Where the concurrent authority is vested in both the Department of Justice and the
Office of the Ombudsman, the doctrine of primary jurisdiction should operate to
restrain the Department of Justice from exercising its investigative authority if the
case will likely be cognizable by the Sandiganbayan. In such cases, the Office of the
Ombudsman should be the proper agency to conduct the preliminary investigation
over such an offense, it being vested with the specialized competence and
undoubted probity to conduct the investigation.
The urgent need to follow the doctrine is more heightened in this case where the
accused is a member of Congress. The DOJ is under the supervision and control of
the Office of the President; in effect, therefore, the investigation would be conducted
by the executive over a member of a co-equal branch of government. It is precisely
for this reason that the independent constitutional Office of the Ombudsman should
conduct the preliminary investigation. Senator Honasan is a member of the political
opposition. His right to a preliminary investigation by a fair and uninfluenced body is
sacred and should not be denied. As we stated in the Uy case:
The prosecution of offenses committed by public officers and employees
is one of the most important functions of the Ombudsman. In passing RA
6770, the Congress deliberately endowed the Ombudsman with such
power to make him a more active and effective agent of the people in
ensuring accountability n public office. A review of the development of our
Ombudsman laws reveals this intent.
These pronouncements are in harmony with the constitutional mandate of he Office
of the Ombudsman, as expressed in Article XI of the Constitution.
SECTION 12. The Ombudsman and his Deputies, as protectors of the
people, shall act promptly on complaints filed in any form or manner
against public officials or employees of the Government, or any agency,
subdivision or instrumentality thereof, including government-owned or
controlled corporations, and shall, in appropriate cases, notify the
complainants of the actions taken and the result thereof. (Underscoring
supplied.)
SECTION 13. The Office of the Ombudsman shall have the following
powers, functions, and duties:
(1) Investigate on its own, or on complaint by any person, any act or
omission of any public official, employee, office or agency, when such act
or omission appears to be illegal, unjust, improper, or inefficient. x x x.
Coupled with these provisions, Section 13 of the Ombudsman Act of 1989 provides:
SECTION 13. Mandate. – The Ombudsman and his Deputies,
as protectors of the people, shall act promptly on complaints filed in any
form or manner against officers or employees of the Government, or of
any subdivision, agency or instrumentality thereof, including government-
owned or controlled corporations, and enforce their administrative, civil
and criminal liability in every case where the evidence warrants in order to
promote efficient service by the Government to the people. (Underscoring
supplied)
The Constitution and the Ombudsman Act of 1989 both mention, unequivocally, that
the Office of the Ombudsman has the duty and mandate to act on the complaints
filed against officers or employees of the Government. It is imperative that this duty
be exercised in order to make real the role of the Office of the Ombudsman as a
defender of the people's interest specially in cases like these which have partisan
political taint.
For the foregoing reasons, I vote to GRANT the petition.
DISSENTING OPINION
SANDOVAL-GUTIERREZ, J.:
I am constrained to dissent from the majority opinion for the following reasons: (1) it
evades the consequence of the statutory definition of the crime of coup d'etat; (2) it
violates the principle of stare decisis  without a clear explanation why the
established doctrine has to be re-examined and reversed; and (3) it trivializes the
importance of two constitutional offices – the Ombudsman and the Senate – and in
the process, petitioner's right to due process has been impaired.
I 2. After dinner, Senator Honasan, as presiding officer, "discussed the
It is an established principle that an act no matter how offensive, destructive, or
reprehensible, is not a crime unless it is defined, prohibited, and punished by law.
The prosecution and punishment of any criminal offense are necessarily
circumscribed by the specific provision of law which defines it.
Article 134-A of the Revised Penal Code defines coup d'etat, thus:
"Article 134-A. Coup d'etat.  – How committed. – The crime of coup
d'etat is a swift attack accompanied by violence, intimidation, threat,
strategy or stealth, directed against duly constituted authorities of the
Republic of the Philippines, or any military camp or installation,
communications networks, public utilities or other facilities needed for the
exercise and continued possession of power, singly or simultaneously
carried out anywhere in the Philippines by any person or persons,
belonging to the military or police or holding any public office or
employment with or without civilian support or participation for the purpose
of seizing or diminishing state power."
There is no question that Senator Honasan, herein petitioner, holds a high public
office. If he is charged with coup d'etat, it has to be in his capacity as a public officer
committing the alleged offense in relation to his public office.
The complaint filed with the Department of Justice alleges the events supposedly
constituting the crime of coup d'etat, thus:
1. On 04 June 2003, Senator Honasan presided over a meeting held
"somewhere in San Juan, Metro Manila."
NRP (National Recovery Program), the graft and corruption in the
government, including the military institutions, the judiciary, the executive
department, and the like."
3. "The discussion concluded that we must use force, violence and armed
struggle to achieve the vision of NRP. x x x Senator Honasan countered
that 'we will never achieve reforms through the democratic processes
because the people who are in power will not give up their positions as
they have their vested interests to protect.' x x x Senator Honasan replied
'kung kaya nating pumatay sa ating mga kalaban, kaya din nating
pumatay sa mga kasamahang magtataksil.' x x x."
4. In the course of the meeting, Senator Honasan presented the plan of
action to achieve the goals of the NRP, i.e., overthrow of the government
under the present leadership thru armed revolution and after which, a
junta will be constituted to run the new government.
 5. The crime of coup d'etat was committed on 27 July 2003 by military
personnel who occupied Oakwood. Senator Honasan and various military
officers, one member of his staff, and several John Does and Jane Does
were involved in the Oakwood incident.
The above allegations determine whether or not petitioner committed the alleged
crime as a public officer "in relation to his office." If it was in relation to his office, the
crime falls under the exclusive original jurisdiction of the Sandiganbayan. It is the
Ombudsman who has the primary jurisdiction to investigate and prosecute the
complaint for coup d'etat, thus:
Section 4 of P.D. No. 1606, as amended, defines the jurisdiction of the
Sandiganbayan as follows:
"SECTION 4. Jurisdiction. – The Sandiganbayan shall exercise exclusive
original jurisdiction in all cases involving:
"a. Violations of Republic No. 3019, as amended, otherwise
known as the Anti-Graft and Corrupt Practices Act, Republic Act
No. 1379, and Chapter II, Section 2, Title VII, Book II of the
Revised Penal Code, where one or more of the accused are
officials occupying the following positions in the government,
whether in a permanent, acting or interim capacity, at the time of
the commission of the offense:
(1) Officials of the executive branch occupying the
positions of regional director and higher, otherwise
classified as Grade '27' and higher, of the
Compensations and Position Classification Act of
1989 (Republic Act No. 67 58), specifically including:
(a) Provincial governors, vice-governors,
members of the Sangguniang Panlalawigan,
and provincial treasurers , assessors,
engineers, and other provincial department
heads;
(b) City mayors, vice-mayors, members of
the Sangguniang Panlungsod, city
treasurers, assessors, engineers, and other
city department heads;
(c) Officials of the diplomatic service
occupying the position of consul and higher;
(d) Philippine Army and air force colonels,
naval captains, and all officers of higher
rank;
(e) Officers of the Philippine National Police
while occupying the position of provincial
director and those holding the rank of senior
superintendent or higher;
(f) City and provincial prosecutors and their
assistants, and officials and prosecutors in
the Office of the Ombudsman and special
prosecutor;
(g) Presidents, directors or trustees, or
managers of government-owned or
controlled corporations, state universities or
educational institutions or foundations;
(2) Members of Congress or officials thereof classified
as Grade '27' and up under the Compensation and
Position Classification Act of 1989;
(3) Members of the judiciary without prejudice to the
provisions of the Constitution;
(4) Chairman and members of the Constitutional
Commissions, without prejudice to the provisions of
the Constitution;
 (5) All other national and local officials classified as
Grade '27' or higher under the Compensation and
Position Classification Act of 1989.
"b. Other offenses or felonies whether simple or complexed with
other crimes committed by the public officials and employees
mentioned in Subsection a of this section in relation to their
office.
"c. Civil and criminal cases filed pursuant to and in connection
with Executive Order Nos. 1, 2, 14 and 14-A, issued in 1986."
Section 15 of Republic Act 6770, or the Ombudsman Act of 1989, provides:
"1) Investigate and prosecute on its own or on complaint by any person,
any act or omission of any public officer or employee, office or agency,
when such act or omission appears to be illegal, unjust, improper or
inefficient. It has primary jurisdiction over cases cognizable by the
Sandiganbayan and, in the exercise of his primary jurisdiction, it may take
over, at any stage, from any investigatory agency of Government, the
investigation of such cases; x x x" (Emphasis supplied)
Under the above provisions, what determines the Sandiganbayan's jurisdiction is
the official position or rank of the offender, that is, whether he is one of those public
officers enumerated therein.
Petitioner, being a Senator, occupies a government position higher than Grade 27 of
the Compensation and Position Classification Act of 1989. In fact, he holds the third
highest position and rank in the Government. At the apex, the President stands
alone. At the second level, we have the Vice-President, Speaker of the House,
Senate President and Chief Justice. Clearly, he is embraced in the above
provisions.
Following the doctrine of "primary jurisdiction," it is the Ombudsman who should
conduct the preliminary investigation of the charge of coup d'etat against petitioner.
The DOJ should refrain from exercising such function.
The crux of the jurisdiction of the DOJ lies in the meaning of "in relation to their
office."
The respondents start their discussion of "in relation to public office" with a peculiar
presentation. They contend that the duties of a Senator are to make laws, to
appropriate, to tax, to expropriate, to canvass presidential elections, to declare the
existence of a state war, to give concurrence to treaties and amnesties, to propose
constitutional amendments, to impeach, to investigate in aid of legislation, and to
determine the Senate rules of proceedings and discipline of its members. They
maintain that the "alleged acts done to overthrow the incumbent government and
authorities by arms and with violence" cannot be qualified as "acts reminiscent of
the discharge of petitioner's legislative duties as Senator." 1
The allegations in the complaint and in the pleadings of the DOJ, the Solicitor
General, and the Ombudsman (who is taking their side) charging petitioner
with coup d'etat show hat he was engaged in a discussion of his National Recovery
Program (NRP), corruption in government, and the need for reform. The NRP is a
summary of what he has introduced and intended to introduce into legislation by
Congress. There is no doubt, therefore, that the alleged coup d'etat was committed
in relation to the performance of his official duty as a Senator.
II
The ponencia is a departure or reversion from established doctrine. Under the
principle of stare decisis, the Court should, for the sake of certainty, apply a
conclusion reached in one case to decisions which follow, if the facts are
substantially similar. As stated in Santiago vs. Valenzuela2, stare decisi et non
quieta movere. Stand by the decisions and disturb not what is settled.
In Deloso vs. Domingo3, where the Governor of Zambales and his military and
police escorts ambushed the victims who were passing by in a car, we held that the
multiple murders were committed in relation to public office. In Cunanan vs. Arceo4,
the mayor ordered his co-accused to shoot the victims. We ruled that the murder
was in relation to public office. In Alarilla vs. Sandiganbayan5, the town mayor aimed
a gun and threatened to kill a councilor of the municipality during a public hearing.
We concluded that the grave threats were in relation to the mayor's office. Following
these precedents, I am convinced that petitioner's discourse on his National
Recovery Program is in relation to his office.
 III
The respondents state that the DOJ is vested with jurisdiction to
conduct all investigations and prosecution of allcrimes. They cite PD 1275, as
amended by PD 1513, and the Revised Administrative Code of 1987 as the source
of this plenary power.
While the DOJ has a broad general jurisdiction over crimes found in the Revised
Penal Code and special laws, however, this jurisdiction is not plenary or total.
Whenever the Constitution or statute vests jurisdiction over the investigation and
prosecution of certain crimes in an office, the DOJ has no jurisdiction over those
crimes. In election offenses, the Constitution vests the power to investigate and
prosecute in the Commission on Elections.6 In crimes committed by public officers in
relation to their office, the Ombudsman is given by both the Constitution and the
statute the same power of investigation and prosecution. 7 These powers may not be
exercised by the DOJ.
The DOJ cannot pretend to have investigatory and prosecutorial powers above
those of the Ombudsman. The Ombudsman is a constitutional officer with a rank
equivalent to that of an Associate Justice of this Court. The respondent's
Prosecution Office investigates and prosecutes all kinds of offenses from petty
crimes, like vagrancy or theft, to more serious crimes, such as those found in the
Revised Penal Code. The Ombudsman, on the other hand, prosecutes offenses in
relation to public office committed by public officers with the rank and position
classification of Grade 27 or higher. It is a special kind of jurisdiction which excludes
general powers of other prosecutory offices.
I agree with the petitioner that a becoming sense of courtesy, respect, and propriety
requires that the constitutional officer should conduct the preliminary investigation
and prosecution of the complaint against him and not a fifth assistant city prosecutor
or even a panel of prosecutors from the DOJ National Prosecution Service.
I do not believe that a mere agreement, such as OMB-DOJ Joint Circular No. 95-
001, can fully transfer the prosecutory powers of the Ombudsman to the DOJ
without need for deputization in specific cases. As stated by the petitioner, the DOJ
cannot be given a roving commission or authority to investigate and prosecute
cases falling under the Ombudsman's powers anytime the DOJ pleases without any
special and explicit deputization. On this point, I agree with Justice Jose C. Vitug
that the Joint Circular must be understood as a mere working arrangement between
the Office of the Ombudsman and the DOJ that must not be meant to be such a
blanket delegation to the DOJ as to generally allow it to conduct preliminary
investigation over any case cognizable by the Ombudsman.
Petitioner further raises a due process question. He accuses the DOJ of bias,
partiality, and prejudgment. He states that he has absolutely no chance of being
cleared by the respondent DOJ panel because it has already decided, before any
presentation of proof, that he must be charged and arrested without bail.
As stated by the petitioner, there are precedents to the effect that where bias exists,
jurisdiction has to be assumed by a more objective office. In Panlilio vs.
Sandiganbayan,8 we recognized that the PCGG has the authority to investigate the
case, yet we ordered the transfer of the case to the Ombudsman because of the
PCGG's "marked bias" against the petitioner.
In Conjuangco vs. PCGG,9 we held that there is a denial of due process where the
PCGG showed "marked bias" in handling the investigation. In Salonga vs. Cruz
Paño,10 where the preliminary investigation was tainted by bias and partiality, we
emphasized the right of an accused to be free, not only from arbitrary arrest and
punishment but also from unwarranted and biased prosecution.
The petitioner's pleadings show the proofs of alleged bias. They may be
summarized as follows:
First, on July 27, 2003 when the Oakwood incident was just starting, DILG
Secretary Lina and National Security Adviser Roilo Golez went on a media
barrage accusing petitioner of complicity without a shred of evidence.
Second, petitioner was approached by Palace emissaries, Velasco,
Defensor, Tiglao, and Afable to help defuse the incident and ask
mutineers to surrender. Then the request was distorted to make it appear
that he went there to save his own skin.
Third, even before any charge was filed, officials of the DOJ were on an
almost daily media program prematurely proclaiming petitioner's guilt.
How can the DOJ conduct an impartial and fair investigation when it has
already found him guilty?
 Fourth, petitioner was given five days to answer Matillano's complaint but
later on, it was shortened to three days.

Fifth, petitioner filed a 30 page Reply but the DOJ Order was issued at
once, or only after two days, or on Sept. 10, 2003. The Order did not
discuss the Reply, but perfunctorily glossed over and disregarded it.

The petitioner states that the DOJ is constitutionally and factually under the control
of the President. He argues that:

"No questionable prosecution of an opposition Senator who has declared

himself available for the Presidency would be initiated without the
instigation, encouragement or approval of officials at the highest levels of
the Administration. Justice requires that the Ombudsman, an independent
constitutional office, handle the investigation and prosecution of this case.
The DOJ cannot act fairly and independently in this case. In fact, all of the
actions the DOJ has taken so far have been marked by bias, hounding
and persecution.

And finally, the charges laid against Senator Honasan are unfounded
concoctions of fertile imaginations. The petitioner had no role in the
Oakwood mutiny except the quell and pacify the angry young men fighting
for a just cause. Inspiration perhaps, from his National Recovery Program,
but no marching orders whatsoever."

Prosecutors, like Caesar's wife, must be beyond suspicion. Where the test of the
cold neutrality required of them cannot be met, they must yield to another office
especially where their jurisdiction is under question. The tenacious insistence of
respondents in handling the investigation of the case and their unwillingness to
transfer it to the Ombudsman in the face of their questionable jurisdiction are
indications of marked bias.

WHEREFORE, I vote to GRANT the petition and to order the Department of Justice
to refrain from conducting preliminary investigation of the complaint for coup
d'etat against petitioner for lack of jurisdiction.
GEORGE UY, petitioner, vs.  THE HON. SANDIGANBAYAN, THE HON.
OMBUDSMAN AND THE HON. ROGER C. BERBANO, SR., SPECIAL
PROSECUTION OFFICER III, OFFICE OF THE SPECIAL
PROSECUTOR, respondents.
RESOLUTION
PUNO, J.:
Before the Court is the Motion for Further Clarification filed by Ombudsman
Aniano A. Desierto of the Court's ruling in its decision dated August 9, 1999 and
resolution dated February 22, 2000 that the prosecutory power of the Ombudsman
extends only to cases cognizable by the Sandiganbayan and that the Ombudsman
has no authority to prosecute cases falling within the jurisdiction of regular courts.
The Court stated in its decision dated August 9, 1999:
In this connection, it is the prosecutor, not the Ombudsman, who has the authority to
file the corresponding information/s against petitioner in the regional trial court. The
Ombudsman exercises prosecutorial powers only in cases cognizable by the
Sandiganbayan.
It explained in the resolution of February 22, 2000 that:
(t)he clear import of such pronouncement is to recognize the authority of the State
and regular provincial and city prosecutors under the Department of Justice to have
control over prosecution of cases falling within the jurisdiction of the regular
courts. The investigation and prosecutorial powers of the Ombudsman relate to
cases rightfully falling within the jurisdiction of the Sandiganbayan under Section 15
(1) of R.A. 6770 ("An Act Providing for the Functional and Structural Organization of
the Office of the Ombudsman, and for other purposes") which vests upon the
Ombudsman "primary jurisdiction over cases cognizable by the Sandiganbayan"
And this is further buttressed by Section 11 (4a) of R.A. 6770 which emphasizes
that the Office of the Special Prosecutor shall have the power to "conduct
preliminary investigation and prosecute criminal cases within the jurisdiction of the
Sandiganbayan." Thus, repeated references to the Sandiganbayan's jurisdiction
clearly serve to limit the Ombudsman's and Special Prosecutor's authority to cases
cognizable by the Sandiganbayan.
Seeking clarification of the foregoing ruling, respondent Ombudsman raises
the following points:
(1) The jurisdiction of the Honorable Sandiganbayan is not parallel to or
equated with the broader jurisdiction of the Office of the
Ombudsman;
(2) The phrase "primary jurisdiction of the Office of the Ombudsman
over cases cognizable by the Sandiganbayan" is not a delimitation
of its jurisdiction solely to Sandiganbayan cases; and
(3) The authority of the Office of the Special Prosecutor to prosecute
cases before the Sandiganbayan cannot be confused with the
broader investigatory and prosecutorial powers of the Office of the
Ombudsman.
Thus, the matter that needs to be discussed herein is the scope of the power
of the Ombudsman to conduct preliminary investigation and the subsequent
prosecution of criminal offenses in the light of the provisions of the Ombudsman Act
of 1989 (Republic Act [RA] 6770).
We held that the Ombudsman is clothed with authority to conduct preliminary
investigation and to prosecute all criminal cases involving public officers and
employees, not only those within the jurisdiction of the Sandiganbayan, but those
within the jurisdiction of the regular courts as well.
The authority of the Ombudsman to investigate and prosecute offenses
committed by public officers and employees is founded in Section 15 and Section 11
of RA 6770. Section 15 vests the Ombudsman with the power to investigate and
prosecute any act or omission of any public officer or employee, office or agency,
when such act or omission appears to be illegal, unjust, improper or inefficient, thus:
Sec. 15. Powers, Functions and Duties.--The Office of the Ombudsman shall have
the following powers, functions and duties:
(1) Investigate and prosecute on its own or on complaint by any person, any act or
omission of any public officer or employee, office or agency, when such act or
omission appears to be illegal, unjust, improper or inefficient. It has primary
jurisdiction over cases cognizable by the Sandiganbayan and, in the exercise of this
primary jurisdiction, it may take over, at any stage, from any investigatory agency of
Government, the investigation of such cases;
 xxx
Section 11 grants the Office of the Special Prosecutor, an organic component of the
Office of the Ombudsman under the latters supervision and control, the power to
conduct preliminary investigation and prosecute criminal cases within the jurisdiction
of the Sandiganbayan. It states:
Sec. 11. Structural Organization. x x x
xxx
(3) The Office of the Special Prosecutor shall be composed of the Special
Prosecutor and his prosecution staff. The Office of the Special Prosecutor shall be
an organic component of the Office of the Ombudsman and shall be under the
supervision and control of the Ombudsman.
(4) The Office of the Special Prosecutor shall, under the supervision and control and
upon authority of the Ombudsman, have the following powers:
(a) To conduct preliminary investigation and prosecute criminal cases within the
jurisdiction of the Sandiganbayan;
(b) To enter into plea bargaining agreements; and
(c) To perform such other duties assigned to it by the Ombudsman.
The power to investigate and to prosecute granted by law to the Ombudsman
is plenary and unqualified. It pertains to any act or omission of any public officer or
employee when such act or omission appears to be illegal, unjust, improper or
inefficient. The law does not make a distinction between cases cognizable by the
Sandiganbayan and those cognizable by regular courts. It has been held that the
clause any illegal act or omission of any public official is broad enough to embrace
any crime committed by a public officer or employee.[1]
The reference made by RA 6770 to cases cognizable by the Sandiganbayan,
particularly in Section 15 (1) giving the Ombudsman primary jurisdiction over cases
cognizable by the Sandiganbayan, and Section 11 (4) granting the Special
Prosecutor the power to conduct preliminary investigation and prosecute criminal
cases within the jurisdiction of the Sandiganbayan, should not be construed as
confining the scope of the investigatory and prosecutory power of the Ombudsman
to such cases.
Section 15 of RA 6770 gives the Ombudsman primary jurisdiction over cases
cognizable by the Sandiganbayan. The law defines such primary jurisdiction as
authorizing the Ombudsman "to take over, at any stage, from any investigatory
agency of the government, the investigation of such cases." The grant of this
authority does not necessarily imply the exclusion from its jurisdiction of cases
involving public officers and employees cognizable by other courts. The exercise by
the Ombudsman of his primary jurisdiction over cases cognizable by the
Sandiganbayan is not incompatible with the discharge of his duty to investigate and
prosecute other offenses committed by public officers and employees. Indeed, it
must be stressed that the powers granted by the legislature to the Ombudsman are
very broad and encompass all kinds of malfeasance, misfeasance and non-
feasance committed by public officers and employees during their tenure of office. [2]
Moreover, the jurisdiction of the Office of the Ombudsman should not be
equated with the limited authority of the Special Prosecutor under Section 11 of RA
6770. The Office of the Special Prosecutor is merely a component of the Office of
the Ombudsman and may only act under the supervision and control and upon
authority of the Ombudsman.[3] Its power to conduct preliminary investigation and to
prosecute is limited to criminal cases within the jurisdiction of the
Sandiganbayan. Certainly, the lawmakers did not intend to confine the investigatory
and prosecutory power of the Ombudsman to these types of cases. The
Ombudsman is mandated by law to act on all complaints against officers and
employees of the government and to enforce their administrative, civil and criminal
liability in every case where the evidence warrants. [4] To carry out this duty, the law
allows him to utilize the personnel of his office and/or designate any fiscal, state
prosecutor or lawyer in the government service to act as special investigator or
prosecutor to assist in the investigation and prosecution of certain cases. Those
designated or deputized to assist him work under his supervision and control. [5] The
law likewise allows him to direct the Special Prosecutor to prosecute cases outside
the Sandiganbayan's jurisdiction in accordance with Section 11 (4c) of RA 6770.
The prosecution of offenses committed by public officers and employees is
one of the most important functions of the Ombudsman. In passing RA 6770, the
Congress deliberately endowed the Ombudsman with such power to make him a
more active and effective agent of the people in ensuring accountability in public
office.[6] A review of the development of our Ombudsman laws reveals this intent.
The concept of Ombudsman originated in Sweden in the early 19 th century,
referring to an officer appointed by the legislature to handle the peoples grievances
against administrative and judicial actions. He was primarily tasked with receiving
complaints from persons aggrieved by administrative action or inaction, conducting
investigation thereon, and making recommendations to the appropriate
administrative agency based on his findings. He relied mainly on the power of
persuasion and the high prestige of the office to effect his recommendations. [7]
In this jurisdiction, several Ombudsman-like agencies were established by
past Presidents to serve as the peoples medium for airing grievances and seeking
redress against abuses and misconduct in the government. These offices were
conceived with the view of raising the standard in public service and ensuring
integrity and efficiency in the government. In May 1950, President Elpidio Quirino
created the Integrity Board charged with receiving complaints against public officials
for acts of corruption, dereliction of duty and irregularity in office, and conducting a
thorough investigation of these complaints. The Integrity Board was succeeded by
several other agencies which performed basically the same functions of complaints-
handling and investigation. These were the Presidential Complaints and Action
Commission under President Ramon Magsaysay, the Presidential Committee on
Administration Performance Efficiency under President Carlos Garcia, the
Presidential Anti-Graft Committee under President Diosdado Macapagal, and the
Presidential Agency on Reform and Government Operations and the Office of the
Citizens Counselor, both under President Ferdinand Marcos. It was observed,
however, that these agencies failed to realize their objective for they did not enjoy
the political independence necessary for the effective performance of their function
as government critic. Furthermore, their powers extended to no more than fact-
finding and recommending.[8]
Thus, in the advent of the 1973 Constitution, the members of the
Constitutional Convention saw the need to constitutionalize the office of an
Ombudsman, to give it political independence and adequate powers to enforce its
recommendations.[9] The 1973 Constitution mandated the legislature to create an
office of the Ombudsman to be known as Tanodbayan. Its powers shall not be
limited to receiving complaints and making recommendations, but shall also include
the filing and prosecution of criminal, civil or administrative case before the
appropriate body in case of failure of justice. Section 6, Article XIII of the 1973
Constitution read:
Sec. 6. The Batasang Pambansa shall create an office of the Ombudsman, to be
known as Tanodbayan, which shall receive and investigate complaints relative to
public office, including those in government-owned or controlled corporations, make
appropriate recommendations, and in case of failure of justice as defined by law, file
and prosecute the corresponding criminal, civil or administrative case before the
proper court or body.
Implementing this constitutional provision, President Marcos, on June 11,
1978, exercising his power under Proclamation 1081, enacted Presidential Decree
(PD) 1487 creating the Office of the Ombudsman to be known as Tanodbayan. Its
principal task was to investigate, on complaint, any administrative act [10] of any
administrative agency[11] including any government-owned or controlled corporation.
[12]
 The Tanodbayan also had the duty to file and prosecute the corresponding
criminal, civil, or administrative case before the Sandiganbayan or the proper court
or body if he has reason to believe that any public official, employee, or other
person has acted in a manner resulting in a failure of justice. [13] It should be noted,
however, that the prosecution of cases falling within the jurisdiction of the
Sandiganbayan was to be done by the Tanodbayan through the Special Prosecutor
who, according to PD 1486,[14] had the exclusive authority to conduct preliminary
investigation, file information for and prosecute cases within the jurisdiction of said
court. The Special Prosecutor was then under the control and supervision of the
Secretary of Justice.[15]
Shortly after its enactment, PD 1487 was amended by PD 1607 which took
effect on December 10, 1978. The amendatory law broadened the authority of the
Tanodbayan to investigate administrative acts of administrative agencies by
authorizing it to conduct an investigation on its own motion or initiative, even without
a complaint from any person.[16] The new law also expanded the prosecutory
function of the Tanodbayan by creating the Office of the Chief Special Prosecutor in
the Office of the Tanodbayan and placing under his direction and control the Special
Prosecutor who had the exclusive authority to conduct preliminary investigation of
all cases cognizable by the Sandiganbayan; to file informations therefor and to
direct and control the prosecution of said cases therein. [17] Thus, the law provided
that if the Tanodbayan has reason to believe that any public official, employee, or
other person has acted in a manner warranting criminal or disciplinary action or
proceedings, he shall cause him to be investigated by the Office of the Chief Special
Prosecutor who shall file and prosecute the corresponding criminal or administrative
case before the Sandiganbayan or the proper court or before the proper
administrative agency.[18]
On July 18, 1979, PD 1630 was enacted further amending PD 1487 and PD
1607. PD 1630 reorganized the Office of the Tanodbayan and transferred the
powers previously vested in the Special Prosecutor to the Tanodbayan
himself. Thus, the Tanodbayan was empowered to directly conduct preliminary
investigation, file information and prosecute cases within the jurisdiction of the
Sandiganbayan and other courts. The amendment gave the Tanodbayan the
exclusive authority to conduct preliminary investigation of all cases cognizable by
the Sandiganbayan; to file information therefor and to direct and control the
prosecution of said cases.[19] Section 10 of PD 1630 provided:
Sec. 10. Powers.--The Tanodbayan shall have the following powers:
(a) He may investigate, on complaint by any person or on his own
motion or initiative, any administrative act whether amounting to any
criminal offense or not of any administrative agency including any
government-owned or controlled corporation;
xxx
(e) If after preliminary investigation he finds a prima facie case, he may
file the necessary information or complaint with the Sandiganbayan
or any proper court or administrative agency and prosecute the
same.
Section 18 further stated:
Sec. 18. Prosecution of Public Personnel or Other Person .--If the Tanodbayan has
reason to believe that any public official, employee or other person has acted in a
manner warranting criminal or disciplinary action or proceedings, he shall conduct
the necessary investigation and shall file and prosecute the corresponding criminal
or administrative case before the Sandiganbayan or the proper court or before the
proper administrative agency.
With the ratification of the 1987 Constitution, a new Office of the Ombudsman
was created. The present Ombudsman, as protector of the people, is mandated to
act promptly on complaints filed in any form or manner against public officials or
employees of the government or any subdivision, agency or instrumentality thereof,
including government-owned or controlled corporations, and to notify the
complainants of the action taken and the result thereof. [20] He possesses the
following powers, functions and duties:
1. Investigate on its own, or on complaint by any person, any act or
omission of any public official, employee, office or agency, when
such act or omission appears to be illegal, unjust, improper, or
inefficient;
2. Direct, upon complaint or at its own instance, any public official or
employee of the Government, or any subdivision, agency or
instrumentality thereof, as well as of any government-owned or
controlled corporation with original charter, to perform and expedite
any act or duty required by law, or to stop, prevent and correct any
abuse or impropriety in the performance of duties.
3. Direct the officer concerned to take appropriate action against a
public official or employee at fault, and recommend his removal,
suspension, demotion, fine, censure, or prosecution, and ensure
compliance therewith.
4. Direct the officer concerned, in any appropriate case, and subject to
such limitations as may be provided by law, to furnish it with copies
of documents relating to contracts or transactions entered into by
his office involving the disbursement or use of public funds or
properties, and report any irregularity to the Commission on Audit
for appropriate action.
5. Request any government agency for assistance and information
necessary in the discharge of its responsibilities, and to examine, if
necessary, pertinent records and documents.
6. Publicize matters covered by its investigation when circumstances so
warrant and with due prudence.
7. Determine the causes of inefficiency, red tape, mismanagement,
fraud, and corruption in the Government and make
recommendations for their elimination and the observance of high
standards of ethics and efficiency.
8. Promulgate its rules of procedure and exercise such other powers or
perform such functions or duties as may be provided by law. [21]
As a new Office of the Ombudsman was established, the then existing Tanodbayan
became the Office of the Special Prosecutor which continued to function and
exercise its powers as provided by law, except those conferred on the Office of the
Ombudsman created under the 1987 Constitution.[22]
The frameworks for the Office of the Ombudsman and the Office of the
Special Prosecutor were laid down by President Corazon Aquino in Executive Order
(EO) 243 and EO 244, both passed on July 24, 1987.
 In September 1989, Congress passed RA 6770 providing for the functional
and structural organization of the Office of the Ombudsman. As in the previous laws
on the Ombudsman, RA 6770 gave the present Ombudsman not only the duty to
receive and relay the people's grievances, but also the duty to investigate and
prosecute for and in their behalf, civil, criminal and administrative offenses
committed by government officers and employees as embodied in Sections 15 and
11 of the law.
Clearly, the Philippine Ombudsman departs from the classical Ombudsman
model whose function is merely to receive and process the people's complaints
against corrupt and abusive government personnel. The Philippine Ombudsman, as
protector of the people, is armed with the power to prosecute erring public officers
and employees, giving him an active role in the enforcement of laws on anti-graft
and corrupt practices and such other offenses that may be committed by such
officers and employees. The legislature has vested him with broad powers to enable
him to implement his own actions. Recognizing the importance of this power, the
Court cannot derogate the same by limiting it only to cases cognizable by the
Sandiganbayan. It is apparent from the history and the language of the present law
that the legislature intended such power to apply not only to cases within the
jurisdiction of the Sandiganbayan but also those within the jurisdiction of regular
courts. The Court observed in the case of Republic vs. Sandiganbayan:[23]
A perusal of the law originally creating the Office of the Ombudsman then (to be
known as the Tanodbayan), and the amendatory laws issued subsequent thereto
will show that, at its inception, the Office of the Ombudsman was already vested
with the power to investigate and prosecute civil and criminal cases before the
Sandiganbayan and even the regular courts.
conflict with the power of the regular prosecutors under the Department of Justice to
control and direct the prosecution of all criminal actions under Rule 110 of the
Revised Rules of Criminal Procedure. The Rules of Court must be read in
conjunction with RA 6770 which charged the Ombudsman with the duty to
investigate and prosecute all illegal acts and omissions of public officers and
employees. The Court held in the case of Sanchez vs. Demetriou[24] that the power
of the Ombudsman under Section 15 (1) of RA 6770 is not an exclusive authority
but rather a shared or concurrent authority in respect of the offense charged. Thus,
Administrative Order No. 8 issued by the Office of the Ombudsman provides:
The prosecution of case cognizable by the Sandiganbayan shall be under the direct
exclusive control and supervision of the Office of the Ombudsman. In cases
cognizable by regular Courts, the control and supervision by the Office of the
Ombudsman is only in Ombudsman cases in the sense defined (therein). [25] The law
recognizes a concurrence of jurisdiction between the Office of the Ombudsman and
other investigative agencies of government in the prosecution of cases cognizable
by regular courts.
IN VIEW WHEREOF, the Court's ruling in its decision dated August 9, 1999
and its resolution dated February 20, 2000 that the Ombudsman exercises
prosecutorial powers only in cases cognizable by the Sandiganbayan is SET
ASIDE.
SO ORDERED.

xxx

Presidential Decree No. 1630 was the existing law governing the then Tanodbayan
when Republic Act No. 6770 was enacted providing for the functional and structural
organization of the present Office of the Ombudsman. This later law retained in the
Ombudsman the power of the former Tanodbayan to investigate and prosecute on
its own or on complaint by any person, any act or omission of any public officer or
employee, office or agency, when such act or omission appears to be illegal, unjust,
improper or inefficient. x x x.

Finally, it must be clarified that the authority of the Ombudsman to prosecute

cases involving public officers and employees before the regular courts does not
 Republic of the Philippines HONORABLE RAUL E. DE LEON, the Presiding Judge of the Regional Trial Court
SUPREME COURT of Parañaque, Branch 258, HONORABLE ZOSIMO V. ESCANO, the Presiding
Manila Judge of the Regional Trial Court of Parañaque, Branch 259, PEOPLE OF THE
PHILIPPINES, ZENON L. DE GUIA, JOVENCITO ZUÑO, LEONARDO GUIYAB,
SECOND DIVISION JR., ROBERTO LAO, PABLO FORMARAN, and NATIONAL BUREAU OF
INVESTIGATION, and HONORABLE AMELITA G. TOLENTINO, the Presiding
Judge of the Regional Trial Court of Parañaque, Branch 274, respondents.
 

G.R. No. 121234 August 23, 1995

HUBERT J. P. WEBB, petitioner, 
vs.
HONORABLE RAUL E. DE LEON, the Presiding Judge of the Regional Trial Court
of Parañaque, Branch 258, HONORABLE ZOSIMO V. ESCANO, the Presiding
Judge of the Regional Trial Court of Parañaque, Branch 259, PEOPLE OF THE
PHILIPPINES, ZENON L. DE GUIA, JOVENCITO ZUÑO, LEONARDO GUIYAB,
JR., ROBERTO LAO, PABLO FORMARAN, and NATIONAL BUREAU OF
INVESTIGATION, and HONORABLE AMELITA G. TOLENTINO, the Presiding
Judge of the Regional Trial Court of Parañaque, Branch 274, respondents, LAURO
VIZCONDE, intervenor.
G.R. No. 121245 August 23, 1995
MICHAEL A. GATCHALIAN, petitioner, 
vs.
HONORABLE RAUL E. DE LEON, the Presiding Judge of the Regional Trial Court
of Parañaque, Branch 258, HONORABLE ZOSIMO V. ESCANO, the Presiding
Judge of the Regional Trial Court of Parañaque, Branch 259, PEOPLE OF THE
PHILIPPINES, ZENON L. DE GUIYAB, JR., ROBERTO LAO, PABLO FORMARAN,
and NATIONAL BUREAU OF INVESTIGATION, and HONORABLE AMELITA G.
TOLENTINO, the Presiding Judge of the Regional Trial Court of Parañaque, Branch
274, respondents.
G.R. No. 121297 August 23, 1995
ANTONIO L. LEJANO, petitioner,  bound for New York and who expressed doubt on whether petitioner Webb was his
vs.
PUNO, J.:
Before the Court are petitions for the issuance of the extraordinary writs of certiorari,
prohibition and mandamus  with application for temporary restraining order and
preliminary injunction to: (1) annul and set aside the Warrants of Arrest issued
against petitioners by respondent Judges Raul E. de Leon and Amelita Tolentino in
Criminal Case No. 95-404; (2) enjoin the respondents from conducting any
proceeding in the aforementioned criminal case; and (3) dismiss said criminal case
or include Jessica Alfaro as one of the accused therein. 1
From the records of the case, it appears that on June 19, 1994, the National Bureau
of Investigation (NBI) filed with the Department of Justice a letter-complaint charging
petitioners Hubert Webb, Michael Gatchalian, Antonio J. Lejano and six (6) other
persons,2 with the crime of Rape with Homicide. Forthwith, the Department of
Justice formed a panel of prosecutors headed by Assistant Chief State Prosecutor
Jovencio R. Zuño to conduct the preliminary investigation 3 of those charged with the
rape and killing on June 30, 1991 of Carmela N. Vizconde; 4 her mother Estrellita
Nicolas-Vizconde,5 and her sister Anne Marie Jennifer6 in their home at Number 80
W. Vinzons, St., BF Homes, Parañaque, Metro Manila.
During the preliminary investigation, the NBI presented the following: (1) the sworn
statement dated May 22, 1995 of their principal witness, Maria Jessica
M. Alfaro who allegedly saw the commission of the crime;7 (2) the sworn statements
of two (2) of the former housemaids of the Webb family in the persons of Nerissa
E. Rosales and Mila S.Gaviola;8 (3) the sworn-statement of Carlos J. Cristobal who
alleged that on March 9, 1991 he was a passenger of United Airlines Flight No. 808
co-passenger in the trip; (4) the sworn statement of Lolita Birrer, a former live-in
partner of Gerardo Biong, who narrated the manner of how Biong investigated and
tried to cover up the crime at bar;9 (5) the sworn statements of Belen
Dometita and Teofilo Minoza, two of the Vizconde maids, and the sworn statements
of Normal White, a security guard and Manciano Gatmaitan, an engineer.
The autopsy reports of the victims were also submitted and they showed that
Carmela had nine (9) stab wounds, Estrellita twelve (12) and Jennifer nineteen
(19).10 The genital examination of Carmela confirmed the presence of
spermatozoa.11
Before submitting his counter-affidavit, petitioner Webb filed with the DOJ Panel a
Motion for Production And Examination of Evidence and Documents for the NBI to
produce the following:
(a) Certification issued by the U.S. Federal Bureau of Investigation on the
admission to and stay of Hubert Webb in the United States from March 9,
1991 to October 22, 1992;
(b) Laboratory Report No. SN-91-17 of the Medico Legal Officer, Dr.
Prospero A. Cabanayan, M.D.;
(c) Sworn Statements of Gerardo C. Biong (other than his Sworn
Statement dated October 7, 1991);
(d) Photographs of fingerprints lifted from the Vizconde residence taken
during the investigation;
(e) Investigation records of NBI on Engr. Danilo Aguas, et al.;
(f) List of names of 135 suspects/persons investigated by the NBI per
Progress Report dated September 2, 1991 submitted by Atty. Arlis Vela,
Supervising Agent;
(g) Records of arrest, interview, investigation and other written statements
of Jessica Alfaro (other than the May 22, 1995 Sworn Statement)
conducted by the NBI and other police agencies;
(h) transmittal letter to the NBI, including the report of the investigation
conducted by Superintendent Rodolfo C. Sison, Regional Deputy Director,
NCRC;
(i) The names of NBI officials/agents composing the Task Force Jecares,
including their respective positions and duties;
(j) Statements made by other persons in connection with the crime
charged.
The motion was granted by the DOJ Panel and the NBI submitted photocopies of
the documents. It alleged it lost the original of the April 28, 1995 sworn statement of
Alfaro. This compelled petitioner Webb to file Civil Case No. 951099 in the Regional
Trial Court (RTC) of Makati, Br. 63, for the purpose, among others, of obtaining the
original of said sworn statement. He succeeded, for in the course of its proceedings,
Atty. Arturo L. Mercader, Jr., produced a copy of said original in compliance with a
subpoena duces tecum. The original was then submitted by petitioner Webb to the
DOJ Panel together with his other evidence. It appears, however, that petitioner
Webb failed to obtain from the NBI the copy of the Federal Bureau of Investigation
(FBI) Report despite his request for its production.
Petitioner Webb claimed during the preliminary investigation that he did not commit
the crime at bar as he went to the United States on March 1, 1991 and returned to
the Philippines on October 27, 1992. 12 His alibi was corroborated by Honesto
Aragon, Lecinia Edrosolano, Sylvia Climaco, Gina Roque, Sonia Rodriguez,
Edgardo Venture and Pamela Francisco.13 To further support his defense, he
submitted documentary evidence that he bought a bicycle and a 1986 Toyota car
while in the United States on said dates14 and that he was issued by the State of
California Driver's License No. A8818707 on June 14, 1991. 15 Petitioner Webb
likewise submitted the letter dated July 25, 1995 of Mr. Robert Heafner, Legal
Attache of the US Embassy, citing certain records tending to confirm, among others,
his arrival at San Francisco, California on March 9, 1991 as a passenger in United
Airlines Flight No. 808.
The other respondents — Hospicio "Pyke" Fernandez, Michael Gatchalian, Antonio
"Tony Boy" Lejano, Peter Estrada, Miguel Rodriguez and Gerardo Biong —
submitted sworn statements, responses, and a motion to dismiss denying their
complicity in the rape-killing of the Vizcondes.16 Only the respondents Joey Filart
and Artemio "Dong" Ventura failed to file their counter-affidavits though they were
served with subpoena in their last known address.17 In his sworn statement,
petitioner Gatchalian alleged that from 11 o'clock in the evening of June 29, 1991
until 3 o'clock in the morning of the following day, he was at the residence of his
friends, Carlos and Andrew Syyap, at New Alabang Village, Muntinlupa watching
video tapes. He claimed that his co-petitioner Lejano was with him.
On August 8, 1995, the DOJ Panel issued a 26-page Resolution "finding probable
cause to hold respondents for trial" and recommending that an Information for rape
with homicide be filed against petitioners and their co-respondents, 18 On the same
date, it filed the corresponding Information19 against petitioners and their co-accused
with the Regional Trial Court of Parañaque. The case was docketed as Criminal
Case No. 95-404 and raffled to Branch 258 presided by respondent judge Zosimo V.
Escano. It was, however, the respondent judge Raul de Leon, pairing judge of
Judge Escano, who issued the warrants of arrest against the petitioners. On August
11, 1995, Judge Escano voluntarily inhibited himself from the case to avoid any
suspicion about his impartiality considering his employment with the NBI before his
appointment to the bench. The case was re-raffled to Branch 274, presided by
Judge Amelita Tolentino who issued new warrants of arrest against the petitioners
and their co-accused. On August 11, 1995, petitioner Webb voluntarily surrendered
to the police authorities at Camp Ricardo Papa Sr., in Bicutan, Taguig. Petitioners
Gatchalian and Lejano likewise gave themselves up to the authorities after filing
their petitions before us.
In their petitions at bar, petitioners contend: (1) respondent Judges de Leon and
Tolentino gravely abused their discretion when they failed to conduct a preliminary
examination before issuing warrants of arrest against them: (2) the DOJ Panel
likewise gravely abused its discretion in holding that there is probable cause to
charge them with the crime of rape with homicide; (3) the DOJ Panel denied them
their constitutional right to due process during their preliminary investigation; and (4)
the DOJ Panel unlawfully intruded into judicial prerogative when it failed to charge
Jessica Alfaro in the Information as an accused.
We find the petitions bereft of merit.
I ground to continue with the inquiry, or issue a subpoena to the
Petitioners fault the DOJ Panel for its finding of probable cause. They
insist that the May 22, 1995 sworn statement of Jessica Alfaro is
inherently weak and uncorroborated. They hammer on alleged material
inconsistencies between her April 28, 1995 and May 22, 1995 sworn
statements. They assail her credibility for her misdescription of petitioner
Webb's hair as semi-blonde. They also criticize the procedure followed by
the DOJ Panel when it did not examine witnesses to clarify the alleged
incredulities and inconsistencies in the sworn statements of the witnesses
for the NBI.
We start with a restatement of the purpose of a preliminary investigation.
Section 1 of Rule 112 provides that a preliminary investigation should
determine " . . . whether there is a sufficient ground to engender a well-
grounded belief that a crime cognizable by the Regional Trial Court has
been committed and that the respondent is probably guilty thereof, and
should be held for trial." Section 3 of the same Rule outlines the
procedure in conducting a preliminary investigation, thus:
Sec. 3. Procedure. — Except as provided for in Section 7
hereof, no complaint or information for an offense cognizable by
the Regional Trial Court shall be filed without a preliminary
investigation having been first conducted in the following
manner:
(a) The complaint shall state the known address of the
respondent and be accompanied by affidavits of the
complainant and his witnesses as well as other supporting
documents, in such number of copies as there are respondents,
plus two (2) copies for the official file. The said affidavits shall be
sworn to before any fiscal, state prosecutor or government
official authorized to administer oath, or, in their absence or
unavailability, a notary public, who must certify that he
personally examined the affiants and that he is satisfied that
they voluntarily executed and understood their affidavits.
(b) Within ten (10) days after the filing of the complaint, the
investigating officer shall either dismiss the same if he finds no
respondent, attaching thereto a copy of the complaint, affidavits
and other supporting documents. Within ten (10) days from
receipt thereof, the respondent shall submit counter-affidavits
 and other supporting documents. He shall have the right to
examine all other evidence submitted by the complainant.
(c) Such counter-affidavits and other supporting evidence
submitted by the respondent shall also be sworn to and certified
as prescribed in paragraph (a) hereof and copies thereof shall
be furnished by him to the complainant.
(d) If the respondent cannot be subpoenaed, or if subpoenaed,
does not submit counter-affidavits within the ten (10) day period,
the investigating officer shall base his resolution on the evidence
presented by the complainant.
not to be intruded by the State.21 Probable cause to warrant arrest is not an opaque
concept in our jurisdiction. Continuing accretions of case law reiterate that they are
facts and circumstances which would lead a reasonably discreet and prudent
man  to believe that an offense has been committed by the person sought to be
arrested.22 Other jurisdictions utilize the term man of reasonable caution  23 or the
term ordinarily prudent and cautious man.24 The terms are legally synonymous and
their reference is not to a person with training in the law such as a prosecutor or a
judge but to the average man on the street.25 It ought to be emphasized that in
determining probable cause, the average man weighs facts and circumstances
without resorting to the calibrations of our technical rules of evidence of which his
knowledge is nil. Rather, he relies on the calculus of common sense of which all
reasonable men have an abundance.

