Republic of the Philippines

SUPREME COURT
MUNICIPAL TRIAL COURT
10th Judicial Region
Quezon, Bukidnon

PEOPLE OF THE PHILIPPINES Criminal Case No. 4123-4128

Complainant ,

-versus-
FOR: VIOLATION OF BP 22
DANILO C. ABARCA
Accused.
x--------------------------------------x

OMNIBUS MOTION
QUASH OR LIFT WARRANT OF ARREST
(WITH MOTION FOR REINVESTIGATION AND
MOTION TO SUSPEND THE ARRAIGNMENT AND PRE-
TRIAL OF DANILO ABARCA)

COMES NOW, the ACCUSED through the undersigned counsel and unto this
Honorable Court, respectfully avers:

PREFATORY STATEMENT

Human rights enjoy a higher preference in the hierarchy of

rights than property rights, demanding that due process in the
deprivation of liberty must come before its taking and not
after.
It must be stressed, that the Court took the extraordinary
step of annulling findings of probable cause either to prevent
the misuse of the strong arm of the law or to protect the
orderly administration of justice. The constitutional duty of
this Court in criminal litigation is not only to acquit the

1
Motion to Quash Warrant- Danilo Abarca
 innocent after trial but to insulate, from the start, the
innocent from unfounded charges. For the Court is aware of
the strains of a criminal accusation and the stresses of
litigation which should not be suffered by the clearly
innocent. The filing of an unfounded criminal information in
court exposes the innocent to severe distress especially when
the crime is not billable. Even an acquittal of the innocent
will not fully bleach the dark and deep stains left by a
baseless accusation for reputation once tarnished remains
tarnished for a long length of time. The expense to establish
innocence may also be prohibitive and can be more punishing
especially to the poor and the powerless. Innocence ought to
be enough and the business of this Court is to shield the
innocent from senseless suits right from the start.

THE PARTIES

The complainant, ERLINDA A. ABALDE, a resident of Barangay Butong,

Municipality of Quezon, Province of Bukidnon.

The accused, DANILO ABARCA owner of Danny’s Car Aircon and

Refrigeration Services, Tandga, Surigao del Sur. The accusedcan be
served with notices and processes through:

MAHINAY LAW OFFICE

187 Dominica St., Solariega
Talomo, Davao City
Atty. Gilda S. Mahinay
+63-906-624-8650/+63-919-863-9226
Telephone No.082-285-3710
Email ad: jbci98@yahoo.com

2
Motion to Quash Warrant- Danilo Abarca
 FACTUAL ANTECEDENTS

1. On March 15, 2015, Prosecutor Rommel M. Alonto issued a

Resolution on NPS Docket No. X-01-INV-15-A-022 for Violation of BP
22. In her Resolution she said:

“ This resolves the complaint filed by Erlinda

Abalde against Danilo Abarca for Violation of BP 22.
Xxxx

From the following evidence submitted by the

complainant to wit: Complaint Affidavit with
Annexes A to F and Demand letter marked as Annex
G, the undersigned prosecutor finds probable cause
to charge respondent DANILO ABARCA for 6 counts
of Violation of BP 22.

WHEREFORE, premises considered, it is respectfully

recommended that an information for 6 counts of
Violation of BP 22 be filed against Danilo Abarca.

2. The herein accused never received the Resolution from the Office
of the Provincial Prosecutor. Had the herein accused received the
said Resolution, it would have filed a Resolution as mandated by the
National Prosecutions Manual, which says:

SEC. 56. Motion for reconsideration. - A motion for

reconsideration may be filed within ten (10) days
from receipt of the resolution. The motion shall be
verified, addressed to the Provincial/City
Prosecutor or the Chief State Prosecutor, and
accompanied by proof of service of a copy thereof
on the opposing party and must state clearly and
distinctly the grounds relied upon in support of the
motion.

A motion for reconsideration is still part of due

process in the preliminary investigation. The denial
thereof is a reversible error as it constitutes a
deprivation of the respondent's right to a full
preliminary investigation preparatory to the filing
of the information against him. The court therefore may not
proceed with the arraignment and trial pending resolution of
the motion for reconsideration.

3
Motion to Quash Warrant- Danilo Abarca
 3. On February 27, 2015, Prosecutor Rommel Alonto with the approval
filed the information in this case accusing DANILO ABARCA for
Violation of BP 22 and recommended Php 2,000 as bail bond for
each count.

4. This led to the arrest of Danilo Abarca in Criminal Case No. 4123-
4128 entitled People of the Philippines vs. Danilo Abarca, for
violation of BP 22. On April 22, 2019, Danilo Abarca posted a cash
bond in the amount of Php 15,000.00 with the Office of the Clerk of
Court and scheduled his arraignment and pre-trial on May 29, 2019
at 8:30 in the morning. This incident paved the way for the accused
to get a copy of the information and other supporting documents
from this Honorable Court;

5. We have discovered that the Investigating Prosecutor Alonto filed

the information of the above-entitled case attaching the following:

a. the Resolution which was never received by the accused;

b. the information

6. Further, no proof that there was issuance of subpoena to the herein

accused which is necessary for the conduct of preliminary
investigation;

7. That the accused believes that if they will be given an opportunity

to answer the charges against them, the resolution could have been
different;

8. The National Prosecutor’s Manual is every explicit that issuance of

subpoena is indispensable.