Applying these basic norms, we are not prepared to rule that the DOJ
(e) If the investigating officer believes that there are matters to
Panel gravely abused its discretion when it found probable cause against
be clarified, he may set a hearing to propound clarificatory
the petitioners. Petitioners belittle the truthfulness of Alfaro on two (2)
questions to the parties or their witnesses, during which the
grounds: (a) she allegedly erroneously described petitioner Webb's hair as
parties shall be afforded an opportunity to be present but without
semi-blond and (b) she committed material inconsistencies in her two (2)
the right to examine or cross-examine. If the parties so desire,
sworn statement, thus:26
they may submit questions to the investigating officer which the
latter may propound to the parties or witnesses concerned.
xxx xxx xxx
(f) Thereafter, the investigation shall be deemed concluded, and
the investigating officer shall resolve the case within ten (10) To illustrate, the following are some examples of inconsistencies
days therefrom. Upon the evidence thus adduced, the in the two sworn statements of Alfaro:
investigating officer shall determine whether or not there is
sufficient ground to hold the respondent for trial. On whether Alfaro knew Carmela before the incident in question

Section 4 of Rule 112 then directs that "if the investigating fiscal finds First Affidavit: She had NOT met Carmela
cause to hold the respondent for trial, he shall prepare the resolution and before June 29, 1991.
corresponding information. He shall certify under oath that he, or as
shown by the record, an authorized officer, has personally examined the Second Affidavit: "I met her in a party
complainant and his witnesses, that there is reasonable ground to believe sometime in February, 1991."
that a crime has been committed and that the accused is probably guilty
thereof . . ." On whether Alfaro saw the dead bodies
The need to find probable cause is dictated by the Bill of Rights which protects "the
right of the people to be secure in their persons . . . against unreasonable searches
and seizures of whatever nature . . ."20 An arrest without a probable cause is an
unreasonable seizure of a person, and violates the privacy of persons which ought
 First Affidavit: She did not see the three
dead persons on that night. She just said
"on the following day I read in the
newspaper that there were three persons
who were killed . . ."
Second Affidavit: "I peeped through the first
door on the left. I saw two bodies on top of
the bed, bloodied, and in the floor, I saw
Hubert on top of Carmela."
On the alleged rape of Carmela Vizconde
First Affidavit: She did not see the act of
rape.
Second Affidavit: She saw Hubert Webb
"with bare buttocks, on top of Carmela and
pumping, her mouth gagged and she was
moaning and I saw tears on her eyes."
On how Webb, Lejano, and Ventura entered the Vizconde
house
First Affidavit: "by jumping over the fence,
which was only a little more than a meter
high."
Second Affidavit: They "entered the gate
which was already open."
On whether Alfaro entered the Vizconde house
First Affidavit: She never entered the house.
Second Affidavit: "I proceeded to the iron
grill gate leading to the dirty kitchen."
In its Resolution, the DOJ Panel ruled that these alleged misdescription
and inconsistencies did not erode the credibility of Alfaro. We quote the
pertinent ruling, viz.:27
xxx xxx xxx
As regards the admissibility of Alfaro's statements, granting for
purposes of argument merely that she is a co-conspirator, it is
well to note that confessions of a co-conspirator may be taken
as evidence to show the probability of the co-conspirator's
participation in the commission of the crime (see People vs.
Lumahang, 94 Phil. 1084).
Furthermore, it is a well-established doctrine that conspiracy
need not be proved by direct evidence of prior agreement to
commit the crime. Indeed, "only rarely would such a prior
agreement be demonstrable since, in the nature of things,
criminal undertakings are only rarely documented by
agreements in writing. Thus, conspiracy may be inferred from
the conduct of the accused before, during and after the
commission of the crime, showing that the several accused had
acted in concert or in unison with each other, evincing a
common purpose or design." (Angelo vs. Court of Appeals, 210
SCRA 402 [1992], citations omitted; People vs. Molleda, 86
SCRA 699).
Neither can we discredit Alfaro merely because of the
inconsistencies in her two sworn statements. In Angelo, the
Court refused to discredit the testimony of a witness accusing
therein petitioner for the slaying of one Gaviano Samaniego
even though said witness failed to name Angelo in his affidavit
which was executed five (5) months earlier. Granting, the Court
continued, that a part of the witness' testimony is untrue, such
circumstance is not sufficient to discredit the entire testimony of
the witness.
On August 7, 1995, another counsel for respondent Webb
submitted his memorandum suggesting that the instant
complaint "should not be decided within the month to give time
to the NBI to coordinate with the FBI on the latter's inquiry into
the whereabouts of Hubert Webb . . . and to check on our U.S.-
based witnesses."
In said memorandum, counsel for respondent Webb calls for the
application of the maxim falsus in uno, falsus in omnibus  arising
from the inconsistencies of Alfaro's statements, among others.
This is untenable. As held in Angelo:
There is no rule of law which prohibits a
court from crediting part of the testimony of
a witness as worthy of belief and from
simultaneously rejecting other parts which
the court may find incredible or dubious. The
maxim falsus in uno, falsus in omnibus is
not a rule of law, let alone a general rule of
law which is universally applicable. It is not a
legal presumption either. It is merely a
latinism describing the conclusion reached
by a court in a particular case after ascribing
to the evidence such weight or lack of
weight that the court deemed proper.
In the case before us, complainant reasoned out that Alfaro was
then having reservations when she first executed the first
statement and held back vital information due to her natural
reaction of mistrust. This being so, the panel believes that the
inconsistencies in Alfaro's two sworn statements have been
sufficiently explained especially specially so where there is no
showing that the inconsistencies were deliberately made to
distort the truth. Consequently, the probative value of Alfaro's
testimony deserves full faith and credit. As it has been often
noted, ex parte statements are generally incomplete because
they are usually executed when the affiant's state of mind does
not give her sufficient and fair opportunity to comprehend the
import of her statement and to narrate in full the incidents which
transpired (People vs. Sarellana, 233 SCRA 31 [1994]; Angelo
vs. Court of Appeals, supra). In the case at bar, there is no
dispute that a crime has been committed and what is clear
before us is that the totality of the evidence submitted by the
complainant indicate a prima facie  case that respondents
conspired in the perpetration of the imputed offense.
We note that the May 22, 1995 sworn statement of Alfaro was given with the
assistance of counsel28 and consists of six (6) pages, in single space reciting in rich
details how the crime was planned and then executed by the petitioners. In addition,
the DOJ Panel evaluated the supporting sworn statements of Nerissa Rosales and
Mila Gaviola, former housemaids of the Webbs, Carlos J. Cristobal, a passenger in
United Airlines Flight No. 808 and Lolita Birrer, a paramour of Gerardo Biong. The
Panel assayed their statements as follows:29
xxx xxx xxx
According to Nerissa E. Rosales, a former housemaid of the
Webb family, on June 29, 1991, between 7:00 o'clock and 8:00
o'clock in the evening, Hubert was at home inside his room with
two male visitors. She knew it because she and her co-
housemaid, Loany, were instructed by Hubert to bring them
three glasses of juice. It was the last time she saw Hubert and
was later told by then Congressman Webb that Hubert was in
the United States.
While Mila S. Gaviola, another former housemaid of the Webb
family and who served as a laundry woman, claims, aside from
corroborating the statement of Nerissa Rosales, that on June
30, 1991, she woke up at around 4:00 in the morning and as
what she used to do, she entered the rooms of the Webbs to get
their clothes to be washed. As a matter of fact, in that early
morning, she entered Hubert's room and saw Hubert, who was
only wearing his pants, already awake and smoking while he
was sitting on his bed. She picked up Hubert's scattered clothes
and brought them together with the clothes of the other
members of the family to the laundry area. After taking her
breakfast, she began washing the clothes of the Webbs. As she
was washing the clothes of Hubert Webb, she noticed fresh
bloodstains in his shirt. After she finished the laundry, she went
to the servant's quarters. But feeling uneasy, she decided to go
up to the stockroom near Hubert's room to see what he was
doing. In the said stockroom, there is a small door going to
Hubert's room and in that door there is a small opening where
she used to see Hubert and his friends sniffing on something.
She observed Hubert was quite irritated, uneasy, and walked to
and from inside his room.
On that day, she noticed Hubert left the house at around 1:00 in
the afternoon and came back at around 4:00 in the same
afternoon and went inside his room using the secret door of the
house. It was the last time that she saw Hubert until she left the
Webb family.
On the other hand, Carlos J. Cristobal alleged that on March 9,
1991, at about 10:00 in the morning, he was at the Ninoy Aquino
International Airport as he was then scheduled to take the
United Airlines Flight No. 808 at 2:00 in the afternoon for New
York. At the airport's lobby, he saw then Congressman Freddie
Webb with a male companion. He greeted him and Webb
answered: "Mabuti naman, at ito, ihahatid ko ang anak ko
papuntang Florida." He knew Freddie Webb because he often
watched him then in a television show "Chicks to Chicks." He
observed that the man whom Freddie Webb referred to as his
son, was of the same height as Freddie. The son referred to has
fair complexion with no distinguishing marks on his face. He
(son of Webb) was then wearing a striped white jacket. When he
and his children were already inside the plane, he did not see
Freddie anymore, but he noticed his son was seated at the front
portion of the economy class. He never noticed Freddie Webb's
son upon their arrival in San Francisco. He claims that, while
watching the television program "DONG PUNO LIVE" lately, he
saw the wife of Freddie Webb with her lawyer being interviewed,
and when she described Hubert as "moreno" and small built,
with a height of five feet and seven inches tall, and who was the
one who left for United States on March 9, 1991, he nurtured
doubts because such description does not fit the physical traits
of the son of Freddie, who left with him for United States on the
same flight and date.
Lolita Birrer, alleged that she know Gerardo Biong because she
had an affair with him for almost three (3) years and in fact, she
had a child with him who is now four (4) years old. Their
relationship started in February, 1991 until she broke up with
him in September 1993. She recalls that on June 29, 1991, at
around 6:00 p.m., Biong invited her to play mahjong at the
canteen of a certain Aling Glo located at the back of the
Parañaque Municipal Hall.
At about 2:30, in the early morning of January 30, 1991, the
radio operator of the Parañaque police told Biong that he has a
phone call. Before Biong went to the radio room, she was
instructed to take him over and after somebody won the game,
she followed Biong at the radio room where she overheard him
uttering, "Ano?, Saan? Mahirap yan, Paano, o sige, aantayin
kita, O ano?, dilaw na taxi, o sige." When he put the phone
down, Biong told her, "Mayroon lang akong rerespondehan,
ikaw muna ang maupo" and then, he went outside the canteen
apparently waiting for somebody. Twenty minutes later, a taxi,
colored yellow, arrived with a male passenger sitting at the
backseat and parked near the canteen. After it made some
signals by blinking its headlight, Biong rode thereat at the front
seat beside the driver and then, they left. She was not able to
recognize the male passenger because the window of the taxi
was tinted. Biong came back at around 7:00 of the same
morning and when he arrived, he immediately washed his hands
and face, and took his handkerchief from his pocket which he
threw at the trash can. She asked him why he threw his
handkerchief and he answered, "Hmp . . . amoy tae." She
inquired what happened in BF Homes and he replied, "Putang
inang mga batang iyon, pinahirapan nila ako."
Biong later invited her for breakfast, but they first went to his
office where she observed him doing something in his steel
cabinet while he appeared to be uneasy. Moments later,
Galvan, another policeman of Parañaque, arrived and said, " Oy
Biong, may tatlong patay sa BF, imbestigahan mo" to which
Biong answered, "Oo susunod na ako." Biong went to the office
of Capt. Don Bartolome who offered to accompany him and with
whom she asked permission to go with them. Before they
proceeded to the place where the killings happened, she asked
Biong if he knew the exact address and the latter immediately
responded, "Alam ko na yon." She was surprised because
Galvan never told him the place of the incident.
As soon as they arrived at the Vizconde's residence, Biong
instructed the housemaids to contact the victim's relatives, while
the security guard fetched the barangay chairman and the
president of the Homeowners Association. When all these
persons were already in the house, Biong started recording the
wounds of the victim. Inside the master's bedroom, she saw
Biong took a watch from the jewelry box. Because she could not
tolerate the foul odor, she and Capt. Bartolome went out of the
room and proceeded to the dining area. On top of the dining
table, she saw the scattered contents of a shoulder bag.
Moments later, Biong came out from the room and proceeded to
the front door to remove the chain lock; asked the keys from the
housemaid and it was only then that the main door was opened.
Biong noticed a stone in front of the broken glass of the door
and requested Capt. Bartolome to go inside the servant's
quarters as he doubted the housemaids' claim that they heard
nothing unusual. Using the handle of his gun, Biong broke the
remaining glass of the door panel. Bartolome then came out of
the room and told Biong that he can hear the sound of the glass
being broken. At the garage, Biong also noticed same marks on
the hood of the car.
On the following day, at around 12:00 noon, Biong arrived in her
house together with the Vizconde housemaids. When Biong was
preparing to take a bath, she saw him remove from his pocket
the things she also saw from Vizconde's residence, to wit:
calling cards, driver's license, ATM card, a crossed check worth
P80,000.00, earrings, a ring, bracelet, necklace, and the watch
he took from the jewelry box inside the room of the Vizcondes.
These jewelry items were later pawned by Biong for P20,000.00
at a pawnshop in front of Chow-Chow restaurant in Santos
Avenue, Parañaque. The next day, she saw Biong took from his
locker at the Parañaque Police Station an imported brown
leather jacket, which the latter claimed to have been given to
him by the person who called him up in the early morning of
June 30, 1991.
Since then, Biong has been wearing said jacket until they broke
up sometime in 1993. She observed that Biong seemed not
interested in pursuing the investigation of the Vizconde case. In
fact, when Biong and this group picked up Mike Gatchalian and
brought him to the Parañaque Police Station, she was surprised
that Biong halted the investigation when Gatchalian was
profusely sweating while being interrogated. After the father of
Gatchalian talked to Colonel Pureza, the latter called up and
instructed Biong to bring Gatchalian to him (Colonel Pureza)
and that was the last thing she remembered regarding this case.
The DOJ Panel then weighed these inculpatory evidence against the exculpatory
evidence of petitioners. It ruled: 30
xxx xxx xxx
The voluminous number of exhibits submitted by
respondent Webb to support his defense of denial and alibi
notwithstanding, the panel, after a careful and thorough
evaluation of the records, believes that they cannot outweigh the
evidence submitted by the complainant. Alibi cannot prevail over
the positive identification made by a prosecution witness. Verily,
alibi deserves scant consideration in the face of positive
identification especially so where the claim of alibi is supported
mainly by friends and relatives (People vs. Apolonia, 235 SCRA
124 [1994]; People vs. Lucas, 181 SCRA 316 and a long line of
cases).
Similarly, denial is a self-serving negative which cannot be given
greater evidentiary weight than the declaration of a credible
witness who testified on affirmative matters (People vs. Carizo,
233 SCRA 687 [1994]). Indeed, denial, like alibi, is weak and
becomes even more weaker when arrayed against the positive
identification by the witness for the prosecution (People vs.
Onpaid, 233 SCRA 62 [1994]).
Surprisingly, Gatchalian's defense of alibi was not corroborated
by Lejano, whom he claimed was with him watching video tapes
at the Syyap residence. Other than claiming that he "was not
and could not have been at or near the area of the Vizconde
residence at the time of the alleged commission of the crime,"
respondent Lejano proffered no evidence to substantiate his
claim of alibi.
xxx xxx xxx
On the other hand, respondent Webb seeks to enhance the
acceptability of his alibi in the form of documents tending to
show that he was thousands of miles away when the incident
occurred. We have carefully deliberated and argued on the
evidence submitted by respondent Webb in support of his
absence from the country since March 9, 1991 to October 26,
1992 and found the same wanting to exonerate him of the
offense charged. The material dates in this case are June 29
and 30, 1991. While respondent Webb may have submitted
proof tending to show that he was issued a California driver's
license on June 14, 1991, there is no showing that he could not
have been in the country on the dates above mentioned. Neither
do we find merit in the allegation that respondent Webb
personally bought a bicycle on June 30, 1991 in California in
view of his positive identification by Alfaro and the two (2)
househelps of the Webb family who testified that he was here in
the country on said dates. Additionally, the issuance of receipt
evidencing the purchase of a bicycle in California is no
conclusive proof that the name appearing thereon was the
actual buyer of the merchandise.
Given these conflicting pieces of evidence of the NBI and the petitioners,
we hold that the DOJ Panel did not gravely abuse its discretion when it
found probable cause against the petitioners. A finding of probable cause
needs only to rest on evidence showing that more likely than not a crime
has been committed and was committed by the suspects. Probable cause
need not be based on clear and convincing evidence of guilt, neither on
evidence establishing guilt beyond reasonable doubt and definitely, not on
evidence establishing absolute certainty of guilt. As well put in Brinegar
v. United States,31 while probable cause demands more than "bare
suspicion," it requires "less than evidence which would justify . . .
conviction." A finding of probable cause merely binds over the suspect to
stand trial. It is not a pronouncement of guilt.
Considering the low quantum and quality of evidence needed to support a
finding of probable cause, we also hold that the DOJ Panel did not,
gravely abuse its discretion in refusing to call the NBI witnesses for
clarificatory questions. The decision to call witnesses for clarificatory
questions is addressed to the sound discretion of the investigator and the
investigator alone. If the evidence on hand already yields a probable
cause, the investigator need not hold a clarificatory hearing. To repeat,
probable cause merely implies probability of guilt and should be
determined in a summary manner. Preliminary investigation is not a part
of trial and it is only in a trial where an accused can demand the full
exercise of his rights, such as the right to confront and cross-examine his
accusers to establish his innocence. In the case at bar, the DOJ Panel
correctly adjudged that enough evidence had been adduced to establish
probable cause and clarificatory hearing was unnecessary.
II
We now come to the charge of petitioners that respondent Judge Raul de
Leon and, later, respondent Judge Amelita Tolentino issued warrants of
arrest against them without conducting the required preliminary
examination. Petitioners support their stance by highlighting the following
facts: (1) the issuance of warrants of arrest in a matter of few hours; (2)
the failure of said judges to issue orders of arrest; (3) the records
submitted to the trial court were incomplete and insufficient from which to
base a finding of probable cause; and (4) that even Gerardo Biong who
was included in the Information as a mere accessory had a "NO BAIL"
recommendation by the DOJ Panel. Petitioners postulate that it was
impossible to conduct a "searching examination of witnesses and
evaluation of the documents" on the part of said judges.
The issuance of a warrant of arrest interferes with individual liberty and is
regulated by no less than the fundamental law of the land. Section 2 of
Article III of the Constitution provides:
Sec. 2. The right of the people to be secure in their persons,
houses, papers, and effects against unreasonable searches and
seizures of whatever nature and for any purpose shall be
inviolable, and no search warrant or warrant of arrest shall issue
except upon probable cause to be determined personally by the
judge after examination under oath or affirmation of the
complainant and the witnesses he may produce and particularly
describing the place to be searched and the persons or things to
be seized.
The aforequoted provision deals with the requirements of probable cause
both with respect to issuance of warrants of arrest or search warrants. The
similarities and differences of their requirements ought to be educational.
Some of them are pointed out by Professors LaFave and Israel, thus: 32 "It
is generally assumed that the same quantum of evidence is required
whether one is concerned with probable cause to arrest or probable cause
to search. But each requires a showing of probabilities as to somewhat
different facts and circumstances, and thus one can exist without the
other. In search cases, two conclusions must be supported by substantial
evidence: that the items sought are in fact seizable by virtue of being
connected with criminal activity, and that the items will be found in the
place to be searched. It is not also necessary that a particular person be
implicated. By comparison, in arrest cases there must be probable cause
that a crime has been committed and that the person to be arrested
committed it, which of course can exist without any showing that evidence
of the crime will be found at premises under that person's control." Worthy
to note, our Rules of Court do not provide for a similar procedure to be
followed in the issuance of warrants of arrest and search warrants. With
respect to warrants of arrest, section 6 of Rule 112 simply provides that
"upon filing of an information, the Regional Trial Court may issue a
warrant for the arrest of the accused." In contrast, the procedure to be
followed in issuing search warrants is more defined. Thus, Sections 3, 4
and 5 of Rule 126 provide:
xxx xxx xxx
Sec. 3. Requisites for issuing search warrant. — A search
warrant shall not issue but upon probable cause in connection
with one specific offense to be determined personally by the
judge after examination under oath or affirmation of the
complainant and the witnesses he may produce, and particularly
describing the place to be searched and the things to be seized.
Sec. 4. Examination of complainant; record. — The judge must,
before issuing the warrant, personally examine in the form of
searching questions and answers, in writing and under oath the
complainant and any witnesses he may produce on facts
personally known to them and attach to the record their sworn
statements together with any affidavits submitted.
Sec. 5. Issuance and form of search warrant. — If the judge is
thereupon satisfied of the facts upon which the application is
based, or that there is probable cause to believe that they exist,
he must issue the warrant, which must be substantially in the
form prescribed by these Rules.
We discussed the difference in the Procedure of issuing warrants of arrest
and search warrants in Soliven vs. Makasiar,33 thus:
xxx xxx xxx
The second issue, raised by Beltran, calls for an interpretation of
the constitutional provision on the issuance of warrants of arrest.
The pertinent provision reads:
Art. III, Sec. 2. The right of the people to be
secure in their persons, houses, papers and
effects against unreasonable searches and
seizures of whatever nature and for any
purpose shall be inviolable, and no search
warrant or warrant of arrest shall issue
except upon probable cause to be
determined personally by the judge after
 examination under oath or affirmation of the
complainant and the witnesses he may
produce, and particularly describing the
place to be searched and the persons or
things to be seized.
The addition of the word "personally" after the word
"determined" and the deletion of the grant of authority by the
1973 Constitution to issue warrants to "other responsible
officers as may be authorized by law," has apparently convinced
petitioner Beltran that the Constitution now requires the judge to
personally examine the complainant and his witnesses in his
determination of probable cause for the issuance of warrants of
arrest. This is not an accurate interpretation.
What the Constitution underscores is the exclusive and
personal responsibility of the issuing judge to satisfy himself of
the existence of probable cause. In satisfying himself of the
existence of probable cause for the issuance of a warrant of
arrest, the judge is not required to personally examine the
complainant and his witnesses. Following established doctrine
and procedure, he shall: (1) personally evaluate the report and
the documents submitted by the fiscal regarding the existence of
probable cause and, on the basis thereof, issue a warrant; or (2)
if on the basis thereof he finds no probable cause, he may
disregard the fiscal's report and require the submission of
supporting affidavits of witnesses to aid him in arriving at a
conclusions as to the existence of probable cause.
Sound policy dictates this procedure, otherwise judges would be
unduly laden with the preliminary examination and investigation
of criminal complaints instead of concentrating on hearing and
deciding cases filed before their courts.
Clearly then, the Constitution, the Rules of Court, and our case
law34 repudiate the submission of petitioners that respondent judges
should have conducted "searching examination of witnesses" before
issuing warrants of arrest against them. They also reject petitioners'
contention that a judge must first issue an order of arrest before issuing a
warrant of arrest. There is no law or rule requiring the issuance of an
Order of Arrest prior to a warrant of arrest.
In the case at bar, the DOJ Panel submitted to the trial court its 26-page
report, the two (2) sworn statements of Alfaro and the sworn statements of
Carlos Cristobal and Lolita Birrer35 as well as the counter-affidavits of the
petitioners. Apparently, the painstaking recital and analysis of the parties'
evidence made in the DOJ Panel Report satisfied both judges that there is
probable cause to issue warrants of arrest against petitioners. Again, we
stress that before issuing warrants of arrest, judges merely
determine personally the probability, not the certainty  of guilt of an
accused. In doing so, judges do not conduct a de novo hearing to
determine the existence of probable cause. They just personally
review  the initial determination of the prosecutor finding a probable cause
to see if it is supported by substantial evidence. The sufficiency of the
review process cannot be measured by merely counting minutes and
hours. The fact that it took the respondent judges a few hours to review
and affirm the probable cause determination of the DOJ Panel does not
mean they made no personal evaluation of the evidence attached to the
records of the case.36
Petitioners' reliance on the case of Allado vs. Diokno37 is misplaced.
Our Allado  ruling is predicated on the utter failure of the evidence to show
the existence of probable cause. Not even the corpus delicti of the crime
was established by the evidence of the prosecution in that case. Given the
clear insufficiency of the evidence on record, we stressed the necessity for
the trial judge to make a further personal examination of the complainant
and his witnesses to reach a correct assessment of the existence or non-
existence of probable cause before issuing warrants of arrest against the
accused. The case at bar, however, rests on a different factual setting. As
priorly discussed, the various types of evidence extant in the records of
the case provide substantial basis for a finding of probable cause against
the petitioner. The corpus delicti of the crime is a given fact. There is an
eyewitness account of the imputed crime given by Alfaro. The alibi
defense of petitioner Webb is also disputed by sworn statements of their
former maids. It was therefore unnecessary for the respondent judges to
take the further step of examining ex parte  the complainant and their
witnesses with searching questions.
III
Petitioners also complain about the denial of their constitutional right to
due process and violation of their right to an impartial investigation. They
decry their alleged hasty and malicious prosecution by the NBI and the
DOJ Panel. They also assail the prejudicial publicity that attended their
preliminary investigation.
We reject these contentions. The records will show that the DOJ Panel did
not conduct the preliminary investigation with indecent haste. Petitioners
were given fair opportunity to prove lack of probable cause against them.
The fairness of this opportunity is well stressed in the Consolidated
Comment of the Solicitor General, viz.:
Again, there is no merit in this contention. Petitioners were
afforded all the opportunities to be heard. Petitioner Webb
actively participated in the preliminary investigation by
appearing in the initial hearing held on June 30, 1995 and in the
second hearing on July 14, 1995; and by filing a "Motion for
Production and Examination of Evidence and Documents" on
June 27, 1995 (p. 4, Petition), a "Reply to the compliance and
Comment/Manifestation to the Motion for Production and
Examination of Evidence" on July 5, 1995 (p. 6, Petition), a
"Comment and Manifestation" on July 7, 1995 (p. 6, Petition),
his "Counter-Affidavit" on July 14, 1995 (pp. 6-7, Petition) and a
"Motion to Resolve" on August 1, 1995. Numerous letter-
requests were also sent by the petitioner Webb's counsel to the
DOJ Panel requesting the latter to furnish him a copy of the
reports prepared by the FBI concerning the petitioner's
whereabouts during the material period (Annexes "L", "L-1" and
"L-2" of the Supplemental Petition dated August 14, 1995). In
fact, not satisfied with the decision of the DOJ Panel not to
issue subpoena duces tecum to Atty. Arturo L. Mercader, Jr.,
petitioner Webb filed a "Petition for Injunction, Certiorari,
Prohibition and Mandamus" with the Regional Trial Court,
Branch 63 of Makati in order to compel said Atty. Mercader, Jr.
to produce the first sworn statement of Alfaro for submission to
the DOJ Panel. (p. 4, Petition) The said court dismissed the
petition after Mercader produced and submitted to the DOJ
Panel the first sworn statement of Alfaro, without ruling on the
admissibility and credence of the two (2) conflicting and
inconsistent sworn statements of the principal witness, Alfaro.
(Attached hereto is a copy of the order of Judge Ruben A.
Mendiola, RTC-Makati, Branch 63 dated July 28, 1995) marked
as Annex "F."
It must also be pointed out that despite the declaration by the
DOJ Panel that the preliminary investigation was to be
terminated after the hearing held on July 14, 1995, the panel
continued to conduct further proceedings, e.g. comparison of
the photo-copies of the submitted documents with the originals
on July 17, 1995. (p. 7, Petition) The panel even entertained the
"Response" submitted by accused Miguel Rodriguez on July 18,
1995. (p. 17 Resolution) In addition to these, the panel even
announced that any party may submit additional
evidence  before the resolution of the case. (p. 8, Petition) From
the time the panel declared the termination of the preliminary
investigation on July 14, 1995, twenty-seven (27) days  elapsed
before the resolution was promulgated, and the information
eventually filed in the Regional Trial Court of Parañaque on
August 10, 1995. This notwithstanding the directive of Section
3(f) Rule 112 of the Revised Rules of Court that the
investigating officer shall resolve the case within ten (10)
days  from the termination of the preliminary investigation. The
DOJ Panel precisely allowed the parties to adduce more
evidence in their behalf and for the panel to study the evidence
submitted more fully. This directly disputes the allegation of the
petitioners that the resolution was done with indecent haste in
violation of the rights of the petitioners. During the period
of twenty-seven (27) days, the petitioners were free to adduce
and present additional evidence before the DOJ Panel.
Verily, petitioners cannot now assert that they were denied due
process during the conduct of the preliminary investigation
simply because the DOJ Panel promulgated the adverse
resolution and filed the Information in court against them.
Petitioners cannot also assail as premature the filing of the Information in
court against them for rape with homicide on the ground that they still
have the right to appeal the adverse resolution of the DOJ Panel to the
Secretary of Justice. The filing of said Information is in accord with
Department of Justice Order No. 223, series of 1993, dated June 25,
1993. We quote its pertinent sections, viz.:
Sec. 4. Non-Appealable Cases; Exceptions. — No appeal may
be taken from a resolution of the Chief State
Prosecutor/Regional State Prosecutor/Provincial or City
Prosecutor finding probable cause except upon showing of
manifest error or grave abuse of discretion. Notwithstanding the
showing of manifest error or grave abuse of discretion, no
appeal shall be entertained where the appellant had already
been arraigned. If the appellant is arraigned during the
pendency of the appeal, said appeal shall be dismissed motu
propio by the Secretary of Justice.
An appeal/motion for reinvestigation from a resolution finding
probable cause, however, shall not hold the filing of the
information in court.
Sec. 2. When to appeal. — The appeal must be filed within a
period of fifteen (15) days from receipt of the questioned
resolution by the party or his counsel. The period shall be
interrupted only by the filing of a motion for reconsideration
within ten (10) days from receipt of the resolution and shall
continue to run from the time the resolution denying the motion
shall have been received by the movant or his counsel.
(Emphasis supplied)
Without doubt then, the said DOJ Order No. 223 allows the filing of an
Information in court after the consummation of the preliminary
investigation even if the accused can still exercise the right to seek a
review of the prosecutor's recommendation with the Secretary of Justice.
Next, petitioners fault the DOJ Panel for not including Alfaro in the
Information considering her alleged conspiratorial participation in the
crime of rape with homicide. The non-inclusion of Alfaro is anchored on
Republic Act 
No. 6981, entitled "An Act Providing For A Witness Protection, Security
And Benefit Program And For Other Purposes" enacted on April 24, 1991.
Alfaro qualified under its Section 10, which provides:
xxx xxx xxx
Sec. 10. State Witness. — Any person who has participated in
the commission of a crime and desires to a witness for the
State, can apply and, if qualified as determined in this Act and
by the Department, shall be admitted into the Program
whenever the following circumstances are present:
(a) the offense in which his testimony will be used is a grave
felony as defined under the R.P.C. or its equivalent under
special laws;
(b) there is absolute necessity for his testimony;
(c) there is no other direct evidence available for the proper
prosecution of the offense committed;
(d) his testimony can be substantially corroborated on its
material points;
(e) he does not appear to be most guilty; and
(f) he has not at anytime been convicted of any crime involving
moral turpitude.
An accused discharged from an information or criminal
complaint by the court in order that he may be a State Witness
pursuant to Sections 9 and 10 of Rule 119 of the Revised Rules
of Court may upon his petition be admitted to the Program if he
complies with the other requirements of this Act. Nothing in this
Act shall prevent the discharge of an accused so that he can be
used as a Witness under Rule 119 of the Revised Rules of
Court.
Upon qualification of Alfaro to the program, Section 12 of the said law
mandates her non-inclusion in the criminal Complaint or Information, thus:
xxx xxx xxx
Sec. 12. Effect of Admission of a State Witness into the
Program. — The certification of admission into the Program by
the Department shall be given full faith and credit by the
provincial or city prosecutor who is required NOT TO INCLUDE
THE WITNESS IN THE CRIMINAL COMPLAINT OR
INFORMATION and if included therein, to petition the court for
his discharge in order that he can be utilized as a State Witness.
The court shall order the discharge and exclusion of the said
accused from the information.
Admission into the Program shall entitle such State Witness to
immunity from criminal prosecution for the offense or offenses in
which his testimony will be given or used and all the rights and
benefits provided under Section 8 hereof.
The validity of these provisions is challenged by petitioner Webb. It is
urged that they constitute ". . . an intrusion into judicial prerogative for it is
only the court which has the power under the Rules on Criminal
Procedure to discharge an accused as a state witness." The argument is
based on Section 9, Rule 11938which gives the court the prerogative to
approve the discharge of an accused to be a state witness. Petitioner's
argument lacks appeal for it lies on the faulty assumption that the decision
whom to prosecute is a judicial function, the sole prerogative of courts and
beyond executive and legislative interference. In truth, the prosecution of
crimes appertains to the executive department of government whose
principal power and responsibility is to see that our laws are faithfully
executed. A necessary component of this power to execute our laws is the
right to prosecute their violators. The right to prosecute vests the
prosecutor with a wide range of discretion — the discretion of whether,
what and whom to charge, the exercise of which depends on a
smorgasbord of factors which are best appreciated by prosecutors. We
thus hold that it is not constitutionally impermissible for Congress to enact
R.A. No. 6981 vesting in the Department of Justice the power to
determine who can qualify as a witness in the program and who shall be
granted immunity from prosecution.39Section 9 of Rule 119 does not
support the proposition that the power to choose who shall be a state
witness is an inherent judicial prerogative. Under this provision, the court,
is given the power to discharge a state witness only because it has
already acquired jurisdiction over the crime and the accused. The
discharge of an accused is part of the exercise of jurisdiction but is not a
recognition of an inherent judicial function. Moreover, the Rules of Court
have never been interpreted to be beyond change by legislation designed
to improve the administration of our justice system. R.A. No. 6981 is one
of the much sought penal reform laws to help government in its uphill fight
against crime, one certain cause of which is the reticence of witnesses to
testify. The rationale for the law is well put by the Department of
Justice, viz.: "Witnesses, for fear of reprisal and economic dislocation,
usually refuse to appear and testify in the investigation/prosecution of
criminal complaints/cases. Because of such refusal, criminal
complaints/cases have been dismissed for insufficiency and/or lack of
evidence. For a more effective administration of criminal justice, there was
a necessity to pass a law protecting witnesses and granting them certain
rights and benefits to ensure their appearance in investigative
bodies/courts."40 Petitioner Webb's challenge to the validity of R.A. No.
6981 cannot therefore succeed.
Further, petitioners charge the NBI with violating their right to discovery
proceedings during their preliminary investigation by suppressing the April
28, 1995 original copy of the sworn statement of Alfaro and the FBI
Report. The argument is novel in this jurisdiction and as it urges an
expansive reading of the rights of persons under preliminary investigation
it deserves serious consideration. To start with, our Rules on Criminal
Procedure do not expressly provide for discovery proceedings during the
preliminary investigation stage of a criminal proceeding. 41 Sections 10 and
11 of Rule 117 do provide an accused the right to move for a bill of
particulars and for production or inspection of material evidence in
possession of the prosecution.42 But these provisions apply after the filing
of the Complaint or Information in court and the rights are accorded to the
accused to assist them to make an intelligent plea at arraignment and to
prepare for trial.43
This failure to provide discovery procedure during preliminary investigation
does not, however, negate its use by a person under investigation when
indispensable to protect his constitutional right to life, liberty and property.
Preliminary investigation is not too early a stage to guard against any
significant erosion of the constitutional right to due process of a potential
accused. As aforediscussed, the object of a preliminary investigation is to
determine the probability that the suspect committed a crime. We hold that
the finding of a probable cause by itself subjects the suspect's life, liberty
and property to real risk of loss or diminution. In the case at bar, the risk to
the liberty of petitioners cannot be understated for they are charged with
the crime of rape with homicide, a non-bailable offense when the evidence
of guilt is strong.
Attuned to the times, our Rules have discarded the pure inquisitorial
system of preliminary investigation. Instead, Rule 112 installed a quasi-
judicial type of preliminary investigation conducted by one whose high
duty is to be fair and impartial.44 As this Court emphasized in Rolito Go
vs. Court of Appeals,45 "the right to have a preliminary investigation
conducted before being bound over for trial for a criminal offense, and
hence formally at risk of incarceration or some other penalty, is not a mere
formal or technical right; it is a substantive right." A preliminary
investigation should therefore be scrupulously conducted so that the
constitutional right to liberty of a potential accused can be protected from
any material damage. We uphold the legal basis of the right of petitioners
to demand from their prosecutor, the NBI, the original copy of the April 28,
1995 sworn statement of Alfaro and the FBI Report during their
preliminary investigation considering their exculpatory character, and
hence, unquestionable materiality to the issue of their probable guilt. The
right is rooted on the constitutional protection of due process which we
rule to be operational even during the preliminary investigation of a
potential accused. It is also implicit in section (3) (a) of Rule 112 which
requires during the preliminary investigation the filing of a sworn
complaint, which shall ". . . state the known address of the respondent and
be accompanied by affidavits of the complainant and his witnesses as well
as other supporting documents . . ."
In laying down this rule, the Court is not without enlightened precedents
from other jurisdictions. In the 1963 watershed case of Brady
v. Maryland  46 the United States Supreme Court held that "suppression
of evidence favorable to an accused upon request violates due process
where the evidence is material to guilt or punishment, irrespective of the
good faith or bad faith of the prosecution." Its progeny is the 1935 case
of Mooney v. Holohan  47 which laid down the proposition that a
prosecutor's intentional use of perjured testimony to procure conviction
violates due process. Thus, evolved jurisprudence firming up the
prosecutor's duty to disclose to the defense exculpatory evidence in its
possession.48 The rationale is well put by Justice Brennan in Brady49 —
"society wins not only when the guilty are convicted but when criminal
trials are fair." Indeed, prosecutors should not treat litigation like a game of
poker where surprises can be sprung and where gain by guile is not
punished.
But given the right of petitioners to compel the NBI to disclose exculpatory
evidence in their favor, we are not prepared to rule that the initial non-
production of the original sworn statement of Alfaro dated April 28, 1995
could have resulted in the reasonable likelihood that the DOJ Panel would
not have found probable cause. To be sure, the NBI, on July 4, 1995,
upon request of petitioners, submitted a photocopy of Alfaro's April 28,
1995 sworn statement. It explained it cannot produce the original as it had
been lost. Fortunately, petitioners, on July 28, 1995, were able to obtain a
copy of the original from Atty. Arturo Mercader in the course of the
proceedings in Civil Case No. 951099.50 As petitioners admit, the DOJ
Panel accepted the original of Alfaro's April 28, 1995 sworn statement as
a part of their evidence.51 Petitioners thus had the fair chance to explain to
the DOJ Panel then still conducting their preliminary investigation the
exculpatory aspects of this sworn statement. Unfortunately for petitioners,
the DOJ Panel still found probable cause to charge them despite the
alleged material discrepancies between the first and second sworn
statements of Alfaro. For reasons we have expounded, this finding of
probable cause cannot be struck down as done with grave abuse of
discretion.52On the other hand, the FBI Report while corroborative of the
alibi of petitioner Webb cannot by itself reverse the probable cause finding
of the DOJ Panel in light of the totality of evidence presented by the NBI.
Finally, we come to the argument of petitioner that the DOJ Panel lost its
impartiality due to the prejudicial publicity waged in the press and
broadcast media by the NBI.
Again, petitioners raise the effect of prejudicial publicity on their right to
due process while undergoing preliminary investigation. We find no
procedural impediment to its early invocation considering the substantial
risk to their liberty while undergoing a preliminary investigation.
In floating this issue, petitioners touch on some of the most problematic
areas in constitutional law where the conflicting demands of freedom of
speech and of the press, the public's right to information, and an
accused's right to a fair and impartial trial collide and compete for
prioritization. The process of pinpointing where the balance should be
struck has divided men of learning as the balance keeps moving either on
the side of liberty or on the side of order as the tumult of the time and the
welfare of the people dictate. The dance of balance is a difficult act to
follow.
In democratic settings, media coverage of trials of sensational cases
cannot be avoided and oftentimes, its excessiveness has been
aggravated by kinetic developments in the telecommunications industry.
For sure, few cases can match the high volume and high velocity of
publicity that attended the preliminary investigation of the case at bar. Our
daily diet of facts and fiction about the case continues unabated even
today. Commentators still bombard the public with views not too many of
which are sober and sublime. Indeed, even the principal actors in the case
— the NBI, the respondents, their lawyers and their sympathizers — have
participated in this media blitz. The possibility of media abuses and their
threat to a fair trial notwithstanding, criminal trials cannot be completely
closed to the press and the public. In the seminal case of Richmond
Newspapers, Inc. v. Virginia,53 it was wisely held:
xxx xxx xxx
(a) The historical evidence of the evolution of the criminal trial in
Anglo-American justice demonstrates conclusively that at the
time this Nation's organic laws were adopted, criminal trials both
here and in England had long been presumptively open, thus
giving assurance that the proceedings were conducted fairly to
all concerned and discouraging perjury, the misconduct of
participants, or decisions based on secret bias or partiality. In
addition, the significant community therapeutic value of public
trials was recognized: when a shocking crime occurs, a
community reaction of outrage and public protest often follows,
and thereafter the open processes of justice serve an important
prophylactic purpose, providing an outlet for community
concern, hostility, and emotion. To work effectively, it is
important that society's criminal process "satisfy the appearance
of justice," Offutt v. United States, 348 US 11, 14, 99 L Ed 11,
75 S Ct 11, which can best be provided by allowing people to
observe such process. From this unbroken, uncontradicted
history, supported by reasons as valid today as in centuries
past, it must be concluded that a presumption of openness
inheres in the very nature of a criminal trial under this Nation's
system of justice, Cf., e.g., Levine v. United States, 362 US 610,
4 L Ed 2d 989, 80 S Ct 1038.
(b) The freedoms of speech, press, and assembly, expressly
guaranteed by the First Amendment, share a common core
purpose of assuring freedom of communication on matters
relating to the functioning of government. In guaranteeing
freedoms such as those of speech and press, the First
Amendment can be read as protecting the right of everyone to
attend trials so as to give meaning to those explicit guarantees;
the First Amendment right to receive information and ideas
means, in the context of trials, that the guarantees of speech
and press, standing alone, prohibit government from summarily
closing courtroom doors which had long been open to the public
at the time the First Amendment was adopted. Moreover, the
right of assembly is also relevant, having been regarded not
only as an independent right but also as a catalyst to augment
the free exercise of the other First Amendment rights with which
it was deliberately linked by
the draftsmen. A trial courtroom is a public place where the
people generally — and representatives of the media — have a
right to be present, and where their presence historically has
been thought to enhance the integrity and quality of what takes
place.
(c) Even though the Constitution contains no provision which by
its terms guarantees to the public the right to attend criminal
trials, various fundamental rights, not expressly guaranteed,
have been recognized as indispensable to the enjoyment of
enumerated rights. The right to attend criminal trials is implicit in
the guarantees of the First Amendment; without the freedom to
attend such trials, which people have exercised for centuries,
important aspects of freedom of speech and of the press could
be eviscerated.
Be that as it may, we recognize that pervasive and prejudicial publicity IN VIEW WHEREOF, the petitions are dismissed for lack of showing of
under certain circumstances can deprive an accused of his due process grave abuse of discretion on the part of the respondents. Costs against
right to fair trial. Thus, in Martelino, et al. vs. Alejandro, et al.,54 we held petitioners.
that to warrant a finding of prejudicial publicity there must be allegation
and proof  that the judges have been unduly influenced, not simply that SO ORDERED.
they might be, by the barrage of publicity. In the case at bar, we find
nothing in the records that will prove that the tone and content, of the Regalado, J., concurs.
publicity that attended the investigation of petitioners fatally infected the
fairness and impartiality of the DOJ Panel. Petitioners cannot just rely on
the subliminal effects of publicity on the sense of fairness of the DOJ Mendoza, J., concurs in the result.
Panel, for these are basically unbeknown and beyond knowing. To be
sure, the DOJ Panel is composed of an Assistant Chief State Prosecutor Narvasa, C.J., is on leave.
and Senior State Prosecutors. Their long experience in criminal
investigation is a factor to consider in determining whether they can easily  
be blinded by the klieg lights of publicity. Indeed, their 26-page Resolution
carries no indubitable indicia of bias for it does not appear that they  
considered any extra-record evidence except evidence properly adduced
by the parties. The length of time the investigation was conducted despite
 
its summary nature and the generosity with which they accommodated the
discovery motions of petitioners speak well of their fairness. At no
instance, we note, did petitioners seek the disqualification of any member Separate Opinion
of the DOJ Panel on the ground of bias resulting from their bombardment
of prejudicial publicity.

It all remains to state that the Vizconde case will move to a more critical
stage as petitioners will now have to undergo trial on the merits. We stress
that probable cause is not synonymous with guilt and while the light of
publicity may be a good disinfectant of unfairness, too much of its heat
can bring to flame an accused's right to fair trial. Without imposing on the
trial judge the difficult task of supervising every specie of speech relating
to the case at bar, it behooves her to be reminded of the duty of a trial
judge in high profile criminal cases to control publicity prejudicial to the fair
administration of justice.55 The Court reminds judges that our ability to
dispense impartial justice is an issue in every trial and in every criminal
prosecution, the judiciary always stands as a silent accused. More than
convicting the guilty and acquitting the innocent, the business of the
judiciary is to assure fulfillment of the promise that justice shall be done
and is done — and that is the only way for the judiciary to get an acquittal
from the bar of public opinion.
FRANCISCO, J., concurring:
The thrust of petitioners' arguments involve the validity and exercise of the
prosecutory powers of the State. Maintaining their innocence, petitioners
assert that the filing of an information and the issuance of warrants of
arrest against them were without probable cause. Petitioners, in my
considered view, failed to make a case to warrant the Court's interference.
Preliminary investigation, unlike trial, is summary in nature, the purpose of
which is merely to determine whether a crime has been committed and
whether there is probable cause to believe that the accused is guilty
thereof (Paderanga v. Drilon, 196 SCRA 86, 92 [1991]). It is not intended
to find guilt beyond reasonable doubt. Courts should give deference, in
the absence of a clear showing of arbitrariness, as in this case, to the
finding and determination of probable cause by prosecutors in preliminary
investigations. If not, the functions of the courts will be unduly hampered
by innumerable petitions compelling the review of the exercise of warrants of arrest against petitioners thus can not be said to be whimsical
discretion on the part of fiscals or prosecuting attorneys if each time they or arbitrary.
decide to file an information in court their finding can be immediately
brushed aside at the instance of those charged (Ocampo IV v. Lastly, the law in this jurisdiction is lopsided in favor of the accused. The
Ombudsman, 225 SCRA 725, 730 [1993]). The Court, therefore, must 1987 Constitution and the Rules of Court enumerate an array of rights
look askance at unmeritorious moves that could give a dent in the efficient upon which an accused can seek protection and solace. To mention a
and effective administration of justice. few: he has the right to be presumed innocent until the contrary is proved,
the right against self-incrimination, the right to remain silent, to confront
Petitioners characterize the evidence against them to be inherently weak and cross-examine the witnesses against him, to have a speedy, impartial
and uncorroborated vis-a-vis  their defenses. The weight or sufficiency of and public trial, to be heard by himself and counsel, to have competent
evidence, to my mind, is best assayed in the trial proper. In the search for and independent counsel preferably of his own choice. These rights are
truth, a trial has distinct merits over a preliminary investigation. We have afforded to the accused and not to the complainant. Therefore, petitioners
had occasion to stress that trial is to be preferred to ferret out the truth need not be distressed if they henceforth go to trial.
(Abugotal v. Tiro, 66 SCRA 196, 201 [1975]). The validity and merits of a
party's defense or accusation as well as the admissibility or inadmissibility I vote to dismiss the petitions.
of testimonies and evidence are better ventilated during the trial stage
than in the preliminary investigation level. The ineluctable media attention Mendoza, J., concurs.
notwithstanding, truth as to their innocence or guilt is still best determined
at the trial.
 
With respect to petitioners' contention that public respondent judge failed
to personally examine and determine the existence of probable cause for  
the issuance of a warrant, suffice it to say that the judge does not have to
personally examine the complainant and his witnesses in order to issue a  
warrant of arrest as he can rely on the certification of the prosecutor/s
(Circular No. 12 — Guidelines on Issuance of Warrants of Arrests [June Separate Opinion
30, 1987]; Soliven v. Makasiar, 167 SCRA 393, 398 [1988]). There is
ample evidence and sufficient basis on record that support the trial court's FRANCISCO, J., concurring:
issuance of the warrant as petitioners themselves do not contend that the
prosecutors' certification was unaccompanied by the records of the
The thrust of petitioners' arguments involve the validity and exercise of the
preliminary investigation to take their case outside the ambit of the rule.
prosecutory powers of the State. Maintaining their innocence, petitioners
Moreover, contrary to what the petitioners imply, the Court may not
assert that the filing of an information and the issuance of warrants of
determine how cursory or exhaustive the judge's examination of the
arrest against them were without probable cause. Petitioners, in my
certification, report and findings of the preliminary investigation and its
considered view, failed to make a case to warrant the Court's interference.
annexes should be as this depends not only upon the sound exercise of
the judge's discretion in personally determining the existence of probable
cause, but also from the circumstances of each case (Lim, Sr. v. Felix, Preliminary investigation, unlike trial, is summary in nature, the purpose of
194 SCRA 292, 306 [1991]). Besides, respondent judge, being a public which is merely to determine whether a crime has been committed and
officer, enjoys the presumption of regularity in the performance of his whether there is probable cause to believe that the accused is guilty
duties (Rule 131, Sec. 3 [m], Rules of Court). The issuance of the thereof (Paderanga v. Drilon, 196 SCRA 86, 92 [1991]). It is not intended
to find guilt beyond reasonable doubt. Courts should give deference, in cause, but also from the circumstances of each case (Lim, Sr. v. Felix,
the absence of a clear showing of arbitrariness, as in this case, to the 194 SCRA 292, 306 [1991]). Besides, respondent judge, being a public
finding and determination of probable cause by prosecutors in preliminary officer, enjoys the presumption of regularity in the performance of his
investigations. If not, the functions of the courts will be unduly hampered duties (Rule 131, Sec. 3 [m], Rules of Court). The issuance of the
by innumerable petitions compelling the review of the exercise of warrants of arrest against petitioners thus can not be said to be whimsical
discretion on the part of fiscals or prosecuting attorneys if each time they or arbitrary.
decide to file an information in court their finding can be immediately
brushed aside at the instance of those charged (Ocampo IV v. Lastly, the law in this jurisdiction is lopsided in favor of the accused. The
Ombudsman, 225 SCRA 725, 730 [1993]). The Court, therefore, must 1987 Constitution and the Rules of Court enumerate an array of rights
look askance at unmeritorious moves that could give a dent in the efficient upon which an accused can seek protection and solace. To mention a
and effective administration of justice. few: he has the right to be presumed innocent until the contrary is proved,
the right against self-incrimination, the right to remain silent, to confront
Petitioners characterize the evidence against them to be inherently weak and cross-examine the witnesses against him, to have a speedy, impartial
and uncorroborated vis-a-vis  their defenses. The weight or sufficiency of and public trial, to be heard by himself and counsel, to have competent
evidence, to my mind, is best assayed in the trial proper. In the search for and independent counsel preferably of his own choice. These rights are
truth, a trial has distinct merits over a preliminary investigation. We have afforded to the accused and not to the complainant. Therefore, petitioners
had occasion to stress that trial is to be preferred to ferret out the truth need not be distressed if they henceforth go to trial.
(Abugotal v. Tiro, 66 SCRA 196, 201 [1975]). The validity and merits of a
party's defense or accusation as well as the admissibility or inadmissibility I vote to dismiss the petitions.
of testimonies and evidence are better ventilated during the trial stage
than in the preliminary investigation level. The ineluctable media attention Mendoza, J., concurs.
notwithstanding, truth as to their innocence or guilt is still best determined
at the trial.
Footnotes
With respect to petitioners' contention that public respondent judge failed
to personally examine and determine the existence of probable cause for
the issuance of a warrant, suffice it to say that the judge does not have to
personally examine the complainant and his witnesses in order to issue a
warrant of arrest as he can rely on the certification of the prosecutor/s
(Circular No. 12 — Guidelines on Issuance of Warrants of Arrests [June
30, 1987]; Soliven v. Makasiar, 167 SCRA 393, 398 [1988]). There is
ample evidence and sufficient basis on record that support the trial court's
issuance of the warrant as petitioners themselves do not contend that the
prosecutors' certification was unaccompanied by the records of the
preliminary investigation to take their case outside the ambit of the rule.
Moreover, contrary to what the petitioners imply, the Court may not
determine how cursory or exhaustive the judge's examination of the
certification, report and findings of the preliminary investigation and its
annexes should be as this depends not only upon the sound exercise of
the judge's discretion in personally determining the existence of probable
 Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. Nos. 172070-72             June 1, 2007
VICENTE P. LADLAD, NATHANAEL S. SANTIAGO, RANDALL B. ECHANIS, and
REY CLARO C. CASAMBRE,Petitioners,  of Regional Trial Court of Makati City, Branch 146, and HONORABLE ELMO M.
vs.
SENIOR STATE PROSECUTOR EMMANUEL Y. VELASCO, SENIOR STATE
PROSECUTOR JOSELITA C. MENDOZA, SENIOR STATE PROSECUTOR
AILEEN MARIE S. GUTIERREZ, STATE PROSECUTOR IRWIN A. MARAYA, and
STATE PROSECUTOR MERBA A. WAGA, in their capacity as members of the
Department of Justice panel of prosecutors investigating I.S. Nos. 2006-225, 2006-
226 and 2006-234, JUSTICE SECRETARY RAUL M. GONZALEZ, DIRECTOR
GENERAL ARTURO C. LOMIBAO, in his capacity as Chief, Philippine National
Police, P/CSUPT. RODOLFO B. MENDOZA, JR., and P/SUPT. YOLANDA G.
TANIGUE, Respondents.
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x
G.R. Nos. 172074-76             June 1, 2007
LIZA L. MAZA, JOEL G. VIRADOR, SATURNINO C. OCAMPO, TEODORO A.
CASIÑO, CRISPIN B. BELTRAN, and RAFAEL V. MARIANO, Petitioners,  Petitioner in G.R. No. 175013, Crispin B. Beltran (Beltran), and petitioners in G.R.
vs.
RAUL M. GONZALEZ, in his capacity as Secretary of the Department of Justice,
JOVENCITO R. ZUÑO, in his capacity as Chief State Prosecutor, the Panel of
Investigating Prosecutors composed of EMMANUEL Y. VELASCO, JOSELITA C.
MENDOZA, AILEEN MARIE S. GUTIERREZ, IRWIN A. MARAYA and MERBA A.
WAGA (Panel), RODOLFO B. MENDOZA, in his capacity as Acting Deputy Director,
Directorate for Investigation and Detective Management (DIDM), YOLANDA G.
TANIGUE, in her capacity as Acting Executive Officer of DIDM, the DEPARTMENT
OF JUSTICE (DOJ), and the PHILIPPINE NATIONAL POLICE
(PNP), Respondents.
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x
G.R. No. 175013             June 1, 2007
CRISPIN B. BELTRAN, Petitioner, 
vs.
PEOPLE OF THE PHILIPPINES, SECRETARY RAUL M. GONZALEZ, in his
capacity as the Secretary of Justice and overall superior of the Public Prosecutors,
HONORABLE ENCARNACION JAJA G. MOYA, in her capacity as Presiding Judge
ALAMEDA, in his capacity as Presiding Judge of Regional Trial Court of Makati City,
Branch 150,Respondents.
DECISION
CARPIO, J.:
The Case
These are consolidated petitions for the writs of prohibition and certiorari to enjoin
petitioners’ prosecution for Rebellion and to set aside the rulings of the Department
of Justice (DOJ) and the Regional Trial Court of Makati City (RTC Makati) on the
investigation and prosecution of petitioners’ cases.
The Facts
Nos. 172074-76, Liza L. Maza (Maza), Joel G. Virador (Virador), Saturnino C.
Ocampo (Ocampo), Teodoro A. Casiño (Casiño), and Rafael V. Mariano
(Mariano),1 are members of the House of Representatives representing various
party-list groups.2Petitioners in G.R. Nos. 172070-72 are private individuals.
Petitioners all face charges for Rebellion under Article 134 in relation to Article 135
of the Revised Penal Code in two criminal cases pending with the RTC Makati.
G.R. No. 175013 (The Beltran Petition)
Following the issuance by President Gloria Macapagal-Arroyo of Presidential
Proclamation No. 1017 on 24 February 2006 declaring a "State of National
Emergency," police officers3 arrested Beltran on 25 February 2006, while he was en
route to Marilao, Bulacan, and detained him in Camp Crame, Quezon City. Beltran
was arrested without a warrant and the arresting officers did not inform Beltran of
the crime for which he was arrested. On that evening, Beltran was subjected to an
inquest at the Quezon City Hall of Justice for Inciting to Sedition under Article 142 of
the Revised Penal Code based on a speech Beltran allegedly gave during a rally in
Quezon City on 24 February 2006, on the occasion of the 20 th anniversary of the
EDSA Revolution. The inquest was based on the joint affidavit of Beltran’s arresting
officers who claimed to have been present at the rally. The inquest
prosecutor4indicted Beltran and filed the corresponding Information with the
Metropolitan Trial Court of Quezon City (MeTC). 5
The authorities brought back Beltran to Camp Crame where, on 27 February 2006,
he was subjected to a second inquest, with 1st Lt. Lawrence San Juan (San Juan),
this time for Rebellion. A panel of State prosecutors 6 from the DOJ conducted this
second inquest. The inquest was based on two letters, both dated 27 February
2006, of Yolanda Tanigue (Tanigue) and of Rodolfo Mendoza (Mendoza). Tanigue
is the Acting Executive Officer of the Criminal Investigation and Detection Group
(CIDG), Philippine National Police (PNP), while Mendoza is the Acting Deputy
Director of the CIDG. The letters referred to the DOJ for appropriate action the
results of the CIDG’s investigation implicating Beltran, the petitioners in G.R. Nos.
172074-76, San Juan, and several others as "leaders and promoters" of an alleged
foiled plot to overthrow the Arroyo government. The plot was supposed to be carried
out jointly by members of the Communist Party of the Philippines (CPP) and the
Makabayang Kawal ng Pilipinas (MKP), which have formed a "tactical alliance."
On 27 February 2006, the DOJ panel of prosecutors issued a Resolution finding
probable cause to indict Beltran and San Juan as "leaders/promoters" of Rebellion.
The panel then filed an Information with the RTC Makati. The Information alleged
that Beltran, San Juan, and other individuals "conspiring and confederating with
each other, x x x, did then and there willfully, unlawfully, and feloniously form a
tactical alliance between the CPP/NPA, renamed as Partidong Komunista ng
Pilipinas (PKP) and its armed regular members as Katipunan ng Anak ng Bayan
(KAB) with the Makabayang Kawal ng Pilipinas (MKP) and thereby rise publicly and
take up arms against the duly constituted government, x x x." 7 The Information,
docketed as Criminal Case No. 06-452, was raffled to Branch 137 under Presiding
Judge Jenny Lind R. Aldecoa-Delorino (Judge Delorino).
Beltran moved that Branch 137 make a judicial determination of probable cause
against him.8 Before the motion could be resolved, Judge Delorino recused herself
from the case which was re-raffled to Branch 146 under Judge Encarnacion Jaja-
Moya (Judge Moya).
In its Order dated 31 May 2006, Branch 146 sustained the finding of probable cause
against Beltran.9 Beltran sought reconsideration but Judge Moya also inhibited
herself from the case without resolving Beltran’s motion. Judge Elmo M. Alameda of
Branch 150, to whom the case was re-raffled, issued an Order on 29 August 2006
denying Beltran’s motion.
Hence, the petition in G.R. No. 175013 to set aside the Orders dated 31 May 2006
and 29 August 2006 and to enjoin Beltran’s prosecution.
In his Comment to the petition, the Solicitor General claims that Beltran’s inquest for
Rebellion was valid and that the RTC Makati correctly found probable cause to try
Beltran for such felony.
G.R. Nos. 172070-72 and 172074-76 (The Maza and Ladlad Petitions)
Based on Tanigue and Mendoza’s letters, the DOJ sent subpoenas to petitioners on
6 March 2006 requiring them to appear at the DOJ Office on 13 March 2006 "to get
copies of the complaint and its attachment." Prior to their receipt of the subpoenas,
petitioners had quartered themselves inside the House of Representatives building
for fear of being subjected to warrantless arrest.
During the preliminary investigation on 13 March 2006, the counsel for the CIDG
presented a masked man, later identified as Jaime Fuentes (Fuentes), who claimed
to be an eyewitness against petitioners. Fuentes subscribed to his affidavit before
respondent prosecutor Emmanuel Velasco who then gave copies of the affidavit to
media members present during the proceedings. The panel of prosecutors 10 gave
petitioners 10 days within which to file their counter-affidavits. Petitioners were
furnished the complete copies of documents supporting the CIDG’s letters only on
17 March 2006.
Petitioners moved for the inhibition of the members of the prosecution panel for lack
of impartiality and independence, considering the political milieu under which
petitioners were investigated, the statements that the President and the Secretary of
Justice made to the media regarding petitioners’ case, 11 and the manner in which
 the prosecution panel conducted the preliminary investigation. The DOJ panel of
prosecutors denied petitioners’ motion on 22 March 2006. Petitioners sought
reconsideration and additionally prayed for the dismissal of the cases. However, the
panel of prosecutors denied petitioners’ motions on 4 April 2006.
Petitioners now seek the nullification of the DOJ Orders of 22 March 2006 and 4
April 2006.
Acting on petitioners’ prayer for the issuance of an injunctive writ, the Court issued a
status quo order on 5 June 2006. Prior to this, however, the panel of prosecutors, on
21 April 2006, issued a Resolution finding probable cause to charge petitioners and
46 others with Rebellion. The prosecutors filed the corresponding Information with
Branch 57 of the RTC Makati, docketed as Criminal Case No. 06-944 (later
consolidated with Criminal Case No. 06-452 in Branch 146), charging petitioners
and their co-accused as "principals, masterminds, [or] heads" of a
Rebellion.12Consequently, the petitioners in G.R. Nos. 172070-72 filed a
supplemental petition to enjoin the prosecution of Criminal Case No. 06-944.
In his separate Comment to the Maza petition, the Solicitor General submits that the
preliminary investigation of petitioners was not tainted with irregularities. The
Solicitor General also claims that the filing of Criminal Case No. 06-944 has mooted
the Maza petition.
The Issues
The petitions raise the following issues:
1. In G.R. No. 175013, (a) whether the inquest proceeding against Beltran for
Rebellion was valid and (b) whether there is probable cause to indict Beltran for
Rebellion; and
2. In G.R. Nos. 172070-72 and 172074-76, whether respondent prosecutors should
be enjoined from continuing with the prosecution of Criminal Case No. 06-944. 13
The Ruling of the Court
We find the petitions meritorious. On the Beltran Petition
The Inquest Proceeding against Beltran for Rebellion is Void.
Inquest proceedings are proper only when the accused has been lawfully arrested
without warrant.14 Section 5, Rule 113 of the Revised Rules of Criminal Procedure
provides the instances when such warrantless arrest may be effected, thus:
Arrest without warrant; when lawful.— A peace officer or a private person may,
without a warrant, arrest a person:
(a) When, in his presence, the person to be arrested has committed, is actually
committing, or is attempting to commit an offense;
(b) When an offense has just been committed and he has probable cause to believe
based on personal knowledge of facts or circumstances that the person to be
arrested has committed it; and
xxxx
In cases falling under paragraphs (a) and (b) above, the person arrested without a
warrant shall be forthwith delivered to the nearest police station or jail and shall be
proceeded against in accordance with section 7 of Rule 112.
The joint affidavit of Beltran’s arresting officers 15 states that the officers arrested
Beltran, without a warrant,16 for Inciting to Sedition, and not for Rebellion. Thus, the
inquest prosecutor could only have conducted – as he did conduct – an inquest for
Inciting to Sedition and no other. Consequently, when another group of prosecutors
subjected Beltran to a second inquest proceeding for Rebellion, they overstepped
their authority rendering the second inquest void. None of Beltran’s arresting officers
saw Beltran commit, in their presence, the crime of Rebellion. Nor did they have
personal knowledge of facts and circumstances that Beltran had just committed
Rebellion, sufficient to form probable cause to believe that he had committed
Rebellion. What these arresting officers alleged in their affidavit is that they saw and
heard Beltran make an allegedly seditious speech on 24 February 2006. 17
Indeed, under DOJ Circular No. 61, dated 21 September 1993, the initial duty of the
inquest officer is to determine if the arrest of the detained person was made "in
accordance with the provisions of paragraphs (a) and (b) of Section 5, Rule 113." 18 If
the arrest was not properly effected, the inquest officer should proceed under
Section 9 of Circular No. 61 which provides:
Where Arrest Not Properly Effected.— Should the Inquest Officer find that the arrest
was not made in accordance with the Rules, he shall:
a) recommend the release of the person arrested or detained;
b) note down the disposition on the referral document;
c) prepare a brief memorandum indicating the reasons for the action
taken; and
d) forward the same, together with the record of the case, to the City or
Provincial Prosecutor for appropriate action.
Where the recommendation for the release of the detained person is approved by
the City or Provincial Prosecutor but the evidence on hand warrant the conduct of a
regular preliminary investigation, the order of release shall be served on the officer
having custody of said detainee and shall direct the said officer to serve upon the
detainee the subpoena or notice of preliminary investigation, together with the
copies of the charge sheet or complaint, affidavit or sworn statements of the
complainant and his witnesses and other supporting evidence. (Emphasis supplied)
For the failure of Beltran’s panel of inquest prosecutors to comply with Section 7,
Rule 112 in relation to Section 5, Rule 113 and DOJ Circular No. 61, we declare
Beltran’s inquest void.19 Beltran would have been entitled to a preliminary
investigation had he not asked the trial court to make a judicial determination of
probable cause, which effectively took the place of such proceeding.
There is No Probable Cause to Indict
Beltran for Rebellion.
Probable cause is the "existence of such facts and circumstances as would excite
the belief in a reasonable mind, acting on the facts within the knowledge of the
prosecutor, that the person charged was guilty of the crime for which he was
prosecuted."20 To accord respect to the discretion granted to the prosecutor and for
reasons of practicality, this Court, as a rule, does not interfere with the prosecutor’s
determination of probable cause for otherwise, courts would be swamped with
petitions to review the prosecutor’s findings in such investigations. 21 However, in the
few exceptional cases where the prosecutor abused his discretion by ignoring a
clear insufficiency of evidence to support a finding of probable cause, thus denying
the accused his right to substantive and procedural due process, we have not
hesitated to intervene and exercise our review power under Rule 65 to overturn the
prosecutor’s findings.22 This exception holds true here.
Rebellion under Article 134 of the Revised Penal Code is committed –
[B]y rising publicly and taking arms against the Government for the purpose of
removing from the allegiance to said Government or its laws, the territory of the
Republic of the Philippines or any part thereof, or any body of land, naval, or other
armed forces or depriving the Chief Executive or the Legislature, wholly or partially,
of any of their powers or prerogatives.
The elements of the offense are:
1. That there be a (a) public uprising and (b) taking arms against the
Government; and
2. That the purpose of the uprising or movement is either –
(a) to remove from the allegiance to said Government or its
laws:
(1) the territory of the Philippines or any part thereof;
or
(2) any body of land, naval, or other armed forces; or
(b) to deprive the Chief Executive or Congress, wholly or
partially, of any of their powers and prerogatives. 23
Thus, by its nature, rebellion is a crime of the masses or multitudes involving crowd
action done in furtherance of a political end.24
The evidence before the panel of prosecutors who conducted the inquest of Beltran
for Rebellion consisted of the affidavits and other documents 25 attached to the CIDG
letters. We have gone over these documents and find merit in Beltran’s contention
that the same are insufficient to show probable cause to indict him for Rebellion.
The bulk of the documents consists of affidavits, some of which were sworn before a
notary public, executed by members of the military and some civilians. Except for
two affidavits, executed by a certain Ruel Escala (Escala), dated 20 Febuary
2006,26 and Raul Cachuela (Cachuela), dated 23 February 2006,27 none of the
affidavits mentions Beltran.28 In his affidavit, Escala recounted that in the afternoon
of 20 February 2006, he saw Beltran, Ocampo, Casiño, Maza, Mariano, Virador,
and other individuals on board a vehicle which entered a chicken farm in Bucal,
Padre Garcia, Batangas and that after the passengers alighted, they were met by
another individual who looked like San Juan. For his part, Cachuela stated that he
was a former member of the CPP and that (1) he attended the CPP’s "10 thPlenum"
in 1992 where he saw Beltran; (2) he took part in criminal activities; and (3) the arms
he and the other CPP members used were purchased partly from contributions by
Congressional members, like Beltran, who represent party-list groups affiliated with
the CPP.
The allegations in these affidavits are far from the proof needed to indict Beltran for
taking part in an armed public uprising against the government. What these
documents prove, at best, is that Beltran was in Bucal, Padre Garcia, Batangas on
20 February 2006 and that 14 years earlier, he was present during the 1992 CPP
Plenum. None of the affidavits stated that Beltran committed specific acts of
promoting, maintaining, or heading a rebellion as found in the DOJ Resolution of 27
February 2006. None of the affidavits alleged that Beltran is a leader of a rebellion.
Beltran’s alleged presence during the 1992 CPP Plenum does not automatically
make him a leader of a rebellion.
In fact, Cachuela’s affidavit stated that Beltran attended the 1992 CPP Plenum as
"Chairman, Kilusang Mayo Uno (KMU)." Assuming that Beltran is a member of the
CPP, which Beltran does not acknowledge, mere membership in the CPP does not
constitute rebellion.29 As for the alleged funding of the CPP’s military equipment
from Beltran’s congressional funds, Cachuela’s affidavit merely contained a general
conclusion without any specific act showing such funding. Cachuela merely alleged
that "ang mga ibang mga pondo namin ay galing sa mga party list na naihalal sa
Kongreso tulad ng BAYAN MUNA – pimumunuan nila SATUR OCAMPO at
CRISPIN BELTRAN, x x x."30Such a general conclusion does not establish probable
cause.
In his Comment to Beltran’s petition, the Solicitor General points to Fuentes’
affidavit, dated 25 February 2006,31 as basis for the finding of probable cause
against Beltran as Fuentes provided details in his statement regarding meetings
Beltran and the other petitioners attended in 2005 and 2006 in which plans to
overthrow violently the Arroyo government were allegedly discussed, among others.
The claim is untenable. Fuentes’ affidavit was not part of the attachments the CIDG
referred to the DOJ on 27 February 2006. Thus, the panel of inquest prosecutors did
not have Fuentes’ affidavit in their possession when they conducted the Rebellion
inquest against Beltran on that day. Indeed, although this affidavit is dated 25
February 2006, the CIDG first presented it only during the preliminary investigation
of the other petitioners on 13 March 2006 during which Fuentes subscribed to his
statement before respondent prosecutor Velasco.
Respondent prosecutors later tried to remedy this fatal defect by motu proprio
submitting to Branch 137 of the RTC Makati Fuentes’ affidavit as part of their
Comment to Beltran’s motion for judicial determination of probable cause. Such
belated submission, a tacit admission of the dearth of evidence against Beltran
during the inquest, does not improve the prosecution’s case. Assuming them to be
true, what the allegations in Fuentes’ affidavit make out is a case for Conspiracy to
Commit Rebellion, punishable under Article 136 of the Revised Penal Code, not
Rebellion under Article 134. Attendance in meetings to discuss, among others,
plans to bring down a government is a mere preparatory step to commit the acts
constituting Rebellion under Article 134. Even the prosecution acknowledged this,
since the felony charged in the Information against Beltran and San Juan in Criminal
Case No. 06-452 is Conspiracy to Commit Rebellion and not Rebellion. The
Information merely alleged that Beltran, San Juan, and others conspired to form a
"tactical alliance" to commit Rebellion. Thus, the RTC Makati erred when it
nevertheless found probable cause to try Beltran for Rebellion based on the
evidence before it.
The minutes32 of the 20 February 2006 alleged meeting in Batangas between
members of MKP and CPP, including Beltran, also do not detract from our
finding.1a\^/phi1.net Nowhere in the minutes was Beltran implicated. While the
minutes state that a certain "Cris" attended the alleged meeting, there is no other
evidence on record indicating that "Cris" is Beltran. San Juan, from whom the "flash
drive" containing the so-called minutes was allegedly taken, denies knowing Beltran.
To repeat, none of the affidavits alleges that Beltran is promoting, maintaining, or
heading a Rebellion. The Information in Criminal Case No. 06-452 itself does not
make such allegation. Thus, even assuming that the Information validly charges
Beltran for taking part in a Rebellion, he is entitled to bail as a matter of right since
there is no allegation in the Information that he is a leader or promoter of the
Rebellion.33 However, the Information in fact merely charges Beltran for "conspiring
and confederating" with others in forming a "tactical alliance" to commit rebellion. As
worded, the Information does not charge Beltran with Rebellion but with Conspiracy
to Commit Rebellion, a bailable offense.34
On the Ladlad and Maza Petitions
The Preliminary Investigation was Tainted
With Irregularities.
As in the determination of probable cause, this Court is similarly loath to enjoin the
prosecution of offenses, a practice rooted on public interest as the speedy closure of
criminal investigations fosters public safety.35 However, such relief in equity may be
granted if, among others, the same is necessary (a) to prevent the use of the strong
arm of the law in an oppressive and vindictive manner36 or (b) to afford adequate
protection to constitutional rights.37The case of the petitioners in G.R. Nos. 172070-
72 and 172074-76 falls under these exceptions.
The procedure for preliminary investigation of offenses punishable by at least four
years, two months and one day is outlined in Section 3, Rule 112 of the Revised
Rules of Criminal Procedure, thus:
Procedure.—The preliminary investigation shall be conducted in the following
manner:
(a) The complaint shall state the address of the respondent and shall be
accompanied by the affidavits of the complainant and his witnesses, as
well as other supporting documents to establish probable cause. They
shall be in such number of copies as there are respondents, plus two (2)
copies for the official file. The affidavits shall be subscribed and sworn to
before any prosecutor or government official authorized to administer
oath, or, in their absence or unavailability, before a notary public, each of
whom must certify that he personally examined the affiants and that he is
satisfied that they voluntarily executed and understood their affidavits.
(b) Within ten (10) days after the filing of the complaint, the investigating
officer shall either dismiss it if he finds no ground to continue with the
investigation, or issue a subpoena to the respondent attaching to it a copy
of the complaint and its supporting affidavits and documents.
The respondent shall have the right to examine the evidence submitted by
the complainant which he may not have been furnished and to copy them
at his expense. If the evidence is voluminous, the complainant may be
required to specify those which he intends to present against the
respondent, and these shall be made available for examination or copying
by the respondent at his expense.
Objects as evidence need not be furnished a party but shall be made
available for examination, copying, or photographing at the expense of the
requesting party.
(c) Within ten (10) days from receipt of the subpoena with the complaint
and supporting affidavits and documents, the respondent shall submit his
counter-affidavit and that of his witnesses and other supporting
documents relied upon for his defense. The counter-affidavits shall be
subscribed and sworn to and certified as provided in paragraph (a) of this
section, with copies thereof furnished by him to the complainant. The
respondent shall not be allowed to file a motion to dismiss in lieu of a
counter-affidavit.
(d) If the respondent cannot be subpoenaed, or if subpoenaed, does not
submit counter-affidavits within the ten (10) day period, the investigating
officer shall resolve the complaint based on the evidence presented by the
complainant.
 (e) The investigating officer may set a hearing if there are facts and issues
to be clarified from a party or a witness. The parties can be present at the
hearing but without the right to examine or cross-examine. They may,
however, submit to the investigating officer questions which may be asked
to the party or witness concerned.
The hearing shall be held within ten (10) days from submission of the
counter-affidavits and other documents or from the expiration of the period
for their submission. It shall be terminated within five (5) days.
(f) Within ten (10) days after the investigation, the investigating officer
shall determine whether or not there is sufficient ground to hold the
respondent for trial. (Emphasis supplied)
Instead of following this procedure scrupulously, as what this Court had mandated in
an earlier ruling, "so that the constitutional right to liberty of a potential accused can
be protected from any material damage,"38 respondent prosecutors nonchalantly
disregarded it. Respondent prosecutors failed to comply with Section 3(a) of Rule
112 which provides that the complaint (which, with its attachment, must be of such
number as there are respondents) be accompanied by the affidavits of the
complainant and his witnesses, subscribed and sworn to before any prosecutor or
government official authorized to administer oath, or, in their absence or
unavailability, before a notary public. Respondent prosecutors treated the
unsubscribed letters of Tanigue and Mendoza of the CIDG, PNP as
complaints39 and accepted the affidavits attached to the letters even though some of
them were notarized by a notary public without any showing that a prosecutor or
qualified government official was unavailable as required by Section 3(a) of Rule
112.
Further, Section 3(b) of Rule 112 mandates that the prosecutor, after receiving the
complaint, must determine if there are grounds to continue with the investigation. If
there is none, he shall dismiss the case, otherwise he shall "issue a subpoena to the
respondents." Here, after receiving the CIDG letters, respondent prosecutors
peremptorily issued subpoenas to petitioners requiring them to appear at the DOJ
office on 13 March 2006 "to secure copies of the complaints and its attachments."
During the investigation, respondent prosecutors allowed the CIDG to present a
masked Fuentes who subscribed to an affidavit before respondent prosecutor
Velasco. Velasco proceeded to distribute copies of Fuentes’ affidavit not to
petitioners or their counsels but to members of the media who covered the
proceedings. Respondent prosecutors then required petitioners to submit their
counter-affidavits in 10 days. It was only four days later, on 17 March 2006, that
petitioners received the complete copy of the attachments to the CIDG
letters.1a\^/phi1.net
These uncontroverted facts belie respondent prosecutors’ statement in the Order of
22 March 2006 that the preliminary investigation "was done in accordance with the
Revised Rules o[f] Criminal Procedure."40 Indeed, by peremptorily issuing the
subpoenas to petitioners, tolerating the complainant’s antics during the
investigation, and distributing copies of a witness’ affidavit to members of the media
knowing that petitioners have not had the opportunity to examine the charges
against them, respondent prosecutors not only trivialized the investigation but also
lent credence to petitioners’ claim that the entire proceeding was a sham.
A preliminary investigation is the crucial sieve in the criminal justice system which
spells for an individual the difference between months if not years of agonizing trial
and possibly jail term, on the one hand, and peace of mind and liberty, on the other
hand. Thus, we have characterized the right to a preliminary investigation as not "a
mere formal or technical right" but a "substantive" one, forming part of due process
in criminal justice.41 This especially holds true here where the offense charged is
punishable by reclusion perpetua and may be non-bailable for those accused as
principals.
Contrary to the submission of the Solicitor General, respondent prosecutors’ filing of
the Information against petitioners on 21 April 2006 with Branch 57 of the RTC
Makati does not moot the petitions in G.R. Nos. 172070-72 and 172074-76. Our
power to enjoin prosecutions cannot be frustrated by the simple filing of the
Information with the trial court.1a\^/phi1.net
On Respondent Prosecutors’ Lack of Impartiality
We find merit in petitioners’ doubt on respondent prosecutors’ impartiality.
Respondent Secretary of Justice, who exercises supervision and control over the
panel of prosecutors, stated in an interview on 13 March 2006, the day of the
preliminary investigation, that, "We [the DOJ] will just declare probable cause, then
it’s up to the [C]ourt to decide x x x."42 Petitioners raised this issue in their
petition,43 but respondents never disputed the veracity of this statement. This clearly
shows pre-judgment, a determination to file the Information even in the absence of
probable cause.
 A Final Word

The obvious involvement of political considerations in the actuations of respondent

Secretary of Justice and respondent prosecutors brings to mind an observation we
made in another equally politically charged case. We reiterate what we stated then,
if only to emphasize the importance of maintaining the integrity of criminal
prosecutions in general and preliminary investigations in particular, thus:

[W]e cannot emphasize too strongly that prosecutors should not allow, and should
avoid, giving the impression that their noble office is being used or prostituted,
wittingly or unwittingly, for political ends, or other purposes alien to, or subversive of,
the basic and fundamental objective of observing the interest of justice
evenhandedly, without fear or favor to any and all litigants alike, whether rich or
poor, weak or strong, powerless or mighty. Only by strict adherence to the
established procedure may be public’s perception of the impartiality of the
prosecutor be enhanced.44 1a\^/phi1.net

WHEREFORE, we GRANT the petitions. In G.R. No. 175013, we SET ASIDE the
Order dated 31 May 2006 of the Regional Trial Court, Makati City, Branch 146 and
the Order dated 29 August 2006 of the Regional Trial Court, Makati City, Branch
150. In G.R. Nos. 172070-72 and 172074-76, we SET ASIDE the Orders dated 22
March 2006 and 4 April 2006 issued by respondent prosecutors. We ORDER the
Regional Trial Court, Makati City, Branch 150 to DISMISS Criminal Case Nos. 06-
452 and 06-944.

SO ORDERED.

ANTONIO T. CARPIO
Associate Justice

WE CONCUR:
 EN BANC Appellants. December 14, 2010
  x ---------------------------------------------------------------------------------------- x
   
ANTONIO LEJANO, G.R. No. 176389 DECISION
Petitioner,  
Present: ABAD, J.:
CORONA, C.J.,  
CARPIO,
Brief Background
CARPIO MORALES,
VELASCO, JR.,  
NACHURA,
LEONARDO-DE CASTRO, On June 30, 1991 Estrellita Vizconde and her daughters Carmela,
- versus - BRION, nineteen years old, and Jennifer, seven, were brutally slain at their home
PERALTA,
BERSAMIN, in Paraaque City. Following an intense investigation, the police arrested a group of
DEL CASTILL suspects, some of whom gave detailed confessions. But the trial court smelled a
O,
ABAD, frame-up and eventually ordered them discharged. Thus, the identities of the real
VILLARAMA,
perpetrators remained a mystery especially to the public whose interests were
JR.,
PEREZ, aroused by the gripping details of what everybody referred to as the Vizconde
MENDOZA,
and massacre.
SERENO, JJ.  
PEOPLE OF THE PHILIPPINES,
Respondent. Four years later in 1995, the National Bureau of Investigation or NBI
  announced that it had solved the crime. It presented star-witness Jessica M. Alfaro,
x --------------------------------------------- x
  one of its informers, who claimed that she witnessed the crime. She pointed to
PEOPLE OF THE PHILIPPINES, G.R. No. 176864
accused Hubert Jeffrey P. Webb, Antonio Tony Boy Lejano, Artemio Dong Ventura,
Appellee,
  Michael A. Gatchalian, Hospicio Pyke Fernandez, Peter Estrada, Miguel Ging
- versus -
  Rodriguez, and Joey Filart as the culprits. She also tagged accused police officer,
HUBERT JEFFREY P. WEBB, Gerardo Biong, as an accessory after the fact. Relying primarily on Alfaro's
ANTONIO LEJANO, MICHAEL
A. GATCHALIAN, HOSPICIO testimony, on August 10, 1995 the public prosecutors filed an information for rape
FERNANDEZ, MIGUEL RODRIGUEZ, with homicide against Webb, et al.[1]
PETER ESTRADA and GERARDO Promulgated:
BIONG,  
 The Regional Trial Court of Paraaque City, Branch 274, presided over by
Judge Amelita G. Tolentino, tried only seven of the accused since Artemio Ventura
[2]
and Joey Filart remained at large.  The prosecution presented Alfaro as its main
witness with the others corroborating her testimony. These included the medico-
legal officer who autopsied the bodies of the victims, the security guards of Pitong
Daan Subdivision, the former laundrywoman of the Webbs household, police officer
Biongs former girlfriend, and Lauro G. Vizconde, Estrellitas husband.
 
For their part, some of the accused testified, denying any part in the crime
and saying they were elsewhere when it took place.Webbs alibi appeared the
strongest since he claimed that he was then across the ocean in the United States
of America. He presented the testimonies of witnesses as well as documentary and
object evidence to prove this. In addition, the defense presented witnesses to show
Alfaro's bad reputation for truth and the incredible nature of her testimony.
 
But impressed by Alfaros detailed narration of the crime and the events
surrounding it, the trial court found a credible witness in her. It noted her categorical,
straightforward, spontaneous, and frank testimony, undamaged by grueling cross-
examinations. The trial court remained unfazed by significant discrepancies
between Alfaros April 28 and May 22, 1995 affidavits, accepting her explanation that
she at first wanted to protect her former boyfriend, accused Estrada, and a relative,
accused Gatchalian; that no lawyer assisted her; that she did not trust the
investigators who helped her prepare her first affidavit; and that she felt unsure if
she would get the support and security she needed once she disclosed all about the
Vizconde killings.
 
In contrast, the trial court thought little of the denials and alibis that Webb,
Lejano, Rodriguez, and Gatchalian set up for their defense. They paled, according
to the court, compared to Alfaros testimony that other witnesses and the physical
evidence corroborated. Thus, on January 4, 2000, after four years of arduous
hearings, the trial court rendered judgment, finding all the accused guilty as charged
and imposing on Webb, Lejano, Gatchalian, Fernandez, Estrada, and Rodriguez the
penalty of reclusion perpetua and on Biong, an indeterminate prison term of eleven
years, four months, and one day to twelve years. The trial court also awarded
damages to Lauro Vizconde.[3]
 
On appeal, the Court of Appeals affirmed the trial courts decision,
modifying the penalty imposed on Biong to six years minimum and twelve years
maximum and increasing the award of damages to Lauro Vizconde. [4] The appellate
court did not agree that the accused were tried by publicity or that the trial judge was
biased. It found sufficient evidence of conspiracy that rendered Rodriguez,
Gatchalian, Fernandez, and Estrada equally guilty with those who had a part in
raping and killing Carmela and in executing her mother and sister.
 
On motion for reconsideration by the accused, the Court of Appeals'
Special Division of five members voted three against two to deny the motion,
[5]
 hence, the present appeal.
 
On April 20, 2010, as a result of its initial deliberation in this case, the
Court issued a Resolution granting the request of Webb to submit for DNA analysis
the semen specimen taken from Carmelas cadaver, which specimen was then
believed still under the safekeeping of the NBI. The Court granted the request
pursuant to section 4 of the Rule on DNA Evidence [6] to give the accused and the
prosecution access to scientific evidence that they might want to avail themselves
of, leading to a correct decision in the case.
Unfortunately, on April 27, 2010 the NBI informed the Court that it no
longer has custody of the specimen, the same having been turned over to the trial
court. The trial record shows, however, that the specimen was not among the object
evidence that the prosecution offered in evidence in the case.
This outcome prompted accused Webb to file an urgent motion to acquit
on the ground that the governments failure to preserve such vital evidence has
resulted in the denial of his right to due process.
 
Issues Presented
 
Accused Webbs motion to acquit presents a threshold issue: whether or
not the Court should acquit him outright, given the governments failure to produce
the semen specimen that the NBI found on Carmelas cadaver, thus depriving him of
evidence that would prove his innocence.
 
In the main, all the accused raise the central issue of whether or not
Webb, acting in conspiracy with Lejano, Gatchalian, Fernandez, Estrada,
Rodriguez, Ventura, and Filart, raped and killed Carmela and put to death her
mother and sister. But, ultimately, the controlling issues are:
1. Whether or not Alfaros testimony as eyewitness, describing the crime
and identifying Webb, Lejano, Gatchalian, Fernandez, Estrada, Rodriguez, and two
others as the persons who committed it, is entitled to belief; and
2. Whether or not Webb presented sufficient evidence to prove his alibi
and rebut Alfaros testimony that he led the others in committing the crime.
 
The issue respecting accused Biong is whether or not he acted to cover
up the crime after its commission.
The Right to Acquittal
Due to Loss of DNA Evidence
 
Webb claims, citing Brady v. Maryland,[7] that he is entitled to outright
acquittal on the ground of violation of his right to due process given the States
failure to produce on order of the Court either by negligence or willful suppression
the semen specimen taken from Carmela.
 
The medical evidence clearly established that Carmela was raped and,
consistent with this, semen specimen was found in her.It is true that Alfaro identified
Webb in her testimony as Carmelas rapist and killer but serious questions had been
raised about her credibility. At the very least, there exists a possibility that Alfaro had
lied. On the other hand, the semen specimen taken from Carmela cannot possibly
lie. It cannot be coached or allured by a promise of reward or financial support. No
two persons have the same DNA fingerprint, with the exception of identical twins.
[8]
 If, on examination, the DNA of the subject specimen does not belong to Webb,
then he did not rape Carmela. It is that simple. Thus, the Court would have been
able to determine that Alfaro committed perjury in saying that he did.
 
Still, Webb is not entitled to acquittal for the failure of the State to produce
the semen specimen at this late stage. For one thing, the ruling in Brady v.
Maryland[9] that he cites has long be overtaken by the decision in Arizona v.
Youngblood,  where the U.S. Supreme Court held that due process does not
[10]
require the State to preserve the semen specimen although it might be useful to the
accused unless the latter is able to show bad faith on the part of the prosecution or
the police. Here, the State presented a medical expert who testified on the existence
of the specimen and Webb in fact sought to have the same subjected to DNA test.
 
For, another, when Webb raised the DNA issue, the rule governing DNA
evidence did not yet exist, the country did not yet have the technology for
conducting the test, and no Philippine precedent had as yet recognized its
admissibility as evidence.Consequently, the idea of keeping the specimen secure
even after the trial court rejected the motion for DNA testing did not come
up. Indeed, neither Webb nor his co-accused brought up the matter of preserving
the specimen in the meantime.
Parenthetically, after the trial court denied Webbs application for DNA
testing, he allowed the proceeding to move on when he had on at least two
occasions gone up to the Court of Appeals or the Supreme Court to challenge
alleged arbitrary actions taken against him and the other accused. [11] They raised
the DNA issue before the Court of Appeals but merely as an error committed by the
trial court in rendering its decision in the case. None of the accused filed a motion
with the appeals court to have the DNA test done pending adjudication of their
appeal. This, even when the Supreme Court had in the meantime passed the rules
allowing such test. Considering the accuseds lack of interest in having such test
done, the State cannot be deemed put on reasonable notice that it would be
required to produce the semen specimen at some future time.
 
Now, to the merit of the case.
 
Alfaros Story
 
Based on the prosecutions version, culled from the decisions of the trial
court and the Court of Appeals, on June 29, 1991 at around 8:30 in the evening,
Jessica Alfaro drove her Mitsubishi Lancer, with boyfriend Peter Estrada as
passenger, to the AyalaAlabang Commercial Center parking lot to buy shabu  from
Artemio Dong Ventura. There, Ventura introduced her to his friends: Hubert Jeffrey
P. Webb, Antonio Tony Boy Lejano, Miguel Ging Rodriguez, Hospicio Pyke
Fernandez, Michael Gatchalian, and Joey Filart. Alfaro recalled frequently seeing
them at a shabu house in Paraaque in January 1991, except Ventura whom she had
known earlier in December 1990.
As Alfaro smoked her shabu, Webb approached and requested her to
relay a message for him to a girl, whom she later identified as Carmela
Vizconde. Alfaro agreed. After using up their shabu, the group drove to Carmelas
house at 80 Vinzons Street, Pitong Daan Subdivision, BF
Homes, Paraaque City. Riding in her car, Alfaro and Estrada trailed Filart and
Rodriguez who rode a Mazda pick-up and Webb, Lejano, Ventura, Fernandez, and
Gatchalian who were on a Nissan Patrol car.
 
On reaching their destination, Alfaro parked her car on Vinzons Street,
alighted, and approached Carmelas house. Alfaro pressed the buzzer and a woman
came out. Alfaro queried her about Carmela. Alfaro had met Carmela twice before in
January 1991. When Carmela came out, Alfaro gave her Webbs message that he
was just around. Carmela replied, however, that she could not go out yet since she
had just arrived home. She told Alfaro to return after twenty minutes. Alfaro relayed
this to Webb who then told the group to drive back to
the Ayala Alabang Commercial Center.
 
The group had another shabu session at the parking lot. After sometime,
they drove back but only Alfaro proceeded to Vinzons Street where Carmela
lived. The Nissan Patrol and the Mazda pick-up, with their passengers, parked
somewhere along Aguirre Avenue. Carmela was at their garden. She approached
Alfaro on seeing her and told the latter that she (Carmela) had to leave the house
for a while. Carmela requested Alfaro to return before midnight and she would leave
the pedestrian gate, the iron grills that led to the kitchen, and the kitchen door
unlocked. Carmela also told Alfaro to blink her cars headlights twice when she
approached the pedestrian gate so Carmela would know that she had arrived.
 
Alfaro returned to her car but waited for Carmela to drive out of the house
in her own car. Alfaro trailed Carmela up to Aguirre Avenue where she dropped off a
man whom Alfaro believed was Carmelas boyfriend. Alfaro looked for her group,
found them, and relayed Carmelas instructions to Webb. They then all went back to
the Ayala Alabang Commercial Center. At the parking lot, Alfaro told the group
about her talk with Carmela. When she told Webb of Carmelas male companion,
Webbs mood changed for the rest of the evening (bad trip).
 
Webb gave out free cocaine. They all used it and some shabu, too. After
about 40 to 45 minutes, Webb decided that it was time for them to leave. He
said, Pipilahan natin siya  [Carmela] at ako ang mauuna.  Lejano said, Ako ang
susunod  and the others responded Okay, okay. They all left the parking lot in a
convoy of three vehicles and drove into Pitong Daan Subdivision for the third
time. They arrived at Carmelas house shortly before midnight.
 
Alfaro parked her car between Vizcondes house and the next. While
waiting for the others to alight from their cars, Fernandez approached Alfaro with a
suggestion that they blow up the transformer near the Vizcondes residence to cause
a brownout (Pasabugin kaya natin ang transformer na ito).  But Alfaro shrugged off
the idea, telling Fernandez, Malakas lang ang tama mo.  When Webb, Lejano,
and Ventura were already before the house, Webb told the others again that they
would line up for Carmela but he would be the first. The others replied, O sige, dito
lang kami, magbabantay lang kami.
 
Alfaro was the first to pass through the pedestrian gate that had been left
open. Webb, Lejano, and Ventura followed her. On entering the
garage, Ventura using a chair mounted the hood of the Vizcondes Nissan Sentra
and loosened the electric bulb over it ( para daw walang ilaw).  The small group went
through the open iron grill gate and passed the dirty kitchen. Carmela opened the
aluminum screen door of the kitchen for them. She and Webb looked each other in
the eyes for a moment and, together, headed for the dining area.
 
As she lost sight of Carmela and Webb, Alfaro decided to go out. Lejano
asked her where she was going and she replied that she was going out to
smoke. As she eased her way out through the kitchen door, she saw Ventura pulling
out a kitchen drawer.Alfaro smoked a cigarette at the garden. After about twenty
minutes, she was surprised to hear a womans voice ask, Sino yan?  Alfaro
immediately walked out of the garden to her car. She found her other companions
milling around it. Estrada who sat in the car asked her, Okay ba?
 
After sitting in the car for about ten minutes, Alfaro returned to the
Vizconde house, using the same route. The interior of the house was dark but some
light filtered in from outside. In the kitchen, Alfaro saw Ventura searching a ladys
bag that lay on the dining table. When she asked him what he was looking for, he
said: Ikaw na nga dito, maghanap ka ng susi.  She asked him what key he wanted
and he replied: Basta maghanap ka ng susi ng main door pati na rin ng susi ng
kotse.  When she found a bunch of keys in the bag, she tried them on the main door
but none fitted the lock. She also did not find the car key.
 
Unable to open the main door, Alfaro returned to the kitchen. While she
was at a spot leading to the dining area, she heard a static noise (like a television
that remained on after the station had signed off). Out of curiosity, she approached
the masters bedroom from where the noise came, opened the door a little, and
peeked inside. The unusual sound grew even louder. As she walked in, she saw
Webb on top of Carmela while she lay with her back on the floor. Two bloodied
bodies lay on the bed. Lejano was at the foot of the bed about to wear his
jacket. Carmela was gagged, moaning, and in tears while Webb raped her, his bare
buttocks exposed.
 
Webb gave Alfaro a meaningful look and she immediately left the
room. She met Ventura at the dining area. He told her, Prepare an escape. Aalis na
tayo.  Shocked with what she saw, Alfaro rushed out of the house to the others who
were either sitting in her car or milling on the sidewalk. She entered her car and
turned on the engine but she did not know where to go. Webb, Lejano,
and Ventura came out of the house just then. Webb suddenly picked up a stone and
threw it at the main door, breaking its glass frame.
 
As the three men approached the pedestrian gate, Webb told Ventura that
he forgot his jacket in the house. But Ventura told him that they could not get in
anymore as the iron grills had already locked. They all rode in their cars and drove
away until they reached Aguirre Avenue. As they got near an old hotel at
the Tropical Palace area, Alfaro noticed the Nissan Patrol slow down.Someone
threw something out of the car into the cogonal area.
 
The convoy of cars went to a large house with high walls, concrete fence,
steel gate, and a long driveway at BF Executive Village. They entered the
compound and gathered at the lawn where the blaming session took place. It was
here that Alfaro and those who remained outside the Vizconde house learned of
what happened. The first to be killed was Carmelas mother, then Jennifer, and
finally, Carmella. Ventura blamed Webb, telling him, Bakit naman pati yung
bata?  Webb replied that the girl woke up and on seeing him molesting Carmela, she
jumped on him, bit his shoulders, and pulled his hair. Webb got mad, grabbed the
girl, pushed her to the wall, and repeatedly stabbed her. Lejano excused himself at
this point to use the telephone in the house.Meanwhile, Webb called up someone
on his cellular phone.
 
At around 2:00 in the morning, accused Gerardo Biong arrived. Webb
ordered him to go and clean up the Vizconde house and said to him,  Pera lang ang
katapat nyan.  Biong answered, Okay lang.  Webb spoke to his companions and told
them, We dont know each other. We havent seen each otherbaka maulit yan.  Alfaro
and Estrada left and they drove to her fathers house. [12]
 
1. The quality of the witness
 
Was Alfaro an ordinary subdivision girl who showed up at the NBI after
four years, bothered by her conscience or egged on by relatives or friends to come
forward and do what was right? No. She was, at the time she revealed her story,
working for the NBI as an asset, a stool pigeon, one who earned her living by
fraternizing with criminals so she could squeal on them to her NBI handlers. She
had to live a life of lies to get rewards that would pay for her subsistence and vices.
 
According to Atty. Artemio Sacaguing, former head of the NBI Anti-
Kidnapping, Hijacking, and Armed Robbery Task Force (AKHAR) Section, Alfaro
had been hanging around at the NBI since November or December 1994 as an
asset. She supplied her handlers with information against drug pushers and other
criminal elements. Some of this information led to the capture of notorious drug
pushers like Christopher Cruz Santos and Orlando Bacquir. Alfaros tip led to the
arrest of the leader of the Martilyo gang that killed a police officer. Because of her
talent, the task force gave her very special treatment and she became its darling,
allowed the privilege of spending nights in one of the rooms at the NBI offices.
 
When Alfaro seemed unproductive for sometime, however, they teased
her about it and she was piqued. One day, she unexpectedly told Sacaguing that
she knew someone who had the real story behind the Vizconde
massacre. Sacaguing showed interest. Alfaro promised to bring that someone to the
NBI to tell his story. When this did not happen and Sacaguing continued to press
her, she told him that she might as well assume the role of her informant. Sacaguing
testified thus:
 
ATTY. ONGKIKO:
Q. Atty. Sacaguing, how did Jessica Alfaro become a witness in
the Vizconde murder case? Will you tell the Honorable
Court?
xxxx
 
A. She told me. Your Honor, that she knew somebody who
related to her the circumstances, I mean, the details of
the massacre of the Vizconde family. Thats what she
told me, Your Honor.
ATTY. ONGKIKO:
Q. And what did you say?
 
xxxx
A. I was quite interested and I tried to persuade her to introduce
to me that man and she promised that in due time,
she will bring to me the man, and together with her,
we will try to convince him to act as a state witness
and help us in the solution of the case.
  ATTY. ONGKIKO:
xxxx Q. And what was the reply of Ms. Alfaro?
   
Q. Atty. Sacaguing, were you able to interview this alleged WITNESS SACAGUING:
witness? A. Hindi siya nakakibo, until she went away.
  (TSN, May 28, 1996, pp. 49-50, 58, 77-79)
WITNESS SACAGUING:  
A. No, sir.  
 
Quite significantly, Alfaro never refuted Sacaguings above testimony.
ATTY. ONGKIKO:
Q. Why not?  
 
WITNESS SACAGUING: 2. The suspicious details
A. Because Jessica Alfaro was never able to comply with her  
promise to bring the man to me. She told me later that
she could not and the man does not like to testify. But was it possible for Alfaro to lie with such abundant details some of
  which even tallied with the physical evidence at the scene of the crime? No doubt,
ATTY. ONGKIKO:
Q. All right, and what happened after that? yes.
 
 
WITNESS SACAGUING:
A. She told me, easy lang kayo, Sir, if I may quote, easy lang Firstly, the Vizconde massacre had been reported in the media with
Sir, huwag kayong
  dizzying details. Everybody was talking about what the police found at the crime
COURT: scene and there were lots of speculations about them.
How was that?
   
WITNESS SACAGUING: Secondly, the police had arrested some akyat-bahay group in Paraaque
A. Easy lang, Sir. Sir, relax lang, Sir, papapelan ko, papapelan
ko na lang yan. and charged them with the crime. The police prepared the confessions of the men
 
they apprehended and filled these up with details that the evidence of the crime
xxxx
  scene provided. Alfaros NBI handlers who were doing their own investigation knew
ATTY. ONGKIKO:
Q. All right, and what was your reaction when Ms. Alfaro stated of these details as well. Since Alfaro hanged out at the NBI offices and practically
that papapelan ko na lang yan? lived there, it was not too difficult for her to hear of these evidentiary details and gain
 
WITNESS SACAGUING: access to the documents.
A. I said, hindi puwede yan, kasi hindi ka naman eye witness.  
 
 Not surprisingly, the confessions of some members of the Barroso akyat
bahay gang, condemned by the Makati RTC as fabricated by the police to pin the
crime on them, shows how crime investigators could make a confession ring true by
matching some of its details with the physical evidence at the crime scene. Consider
the following:
 
a. The Barroso gang members said that they got into Carmelas house by
breaking the glass panel of the front door using a stone wrapped in cloth to deaden
the noise. Alfaro could not use this line since the core of her story was that Webb
was Carmelas boyfriend. Webb had no reason to smash her front door to get to see
her.
 
Consequently, to explain the smashed door, Alfaro had to settle for
claiming that, on the way out of the house, Webb picked up some stone and, out of
the blue, hurled it at the glass-paneled front door of the Vizconde residence. His
action really made no sense. From Alfaros narration, Webb appeared rational in his
decisions. It was past midnight, the house was dark, and they wanted to get away
quickly to avoid detection. Hurling a stone at that glass door and causing a
tremendous noise was bizarre, like inviting the neighbors to come.
 
b. The crime scene showed that the house had been ransacked. The
rejected confessions of the Barroso akyat-bahay gang members said that they tried
to rob the house. To explain this physical evidence, Alfaro claimed that at one
point Ventura was pulling a kitchen drawer, and at another point, going through a
handbag on the dining table. He said he was looking for the front-door key and the
car key.
 
Again, this portion of Alfaros story appears tortured to accommodate the
physical evidence of the ransacked house. She never mentioned Ventura having
taken some valuables with him when they left Carmelas house. And why
would Ventura rummage a bag on the table for the front-door key, spilling the
contents, when they had already gotten into the house. It is a story made to fit in
with the crime scene although robbery was supposedly not the reason Webb and
his companions entered that house.
 
c. It is the same thing with the garage light. The police investigators found
that the bulb had been loosened to turn off the light. The confessions of the Barroso
gang claimed that one of them climbed the parked cars hood to reach up and
darken that light.This made sense since they were going to rob the place and they
needed time to work in the dark trying to open the front door. Some passersby might
look in and see what they were doing.
 
Alfaro had to adjust her testimony to take into account that darkened
garage light. So she claimed that Ventura climbed the cars hood, using a chair, to
turn the light off. But, unlike the Barroso akyat-bahay gang, Webb and his friends
did not have anything to do in a darkened garage. They supposedly knew in
advance that Carmela left the doors to the kitchen open for them. It did not make
sense for Ventura to risk standing on the cars hood and be seen in such an
awkward position instead of going straight into the house.
And, thirdly, Alfaro was the NBIs star witness, their badge of excellent
investigative work. After claiming that they had solved the crime of the decade, the
NBI people had a stake in making her sound credible and, obviously, they gave her
all the preparations she needed for the job of becoming a fairly good substitute
witness. She was their darling of an asset. And this is not pure speculation. As
pointed out above, Sacaguing of the NBI, a lawyer and a ranking official, confirmed
this to be a cold fact. Why the trial court and the Court of Appeals failed to see this
is mystifying.
 
At any rate, did Alfaro at least have a fine memory for faces that had a
strong effect on her, given the circumstances? Not likely. She named Miguel Ging
Rodriguez as one of the culprits in the Vizconde killings. But when the NBI found a
certain Michael Rodriguez, a drug dependent from the Bicutan Rehabilitation
Center, initially suspected to be Alfaros Miguel Rodriguez and showed him to Alfaro
at the NBI office, she ran berserk, slapping and kicking Michael, exclaiming: How
can I forget your face. We just saw each other in a disco one month ago and you
told me then that you will kill me. As it turned out, he was not Miguel Rodriguez, the
[13]
accused in this case.
 
Two possibilities exist: Michael was really the one Alfaro wanted to
implicate to settle some score with him but it was too late to change the name she
already gave or she had myopic vision, tagging the wrong people for what they did
not do.
 
3. The quality of the testimony
There is another thing about a lying witness: her story lacks sense or
suffers from inherent inconsistencies. An understanding of the nature of things and
the common behavior of people will help expose a lie. And it has an abundant
presence in this case.
 
One. In her desire to implicate Gatchalian, Fernandez, Estrada,
Rodriguez, and Filart, who were supposed to be Webbs co-principals in the crime,
Alfaro made it a point to testify that Webb proposed twice to his friends the gang-
rape of Carmela who had hurt him. And twice, they (including, if one believes Alfaro,
her own boyfriend Estrada) agreed in a chorus to his proposal. But when they got to
Carmelas house, only Webb, Lejano, Ventura, and Alfaro entered the house.
 
Gatchalian, Fernandez, Estrada, and Rodriguez supposedly stayed
around Alfaros car, which was parked on the street between Carmelas house and
the next. Some of these men sat on top of the cars lid while others milled on the
sidewalk, visible under the street light to anyone who cared to watch them,
particularly to the people who were having a drinking party in a nearby
house. Obviously, the behavior of Webbs companions out on the street did not
figure in a planned gang-rape of Carmela.
Two. Ventura, Alfaros dope supplier, introduced her for the first time in her
life to Webb and his friends in a parking lot by a mall. So why would she agree to act
as Webbs messenger, using her gas, to bring his message to Carmela at her
home. More inexplicably, what motivated Alfaro to stick it out the whole night with
Webb and his friends?
They were practically strangers to her and her boyfriend Estrada. When it
came to a point that Webb decided with his friends to gang-rape Carmela, clearly,
there was nothing in it for Alfaro. Yet, she stuck it out with them, as a police asset
would, hanging in there until she had a crime to report, only she was not yet an
asset then. If, on the other hand, Alfaro had been too soaked in drugs to think
clearly and just followed along where the group took her, how could she remember
so much details that only a drug-free mind can?
 
Three. When Alfaro went to see Carmela at her house for the second
time, Carmella told her that she still had to go out and that Webb and his friends
should come back around midnight. Alfaro returned to her car and waited for
Carmela to drive out in her own car. And she trailed her up to Aguirre Avenue where
she supposedly dropped off a man whom she thought was Carmelas
boyfriend. Alfaros trailing Carmela to spy on her unfaithfulness to Webb did not
make sense since she was on limited errand. But, as a critical witness, Alfaro had to
provide a reason for Webb to freak out and decide to come with his friends and
harm Carmela.
Four. According to Alfaro, when they returned to Carmelas house the third
time around midnight, she led Webb, Lejano, and Ventura through the pedestrian
gate that Carmela had left open. Now, this is weird. Webb was the gang leader who
decided what they were going to do. He decided and his friends agreed with him to
go to Carmelas house and gang-rape her. Why would Alfaro, a woman, a stranger
to Webb before that night, and obviously with no role to play in the gang-rape of
Carmela, lead him and the others into her house? It made no sense. It would only
make sense if Alfaro wanted to feign being a witness to something she did not see.
Five. Alfaro went out of the house to smoke at the garden. After about
twenty minutes, a woman exclaimed, Sino yan? On hearing this, Alfaro immediately
walked out of the garden and went to her car. Apparently, she did this because she
knew they came on a sly. Someone other than Carmela became conscious of the
presence of Webb and others in the house. Alfaro walked away because, obviously,
she did not want to get involved in a potential confrontation. This was supposedly
her frame of mind: fear of getting involved in what was not her business.
 
But if that were the case, how could she testify based on personal
knowledge of what went on in the house? Alfaro had to change that frame of mind
to one of boldness and reckless curiosity. So that is what she next claimed. She
went back into the house to watch as Webb raped Carmela on the floor of the
masters bedroom. He had apparently stabbed to death Carmelas mom and her
young sister whose bloodied bodies were sprawled on the bed. Now, Alfaro testified
that she got scared (another shift to fear) for she hurriedly got out of the house after
Webb supposedly gave her a meaningful look.
Alfaro quickly went to her car, not minding Gatchalian, Fernandez,
Estrada, Rodriguez, and Filart who sat on the car or milled on the sidewalk. She did
not speak to them, even to Estrada, her boyfriend. She entered her car and turned
on the engine but she testified that she did not know where to go. This woman who
a few minutes back led Webb, Lejano, and Ventura into the house, knowing that
they were decided to rape and harm Carmela, was suddenly too shocked to know
where to go! This emotional pendulum swing indicates a witness who was confused
with her own lies.
4. The supposed corroborations
 
 Intending to provide corroboration to Alfaros testimony, the prosecution
presented six additional witnesses:
 
Dr. Prospero A. Cabanayan, the NBI Medico-Legal Officer who autopsied
[14]
the bodies of the victims, testified on the stab wounds they sustained  and the
presence of semen in Carmelas genitalia,[15] indicating that she had been raped.
 
Normal E. White, Jr., was the security guard on duty at Pitong Daan
Subdivision from 7 p.m. of June 29 to 7 a.m. of June 30, 1991. He got a report on
the morning of June 30 that something untoward happened at the Vizconde
residence. He went there and saw the dead bodies in the masters bedroom, the bag
on the dining table, as well as the loud noise emanating from a television set. [16]
White claimed that he noticed Gatchalian and his companions, none of
whom he could identify, go in and out of Pitong Daan Subdivision. He also saw them
along Vinzons Street. Later, they entered Pitong Daan Subdivision in a three-car
convoy. White could not, however, describe the kind of vehicles they used or recall
the time when he saw the group in those two instances. And he did not notice
anything suspicious about their coming and going.
 
But Whites testimony cannot be relied on. His initial claim turned out to be
inaccurate. He actually saw Gatchalian and his group enter the Pitong Daan
Subdivision only once. They were not going in and out. Furthermore, Alfaro testified
that when the convoy of cars went back the second time in the direction of Carmelas
house, she alone entered the subdivision and passed the guardhouse without
stopping. Yet, White who supposedly manned that guardhouse did not notice her.
 
Surprisingly, White failed to note Biong, a police officer, entering or exiting
the subdivision on the early morning of June 30 when he supposedly cleaned up
Vizconde residence on Webbs orders. What is more, White did not notice Carmela
arrive with her mom before Alfaros first visit that night. Carmela supposedly left with
a male companion in her car at around 10:30 p.m. but White did not notice it. He
also did not notice Carmela reenter the subdivision. White actually discredited
Alfaros testimony about the movements of the persons involved.
 
Further, while Alfaro testified that it was the Mazda pick-up driven by Filart
that led the three-vehicle convoy, [17] White claimed it was the Nissan Patrol with
Gatchalian on it that led the convoy since he would not have let the convoy in
without ascertaining that Gatchalian, a resident, was in it. Security guard White did
not, therefore, provide corroboration to Alfaros testimony. 
Justo Cabanacan, the security supervisor at Pitong Daan Subdivision
testified that he saw Webb around the last week of May or the first week of June
1991 to prove his presence in the Philippines when he claimed to be in the United
States. He was manning the guard house at the entrance of the subdivision of
Pitong Daan when he flagged down a car driven by Webb. Webb said that he would
see Lilet Sy. Cabanacan asked him for an ID but he pointed to his United BF Homes
sticker and said that he resided there. Cabanacan replied, however, that Pitong
Daan had a local sticker.
 
Cabanacan testified that, at this point, Webb introduced himself as the son
of Congressman Webb. Still, the supervisor insisted on seeing his ID. Webb
grudgingly gave it and after seeing the picture and the name on it, Cabanacan
returned the same and allowed Webb to pass without being logged in as their
Standard Operating Procedure required.[18]
 
But Cabanacan's testimony could not be relied on. Although it was not
common for a security guard to challenge a Congressmans son with such
vehemence, Cabanacan did not log the incident on the guardhouse book. Nor did
he, contrary to prescribed procedure, record the visitors entry into the subdivision. It
did not make sense that Cabanacan was strict in the matter of seeing Webbs ID but
not in recording the visit.
Mila Gaviola used to work as laundry woman for the Webbs at their house
at BF Homes Executive Village. She testified that she saw Webb at his parents
house on the morning of June 30, 1991 when she got the dirty clothes from the
room that he and two brothers occupied at about 4.a.m. She saw him again pacing
the floor at 9 a.m. At about 1 p.m., Webb left the house in t-shirt and shorts, passing
through a secret door near the maids quarters on the way out. Finally, she saw
Webb at 4 p.m. of the same day.[19]
 
On cross-examination, however, Gaviola could not say what distinguished
June 30, 1991 from the other days she was on service at the Webb household as to
enable her to distinctly remember, four years later, what one of the Webb boys did
and at what time. She could not remember any of the details that happened in the
household on the other days. She proved to have a selective photographic memory
and this only damaged her testimony.
 
Gaviola tried to corroborate Alfaro's testimony by claiming that on June
30, 1991 she noticed bloodstains on Webb's t-shirt. [20] She did not call the attention
of anybody in the household about it when it would have been a point of concern
that Webb may have been hurt, hence the blood.
 
Besides, Victoria Ventoso, the Webbs' housemaid from March 1989 to
May 1992, and Sgt. Miguel Muoz, the Webbs' security aide in 1991, testified that
Gaviola worked for the Webbs only from January 1991 to April 1991. Ventoso
further testified that it was not Gaviola's duty to collect the clothes from the 2 nd floor
bedrooms, this being the work of the housemaid charged with cleaning the rooms.
What is more, it was most unlikely for a laundrywoman who had been
there for only four months to collect, as she claimed, the laundry from the rooms of
her employers and their grown up children at four in the morning while they were
asleep.
 
And it did not make sense, if Alfaros testimony were to be believed that
Webb, who was so careful and clever that he called Biong to go to the Vizconde
residence at 2 a.m. to clean up the evidence against him and his group, would bring
his bloodied shirt home and put it in the hamper for laundrywoman Gaviola to collect
and wash at 4 a.m. as was her supposed habit.
Lolita De Birrer was accused Biongs girlfriend around the time the
Vizconde massacre took place. Birrer testified that she was with Biong playing
mahjong from the evening of June 29, 1991 to the early morning of June 30, when
Biong got a call at around 2 a.m. This prompted him, according to De Birrer, to leave
and go to BF. Someone sitting at the backseat of a taxi picked him up. When Biong
returned at 7 a.m. he washed off what looked like dried blood from his
fingernails. And he threw away a foul-smelling handkerchief. She also saw Biong
take out a knife with aluminum cover from his drawer and hid it in his steel cabinet.
[21]
The security guard at Pitong Daan did not notice any police investigator
flashing a badge to get into the village although Biong supposedly came in at the
unholy hour of two in the morning. His departure before 7 a.m. also remained
unnoticed by the subdivision guards. Besides, if he had cleaned up the crime scene
shortly after midnight, what was the point of his returning there on the following
morning to dispose of some of the evidence in the presence of other police
investigators and on-lookers? In fact, why would he steal valuable items from the
Vizconde residence on his return there hours later if he had the opportunity to do it
earlier?
At most, Birrers testimony only established Biongs theft of certain items
from the Vizconde residence and gross neglect for failing to maintain the sanctity of
the crime scene by moving around and altering the effects of the crime. Birrers
testimony failed to connect Biong's acts to Webb and the other accused.
 
Lauro Vizconde testified about how deeply he was affected by the loss of
her wife and two daughters. Carmella spoke to him of a rejected suitor she called
Bagyo, because he was a Paraaque politicians son. Unfortunately, Lauro did not
appear curious enough to insist on finding out who the rejected fellow was. Besides,
his testimony contradicts that of Alfaro who testified that Carmela and Webb had an
on-going relation. Indeed, if Alfaro were to be believed, Carmela wanted Webb to
come to her house around midnight. She even left the kitchen door open so he
could enter the house.
 
5. The missing corroboration
There is something truly remarkable about this case: the prosecutions
core theory that Carmela and Webb had been sweethearts, that she had been
unfaithful to him, and that it was for this reason that Webb brought his friends to her
house to gang-rape her is totally uncorroborated!
 
For instance, normally, if Webb, a Congressmans son, courted the young
Carmela, that would be news among her circle of friends if not around town. But,
here, none of her friends or even those who knew either of them came forward to
affirm this. And if Webb hanged around with her, trying to win her favors, he would
surely be seen with her. And this would all the more be so if they had become
sweethearts, a relation that Alfaro tried to project with her testimony.
 
But, except for Alfaro, the NBI asset, no one among Carmelas friends or
her friends friends would testify ever hearing of such relationship or ever seeing
them together in some popular hangouts in Paraaque or Makati. Alfaros claim of a
five-hour drama is like an alien page, rudely and unconnectedly inserted into Webb
and Carmelas life stories or like a piece of jigsaw puzzle trimmed to fit into the
shape on the board but does not belong because it clashes with the surrounding
pieces. It has neither antecedent nor concomitant support in the verifiable facts of
their personal histories. It is quite unreal.

What is more, Alfaro testified that she saw Carmela drive out of her house
with a male passenger, Mr. X, whom Alfaro thought the way it looked was also
Carmelas lover. This was the all-important reason Webb supposedly had for
wanting to harm her.Again, none of Carmelas relatives, friends, or people who knew
her ever testified about the existence of Mr.X in her life. Nobody has come forward
to testify having ever seen him with Carmela. And despite the gruesome news about
her death and how Mr. X had played a role in it, he never presented himself like
anyone who had lost a special friend normally would. Obviously, Mr. X did not exist,
a mere ghost of the imagination of Alfaro, the woman who made a living informing
on criminals.
 
 
Webbs U.S. Alibi
 
Among the accused, Webb presented the strongest alibi.
 
a. The travel preparations
 
Webb claims that in 1991 his parents, Senator Freddie Webb and his wife,
Elizabeth, sent their son to the United States (U.S.) to learn the value of
[22]
independence, hard work, and money.  Gloria Webb, his aunt, accompanied
him. Rajah Tours booked their flight to San Francisco via United Airlines. Josefina
Nolasco of Rajah Tours confirmed that Webb and his aunt used their plane tickets.
Webb told his friends, including his neighbor, Jennifer Claire Cabrera, and
his basketball buddy, Joselito Orendain Escobar, of his travel plans. He even invited
them to his despedida party on March 8, 1991 at Faces Disco along Makati Ave.
[23]
 On March 8,1991, the eve of his departure, he took girlfriend Milagros Castillo to
a dinner at Bunchums at the Makati Cinema Square. His basketball buddy Rafael
Jose with Tina Calma, a blind date arranged by Webb, joined them. They afterwards
went to Faces Disco for Webb's despedida party. Among those present were his
friends Paulo Santos and Jay Ortega.[24]
 
b. The two immigration checks
 
The following day, March 9, 1991, Webb left for San Francisco, California,
with his Aunt Gloria on board United Airlines Flight 808. [25] Before boarding his
plane, Webb passed through the Philippine Immigration booth at the airport to have
his passport cleared and stamped. Immigration Officer, Ferdinand Sampol checked
Webbs visa, stamped, and initialed his passport, and let him pass through. [26] He
was listed on the United Airlines Flights Passenger Manifest. [27]
 
On arrival at San Francisco, Webb went through the U.S. Immigration
where his entry into that country was recorded. Thus, the U.S. Immigration
Naturalization Service, checking with its Non-immigrant Information System,
confirmed Webb's entry into the U.S. on March 9, 1991. Webb presented at the trial
the INS Certification issued by the U.S. Immigration and Naturalization Service,
[28]
 the computer-generated print-out of the US-INS indicating Webb's entry on
March 9, 1991,[29] and the US-INS Certification dated August 31, 1995,
authenticated by the Philippine Department of Foreign Affairs, correcting an earlier
August 10, 1995 Certification.[30]
 
c. Details of U.S. sojourn

In San Francisco, Webb and his aunt Gloria were met by the latters
daughter, Maria Teresa Keame, who brought them to Glorias house in Daly
City, California. During his stay with his aunt, Webb met Christopher Paul Legaspi
Esguerra, Glorias grandson. In April 1991, Webb, Christopher, and a certain
Daphne Domingo watched the concert of Deelite Band in San Francisco.[31] In the
same month, Dorothy Wheelock and her family invited Webb to Lake Tahoe to
return the Webbs hospitality when she was in the Philippines.[32]
 
In May 1991, on invitation of another aunt, Susan Brottman, Webb moved
[33]
to Anaheim Hills, California.  During his stay there, he occupied himself with
playing basketball once or twice a week with Steven Keeler [34] and working at his
[35]
cousin-in-laws pest control company.  Webb presented the companys logbook
showing the tasks he performed,[36] his paycheck,[37] his ID, and other employment
[38]
papers. On June 14, 1991 he applied for a driver's license  and wrote three letters
to his friend Jennifer Cabrera.[39]
On June 28, 1991, Webbs parents visited him at Anaheim and stayed with
the Brottmans. On the same day, his father introduced Honesto Aragon to his son
when he came to visit.[40] On the following day, June 29, Webb, in the company of
his father and Aragon went to Riverside, California, to look for a car.  They bought an
MR2 Toyota car.[41] Later that day, a visitor at the Brottmans, Louis Whittacker, saw
Webb looking at the plates of his new car. [42] To prove the purchase, Webb
presented the Public Records of California Department of Motor Vehicle [43] and a car
plate LEW WEBB.[44] In using the car in the U.S., Webb even received traffic
citations.[45]
On June 30, 1991 Webb, again accompanied by his father and Aragon,
[46]
 bought a bicycle at Orange Cycle Center.[47] The Center issued Webb a receipt
dated June 30, 1991.[48] On July 4, 1991, Independence Day, the Webbs, the
Brottmans, and the Vaca family had a lakeside picnic. [49]
 
Webb stayed with the Brottmans until mid July and rented a place for less
than a month. On August 4, 1991 he left for Longwood, Florida, to stay with the
spouses Jack and Sonja Rodriguez. [50] There, he met Armando Rodriguez with
whom he spent time, playing basketball on weekends, watching movies, and playing
billiards.[51] In November 1991, Webb met performing artist Gary Valenciano, a
friend of Jack Rodriguez, who was invited for a dinner at the Rodriguezs house.
[52]
 He left the Rodriguezs home in August 1992, returned to Anaheim and stayed
with his aunt Imelda Pagaspas. He stayed there until he left for the Philippines on
October 26, 1992.
d. The second immigration checks
As with his trip going to the U.S., Webb also went through both
the U.S. and Philippine immigrations on his return trip. Thus, his departure from
the U.S. was confirmed by the same certifications that confirmed his entry.
[53]
 Furthermore, a Diplomatic Note of the U.S. Department of State with enclosed
letter from Acting Director Debora A. Farmer of the Records Operations, Office of
Records of the US-INS stated that the Certification dated August 31, 1995 is a true
and accurate statement. And when he boarded his plane, the Passenger Manifest of
Philippine Airlines Flight No. 103,[54] certified by Agnes Tabuena[55] confirmed his
return trip.
When he arrived in Manila, Webb again went through the Philippine
Immigration. In fact, the arrival stamp and initial on his passport indicated his return
to Manila on October 27, 1992. This was authenticated by Carmelita Alipio, the
[56]
immigration officer who processed Webbs reentry.  Upon his return, in October
1992, Paolo Santos, Joselito Erondain Escobar, and Rafael Jose once again saw
Webb playing basketball at the BF's Phase III basketball court.
 
e. Alibi versus positive identification
 
The trial court and the Court of Appeals are one in rejecting as weak
Webbs alibi. Their reason is uniform: Webbs alibi cannot stand against Alfaros
positive identification of him as the rapist and killer of Carmela and, apparently, the
killer as well of her mother and younger sister. Because of this, to the lower courts,
Webbs denial and alibi were fabricated.
But not all denials and alibis should be regarded as fabricated. Indeed, if
the accused is truly innocent, he can have no other defense but denial and alibi.  So
how can such accused penetrate a mind that has been made cynical by the rule
drilled into his head that a defense of alibi is a hangmans noose in the face of a
witness positively swearing, I saw him do it.? Most judges believe that such
assertion automatically dooms an alibi which is so easy to fabricate. This quick
stereotype thinking, however, is distressing.For how else can the truth that the
accused is really innocent have any chance of prevailing over such a stone-cast
tenet?
There is only one way. A judge must keep an open mind. He must guard
against slipping into hasty conclusion, often arising from a desire to quickly finish the
job of deciding a case. A positive declaration from a witness that he saw the
accused commit the crime should not automatically cancel out the accuseds claim
that he did not do it. A lying witness can make as positive an identification as a
truthful witness can. The lying witness can also say as forthrightly and
unequivocally, He did it! without blinking an eye.
 
Rather, to be acceptable, the positive identification must meet at least two
criteria:
 
First, the positive identification of the offender must come from a credible
witness. She is credible who can be trusted to tell the truth, usually based on past
experiences with her. Her word has, to one who knows her, its weight in gold.
And second, the witness story of what she personally saw must be
believable, not inherently contrived. A witness who testifies about something she
never saw runs into inconsistencies and makes bewildering claims.
 
Here, as already fully discussed above, Alfaro and her testimony fail to
meet the above criteria.
 
 She did not show up at the NBI as a spontaneous witness bothered by her
conscience. She had been hanging around that agency for sometime as a stool
pigeon, one paid for mixing up with criminals and squealing on them. Police assets
are often criminals themselves. She was the prosecutions worst possible choice for
a witness. Indeed, her superior testified that she volunteered to play the role of a
witness in the Vizconde killings when she could not produce a man she promised to
the NBI.
 
And, although her testimony included details, Alfaro had prior access to
the details that the investigators knew of the case.She took advantage of her
familiarity with these details to include in her testimony the clearly incompatible act
of Webb hurling a stone at the front door glass frames even when they were trying
to slip away quietlyjust so she can accommodate this crime scene feature. She also
had Ventura rummaging a bag on the dining table for a front door key that nobody
needed just to explain the physical evidence of that bag and its scattered
contents. And she had Ventura climbing the cars hood, risking being seen in such
an awkward position, when they did not need to darken the garage to force open the
front doorjust so to explain the darkened light and foot prints on the car hood.
 
Further, her testimony was inherently incredible. Her story that Gatchalian,
Fernandez, Estrada, Rodriguez, and Filart agreed to take their turns raping Carmela
is incongruent with their indifference, exemplified by remaining outside the house,
milling under a street light, visible to neighbors and passersby, and showing no
interest in the developments inside the house, like if it was their turn to rape
Carmela. Alfaros story that she agreed to serve as Webbs messenger to Carmela,
using up her gas, and staying with him till the bizarre end when they were practically
strangers, also taxes incredulity.
 
To provide basis for Webbs outrage, Alfaro said that she followed
Carmela to the main road to watch her let off a lover on Aguirre Avenue. And,
inexplicably, although Alfaro had only played the role of messenger, she claimed
leading Webb, Lejano, and Ventura into the house to gang-rape Carmella, as if
Alfaro was establishing a reason for later on testifying on personal knowledge.Her
swing from an emotion of fear when a woman woke up to their presence in the
house and of absolute courage when she nonetheless returned to become the lone
witness to a grim scene is also quite inexplicable.
 
Ultimately, Alfaros quality as a witness and her inconsistent, if not
inherently unbelievable, testimony cannot be the positive identification that
jurisprudence acknowledges as sufficient to jettison a denial and an alibi.
 
f. A documented alibi
 
To establish alibi, the accused must prove by positive, clear, and
satisfactory evidence[57] that (a) he was present at another place at the time of the
perpetration of the crime, and (b) that it was physically impossible for him to be at
the scene of the crime.[58]
 
The courts below held that, despite his evidence, Webb was actually in
Paraaque when the Vizconde killings took place; he was not in the U.S. from March
9, 1991 to October 27, 1992; and if he did leave on March 9, 1991, he actually
returned before June 29, 1991, committed the crime, erased the fact of his return to
the Philippines from the records of the U.S. and Philippine Immigrations, smuggled
himself out of the Philippines and into the U.S., and returned the normal way on
October 27, 1992. But this ruling practically makes the death of Webb and his
passage into the next life the only acceptable alibi in the Philippines. Courts must
abandon this unjust and inhuman paradigm.
 
If one is cynical about the Philippine system, he could probably claim that
Webb, with his fathers connections, can arrange for the local immigration to put a
March 9, 1991 departure stamp on his passport and an October 27, 1992 arrival
stamp on the same.But this is pure speculation since there had been no indication
that such arrangement was made. Besides, how could Webb fix a foreign airlines
passenger manifest, officially filed in the Philippines and at the airport in
the U.S. that had his name on them? How could Webb fix with the U.S.
Immigrations record system those two dates in its record of his travels as well as the
dates when he supposedly departed in secret from the U.S. to commit the crime in
the Philippines and then return there? No one has come up with a logical and
plausible answer to these questions.
 
The Court of Appeals rejected the evidence of Webbs passport since he
did not leave the original to be attached to the record.But, while the best evidence of
a document is the original, this means that the same is exhibited in court for the
adverse party to examine and for the judge to see. As Court of Appeals Justice
Tagle said in his dissent,[59] the practice when a party does not want to leave an
important document with the trial court is to have a photocopy of it marked as exhibit
and stipulated among the parties as a faithful reproduction of the
original. Stipulations in the course of trial are binding on the parties and on the
court.
 
The U.S. Immigration certification and the computer print-out of Webbs
arrival in and departure from that country were authenticated by no less than the
Office of the U.S. Attorney General and the State Department. Still the Court of
Appeals refused to accept these documents for the reason that Webb failed to
present in court the immigration official who prepared the same. But this was
unnecessary. Webbs passport is a document issued by the Philippine government,
which under international practice, is the official record of travels of the citizen to
whom it is issued. The entries in that passport are presumed true.[60]
 
The U.S. Immigration certification and computer print-out, the official
certifications of which have been authenticated by the Philippine Department of
Foreign Affairs, merely validated the arrival and departure stamps of the U.S.
Immigration office on Webbs passport. They have the same evidentiary value. The
officers who issued these certifications need not be presented in court to testify on
them. Their trustworthiness arises from the sense of official duty and the penalty
attached to a breached duty, in the routine and disinterested origin of such
statement and in the publicity of the record.[61]
 
The Court of Appeals of course makes capital of the fact that an earlier
certification from the U.S. Immigration office said that it had no record of Webb
entering the U.S. But that erroneous first certification was amply explained by the
U.S. Government and Court of Appeals Justice Tagle stated it in his dissenting
opinion, thus:
   have been impossible for Webb to secretly return to the Philippines after he
While it is true that an earlier Certification was issued
supposedly left it on March 9, 1991, commit the crime, go back to the U.S., and
by the U.S. INS on August 16, 1995 finding no evidence of
lawful admission of Webb, this was already clarified and openly return to the Philippines again on October 26, 1992. Travel between
deemed erroneous by no less than the US INS Officials. As
explained by witness Leo Herrera-Lim, Consul and Second the U.S. and the Philippines, said the lower courts took only about twelve to fourteen
Secretary of the Philippine Embassy in Washington D.C., said hours.
Certification did not pass through proper diplomatic channels
and was obtained in violation of the rules on protocol and  
standard procedure governing such request. If the Court were to subscribe to this extremely skeptical view, it might as
 
The initial request was merely initiated by BID well tear the rules of evidence out of the law books and regard suspicions, surmises,
Commissioner Verceles who directly communicated with the
or speculations as reasons for impeaching evidence. It is not that official records,
Philippine Consulate in San Francisco, USA, bypassing the
Secretary of Foreign Affairs which is the proper protocol which carry the presumption of truth of what they state, are immune to attack.  They
procedure. Mr. Steven Bucher, the acting Chief of the Records
Services Board of US-INS Washington D.C. in his letter are not. That presumption can be overcome by evidence. Here, however, the
addressed to Philip Antweiler, Philippine Desk Officer, State prosecution did not bother to present evidence to impeach the entries in Webbs
Department, declared the earlier Certification as incorrect and
erroneous as it was not exhaustive and did not reflect all passport and the certifications of the Philippine and U.S. immigration services
available information. Also, Richard L. Huff, Co-Director of the regarding his travel to the U.S. and back. The prosecutions rebuttal evidence is the
Office of Information and privacy, US Department of Justice, in
response to the appeal raised by Consul General Teresita V. fear of the unknown that it planted in the lower courts minds.
Marzan, explained that the INS normally does not maintain
 
records on individuals who are entering the country as visitors
rather than as immigrants: and that a notation concerning the 7. Effect of Webbs alibi to others
entry of a visitor may be made at the Nonimmigrant Information
system. Since appellant Webb entered the U.S. on a mere  
tourist visa, obviously, the initial search could not have produced Webbs documented alibi altogether impeaches Alfaro's testimony, not
the desired result inasmuch as the data base that was looked
into contained entries of the names of IMMIGRANTS and not only with respect to him, but also with respect to Lejano, Estrada, Fernandez,
that of NON-IMMIGRANT visitors of the U.S..[62] Gatchalian, Rodriguez, and Biong. For, if the Court accepts the proposition that
 
  Webb was in the U.S.when the crime took place, Alfaros testimony will not hold
The trial court and the Court of Appeals expressed marked cynicism over together. Webbs participation is the anchor of Alfaros story. Without it, the evidence
the accuracy of travel documents like the passport as well as the domestic and against the others must necessarily fall.
foreign records of departures and arrivals from airports. They claim that it would not  
CONCLUSION
   
 
In our criminal justice system, what is important is, not whether the court ROBERTO A. ABAD
entertains doubts about the innocence of the accused since an open mind is willing Associate Justice
 
to explore all possibilities, but whether it entertains a reasonable, lingering doubt as  
to his guilt. For, it would be a serious mistake to send an innocent man to jail where WE CONCUR:
 
such kind of doubt hangs on to ones inner being, like a piece of meat lodged
immovable between teeth.
Will the Court send the accused to spend the rest of their lives in prison on
the testimony of an NBI asset who proposed to her handlers that she take the role of
the witness to the Vizconde massacre that she could not produce?
 
WHEREFORE, the Court REVERSES and SETS ASIDE the Decision
dated December 15, 2005 and Resolution dated January 26, 2007 of the Court of
Appeals in CA-G.R. CR-H.C. 00336 and ACQUITS accused-appellants Hubert
Jeffrey P. Webb, Antonio Lejano, Michael A. Gatchalian, Hospicio Fernandez,
Miguel Rodriguez, Peter Estrada and Gerardo Biong of the crimes of which they
were charged for failure of the prosecution to prove their guilt beyond reasonable
doubt. They are ordered immediately RELEASED from detention unless they are
confined for another lawful cause.
 
Let a copy of this Decision be furnished the Director, Bureau of
Corrections, Muntinlupa City for immediate implementation.The Director of the
Bureau of Corrections is DIRECTED to report the action he has taken to this Court
within five days from receipt of this Decision.
 
SO ORDERED.
 FIRST DIVISION
[G.R. No. 127107. October 12, 1998]
PETER PAUL DIMATULAC and VERONICA DIMATULAC, petitioners,
vs.  HON. SESINANDO VILLON in his capacity as Presiding Judge of the
Regional Trial Court of Pampanga, Branch 54; HON. TEOFISTO
GUINGONA, in his capacity as Secretary of Justice; MAYOR SANTIAGO
YABUT, SERVILLANO YABUT, MARTIN YABUT and FORTUNATO
MALLARI, respondents.
DECISION
DAVIDE, JR., J.:
The issues raised by petitioners in their Memorandum[1] and by the Office of
the Solicitor General in its Comment [2] in this special civil action
for certiorari,  prohibition and mandamus under Rule 65 of the Rules of Court filed by
petitioners, children of the deceased Police Officer 3 (PO3) Virgilio Dimatulac of
Masantol, Pampanga, may be summarized as follows:
A. WHETHER THE OFFICE OF THE PROVINCIAL PROSECUTOR
COMMITTED GRAVE ABUSE OF DISCRETION IN: (1) GIVING
DUE COURSE TO THE MOTION FOR REINVESTIGATION BY
PRIVATE RESPONDENTS AGAINST WHOM WARRANTS OF
ARREST WERE ISSUED BUT WHO HAD NOT YET BEEN
BROUGHT INTO THE CUSTODY OF THE LAW; and (2) FILING
THE INFORMATION FOR HOMICIDE DESPITE KNOWLEDGE OF
THE APPEAL FROM SAID PROSECUTORS RESOLUTION TO
THE OFFICE OF THE SECRETARY OF JUSTICE.
B. WHETHER PUBLIC RESPONDENT JUDGE ACTED IN EXCESS OF
JURISDICTION IN PROCEEDING WITH THE ARRAIGNMENT
AND IN DENYING PETITIONERS MOTIONS TO SET ASIDE
ARRAIGNMENT AND RECONSIDERATION THEREOF DESPITE
HIS KNOWLEDGE OF THE PENDENCY OF THE APPEAL AND
THE SUBMISSION OF VITAL EVIDENCE TO PROVE THAT
MURDER AND NOT HOMICIDE WAS COMMITTED BY THE
ACCUSED.
C. WHETHER PUBLIC RESPONDENT SECRETARY OF JUSTICE
COMMITTED GRAVE ABUSE OF DISCRETION IN
RECONSIDERING HIS ORDER FINDING THAT THE CRIME
COMMITTED WAS MURDER AND DIRECTING THE PROVINCIAL
PROSECUTOR TO AMEND THE INFORMATION FROM
HOMICIDE TO MURDER.
The records and the pleadings of the parties disclose the antecedents.
On 3 November 1995, SPO3 Virgilio Dimatulac was shot dead at his
residence in Barangay San Nicolas, Masantol, Pampanga.
On 5 November 1995, a complaint for Murder was filed before the Municipal
Circuit Trial Court (MCTC) of Macabebe-Masantol in Macabebe, Pampanga, by
SPO1 Renato Layug of the Masantol Police Station against private respondents
Mayor Santiago Yabut, Martin Yabut, Servillano Yabut, Evelino David, Justino
Mandap, Casti David, Francisco Yambao, Juan Magat, Arturo Naguit, Fortunato
Mallari, Jesus de la Cruz, Joselito Miranda, SPO3 Gilberto Malabanan, Aniano
Magnaye, Vladimir Yumul, a certain Danny, and a certain Koyang/Arding. The
complaint was docketed as Criminal Case No. 95-360. After conducting a
preliminary examination in the form of searching questions and answers, and finding
probable cause, Judge Designate Serafin B. David of the MCTC issued warrants for
the arrest of the accused and directed them to file their counter-affidavits.
Only accused Evelino David, Justino Mandap, Juan Magat and Francisco
Yambao were arrested; while only Francisco Yambao submitted his counter
affidavit.[3]
On 1 December 1995, after appropriate proceedings, Judge David issued a
Resolution[4] in Criminal Case No. 95-360 finding reasonable ground to believe that
the crime of murder had been committed and that the accused were probably guilty
thereof. His findings of fact and conclusions were as follows:
That on or about November 3, 1995, all the accused under the
leadership of Mayor Santiago Docsay Yabut, including two John Does
identified only as Dan/Danny and Koyang/Arding, went to Masantol,
Pampanga for the purpose of looking for a certain PO3 Virgilio
Dimatulac.
At first, the accused, riding on [sic] a truck, went to the Municipal Hall of
Masantol, Pampanga inquiring about PO3 Virgilio Dimatulac.Thereafter,
they went to the house of Mayor Lacap for the purpose of inquiring
[about] the [the location of the] house of PO3 Virgilio Dimatulac, until
finally, they were able to reach the house of said Virgilio Dimatulac at
San Nicolas, Masantol, Pampanga.
Upon reaching the house of PO3 Virgilio Dimatulac, the truck the
accused were all riding, stopped and parked in front of the house of
said PO3 Virgilio Dimatulac, some of the accused descended from the
truck and positioned themselves around the house while others stood
by the truck and the Mayor stayed [in] the truck with a bodyguard.
Accused Billy Yabut, Kati Yabut and Francisco Yambao went inside the
house of Virgilio Dimatulac [and] were even offered coffee.
[A]ccused Yabut brothers (Kati and Billy) strongly suggested to Virgilio
Dimatulac to go down to see the Mayor outside in front of his house to
say sorry.
[W]hen Virgilio Dimatulac went down from his house, suddenly [a] gun
shot was heard and then, the son of Virgilio Dimatulac, Peter Paul,
started to shout the following words: What did you do to my father?!
One of the men of Mayor Docsay Yabut shot Virgilio Dimatulac, and as
a consequence, he died; and before he expired, he left a dying
declaration pointing to the group of Mayor Docsay Yabut as the one
responsible.
That right after Virgilio Dimatulac was shot, accused Docsay Yabut
ordered his men to go on board the truck and immediately left away
leaving Virgilio Dimatulac bleeding and asking for help.
On their way home to Minalin, accused Santiago Docsay Yabut gave
money to accused John Doe Dan/Danny and Francisco Boy Yambao
was asked to bring the accused John Doe to Nueva Ecija which he did.
Further, accused Santiago Docsay Yabut told his group to deny that
they ever went to Masantol.
The court, after having conducted preliminary examination on the
complainant and the witnesses presented, [is] satisfied that there is a
[sic] reasonable ground to believe that the crime of murder was
committed and that the accused in conspiring and confederating with
one another are probably guilty thereof.
Circumstantial evidence strongly shows the presence of conspiracy.
That in order not to frustrate the ends of justice, warrants of arrest were
issued against Santiago Yabut, Martin Yabut, Servillano Yabut,
Francisco Yambao, Avelino David, Casti David, Catoy Naguit,
Fortunato Mallari, Boy dela Cruz, Lito Miranda and Juan Magat with no
bail recommended.
However, with respect to accused Dan/Danny and Koyang/Arding, the
court directed the police authorities to furnish the court [a] descriptio
personae of the accused for the purpose of issuing the needed warrant
of arrest.
The accused were furnish [sic] copies of the complaint and affidavits of
witnesses for them to file their counter-affidavits in accordance to [sic]
law.
As of this date, only accused Francisco Boy Yambao filed his counter-
affidavit and all the others waived the filing of the same.
A close evaluation of the evidence submitted by the accused Francisco
Yambao which the court finds it [sic] straightforward and more or less
credible and seems to be consistent with truth, human nature and [the]
natural course of things and lack of motives [sic], the evidence of guilt
against him is rather weak [compared to] the others, which [is why] the
court recommends a cash bond of P50,000.00 for his provisional liberty,
and the courts previous order of no bail for said accused is hereby
reconsidered.
WHEREFORE, premises considered, the Clerk of Court is directed to
forward the entire records of the case to the Office of the Provincial
Prosecutor of Pampanga for further action, together with the bodies of
accused Francisco Yambao and Juan Magat to be remanded to the
provincial Jail of Pampanga.[5] (underscoring supplied)
In a sworn statement,[6] petitioner Peter Paul Dimatulac narrated that Mayor
Santiago Yabut, accompanied by a number of bodyguards, went to the residence of
PO3 Virgilio Dimatulac to talk about a problem between the Mayor and Peter Pauls
uncle, Jun Dimatulac. Virgilio warmly welcomed the group and even prepared coffee
for them. Servillano and Martin Yabut told Virgilio to come down from his house and
apologize to the Mayor, but hardly had Virgilio descended when Peter Paul heard a
gunshot. While Peter Paul did not see who fired the shot, he was sure it was one of
Mayor Yabuts companions. Peter Paul opined that his father was killed because the
latter spoke to the people of Minalin, Pampanga, against the Mayor. Peter Paul
added in a supplemental statement ( Susog na Salaysay)[7] that he heard Mayor
Yabut order Virgilio killed.
In his Sinumpaang Salaysay,[8]  Police Officer Leopoldo Soriano of the
Masantol Municipal Police Station in Masantol, Pampanga, declared that on 3
November 1995, between 3:30 and 4:00 p.m., while he was at the police station,
three men approached him and asked for directions to the house of Mayor Epifanio
Lacap. Soriano recognized one of the men as SPO1 Labet Malabanan of Minalin,
Pampanga. The group left after Soriano gave them directions, but one of the three
returned to ask whether PO3 Virgilio Dimatulac was on duty, to which Soriano
replied that Dimatulac was at home. The group left on board a military truck headed
for San Nicolas, Masantol, Pampanga. Later that day, SPO2 Michael Viray received
a telephone call at the police station reporting that someone had shot Virgilio
Dimatulac.
Thereafter, Pampanga Assistant Provincial Prosecutor Sylvia Q. Alfonso-
Flores conducted a reinvestigation. However, it is not clear from the record whether
she conducted the same motu proprio or upon motion of private respondents
Santiago Yabut, Servillano Yabut and Martin Yabut (hereafter YABUTs). All of the
accused who had not submitted their counter-affidavits before the MCTC, except
accused Danny and Koyang/Arding, submitted their counter-affidavits to Assistant
Provincial Prosecutor Alfonso Flores.
In her Resolution dated 29 January 1996, [9] Assistant Provincial Prosecutor
Alfonso-Flores found that the YABUTs and the assailant Danny, to the exclusion of
the other accused, were in conspiracy with one another, but that the offense
committed was only homicide, not murder. In support of such finding, Alfonso-Flores
reasoned thus:
The complainant in this case charges the crime of Murder qualified by
treachery. It must be noted that to constitute treachery, two conditions
must be present, to wit, 1) the employment of the [sic] means of
execution were give [sic] the person attacked no opportunity to defend
himself or to retaliate; and 2) the means of execution were deliberately
or consciously adopted xxx.
In the instant case, the presence of the first requisite was clearly
established by the evidence, such that the attack upon the victim while
descending the stairs was so sudden and unexpected as to render him
no opportunity to defend himself or to retaliate. However, the
circumstances, as portrayed by witness Peter Paul Dimatulac, negate
the presence of the second requisite. According to the said witness, the
victim was already descending when Mayor Yabut commanded the
assailant to shoot him, and immediately thereafter, he heard the
gunshot. This would therefore show that the assailant did not
consciously adopt the position of the victim at the time he fired the fatal
shot. The command of Mayor Yabut to shoot came so sudden as to
afford no opportunity for the assailant to choose the means or method
of attack. The act of Mayor Yabut in giving the command to shoot
further bolster[s] the fact that the conspirator did not concert the means
and method of attack nor the manner thereof. Otherwise there would
have been no necessity for him to give the order to the assailant. The
method and manner of attack was adopted by the assailant at the spur
of the moment and the vulnerable position of the victim was not
deliberately and consciously adopted.Treachery therefore could not be
appreciated and the crime reasonably believe[d] to have been
committed is Homicide as no circumstance would qualify the killing to
murder.
Alfonso-Flores then ruled:
WHEREFORE, in view of the foregoing, it is hereby recommended that:
1. An information be filed with the proper court charging Santiago,
Servillano and Martin all surnamed Yabut, and one John
Doe alias Danny as conspirators in the crime of Homicide;
2. The case be dismissed against accused Evelino David, Justino
Mandap a.k.a. Casti David, Francisco Yambao, Juan
Magat, Arturo Naguit, Bladimir Dimatulac, Fortunato
Mallari, Aniano Magnaye, Gilberto Malabanan, Jesus dela
Cruz and Joselito Miranda.
Bail of P20,000.00 for each of the accused is likewise recommended.
The Resolution discloses that Alfonso-Flores conducted a hearing on 11
January 1996 and clarificatory questions were propounded only to Peter Paul
Dimatulac.
 On 23 February 1996, before the Information for homicide was filed,
complainants, herein petitioners, appealed the resolution of Alfonso-Flores to the
Secretary of the Department of Justice (DOJ).[10] They alleged in their appeal that:
1. THE ASSISTANT PROVINCIAL PROSECUTOR NOT ONLY ERRED
IN RULING THAT THERE WAS NO TREACHERY TO QUALIFY
THE CRIME TO MURDER, BUT LIKEWISE ERRED IN NOT
APPRECIATING THE PRESENCE OF OTHER QUALIFYING
CIRCUMSTANCES, TO WIT:
A. THAT THE ACCUSED COMMITTED THE CRIME WITH THE
AID OF ARMED MEN AND WITH THE USE OF A
PERSON TO INSURE OR AFFORD IMPUNITY;
B. THAT THE CRIME WAS COMMITTED IN CONSIDERATION OF
A PRICE, REWARD, OR PROMISE;
C. THAT THE CRIME WAS COMMITTED ON THE OCCASION OF
A DESTRUCTIVE CYCLONE, WHEN THE SUPER-
TYPHOON ROSING WAS RAGING ON NOVEMBER 3,
1995;
D. THAT THE CRIME WAS COMMITTED WITH EVIDENT
PREMEDITATION;
2. THAT THE HONORABLE INVESTIGATING ASSISTANT
PROSECUTOR ERRED IN DISMISSING THE COMPLAINT
AGAINST FORTUNATO MALLARI AND FRANCISCO YAMBAO BY
RULING OUT CONSPIRACY WITH THE YABUT BROTHERS
AS AGAINST FORTUNATO MALLARI AND NOT CHARGING
FRANCISCO YAMBAO AS AN ACCESSORY TO MURDER.
To refute Alfonso-Flores finding that the means of execution were not
deliberately adopted, petitioners asserted that the meeting of the accused and the
victim was not accidental as the former purposely searched for the victim at the
height of a typhoon, while accused Mayor Santiago Yabut even remarked to his co-
accused Danny, Dikitan mo lang, alam mo na kung ano ang gagawin mo, bahala ka
na (Just stay close to him, you know what to do).Thus, Danny positioned himself
near the stairs to goad the victim to come out of his house, while Fortunato Mallari
represented to the deceased that the latter was being invited by a certain General
Ventura. When the victim declined the invitation by claiming he was sick, accused
Servillano Yabut persuaded the victim to come down by saying, [T]o settle this
matter, just apologize to the Mayor who is in the truck. In view of that enticement,
the victim came down, while Danny waited in ambush. To emphasize the accuseds
resolve to kill the deceased, petitioners further narrated that when the deceased ran
away after the first shot, the gunman still pursued him, while Mayor Santiago Yabut,
who was a doctor, kept away at a safe distance and told everyone in the
truck, Tama na, bilisan ninyo, (Thats enough, move quickly) without giving medical
assistance to the deceased and without exerting any effort to arrest the gunman.
The Office of the Provincial Prosecutor of Pampanga was furnished with a
copy of the Appeal.
On 26 February 1996, Provincial Prosecutor Jesus Y. Manarang issued a
Resolution[11] ordering the release of accused Evelino David, Justino Mandap, Juan
Magat and Arturo Naguit (who were then detained) in view of the aforementioned
resolution of Alfonso-Flores, which, as stated in the order, the Provincial Prosecutor
approved on February 7, 1996.
On 28 February 1996, an Information[12] for Homicide, signed by Assistant
Provincial Prosecutor Flores and Provincial Prosecutor Jesus Y. Manarang, was
filed before Branch 55 of the Regional Trial Court (RTC) in Macabebe, Pampanga,
against the YABUTs and John Doe alias Danny Manalili and docketed as Criminal
Case No. 96-1667(M). The accusatory portion of the information read as follows:
That on or about the 3rd day of November, 1995, in the municipality of
Masantol, province of Pampanga, Philippines and within the jurisdiction
of this Honorable Court, the above-named accused, conspiring and
confederating together and mutually helping one another, with
deliberate intent to take the life of PO3 Virgilio A. Dimatulac, did then
and there wilfully, unlawfully and feloniously shoot the said PO3 Virgilio
A. Dimatulac on his abdomen with the use of a handgun, thereby
inflicting upon him a gunshot wound which cause[d] the death of the
said victim.
All contrary to law.
The Information, although dated 29 January 1996 was signed by Provincial
Prosecutor Manarang on 2/27/96, i.e., a day before its filing in court.
On 28 February 1996, Judge Reynaldo V. Roura, presiding judge of Branch
55, approved the cash bonds of the YABUTs, each in the amount of P20,000.00,
and recalled the warrants for their arrest.[13]
 On 29 February 1996, Atty. Amado Valdez, who had entered his appearance
as private prosecutor, filed two (2) motions with the trial court: (1) a Motion to Issue
Hold Departure Order Against All Accuseds [14] [sic]; and an (2) Urgent Motion to
Defer Proceedings,[15] copies of which were furnished the Office of the Provincial
Prosecutor of Pampanga. The second motion was grounded on the pendency of the
appeal before the Secretary of Justice and a copy thereof was attached to the
motion. Judge Roura set the motions for hearing on 8 March 1996. [16]
On 7 March 1996, Judge Roura ordered the arrest of the remaining accused,
Danny Manalili.[17]
[18]
On 8 March 1996, the YABUTs filed their opposition  to the Motion to Issue
Hold Departure Order and the Motion to Defer Proceedings. The YABUTs asserted
that, as to the first, by posting bail bonds, they submitted to the jurisdiction of the
trial court and were bound by the condition therein to surrender themselves
whenever so required by the court, and to seek permission from the court should
any one of them desire to travel; and, as to the second, the pendency of the appeal
before the Secretary of Justice was not a ground to defer arraignment; moreover,
the trial court had to consider their right to a speedy trial, especially since there was
no definite date for the resolution of the appeal. Then invoking this Courts rulings
in Crespo v. Mogul[19]and Balgos v. Sandiganbayan,[20]  the YABUTs further asserted
that petitioners should have filed a motion to defer the filing of the information for
homicide with the Office of the Provincial Prosecutor, or sought, from the Secretary
of Justice, an order directing the Provincial Prosecutor to defer the filing of the
information in court.
In a Reply[21] to the opposition, the private prosecution, citing Section 20 of
Rule 114 of the Rules of Court, insisted on the need for a hold-departure order
against the accused; argued that the accuseds right to a speedy trial would not be
impaired because the appeal to the Secretary of Justice was filed pursuant to
Department Order No. 223 of the DOJ and there was clear and convincing proof
that the killing was committed with treachery and other qualifying circumstances not
absorbed in treachery; and contended that the accuseds invocation of the right to a
speedy trial was inconsistent with their filing of various dilatory motions during the
preliminary investigation. The YABUTs filed a Rejoinder[22] to this Opposition.
On 26 March 1996, Judge Roura deferred resolution of the Motion to Issue a
Hold Departure Order until such time that all the accused who are out on bail are
arraigned, but denied the Motion to Defer Proceedings as he found no compelling
reason therefor, considering that although the appeal was filed on 23 February
1996, the private prosecution has not shown any indication that [the] appeal was
given due course by the Secretary of Justice. Judge Roura also set the arraignment
of the accused on 12 April 1996.[23]
It would appear that the private prosecution moved to reconsider the order
denying the Motion to Defer Proceedings since, on 12 April 1996, Judge Roura
issued an Order[24] giving the private prosecutor ten (10) days from today within
which to file a petition for certiorari questioning the order of the Court denying his
motion for reconsideration of the order of March 26, 1996. Arraignment was then
reset to 3 May 1996.
On 19 April 1996, petitioners filed a motion to inhibit Judge Roura [25] from
hearing Criminal Case No. 96-1667(M) on the ground that he: (a) hastily set the
case for arraignment while the formers appeal in the DOJ was still pending
evaluation; and (b) prejudged the matter, having remarked in open court that there
was nothing in the records of the case that would qualify the case into Murder. At
the same time, petitioners filed a petition for prohibition [26]with the Court of Appeals
docketed therein as CA-G.R. SP No. 40393, to enjoin Judge Roura from proceeding
with the arraignment in Criminal Case No. 96-1667(M).
On 24 April 1996, Public Prosecutor Olimpio R. Datu filed a Manifestation and
Comment[27] with the trial court wherein he opposed the motion to inhibit Judge
Roura; manifested that there is nothing in the record which shows that the subject
killing is qualified into murder; and announced that he will no longer allow the private
prosecutor to participate or handle the prosecution of [the] case in view of the latters
petition to inhibit Judge Roura.
On 29 April 1996, Judge Roura voluntarily inhibited himself and ordered the
case transferred to Branch 54 of the RTC, presided over by herein public
respondent Judge Sesinando Villon.[28]
On 30 April 1996, the Branch Clerk of Court of Branch 54 of the RTC received
the record of Criminal Case No. 96-1667(M).[29]
On 30 April 1996, petitioners filed with the trial court a
Manifestation[30] submitting, in connection with their Motion to Defer Proceedings
and Motion to Inhibit Judge Roura, documentary evidence to support their
contention that the offense committed was murder, not homicide. The documents
which they claimed were not earlier submitted by the public prosecution were the
following:
a. Counter-Affidavit of SPO1 Gilberto D. Malabanan.
b. Sinumpaang Salaysay of Vladimir Yumul y Dimatulac.
c. Counter-Affidavit of Francisco I. Yambao.
 d. Counter-Affidavit of SPO2 Fortunato Mallari.
e. Sinumpaang Salaysay of Aniano Magnaye.
f. Sinumpaang Salaysay of Leopoldo Soriano.
g. Transcript of Stenographic Notes of the Preliminary Investigation
of Criminal Case No. 95-360, containing the testimony of:
a. Peter Paul Dimatulac
b. Vladimir D. Yumul
c. SPO1 Gilberto Malabanan
d. PO3 Alfonso Canilao
h. Investigation Report- dated November 4, 1995.
i. Dying declaration of Virgilio Dimatulac.
j. Sketch
k. Unscaled Sketch
Likewise on 30 April 1996, the Court of Appeals promulgated, in CA-G.R. SP
No. 40393, a Resolution[31] directing respondent therein to file his comment to the
petition within ten days from notice and to show cause within the same period why
no writ of preliminary injunction should be issued as prayed for in the
petition. However, the Court of Appeals deferred action on the prayer for a
temporary restraining order until after the required comment [was] submitted.
[32]
On 3 May 1996, petitioners filed an Ex-Parte Manifestation  with the RTC,
furnishing the trial court with a copy of the aforementioned resolution of the Court of
Appeals and drawing the attention of the trial court to the rulings of this Court
in Valdez vs. Aquilisan, (133 SCRA 150), Galman vs. Sandiganbayan, and Eternal
Gardens Memorial Park Corp. vs. Court of Appeals  as well as the decision in Paul
G. Roberts vs. The Court of Appeals.
On 3 May 1996, Judge Villon issued an order resetting arraignment of the
accused to 20 May 1996.[33] On the latter date, the YABUTs each entered a plea of
not guilty.[34]
Alarmed by the conduct of arraignment, petitioners filed, on 27 May 1996, an
Urgent Motion to Set Aside Arraignment, [35] citing the resolution of 30 April 996 of
the Court of Appeals in CA-G.R. SP No. 40393 which, inter alia, deferred resolution
on the application for a temporary restraining order until after the required comment
is submitted by the respondent; stressed that the filing of the information for the
lesser offense of homicide was clearly unjust and contrary to law in view of the
unquestionable attendance of circumstances qualifying the killing to murder; and
asserted that a number of Supreme Court decisions supported suspension of the
proceedings in view of the pendency of their appeal before the DOJ.
On 31 May 1997, Judge Villon issued an Order [36] directing the accused to file
their comment on the Urgent Motion to Set Aside Arraignment within fifteen days
from notice.
In a letter[37] addressed to the Provincial Prosecutor dated 7 June 1996, public
respondent Secretary Teofisto Guingona of the DOJ resolved the appeal in favor of
petitioners. Secretary Guingona ruled that treachery was present and directed the
Provincial Prosecutor of San Fernando, Pampanga to amend the information filed
against the accused from homicide to murder, and to include Fortunato Mallari as
accused in the amended information. The findings and conclusions of Secretary
Guingona read as follows:
Contrary to your findings, we find that there is treachery that attended
the killing of PO3 Dimatulac. Undisputedly, the victim was suddenly
shot while he was descending the stairs. The attack was unexpected as
the victim was unarmed and on his way to make peace with Mayor
Yabut, he was unsuspecting so to speak. From the circumstances
surrounding his killing, PO3 Dimatulac was indeed deprived of an
opportunity to defend himself or to retaliate.
Corollarily, we are also convinced that such mode of attack was
consciously and deliberately adopted by the respondents to ensure the
accomplishment of their criminal objective. The admission of
respondent Malabanan is replete with details on how the principal
respondent, Mayor Yabut, in conspiracy with the assailant and others,
had consciously and deliberately adopted means to ensure the
execution of the crime.According to him, while they were on their way to
the victims house, Mayor Yabut already instructed Danny, the assailant,
that, Dikitan mo lang, alam no na king ano ang gagawin mo, bahala ka
na. This explains why Danny positioned himself near the stairs of the
victims house armed with a handgun, such positioning was precisely
adopted as a means to ensure the accomplishment of their evil design
and Mayor Yabut ordered nobody else but Danny to shoot the victim
while descending the stairs as his position was very strategic to ensure
the killing of the victim.
As has been repeatedly held, to constitute treachery, two conditions
must be present, to wit: (1) employment of means of execution that
gives the person [attacked] no opportunity to defend himself or retaliate;
and (2) the means of execution were deliberately or consciously
adopted (People vs. Talaver, 230 SCRA 281 [1994]). In the case at bar,
these two (2) requisites are present as established from the foregoing
 discussion. Hence, there being a qualifying circumstance of treachery,
the crime committed herein is murder, not homicide (People vs.
Gapasin, 231 SCRA 728 [1994]).
Anent the alleged participation of respondents Fortunato Mallari and
Francisco Yambao, we find sufficient evidence against Mallari as part of
the conspiracy but not against Yambao. As can be gleaned from the
sworn-statement of Yambao, which appears to be credible, Mallari tried
also to persuade the victim to go with them, using as a reason that he
(victim) was being invited by General Ventura. He was also seen trying
to fix the gun which was used in killing the victim. These actuations are
inconsistent with the claim that his presence at the crime scene was
merely passive.
On the other hand, we find credible the version and explanation of
Yambao. Indeed, under the obtaining circumstances, Yambao had no
other option but to accede to the request of Mayor Yabut to provide
transportation to the assailant. There being an actual danger to his life
then, and having acted under the impulse of an uncontrollable fear,
reason dictates that he should be freed from criminal liability. [38]
The YABUTs moved to reconsider the resolution, [39] citing Section 4 of
Administrative/Administration Order No. 223 of the DOJ. [40]
In an Ex-Parte Manifestation[41] dated 21 June 1996, petitioners called the trial
courts attention to the resolution of the Secretary of Justice, a copy of which was
attached thereto. Later, in a Manifestation and Motion [42] dated 1 July 1996,
petitioners asked the trial court to grant their motion to set aside
arraignment. Attached thereto was a copy of the Manifestation and Motion [43] of the
Solicitor General dated 18 June 1996 filed with the Court of Appeals in CA-G.R. SP
No. 40393 wherein the Solicitor General joined cause with petitioners and prayed
that in the better interest of justice, [the] Petition for Prohibition be GRANTED and a
writ of prohibition be ISSUED forthwith. In support of said prayer, the Solicitor
General argued:
2. There is merit to the cause of petitioners. If the Secretary of
Justice would find their Appeal meritorious, the Provincial
Prosecutor would be directed to upgrade the Information
to Murder and extreme prejudice if not gross injustice
would thereby have been avoided.
3 Consequently, the undersigned counsel interpose no objection
to the issuance of a writ of prohibition enjoining
respondent Judge from holding further proceedings in
Criminal Case No. 96-1667-M, particularly in holding the
arraignment of the accused, pending resolution of the
Appeal with the Secretary of Justice.
The YABUTs opposed[44] petitioners Manifestation and Motion dated 1 July 1996
because they had already been arraigned and, therefore, would be placed in double
jeopardy; and that the public prosecutor -- not the private prosecutor -- had control
of the prosecution of the case.
In his letter[45] dated 1 July 1996 addressed to the Provincial Prosecutor of
Pampanga, the Secretary of Justice set aside his order to amend the information
from homicide to murder considering that the appeal was rendered moot and
academic by the arraignment of the accused for homicide and their having entered
their pleas of not guilty. The Secretary stated:
Considering that Santiago Yabut, Servillano Yabut and Martin
Yabut had already been arraigned on May 20, 1996 and had pleaded
not guilty to the charge of homicide, as shown by a copy of the court
order dated May 20, 1996, the petition for review insofar as the
respondents-Yabut are concerned has been rendered moot and
academic.
However, the Secretary reiterated that Fortunato Mallari should be included in the
information for homicide.
On 30 July 1996, Public Prosecutor Jaime Bustos filed a Motion for Leave to
Amend Information and to Admit Amended Information. [46] The Amended
Information[47] merely impleaded Fortunato Mallari as one of the accused.
In his Order[48] of 1 August 1996, Judge Villon denied petitioners motion to set
aside arraignment, citing Section 4, DOJ Department Order No. 223, and the letter
of the Secretary of Justice of 1 July 1996. Petitioners forthwith moved for
reconsideration[49] of the order, arguing that the Motion to Defer the Proceedings
filed by petitioners was meritorious and did not violate the accuseds right to speedy
trial; and that the DOJ had ruled that the proper offense to be charged was murder
and did not reverse such finding. Petitioners also cited the Solicitor Generals
stand[50] in CA-G.R. SP No. 40393 that holding accuseds arraignment in abeyance
was proper under the circumstances. Finally, petitioners contended that in
proceeding with the arraignment despite knowledge of a petition for prohibition
pending before the Court of Appeals, the trial court violated Section 3(d), Rule 71 of
the Rules of Court on indirect contempt. The YABUTs opposed the motion on the
ground that it raised no argument which had not yet been resolved. [51]
On 3 September 1996, petitioners filed a Motion to Defer Arraignment of
Accused Fortunato Mallari,[52] which the trial court granted in view of petitioners
motion for reconsideration of the courts order denying petitioners motion to set aside
private respondents arraignment.[53] As expected, Mallari moved to reconsider the
trial courts order and clamored for consistency in the trial courts rulings. [54]
In an order[55] dated 15 October 1996, Judge Villon denied reconsideration of
the order denying petitioners motion to set aside arraignment, citing the YABUTs
right to a speedy trial and explaining that the prosecution of an offense should be
under the control of the public prosecutor, whereas petitioners did not obtain the
conformity of the prosecutor before they filed various motions to defer
proceedings. Considering said order, Judge Villon deemed accused Mallaris motion
for reconsideration moot and academic.  [56]
[57]
On 16 October 1996, the Court of Appeals promulgated its decision  in CA-
G.R. SP No. 40393 dismissing the petition therein for having become moot and
academic in view of Judge Rouras voluntary inhibition, the arraignment of the
YABUTs and the dismissal, by the Secretary of Justice, of petitioners appeal as it
had been mooted by said arraignment.
Judge Villon was later detailed to Branch 24 of the Regional Trial Court of
Manila, and Judge Roura was ordered by the Supreme Court to preside over cases
pending in Branch 54 of the Regional Trial Court of Macabebe, Pampanga, which
was previously presided over by Judge Villon.[58] Judge Roura informed the Office of
the Court Administrator and this Court that he had already inhibited himself from
hearing Criminal Case No. 96-1667(M).[59]
On 28 December 1996, petitioners filed the instant Petition
for Certiorari/Prohibition and Mandamus. They urge this Court to reverse the order
of respondent Judge denying their Motion to Set Aside Arraignment; set aside
arraignment of private respondents; order that no further action be taken by any
court in Criminal Case No. 96-1667(M) until this petition is resolved; and order
respondents Secretary of Justice and the prosecutors concerned to amend the
information from homicide to murder.
Petitioners insist that the killing of PO3 Virgilio Dimatulac was attended by
treachery since private respondents tricked the victim into coming out of his house
and then shot him while he was going down the stairs. There was, petitioners claim,
an orchestrated effort on the part of [private respondents] to manipulate the rules on
administrative appeals with the end in view of evading prosecution for the [non-
bailable] offense of murder, as shown by the following events or circumstances:
(1) Assistant Provincial Prosecutor Alfonso-Flores downgraded the
nature of the crime committed to homicide, a bailable offense, on
strength of a motion for reinvestigation filed by the YABUTs who
had not yet been arrested.
(2) Respondent Mayor and his companions returned to Minalin after the
killing and went into hiding for four (4) months until the offense
charged was downgraded.
(3) The information for homicide was nevertheless filed despite notice to
the Office of the Provincial Prosecutor of the appeal filed with the
Secretary of Justice and request to defer any action on the case.
(4) The Office of the Public Prosecutor of Pampanga disallowed the
private prosecutor from further participating in the case.
(5) Judge Roura denied the motion to defer proceedings and declared in
open court that there was no prima facie case for murder,
notwithstanding the pendency of petitioners appeal with respondent
Secretary of Justice.
(6) Even before receipt by petitioners of Judge Rouras order inhibiting
himself and the order regarding the transfer of the case to Branch
54, public respondent Judge Villon set the case for arraignment and,
without notice to petitioners, forthwith arraigned the accused on the
information for homicide on 20 May 1996, despite the pendency of
the petition for prohibition before the Court of Appeals and of the
appeal before the DOJ.
(7) The Pampanga Provincial Prosecutors Office did not object to the
arraignment nor take any action to prevent further proceedings on
the case despite knowledge of the pendency of the appeal.
(8) The Provincial Prosecutor did not comply with the resolution of 7
June 1996 of the Secretary of Justice directing the amendment of
the information to charge the crime of murder.
Petitioners argue that in light of Roberts, Jr. v. Court of Appeals,[60] respondent
Judge acted in excess of his jurisdiction in proceeding with private respondents'
arraignment for homicide and denying petitioners' motion to set aside
arraignment. Moreover, although respondent Judge Villon was not the respondent in
CA-G.R. SP No. 40393, he should have deferred the proceedings just the same as
the very issue in said case was whether or not the RTC could proceed with the
arraignment despite the pending review of the case by respondent Secretary of
Justice. Further, Judge Villon unjustly invoked private respondents right to a speedy
trial, after a lapse of barely three (3) months from the filing of the information on 23
February 1996; overlooked that private respondents were estopped from invoking
said right as they went into hiding after the killing, only to resurface when the charge
was reduced to homicide; and failed to detect the Provincial Prosecutor's bias in
favor of private respondents. Judge Villon should have been more circumspect as
he knew that by proceeding with the arraignment, the appeal with the DOJ would be
rendered technically nugatory.
Finally, petitioners submit that the DOJ rule prohibiting appeals from
resolutions of prosecutors to the Secretary of Justice once the accused had already
been arraigned applies only to instances where the appellants are the accused,
since by submitting to arraignment, they voluntarily abandon their appeal.
In their comment, private respondents contend that no sufficient legal
justification exists to set aside private respondents' arraignment, it having already
been reset twice from 12 April 1996 to 3 May 1996, due to petitioners pending
appeal with the DOJ; and from 3 May 1996 to 20 May 1996, due to the transfer of
this case to Branch 54. Moreover, as of the latter date, the DOJ had not yet resolved
petitioners appeal and the DOJ did not request that arraignment be held in
abeyance, despite the fact that petitioners appeal had been filed as early as 23
February 1996, at least 86 days prior to private respondents arraignment. They
point out that petitioners did not move to reconsider the RTC's 26 March 1996
denial of the Motion to Defer, opting instead for Judge Rouras recusal and recourse
to the Court of Appeals, and as no restraining order was issued by the Court of
Appeals, it was but proper for respondent Judge to proceed with the arraignment of
private respondents, to which the public and private prosecutors did not object.
Private respondents further argue that the decision of respondent Secretary,
involving as it did the exercise of discretionary powers, is not subject to judicial
review. Under the principle of separation of powers, petitioners' recourse should
have been to the President. While as regards petitioners plea that the Secretary be
compelled to amend the information from homicide to murder, private respondents
submit that mandamus does not lie, as the determination as to what offense was
committed is a prerogative of the DOJ, subject only to the control of the President.
As regards DOJ Department Order No. 223, private respondents theorize that
appeal by complainants is allowed only if the complaint is dismissed by the
prosecutor and not when there is a finding of probable cause, in which case, only
the accused can appeal. Hence, petitioners appeal was improper.
Finally, private respondents stress the fact that petitioners never appealed the
withdrawal by the public prosecutor of the private prosecutor's authority to handle
the case.
In its comment for the public respondents, the Office of the Solicitor General
(OSG) prays that the petition be denied because: (a) in accordance with Section 4
of DOJ Order No. 223, upon arraignment of the accused, the appeal to the
Secretary of Justice shall be dismissed motu proprio; (b) the filing of the information
for homicide was in compliance with the directive under Section 4(2), D.O. No.
223, i.e., an appeal or motion for reinvestigation from a resolution finding probable
cause shall not hold the filing of the information in court; (c) the trial court even
accommodated petitioners by initially deferring arraignment pending resolution by
the Court of Appeals of the petition for prohibition, and since said Court did not issue
any restraining order, arraignment was properly had; and (d) reliance on Roberts is
misplaced, as there, accused Roberts and others had not been arraigned and
respondent Judge had ordered the indefinite postponement of the arraignment
pending resolution of their petitions before the Court of Appeals and the Supreme
Court.
We now consider the issues enumerated at the outset of this ponencia.
Plainly, the proceedings below were replete with procedural irregularities
which lead us to conclude that something had gone awry in the Office of the
Provincial Prosecutor of Pampanga resulting in manifest advantage to the accused,
more particularly the YABUTs, and grave prejudice to the State and to private
complainants, herein petitioners.
First, warrants for the arrest of the YABUTs were issued by the MCTC, with
no bail recommended for their temporary liberty. However, for one reason or
another undisclosed in the record, the YABUTs were not arrested; neither did they
surrender. Hence, they were never brought into the custody of the law. Yet, Asst.
Provincial Fiscal Alfonso-Reyes, either motu proprio or upon motion of the YABUTs,
conducted a reinvestigation. Since said accused were at large, Alfonso-Reyes
should not have done so. While it may be true that under the second paragraph of
Section 5, Rule 112 of the Rules of Court, the provincial prosecutor may disagree
with the findings of the judge who conducted the preliminary investigation, as here,
this difference of opinion must be on the basis of the review of the record and
evidence transmitted by the judge. Were that all she did, as she had no other option
under the circumstances, she was without any other choice but to sustain the MCTC
since the YABUTs and all other accused, except Francisco Yambao, waived the
filing of their counter-affidavits. Then, further stretching her magnanimity in favor of
the accused, Alfonso-Reyes allowed the YABUTs to submit their counter-affidavits
without first demanding that they surrender because of the standing warrants of
arrest against them. In short, Alfonso-Reyes allowed the YABUTs to make a
mockery of the law in order that they gain their provisional liberty pending trial and
be charged with the lesser offense of homicide.
Second, Alfonso-Reyes recommended a bond of only P20,000.00 for the
YABUTs and co-accused Danny, despite the fact that they were charged with
homicide and they were, at the time, fugitives from justice for having avoided service
of the warrant of arrest issued by the MCTC and having failed to voluntarily
surrender.
Third, Alfonso-Reyes was fully aware of the private prosecutions appeal to the
DOJ from her resolution. She could not have been ignorant of the fact that the
appeal vigorously assailed her finding that there was no qualifying circumstance
attending the killing, and that the private prosecution had convincing arguments to
support the appeal. The subsequent resolution of the Secretary of Justice confirmed
the correctness of the private prosecutions stand and exposed the blatant errors of
Alfonso-Reyes.
Fourth, despite the pendency of the appeal, Alfonso-Reyes filed the
Information for homicide on 28 February 1996. It is interesting to note that while the
information was dated 29 January 1996, it was approved by the Provincial
Prosecutor only on 27 February 1996. This simply means that the Office of the
Prosecutor was not, initially, in a hurry to file the Information. No undue prejudice
could have been caused to the YABUTs if it were filed even later for the YABUTs
were still at large; in fact, they filed their bonds of P20,000.00 each only after the
filing of the Information. If Alfonso-Flores was extremely generous to the YABUTs,
no compelling reason existed why she could not afford the offended parties the
same courtesy by at least waiting for instructions from the Secretary of Justice in
view of the appeal, if she were unwilling to voluntarily ask the latter for
instructions. Clearly, under the circumstances, the latter course of action would have
been the most prudent thing to do.
Fifth, as if to show further bias in favor of the YABUTs, the Office of the
Provincial Prosecutor of Pampanga did not even bother to motu proprioinform the
trial court that the private prosecution had appealed from the resolution of Alfonso-
Flores and had sought, with all the vigour it could muster, the filing of an information
for murder, as found by the MCTC and established by the evidence before it.
Unsatisfied with what had been done so far to accommodate the YABUTs, the
Office of the Provincial Prosecutor did not even have the decency to agree to defer
arraignment despite its continuing knowledge of the pendency of the appeal. This
amounted to defiance of the DOJs power of control and supervision over
prosecutors, a matter which we shall later elaborate on. Moreover, in an
unprecedented move, the trial prosecutor, Olimpio Datu, had the temerity, if not
arrogance, to announce that he will no longer allow the private prosecutor to
participate or handle the prosecution of [the] case simply because the private
prosecution had asked for the inhibition of Judge Roura. Said prosecutor forgot that
since the offended parties here had not waived the civil action nor expressly
reserved their right to institute it separately from the criminal action, then they had
the right to intervene in the criminal case pursuant to Section 16 of Rule 110 of the
Rules of Court.
It is undebatable that petitioners had the right to appeal to the DOJ from the
resolution of Alfonso-Flores. The last paragraph of Section 4 of Rule 112 of the
Rules of Court provides:
If upon petition by a proper party, the Secretary of Justice reverses the
resolution of the provincial or city fiscal or chief state prosecutor, he
shall direct the fiscal concerned to file the corresponding information
without conducting another preliminary investigation or to dismiss or
move for the dismissal of the complaint or information.
It is clear from the above, that the proper party referred to therein could be either the
offended party or the accused.
More importantly, an appeal to the DOJ is an invocation of the Secretarys
power of control over prosecutors. Thus, in Ledesma v. Court of Appeals,[61] we
emphatically held:
Decisions or resolutions of prosecutors are subject to appeal to the
secretary of justice who, under the Revised Administrative Code,
[62]
exercises the power of direct control and supervision over said
prosecutors; and who may thus affirm, nullify, reverse or modify their
rulings.
Section 39, Chapter 8, Book IV in relation to Section[s] 5, 8, and 9,
Chapter 2, Title III of the Code gives the secretary of justice supervision
and control over the Office of the Chief Prosecutor and the Provincial
and City Prosecution Offices. The scope of his power of supervision
and control is delineated in Section 38, paragraph 1, Chapter 7, Book
IV of the Code:
(1) Supervision and Control. -- Supervision and control
shall include authority to act directly whenever a specific
function is entrusted by law or regulation to a subordinate;
direct the performance of duty; restrain the commission of
acts; review, approve, reverse or modify acts and decisions
of subordinate officials or units; x x x x.
Supplementing the aforequoted provisions are Section 3 of R.A. 3783
and Section 37 of Act 4007, which read:
Section 3. x x x x
The Chief State Prosecutor, the Assistant Chief State
Prosecutors, the Senior State Prosecutors, and the State
Prosecutors shall x x x perform such other duties as may
be assigned to them by the Secretary of Justice in the
interest of public service.
xxx xxx xxx
Section 37. The provisions of the existing law to the
contrary notwithstanding, whenever a specific power,
authority, duty, function, or activity is entrusted to a chief of
bureau, office, division or service, the same shall be
understood as also conferred upon the proper Department
Head who shall have authority to act directly in pursuance
thereof, or to review, modify, or revoke any decision or
action of said chief of bureau, office, division or service.
Supervision and control of a department head over his subordinates
have been defined in administrative law as follows:
In administrative law, supervision means overseeing or the
power or authority of an officer to see that subordinate
officers perform their duties. If the latter fail or neglect to
fulfill them, the former may take such action or step as
prescribed by law to make them perform such
duties. Control, on the other hand, means the power of an
officer to alter or modify or nullify or set aside what a
subordinate officer had done in the performance of his
duties and to substitute the judgment of the former for that
of the latter.
Review as an act of supervision and control by the justice secretary
over the fiscals and prosecutors finds basis in the doctrine of
exhaustion of administrative remedies which holds that mistakes,
abuses or negligence committed in the initial steps of an administrative
activity or by an administrative agency should be corrected by higher
administrative authorities, and not directly by courts. As a rule, only
after administrative remedies are exhausted may judicial recourse be
allowed.
DOJ Order No. 223 of 30 June 1993 recognizes the right of both the offended
parties and the accused to appeal from resolutions in preliminary investigations or
reinvestigations, as provided for in Section 1 and Section 4, respectively. Section 1
thereof provides, thus:
SECTION 1. What May Be Appealed. -- Only resolutions of the Chief
State Prosecutor/Regional State Prosecutor/Provincial or City
Prosecutor dismissing a criminal complaint may be the subject of an
appeal to the Secretary of Justice except as otherwise provided in
Section 4 hereof.
While the section speaks of resolutions dismissing a criminal complaint, petitioners
herein were not barred from appealing from the resolution holding that only
homicide was committed, considering that their complaint was for murder. By
holding that only homicide was committed, the Provincial Prosecutors Office of
Pampanga effectively dismissed the complaint for murder. Accordingly, petitioners
could file an appeal under said Section 1. To rule otherwise would be to forever bar
redress of a valid grievance, especially where the investigating prosecutor, as in this
case, demonstrated what unquestionably appeared to be unmitigated bias in favor
of the accused. Section 1 is not to be literally applied in the sense that appeals by
the offended parties are allowed only in cases of dismissal of the complaint,
otherwise the last paragraph of Section 4, Rule 112, Rules of Court would be
meaningless.
We cannot accept the view of the Office of the Solicitor General and private
respondents that Section 4 of DOJ Department Order No. 223 is the controlling rule;
hence, pursuant to the second paragraph thereof, the appeal of petitioners did not
hold the filing of the information. As stated above, Section 4 applies even to appeals
by the respondents or accused. The provision reads:
 SEC. 4. Non-appealable cases. Exceptions. - No appeal may be taken
from a resolution of the Chief State Prosecutor/Regional State
Prosecutor/Provincial or City Prosecutor finding probable cause except
upon a showing of manifest error or grave abuse of
discretion.Notwithstanding the showing of manifest error or grave abuse
of discretion, no appeal shall be entertained where the appellant had
already been arraigned. If the appellant is arraigned during the
pendency of the appeal, said appeal shall be dismissed motu proprio by
the Secretary of Justice.
An appeal/motion for reinvestigation from a resolution finding probable
cause, however, shall not hold the filing of the information in court.
(underscoring supplied)
The underlined portion indisputably shows that the section refers to appeals
by respondents or accused. So we held in Marcelo v. Court of Appeals[63]that
nothing in the ruling in Crespo v. Mogul,[64] reiterated in Roberts v. Court of Appeals,
[65]
 forecloses the power or authority of the Secretary of Justice to review resolutions
of his subordinates in criminal cases despite an information already having been
filed in court. The Secretary of Justice is only enjoined to refrain, as far as
practicable, from entertaining a petition for review or appeal from the action of the
prosecutor once a complaint or information is filed in court. In any case, the grant of
a motion to dismiss, which the prosecution may file after the Secretary of Justice
reverses an appealed resolution, is subject to the discretion of the
court. In Roberts we went further by saying that Crespo could not have foreclosed
said power or authority of the Secretary of Justice without doing violence to, or
repealing, the last paragraph of Section 4, Rule 112 of the Rules of Court which is
quoted above.
Indubitably then, there was, on the part of the public prosecution, indecent
haste in the filing of the information for homicide, depriving the State and the
offended parties of due process.
As to the second issue, we likewise hold that Judge Roura acted with grave
abuse of discretion when, in his order of 26 March 1996, [66] he deferred resolution on
the motion for a hold departure order until such time that all the accused who are
out on bail are arraigned and denied the motion to defer proceedings for the reason
that the private prosecution has not shown any indication that [the] appeal was
given due course by the Secretary of Justice.Neither rhyme nor reason or even
logic, supports the ground for the deferment of the first motion. Precisely, immediate
action thereon was called for as the accused were out on bail and, perforce, had all
the opportunity to leave the country if they wanted to. To hold that arraignment is a
prerequisite to the issuance of a hold departure order could obviously defeat the
purpose of said order. As to the second motion, Judge Roura was fully aware of the
pendency of petitioners appeal with the DOJ, which was filed as early as 23
February 1996. In fact, he must have taken that into consideration when he set
arraignment of the accused only on 12 April 1996, and on that date, after denying
petitioners motion to reconsider the denial of the motion to defer proceedings, he
further reset arraignment to 3 May 1996 and gave petitioners ten (10) days within
which to file a petition for certiorari to question his denial of the motion to defer and
of the order denying the reconsideration. In any event, the better part of wisdom
suggested that, at the very least, heshould have asked petitioners as regards the
status of the appeal or warned them that if the DOJ would not decide the appeal
within a certain period, then arraignment would proceed.
Petitioners did in fact file the petition with the Court of Appeals on 19 April
1996 and, at the same time, moved to inhibit Judge Roura. These twin moves
prompted Judge Roura to voluntarily inhibit himself from the case on 29 April
1996[67] and to transfer the case to the branch presided by public respondent Judge
Villon. The latter received the record of the case on 30 April 1996. From that time
on, however, the offended parties did not receive any better deal. Acting with
deliberate dispatch, Judge Villon issued an order on 3 May 1996 setting arraignment
of the accused on 20 May 1996. If Judge Villon only perused the record of the case
with due diligence, as should be done by anyone who has just taken over a new
case, he could not have helped but notice: (a) the motion to defer further
proceedings; (2) the order of Judge Roura giving petitioners ten days within which to
file a petition with the Court of Appeals; (3) the fact of the filing of such petition in
CA-G.R. SP No. 40393; (4) the resolution of the Court of Appeals directing
respondents to comment on the petition and show cause why the application for a
writ of preliminary injunction should not be granted and deferring resolution of the
application for a temporary restraining order until after the required comment was
filed, which indicated a prima facie showing of merit; (5) the motion to inhibit Judge
Roura precisely because of his prejudgment that the crime committed was merely
homicide; (6) Judge Rouras subsequent inhibition; (7) various pieces of
documentary evidence submitted by petitioners on 30 April 1996 supporting a
charge of murder, not homicide; and (8) most importantly, the pending appeal with
the DOJ.
All the foregoing demanded from any impartial mind, especially that of Judge
Villon, a cautious attitude as these were unmistakable indicia of the probability of a
miscarriage of justice should arraignment be precipitately held. However, Judge
Villon cursorily ignored all this. While it may be true that he was not bound to await
the DOJs resolution of the appeal, as he had, procedurally speaking, complete
control over the case and any disposition thereof rested on his sound discretion,
[68]
 his judicial instinct should have led him to peruse the documents submitted on 30
April 1996 and to initially determine, for his own enlightenment with serving the ends
of justice as the ultimate goal, if indeed murder was the offense committed; or, he
could have directed the private prosecutor to secure a resolution on the appeal
within a specified time. Given the totality of circumstances, Judge Villon should have
heeded our statement in Marcelo[69] that prudence, if not wisdom, or at least, respect
for the authority of the prosecution agency, dictated that he should have waited for
the resolution of the appeal then pending before the DOJ. All told, Judge Villon
should not have merely acquiesced to the findings of the public prosecutor.
We do not then hesitate to rule that Judge Villon committed grave abuse of
discretion in rushing the arraignment of the YABUTs on the assailed information for
homicide. Again, the State and the offended parties were deprived of due process.
Up to the level then of Judge Villon, two pillars of the criminal justice system
failed in this case to function in a manner consistent with the principle of
accountability inherent in the public trust character of a public office. Judges Roura
and Villon and prosecutors Alfonso-Flores and Datu need be reminded that it is in
the public interest that every crime should be punished [70] and judges and
prosecutors play a crucial role in this regard for theirs is the delicate duty to see
justice done, i.e., not to allow the guilty to escape nor the innocent to suffer. [71]
Prosecutors must never forget that, in the language of Suarez v. Platon,
[72]
 they are the representatives not of an ordinary party to a controversy, but of a
sovereignty whose obligation to govern impartially is as compelling as its obligation
to govern at all; and whose interest, therefore, in a criminal prosecution is not that it
shall win every case but that justice be done. As such, they are in a peculiar and
every definite sense the servants of the law, whose two-fold aim is that guilt shall
not escape or innocence suffer.
Prosecutors are charged with the defense of the community aggrieved by a
crime, and are expected to prosecute the public action with such zeal and vigor as if
they were the ones personally aggrieved, but at all times cautious that they refrain
from improper methods designed to secure a wrongful conviction. [73] With them lies
the duty to lay before the court the pertinent facts at the judges disposal with strict
attention to punctilios, thereby clarifying contradictions and sealing all gaps in the
evidence, with a view to erasing all doubt from the courts mind as to the accuseds
innocence or guilt.
The judge, on the other hand, should always be imbued with a high sense of
duty and responsibility in the discharge of his obligation to promptly and properly
administer justice.[74] He must view himself as a priest, for the administration of
justice is akin to a religious crusade. Thus, exerting the same devotion as a priest in
the performance of the most sacred ceremonies of religious liturgy, the judge must
render service with impartiality commensurate with the public trust and confidence
reposed in him.[75] Although the determination of a criminal case before a judge lies
within his exclusive jurisdiction and competence,[76] his discretion is not unfettered,
but rather must be exercised within reasonable confines. [77] The judges action must
not impair the substantial rights of the accused, nor the right of the State and
offended party to due process of law.[78]
Indeed, for justice to prevail, the scales must balance; justice is not to be
dispensed for the accused alone. The interests of society and the offended parties
which have been wronged must be equally considered. Verily, a verdict of conviction
is not necessarily a denial of justice; and an acquittal is not necessarily a triumph of
justice, for, to the society offended and the party wronged, it could also mean
injustice.[79] Justice then must be rendered even-handedly to both the accused, on
one hand, and the State and offended party, on the other.
In this case, the abuse of discretion on the part of the public prosecution and
Judges Roura and Villon was gross, grave and palpable, denying the State and the
offended parties their day in court, or in a constitutional sense, due process. As to
said judges, such amounted to lack or excess of jurisdiction, or that their court was
ousted of the jurisdiction in respect thereto, thereby nullifying as having been done
without jurisdiction, the denial of the motion to defer further hearings, the denial of
the motion to reconsider such denial, the arraignment of the YABUTs and their plea
of not guilty.
These lapses by both the judges and prosecutors concerned cannot be taken
lightly. We must remedy the situation before the onset of any irreversible effects. We
thus have no other recourse, for as Chief Justice Claudio Teehankee pronounced
in Galman v. Sandiganbayan:[80]
The Supreme Court cannot permit such a sham trial and verdict and
travesty of justice to stand unrectified. The courts of the land under its
aegis are courts of law and justice and equity. They would have no
reason to exist if they were allowed to be used as mere tools of
injustice, deception and duplicity to subvert and suppress the truth,
instead of repositories of judicial power whose judges are sworn and
committed to render impartial justice to all alike who seek the
enforcement or protection of a right or the prevention or redress of a
wrong, without fear or favor and removed from the pressures of politics
and prejudice.
We remind all members of the pillars of the criminal justice system that theirs is not WHEREFORE, the petition is GRANTED. The orders of Judge Reynaldo
a mere ministerial task to process each accused in and out of prison, but a noble Roura of 26 March 1996 denying the Motion to Defer Proceedings and of 12 April
duty to preserve our democratic society under a rule of law. 1996 denying the motion to reconsider the denial of said Motion to Defer
Proceedings, and the orders of respondent Judge Sesinando Villon of 3 May 1996
Anent the third issue, it was certainly grave error for the DOJ to reconsider its resetting the arraignment to 20 May 1998 and of 15 October 1996 denying the
7 June 1996 resolution, holding that murder was committed and directing the Motion to Set Aside Arraignment in Criminal Case No. 96-1667(M) are declared
Provincial Prosecutor to accordingly amend the information, solely on the basis of VOID and SET ASIDE. The arraignment of private respondents Mayor Santiago
the information that the YABUTs had already been arraigned. In so doing, the DOJ Yabut, Servillano Yabut and Martin Yabut and their separate pleas of not guilty are
relinquished its power of control and supervision over the Provincial Prosecutor and likewise declared VOID and SET ASIDE. Furthermore, the order of public
the Assistant Provincial Prosecutors of Pampanga; and meekly surrendered to the respondent Secretary of Justice of 1 July 1996 is SET ASIDE and his order of 7
latters inappropriate conduct or even hostile attitude, which amounted to neglect of June 1996 REINSTATED.
duty or conduct prejudicial to the best interest of the service, as well as to the undue
haste of Judge Roura and Villon in respect of the arraignment of the YABUTs. The The Office of the Provincial Prosecutor of Pampanga is DIRECTED to comply
sins of omission or commission of said prosecutors and judges resulted, in light of with the order (letter) of the Secretary of Justice of 7 June 1996 by forthwith filing
the finding of the DOJ that the crime committed was murder, in unwarranted benefit with the trial court the amended information for murder. Thereafter the trial court
to the YABUTs and gross prejudice to the State and the offended parties. The DOJ shall proceed in said case with all reasonable dispatch.
should have courageously exercised its power of control by taking bolder steps to
rectify the shocking mistakes so far committed and, in the final analysis, to prevent No pronouncement as to costs.
further injustice and fully serve the ends of justice. The DOJ could have, even if SO ORDERED.
belatedly, joined cause with petitioners to set aside arraignment. Further, in the
exercise of its disciplinary powers over its personnel, the DOJ could have directed Bellosillo, Vitug, Panganiban,  and Quisumbing, JJ.,  concur.
the public prosecutors concerned to show cause why no disciplinary action should
be taken against them for neglect of duty or conduct prejudicial to the best interest
of the service in not, inter alia, even asking the trial court to defer arraignment in
view of the pendency of the appeal, informing the DOJ, from time to time, of the
status of the case, and, insofar as prosecutor Datu was concerned, in disallowing
the private prosecutor from further participating in the case.
Finally, the DOJ should have further inquired into the vicissitudes of the case
below to determine the regularity of arraignment, considering that the appeal was
received by the DOJ as early as 23 February 1996.
We then rule that the equally hasty motu proprio reconsideration of the 7 June
1996 resolution of the DOJ was attended with grave abuse of discretion.
It is settled that when the State is deprived of due process in a criminal case
by reason of grave abuse of discretion on the part of the trial court, the acquittal of
the accused[81] or the dismissal of the case [82] is void, hence double jeopardy cannot
be invoked by the accused. If this is so in those cases, so must it be where the
arraignment and plea of not guilty are void, as in this case as above discussed.
 EN BANC
[G.R. No. 113930. March 5, 1996]
PAUL G. ROBERTS, JR., RODOLFO C. SALAZAR, LUIS LORENZO, SR., LUIS
LORENZO, JR., AMAURY R. GUTIERREZ, BAYANI N. FABIC, JOSE
YULO, JR., ESTEBAN B. PALANNUAYAN, and WONG FONG
FUI, petitioners, vs.  THE COURT OF APPEALS, THE HON. MAXIMIANO
ASUNCION, in his capacity as the Presiding Judge of the Regional Trial
Court, Quezon City, Branch 104, HON. APOLINARIO G. EXEVEA, HON.
HENRICK F. GINGOYON, and HON. PHILIP A. AGUINALDO, in their
capacities as Members of the Department of Judge 349 Committee, and
the CITY PROSECUTOR OF QUEZON CITY, respondents.
ROBERTO DELGADO, petitioner-intervenor.
DECISION
DAVIDE, JR., J.:
We are urged in this petition to set aside (a) the decision of the Court of
Appeals of 28 September 1993 in CA-G.R. SP No. 31226, [1]which dismissed the
petition therein on the ground that it has been mooted with the release by the
Department of Justice of its decision x x x dismissing petitioners petition for review;
(b) the resolution of the said court of 9 February 1994 [2] denying the petitioners
motion to reconsider the decision; (c) the order of 17 May 1993 [3] of respondent
Judge Maximiano C. Asuncion of Branch 104 of the Regional Trial Court (RTC) of
Quezon City in Criminal Case No. Q-93-43198 denying petitioners motion to
suspend proceedings and to hold in abeyance the issuance of the warrants of arrest
and the public prosecutors motion to defer arraignment; and (d) the resolution of 23
July 1993 and 3 February 1994 [4] of the Department of Justice, (DOJ) dismissing
petitioners petition for the review of the Joint Resolution of the Assistant City
Prosecutor of Quezon City and denying the motion to reconsider the dismissal,
respectively.
The petitioners rely on the following grounds for the grant of the reliefs prayed
for in this petition:
I
Respondent Judge acted with grave abuse of discretion when he ordered the arrest
of the petitioners without examining the record of the preliminary investigation and in
determining for himself on the basis thereof the existence of probable cause.
II
The Department of Justice 349 Committee acted with grave abuse of discretion
when it refused to review the City Prosecutors Joint Resolution and dismissed
petitioners appeal therefrom.
III
The Court of Appeals acted with grave abuse of discretion when it upheld the
subject order directing the issuance of the warrants of arrest without assessing for
itself whether based on such records there is probable cause against petitioners.
IV
The facts on record do not establish prima facie  probable cause and Criminal Case
No. Q-93-43198 should have been dismissed.[5]
The antecedents of this petition are not disputed.
Several thousand holders[6] of 349 Pepsi crowns in connection with the Pepsi
Cola Products Phils., Inc.s (PEPSIs) Number Fever Promotion [7] filed with the Office
of the City Prosecutor of Quezon City complaints against the petitioners in their
respective capacities as Presidents or Chief Executive Officers, Chairman of the
Board, Vice-Chairman of the Board, and Directors of PEPSI, and also against other
officials of PEPSI. The complaints respectively accuse the petitioners and the other
PEPSI officials of the following crimes: (a) estafa; (b) violation of R.A. No. 7394,
otherwise known as the Consumer Act of the Philippines; (c) violation of E.O. No.
913;[8] and (d) violation of Act No. 2333, entitled An Act Relative to Untrue,
Deceptive and Misleading Advertisements,  as amended by Act No. 3740.[9]
 After appropriate proceedings, the investigating prosecutor, Ramon M.
Gerona, released on 23 March 1993 a Joint Resolution [10] where he recommended
the filing of an information against the petitioners and others for the violation of
Article 3 18 of the Revised Penal Code and the dismissal of the complaints for the
violation of Article 315, 2(d) of the Revised Penal Code; R.A. No. 7394; Act No.
2333, as amended by Act No. 3740; and E.O. No. 913. The dispositive portion
thereof reads as follows:
In view of all the foregoing, it is recommended that:
1. The attached information be filed against respondents Paul G.
Roberts, Jr., Rodolfo C. Salazar, Rosemarie R. Vera, Luis F.
Lorenzo, Sr., Luis P. Lorenzo, Jr., J. Roberto Delgado, Amaury R.
Gutierrez, Bayani N. Fabic, Jose Yulo, Jr., Esteban B.
Pacannuayan, Jr., Wong Fong Fui, Quintin J. Gomez, Jr. and Chito
V. Gutierrez for estafa under Article 318, Revised Penal Code, while
the complaint for violation of Article 315, 2(d), Revised Penal Code
against same respondents Juanito R. Ignacio, R. Sobong, R.O.
Sinsuan, M.P. Zarsadias, L.G. Dabao, Jr., R.L. Domingo, N.N.
Bacsal, Jesus M. Manalastas, Janette P. Pio de Roda, Joaquin W.
Sampaico, Winefreda 0. Madarang, Jack Gravey, Les G. Ham,
Corazon Pineda, Edward S. Serapio, Alex 0. Caballes, Sandy
Sytangco, Jorge W. Drysdale, Richard Blossom, Pablo de Borja,
Edmundo L. Tan, Joseph T. Cohen, Delfin Dator, Zosimo B. San
Juan, Joaquin Franco, Primitivo S. Javier, Jr., Luisito Guevarra, Asif
H. Adil, Eugenio Muniosguren, James Ditkoff and Timothy Lane be
dismissed;
2. The complaints against all respondents for violation of R.A. 7394
otherwise known as the Consumer Act of the Philippines and
violation of Act 2333 as amended by Act 3740 and E 0. 913 be also
dismissed for insufficiency of evidence, and
3. I.S. Nos. 92-7833; 92-8710 and 92-P-1065 involving Crowns Nos.
173; 401; and 117, 425, 703 and 373, respectively, alleged to be
likewise winning ones be further investigated to afford respondents
a chance to submit their counter-evidence.[11]
On 6 April 1993, City Prosecutor Candido V. Rivera approved the
recommendation with the modification that Rosemarie Vera, Quintin Gomez, Jr.,
and Chito Gonzales be excluded from the charge on the ground of insufficiency of
evidence.[12]
The information for estafa attached to the Joint Resolution was approved
(on 7 April 1993) by Ismael P. Casabar, Chief of the Prosecution Division, upon
authority of the City Prosecutor of Quezon City, and was filed with the RTC of
Quezon City on 12 April 1993. It was docketed as Criminal Case No. Q-93-43198.
[13]
 The information reads as follows:
The undersigned 1st Assistant City Prosecutor accuses PAUL G. ROBERTS, JR.
RODOLFO C. SALAZAR, LUIS F. LORENZO, SR., LUIS P. LORENZO, JR., J.
ROBERTO DELGADO, AMAURY R. GUTIERREZ, BAYANI N. FABIC, JOSE
YULO, JR., ESTEBAN B. PACANNUAYAN, JR. and WONG FONG FUI, of the
crime of ESTAFA, committed as follows:
That in the month of February, 1992, in Quezon City, Philippines and for sometime
prior and subsequent thereto, the above-named accused -
Paul G. Roberts, Jr. ) being then the Presidents
Rodolfo G. Salazar and Executive Officers
Luis F. Lorenzo, Sr. ) being then the Chairman of the Board of Directors
Luis P. Lorenzo, Jr. ) being then the Vice Chairman of the Board
J. Roberto Delgado ) being then Members of the Board
Amaury R. Gutierrez )
Bayani N. Fabic )
Jose Yulo, Jr. )
Esteban B. Pacannuayan, Jr. and
Wong Fong Fui )
OF THE PEPSI COLA PRODUCTS PHILIPPINES, INC., CONSPIRING with one
another, with intent of gain, by means of deceit, fraudulent acts or false pretenses,
executed prior to or simultaneously with the commission of the fraud, did then and
there willfully, unlawfully and feloniously defraud the private complainants whose
names with their prizes claimed appear in the attached lists marked as Annexes A
to A-46; B to -33; C to C-281; D to D-238; E to E-3O and F to F-244 in the following
manner: on the date and in the place aforementioned, said accused pursuant to
their conspiracy, launched the Pepsi Cola Products Philippines, Inc. Number Fever
Promotion from February 17 to May 8, 1992 later extended to May 11-June 12,
1992 and announced and advertised in the media that all holders of crowns and/or
caps of Pepsi, Mirinda, Mountain Dew and Seven-Up bearing the winning 3-digit
number will win the full amount of the prize printed on the crowns/caps which are
marked with a seven-digit security code as a measure against tampering or faking of
crowns and each and every number has its own unique matching security code,
enticing the public to buy Pepsi softdrinks with aforestated alluring and attractive
advertisements to become millionaires, and by virtue of such representations made
by the accused, the said complainants bought Pepsi softdrinks, but, the said
accused after their TV announcement on May 25, 1992 that the winning number for
the next day was 349, in violation of their aforecited mechanics, refused as they still
refuse to redeem/pay the said Pepsi crowns and/or caps presented to them by the
complainants, who, among others, were able to buy Pepsi softdrinks with
crowns/caps bearing number 349 with security codes L-2560-FQ and L-3560-FQ,
despite repeated demands made by the complainants, to their damage and
prejudice to the extent of the amount of the prizes respectively due them from their
winning 349 crowns/caps, together with such other amounts they spent ingoing to
and from the Office of Pepsi to claim their prizes and such other amounts used in
buying Pepsi softdrinks which the complainants normally would not have done were
it not for the false, fraudulent and deceitful posters of Pepsi Cola Products, Inc.
CONTRARY TO LAW.
On 14 April 1993, the petitioners filed with the Office of the City Prosecutor a
motion for the reconsideration of the Joint Resolution [14]alleging therein that (a) there
was neither fraud in the Number Fever Promotion nor deviation from or modification
of the promotional rules approved by the Department of Trade and industry (DTI),
for from the start of the promotion, it had always been clearly explained to the public
that for one to be entitled to the cash prize his crown must bear both the winning
number and the correct security code as they appear in the DTI list; (b) the
complainants failed to allege, much less prove with prima facie evidence, the
specific overt criminal acts or ommissions purportedly committed by each of the
petitioners; (c) the compromise agreement entered into by PEPSI is not an
admission of guilt; and (d) the evidence establishes that the promo was carried out
with utmost good faith and without malicious intent.
On 15 April 1993, the petitioners filed with the DOJ a Petition for
Review[15] wherein, for the same grounds adduced in the aforementioned motion for
reconsideration, they prayed that the Joint Resolution be reversed and the
complaints dismissed. They further stated that the approval of the Joint Resolution
by the City prosecutor was not the result of a careful scrutiny and independent
evaluation of the relevant facts and the applicable law but of the grave threats,
intimidation, and actual violence which the complainants had inflicted on him and his
assistant prosecutors.
On that same date, the petitioners filed in Criminal Case No. Q-93-43198
Motions to Suspend Proceedings and to Hold in Abeyance Issuance of Warrants of
Arrest on the ground that they had filed the aforesaid Petition for Review. [16]
On 21 April 1993, acting on the Petition for Review, Chief State Prosecutor
Zenon L. De Guia issued a 1st Indorsement, [17] directing the City Prosecutor of
Quezon City to inform the DOJ whether the petitioners have already been arraigned,
and if not, to move in court for the deferment of further proceedings in the case and
to elevate to the DOJ the entire records of the case, for the case is being treated as
an exception pursuant to Section 4 of Department Circular No. 7 dated 25 January
1990.
On 22 April 1993, Criminal Case no. Q-93-41398 was raffled to Branch 104 of
the RTC of Quezon City.[18]
In the morning of 27 April 1993, private prosecutor Julio Contreras filed an Ex-
Parte Motion for Issuance of Warrants of Arrest.[19]
In the afternoon of that same day, petitioner Paul Roberts, Jr., filed a
Supplemental Urgent Motion to hold in Abeyance Issuance of Warrant of Arrest and
to Suspend Proceedings.[20] He stressed that the DOJ had taken cognizance of the
Petition for Review by directing the City Prosecutor to elevate the records of I.S. No.
P-4401 and its related cases and asserted that the petition for review was an
essential part of the petitioners right to a preliminary investigation.
The next day, respondent Judge Asuncion, Presiding Judge of Branch 104 of
the RTC of Quezon City, issued an order advising the parties that his court would be
guided by the doctrine laid down by the Supreme Court in the case of Crespo vs.
Mogul,  151 SCRA 462 and not by the resolution of the Department of Justice on the
petition for review undertaken by the accused.[21]
On 30 April 1993, Assistant City Prosecutor Tirso M. Gavero filed with the trial
court a Motion to Defer Arraignment wherein he also prayed that further
proceedings be held in abeyance pending final disposition by the Department of
Justice.[22]
On 4 May 1993, Gavero filed an Amended Information, [23] accompanied by a
corresponding motion[24] to admit it. The amendments merely consist in the
statement that the complainants therein were only among others who were
defrauded by the accused and that the damage or prejudice caused amounted to
several billions of pesos, representing the amounts due them from their winning 349
crowns/caps. The trial court admitted the amended information on the same date. [25]
Later, the attorneys for the different private complainants filed, respectively,
an Opposition to Motion to Defer Arraignment, [26] and Objection and Opposition to
Motion to Suspend Proceedings and to Hold in Abeyance the Issuance of Warrants
of Arrest.[27]
On 14 May 1993, the petitioners filed a Memorandum in support of their
Motion to Suspend Proceedings and to Hold in Abeyance the Issuance of the
Warrants of Arrest.[28]
On 17 May 1993, respondent Judge Asuncion issued the challenged order (1)
denying the petitioners Motion to Suspend Proceedings and to Hold In Abeyance
Issuance of Warrants of Arrest and the public prosecutors Motion to Defer
Arraignment and (2) directing the issuance of the warrants of arrest after 21 June
1993 and setting the arraignment on 28 June 1993.[29] Pertinent portions of the order
read as follows:
In the Motion filed by the accused, it is alleged that on April 15,  1993, they filed a
petition for review seeking the reversal of the resolution of the City Prosecutor of
Quezon City approving the filing of the case against the accused, claiming that:
1. The resolution constituting [sic] force and duress;
2. There was no fraud or deceit therefore there can be no estafa;
3. No criminal overt acts by respondents were proved;
4. Pepsi nor the accused herein made no admission of guilt before the
Department of Trade and Industry;
5.  The evidence presented clearly showed no malicious intent on the
part of the accused.
Trial Prosecutor Tirso M. Gavero in his Motion to Defer Arraignment averred
that there is a pending petition for review with the Department of Justice filed by the
accused and the Office of the City Prosecutor was directed, among other things, to
cause for the deferment of further proceedings pending final disposition of said
petition by the Department of Justice.
The motions filed by the accused and the Trial Prosecutor are hereby
DENIED.
This case is already pending in this Court for trial. To follow whatever opinion
the Secretary of Justice may have on the matter would undermine the
independence and integrity of this Court. This Court is still capable of administering
justice.
The Supreme Court in the case of Crespo vs.  Mogul (SCRA 151, pp. 471-
472) stated as follows:
In order therefor to avoid such a situation whereby the opinion of the Secretary of
Justice who reviewed the action of the fiscal may be disregarded by the trial court,
the Secretary of Justice should, as far as practicable, refrain from entertaining a
petition for review or appeal from the action of the fiscal, when the complaint or
information has already been filed in Court. The matter should be left entirely for the
determination of the Court.
WHEREFORE, let warrant of arrest be issued after June 21, 1993, and arraignment
be set on June 28, 1993, at 9:30 in the morning.
On 7 June 1993, the petitioners filed with the Court of Appeals a special civil
action for certiorari  and prohibition with application for a temporary restraining order,
[30]
 which was docketed as CA-G.R. SP No. 31226. They contended therein that
respondent Judge Asuncion had acted without or in excess of jurisdiction or with
grave abuse of discretion in issuing the aforementioned order of 17 May
1993 because
I. RESPONDENT JUDGE FAILED TO EXAMINE THE RECORD OF
PRELIMINARY INVESTIGATION BEFORE ORDERING THE
ARREST OF PETITIONERS.
II. THERE IS NO PROBABLE CAUSE TO HOLD PETITIONERS
CRIMINALLY LIABLE FOR ESTAFA, OTHER DECEITS, OR ANY
OTHER OFFENSE.
III. THE PROCEEDINGS BELOW SHOULD HAVE BEEN SUSPENDED
TO AWAIT THE SECRETARY OF JUSTICES RESOLUTION OF
PETITIONERS APPEAL, AND
IV. THERE IS NO OTHER PLAIN, SPEEDY AND ADEQUATE
REMEDY IN THE ORDINARY COURSE OF LAW.
On 15 June 1993, the Court of Appeals issued a temporary restraining order
to maintain the status quo.[31]  In view thereof, respondent Judge Asuncion issued an
order on 28 June 1993[32] postponing indefinitely the arraignment of the petitioners
which was earlier scheduled on that date.
On 28 June 1993, the Court of Appeals heard the petitioners application for a
writ of preliminary injunction, granted the motion for leave to intervene filed by J.
Roberto Delgado, and directed the Branch Clerk of Court of the RTC of Quezon City
to elevate the original records of Criminal Case No. Q-93-43198 [33]
Upon receipt of the original records of the criminal case, the Court of Appeals
found that a copy of the Joint Resolution had in fact been forwarded to, and
received by, the trial court on 22 April 1993, which fact belied the petitioners claim
that the respondent Judge had not the slightest basis at all for determining probable
cause when he ordered the issuance of warrants of arrest. It ruled that the Joint
Resolution was sufficient in itself to have been relied upon by respondent Judge in
convincing himself that probable cause indeed exists for the purpose of issuing the
corresponding warrants of arrest; and that the mere silence of the records or the
absence of any express declaration in the questioned order as to the basis of such
finding does not give rise to an adverse inference, for the respondent Judge enjoys
in his favor the presumption of regularity in the performance of his official duty. The
Court of Appeals then issued a resolution [34] denying the application for a writ of
preliminary injunction.
On 8 June 1993, the petitioners filed a motion to reconsider [35] the aforesaid
resolution. The Court of Appeals required the respondents therein to comment on
the said motion.[36]
On 3 August 1993, the counsel for the private complainants filed in CA-G.R.
SP No. 31226 a Manifestation [37] informing the court that the petitioners petition for
review filed with the DOJ was dismissed in a resolution dated 23 July 1993. A
copy[38] of the resolution was attached to the Manifestation.
On 21 September 1993, the public respondents filed in CA-G.R. SP No.
31226 a motion to dismiss the petition [39] on the ground that it has become moot and
academic in view of the dismissal by the DOJ of the petitioners petition to review the
Joint Resolution. The dismissal by the DOJ is founded on the following exposition:
You questioned the said order of the RTC before the Court of Appeals and prayed
for the issuance of a writ of preliminary injunction to restrain the Trial Judge from
issuing any warrant of arrest and from proceeding with the arraignment of the
accused. The appellate court in a resolution dated July 1, 1993, denied your
petition.
In view of the said developments, it would be an exercise in futility to continue
reviewing the instant cases for any further action on the part of the Department
would depend on the sound discretion of the Trial Court. The denial by the said
court of the motion to defer arraignment filed at our instance was clearly an exercise
of its discretion. With the issuance of the order dated May 17, 1993, the Trial Court
was in effect sending a signal to this Department that the determination of the case
is within its exclusive jurisdiction and competence. The rule is that x x x once a
complaint or information is filed in Court, any disposition of the case as to dismissal
or the conviction or acquittal of the accused rests in the sound discretion of the
Court. Although the fiscal retains the direction and control of the prosecution of
criminal cases even while the case is already in Court, he cannot impose his opinion
on the trial court. The court is the best and sole judge on what to do with the case
before it. x x x (Crespo vs.  Mogul, 151 SCRA 462).[40]
On 28 September 1993, the Court of Appeals promulgated a
decision[41] dismissing the petition because it had been mooted with the release by
the Department of Justice of its decision x x x dismissing petitioners petition for
review by inerrantly upholding the criminal courts exclusive and unsupplantable
authority to control the entire course of the case brought against petitioners,
reiterating with approval the dictum laid down in the Crespo  case.
The petitioners filed a motion to reconsider the DOJs dismissal of the petition
citing therein its resolutions in other similar cases which were favorable to the
petitioners and adverse to other 349 Pepsi crowns holders.
In its resolution of 3 February 1994, the DOJ, through its 349 Committee,
denied the motion and stated: The instant petition is different from the other petitions
resolved by this Department in similar cases from the provinces. In the latter
petitions, the complaints against herein respondents [sic] [42] were dismissed
inasmuch as the informations have not yet been filed or even if already filed in court,
the proceedings have been suspended by the courts to await the outcome of the
appeal with this Department.[43]
The petitioners likewise filed a motion to reconsider [44] the aforesaid Court of
Appeals decision, which the said court denied in its resolution [45] of 9 February 1994.
Hence, the instant petition.
The First Division of this Court denied due course to this petition in its
resolution of 19 September 1994.[46]
 On 7 October 1994, the petitioners filed a motion for the reconsideration [47] of
the aforesaid resolution. Acting thereon, the First Division required the respondents
to comment thereon.
Later, the petitioners filed a supplemental motion for reconsideration [48] and a
motion to refer this case to the Court en banc.[49]  In its resolution of 14 November
1994,[50] the First Division granted the latter motion and required the respondents to
comment on the supplemental motion for reconsideration
In the resolution of 24 November 1994, the Court en banc  accepted the
referral.
On 10 October 1995, after deliberating on the motion for reconsideration and
the subsequent pleadings in relation thereto, the Court en banc  granted the motion
for reconsideration; reconsidered and set aside the resolution of 19 September
1994; and reinstated the petition. It then considered the case submitted for decision,
since the parties have exhaustively discussed the issues in their pleadings, the
original records of Criminal Case No. Q-93-43198 and of CA-G.R. SP No. 31226
had been elevated to this Court, and both the petitioners and the Office of the
Solicitor General pray, in effect, that this Court resolve the issue of probable cause
On the basis thereof.
The pleadings of the parties suggest for this Courts resolution the following
key issues:
1. Whether public respondent Judge Asuncion committed grave abuse
of discretion in denying, on the basis of Crespo vs. Mogul,  the
motions to suspend proceedings and hold in abeyance the issuance
of warrants of arrest and to defer arraignment until after the petition
for review filed with the DOJ shall have been resolved.
2. Whether public respondent Judge Asuncion committed grave abuse
of discretion in ordering the issuance of warrants of arrest without
examining the records of the preliminary investigation.
3. Whether the DOJ, through its 349 Committee, gravely abused its
discretion in dismissing the petition for review on the following
bases: (a) the resolution of public respondent Court of Appeals
denying the application for a writ of preliminary injunction and (b) of
public respondent Asuncions denial of the abovementioned motions.
4. Whether public respondent Court of Appeals committed grave abuse
of discretion (a) in denying the motion for a writ of preliminary
injunction solely on the ground that public respondent Asuncion had
already before him the Joint Resolution of the investigating
prosecutor when he ordered the issuance of the warrants of arrest,
and (b) in ultimately dismissing the petition on the ground of
mootness since the DOJ has dismissed the petition for review.
5.  Whether this Court may determine in this proceedings the existence
of probable cause either for the issuance of warrants of arrest
against the petitioners or for their prosecution for the crime of
estafa.
We resolve the first four issues in the affirmative and the fifth, in the negative.
I.
There is nothing in Crespo vs. Mogul[51]  which bars the DOJ from taking
cognizance of an appeal, by way of a petition for review, by an accused in a criminal
case from an unfavorable ruling of the investigating prosecutor. It merely advised
the DOJ to, as far as practicable, refrain from entertaining a petition for review or
appeal from the action of the fiscal, when the complaint or information has already
been filed in Court. More specifically, it stated:
In order therefore to avoid such a situation whereby the opinion of the Secretary of
Justice who reviewed the action of the fiscal may be disregarded by the trial court,
the Secretary of Justice should, as far as practicable, refrain from entertaining a
petition for review or appeal from the action of the fiscal, when the complaint or
information has already been filed in Court. The matter should be left entirely for the
determination of the Court.[52]
In Marcelo vs. Court of Appeals,[53]  this Court explicitly declared:
Nothing in the said ruling forecloses the power or authority of the Secretary of
Justice to review resolutions of his subordinates in criminal cases. The Secretary of
Justice is only enjoined to refrain as far as practicable from entertaining a petition for
review or appeal from the action of the prosecutor once a complaint or information is
filed in court. In any case, the grant of a motion to dismiss, which the prosecution
may file after the Secretary of Justice reverses an appealed resolution, is subject to
the discretion of the court.
 Crespo  could not have intended otherwise without doing violence to, or
repealing, the last paragraph of Section 4, Rule 112 of the Rules of Court [54] which
recognizes the authority of the Secretary of Justice to reverse the resolution of the
provincial or city prosecutor or chief state prosecutor upon petition by a proper party.
Pursuant to the said provision, the Secretary of Justice had promulgated the
rules on appeals from resolutions in preliminary investigation. At the time the
petitioners filed their petition for the review of the Joint Resolution of the
investigating prosecutor, the governing rule was Circular No. 7, dated 25 January
1990. Section 2 thereof provided that only resolutions dismissing a criminal
complaint may be appealed to the Secretary of Justice. Its Section 4, [55] however,
provided an exception, thus allowing, upon a showing of manifest error or grave
abuse of discretion, appeals from resolutions finding probable cause, provided that
the accused has not been arraigned.
The DOJ gave due course to the petitioners petition for review as an
exception pursuant to Section 4 of Circular No. 7.
Meanwhile, the DOJ promulgated on 30 June 1993 Department Order No.
223[56] which superseded Circular No. 7. This Order, however, retained the
provisions of Section 1 of the Circular on appealable cases and Section 4 on the
non-appealable cases and the exceptions thereto.
There is nothing in Department Order No. 223 which would warrant a recall of
the previous action of the DOJ giving due course to the petitioners petition for
review. But whether the DOJ would affirm or reverse the challenged Joint
Resolution is still a matter of guesswork. Accordingly, it was premature for
respondent Judge Asuncion to deny the motions to suspend proceedings and to
defer arraignment on the following grounds:
This case is already pending in this Court for trial. To follow whatever opinion the
Secretary of Justice may have on the matter would undermine the independence
and integrity of this Court. This Court is still capable of administering justice.
The real and ultimate test of the independence and integrity of this court is not
the filing of the aforementioned motions at that stage of the proceedings but the
filing of a motion to dismiss or to withdraw the information on the basis of a
resolution of the petition for review reversing the Joint Resolution of the investigating
prosecutor. Before that time, the following pronouncement in Crespo  did not yet
truly become relevant or applicable:
The rule therefore in this jurisdiction is that once a complaint or information is filed in
Court any disposition of the case as its dismissal or the conviction or acquittal of the
accused rests in the sound discretion of the court. Although the fiscal retains the
direction and control of the prosecution of criminal cases even while the case is
already in court he cannot impose his opinion on the trial court. The court is the best
and sole judge on what to do with the case before it. The determination of the case
is within its exclusive jurisdiction and competence. A motion to dismiss the case filed
by the fiscal should be addressed to the Court who has the option to grant or deny
the same. It does not matter if this is done before or after the arraignment of the
accused or that the motion was filed after a reinvestigation or upon instructions of
the Secretary of Justice who reviewed the records of the investigation. [57]
However, once a motion to dismiss or withdraw the information is filed the trial judge
may grant or deny it, not out of subservience to the Secretary of Justice, but in
faithful exercise of judicial prerogative. This Court pertinently stated so
in Martinez vs. Court of Appeals:[58]
Whether to approve or disapprove the stand taken by the prosecution is not the
exercise of discretion required in cases like this. The trial judge must himself be
convinced that there was indeed no sufficient evidence against the accused, and
this conclusion can be arrived at only after an assessment of the evidence in the
possession of the prosecution. What was imperatively required was the trial judges
own assessment of such evidence, it not being sufficient for the valid and proper
exercise of judicial discretion merely to accept the prosecutions word for its
supposed insufficiency.
As aptly observed the Office of the Solicitor General, in failing to make an
independent finding of the merits of the case and merely anchoring the dismissal on
the revised position of the prosecution, the trial judge relinquished the discretion he
was duty bound to exercise. In effect, it was the prosecution, through the
Department of Justice which decided what to do and not the court which was
reduced to a mere rubber stamp in violation of the ruling in Crespo vs. Mogul.
II.
Section 2, Article III of the present Constitution provides that no search
warrant or warrant of arrest shall issue except upon probable cause to be
determined personally by the judge after examination under oath or affirmation of
the complainant and the witnesses he may produce.
Under existing laws, warrants of arrest may be issued (1) by the Metropolitan
Trial Courts (MeTCs) except those in the National Capital Region, Municipal Trial
Courts (MTCs), and Municipal Circuit Trial Courts (MCTCs) in cases falling within
their exclusive original jurisdiction;[59] in cases covered by the rule on summary
procedure where the accused fails to appear when required; [60] and in cases filed
with them which are cognizable by the Regional Trial Courts (RTCs); [61] and (2) by
the Metropolitan Trial Courts in the National Capital Region (MeTCs-NCR) and the
RTCs in cases filed with them after appropriate preliminary investigations conducted
by officers authorized to do so other than judges of MeTCs, MTCs and MCTCs. [62]
As to the first, a warrant can issue only if the judge is satisfied after an
examination in writing and under oath of the complainant and the witnesses, in the
form of searching questions and answers, that a probable cause exists and that
there is a necessity of placing the respondent under immediate custody in order not
to frustrate the ends of justice.
As to the second, this Court held in Soliven vs. Makasiar[63]  that the judge is
not required to personally examine the complainant and the witnesses, but
[f]ollowing established doctrine and procedure, he shall: (1) personally evaluate the
report and supporting documents submitted by the fiscal regarding the existence of
probable cause and, on the basis thereof, issue a warrant of arrest; or (2) if on the
basis thereof he finds no probable cause, he may disregard the fiscals report and
require the submission of supporting affidavits of witnesses to aid him in arriving at a
conclusion as to the existence of probable cause.[64]
Sound policy supports this procedure, otherwise judges would be unduly laden with
the preliminary examination and investigation of criminal complaints instead of
concentrating on hearing and deciding cases filed before their courts. It must be
emphasized that judges must not rely solely on the report or resolution of the fiscal
(now prosecutor); they must evaluate the report and the supporting documents. In
this sense, the aforementioned requirement has modified paragraph 4(a) of Circular
No. 12 issued by this Court on 30 June 1987 prescribing the Guidelines on Issuance
of Warrants of Arrest under Section 2, Article III of the 1987 Constitution, which
provided in part as follows:
4. In satisfying himself of the existence of a probable cause for the
issuance of a warrant of arrest, the judge, following established
doctrine and procedure, may either:
(a) Rely upon the fiscals certification of the existence of probable
cause whether or not the case is cognizable only by the
Regional Trial Court and on the basis thereof, issue a warrant
of arrest. x x x
This requirement of evaluation not only of the report or certification of the
fiscal but also of the supporting documents was further explained in People vs.
Inting,[65]  where this Court specified what the documents may consist of, viz.,  the
affidavits, the transcripts of stenographic notes (if any), and all other supporting
documents behind the Prosecutors certification which are material in assisting the
Judge to make his  determination of probable cause. Thus:
We emphasize the important features of the constitutional mandate that x x x no
search warrant or warrant of arrest shall issue except upon probable cause to be
determined personally by the judge x x x (Article III, Section 2, Constitution).
First, the determination of probable cause is a function of the Judge. It is not
for the Provincial Fiscal or Prosecutor nor the Election Supervisor to ascertain. Only
the Judge and the Judge alone makes this determination.
Second, the preliminary inquiry made by a Prosecutor does not bind the
Judge. It merely assists him to make the determination of probable cause. The
Judge does not have to follow what the Prosecutor presents to him. By itself, the
Prosecutors certification of probable cause is ineffectual. It is the report, the
affidavits, the transcripts of stenographic notes (if any), and all other supporting
documents behind the Prosecutors certification which are material in assisting the
Judge to make his determination.
In adverting to a statement in People vs. Delgado[66]  that the judge may rely
on the resolution of the Commission on Elections (COMELEC) to file the information
by the same token that it may rely on the certification made by the prosecutor who
conducted the preliminary investigation in the issuance of the warrant of arrest, this
Court stressed in Lim vs. Felix[67]  that
Reliance on the COMELEC resolution or the Prosecutors certification presupposes
that the records of either the COMELEC or the Prosecutor have been submitted to
the Judge and he relies on the certification or resolution  because the records of the
investigation sustain the recommendation. The warrant issues not on the strength of
the certification standing alone but because of the records which sustain it.
And noting that judges still suffer from the inertia of decisions and practice under the
1935 and 1973 Constitutions, this Court found it necessary to restate the rule in
greater detail and hopefully clearer terms. It then proceeded to do so, thus:
We reiterate the ruling in Soliven vs. Makasiar  that the Judge does not have
to personally examine the complainant and his witnesses. The Prosecutor can
perform the same functions as a commissioner for the taking of the evidence.
However, there should be a report and necessary documents supporting the Fiscals
bare certification. All of these should be before the Judge.
The extent of the Judges personal examination of the report and its annexes
depends on the circumstances of each case. We cannot determine beforehand how
cursory or exhaustive the Judges examination should be. The Judge has to exercise
sound discretion for, after all, the personal determination is vested in the Judge by
the Constitution. It can be as brief as or detailed as the circumstances of each case
require. To be sure, the Judge must go beyond the Prosecutors certification and
investigation report whenever, necessary. He should call for the complainant and
witnesses themselves to answer the courts probing questions when the
circumstances of the case so require.
This Court then set aside for being null and void the challenged order of respondent
Judge Felix directing the issuance of the warrants of arrest against petitioners
Lim, et al.,  solely on the basis of the prosecutors certification in the informations that
there existed probable cause without having before him any other basis for his
personal determination of the existence of a probable cause.
In Allado vs. Diokno,[68]  this Court also ruled that before issuing a warrant of
arrest, the judge must satisfy himself that based on the evidence submitted there is
sufficient proof that a crime has been committed and that the person to be arrested
is probably guilty thereof.
In the recent case of Webb vs. De Leon,[69]  this Court rejected the thesis of
the petitioners of absence probable cause and sustained the investigating panels
and the respondent Judges findings of probable cause. After quoting extensively
from Soliven vs. Makasiar,[70]  this Court explicitly pointed out:
Clearly then, the Constitution, the Rules of Court, and our case law repudiate the
submission of petitioners that respondent judges should have conducted searching
examination of witnesses before issuing warrants of arrest against them. They also
reject petitioners contention that a judge must first issue an order of arrest before
issuing a warrant of arrest. There is no law or rule requiring the issuance of an
Order of Arrest prior to a warrant of arrest.
In the case at bar, the DOJ Panel submitted to the trial court its 26-page
report, the two (2) sworn statements of Alfaro and the sworn statements of Carlos
Cristobal and Lolita Birrer as well as the counter- affidavits of the petitioners .
Apparently, the painstaking recital and analysis of the parties evidence made in the
DOJ Panel Report satisfied both judges that there is probable cause to issue
warrants of arrest against petitioners. Again, we stress that before issuing warrants
of arrest, judges merely determine personally the probability, not the certainty of the
guilt of an accused. In doing so, judges do not conduct a de novo hearing to
determine the existence of probable cause. They just personally review the initial
determination of the prosecutor finding a probable cause to see if it is supported by
substantial evidence. The sufficiency of the review process cannot be measured by
merely counting minutes and hours. The fact that it took the respondent judges a
few hours to review and affirm the Probable cause determination of the DOJ Panel
does not mean they made no personal evaluation of the evidence attached to the
records of the case. (italics supplied)
The teachings then of Soliven, Inting, Lim, Allado,  and Webb  reject the
proposition that the investigating prosecutors certification in an information or his
resolution which is made the basis for the filing of the information, or both, would
suffice in the judicial determination of probable cause for the issuance of a warrant
of arrest. In Webb, this Court assumed that since the respondent Judges had before
them not only the 26-page resolution of the investigating panel but also the affidavits
of the prosecution witnesses and even the counter-affidavits  of the respondents,
they (judges) made personal evaluation of the evidence attached to the records of
the case.
Unfortunately, in Criminal Case No. Q-93-43198, nothing accompanied the
information upon its filing on 12 April 1993 with the trial court. As found by the Court
of Appeals in its resolution of 1 July 1993, a copy of the Joint Resolution was
forwarded to, and received by, the trial court only on 22 April 1993. And as revealed
by the certification[71] of Branch Clerk of Court Gibson Araula, Jr., no affidavits of the
witnesses, transcripts of stenographic notes of the proceedings during the
preliminary investigation, or other documents submitted in the course thereof were
found in the records of Criminal Case No. Q-93-43198 as of 19 May 1993. Clearly,
when respondent Judge Asuncion issued the assailed order of 17 May
1993 directing, among other things, the issuance of warrants of arrest, he had only
the information, amended information, and Joint Resolution as bases thereof. He did
not have the records or evidence supporting the prosecutors finding of probable
cause. And strangely enough, he made no specific finding of probable cause; he
merely directed the issuance of warrants of arrest after June 21, 1993. It may,
however, be argued that the directive presupposes a finding of probable cause. But
then compliance with a constitutional requirement for the protection of individual
liberty cannot be left to presupposition, conjecture, or even convincing logic.
III.
As earlier stated, per its 1st Indorsement of 21 April 1993, the DOJ gave due
course to the petitioners petition for review pursuant to the exception provided for in
Section 4 of Circular No. 7, and directed the Office of the City Prosecutor of Quezon
City to forward to the Department the records of the cases and to file in court a
motion for the deferment of the proceedings. At the time it issued the indorsement,
the DOJ already knew that the information had been filed in court, for which reason
it directed the City Prosecutor to inform the Department whether the accused have
already been arraigned and if not yet arraigned, to move to defer further
proceedings. It must have been fully aware that, pursuant to Crespo vs. Mogul,  a
motion to dismiss a case filed by the prosecution either as a consequence of a
reinvestigation or upon instructions of the Secretary of Justice after a review of the
records of the investigation is addressed to the trial court, which has the option to
grant or to deny it. Also, it must have been still fresh in its mind that a few months
back it had dismissed for lack of probable cause other similar complaints of holders
of 349 Pepsi crowns.[72] Thus, its decision to give due course to the petition must
have been prompted by nothing less than an honest conviction that a review of the
Joint Resolution was necessary in the highest interest of justice in the light of the
special circumstances of the case. That decision was permissible within the as far
as practicable criterion in Crespo.
Hence, the DOJ committed grave abuse of discretion when it executed on 23
July 1993 a unilateral volte-face,  which was even unprovoked by a formal pleading
to accomplish the same end, by dismissing the petition for review. It dismissed the
petition simply because it thought that a review of the Joint Resolution would be an
exercise in futility in that any further action on the part of the Department would
depend on the sound discretion of the trial court, and that the latters denial of the
motion to defer arraignment filed at the instance of the DOJ was clearly an exercise
of that discretion or was, in effect, a signal to the Department that the determination
of the case is within the courts exclusive jurisdiction and competence. This infirmity
becomes more pronounced because the reason adduced by the respondent Judge
for his denial of the motions to suspend proceedings and hold in abeyance issuance
of warrants of arrest and to defer arraignment finds, as yet, no support in Crespo.
IV.
If the only issue before the Court of Appeals were the denial of the petitioners
Motion to Suspend Proceedings and to Hold in Abeyance Issuance of Warrants of
Arrest and the public prosecutors Motion to Defer Arraignment, which were both
based on the pendency before the DOJ of the petition for the review of the Joint
Resolution, the dismissal of CA-G.R. SP No. 31226 on the basis of the dismissal by
the DOJ of the petition for review might have been correct. However, the petition
likewise involved the issue of whether respondent Judge Asuncion gravely abused
his discretion in ordering the issuance of warrants of arrest despite want of basis.
The DOJs dismissal of the petition for review did not render moot and academic the
latter issue.
In denying in its resolution of 1 July 1993 the petitioners application for a writ
of preliminary injunction to restrain respondent Judge Asuncion from issuing
warrants of arrest, the Court of Appeals ,justified its action in this wise:
The Joint Resolution was sufficient in itself to have been relied upon by respondent
Judge in convincing himself that probable cause indeed exists for the purpose of
issuing the corresponding warrants of arrest. The mere silence of the records or the
absence of any express declaration in the questioned Order of May 17, 1993 as to
where the respondent Judge based his finding of probable cause does not give rise
to any adverse inference on his part. The fact remains that the Joint Resolution was
at respondent Judges disposal at the time he issued the Order for the issuance of
the warrants of arrest. After all, respondent Judge enjoys in his favor the
presumption of regularity in the performance of official actuations. And this
presumption prevails until it is overcome by clear and convincing evidence to the
contrary. Every reasonable intendment will be made in support of the presumption,
and in case of doubt as to an officers act being lawful or unlawful it should be
construed to be lawful. (31 C.J.S., 808-810. See also Mahilum, et al. vs.  Court of
Appeals, 17 SCRA 482; People vs.  Cortez, 21 SCRA 1228; Government of the
P.I. vs.  Galarosa, 36 Phil. 338).
 We are unable to agree with this disquisition, for it merely assumes at least
two things: (1) that respondent Judge Asuncion had read and relied on the Joint
Resolution and (2) he was convinced that probable cause exists for the issuance of
the warrants of arrest against the petitioners. Nothing in the records provides
reasonable basis for these assumptions. In his assailed order, the respondent
Judge made no mention of the Joint Resolution, which was attached to the records
of Criminal Case No. Q-93-43198 on 22 April 1993. Neither did he state that he
found probable cause for the issuance of warrants of arrest. And, for an undivinable
reason, he directed the issuance of warrants of arrest only  after June 21, 1993. If he
did read the Joint Resolution and, in so reading, found probable cause, there was
absolutely no reason at all to delay for more than one month the issuance of
warrants of arrest. The most probable explanation for such delay could be that the
respondent Judge had actually wanted to wait for a little while for the DOJ to resolve
the petition for review.
It is, nevertheless, contended in the dissenting opinion of Mr. Justice Reynato
S. Puno that whatever doubts may have lingered on the issue of probable cause
was dissolved when no less than the Court of Appeals sustained the finding of
probable cause made by the respondent Judge after an evaluation of the Joint
Resolution. We are not persuaded with that opinion. It is anchored on erroneous
premises. In its 1 July 1993 resolution, the Court of Appeals does not at all state that
it either sustained respondent Judge Asuncions finding of probable cause, or found
by itself probable cause. As discussed above, it merely presumed that Judge
Asuncion might have read the Joint Resolution and found probable cause from a
reading thereof. Then too, that statement in the dissenting opinion erroneously
assumes that the Joint Resolution can validly serve as sufficient basis for
determining probable cause. As stated above, it is not.
V.
In criminal prosecutions, the determination of probable cause may either be
an executive or a judicial prerogative. In People vs. Inting,[73]  this Court aptly stated:
And third, Judges and Prosecutors alike should distinguish the preliminary inquiry
which determines probable cause for the issuance of a warrant of arrest from a
preliminary investigation proper which ascertains whether the offender should be
held for trial or released. Even if the two inquiries are conducted in the course of one
and the same proceeding, there should be no confusion about the objectives. The
determination of probable cause for the warrant of arrest is made by the Judge. The
preliminary investigation proper - whether or not there is reasonable ground to
believe that the accused is guilty of the offense charged and, therefore, whether or
not he should be subjected to the expense, rigors and embarrassment of trial- is the
function of the Prosecutor.
xxx xxx xxx
We reiterate that preliminary investigation should be distinguished as to whether it is
an investigation for the determination of a sufficient ground for the filing of the
information or it is an investigation for the determination of a probable cause for the
issuance of a warrant of arrest. The first kind of preliminary investigation is
executive in nature. It is part of the prosecutions job. The second kind of preliminary
investigation which is more properly called preliminary examination is judicial in
nature and is lodged with the judge x x x.
Ordinarily, the determination of probable cause is not lodged with this Court.
Its duty in an appropriate case is confined to the issue of whether the executive or
judicial determination, as the case may be, of probable cause was done without or
in excess of jurisdiction or with grave abuse of discretion amounting to want of
jurisdiction. This is consistent with the general rule that criminal prosecutions may
not be restrained or stayed by injunction, preliminary or final. There are, however,
exceptions to this rule. Among the exceptions are enumerated in Brocka vs.
Enrile[74]  as follows:
a. To afford adequate protection to the constitutional rights of the
accused (Hernandez vs.  Albano, et al.,  L-19272, January 25, 1967,
19 SCRA 95);
b. When necessary for the orderly administration of justice or to avoid
oppression or multiplicity of actions (Dimayuga, et al.
vs.  Fernandez, 43 Phil. 304;
Hernandez vs.  Albano, supra;  Fortun vs.  Labang, et al.,  L-38383,
May 27, 1981, 104 SCRA 607);
c. When there is a pre-judicial question which is sub
judice  (De Leon vs.  Mabanag, 70 Phil. 202);
d. When the acts of the officer are without or in excess of authority
(Planas vs.  Gil, 67 Phil. 62);
 e. Where the prosecution is under an invalid law, ordinance or
regulation (Young vs.  Rafferty, 33 Phil. 556;  Yu Cong
Eng vs.  Trinidad, 47 Phil. 385, 389);
f. When double jeopardy is clearly apparent (Sangalang vs.  People and
Avendia, 109 Phil. 1140);
g. Where the court has no jurisdiction over the offense (Lopez vs.  City
Judge, L-25795,  October 29, 1966, 18 SCRA 616);
h. Where it is a case of persecution rather than prosecution
(Rustia vs.  Ocampo, CA-G.R. No. 4760, March 25, 1960);
i. Where the charges are manifestly false and motivated by the lust for
vengeance (Recto vs.  Castelo, 18 L.J.,  [1953], cited in
Raoa vs.  Alvendia, CA-G.R. No. 30720-R, October 8, 1962; Cf.
Guingona, et al. vs.  City Fiscal, L-60033, April 4, 1984, 128
SCRA 577);  and
j. When there is clearly no prima facie  case against the accused and a
motion to quash on that ground has been denied (Salonga vs.  Pao,
et al., L-59524, February 18, 1985, 134 SCRA 438).
7. Preliminary injunction has been issued by the Supreme Court to
prevent the threatened unlawful arrest of petitioners
(Rodriguez vs.  Castelo, L-6374, August 1, 1953). (cited in
Regalado, Remedial Law Compendium, p. 188, 1988 Ed.)
In these exceptional cases, this Court may ultimately resolve the existence or non-
existence of probable cause by examining the records of the preliminary
investigation, as it did in Salonga vs. Pao,[75] Allado,  and Webb.
There can be no doubt that, in light of the several thousand private
complainants in Criminal Case No. Q-93-43198 and several thousands more in
different parts of the country who are similarly situated as the former for being
holders of 349 Pepsi crowns, any affirmative holding of probable cause in the said
case may cause or provoke, as justly feared by the petitioners, the filing of several
thousand cases in various courts throughout the country. Inevitably, the petitioners
would be exposed to the harassments of warrants of arrest issued by such courts
and to huge expenditures for premiums on bailbonds and for travels from one court
to another throughout the length and breadth of the archipelago for their
arraignments and trials in such cases. Worse, the filing of these staggering number
of cases would necessarily affect the trial calendar of our overburdened judges and
take much of their attention, time, and energy, which they could devote to other
equally, if not more, important cases. Such a frightful scenario would seriously affect
the orderly administration of justice, or cause oppression or multiplicity of actions - a
situation already long conceded by this Court to be an exception to the general rule
that criminal prosecutions may not be restrained or stayed by injunction. [76]
We shall not, however, reevaluate the evidence to determine if indeed there is
probable cause for the issuance of warrants of arrest in Criminal Case No. Q-93-
43298. For, as earlier stated, the respondent Judge did not, in fact, find that
probable cause exists, and if he did he did not have the basis therefor as mandated
by Soliven, Inting, Lim, Allado,  and even Webb.  Moreover, the records of the
preliminary investigation in Criminal Case No. Q-93-43198 are not with this Court.
They were forwarded by the Office of the City Prosecutor of Quezon City to the DOJ
in compliance with the latters 1st Indorsement of 21 April 1993. The trial court and
the DOJ must be required to perform their duty.
WHEREFORE, the instant petition is granted and the following are hereby
SET ASIDE:
(a) Decision of 28 September 1993 and Resolution of 9 February
1994 of respondent Court of Appeals in CA-G.R. SP No. 31226;
(b) The Resolution of the 349 Committee of the Department of Justice
of 23 July 1993 dismissing the petitioners petition for review and
of 3 February 1994 denying the motion to reconsider the dismissal;
and
(c) The Order of respondent Judge Maximiano C. Asuncion of 17 May
1993 in Criminal Case No. Q-93-43198.
The Department of Justice is DIRECTED to resolve on the merits, within sixty
(60) days from notice of this decision, the petitioners petition for the review of the
Joint Resolution of Investigating Prosecutor Ramon Gerona and thereafter to file the
appropriate motion or pleading in Criminal Case No. Q-93-43198, which respondent
Judge Asuncion shall then resolve in light of Crespo vs. Mogul, Soliven vs.
Makasiar, People vs. Inting, Lim vs. Felix, Allado vs. Diokno,  and Webb vs. De
Leon.
In the meantime, respondent Judge Asuncion is DIRECTED to cease and
desist from further proceeding with Criminal Case No. Q-93-43198 and to defer the
issuance of warrants of arrest against the petitioners.
No pronouncement as to costs.
SO ORDERED.
 THIRD DIVISION
[G.R. No. 113216. September 5, 1997]
RHODORA M. LEDESMA, petitioner, vs. COURT OF APPEALS and HON.
MAXIMIANO C. ASUNCION, in his capacity as Presiding Judge of RTC,
Quezon City, respondents.
DECISION
PANGANIBAN, J.:
When confronted with a motion to withdraw an information on the ground of
lack of probable cause based on a resolution of the secretary of justice, the
bounden duty of the trial court is to make an independent assessment of the merits
of such motion. Having acquired jurisdiction over the case, the trial court is not
bound by such resolution but is required to evaluate it before proceeding further with
the trial.While the secretarys ruling is persuasive, it is not binding on courts. A trial
court, however, commits reversible error or even grave abuse of discretion if it
refuses/neglects to evaluate such recommendation and simply insists on proceeding
with the trial on the mere pretext of having already acquired jurisdiction over the
criminal action.
This principle is explained in this Decision resolving a petition for review
on certiorari of the Decision[1] of the Court of Appeals,[2]promulgated on September
14, 1993 in CA-G.R. SP No. 30832 which in effect affirmed an order of the Regional
Trial Court of Quezon City denying the prosecutions withdrawal of a criminal
information against petitioner.
The Antecedent Facts
From the pleadings submitted in this case, the undisputed facts are as follows:
Sometime in April 1992, a complaint for libel was filed by Dr. Juan F. Torres, Jr.
against Dr. Rhodora M. Ledesma, petitioner herein, before the Quezon City
Prosecutors Office, docketed as I.S. No. 92-5433A. Petitioner filed her counter-
affidavit to the complaint.
Finding sufficient legal and factual basis, the Quezon City Prosecutors Office filed
on July 6, 1992 an Information for libel against petitioner with the Regional Trial
Court of Quezon City, Branch 104.[3] The Information filed by Assistant City
Prosecutor Augustine A. Vestil reads: [4]
That on or about the 27th day of June 1991, in Quezon City, Metro Manila,
Philippines, the said accused, acting with malice, did, then and there, wilfully,
unlawfully and feloniously send a letter addressed to Dr. Esperanza I. Cabral,
Director of Philippine Heart Center, East Avenue, this city, and furnished the same
to other officers of the said hospital, said letter containing slanderous and
defamatory remarks against DR. JUAN F. TORRES, JR., which states in part, to wit:
27June 1991
Dr. Esperanza I. Cabral
Director
Subject: Return of all professional fees due Dr. Rhodora M. Ledesma, Nuclear
Medicine Specialist/Consultant, Philippine Heart Center, from January 31, 1989 to
January 31, 1991.
Respondents: Dr. Juan F. Torres, Jr., Chief, Nuclear Medicine Section
Dr. Orestes P. Monzon,
Staff Consultant
Dear Dr. Cabral,
This is to demand the return of all professional fees due me as a consultant in
Nuclear Medicine, this Center, since January 31, 1989 until my resignation effective
January 31, 1991, amounting to at least P100,000.00 for the year 1990
alone. Records in the Nuclear Medicine Section will show that from January 1989 to
January 1991, a total of 2,308 patients were seen. Of these, I had officially
supervised, processed, and interpreted approximately a total of 1,551 cases as
against approximately 684 and 73 cases done by Dr. Monzon and Dr. Torres
respectively.
Until my resignation I had received a monthly share of professional fees averaging
P1,116.90/month supposedly representing 20% of the total monthly professional
fees. The rest were divided equally between Dr. Monzon and Dr. Torres. There was
never any agreement between us three consultants that this should be the
arrangement and I am certain that this was not with your approval. The burden of
unfairness would have been lesser if there was an equal distribution of labor and the
schedule of duties were strictly followed. As it was, the schedule of duties submitted
monthly to the office of the Asst. Director for Medical Services was simply a dummy
to comply with administrative requirements rather than a guideline for strict
compliance. Both consultants have complete daily time records even if they did not
come regularly. Dr. Torres came for an hour every week, Dr. Monzon came
sporadically during the week while I was left with everything from training the
residents and supervising the Techs to processing and interpreting the results on a
regular basis. I had a part time appointment just like Dr. Monzon and Dr. Torres.
In the interest of fairness and to set a precedent for the protection of future PHC
Nuclear Medicine Alumni I am calling your attention to the unfair and inhuman
conditions I went through as a Consultant in that Section. I trust that your sense of
professionalism will put a stop to this corruption.
I suggest that a committee be formed to make an audit of the distribution of
professional fees in this Section. At this point, let me stress that since professional
fees vary according to the type of procedure done and since there was no equity of
labor between us I am not settling for an equal percentage share. I demand that I be
indemnified of all professional fees due me on a case to case basis.
Let me make clear my intention of pursuing this matter legally should there be no
favorable action in my behalf. Let me state at this point6 that the actions of Dr.
Torres and Dr. Monzon are both unprofessional and unbecoming and are clearly
violating the code of ethics of the medical profession and the Philippine Civil Service
Rules and Regulations related to graft and corruption.
Thank you.
and other words of similar import, when in truth and in fact, as the accused very well
knew, the same are entirely false and untrue but were publicly made for no other
purpose than to expose said DR. JUAN F. TORRES, JR. to public ridicule, thereby
casting dishonor, discredit and contempt upon the person of the said offended party,
to his damage and prejudice.
A petition for review of the resolution of Assistant City Prosecutor Vestil was
filed by petitioner before the Department of Justice pursuant to P.D. No. 77 as
amended by P.D. No. 911.
The Department of Justice gave due course to the petition and directed the
Quezon City prosecutor to move for deferment of further proceedings and to elevate
the entire records of the case. [5] Accordingly, a Motion to Defer Arraignment dated
September 7, 1992 was filed by Prosecutor Tirso M. Gavero before the court a quo.
[6]
 On September 9, 1992, the trial court granted the motion and deferred petitioners
arraignment until the final termination of the petition for review. [7]
Without the consent or approval of the trial prosecutor, private complainant,
through counsel, filed a Motion to Lift the Order dated September 9, 1992 and to Set
the Case for Arraignment/Trial.[8]
On January 8, 1993, the trial court issued an Order setting aside its earlier
Order of September 9, 1992 and scheduling petitioners arraignment on January 18,
1993 at two oclock in the afternoon.[9]
In a resolution dated January 27, 1993, then Justice Secretary Franklin M.
Drilon reversed the Quezon City investigating prosecutor.Pertinent portions of
Drilons ruling read:[10]
From the circumstances obtaining, the subject letter was written to bring to the
attention of the Director of the Philippine Heart Center for Asia and other
responsible authorities the unjust and unfair treatment that Dr. Ledesma was getting
from complainants. Since complainants and respondent are government employees,
and the subject letter is a complaint to higher authorities of the PHCA on a subject
matter in which respondent has an interest and in reference to which she has a duty
to question the same is definitely privileged (US vs. Bustos, 37 Phil. 131). Moreover,
in Ang vs. Castro, 136 SCRA 455, the Supreme Court, citing Santiago vs. Calvo, 48
Phil. 922, ruled that A communication made in good faith upon any subject matter in
which the party making the communication has an interest or concerning which he
has a duty is privileged... although it contains incriminatory or derogatory matter
which, without the privilege, would be libelous and actionable.
The follow-up letter sent by respondent to the director of the PHCA, is a direct
evidence of respondents righteous disposition of following the rule of law and is a
clear indication that her purpose was to seek relief from the proper higher authority
who is the Director of PHCA.
The same interpretation should be accorded the civil and administrative complaints
which respondent filed against complainants. They are mere manifestations of her
earnest desire to pursue proper relief for the alleged injustice she got from
complainants. If she was motivated by malice and ill-will in sending the subject
communication to the Director of the PHCA, she would not have sent the second
letter and filed the administrative and civil cases against complainants.
Moreover, it is unbelievable that it took complainants one year to realize that the
questioned letter subjected them to public and malicious imputation of a vice or
omission. It is beyond the ordinary course of human conduct for complainants to
start feeling the effects of the alleged libelous letter - that of experiencing sleepless
nights, wounded feelings, serious anxiety, moral shock and besmirched reputation -
one year after they read the communication in question.
The claim that the case of Crespo vs. Mogul, 151 SCRA 462 is applicable to the
instant case is unfounded. In the first place, the instant cases are not being
reinvestigated. It is the resolutions of the investigating prosecutor that are under
review. Further, the record shows that the court has issued an order suspending the
proceedings pending the resolutions of the petitions for review by this Office. In the
issuance of its order, the court recognizes that the Secretary of Justice has the
power and authority to review the resolutions of prosecutors who are under his
control and supervision.
In view of the foregoing, the appealed resolutions are hereby reversed. You are
directed to withdraw the Informations which you filed in Court. Inform this Office of
the action taken within ten (10) days from receipt hereof.
In obedience to the above directive, Quezon City Trial Prosecutor Tirso M.
Gavero filed a Motion to Withdraw Information dated February 17,1993, [11] attaching
thereto the resolution of Secretary Drilon. The trial judge denied this motion in his
Order dated February 22, 1993, as follows:[12]
The motion of the trial prosecutor to withdraw the information in the above-entitled
case is denied. Instead, the trial prosecutor of this court is hereby directed to
prosecute the case following the guidelines and doctrine laid down by the Supreme
Court in the case of Crespo vs. Mogul, 151 SCRA 462.
Petitioners motion for reconsideration[13] was denied by the trial judge in the
Order dated March 5, 1993, as follows:[14]
Finding no cogent reason to justify the reconsideration of the ruling of this Court
dated February 22, 1993, the Motion for Reconsideration dated March 1, 1993 filed
by the accused through counsel is hereby denied.
Aggrieved, petitioner filed a petition for certiorari and prohibition with the
Supreme Court. In a Resolution dated March 31, 1993, this Court referred the case
to the Court of Appeals for proper determination and disposition pursuant to Section
9, paragraph 1 of B.P. 129.[15]
Respondent Court dismissed the petition for lack of merit, holding that it had
no jurisdiction to overturn the doctrine laid down in Crespo vs. Mogul --  once a
complaint or information has been filed in court, any disposition of the
case, i.e., dismissal, conviction or acquittal of the accused, rests on the sound
discretion of the trial court.[16]
Hence, this recourse to this Court.
The Issues
For unexplained reasons, petitioner failed to make an assignment of errors
against the appellate court. Her counsel merely repeated the alleged errors of the
trial court: [17]
I. The Orders, dated February 22, 1993 and March 5, 1993, of respondent Judge
Asuncion relied solely on the Crespo vs. Mogul (151 SCRA 462) decision. It is
respectfully submitted that said case is not applicable because:
1. It infringes on the constitutional separation of powers between the executive and
judicial branches of the government;
2. It constitutes or it may lead to misuse or misapplication of judicial power as
defined in the Constitution;
3. It goes against the constitutional proscription that rules of procedure should not
diminish substantive rights;
4. It goes against the principle of non-delegation of powers;
5. It sets aside or disregards substantive and procedural rules;
6. It deprives a person of his constitutional right to procedural due process;
7. Its application may constitute or lead to denial of equal protection of laws;
8. It deprives the secretary of justice or the president of the power to control or
review the acts of a subordinate official;
9. It will lead to, encourage, abet or promote abuse or even corruption among the
ranks of investigating fiscals;
10. It does not subserve the purposes of a preliminary investigation because -
(10.a) It subjects a person to the burdens of an unnecessary trial, specially in cases
where the investigating fiscal recommends no bail for the accused;
(10.b) It subjects the government, both the executive and the judiciary, to
unnecessary time and expenses attendant to an unnecessary trial;
(10.c) It contributes to the clogging of judicial dockets; and
11. It has no statutory or procedural basis or precedent.
II. On the assumption that Crespo vs. Mogul is applicable, it is submitted that -
1. Respondent Judge Asuncion committed grave abuse of discretion, amounting to
lack of jurisdiction, when he denied the Motion to Withdraw Information since he had
already deferred to, if not recognized, the authority of the Secretary of Justice; and
2. The facts in Crespo vs. Mogul are different from the instant case. Hence,
respondent Judge Asuncion committed grave abuse of discretion, amounting to lack
of jurisdiction, when he relied solely on said case in denying the Motion to Withdraw
Information.
In sum, the main issue in this petition is: Did Respondent Court commit any
reversible error in affirming the trial courts denial of the prosecutions Motion to
Withdraw Information?
The Courts Ruling
The petition is impressed with merit. We answer the above question in the
affirmative.
Preliminary Matter
Before discussing the substance of this case, the Court will preliminarily
address a procedural matter. Prior to the effectivity of the 1997 Rules of Civil
Procedure on July 1, 1997, Section 2 of Rule 45, which governed appeals from the
Court of Appeals to the Supreme Court, provided:
SEC. 2. Contents of petition.The petition shall contain a concise statement of x x x
the assignment of errors made in the court below x x x.
A petition for review on certiorari under Rule 45 requires a concise statement
of the errors committed by the Court of Appeals, not of the trial court. For failure to
follow this Rule, the petition could have been dismissed by this Court motu proprio,
considering that under Section 4 of the same Rule, review is not a matter of right but
of sound discretion.
We take this occasion to stress the need for precision and clarity in the
assignment of errors. Review under this rule is unlike an appeal in a criminal case
where the death penalty, reclusin perpetua or life imprisonment is imposed and
where the whole case is opened for review. Under Rule 45, only the issues raised
therein by the petitioner will be passed upon by the Court, such that an erroneous
specification of the issues may cause the dismissal of the petition. We stressed this
in Circular No. 2-90, entitled Guidelines to be Observed in Appeals to the Court of
Appeals and to the Supreme Court, as follows:
4. Erroneous Appeals. x x x x
e) Duty of counsel.It is therefore incumbent upon every attorney who would seek
review of a judgment or order promulgated against his client to make sure of the
nature of the errors he proposes to assign, whether these be of fact or of law; then
upon such basis to ascertain carefully which Court has appellate jurisdiction; and
finally, to follow scrupulously the requisites for appeal prescribed by law, ever aware
that any error or imprecision in compliance may well be fatal to his clients cause.
FOR STRICT COMPLIANCE.
Be that as it may, the Court noting the importance of the substantial matters
raised decided to overlook petitioners lapse and granted due course to the petition
per Resolution dated July 15, 1996, with a warning that henceforth petitions which
fail to specify an assignment of errors of the proper lower court may be denied due
course motu proprio  by this Court.
Determination of Probable Cause Is an Executive Function
The determination of probable cause during a preliminary investigation is
judicially recognized as an executive function and is made by the prosecutor. The
primary objective of a preliminary investigation is to free a respondent from the
inconvenience, expense, ignominy and stress of defending himself/herself in the
course of a formal trial, until the reasonable probability of his or her guilt has been
passed upon in a more or less summary proceeding by a competent officer
designated by law for that purpose. Secondarily, such summary proceeding also
protects the state from the burden of unnecessary expense and effort in prosecuting
alleged offenses and in holding trials arising from false, frivolous or groundless
charges.[18]
Such investigation is not a part of the trial. A full and exhaustive presentation
of the parties evidence is not required, but only such as may engender a well-
grounded belief that an offense has been committed and that the accused is
probably guilty thereof.[19] By reason of the abbreviated nature of preliminary
investigations, a dismissal of the charges as a result thereof is not equivalent to a
judicial pronouncement of acquittal. Hence, no double jeopardy attaches.
In declaring this function to be lodged in the prosecutor, the Court
distinguished the determination of probable cause for the issuance of a warrant of
arrest or a search warrant from a preliminary investigation proper in this wise: [20]
xxx Judges and prosecutors alike should distinguish the preliminary inquiry which
determines probable cause for the issuance of a warrant of arrest from a preliminary
investigation proper which ascertains whether the offender should be held for trial or
released. xxx The determination of probable cause for the warrant of arrest is made
by the Judge. The preliminary investigation proper--whether xxx there is reasonable
ground to believe that the accused is guilty of the offense charged and, therefore,
whether xxx he should be subjected to the expense, rigors and embarrassment of
trial--is the function of the prosecutor.
We reiterate that preliminary investigation should be distinguished as to whether it is
an investigation for the determination of a sufficient ground for the filing of the
information or it is an investigation for the determination of a probable cause for the
issuance of a warrant of arrest. The first kind of preliminary investigation is
executive in nature. It is part of the prosecutors job. The second kind of preliminary
investigation which is more properly called preliminary examination is judicial in
nature and is lodged with the judge.
Sound policy supports this distinction. Otherwise, judges would be unduly
laden with the preliminary examination and investigation of criminal complaints
instead of concentrating on hearing and deciding cases filed before their courts. The
Separate Opinion of Mr. Chief Justice Andres R. Narvasa in Roberts, Jr. vs. Court
of Appeals  stressed that the determination of the existence of probable cause
properly pertains to the public prosecutor in the established scheme of things, and
that the proceedings therein are essentially preliminary, prefatory and cannot lead to
a final, definite and authoritative judgment of the guilt or innocence of the persons
charged with a felony or a crime.[21]
In Crespo vs. Mogul,[22] the Court emphasized the cardinal principle that the
public prosecutor controls and directs the prosecution of criminal offenses thus:
It is a cardinal principle that all criminal actions either commenced by complaint or
by information shall be prosecuted under the direction and control of the fiscal. The
institution of a criminal action depends upon the sound discretion of the fiscal. He
may or may not file the complaint or information, follow or not follow that presented
by the offended party, according to whether the evidence in his opinion, is sufficient
or not to establish the guilt of the accused beyond reasonable doubt. The reason for
placing the criminal prosecution under the direction and control of the fiscal is to
prevent malicious or unfounded prosecution by private persons. It cannot be
controlled by the complainant. Prosecuting officers under the power vested in them
by law, not only have the authority but also the duty of prosecuting persons who,
according to the evidence received from the complainant, are shown to be guilty of a
crime committed within the jurisdiction of their office. They have equally the legal
duty not to prosecute when after an investigation they become convinced that the
evidence adduced is not sufficient to establish a prima facie case.
In the same case, the Court added that where there is a clash of views
between a judge who did not investigate and a fiscal who conducted a
reinvestigation, those of the prosecutor should normally prevail: [23]
x x x x The Courts cannot interfere with the fiscals discretion and control of the
criminal prosecution. It is not prudent or even permissible for a Court to compel the
fiscal to prosecute a proceeding originally initiated by him on an information, if he
finds that the evidence relied upon by him is insufficient for conviction. Neither has
the Court any power to order the fiscal to prosecute or file an information within a
certain period of time, since this would interfere with the fiscals discretion and
control of criminal prosecutions. Thus, a fiscal who asks for the dismissal of the
case for insufficiency of evidence has authority to do so, and Courts that grant the
same commit no error. The fiscal may re-investigate a case and subsequently move
for the dismissal should the re-investigation show either that the defendant is
innocent or that his guilt may not be established beyond reasonable doubt. In a
clash of views between the judge who did not investigate and the fiscal who did, or
between the fiscal and the offended party or the defendant, those of the fiscals
should normally prevail. x x x x.
Appeal as an Exercise of the Justice Secretarys Power of Control Over Prosecutors
Decisions or resolutions of prosecutors are subject to appeal to the secretary
of justice who, under the Revised Administrative Code, exercises the power of direct
control and supervision over said prosecutors; and who may thus affirm, nullify,
reverse or modify their rulings.
Section 39, Chapter 8, Book IV in relation to Section 5, 8, and 9, Chapter 2,
Title III of the Code gives the secretary of justice supervision and control over the
Office of the Chief Prosecutor and the Provincial and City Prosecution Offices. The
scope of his power of supervision and control is delineated in Section 38, paragraph
1, Chapter 7, Book IV of the Code:
(1) Supervision and Control. Supervision and control shall include authority to act
directly whenever a specific function is entrusted by law or regulation to a
subordinate; direct the performance of duty; restrain the commission of acts; review,
approve, reverse or modify acts and decisions of subordinate officials or units; xxxx.
Supplementing the aforequoted provisions are Section 3 of R.A. 3783 and
Section 37 of Act 4007, which read:
Section 3. x x x x
The Chief State Prosecutor, the Assistant Chief State Prosecutors, the Senior State
Prosecutors, and the State Prosecutors shall x x x perform such other duties as may
be assigned to them by the Secretary of Justice in the interest of public service.
xxx xxx xxx
Section 37. The provisions of the existing law to the contrary notwithstanding,
whenever a specific power, authority, duty, function, or activity is entrusted to a chief
of bureau, office, division or service, the same shall be understood as also conferred
upon the proper Department Head who shall have authority to act directly in
pursuance thereof, or to review, modify, or revoke any decision or action of said
chief of bureau, office, division or service.
Supervision and control of a department head over his subordinates have
been defined in administrative law as follows:[24]
In administrative law supervision means overseeing or the power or authority of an
officer to see that subordinate officers perform their duties. If the latter fail or neglect
to fulfill them, the former may take such action or step as prescribed by law to make
them perform such duties. Control, on the other hand, means the power of an officer
to alter or modify or nullify or set aside what a subordinate officer had done in the
performance of his duties and to substitute the judgment of the former for that of the
latter.
Review as an act of supervision and control by the justice secretary over the
fiscals and prosecutors finds basis in the doctrine of exhaustion of administrative
remedies which holds that mistakes, abuses or negligence committed in the initial
steps of an administrative activity or by an administrative agency should be
corrected by higher administrative authorities, and not directly by courts. As a rule,
only after administrative remedies are exhausted may judicial recourse be allowed.
Appeal to the Secretary of Justice Is Not Foreclosed by the Ruling in  Crespo
In Marcelo vs. Court of Appeals,[25] the Court clarified that Crespo[26]  did not
foreclose the power or authority of the secretary of justice to review resolutions of
his subordinates in criminal cases. The Court recognized in Crespo  that the action
of the investigating fiscal or prosecutor in the preliminary investigation is subject to
the approval of the provincial or city fiscal or chief state prosecutor. Thereafter, it
may be appealed to the secretary of justice.
The justice secretarys power of review may still be availed of despite the filing
of an information in court. In his discretion, the secretary may affirm, modify or
reverse resolutions of his subordinates pursuant to Republic Act No. 5180, as
amended,[27] specifically in Section 1 (d):
(d) x x x Provided, finally, That where the resolution of the Provincial or City Fiscal
or the Chief State Prosecutor is, upon review, reversed by the Secretary of Justice,
the latter may, where he finds that no prima facie case exists, authorize and direct
the investigating fiscal concerned or any other fiscal or state prosecutor to cause or
move for the dismissal of the case, or, where he finds a prima facie case, to cause
the filing of an information in court against the respondent, based on the
same sworn statements or evidence submitted without the necessity of conducting
another preliminary investigation.
Pursuant thereto, the Department of Justice promulgated Circular No. 7 dated
January 25, 1990 governing appeals in preliminary investigation. Appeals under
Section 2 are limited to resolutions dismissing a criminal complaint. However,
Section 4 provides an exception: appeals from resolutions finding probable cause
upon a showing of manifest error or grave abuse of discretion are allowed, provided
the accused has not been arraigned. In the present case, petitioners appeal to the
secretary of justice was given due course on August 26, 1992 pursuant to this
Circular.
On June 30, 1993, Circular No. 7 was superseded by Department Order No.
223; however, the scope of appealable cases remained unchanged:
SECTION 1. What May Be Appealed. -- Only resolutions of the Chief State
Prosecutor/Regional State Prosecutor/Provincial or City Prosecutor dismissing a
criminal complaint may be the subject of an appeal to the Secretary of Justice
except as otherwise provided in Section 4 hereof.
Appeals from the resolutions of provincial/city prosecutors where the penalty
prescribed for the offense charged does not exceed prisin correccional,  regardless
of the imposable fine, shall be made to the Regional State Prosecutors who shall
resolve the appeals with finality, pursuant to Department Order No. 318 dated
August 28, 1991 as amended by D.O. No. 34 dated February 4, 1992, D.O. No. 223
dated August 11, 1992 and D.O. No. 45 dated February 2, 1993. Such appeals shall
also be governed by these rules.
SEC. 4. Non-Appealable Cases; Exceptions.--No appeal may be taken from a
resolution of the Chief State Prosecutor/Regional State Prosecutor/Provincial or City
Prosecutor finding probable cause except upon showing of manifest error or grave
abuse of discretion. Notwithstanding the showing of manifest error or grave abuse of
discretion, no appeal shall be entertained where the appellant had already been
arraigned. If the appellant (is) arraigned during the pendency of the appeal, x x x
appeal shall be dismissed motu proprio by the Secretary of Justice.
An appeal/motion for reinvestigation from a resolution finding probable cause,
however, shall not hold the filing of the information in court.
Apart from the foregoing statutory and administrative issuances, the power of
review of the secretary of justice is recognized also by Section 4 of Rule 112 of the
Rules of Court:
SEC. 4. Duty of investigating fiscal.--x x x x
xxx xxx xxx
If upon petition by a proper party, the Secretary of Justice reverses the resolution of
the provincial or city fiscal or chief state prosecutor, he shall direct the fiscal
concerned to file the corresponding information without conducting another
preliminary investigation or to dismiss or move for dismissal of the complaint or
information.
This appeal rests upon the sound discretion of the secretary of justice arising
from his power of supervision and control over the prosecuting arm of the
government, not on a substantial right on the part of the accused as claimed by
petitioner.
Appeal Did Not Divest the Trial Court of Jurisdiction
Where the secretary of justice exercises his power of review only after an
information has been filed, trial courts should defer or suspend arraignment and
further proceedings until the appeal is resolved. Such deferment or suspension,
however, does not signify that the trial court is ipso facto  bound by the resolution of
the secretary of justice. Jurisdiction, once acquired by the trial court, is not lost
despite a resolution by the secretary of justice to withdraw the information or to
dismiss the case.
Judicial Review of the Resolution of the Secretary of Justice
Judicial power is defined under the 1987 Constitution as the duty of courts to
settle actual controversies involving rights which are legally demandable and
enforceable. Such power includes the determination of whether there has been a
grave abuse of discretion amounting to lack or excess of jurisdiction on the part of
any branch or instrumentality of the government. [28] Under this definition, a court is
without power to directly decide matters over which full discretionary authority has
been delegated to the legislative or executive branch of the government. It is not
empowered to substitute its judgment for that of Congress or of the President. It
may, however, look into the question of whether such exercise has been made in
grave abuse of discretion.
Judicial review of the acts of other departments is not an assertion of
superiority over them or a derogation of their functions. In the words of Justice
Laurel in Angara vs. Electoral Commission:[29]
x x x [W]hen the judiciary mediates to allocate constitutional boundaries, it does not
in reality nullify or invalidate an act of the legislature, but only asserts the solemn
and sacred obligation assigned to it by the Constitution to determine conflicting
claims of authority under the Constitution and to establish for the parties in an actual
controversy the rights which that instrument sources and guarantees to them. This
is in truth all that is involved in what is termed judicial supremacy which properly is
the power of the judicial review under the Constitution. x x x.
It is not the purpose of this Court to decrease or limit the discretion of the
secretary of justice to review the decisions of the government prosecutors under
him. In Crespo, the secretary was merely advised to restrict such review to
exceptionally meritorious cases. Rule 112, Section 4 of the Rules of Court, which
recognizes such power, does not, however, allow the trial court to automatically
dismiss the case or grant the withdrawal of the information upon the resolution of
the secretary of justice. This is precisely the import of Crespo, Marcelo, Martinez vs.
Court of Appeals[30]  and the recent case of Roberts, Jr. vs. Court of Appeals,  which
all required the trial court to make its own evaluation of the merits of the case,
because granting the motion to dismiss or to withdraw the information is equivalent
to effecting a disposition of the case itself.
The Marcelo and Martinez Cases Are Consistent
In Marcelo vs. Court of Appeals,[31]  this Court ruled that, although it is more
prudent to wait for a final resolution of a motion for review or reinvestigation from the
secretary of justice before acting on a motion to dismiss or a motion to withdraw an
information, a trial court nonetheless should make its own study and evaluation of
said motion and not rely merely on the awaited action of the secretary. The trial
court has the option to grant or deny the motion to dismiss the case filed by the
fiscal, whether before or after the arraignment of the accused, and whether after a
reinvestigation or upon instructions of the secretary who reviewed the records of the
investigation; provided that such grant or denial is made from its own assessment
and evaluation of the merits of the motion.
 In Martinez vs. Court of Appeals,[32]  this Court overruled the grant of the
motion to dismiss filed by the prosecuting fiscal upon the recommendation of the
secretary of justice because such grant was based upon considerations other than
the judges own assessment of the matter. Relying solely on the conclusion of the
prosecution to the effect that there was no sufficient evidence against the accused
to sustain the allegation in the information, the trial judge did not perform his
function of making an independent evaluation or assessment of the merits of the
case.
Despite the pronouncement in Marcelo  that a final resolution of the appeal to
the Department of Justice is necessary, both decisions followed the rule in Crespo
vs. Mogul: Once a complaint or information is filed in court, any disposition of the
case such as its dismissal or its continuation rests on the sound discretion of the
court. Trial judges are thus required to make their own assessment of whether the
secretary of justice committed grave abuse of discretion in granting or denying the
appeal, separately and independently of the prosecutions or the secretarys
evaluation that such evidence is insufficient or that no probable cause to hold the
accused for trial exists. They should embody such assessment in their written order
disposing of the motion.
The above-mentioned cases depict two extreme cases in complying with this
rule. In Marcelo, the dismissal of the criminal action upon the favorable
recommendation of the Review Committee, Office of the City Prosecutor, was
precipitate in view of the pendency of private complainants appeal to the secretary
of justice. In effect, the secretarys opinion was totally disregarded by the trial
court. In contrast, in Martinez  the dismissal of the criminal action was an erroneous
exercise of judicial discretion as the trial court relied hook, line and sinker on the
resolution of the secretary, without making its own independent determination of the
merits of the said resolution.
No Grave Abuse of Discretion in theResolution of the Secretary of Justice
In the light of recent holdings in Marcelo  and Martinez; and considering that
the issue of the correctness of the justice secretarys resolution has been amply
threshed out in petitioners letter, the information, the resolution of the secretary of
justice, the motion to dismiss, and even the exhaustive discussion in the motion for
reconsideration all of which were submitted to the court -- the trial judge committed
grave abuse of discretion when it denied the motion to withdraw the information,
based solely on his bare and ambiguous reliance on Crespo. The trial courts order
is inconsistent with our repetitive calls for an independent and competent
assessment of the issue(s) presented in the motion to dismiss. The trial judge was
tasked to evaluate the secretarys recommendation finding the absence of probable
cause to hold petitioner criminally liable for libel. He failed to do so. He merely ruled
to proceed with the trial without stating his reasons for disregarding the secretarys
recommendation.
Had he complied with his judicial obligation, he would have discovered that
there was, in fact, sufficient ground to grant the motion to withdraw the
information. The documents before the trial court judge clearly showed that there
was no probable cause to warrant a criminal prosecution for libel.
Under the established scheme of things in criminal prosecutions, this Court
would normally remand the case to the trial judge for his or her independent
assessment of the motion to withdraw the information. However, in order not to
delay the disposition of this case and to afford the parties complete relief, we have
decided to make directly the independent assessment the trial court should have
done. The petitioner has attached as annexes to the present petition for review the
information, which contains a complete and faithful reproduction of the subject letter,
the resolution of the secretary of justice, the prosecutions motion for reconsideration
of the trial courts Order of February 22, 1993, and even the private complainants
opposition to said motion. The records below have been reproduced and submitted
to this Court for its appreciation. Thus, a remand to the trial court serves no purpose
and will only clog the dockets.
We thus proceed to examine the substance of the resolution of the secretary
of justice. The secretary reversed the finding of probable cause on the grounds that
(1) the subject letter was privileged in nature and (2) the complaint was merely a
countercharge.
In every case for libel, the following requisites must concur:
(a) it must be defamatory;
(b) it must be malicious;
(c) it must be given publicity; and
(d) the victim must be identifiable.
 At the preliminary investigation stage, these requisites must show prima
facie a well-founded belief that a crime has been committed and that the accused
probably committed it. A cursory reading of the information immediately
demonstrates a failure on the part of the complainant to establish the foregoing
elements of libel.
Every defamatory imputation, even if true, is presumed malicious, if no good
intention or justifiable motive for making it is shown. There is malice when the author
of the imputation is prompted by personal ill will or spite and speaks not in response
to duty but merely to injure the reputation of the person who claims to have been
defamed. [33] In this case however, petitioners letter was written to seek redress of
proper grievance against the inaccurate distribution and payment of professional
fees and against unfair treatment in the Nuclear Medicine Department of the
Philippine Heart Center. It is a qualified privileged communication under Article
354(1) of the Revised Penal Code which provides:
ART. 354. Requirement of publicity.  -- Every defamatory imputation is presumed to
be malicious, even if it be true, if no good intention and justifiable motive for making
it is shown, except in the following cases:
1. A private communication made by any person to another in the performance of
any legal, moral or social duty; and
xxx xxx xxx
The rule on privileged communication is that a communication made in good
faith on any subject matter in which the communicator has an interest, or concerning
which he has a duty, is privileged if made to a person having a corresponding
interest or duty, although it contains incriminatory matter which, without the
privilege, would be libelous and actionable. Petitioners letter was a private
communication made in the performance of a moral duty on her part. Her intention
was not to inflict an unjustifiable harm on the private complainant, but to present her
grievance to her superior. The privileged nature of her letter overcomes the
presumption of malice. There is no malice when justifiable motive exists; and in the
absence of malice, there is no libel. We note that the information itself failed to
allege the existence of malice.
Thus, we agree with the ruling of the secretary of justice: [34]
x x x (T)he subject letter was written to bring to the attention of the Director of
the Philippine Heart Center for Asia and other responsible authorities the unjust and
unfair treatment that Dr. Ledesma was getting from government employees, and the
subject letter is a complaint x x x on a subject matter in which respondent has an
interest and in reference to which she has a duty to question the same is definitely
privileged (US vs. Bustos, 37 Phil. 131).Moreover, in Ang vs. Castro, 136 SCRA
455, the Supreme Court, citing Santiago vs. Calvo, 48 Phil. 922, ruled that a
communication made in good faith upon any subject matter in which the party
making the communication has an interest or concerning which he has a duty is
privileged although it contains incriminatory or derogatory matter which, without the
privilege, would be libelous and actionable.
The follow-up letter sent by respondent to the director of the PHCA, is a
direct evidence of respondents righteous disposition of following the rule of law and
is a clear indication that her purpose was to seek relief from the proper higher
authority xxx.
The same interpretation should be accorded the civil and administrative complaints
which respondent filed against complainants. They are mere manifestations of her
earnest desire to pursue proper relief for the alleged injustice she got
from complainants. If she was motivated by malice and ill-will in sending the subject
communication to the Director of the PHCA, she would not have sent the second
letter and filed the administrative and civil cases against complainants.
In Alonzo, the settled rule is that, when a public officer, in the discharge of his
or her official duties, sends a communication to another officer or to a body of
officers, who have a duty to perform with respect to the subject matter of the
communication, such communication does not amount to publication within the
meaning of the law on defamation. [35] Publication in libel means making the
defamatory matter, after it has been written, known to someone other than the
person to whom it has been written. [36] The reason for such rule is that a
communication of the defamatory matter to the person defamed cannot injure his
reputation though it may wound his self-esteem. A mans reputation is not the good
opinion he has of himself, but the estimation in which others hold him. [37] In this
case, petitioner submitted the letter to the director of said hospital; she did not
disseminate the letter and its contents to third persons. Hence, there was no
publicity and the matter is clearly covered by paragraph 1 of Article 354 of the Penal
Code.
 Further, we note that the information against petitioner was filed only on July
27, 1992 or one year after June 27, 1991, the date the letter was sent. It is obviously
nothing more than a countercharge to give Complainant Torres a leverage against
petitioners administrative action against him.
Ineluctably, Judge Asuncions denial of the motion to withdraw the information
and the reconsideration thereof was not only precipitate but manifestly
erroneous. This is further compounded by the fact that he did not explain his
grounds for his denial inasmuch as he did not make an independent assessment of
the motion or the arguments in the resolution of the secretary of justice.  All in all,
such rash action did not do justice to the sound ruling in Crespo vs. Mogul upon
which, ironically, he supposedly rested his action, or to the directive
in Marcelo  and Martinez  where this Court required trial courts to make an
independent assessment of the merits of the motion.
WHEREFORE, the assailed Decision is hereby REVERSED and SET
ASIDE. The Motion to Withdraw the Information dated February 17, 1993 filed
before the trial court is GRANTED. No costs.
SO ORDERED.
Davide, Jr., Melo,  and Francisco, JJ.,  concur.
Narvasa C.J., no part: Close relation to a party:
 EN BANC
[G.R. No. 129742. September 16, 1998]
TERESITA G. FABIAN petitioner, vs. HON. ANIANO A. DESIERTO, in his capacity
as ombudsman; HON. JESUS F. GUERRERO, in his capacity as Deputy
Ombudsman for Luzon; and NESTOR V. AGUSTIN respondents.
DECISION
REGALADO, J:
Petitioner has appealed to us by certiorari under Rule 45 of the Rules of Court
from the "Joint Order" issued by public respondents on June 18, 1997 in OMB-Adm.
Case No. 0-95-0411 which granted the motion for reconsideration of and absolved
private respondents from administrative charges for inter alia grave misconduct
committed by him as then Assistant Regional Director, Region IV-A, Department of
Public Works and Highways (DPWH).
I associate" hence he inhibited himself. The case was transferred to respondent
It appears from the statement and counter-statement of facts of the parties
that petitioner Teresita G. Fabian was the major stockholder and president of
PROMAT Construction Development Corporation (PROMAT) which was engaged in
the construction business. Private respondents Nestor V. Agustin was the
incumbent District Engineering District (FMED) when he allegedly committed the
offenses for which he was administratively charged in the Office in the office of the
Ombudsman.
Promat participated in the bidding for government construction project
including those under the FMED, and private respondent, reportedly taking
advantage of his official position, inveigled petitioner into an amorous
relationship. Their affair lasted for some time, in the course of which private
respondents gifted PROMAT with public works contracts and interceded for it in
problems concerning the same in his office.
Later, misunderstanding and unpleasant incidents developed between the
parties and when petitioner tried to terminate their relationship, private respondent
refused and resisted her attempts to do so to the extent of employing acts of
harassment, intimidation and threats. She eventually filed the aforementioned
administrative case against him in a letter-complaint dated July 24, 1995.
The said complaint sought the dismissal of private respondent for violation of
Section 19, Republic Act No. 6770 (Ombudsman Act of 1989) and Section 36 of
Presidential Decree No. 807 (Civil Service Decree), with an ancillary prayer for his
preventive suspension. For purposes of this case, the charges referred to may be
subsumed under the category of oppression, misconduct, and disgraceful or
immoral conduct.
On January 31, 1996, Graft Investigator Eduardo R. Benitez issued a
resolution finding private respondents guilty of grave misconduct and ordering his
dismissal from the service with forfeiture of all benefits under the law. His resolution
bore the approval of Director Napoleon Baldrias and Assistant
Ombudsman Abelardo Aportadera of their office.
Herein respondent Ombudsman, in an Order dated February 26, 1996,
approved the aforesaid resolution with modifications, by finding private respondent
guilty of misconduct and meting out the penalty of suspension without pay for one
year. After private respondent moved for reconsideration, respondent Ombudsman
discovered that the former's new counsel had been his "classmate and close
Deputy Ombudsman Jesus F. Guerrero who, in the now challenged Joint Order of
June 18, 1997, set aside the February 26, 1997 Order of respondent Ombudsman
and exonerated private respondents from the administrative charges.
II
In the present appeal, petitioner argues that Section 27 of Republic Act No.
6770 (Ombudsman Act of 1989)[1] pertinently provides that -
In all administrative diciplinary cases, orders, directives or decisions of the Office of
the Ombudsman may be appealed to the Supreme Court by filing a
petition for certiorari  within ten (10) days from receipt of the written notice of the
order, directive or decision or denial of the motion for reconsideration in accordance
with Rule 45 of the Rules of Court. (Emphasis supplied)
 However, she points out that under Section 7, Rule III of Administrative Order
No. 07 (Rules of Procedure of the office of the Ombudsman), [2] when a respondent
is absolved of the charges in an administrative proceeding decision of the
ombudsman is final and unappealable. She accordingly submits that the office of the
ombudsman has no authority under the law to restrict, in the manner provided in its
aforesaid Rules, the right of appeal allowed by Republic Act No. 6770, nor to limit
the power of review of this Court. Because of the aforecited provision in those Rules
of Procedure, she claims that she found it "necessary to take an alternative
recourse under Rule 65 of the Rules of Court, because of the doubt it creates on the
availability of appeals underRule 45 of the Rules of Court.
Respondents filed their respective comments and rejoined that the Office of
the Ombudsman is empowered by the Constitution and the law to promulgate its
own rules of procedure. Section 13(8), Article XI of the 1987 Constitution provides,
among others, that the Office of the Ombudsman can "(p)romulgate its rules of
procedure and exercise such other powers or perform such functions or duties as
may be provided by law."
Republic Act No. 6770 duly implements the Constitutional mandate with these
relevant provisions:
Sec. 14. Restrictions. - x x x No court shall hear any appeal or application for
remedy against the decision or findings of the Ombudsman except the Supreme
Court on pure question on law.
xxx
Sec. 18. Rules of Procedure. - (1) The Office of the Ombudsman shall promulgate
its own rules of procedure for the effective exercise or performance of its powers,
functions, and duties.
xxx
Sec. 23. Formal Investigation. - (1) Administrative investigations by the Office of the
Ombudsman shall be in accordance with its rules of procedure and consistent with
the due process. x x x
xxx
Sec. 27. Effectivity and Finality of Decisions. - All provisionary orders at the Office
of the Ombudsman are immediately effective and executory.
A motion for reconsideration of any order, directive or decision of the Office of the
Ombudsman must be filed within five (5) days after receipt of written notice shall be
entertained only on any of the following grounds:
xxx
Findings of fact by the Office of the Ombudsman when supported by
substantial evidence are conclusive. Any order, directive or decision imposing the
penalty of public censure or reprimand, suspension of not more than one month
salary shall be final and unappealable.
In all administrative disciplinary cases, orders, directives or decisions of the Office of
the Ombudsman may be appealed to the Supreme Court by filing apetition
for certiorari within ten (10) days from receipt of the written notice of the order,
directive or decision or denial of the motion for reconsideration in accordance with
Rule 45 of the Rules of Court.
The above rules may be amended or modified by the Office of the Ombudsman as
the interest of justice may require.
Respondents consequently contend that, on the foregoing constitutional and
statutory authority, petitioner cannot assail the validity of the rules of procedure
formulated by the Office of the Ombudsman governing the conduct of proceeding
before it, including those with respect to the availabity or non-avalability of appeal in
administrative cases. Such as Section 7, Rule III of Administrative Order No.07.
Respondents also question the propriety of petitioner's proposition that,
although she definitely prefaced her petition by categorizing the same as "an appeal
by certiorari under Rule 45 of the Rules of Court," she makes the aforequoted
ambivalent statement which in effect asks that, should the remedy under Rule 45 be
unavailable, her petition be treated in the alternative as an original action
for certiorari under Rule 65. The parties thereafter engage in a discussion of the
differences between a petition for review on certiorari under Rule 45 and a special
civil action of certiorari under Rule 65.
Ultimately, they also attempt to review and rationalize the decision of this
Court applying Section 27 of Republic Act No. 6770 vis--vis Section 7, Rule III of
Administrative Order No. 07. As correctly pointed out by public respondents,
Ocampo IV vs. Ombudsman, et al.[3] and Young vs. Office of the Ombudsman, et al.
[4]
 were original actions for certiorari under Rule 65. Yabut vs. Office of the
Ombudsman, et al.[5] was commenced by a petition for review on certiorari under
Rule 45. Then came Cruz, Jr. vs. People, et al., [6] Olivas vs. Office of the
Ombudsman, et al., [7] Olivarez vs. Sandiganbayan, et al., [8] and Jao, et al. vs.
Vasquez,[9] which were for certiorari, prohibition and/or mandamus under Rule
65. Alba vs. Nitorreda, et al.[10] was initiated by a pleading unlikely denominated as
an "Appeal/Petition for Certiorari and/or Prohibition," with a prayer for ancillary
remedies, and ultimately followed by Constantino vs. Hon. Ombudsman Aniano
Desierto, et al.[11] which was a special civil action for certiorari.
Considering, however the view that this Court now takes of the case at bar
and the issues therein which will shortly be explained, it refrains from preemptively
resolving the controverted points raised by the parties on the nature and propriety of
application of the writ of certiorari when used as a mode of appeal or as the basis of
a special original action, and whether or not they may be resorted to concurrently or
alternatively, obvious though the answers thereto appear to be. Besides, some
seemingly obiter statements in Yabuts and Alba could bear reexamination and
clarification. Hence, we will merely observe and lay down the rule at this juncture
that Section 27 of Republic Act No. 6770 is involved only whenever an appeal
by certiorari under Rule 45 is taken from a decision in an administrative diciplinary
action. It cannot be taken into account where an original action for certiorari under
Rule 65 is resorted to as a remedy for judicial review, such as from an incident in a
criminal action.
III
After respondents' separate comments had been filed, the Court was intrigued
by the fact, which does appear to have been seriously considered before, that the
administrative liability of a public official could fall under the jurisdiction of both the
Civil Service Commission and the Office of the Ombudsman. Thus, the offenses
imputed to herein private respondent were based on both Section 19 of Republic
Act. No. 6770 and Section 36 of Presidential Decree No. 807. Yet, pursuant to the
amendment of section 9, Batas Pambansa Blg. 129 by Republic Act No. 7902, all
adjudications by Civil Service Commission in administrative disciplinary cases were
made appealable to the Court of Appeals effective March 18, 1995, while those of
the Office of the Ombudsman are appealable to this Court.
It could thus be possible that in the same administrative case involving two
respondents, the proceedings against one could eventually have been elevated to
the Court of Appeals, while the other may have found its way to the Ombudsman
from which it is sought to be brought to this Court. Yet systematic and efficient case
management would dictate the consolidation of those cases in the Court of Appeals,
both for expediency and to avoid possible conflicting decisions.
Then there is the consideration that Section 30, Article VI of the 1987
Constitution provides that "(n)o law shall be passed increasing the appellate
indiction of the Supreme Court as provided in this Constitution without its advice and
consent," and that Republic Act No. 6770, with its challengedSection 27, took effect
on November 17, 1989, obviously in spite of that constitutional grounds must be
raised by a party to the case, neither of whom did so in this case, but that is not an
inflexible rule, as we shall explain.
Since the constitution is intended fort the observance of the judiciary and
other departments of the government and the judges are sworn to support its
provisions, the courts are not at liberty to overlook or disregard its commands or
countenance evasions thereof. When it is clear that a statute trangresses the
authority vested in a legislative body, it is the duty of the courts to declare that the
constitution, and not the statute, governs in a case before them for judgement. [12]
Thus, while courts will not ordinarily pass upon constitutional questions which
are not raised in the pleadings,[13] the rule has been recognized to admit of certain
exceptions. It does not preclude a court from inquiring into its own jurisdiction or
compel it to enter a judgement that it lacks jurisdiction to enter. If a statute on which
a court's jurisdiction in a proceeding depends is unconstitutional, the court has no
jurisdiction in the proceeding, and since it may determine whether or not it has
jurisdiction, it necessarily follows that it may inquire into the constitutionality of the
statute.[14]
Constitutional question, not raised in the regular and orderly procedure in the
trial are ordinarily rejected unless the jurisdiction of the court below or that of the
appellate court is involved in which case it may be raised at any time or on the
court's own motion.[15] The Court ex mero motu may take cognizance of lack of
jurisdiction at any point in the case where the fact is developed. [16] The court has a
clearly recognized right to determine its own jurisdiction in any proceeding.[17]
The foregoing authorities notwithstanding, the Court believed that the parties
hereto should be further heard on this constitutional question.Correspondingly, the
following resolution was issued on May 14, 1998, the material parts stating as
follows:
The Court observes that the present petition, from the very allegations thereof, is
"an appeal by certiorari under Rule 45 of the Rules of Court from the 'Joint Order
(Re: Motion for Reconsideration)' issued in OMB-Adm. Case No. 0-95-0411, entitled
'Teresita G. Fabian vs. Engr. Nestor V. Agustin, Asst. Regional Director, Region IV-
A, EDSA, Quezon City,' which absolved the latter from the administrative charges
for grave misconduct, among other."
It is further averred therein that the present appeal to this Court is allowed under
Section 27 of the Ombudsman Act of 1987 (R.A. No. 6770) and, pursuant thereto,
the Office of the Ombudsman issued its Rules of Procedure, Section 7 whereof is
assailed by petitioner in this proceeding. It will be recalled that R.A. No. 6770 was
enacted on November 17, 1989, with Section 27 thereof pertinently providing that all
administrative diciplinary cases, orders, directives or decisions of the Office of the
Ombudsman may be appealed to this Court in accordance with Rule 45 of the Rules
of Court.
The Court notes, however, that neither the petition nor the two comments thereon
took into account or discussed the validity of the aforestated Section 27 of R.A. No.
8770 in light of the provisions of Section 30, Article VI of the 1987 Constitution that
"(n)o law shall be passed increasing the appellate jurisdiction of the Supreme Court
as provided in this Constitution without its advise and consent."
The Court also invites the attention of the parties to its relevant ruling in First
Lepanto Ceramics, Inc. vs. The Court of Appeals , et al. (G.R. No. 110571, October
7, 1994, 237 SCRA 519) and the provisions of its former Circular No. 1-95,as now
substantially reproduced in Rule 43 of the 1997 revision of the Rules of Civil
Procedure.
In view of the fact that the appellate jurisdiction of the Court is invoked and involved
and in this case, and the foregoing legal consideration appear to impugn the
constitutionality and validity of the grant of said appellate jurisdiction to it, the Court
deems it necessary that the parties be heard thereon and the issue be first resolved
before conducting further proceedings in this appellate review.
ACCORDINGLY, the Court Resolved to require the parties to Submit their position
and arguments on the matter subject of this resolution by filing their corresponding
pleadings within ten (10) days from notice hereof.
IV
The records do not show that the Office of the Solicitor General has complied
with such requirement, hence the Court dispenses with any submission it should
have presented. On the other hand, petitioner espouses the theory that the
provision in Section 27 of Republic Act No. 6770 which authorizes an appeal
by certiorari to this Court of the aforementioned adjudications of the Ombudsman is
not violative of Section 30, Article VI of the Constitution. She claims that what is
proscribed is the passage of law "increasing" the appellate jurisdiction of this Court
"as provided in this Constitution," and such appellate jurisdiction includes "all cases
in which only an error or question of law is involved." Since Section 5(2)(e), Article
VIII of the Constitution authorizes this Court to review, revise, reverse, modify, or
affirm on appeal or certiorari the aforesaid final judgement or orders "as the law or
the Rules of Court may provide," said Section 27 does not increase this Court may
provide," said section 27 does not increase this Court's appellate jurisdiction since,
by providing that the mode of appeal shall be by petition for certiorari under Rule 45,
then what may be raised therein are only questions of law of which this Court
already has of which this Court already has jurisdiction.
We are not impressed by this discourse. It overlooks the fact that by
jurisprudential developments over the years, this Court has allowed appeals
by certiorari under Rule 45 in a substantial number of cases and instances even if
questions of fact are directly involved and have to be resolved by the appellate
court.[18] Also, the very provision cited by petitioner specifies that the appellate
jurisdiction of this Court contemplated therein is to be exercised over "final
judgements and orders of lower courts," that is, the courts composing the integrated
judicial system. It does not include the quasi-judicial bodies or agencies, hence
whenever the legislature intends that the decisions or resolutions of the quasi-
judicial agency shall be reviewable by the Supreme Court or the Court of Appeals, a
specific provision to that effect is included in the law creating that quasi-judicial
agency and, for that matter, any special statutory court. No such provision on
appellate procedure is required for the regular courts of the integrated judicial
system because they are what are referred to and already provided for in Section 5,
Article VIII of the Constitution.
Apropos to the foregoing, and as correctly observed by private respondent,
the revised Rules of Civil Procedure [19] preclude appeals from quasi-judicial
agencies to the Supreme Court via a petition for review on certiorari under Rule
45. In the 1997 Rules of Civil Procedure, Section 1 Rule 45, on "Appeal
by Certiorari to the Supreme Court," explicitly states:
SECTION 1 . Filing of petition with Supreme Court. - A person desiring to appeal
by certiorari from a judgement or final order or Resolution of the Court of Appeals,
the Sandiganbayan, the Regional Trial Court or other court whenever authorized by
law, may file with the Supreme Court a verified petition for review on certiorari. The
petition shall raise only question of law which must be distinctly set forth. (Italics
ours).
This differs from the former Rule 45 of the 1964 Rules of Court which made
mention only of the Court of Appeals, and had to be adopted in statutes creating
and providing for appeals from certain administrative or quasi-judicial agencies,
whenever the purpose was to restrict the scope of the appeal to questions of
law. That intended limitation on appellate review, as we have just discussed, was
not fully subserved by recourse to the former Rule 45 but, then, at that time there
was no uniform rule on appeals from quasi-judicial agencies.
Under the present Rule 45, appeals may be brought through a petition for
review on certiorari but only from judgments and final orders of the
courtsenumerated in Section 1 thereof. Appeals from judgments and final orders of
quasi-judicial agencies[20] are now required to be brought to the Court of Appeals on
a verified petition for review, under the requirements and conditions in Rule 43
which was precisely formulated and adopted to provide for a uniform rule of
appellate procedure for quasi-judicial agencies .[21]
It is suggested, however, that the provisions of Rule 43 should apply only to
"ordinary" quasi-judicial agencies, but not to the Office of the Ombudsman which is
a "high constitutional body." We see no reason for this distinction for, if hierarchical
rank should be a criterion, that proposition thereby disregards the fact that Rule 43
even includes the Office of the President and the Civil Service Commission,
although the latter is even an independent constitutional commission, unlike the
Office of the Ombudsman which is a constitutionally-mandated but statutorily
created body.
Regarding the misgiving that the review of the decision of the Office of the
Ombudsman by the Court of Appeals would cover questions of law, of fact or of
both, we do not perceive that as an objectionable feature. After all, factual
controversies are usually involved in administrative disciplinary actions, just like
those coming from the Civil Service, Commission, and the Court of Appeals as a
trier of fact is better prepared than this Court to resolve the same. On the other
hand, we cannot have this situation covered by Rule 45 since it now applies only to
appeals from the regular courts. Neither can we place it under Rule 65 since the
review therein is limited to jurisdictional questions.*
The submission that because this Court has taken cognizance of cases
involving Section 27 of Republic Act No. 6770, that fact may be viewed as
"acquiescence" or "acceptance" by it of the appellate jurisdiction contemplated in
said Section 27, is unfortunately too tenuous. The jurisdiction of a court is not of
acquiescence as a matter of fact but an issue of conferment as a matter of law.
Besides, we have already discussed the cases referred to, including the
inaccuracies of some statements therein, and we have pointed out the instances
when Rule 45 is involved, hence covered by Section 27 of Republic Act No. 6770
now under discussion, and when that provision would not apply if it is a judicial
review under Rule 65.
Private respondent invokes the rule that courts generally avoid having to
decide a constitutional question, especially when the case can be decided on other
grounds. As a general proposition that is correct. Here, however, there is an actual
case susceptible of judicial determination. Also, the constitutional question, at the
instance of this Court, was raised by the proper parties, although there was even no
need for that because the Court can rule on the matter sua sponte  when its
appellate jurisdiction is involved. The constitutional question was timely raised,
although it could even be raised any time likewise by reason of the jurisdictional
issue confronting the Court. Finally, the resolution of the constitutional issue here is
obviously necessary for the resolution of the present case.  [22]
It is, however, suggested that this case could also be decided on other
grounds, short of passing upon; the constitutional question. We appreciate the
ratiocination of private respondent but regret that we must reject the same. That
private respondent could be absolved of the charge because the decision
exonerating him is final and unappealable assumes that Section 7, Rule III of
Administrative Order No. 07 is valid, but that is precisely one of the issues here. The
prevailing rule that the Court should not interfere with the discretion of the
Ombudsman in prosecuting or dismissing a complaint is not applicable in this
administrative case, as earlier explained. That two decisions rendered by this Court
supposedly imply the validity of the aforementioned Section 7 of Rule III is precisely
under review here because of some statements therein somewhat at odds with
settled rules and the decisions of this Court on the same issues, hence to invoke the
same would be to beg the question.
V
Taking all the foregoing circumstances in their true legal roles and effects,
therefore, Section 27 of Republic Act No. 6770 cannot validly authorize an appeal  to
this Court from decisions of the Office of the Ombudsman in administrative
disciplinary cases. It consequently violates the proscription in Section 30, Article VI
of the Constitution against a law which increases the Appellate   jurisdiction of this
Court. No countervailing argument has been cogently presented to justify such
disregard of the constitutional prohibition which, as correctly explained in First
Leparto Ceramics, Inc. vs. The Court of Appeals, el al. [23] was intended to give this
Court a measure of control over cases placed under its appellate
Jurisdiction. Otherwise, the indiscriminate enactment of legislation enlarging its
appellate jurisdiction would unnecessarily burden the Court [24]
We perforce have to likewise reject the supposed inconsistency of the ruling in
First Lepanto  Ceramics  and some statements in Yabut and Alba,  not only because
of the difference in the factual settings, but also because those isolated cryptic
statements in Yabut and Alba should best be clarified in the adjudication on the
merits of this case. By way of anticipation, that will have to be undertaken by the
proper court of competent jurisdiction.
Furthermore in addition to our preceding discussion on whether Section 27 of
Republic Act No. 6770 expanded the jurisdiction of this Court without its advice and
consent, private respondent's position paper correctly yields the legislative
background of Republic Act No. 6770. On September 26, 1989, the Conference
Committee Report on S.B. No. 453 and H.B. No. 13646, setting forth the new
version of what would later be Republic Act No. 6770, was approved on second
reading by the House of Representatives.[25] The Senate was informed of the
approval of the final version of the Act on October 2, 1989 [26] and the same was
thereafter enacted into law by President Aquino on November 17, 1989.
Submitted with said position paper is an excerpt showing that the Senate, in
the deliberations on the procedure for appeal from the Office of the Ombudsman to
this Court, was aware of the provisions of Section 30, Article III of the Constitution. It
also reveals that Senator Edgardo Angara, as a co-author and the principal sponsor
of S.B. No. 543 admitted that the said provision will expand this Court's jurisdiction,
and that the Committee on Justice and Human Rights had not consulted this Court
on the matter, thus:
INTERPELLATION OF SENATOR SHAHANI
xxx
Thereafter, with reference to Section 22(4) which provides that the decisions of the
Office of the Ombudsman may be appealed to the Supreme Court, in reply to
Senator Shahani's query whether the Supreme Court would agree to such provision
in the light of Section 30, Article VI of the Constitution which requires its advice and
concurrence in laws increasing its appellate jurisdiction, Senator Angara informed
that the Committee has not yet consulted the Supreme Court regarding the
matter. He agreed that the provision will expand the Supreme Court's jurisdiction by
allowing appeals through petitions for review, adding that they should be appeals
on certiorari.[27] There is no showing that even up to its enactment, Republic Act No.
6770 was ever referred to this Court for its advice and consent . [28]
VI
As a consequence of our ratiocination that Section 27 of Republic Act No.
6770 should be struck down as unconstitutional, and in line with the regulatory
philosophy adopted in appeals from quasi-judicial agencies in the 1997 Revised
Rules of Civil Procedure, appeals from decisions of the Office of the Ombudsman in
administrative disciplinary cases should be taken to the Court of Appeals under the
provisions of Rule 43.
There is an intimation in the pleadings, however, that said Section 27 refers to
appellate jurisdiction which, being substantive in nature, cannot be disregarded by
this Court under its rule-making power, especially if it results in a diminution,
increase or modification of substantive rights. Obviously, however, where the law is
procedural in essence and purpose, the foregoing consideration would not pose a
proscriptive issue against the exercise of the rule-making power of this Court. This
brings to fore the question of whether Section 27 of Republic Act No. 6770 is
substantive or procedural.
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. [29] It is admitted that what is procedural
and what is substantive is frequently a question of great difficulty. [30] 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. [31] 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 o implementing an existing right then the rule deals merely with procedure.
[32]
 In the situation under consideration, a transfer by the Supreme Court, in the
exercise of its rule-making power, of pending cases involving a review of decisions
of the Office of the Ombudsman in administrative disciplinary actions to the Court of
Appeals which shall now be vested with exclusive appellate jurisdiction thereover,
relates to procedure only.[33] This is so because it is not the right to appeal of an
aggrieved party which is affected by the law. That right has been preserved. Only
the procedure by which the appeal is to be made or decided has been changed. The
rationale for this is that litigant has a vested right in a particular remedy, which may
be changed by substitution without impairing vested rights, hence he can have none
in rules of procedure which relate to the remedy. [34]
Furthermore, it cannot be said that transfer of appellate jurisdiction to the
Court of Appeals in this case is an act of creating a new right of appeal because
such power of the Supreme Court to transfer appeals to subordinate appellate
courts is purely a procedural and not a substantive power. Neither can we consider
such transfer as impairing a vested right because the parties have still a remedy and
still a competent tribunal to administer that remedy. [35]
Thus, it has been generally held that rules or statutes involving a transfer of
cases from one court to another, are procedural and remedial merely and that, as
such, they are applicable to actions pending at the time the statute went into
effect[36] or, in the case at bar, when its invalidity was declared.Accordingly, even
from the standpoint of jurisdiction ex hypothesi the validity of the transfer of appeals
in said cases to the Court of Appeals can be sustained.
WHEREFORE, Section 27 of Republic Act No. 6770 (Ombudsman Act of
1989), together with Section 7, Rule III of Administrative Order No. 07 (Rules of
Procedure of the Office of the Ombudsman), and any other provision of law or
issuance implementing the aforesaid Act and insofar as they provide for appeals in
administrative disciplinary cases from the Office of the Ombudsman to the Supreme
Court, are hereby declared INVALID and of no further force and effect.
The instant petition is hereby referred and transferred to the Court of Appeals
for final disposition, with said petition to be considered by the Court of Appeals pro
hac vice  as a petition for review under Rule 43, without prejudice to its requiring the
parties to submit such amended or supplemental pleadings and additional
documents or records as it may deem necessary and proper.
SO ORDERED.
Narvasa, C.J., Davide, Jr., Romero, Bellosillo, Melo, Puno, Vitug, Kapunan,
Mendoza, Panganiban, Martinez, Quisumbing,  and Purisima JJ.,  concur.
 FIRST DIVISION
[G.R. No. 146731. January 13, 2004]
AGUSTINA M. ENEMECIO, petitioner, vs.  OFFICE OF THE OMBUDSMAN
(VISAYAS) and SERVANDO BERNANTE, respondents.
DECISION
CARPIO, J.:
The Case
Before us is a petition for review on certiorari[1] assailing the
Resolution[2] dated 31 May 2000 of the Court of Appeals in CA-G.R. SP No.
58875. The Court of Appeals dismissed for being an inappropriate remedy the
petition for certiorari filed by petitioner Agustina M. Enemecio against respondents
Office of the Ombudsman and Servando Bernante. The present petition also assails
the Court of Appeals Resolution dated 7 December 2000 denying petitioners motion
for reconsideration.
The Antecedents
Petitioner Agustina M. Enemecio (Enemecio) is a utility worker at the Cebu
State College of Science and Technology, College of Fisheries Technology
(CSCST-CFT), Carmen, Cebu. Private respondent Servando Bernante (Bernante) is
an Assistant Professor IV of CSCST-CFT.
On 30 March 1998, Enemecio filed an administrative complaint for gross
misconduct, falsification of public documents, malversation, dishonesty and
defamation against Bernante before the Office of the Executive Dean of CSCST-
CFT.[3] Dr. Severino R. Romano, CSCST-CFT Executive Dean, indorsed the
complaint to the Office of the Ombudsman for the Visayas (Ombudsman).
Enemecio also filed with the Ombudsman a criminal complaint against
Bernante for falsification of public document. [4] The Ombudsman ordered Enemecio
to submit her affidavit and the affidavits of her witnesses. After Enemecio submitted
the required affidavits, the Ombudsman ordered Bernante to submit his counter-
affidavit. The administrative complaint was docketed as OMB-VIS-ADM-98-0201,
while the criminal complaint was docketed as OMB-VIS-CRIM-98-0286. The
Ombudsman jointly tried the two cases.
Enemecio alleged that Bernante had caused the spray-painting of obscene
and unprintable words against her on the walls of the CSCST Carmen
Campus. Enemecio claimed that Bernante also shouted defamatory words against
her while she was inside the school premises. Enemecio further asserted that
Bernante made it appear in his leave application that he was on forced leave from
15 May 1996 to 21 May 1996 and on vacation leave from 22 May 1996 to 31 May
1996. In truth, Bernante was serving a 20-day prison term, from 14 May 1996 to 2
June 1996, because of his conviction of the crime of slight physical injuries in
Criminal Case No. NR-1678-CR. Bernante was able to receive his salary during his
incarceration since then CSCST-CFT Superintendent Andres T. Melencion
approved Bernantes application for leave. Enemecio contended that Bernante was
not entitled to receive salary for that period because of his falsified leave
applications.[5]
For his part, Bernante did not deny that he was in prison from 15 May 1996 to
31 May 1996. He maintained that he received his salary for that period because of
his duly approved leave applications. Bernante also alleged that Enemecio filed the
criminal and administrative complaints against him in retaliation for the case he filed
against Enemecios friends, Dean Severino Romano and Bernadette
Mante.Bernante denied he was behind the spray-painting of obscenities against
Enemecio on the walls of the school campus.[6]
On 13 January 2000, the Ombudsman rendered a decision dismissing
the administrative complaint against Bernante in OMB-VIS-ADM-98-0201. The
Ombudsman explained:
On the issue of the alleged falsification of respondents application for leave by
making it appear that he was on vacation when in truth and in fact he was serving a
sentence for a criminal conviction, we have determined that there is no regulation
restricting the purpose or use of an employees earned leave credits. Considering
that the application for leave filed by the respondent was duly approved by the
appropriate official concerned, it matters not how he utilizes his leave for it is not a
requirement that the specifics or reasons for going on leave be spelled out in such
application.
On the issue of the spray painting of obscenities on the walls of the school, the
evidence is insufficient to prove that respondent was the person responsible for
such as there were no eye witnesses to such activity. The testimony of Bernadette
Mante merely identifies the respondent as allegedly having a drinking session with
security guard Estanislao Lavaria at around 11:00 on the night of March 29,
1998. Furthermore, witness Mante states that there are about ten (10) to twelve (12)
families living inside the dormitory facing the school walls where the grafitti
appeared. Despite this number, not one single person appeared to have witnessed
respondent spray painting the questioned grafitti on the walls of the campus (TSN,
April 19, 1999). While it may be probable that the only person or persons who could
have had the opportunity to spray paint the said grafitti on the night of March 29,
1998 or in the early morning hours of March 30, 1998 were the respondent and
security guard Lavaria, this is not sufficient justification to directly blame them for
such event.
Regarding the complainants allegation that on March 10 and 25, 1998, the
respondent defamed the former by uttering slanderous words, it appears that only
the incident occurring on March 10, 1998 was corroborated by the testimony of
witness Delfin Buot (TSN, April 7, 1998). Witness Buot testified that he was about
(3) meters from the respondent when the latter shouted the words buricat (whore)
putang ina and maot (snob) to the complainant. However, the circumstances of the
utterance, particularly the time and the relation of the protagonists involved, leads us
to conclude that the same is removed from the official functions of the respondent
as a professor of the school. Stated otherwise, the act of the respondent was not in
relation to his official functions.In the case of Palma vs. Fortich, et al.,  147 SCRA
397, the Supreme Court ruled that:
In administrative actions against municipal officers, the Supreme Court in Festijo v.
Crisologo, et al. (17 SCRA 868, 869 [1966]), classified the grounds for suspension
under two categories, namely: (1) those related to the discharge of the functions of
the officer concerned (neglect of duty, oppression, corruption or other forms of
maladministration of office and (2) those not so connected with said
functions. Under the second category, when the crime involving moral turpitude is
not linked with the performance of official duties, conviction by final judgment is
required as a condition precedent to administrative action.
Therefore, inasmuch as the oral defamation charge is now pending before the
Municipal Circuit Trial Court in Catmon, Cebu under Criminal Case No. 30006-CR,
the matter of respondents administrative culpability is still premature to be
determined herein.[7]
On the same date, the Ombudsman dismissed the criminal complaint against
Bernante in OMB-VIS-CRIM-98-0286[8] finding no probable cause to indict Bernante
for falsification of public document. The Ombudsman explained thus:
It is well established by documentary evidence that the applications for leave filed by
the respondent for the period from May 15 to 31, 1996 were duly approved by the
head of office, which in this case is Mr. Andres T. Melencion, Vocational School
Superintendent. All these leaves were with pay indicating that the respondent
availed of his leave credits which are undeniably due to him by law. It matters not
how the respondent utilizes the days where he is on leave, be they enjoyed as a
vacation or, in this case, incarceration for a crime. There appears to be no
regulation or law against the utilization of leave credits for purposes other than
recreation. As such, there could be no falsification where nothing is being
misrepresented in the official leave forms which the respondent prepared and
submitted.[9]
The Ombudsman denied Enemecios motion to reconsider the dismissal of
the criminal complaint in its Order of 28 February 2000. In denying the motion, the
Ombudsman stated:
We find the complainants arguments untenable. There is no dispute that the leave
forms are public documents. What is in dispute is whether or not the failure of the
respondent to indicate therein the reasons for his leave amounts to a crime of
falsification. It is submitted that it does not, for the simple reason that the form itself
does not require stating the reasons for going on leave. An employee simply
indicates through check marks the nature of the leave he is availing of, which in the
case at bar, respondent chose to avail of his forced and vacation leave
credits. Nevertheless, the omission does not affect the validity of its approval. What
is indicated in the leave forms is only the need to specify the whereabouts of the
employee who goes on leave.However, it is not a requirement that specifics must be
provided. In any case the omission to state the location of a vacationing employee is
not a condition sine-qua-non for its approval.
To sum it up, there is no falsification of leave forms where there is no requirement
for the indication of reasons for going on leave. Regardless of such a requirement,
the need to indicate the whereabouts of a vacationing employee is not a necessity
for its approval.[10]
Enemecio filed a special civil action for certiorari before the Court of Appeals,
assailing the resolutions which dismissed the criminal complaint and denied the
motion for reconsideration in OMB-VIS-CRIM-98-0286. Applying the ruling in Fabian
v. Desierto,[11] the appellate court dismissed Enemecios petition for having been filed
out of time. The appellate court also stated that the proper remedy available to
Enemecio was a petition for review under Rule 43 and not a petition for certiorari
under Rule 65.
In her motion for reconsideration, Enemecio argued that the appellate court
should not have relied on Fabian.  Enemecio contended that Fabian declared void
only Section 27 of Republic Act No. 6770 (RA 6770) and Section 7, Rule III of
Administrative Order No. 07 (AO No. 07) insofar as they provide for appeals in
administrative disciplinary cases from the Ombudsman to the Supreme
Court. Enemecio asserted that the other provisions of Section 27 of RA 6770 and
Section 7 of AO No. 07, including the final and unappealable character of orders,
resolutions or decisions exonerating a respondent from any criminal liability, still
stand. Enemecio stated that she filed the petition for certiorari under Rule 65 with
the Court of Appeals because she considered Bernantes absolution from the
administrative complaint in OMB-VIS-ADM-98-0201 as already final and
unappealable. As there was no adequate remedy of appeal, Enemecio claimed that
her only recourse was a petition for certiorari before the appellate court under Rule
65.[12]
The Court of Appeals denied Enemecios motion for reconsideration in its
Order of 7 December 2000.
Hence, this petition for review.
The Ruling of the Court of Appeals
In dismissing the petition, the Court of Appeals stated that in Fabian,  the
Supreme Court held that appeals in administrative disciplinary cases from the
Ombudsman to the Court of Appeals must be brought by petition for review under
Rule 43. The appellate court stated that a petition for review must be filed within 15
days from notice of the assailed final order or resolution. Since Enemecio received
on 22 March 2000 a copy of the Ombudsmans Order denying her motion for
reconsideration, the appellate court ruled that Enemecio had only until 6 April 2000
to file a petition for review. Enemecio filed her petition only on 8 May 2000. The
appellate court further stated that Enemecios allegation in the petition that there is
no appeal or other plain, speedy or adequate remedy in the ordinary course of law is
false. The proper remedy available to Enemecio is a petition for review. [13]
In denying Enemecios motion for reconsideration, the Court of Appeals
clarified that Fabian  does not apply to Enemecios petition assailing the dismissal of
the criminal complaint against Bernante. The appellate court stated that
what Fabian  declared void was Section 27 of RA 6770, which authorized appeals to
the Supreme Court from decisions of the Ombudsman in administrative disciplinary
cases.Under the Fabian ruling, the appellant should take such appeal in
administrative disciplinary cases to the Court of Appeals under Rule 43.The Court of
Appeals added that it follows that the power to review decisions of the Ombudsman
in criminal cases is retained by the Supreme Court under Section 14 of RA
6770. Thus, the appellate court dismissed the petition for lack of jurisdiction. [14]
The Issues
Enemecio contends that:
1. The Court of Appeals gravely abused its discretion in refusing to
assume jurisdiction over the petition.
2. The Court of Appeals gravely erred in failing to appreciate that a
petition for certiorari under Rule 65 was the appropriate course
of action considering the circumstances obtaining.
3. The Court of Appeals gravely erred in dismissing the petition for
certiorari under Rule 65 filed by petitioner by misinterpreting the
ruling of the Supreme Court in Fabian vs. Desierto.[15]
The issues boil down to whether a petition for certiorari under Rule 65 filed
before the Court of Appeals is the proper remedy to question the dismissal of
a criminal complaint filed with the Ombudsman.
 The Courts Ruling
We resolve to dismiss this petition.
Enemecio filed before the Court of Appeals a petition for certiorari under Rule
65[16] questioning the Ombudsmans Resolution dated 13 January 2000 and Order
dated 28 February 2000 dismissing the criminal case against Bernante.[17] Thus, the
Prefatory statement of Enemecios Petition in the Court of Appeals states:
This is a Petition for Certiorari under Rule 65 of the Rules of Court seeking to nullify
the Resolution dated 13 January 2000 and the Order dated 28 February 2000 both
issued by the Public Respondent in the Ombudsman Case docketed as OMB-VIS-
CRIM-98-0201 and entitled, Agustina Enemecio vs. Servando Bernante, Asst.
Professor IV, CSCST- College of Fisheries Technology, Carmen, Cebu, for being a
manifest and grave abuse of discretion amounting to excess of jurisdiction. The
Resolution dated 13 January 2000 dismissed the criminal complaint for malversation
and falsification of public documents filed against herein Private Respondent while
the Order dated 28 February 2000 denied herein Petitioners Motion for
Reconsideration.Certified machine copies of the aforesaid Resolution and Order are
hereto appended as Annexes A and B respectively. (Emphasis supplied)
The appellate court dismissed Enemecios petition and denied her motion for
reconsideration. Enemecio now comes to this Court via this petition for review,
claiming that what was involved in the petition before the appellate court was the
administrative, not the criminal case.[18] Enemecio thus stresses that there is no
reason for the Court of Appeals to say that the petition concerned the criminal case.
[19]
We cannot countenance the sudden and complete turnabout of Enemecio and
her counsel, Atty. Terence L. Fernandez. Atty. Fernandezs conduct has fallen far
too short of the honesty required of every member of the Bar.
It is clear from the records that Atty. Fernandez filed with the Court of Appeals
a certiorari petition assailing the Ombudsmans Resolution and Order dismissing
the criminal case, not the administrative case against Bernante. For this reason, the
appellate court in its 7 December 2000 Resolution rectified itself and stated
that Fabian  does not apply to Enemecios petition as the Fabian ruling applies only
to administrative disciplinary actions. Atty. Fernandezs attempt to mislead this Court
in a last ditch effort to secure a decision favorable to his clients cause does not
escape our attention. As an officer of the court, Atty. Fernandez is duty bound to
uphold the dignity and authority of the court to which he owes fidelity according to
the oath he has taken as attorney, and not to promote distrust in the administration
of justice.He must always bear in mind that good faith and honorable dealings with
judicial tribunals are primary obligations of an attorney. He must always remember
to deal with courts with truthfulness and not to trifle with court proceedings. [20] For
this, Atty. Fernandez should be admonished not to commit similar acts again.
Even if we consider Enemecios petition before the Court of Appeals as
questioning the dismissal of the administrative case against Bernante, the action
must also fail. Appeals from decisions of the Ombudsman in administrative
disciplinary actions should be brought to the Court of Appeals under Rule 43. [21] The
only provision affected by the Fabian ruling is the designation of the Court of
Appeals as the proper forum and of Rule 43 as the proper mode of appeal.  All other
matters in Section 27 of RA 6770, including the finality or non-finality of decisions of
the Ombudsman, remain valid.[22]
In any event, jurisprudence now holds that where the findings of the
Ombudsman on the existence of probable cause in criminal cases is tainted with
grave abuse of discretion amounting to lack or excess of jurisdiction, the aggrieved
party may file a petition for certiorari with the Supreme Court under Rule 65. [23] Since
Enemecio filed a certiorari petition before the Court of Appeals, instead of the
Supreme Court, she availed of a wrong remedy in the wrong forum. Hence, the
instant petition should be dismissed outright.
Even if we consider the substance of the case, we find no grave abuse of
discretion in the Ombudsmans determination of whether there exists a prima
facie case against Bernante.
Enemecio assails the dismissal of the criminal charges against Bernante for
two reasons: (1) that she was able to prove before the Ombudsman the charge for
malversation against Bernante; and (2) that Bernante himself admitted that he
signed and filed the subject leave applications.
Enemecio asserts that she was able to present before the Ombudsman the
payroll of the CSCST-CFT employees covering the period from 16 May 1996 to 31
May 1996 signed by Bernante. Enemecio asserts that this document proved that
Bernante actually received and was paid the amount of P3,185.08 as a result of his
falsified letter-requests and leave applications. According to Enemecio, these
constituted acts of malversation.
Enemecios contentions do not deserve serious consideration.
 Under Article 171, paragraph 4 of the Revised Penal Code, the elements of
falsification of public documents through an untruthful narration of facts are: (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 to injure a third person. [24]
As the Ombudsman correctly pointed out, Enemecio failed to point to any law
imposing upon Bernante the legal obligation to disclose where he was going to
spend his leave of absence. Legal obligation means that there is a law requiring the
disclosure of the truth of the facts narrated. [25] Bernante may not be convicted of the
crime of falsification of public document by making false statements in a narration of
facts absent any legal obligation to disclose where he would spend his vacation
leave and forced leave.
In PCGG v. Desierto,[26] the Court ruled that the Ombudsman has the
discretion to determine whether a criminal case, given the facts and circumstances,
should be filed or not. The Ombudsman may dismiss the complaint forthwith if he
finds it insufficient in form or substance. On the other hand, he may continue with
the inquiry if he finds otherwise. If, in the Ombudsmans view, the complaint is
sufficient in form and substance, he may proceed with the investigation. In fact, the
Ombudsman has the power to dismiss a complaint outright without going through a
preliminary investigation.[27]
Our evaluation of the records leads us to the conclusion that the Ombudsman
has carefully studied the merits of the criminal complaint.Where the Ombudsman
has thoroughly examined the merits of the complaint, it would not be right to subject
the private respondent to an unnecessary and prolonged anguish. [28]
WHEREFORE, the petition is DENIED for lack of merit. No costs.
SO ORDERED.
 THIRD DIVISION
G.R. No. 161425, November 23, 2016
ANIANO DESIERTO (SUBSTITUTED BY SIMEON V. MARCELO) AND
MAUCENCIA ORDONEZ, Petitioners, v. RUTH EPISTOLA AND RODOLFO
GAMIDO, Respondents.
RESOLUTION
PEREZ, J.:
This is a petition for review on certiorari assailing the Decision 1 dated 16 December
2003 of the Court of Appeals in CA-G.R. SP No. 68508 which reversed the Office of
the Deputy Ombudsman for Luzon's (Ombudsman) finding that respondents are
administratively liable for simple neglect of duty and grave misconduct.
Respondent Ruth Epistola (Epistola), now deceased, was a public school teacher
and class adviser, while Rodolfo Gamido (Gamido) was a Barangay Captain.
Respondents are related.
This case arose from the death of Rustom Ordo�ez (Rustom) due to drowning
when he went to the river to gather water lilies for a class project. Rustom was a
Grade V student at Bone North Elementary School in Aritao, Nueva Vizcaya.
According to Rustom's classmate, Jhomel Patinio (Jhomel), Rustom, Harold
Rafanan, Jayson Acosta and Rolly Fei Acosta were ordered by their class adviser
Epistola to gather water lilies for the beautification of the school lagoon on 12 March
1999.2 On the following day, Rustom sought permission from his grandmother
Maucencia Ordo�ez (Maucencia) to collect water lilies. Maucencia forbade Rustom
from going but the latter sneaked out of the house and went to the river to gather
lilies. Rustom drowned and instantaneously died.
Armed with Jhomel's 22 July 1999 Sworn Statement, Maucencia filed a criminal
complaint on 8 December 1999 against Epistola before the Office of the Deputy
Ombudsman for Luzon for reckless imprudence.
On 22 February 2000, Jhomel retracted his previous statement and attested that he
heard Epistola assign Harold, and not Rustom, to gather water lilies. His Affidavit
was sworn before Gamido.
Yet, on 16 June 2000, Jhomel executed another affidavit repudiating his earlier
retraction. He explained that he was coerced into signing by respondents, along with
five (5) other teachers, namely: Lorna Caser, Delia Cacal, Manuel Esperanza,
Marilyn Serapon and Ernesto Gamido, inside the principal's office.
On 12 July 2000, Maucencia filed an administrative complaint against respondents
and five other teachers of Bone North before the Office of the Deputy Ombudsman
for Luzon for coercing Jhomel to retracting his statement on Epistola's complicity in
Rustom's death.
Epistola strongly denied that she instructed Rustom to collect water lilies because
the latter was then wearing a thick pair of eyeglasses. She claimed to have
instructed only Harold and Jayson to gather water lilies.
Jayson executed an affidavit on 22 March 1999 before Barangay Captain Gamido
narrating that he was one of those assigned by Epistola to gather water lilies; that
he went to the house of Maucencia to fetch Rustom who earlier asked to
accompany them to the field. Rustom was not allowed to go but the latter caught up
with the group of Jayson when they reached the first irrigation canal. When the
group was able to get some water lilies, Rustom insisted on going to the river to get
more lilies. Upon reaching the river, Rustom immediately undressed and dived into
the water. Rustom was able to reach the deep portion of the river before he started
screaming for help because he was drowning. The group tried to rescue him but to
no avail.
To counter Jhomel's accusation that he was coerced into signing the retraction, his
classmate Harold executed an Affidavit on 3 October 2000 stating that he and
Jayson were assigned by Epistola to gather water lilies. On the following day,
Harold went to the fields where he was able to collect a sack full of lilies. He learned
later in the day that his classmate Rustom drowned while bathing in the big river.
Sometime in February 2000, Harold recalled that he and some of his classmates
were summoned to the principal's office to meet the barangay captain of Bone
North. He denied seeing the other teachers who could have intimidated Jhomel into
retracting his prior statement.3
Two days earlier or on 1 October 2000, a purported affidavit from Jhomel made the
following clarifications: that he was made to sign a prepared affidavit on 16 June
2000 in the house of Maucencia; that the same was not explained to him nor did he
appear before the Notary Public; that his statement on 22 February 2000 given at
the principal's office in the presence of Gamido was not obtained by force,
intimidation or threat for it was voluntarily given and even read and explained to him
by his father; and that his 22 July 1999 retraction was also signed in the house of
Maucencia.4
However, Jhomel executed an Affidavit dated 22 January 2001 denying that he
executed or signed the 1 October 2000 affidavit. He alleged that his signature
appearing thereon was forged.5
In lieu of a formal hearing, the parties submitted their respective memorandum.
On 7 June 2001, the Office of the Deputy Ombudsman for Luzon found Epistola
guilty of simple neglect o( duty for ordering Rustom to gather water lilies. Epistola,
along with Gamido, was also found guilty of grave misconduct for tampering with
evidence. The dispositive portion of the Decision reads:chanRoblesvirtualLawlibrary
WHEREFORE, premises considered, this office finds and so hold respondent Ruth
Epistola guilty of simple neglect of duty for her act of ordering her pupil Rustom
Ordo�ez to gather water lilies. Thus, her negligence to observe the demands of a
substitute parent for her pupil, she is hereby meted the penalty of Suspension for
One Month.
FURTHERMORE, respondent Barangay Captain Rodolfo Gamido and Ruth
Epistola, acting in conspiracy for forging the signature of Jhomel Patinio, are also
found guilty of Grave Misconduct. But since they are first offenders, they are hereby
meted the penalty of one (1) year suspension without pay, there being no
aggravating circumstances.
The charge against the other respondents is hereby recommended to be dismissed
for lack of substantial evidence.6
The Ombudsman gave credence to Jhomel 's declaration that Epistola did instruct
Rustom to gather water lilies, which ultimately caused his death. In doing so,
Epistola was instrumental in exposing her students to such danger that resulted in
the death of Rustom; hence, she was found guilty of simple neglect of duty.
Moreover, respondents were also found to have attempted to perverse the truth by
executing retraction affidavits and falsifying Jhomel's signature; thus, they were
'found to have committed grave misconduct.
Respondents filed a Motion for Reconsideration but it was denied by the
Ombudsman on 17 October 2001.
Respondents elevated the case to the Court of Appeals.
On 16 December 2003, the Court of Appeals reversed and set aside the Decision
and Resolution of the Ombudsman. The appellate court gave more credence to
Harold's sworn declaration that he and Jayson were the only ones assigned to
gather the water lilies. The appellate court also considered the affidavit of Rustom's
other companions that the latter had intended to swim and not to gather water lilies
when he went into the river, resulting in his early demise. The appellate court chose
to disregard Jhomel's conflicting statements. With respect to Gamido, the appellate
court held that his relationship with Epistola does not by itself taint the proceeding in
the principal's office in light of Jhomel's classmates' sworn declaration that no undue
pressure was exerted upon Jhomel. Finally, the appellate court ruled that under the
Ombudsman Law, the Ombudsman had no authority to conduct an investigation
over the case because the complaint was filed one year after the occurrence of the
act complained of. The appellate court added that it should have been the
committee referred to in Section 9 of the Magna Carta for Public School Teachers
that conducted the investigation of the administrative complaint.
The Ombudsman filed a petition for review on 18 February 2004 defending its
factual findings as to the administrative liability of respondents. In particular, the
Ombudsman insists that Gamido interfered and used his authority as Barangay
Chairman to compel the witness to retract his statement. The Ombudsman also
stresses that Gamido participated in the falsification of the second .affidavit of
retraction by signing in the joint answer knowing that the affidavit attached thereto
was falsified. The Ombudsman maintains that it exercises discretion in the conduct
of administrative investigation.
Epistola died on 19 December 2006 while Gamido was no longer the Barangay
Captain of Bone North as of 14 March 2003.
With respect to Epistola, the Court issued a Resolution dated 24 August 2009
dismissing the instant petition against her.7
In his Memorandum, Gamido denies coercing, intimidating or influencing Jhomel to
execute the questioned affidavits. Gamido asserts that the Ombudsman merely
focused on Jhomel's flip-flopping statements and failed to consider the accounts of
the other witnesses to the case. Significantly, Gamido alleges that assuming he is
guilty, his suspension is already moot and academic because he is no longer the
barangay chairman of Bone North.
We deny the Petition for being moot and academic.
A case or issue is considered moot and academic when it ceases to present a
justiciable controversy by virtue of supervening events, so that an adjudication of the
case or a declaration on the issue would be of no practical value or use. In such
instance, there is no actual substantial relief which a petitioner would be entitled to,
and which would be negated by the dismissal of the petition. Courts generally
decline jurisdiction over such case or dismiss it on the ground of mootness. Th;s is
because the judgment will not serve any useful purpose or have any practical legal
effect because, in the nature of things, it cannot be enforced. 8
In the instant case, Gamido is no longer the incumbent barangay chairman of Bone
North as far back as 2003. The expiration of his term as barangay chairman
operates as a supervening event that mooted the present petition. The validity or
invalidity of his suspension could no longer affect his tenure.
Notwithstanding the mootness of the petition, we shall make a categorical resolution
on whether Gamido committed grave misconduct during his tenure as barangay
chairman.
Findings of fact by the Office of the Ombudsman are conclusive when supported by
substantial evidence. Its factual findings are generally accorded with great weight
and respect, if not finality by the courts, by reason of its special knowledge and
expertise over matters falling under its jurisdiction.9
Substantial evidence, which is more than a mere scintilla but is such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion,
would suffice to hold one administratively liable. The standard of substantial
evidence is satisfied when there is reasonable ground to believe that respondent is
responsible for the misconduct complained of, even if such evidence might not be
overwhelming or even. preponderant. While substantial evidence does not
necessarily import preponderance of evidence as is required in an ordinary civil
case, or evidence beyond reasonable doubt as is required in criminal cases, it
should be enough for a reasonable mind to support a conclusion. 10
In finding that Gamido's actuations are tantamount to grave misconduct, the
Ombudsman ratiocinated, thus:chanRoblesvirtualLawlibrary
Relative to the Charge of Grave Misconduct arising from the alleged act of
pressuring or unduly influencing Jhomel Patinio to execute retraction affidavits and
to the extent of allegedly falsifying his signature, we find that, there was such an
attempt to perverse the truth. The version of Jhomel Patinio that he was unduly
pressured to execute the retraction affidavit is in full accord with the other
corroborative evidence. These are: the undue interest exerted by Barangay Captain
Gamido in taking, preparing and administering the first retraction affidavit of Jhomel
Patinio when the said case was never referred to his office for official action and the
variance in the signature of Jhomel Patinio in his retraction affidavit dated October
1, 2000 favoring respondent against his admitted usual signatures. The interest of
respondent Barangay Captain is explained by the fact that he and respondent Ruth
Epistola are relatives. The variance in Jhomel's signature, which was never
sufficiently explained by the respondents with competent evidence, such as the
employment of an "expert", suggests that there was falsification of his signature.
The fact also that during the preliminary conference, Jhomel Patinio was with
complainant and ready to testify for her, adds weight to complainant's allegation that
the subject affidavit of retraction was given involuntarily by Jhomel Patinio. 11
A review of the records of the case shows that the factual findings of the
Ombudsman upon which its decision on Gamido's administrative liability was based
are supported by the evidence on record. Gamido indeed administered Jhomel's
retraction on 22 February 2000 at the principal's office. Section 420 12 of the Local
Government Code empowers the barangay chairman to administer oaths only in
matters relating to all proceedings in the implementation of the Katarungang
Pambarangay. There was no record of a barangay conciliation proceeding where
both parties appeared before the barangay chairman for an amicable settlement.
Gamido thus had no business administering the oath in Jhomel's affidavit of
retraction. Furthermore, the blood relationship between Gamido and Epistola
emboldened the former to interfere in the case in favor of his relative by exerting
undue influence on Jhomel to first retract his first sworn statement implicating
Epistola in the death of Rustom.
Misconduct is defined as a transgression of some established and definite rule of
action, more particularly, unlawful behavior or gross negligence by a public officer.
Misconduct is considered grave if accompanied by corruption, a clear intent to
violate the law, or a flagrant disregard of established rules, which must all be
supported by substantial evidence.13 It is clear that Gamido took advantage of his
position as barangay chairman to commit the unlawful acts charged against him. His
administration of the oath in the affidavit is a blatant abuse of his power as the
authority granted to him by law pertains only to matters relating to the barangay
conciliation proceedings.
The penalty for grave misconduct under Section 52(A)(2) of Rule IV of the Uniform
Rules on Administrative Cases in the Civil Service is dismissal from service. We
affirm the penalty of suspension for one year imposed by the Ombudsman who took
into consideration that respondents were first time offenders.
Lastly, we correct the erroneous interpretation and application by the Court of
Appeals of Section 20(5) of Republic Act (R.A.) No. 6770 or the Ombudsman Act of
1989, which reads:chanRoblesvirtualLawlibrary
Section 20. Exceptions. The Office of the Ombudsman may not conduct the
necessary investigation of any administrative act or omission complained of if it
believes that:chanRoblesvirtualLawlibrary
(1) The complainant has an adequate remedy in another judicial or quasi-judicial
body;
(2) The complaint pertains to a matter outside the jurisdiction of the Office of the
Ombudsman;
(3) The complaint is trivial, frivolous, vexatious or made in bad faith;
(4) The complainant has no sufficient personal interest in the subject matter of
the grievance; or
(5) The complaint was filed after one (1) year from the occurrence of the act or
omission complained of.
The Court of Appeals declared that the administrative complaint was filed beyond
the period prescribed under R.A. No. 6770 when it was only filed on 12 July 2000,
more than one year after Epistola gave the questioned instruction on 12 March
1999.
In the case of Office of the Ombudsman v. Andutan, Jr.,14 the Court stressed that
the provisions of Section 20(5) are merely directory and that the Ombudsman is not
prohibited from conducting an investigation a year after the supposed act was
committed. The Court expounded, thus:chanRoblesvirtualLawlibrary
The issue of whether Section 20(5) of R.A. 6770 is mandatory or discretionary has
been settled by jurisprudence. In Office of the Ombudsman v. De Sahagun, the
Court. speaking through Justice Austria� Martinez,
held:chanRoblesvirtualLawlibrary
[W]ell-entrenched is the rule that administrative offenses do not prescribe
[Concerned Taxpayer v. Doblada, Jr., A.M. No. P-99-1342, September 20, 2005,
470 SCRA 218; Melchor v. Gironella, G.R. No. 151138, Fe,bruary 16, 2005, 451
SCRA 476; Heck v. Judge Santos, 467 Phil. 798, 824 (2004); Floria v. Sunga, 420
Phil. 637, 648-649 (2001)]. Administrative offenses by their very nature pertain to
the character of public officers and employees. In disciplining public officers and
employees, the object sought is not the punishment of the officer or employee but
the improvement of the public service and the preservation of the public's faith and
confidence in our government [Melchor v. Gironella, G.R. No. 151138, February 16,
2005, 451 SCRA 476, 481; Remolona v. Civil Service Commission, 414 Phil. 590,
601 (2001)].
Respondents insist that Section 20(5) of R.A. No. 6770, to
wit:chanRoblesvirtualLawlibrary
SEC. 20. Exceptions. - The Office of the Ombudsman may not conduct the
necessary investigation of any administrative act or omission complained of if it
believes that:cralawlawlibrary
xxxx
(5) The complaint was filed after one year from the occurrence of the act or
omission complained of. (Emphasis supplied) 
proscribes the investigation of any administrative act or omission if the complaint
was filed after one year from the occurrence of the complained act or omission.
In Melchor v. Gironella [G.R. No. 151138, February 16, 2005, 451 SCRA 476], the
Court held that the period stated in Section 20(5) of R.A. No. 6770 does not refer to
the prescription of the offense but to the discretion given to the Ombudsman on
whether it would investigate a particular administrative offense. The use of the word
"may" in the provision is construed as permissive and operating to confer discretion
[Melchor v. Gironella, G.R. No. 151138, February 16, 2005, 451 SCRA 476, 481;
Jaramilla v. Comelec, 460 Phil. 507, 514 (2003)]. Where the words of a statute are
clear, plain and free from ambiguity, they must be given their literal meaning and
applied without attempted interpretation [Melchor v. Gironella, G.R. No. 151138,
February 16, 2005, 451 SCRA 476, 481; National Federation of Labor v. National
Labor Relations Commission, 383 Phil. 910, 918 (2000)].
In Filipino v. Macabuhay [G.R. No. 158960, November 24, 2006, 508 SCRA 50], the
Court interpreted Section 20 (5) of R.A. No. 6770 in this
manner:chanRoblesvirtualLawlibrary
Petitioner argues that based on the abovementioned provision [Section 20(5) of RA
6770)], respondent's complaint is barred by prescription considering that it was filed
more than one year after the alleged commission of the acts complained of.

Petitioner's argument is without merit.

The use of the word "may" clearly. shows that it is directory in nature and not
mandatory as petitioner contends. When used in a statute, it is permissive only and
operates to confer discretion; while the word "shall" is imperative, operating to
impose a duty which may be enforced. Applying Section 20(5), therefore, it is
discretionary upon the Ombudsman whether or not to conduct an investigation on a
complaint even if it was filed after one year from the occurrence of the act or
omission complained of. In fine, the complaint is not barred by prescription.
The declaration of the CA in its assailed decision that while as a general rule the
word "may" is directory, the negative phrase "may not" is mandatory in tenor; that a
directory word, when qualified by the word "not," becomes prohibitory and therefore
beoomes mandatory in character, is not plausible. It is not supported by
jurisprudence on statutory construction.

Clearly, Section 20 of R.A. 6770 does not prohibit the Ombudsman from conducting
an administrative investigation after the lapse of one year, reckoned from the time
the alleged act was committed. Without doubt, even if the administrative case was
filed beyond the one (1) year period stated in Section 20(5), the Ombudsman was
well within its discretion to conduct the administrative investigation. 15
Furthermore, it was settled in the case of Office of the Ombudsman v.
Medrano16 that the administrative disciplinary authority of the Ombudsman over a
public school teacher is not an exclusive power but is concurrent with the proper
committee of the Department of Education. The fact that a referral to the proper
committee would have been the prudent thing to do does not operate to divest the
Ombudsman of its constitutional power to investigate government employees
including public school teachers.

All told, we reiterate that there is no justiciable controversy in view of the mootness
of the suspension due to the fact that Gamido is no longer the barangay chairman of
Bone North.

WHEREFORE, the Petition is DENIED for being moot and academic.

SO ORDERED.ChanRoblesVirtualawlibrary
 Republic of the Philippines Perfecto V. Fernandez, Jose P. Fernandez and Cristobal P. Fernandez for
SUPREME COURT petitioner in G.R. Nos. 82827 and 83979.
Manila
RESOLUTION
EN BANC
 
G.R. No. 82585 November 14, 1988
PER CURIAM:
MAXIMO V. SOLIVEN, ANTONIO V. ROCES, FREDERICK K. AGCAOLI, and
GODOFREDO L. MANZANAS, petitioners,  In these consolidated cases, three principal issues were raised: (1) whether or not
vs. petitioners were denied due process when informations for libel were filed against
THE HON. RAMON P. MAKASIAR, Presiding Judge of the Regional Trial Court of them although the finding of the existence of a prima faciecase was still under
Manila, Branch 35, UNDERSECRETARY SILVESTRE BELLO III, of the Department review by the Secretary of Justice and, subsequently, by the President; (2) whether
of Justice, LUIS C. VICTOR, THE CITY FISCAL OF MANILA and PRESIDENT or not the constitutional rights of Beltran were violated when respondent RTC judge
CORAZON C. AQUINO, respondents. issued a warrant for his arrest without personally examining the complainant and the
witnesses, if any, to determine probable cause; and (3) whether or not the President
G.R. No. 82827 November 14, 1988 of the Philippines, under the Constitution, may initiate criminal proceedings against
the petitioners through the filing of a complaint-affidavit.
LUIS D. BELTRAN, petitioner, 
vs. Subsequent events have rendered the first issue moot and academic. On March 30,
THE HON. RAMON P. MAKASIAR, Presiding Judge of Branch 35 of the Regional 1988, the Secretary of Justice denied petitioners' motion for reconsideration and
Trial Court, at Manila, THE HON. LUIS VICTOR, CITY FISCAL OF MANILA, upheld the resolution of the Undersecretary of Justice sustaining the City Fiscal's
PEOPLE OF THE PHILIPPINES, SUPERINTENDENT OF THE WESTERN POLICE finding of a prima facie  case against petitioners. A second motion for
DISTRICT, and THE MEMBERS OF THE PROCESS SERVING UNIT AT THE reconsideration filed by petitioner Beltran was denied by the Secretary of Justice on
REGIONAL TRIAL COURT OF MANILA, respondents. April 7, 1988. On appeal, the President, through the Executive Secretary, affirmed
the resolution of the Secretary of Justice on May 2, 1988. The motion for
G.R. No. 83979 November 14, 1988. reconsideration was denied by the Executive Secretary on May 16, 1988. With
these developments, petitioners' contention that they have been denied the
administrative remedies available under the law has lost factual support.
LUIS D. BELTRAN, petitioner, 
vs.
EXECUTIVE SECRETARY CATALINO MACARAIG, SECRETARY OF JUSTICE It may also be added that with respect to petitioner Beltran, the allegation of denial
SEDFREY ORDOÑEZ, UNDERSECRETARY OF JUSTICE SILVESTRE BELLO III, of due process of law in the preliminary investigation is negated by the fact that
THE CITY FISCAL OF MANILA JESUS F. GUERRERO, and JUDGE RAMON P. instead of submitting his counter- affidavits, he filed a "Motion to Declare
MAKASIAR, Presiding Judge of Branch 35 of the Regional Trial Court, at Proceedings Closed," in effect waiving his right to refute the complaint by filing
Manila, respondents. counter-affidavits. Due process of law does not require that the respondent in a
criminal case actually file his counter-affidavits before the preliminary investigation is
deemed completed. All that is required is that the respondent be given the
Angara, Abello, Concepcion, Regala and Cruz for petitioners in G.R. No. 82585.
opportunity to submit counter-affidavits if he is so minded.
The second issue, raised by petitioner Beltran, calls for an interpretation of the
constitutional provision on the issuance of warrants of arrest. The pertinent provision
reads:
Art. III, Sec. 2. The right of the people to be secure in their
persons, houses, papers and effects against unreasonable
searches and seizures of whatever nature and for any purpose
shall be inviolable, and no search warrant or warrant of arrest
shall issue except upon probable cause to be determined
personally by the judge after examination nder oath or
affirmation of the complainant and the witnesses he may
produce, and particularly describing the place to be searched
and the persons or things to be seized.
The addition of the word "personally" after the word "determined" and the deletion of
the grant of authority by the 1973 Constitution to issue warrants to "other
responsible officers as may be authorized by law," has apparently convinced
petitioner Beltran that the Constitution now requires the judge to personally examine
the complainant and his witnesses in his determination of probable cause for the
issuance of warrants of arrest. This is not an accurate interpretation.
What the Constitution underscores is the exclusive and personal responsibility of the
issuing judge to satisfy himself of the existence of probable cause. In satisfying
himself of the existence of probable cause for the issuance of a warrant of arrest,
the judge is not required to personally examine the complainant and his witnesses.
Following established doctrine and procedure, he shall: (1) personally evaluate the
report and the supporting documents submitted by the fiscal regarding the existence
of probable cause and, on the basis thereof, issue a warrant of arrest; or (2) if on the
basis thereof he finds no probable cause, he may disregard the fiscal's report and
require the submission of supporting affidavits of witnesses to aid him in arriving at a
conclusion as to the existence of probable cause.
Sound policy dictates this procedure, otherwise judges would be unduly laden with
the preliminary examination and investigation of criminal complaints instead of
concentrating on hearing and deciding cases filed before their courts.
On June 30, 1987, the Supreme Court unanimously adopted Circular No. 12, setting
down guidelines for the issuance of warrants of arrest. The procedure therein
provided is reiterated and clarified in this resolution.
It has not been shown that respondent judge has deviated from the prescribed
procedure. Thus, with regard to the issuance of the warrants of arrest, a finding of
grave abuse of discretion amounting to lack or excess of jurisdiction cannot be
sustained.
Anent the third issue, petitioner Beltran argues that "the reasons which necessitate
presidential immunity from suit impose a correlative disability to file suit." He
contends that if criminal proceedings ensue by virtue of the President's filing of her
complaint-affidavit, she may subsequently have to be a witness for the prosecution,
bringing her under the trial court's jurisdiction. This, continues Beltran, would in an
indirect way defeat her privilege of immunity from suit, as by testifying on the
witness stand, she would be exposing herself to possible contempt of court or
perjury.
The rationale for the grant to the President of the privilege of immunity from suit is to
assure the exercise of Presidential duties and functions free from any hindrance or
distraction, considering that being the Chief Executive of the Government is a job
that, aside from requiring all of the office holder's time, also demands undivided
attention.
But this privilege of immunity from suit, pertains to the President by virtue of the
office and may be invoked only by the holder of the office; not by any other person
in the President's behalf. Thus, an accused in a criminal case in which the President
is complainant cannot raise the presidential privilege as a defense to prevent the
case from proceeding against such accused.
Moreover, there is nothing in our laws that would prevent the President from waiving
the privilege. Thus, if so minded the President may shed the protection afforded by
the privilege and submit to the court's jurisdiction. The choice of whether to exercise
the privilege or to waive it is solely the President's prerogative. It is a decision that
cannot be assumed and imposed by any other person.
As regards the contention of petitioner Beltran that he could not be held liable for
libel because of the privileged character or the publication, the Court reiterates that
it is not a trier of facts and that such a defense is best left to the trial court to
appreciate after receiving the evidence of the parties.
As to petitioner Beltran's claim that to allow the libel case to proceed would produce
a "chilling effect" on press freedom, the Court finds no basis at this stage to rule on
the point.
The petitions fail to establish that public respondents, through their separate acts,
gravely abused their discretion as to amount to lack of jurisdiction. Hence, the writs
of certiorari and prohibition prayed for cannot issue.
WHEREFORE, finding no grave abuse of discretion amounting to excess or lack of
jurisdiction on the part of the public respondents, the Court Resolved to DISMISS
the petitions in G. R. Nos. 82585, 82827 and 83979. The Order to maintain
the status quo  contained in the Resolution of the Court en banc  dated April 7, 1988
and reiterated in the Resolution dated April 26, 1988 is LIFTED.
Fernan, C.J., Narvasa, Melencio-Herrera, Cruz, Paras, Feliciano, Gancayco,
Padilla, Bidin, Sarmiento, Cortes, Griño-Aquino Medialdea and Regalado, JJ.,
concur.
Separate Opinions
GUTIERREZ, JR., J.,  concurring:
I concur with the majority opinion insofar as it involves the three principal issues
mentioned in its opening statement. However, as to the more important issue on
whether or not the prosecution of the libel case would produce a "chilling effect" on
press freedom, I beg to reserve my vote. I believe this is the more important issue in
these petitions and it should be resolved now rather that later.
Consistent with our decision in Salonga v. Cruz Pano  (134 SCRA 438 [1985]), the
Court should not hesitate to quash a criminal prosecution in the interest of more
enlightened and substantial justice where it is not alone the criminal liability of an
accused in a seemingly minor libel case which is involved but broader
considerations of governmental power versus a preferred freedom.
We have in these four petitions the unusual situation where the highest official of the
Republic and one who enjoys unprecedented public support asks for the
prosecution of a newspaper columnist, the publisher and chairman of the editorial
board, the managing editor and the business manager in a not too indubitable a
case for alleged libel.
I am fully in accord with an all out prosecution if the effect will be limited to punishing
a newspaperman who, instead of observing accuracy and fairness, engages in
unwarranted personal attacks, irresponsible twisting of facts, of malicious distortions
of half-truths which tend to cause dishonor, discredit, or contempt of the
complainant. However, this case is not a simple prosecution for libel. We have as
complainant a powerful and popular President who heads the investigation and
prosecution service and appoints members of appellate courts but who feels so
terribly maligned that she has taken the unorthodox step of going to court inspite of
the invocations of freedom of the press which would inevitably follow.
I believe that this Court should have acted on this issue now instead of leaving the
matter to fiscals and defense lawyers to argue before a trial judge.
There is always bound to be harassment inherent in any criminal prosecution.
Where the harassment goes beyond the usual difficulties encountered by any
accused and results in an unwillingness of media to freely criticize government or to
question government handling of sensitive issues and public affairs, this Court and
not a lower tribunal should draw the demarcation line.
As early as March 8, 1918, the decision in United States v. Bustos  (37 Phil. 731)
stated that "(c)omplete liberty to comment on the conduct of public men is a scalpel
in the case of free speech. The sharp incision of its probe relieves the abscesses of
officialdom. Men in public life may suffer under a hostile and unjust accusation; the
wound can be assuaged with the balm of a clear conscience." The Court pointed out
that while defamation is not authorized, criticism is to be expected and should be
borne for the common good.
In People v. Perfecto (43 Phil. 887 [1922]), the Court stated:
xxx xxx xxx
... No longer is there a Minister of the Crown own or a person in
authority of such exalted position that the citizen must speak of
 him only with bated breath. "In the eye of our Constitution and
laws, every man is a sovereign, a ruler and a freeman, and has
equal rights with every other man." (at p. 900)
In fact, the Court observed that high official position, instead of affording immunity
from slanderous and libelous charges, would actually invite attacks by those who
desire to create sensation. It would seem that what would ordinarily be slander if
directed at the typical person should be examined from various perspectives if
directed at a high government official. Again, the Supreme Court should draw this
fine line instead of leaving it to lower tribunals.
This Court has stressed as authoritative doctrine in Elizalde v. Gutierrez  (76 SCRA
448 [1977]) that a prosecution for libel lacks justification if the offending words find
sanctuary within the shelter of the free press guaranty. In other words, a prosecution
for libel should not be allowed to continue, where after discounting the possibility
that the words may not be really that libelous, there is likely to be a chilling effect, a
patently inhibiting factor on the willingness of newspapermen, especially editors and
publishers to courageously perform their critical role in society. If, instead of merely
reading more carefully what a columnist writes in his daily column, the editors tell
their people to lay off certain issues or certain officials, the effect on a free press
would be highly injurious.
Because many questions regarding press freedom are left unanswered by our
resolution, I must call attention to our decisions which caution that "no inroads on
press freedom should be allowed in the guise of punitive action visited on what
otherwise should be characterized as libel." (Lopez v. Court of Appeals, 34 SCRA
117 [1970]; See also the citations in Elizalde v. Gutierrez, supra).
The United States Supreme Court is even more emphatic, to wit:
In deciding the question now, we are compelled by neither
precedent nor policy to give any more weight to the epithet
"libel" than we have to other "mere labels" of state law. N. A. A.
C. P. v. Button, 371 US 415, 429, 9L ed 2d 405, 415, 83 S Ct
328. Like insurrection, contempt, advocacy of unlawful acts,
breach of the peace, obscenity, solicitation of legal business,
and the other various other formulae for the repression of
expression that have been challenged in this Court, libel can
claim no talismanic immunity from constitutional limitations. It
must be measured by standards that satisfy the First
Amendment.
xxx xxx xxx
Those who won our independence believed ... that public
discussion is a political duty; and that this should be a
fundamental principle of the American government. They
recognized the risk to which all human institutions are subject.
But they knew that order cannot be secured merely through fear
of punishment for its infraction; that it is hazardous to
discourage thought, hope and imagination; that fear breeds
repression; that repression breeds hate; that hate menaces
stable government; that the path of safety lies in the opportunity
to discuss freely supposed grievances and proposed remedies;
and that the fitting remedy for evil counsel is good ones.
Believing in the power of reason as applied through public
discussion, they eschewed silence coerced by law—the
argument of force in its worst form. ...
Thus we consider this case against the background of a
profound national commitment to the principle that debate on
public issues should be uninhibited, robust, and wide open, and
that it may well include vehement, caustic, and sometimes
unpleasantly sharp attacks on government and public
officials. ... (at pp. 700-701)
Shunting aside the individual liability of Mr. Luis Beltran, is there a prima
facie  showing that Messrs. Maximo Soliven, Antonio V. Roces, Frederick K.
Agcaoili, and Godofredo L. Manzanas knowingly participated in a wilful purveying of
falsehood? Considering the free speech aspects of these petitions, should not a
differentiated approach to their particular liabilities be taken instead of lumping up
everybody with the offending columnist? I realize that the law includes publishers
and editors but perhaps the "chilling effect" issue applies with singular effectivity to
publishers and editors vis-a-vis newspaper columnists. There is no question that,
ordinarily, libel is not protected by the free speech clause but we have to understand
that some provocative words, which if taken literally may appear to shame or
disparage a public figure, may really be intended to provoke debate on public issues
when uttered or written by a media personality. Will not a criminal prosecution in the
type of case now before us dampen the vigor and limit the variety of public debate?
There are many other questions arising from this unusual case which have not been
considered.
I, of course, concur with the Court's opinion because it has decided to limit the
issues to narrowly drawn ones. I see no reason to disagree with the way the Court
has resolved them. The first issue on prematurity is moot. The second issue
discusses a procedure now embodied in the recently amended Rules of Court on
how a Judge should proceed before he issues a warrant of arrest. Anent the third
issue, considerations of public policy dictate that an incumbent President should not
be sued. At the same time, the President cannot stand by helplessly bereft of legal
remedies if somebody vilifies or maligns him or her.
The Court has decided to defer the "chilling effect" issue for a later day. To this, I
take exception. I know that most of our fiscals and judges are courageous
individuals who would not allow any considerations of possible consequences to
their careers to stand in the way of public duty. But why should we subject them to
this problem? And why should we allow the possibility of the trial court treating and
deciding the case as one for ordinary libel without bothering to fully explore the more
important areas of concern, the extremely difficult issues involving government
power and freedom of expression.
However, since we have decided to defer the "chilling effect" issue for a later day, I
limit myself to reiterating the dissenting words of Mr. Justice Jackson in the
American case of Beaurnhais v. Illinois (343 U. S. 250) when he said:
If one can claim to announce the judgment of legal history on
any subject, it is that criminal libel laws are consistent with the
concept of ordered liberty only when applied with safeguards
evolved to prevent their invasion of freedom of expression.
In the trial of the libel case against the petitioners, the safeguards in the name of
freedom of expression should be faithfully applied.
Separate Opinions
GUTIERREZ, JR., J.,  concurring:
I concur with the majority opinion insofar as it involves the three principal issues
mentioned in its opening statement. However, as to the more important issue on
whether or not the prosecution of the libel case would produce a "chilling effect" on
press freedom, I beg to reserve my vote. I believe this is the more important issue in
these petitions and it should be resolved now rather that later.
Consistent with our decision in Salonga v. Cruz Pano  (134 SCRA 438 [1985]), the
Court should not hesitate to quash a criminal prosecution in the interest of more
enlightened and substantial justice where it is not alone the criminal liability of an
accused in a seemingly minor libel case which is involved but broader
considerations of governmental power versus a preferred freedom.
We have in these four petitions the unusual situation where the highest official of the
Republic and one who enjoys unprecedented public support asks for the
prosecution of a newspaper columnist, the publisher and chairman of the editorial
board, the managing editor and the business manager in a not too indubitable a
case for alleged libel.
I am fully in accord with an all out prosecution if the effect will be limited to punishing
a newspaperman who, instead of observing accuracy and fairness, engages in
unwarranted personal attacks, irresponsible twisting of facts, of malicious distortions
of half-truths which tend to cause dishonor, discredit, or contempt of the
complainant. However, this case is not a simple prosecution for libel. We have as
complainant a powerful and popular President who heads the investigation and
prosecution service and appoints members of appellate courts but who feels so
terribly maligned that she has taken the unorthodox step of going to court inspite of
the invocations of freedom of the press which would inevitably follow.
I believe that this Court should have acted on this issue now instead of leaving the
matter to fiscals and defense lawyers to argue before a trial judge.
There is always bound to be harassment inherent in any criminal prosecution.
Where the harassment goes beyond the usual difficulties encountered by any
accused and results in an unwillingness of media to freely criticize government or to
question government handling of sensitive issues and public affairs, this Court and
not a lower tribunal should draw the demarcation line.
As early as March 8, 1918, the decision in United States v. Bustos  (37 Phil. 731)
stated that "(c)omplete liberty to comment on the conduct of public men is a scalpel
in the case of free speech. The sharp incision of its probe relieves the abscesses of
officialdom. Men in public life may suffer under a hostile and unjust accusation; the
wound can be assuaged with the balm of a clear conscience." The Court pointed out
that while defamation is not authorized, criticism is to be expected and should be
borne for the common good.
In People v. Perfecto (43 Phil. 887 [1922]), the Court stated:
xxx xxx xxx
... No longer is there a Minister of the Crown own or a person in
authority of such exalted position that the citizen must speak of
him only with bated breath. "In the eye of our Constitution and
laws, every man is a sovereign, a ruler and a freeman, and has
equal rights with every other man." (at p. 900)
In fact, the Court observed that high official position, instead of affording immunity
from slanderous and libelous charges, would actually invite attacks by those who
desire to create sensation. It would seem that what would ordinarily be slander if
directed at the typical person should be examined from various perspectives if
directed at a high government official. Again, the Supreme Court should draw this
fine line instead of leaving it to lower tribunals.
This Court has stressed as authoritative doctrine in Elizalde v. Gutierrez  (76 SCRA
448 [1977]) that a prosecution for libel lacks justification if the offending words find
sanctuary within the shelter of the free press guaranty. In other words, a prosecution
for libel should not be allowed to continue, where after discounting the possibility
that the words may not be really that libelous, there is likely to be a chilling effect, a
patently inhibiting factor on the willingness of newspapermen, especially editors and
publishers to courageously perform their critical role in society. If, instead of merely
reading more carefully what a columnist writes in his daily column, the editors tell
their people to lay off certain issues or certain officials, the effect on a free press
would be highly injurious.
Because many questions regarding press freedom are left unanswered by our
resolution, I must call attention to our decisions which caution that "no inroads on
press freedom should be allowed in the guise of punitive action visited on what
otherwise should be characterized as libel." (Lopez v. Court of Appeals, 34 SCRA
117 [1970]; See also the citations in Elizalde v. Gutierrez, supra).<äre||anº•1àw>
The United States Supreme Court is even more emphatic, to wit:
In deciding the question now, we are compelled by neither
precedent nor policy to give any more weight to the epithet
"libel" than we have to other "mere labels" of state law. N. A. A.
C. P. v. Button, 371 US 415, 429, 9L ed 2d 405, 415, 83 S Ct
328. Like insurrection, contempt, advocacy of unlawful acts,
breach of the peace, obscenity, solicitation of legal business,
and the other various other formulae for the repression of
expression that have been challenged in this Court, libel can
claim no talismanic immunity from constitutional limitations. It
must be measured by standards that satisfy the First
Amendment.
xxx xxx xxx
Those who won our independence believed ... that public
discussion is a political duty; and that this should be a
fundamental principle of the American government. They
recognized the risk to which all human institutions are subject.
But they knew that order cannot be secured merely through fear
of punishment for its infraction; that it is hazardous to
discourage thought, hope and imagination; that fear breeds
repression; that repression breeds hate; that hate menaces
stable government; that the path of safety lies in the opportunity
to discuss freely supposed grievances and proposed remedies;
and that the fitting remedy for evil counsel is good ones.
Believing in the power of reason as applied through public
discussion, they eschewed silence coerced by law—the
argument of force in its worst form. ...
Thus we consider this case against the background of a
profound national commitment to the principle that debate on
public issues should be uninhibited, robust, and wide open, and
that it may well include vehement, caustic, and sometimes
unpleasantly sharp attacks on government and public
officials. ... (at pp. 700-701)
Shunting aside the individual liability of Mr. Luis Beltran, is there a prima If one can claim to announce the judgment of legal history on
facie  showing that Messrs. Maximo Soliven, Antonio V. Roces, Frederick K. any subject, it is that criminal libel laws are consistent with the
Agcaoili, and Godofredo L. Manzanas knowingly participated in a wilful purveying of concept of ordered liberty only when applied with safeguards
falsehood? Considering the free speech aspects of these petitions, should not a evolved to prevent their invasion of freedom of expression.
differentiated approach to their particular liabilities be taken instead of lumping up
everybody with the offending columnist? I realize that the law includes publishers In the trial of the libel case against the petitioners, the safeguards in the name of
and editors but perhaps the "chilling effect" issue applies with singular effectivity to freedom of expression should be faithfully applied.
publishers and editors vis-a-vis newspaper columnists. There is no question that,
ordinarily, libel is not protected by the free speech clause but we have to understand
that some provocative words, which if taken literally may appear to shame or
disparage a public figure, may really be intended to provoke debate on public issues
when uttered or written by a media personality. Will not a criminal prosecution in the
type of case now before us dampen the vigor and limit the variety of public debate?
There are many other questions arising from this unusual case which have not been
considered.

I, of course, concur with the Court's opinion because it has decided to limit the
issues to narrowly drawn ones. I see no reason to disagree with the way the Court
has resolved them. The first issue on prematurity is moot. The second issue
discusses a procedure now embodied in the recently amended Rules of Court on
how a Judge should proceed before he issues a warrant of arrest. Anent the third
issue, considerations of public policy dictate that an incumbent President should not
be sued. At the same time, the President cannot stand by helplessly bereft of legal
remedies if somebody vilifies or maligns him or her.

The Court has decided to defer the "chilling effect" issue for a later day. To this, I
take exception. I know that most of our fiscals and judges are courageous
individuals who would not allow any considerations of possible consequences to
their careers to stand in the way of public duty. But why should we subject them to
this problem? And why should we allow the possibility of the trial court treating and
deciding the case as one for ordinary libel without bothering to fully explore the more
important areas of concern, the extremely difficult issues involving government
power and freedom of expression.

However, since we have decided to defer the "chilling effect" issue for a later day, I
limit myself to reiterating the dissenting words of Mr. Justice Jackson in the
American case of Beaurnhais v. Illinois (343 U. S. 250) when he said:
 EN BANC
[G.R. No. 106632. October 9, 1997]
DORIS TERESA HO, petitioner, vs. PEOPLE OF THE PHILIPPINES (represented
by the Office of the Special Prosecutor of the Ombudsman) and the
SANDIGANBAYAN (Second Division), respondents.
[G.R. No. 106678. October 9, 1997]
ROLANDO S. NARCISO, petitioner, vs. PEOPLE OF THE PHILIPPINES
(represented by the Office of the Special Prosecutor of the Ombudsman)
and the SANDIGANBAYAN (Second Division), respondents.
DECISION
PANGANIBAN, J.:
May a judge issue a warrant of arrest solely on the basis of the report and
recommendation of the investigating prosecutor, without personally determining
probable cause by independently examining sufficient evidence submitted by the
parties during the preliminary investigation?
The Case
This is the main question raised in these two consolidated petitions
for certiorari under Rule 65 of the Rules of Court challenging the Sandiganbayans
August 25, 1992 Resolution[1] which answered the said query in the affirmative.
The Facts
Both petitions have the same factual backdrop. On August 8, 1991, the Anti-
Graft League of the Philippines, represented by its chief prosecutor and investigator,
Atty. Reynaldo L. Bagatsing, filed with the Office of the Ombudsman a
complaint[2]  against Doris Teresa Ho, Rolando S. Narciso (petitioners in G.R. Nos.
106632 and 106678, respectively), Anthony Marden, Arsenio Benjamin Santos and
Leonardo Odoo. The complaint was for alleged violation of Section 3 (g) of Republic
Act 3019[3] prohibiting a public officer from entering into any contract or transaction
on behalf of the government if it is manifestly and grossly disadvantageous to the
latter, whether or not the public officer profited or will profit thereby. After due notice,
all respondents therein filed their respective counter-affidavits with supporting
documents. On January 8, 1992, Graft Investigation Officer Titus P. Labrador
(hereafter, GIO Labrador) submitted his resolution [4] with the following
recommendations:
WHEREFORE, all premises considered, it is respectfully recommended that an
information for violation of Section 3 (g) of R.A. 3019 as amended be filed against
respondent Rolando S. Narciso before the Sandiganbayan.
It is likewise recommending that the case against the other respondents be
DISMISSED for insufficiency of evidence.
However, after a review of the above resolution, Special Prosecution Officer
Leonardo P. Tamayo (hereafter, SPO Tamayo) recommended that both Rolando
Narciso and Doris Teresa Ho be charged with violation of Section 3 (e) of R.A.
3019. The resolution of GIO Labrador, as modified by the memorandum [5]  of SPO
Tamayo, was approved by Ombudsman Conrado M. Vasquez on May 5,
1992. Thus, herein petitioners were charged accordingly before the Sandiganbayan
in an information[6]  filed on May 18, 1992. Attached to the information were the
resolution of GIO Labrador and the memorandum of SPO Tamayo. The said
information reads:
The undersigned Special Prosecution Officer III, Office of the Special Prosecutor,
hereby accuses ROLANDO NARCISO and DORIS TERESA HO, President of
National Marine Corporation, of violation of Section 3(e) of RA 3019, as amended,
committed as follows:
That on or about April 4, 1989, and for sometime prior and/or subsequent thereto, in
the City of Manila, Philippines and within the jurisdiction of this Honorable Court, the
above-named accused ROLANDO NARCISO, a public officer, being then the Vice-
President of the National Steel Corporation (NSC), a government-owned or
controlled corporation organized and operating under the Philippine laws, and
DORIS TERESA HO, a private individual and then the President of National Marine
Corporation (NMC), a private corporation organized and operating under our
Corporation law, conspiring and confederating with one another, did then and there
wilfully, unlawfully and criminally, with evident bad faith and through manifest
partiality, cause undue injury to the National Steel Corporation (NSC), by entering
without legal justification into a negotiated contract of affreightment
disadvantageous to the NSC for the haulage of its products at the rate
of P129.50/MT, from Iligan City to Manila, despite their full knowledge that the rate
they have agreed upon was much higher than those offered by the Loadstar
Shipping Company, Inc. (LSCI) and Premier Shipping Lines, Inc. (PSLI), in the
amounts of P109.56 and P123.00 per Metric Ton, respectively, in the public bidding
held on June 30, 1988, thereby giving unwarranted benefits to the National Marine
Corporation, in the total sum of One Million One Hundred Sixteen Thousand Fifty
Two Pesos and Seventy Five Centavos (P1,116,052.75), Philippine Currency, to the
pecuniary damage and prejudice of the NSC in the aforestated sum. The said
offense was committed by Rolando S. Narciso in the performance of his official
functions as Vice-President of the National Steel Corporation.
CONTRARY TO LAW.
Acting on the foregoing information, the Sandiganbayan issued the now
questioned warrant of arrest against Petitioners Ho and Narciso. Petitioner Ho
initially questioned the issuance thereof in an Urgent Motion to Recall Warrant of
Arrest/Motion for Reconsideration which was adopted by Petitioner Narciso. They
alleged that the Sandiganbayan, in determining probable cause for the issuance of
the warrant for their arrest, merely relied on the information and the resolution
attached thereto, filed by the Ombudsman without other supporting evidence, in
violation of the requirements of Section 2, Article III of the Constitution, and settled
jurisprudence. Respondent Sandiganbayan denied said motion in the challenged
Resolution. It ratiocinated in this wise:
Considering, therefore, that this Court did not rely solely on
the certification appearing in the information in this case in the determination of
whether probable cause exists to justify the issuance of the warrant of arrest but
also on the basis predominantly shown by the facts and evidence appearing in the
resolution/memorandum of responsible investigators/ prosecutors, then the recall of
the warrant of arrest, or the reconsideration sought for, cannot be granted. More so,
when the information, as filed, clearly shows that it is sufficient in form and
substance based on the facts and evidence adduced by both parties during the
preliminary investigation. To require this Court to have the entire record of the
preliminary investigation to be produced before it, including the evidence submitted
by the complainant and the accused-respondents, would appear to be an exercise
in futility.
Thus, these petitions.
The Issue
Petitioner Ho raises this sole issue:
May a judge determine probable cause and issue [a] warrant of arrest solely on the
basis of the resolution of the prosecutor (in the instant case, the Office of the
Special Prosecutor of the Ombudsman) who conducted the preliminary
investigation, without having before him any of the evidence (such as complainants
affidavit, respondents counter-affidavit, exhibits, etc.) which may have been
submitted at the preliminary investigation?[7]
In his separate petition, Rolando S. Narciso adopts the foregoing and raises
no other distinct issue.
Petitioners Ho and Narciso similarly contend that a judge, in personally
determining the existence of probable cause, must have before
him sufficient evidence submitted by the parties, other than the information filed by
the investigating prosecutor, to support his conclusion and justify the issuance of an
arrest warrant. Such evidence should not be merely described in a prosecutors
resolution. Citing People vs. Inting,[8] petitioners insist that the judge must have
before him the report, the affidavits, the transcripts of stenographic notes (if any),
and all other supporting documents which are material in assisting the judge to
make his determination.
The Courts Ruling
 The petitions are meritorious.
The pertinent provision of the Constitution reads:
Section 2 [, Article III]. The right of the people to be secure in their persons, houses,
papers, and effects against unreasonable searches and seizures of whatever nature
and for any purpose shall be inviolable, and no search warrant or warrant of arrest
shall issue except upon probable cause to be determined personally by the judge
after examination under oath or affirmation of the complainant and the witnesses he
may produce and particularly describing the place to be searched and the persons
or things to be seized. (Underscoring supplied.)
In explaining the object and import of the aforequoted constitutional mandate,
particularly the power and the authority of judges to issue warrants of arrest, the
Court elucidated in Soliven vs. Makasiar[9]:
What the Constitution underscores is the exclusive and personal responsibility of the
issuing judge to satisfy himself of the existence of probable cause. In satisfying
himself of the existence of probable cause for the issuance of a warrant of arrest,
the judge is not required to personally examine the complainant and his
witnesses. Following established doctrine and procedure, he shall: (1) personally
evaluate the report and the supporting documents submitted by the fiscal regarding
the existence of probable cause and, on the basis thereof, issue a warrant of arrest;
or (2) if on the basis thereof he finds no probable cause, he may disregard the
fiscals report and require the submission of supporting affidavits of witnesses to aid
him in arriving at a conclusion as to the existence of probable cause.
[10]
 [underscoring supplied]
We should stress that the 1987 Constitution requires the judge to determine
probable cause personally. The word personally does not appear in the
corresponding provisions of our previous Constitutions. This emphasis shows the
present Constitutions intent to place a greater degree of responsibility upon trial
judges than that imposed under the previous Charters.
While affirming Soliven, People vs. Inting[11]  elaborated on what determination
of probable cause entails, differentiating the judges object or goal from that of the
prosecutors.
First, the determination of probable cause is a function of the Judge. It is not for the
Provincial Fiscal or Prosecutor nor for the Election Supervisor to ascertain. Only the
Judge and the Judge alone makes this determination.
Second, the preliminary inquiry made by a Prosecutor does not bind the Judge. It
merely assists him to make the determination of probable cause. The Judge does
not have to follow what the Prosecutor presents to him. By itself, the Prosecutors
certification of probable cause is ineffectual. It is the report, the affidavits the
transcripts of stenographic notes (if any), and all other supporting documents behind
the Prosecutors certification which are material in assisting the Judge to
make his determination.
And third, Judges and Prosecutors alike should distinguish the preliminary inquiry
which determines probable cause for the issuance of a warrant of arrest from the
preliminary investigation proper which ascertains whether the offender should be
held for trial or released. Even if the two inquiries are conducted in the course of one
and the same proceeding, there should be no confusion about the objectives. The
determination of probable cause for the warrant of arrest is made by the Judge. The
preliminary investigation proper -- whether or not there is reasonable ground to
believe that the accused is guilty of the offense charged and, therefore, whether or
not he should be subjected to the expense, rigors and embarrassment of trial -- is
the function of the Prosecutor. [12]
And clarifying the statement in People vs. Delgado[13]  -- that the trial court may
rely on the resolution of the COMELEC to file the information, by the same token
that it may rely on the certification made by the prosecutor who conducted the
preliminary investigation, in the issuance of the warrant of arrest -- this Court
underscored in Lim Sr. vs. Felix[14]  that [r]eliance on the COMELEC resolution or the
Prosecutors certification presupposes that the records of either the COMELEC or
the Prosecutor have been submitted to the Judge and he relies on the certification
or resolution because the records of the investigation sustain the
recommendation. We added, The warrant issues not on the strength of the
certification standing alone but because of the records which sustain it. Summing
up, the Court said:
We reiterate the ruling in Soliven vs. Makasiar that the Judge does not have to
personally examine the complainant and his witnesses. The Prosecutor can perform
the same functions as a commissioner for the taking of the evidence. However,
there should be a report and necessary documents supporting the Fiscals bare
certification. All of these should be before the Judge.
The extent of the Judges personal examination of the report and its annexes
depends on the circumstances of each case. We cannot determine beforehand how
cursory or exhaustive the Judges examination should be. The Judge has to exercise
sound discretion for, after all, the personal determination is vested in the Judge by
the Constitution. It can be as brief or as detailed as the circumstances of each case
require. To be sure, the Judge must go beyond the Prosecutors certification and
investigation report whenever necessary. He should call for [the] complainant and
[the] witnesses themselves to answer the courts probing questions when the
circumstances of the case so require.[15] [underscoring supplied]
The above rulings in Soliven, Inting  and Lim Sr.  were iterated in Allado vs.
Diokno[16]  where we explained again what probable cause means. Probable cause
for the issuance of a warrant of arrest is the existence of such facts and
circumstances that would lead a reasonably discreet and prudent person to believe
that an offense has been committed by the person sought to be arrested. [17] Hence,
the judge, before issuing a warrant of arrest, must satisfy himself that based on the
evidence submitted there is sufficient proof that a crime has been committed and
that the person to be arrested is probably guilty thereof. [18] At this stage of the
criminal proceeding, the judge is not yet tasked to review in detail the evidence
submitted during the preliminary investigation. It is sufficient that he personally
evaluates such evidence in determining probable cause. [19] In Webb vs. De Leon,
[20]
 we stressed that the judge merely determines the probability, not the certainty, of
guilt of the accused and, in doing so, he need not conduct a de novo  hearing. He
simply personally reviews the prosecutors initial determination finding probable
cause to see if it is supported by substantial evidence.
In the recent case of Roberts Jr. vs. Court of Appeals, [21] this Courts
application of the dictum laid down in Soliven --  affirmed and fortified in Inting, Lim
Sr., Allado and Webb --  should lay to rest the issue raised in the instant
petitions. In Roberts Jr., this Court, through Mr. Justice Hilario G. Davide, Jr.,   set
aside the order of the respondent judge directing inter alia  the issuance of warrants
of arrest against the accused, reasoning that said judge did not personally
determine the existence of probable cause, since he had only the information,
amended information, and Joint Resolution as bases thereof. He did not have the
records or evidence supporting the prosecutors finding of probable cause.
In like manner, herein Respondent Sandiganbayan had only the information
filed by the Office of the Ombudsman, the thirteen-page resolution of the
investigating officer and the three-page memorandum of the prosecution officer,
when it issued the warrant of arrest against the petitioners. The latter two
documents/reports even had dissimilar recommendations -- the first indicting only
Petitioner Narciso, the second including Petitioner Ho. This alone should have
prompted the public respondent to verify, in the records and other documents
submitted by the parties during the preliminary investigation, whether there was
sufficient evidence to sustain the Ombudsmans action charging both petitioners with
violation of Sec. 3(e) of Anti-Graft law. But in its initial justification of the issuance of
the warrant, the Sandiganbayan simply said:
JUSTICE ESCAREAL:
xxx xxx xxx
But in this particular case we believe there is a prima facie case based on our
examination of the resolution because we believe, we think the Ombudsman will not
approve a resolution just like that, without evidence to back it up. [22]
In attempting to further justify its challenged action, the public respondent
explained in its assailed Resolution:
In the instant case, there are attached to the information, two (2)
Memorandum/Resolution (sic) emanating from the Offices of the Ombudsman and
the Special Prosecutor (Pp. 4-6, 7-19, respectively, Record) which clearly and
indubitably established, firstly, the conduct of a due and proper preliminary
investigation, secondly, the approval by proper officials clothed with statutory
authority; and thirdly, the determination and ascertainment of probable cause based
on the documentary evidence submitted by the complainant (Anti-Graft League of
the Philippines), foremost among which is the Contract of Affreightment entered into
between National Steel Corporation (NSC), and National Marine Corporation (NMC)
and the COA-NSC audit report, together with the counter-affidavits of accused
Rolando Narciso and NMC officials, among whom is accused-movant. Outlined in
detail in the aforesaid Resolution of Titus P. Labrador, Graft Investigation Officer II,
which was reviewed by Attys. Romeo I. Tan and Arturo Mojica, Director, Community
Coordination Bureau and Assistant Ombudsman, PACPO, [respectively,] are the
facts leading to the questioned transaction between NSC and NMC, together with
an evaluation of the propriety and legality of the bidding process involved therein
and which revealed that there were supposed non-compliance with proper bidding
procedures. GIO Labradors findings and recommendations, extensively set out in
his thirteen-page resolution, is complemented by the three-page Memorandum of
Special Prosecution Officer II Leonardo P. Tamayo, both of which meticulously
delved into the merits and demerits of the evidence presented by the complainant
and accused-respondents and which resulted in their respective recommendation
which led the Honorable Conrado M. Vasquez to approve the recommendations of
Deputy Special Prosecutor Jose de G. Ferrer and Special Prosecutor Aniano A.
Desierto for the filing of the information in the case at bar.
xxx xxx xxx
Considering, therefore, that this Court did not rely solely on
the certification appearing in the information in this case in the determination of
whether probable cause exists to justify the issuance of the warrant of arrest but
also on the basis predominantly shown by the facts and evidence appearing in the
resolution/memorandum of responsible investigators/ prosecutors, then the recall of
the warrant of arrest, or the reconsideration sought for, cannot be granted. More so,
when the information, as filed, clearly shows that it is sufficient in form and
substance based on the facts and evidence adduced by both parties during the
preliminary investigation. To require this Court to have the entire record of the
preliminary investigation to be produced before it, including the evidence submitted
by the complainant and the accused-respondents, would appear to be an exercise
in futility.[23]
In light of the aforecited decisions of this Court, such justification cannot be
upheld. Lest we be too repetitive, we only wish to emphasize three vital matters
once more: First, as held in Inting,  the determination of probable cause by the
prosecutor is for a purpose different from that which is to be made by the
judge. Whether there is reasonable ground to believe that the accused is guilty of
the offense charged and should be held for trial is what the prosecutor passes
upon. The judge, on the other hand, determines whether a warrant of arrest should
be issued against the accused, i.e. whether there is a necessity for placing him
under immediate custody in order not to frustrate the ends of justice. [24] Thus, even if
both should base their findings on one and the same proceeding or evidence, there
should be no confusion as to their distinct objectives.
Second, since their objectives are different, the judge cannot rely solely on the
report of the prosecutor in finding probable cause to justify the issuance of a warrant
of arrest. Obviously and understandably, the contents of the prosecutors report will
support his own conclusion that there is reason to charge the accused of an offense
and hold him for trial. However, the judge must decide independently.Hence, he
must have supporting evidence, other than the prosecutors bare report, upon which
to legally sustain his own findings on the existence (or nonexistence) of probable
cause to issue an arrest order. This responsibility of determining personally and
independently the existence or nonexistence of probable cause is lodged in him by
no less than the most basic law of the land. Parenthetically, the prosecutor could
ease the burden of the judge and speed up the litigation process by forwarding to
the latter not only the information and his bare resolution finding probable cause, but
also so much of the records and the evidence on hand as to enable His Honor to
make his personal and separate judicial finding on whether to issue a warrant of
arrest.[25]
Lastly, it is not required that the complete or entire records of the case during
the preliminary investigation be submitted to and examined by the judge. [26] We do
not intend to unduly burden trial courts by obliging them to examine the complete
records of every case all the time simply for the purpose of ordering the arrest of an
accused. What is required, rather, is that the judge must have sufficientsupporting
documents (such as the complaint, affidavits, counter-affidavits, sworn statements
of witnesses or transcripts of stenographic notes, if any) upon which to make his
independent judgment or, at the very least, upon which to verify the findings of the
prosecutor as to the existence of probable cause. The point is: he cannot rely solely
and entirely on the prosecutors recommendation, as Respondent Court did in this
case. Although the prosecutor enjoys the legal presumption of regularity in the
performance of his official duties and functions, which in turn gives his report the
presumption of accuracy, the Constitution, we repeat, commands the judge
to personally  determine probable cause in the issuance of warrants of arrest. This
Court has consistently held that a judge fails in his bounden duty if he relies merely
on the certification or the report of the investigating officer.
True, in Webb vs. De Leon,  we found that the painstaking recital and analysis
of the parties evidence made in the DOJ Panel Report satisfied both judges that
there [was] probable cause to issue warrants of arrest against petitioners. This
statement may have been wrongly construed by the public respondent to mean that
the narration or description of portions of the evidence in the prosecutors report may
serve as sufficient basis to make its own independent judgment. What it should bear
in mind, however, is that, aside from the 26-page report of the DOJ panel, the sworn
statements of three witnesses and counter-affidavits of the petitioners in Webb  were
also submitted to the trial court, and the latter is presumed to have reviewed these
documents as well, prior to its issuance of the warrants of arrest.
In the instant case, the public respondent relied fully and completely upon the
resolution of the graft investigation officer and the memorandum of the reviewing
prosecutor, attached to the information filed before it, and its conjecture that the
Ombudsman would not have approved their recommendation without supporting
evidence. It had no other documents from either the complainant (the Anti-Graft
League of the Philippines) or the People from which to sustain its own conclusion
that probable cause exists. Clearly and ineluctably, Respondent Courts findings of
the conduct of a due and proper preliminary investigation and the approval by
proper officials clothed with statutory authority are not equivalent to
the independent and personal responsibility required by the Constitution and settled
jurisprudence. At least some of the documentary evidence mentioned (Contract of
Affreightment between National Steel Corporation and National Marine Corporation,
the COA-NSC audit report, and counter-affidavits of Rolando Narciso and NMC
officials), upon which the investigating officials of the Ombudsman reportedly
ascertained the existence of probable cause, should have been physically present
before the public respondent for its examination, to enable it to determine on its own
whether there is substantial evidence to support the finding of probable cause. But it
stubbornly stood pat on its position that it had essentially complied with its
responsibility. Indisputably, however, the procedure it undertook contravenes the
Constitution and settled jurisprudence. Respondent Court palpably committed grave
abuse of discretion in ipso facto issuing the challenged warrant of arrest on the sole
basis of the prosecutors findings and recommendation, and without determining on
its own the issue of probable cause based on evidence other than such bare
findings and recommendation.
WHEREFORE, the petitions are GRANTED  and the assailed Resolution
is SET ASIDE. The warrant issued by the Sandiganbayan (Second Division) on May
20, 1992 in Case No. 17674 for the arrest of Petitioners Doris Teresa Ho and
Rolando Narciso is hereby declared NULL AND VOID.
SO ORDERED.
Narvasa, C.J., Regalado, Davide, Jr., Romero, Bellosillo, Melo, Puno, Vitug,
Kapunan, Mendoza, Francisco, Hermosisima,  and Torres, Jr., JJ.,  concur.