SEC. 13. Initial/ action on the Complaint.- Within ten (10)

days after the filing of the complaint, the Investigating

4
Motion to Quash Warrant- Danilo Abarca
 Prosecutor shall either dismiss the same if he finds no
ground to continue with the inquiry, or issue a subpoena
to the respondent, attaching thereto a copy of the
complaint together with the affidavits of witnesses and
other supporting documents.

SEC. 16. Service of subpoena in preliminary investigation.

- To expedite the conduct of a preliminary investigation,
the following guidelines shall be observed in the service
of subpoenas-

a. Service of subpoena and all papers/documents required to

be attached thereto shall be personal service by regular
process servers. In their absence, the cooperation of the
Provincial City/Municipal Station Commanders of the
Philippine National Police (PNP) may be requested for the
purpose.

9. The Information filed by Prosecutor Alonto contains a Certification

that “he conducted a preliminary investigation in this case in
accordance with law and that the complainant was personally
examined and on the basis of the sworn statements and other
evidence presented, there is a reasonable ground to believe that
the crime charged has been committed and that the accused is
probably guilty thereof;”.

10. The honorable judge issued a warrant of arrest to the herein

accused for 6 counts. Parenthetically, there was never a resolution
received by the above-named accused nor they were issued
subpoena before the Office of the Provincial Prosecutor.

11. Accused was never served a copy of the complaint filed

against him. The records will show that he did not receive a copy of
the subpoena nor was it received by a duly authorized
representative. Accused was therefore, not given an opportunity to
be heard and effectively deprived of his constitutional right to due
process.

5
Motion to Quash Warrant- Danilo Abarca
 BLATANT AND PALPABLE
PROCEDURAL LAW

A. VIOLATION OF BP 22 IS UNDER
THE RULES ON SUMMARY
PROCEDURES WHERE THERE IS
NO ISSUANCE OF WARRANT OF
ARREST

Violation of BP 22 is covered by the Rules on Summary Procedure.

Under Section 16 of the said Rules, the court shall not order the
arrest of the accused except for failure to appear whenever
required. In sum, the court in cases covered by the Rules On
Summary Procedure such as violation of BP Blg. 22 shall not issue
warrant of arrest based on the finding of probable cause upon filing
of information. Thus, bail for his temporary release is not required
since he will not be arrested in the first place.

The bail recommended by the public prosecutor is not binding to

the trial courts since they are tasked to obey the Rules promulgated
by the Supreme Court. If procedural rules made by the highest
tribunal of land are mandating the non-issuance of a warrant of
arrest in BP Blg. 22 and crimes punishable by fine only, the trial
courts as loyal soldiers of the judiciary must comply. The
recommendation of the fiscal pursuant to the said DOJ guidelines
requiring bail for the temporary release of the accused cannot be
used by the trial courts as a basis for issuing warrant of arrest in
cases where the judicial rules disallow it. It goes without saying
that the Rules of Criminal Procedure and the Rules on Summary
Procedure are more superior than DOJ circulars.

6
Motion to Quash Warrant- Danilo Abarca
 B. ARTICLE III (SECTIONS 1 AND 14
PAR 1) OF THE 1987 PHILIPPINE
CONSTITUTION WAS VIOLATED

Justice Melo once said in Secretary of Justice vs. Judge Lantion, et al

(G.R. No. 139465, January 18, 2000):

The individual citizen is but a speck of particle or

molecule vis-à-vis the vast and overwhelming powers of
government. His only guarantee against oppression and
tyranny are his fundamental liberties under the Bill of
Rights which shield him in times of need. The Court is now
called to decide whether to uphold a citizen's basic due
process rights, or the government's ironclad duties under a
treaty. The bugle sounds and this Court must once again
act as the faithful guardian of the fundamental writ.

Section 1 of Article III of the 1987 Constitution provides, to wit:

“No person shall be deprived of life, liberty,

or property without due process of law xxx…
xxx.”

Further, Section 14(1) of the same article states, thus:

“No person shall be held to answer for a

criminal offense without due process of
law.”

The cardinal precept is that where there is a violation of basic

constitutional rights, courts are ousted from their jurisdiction. The
violation of a party’s right to due process raises a serious jurisdictional
issue which cannot be glossed over or disregarded at will. 

Where the denial of the fundamental right of due process is apparent,

a decision rendered in disregard of that right is void for lack of
jurisdiction. Suffice it to say that the three warrant of arrest issued
7
Motion to Quash Warrant- Danilo Abarca
 against the herein accused are VOID AB INITIO for being violative to
the constitutional rights of the accused.

Well-settled is the rule that the essence of due process is simply an

opportunity to be heard or, as applied to administrative proceedings,
an opportunity to explain ones side or an opportunity to seek a
reconsideration of the action or ruling complained of.  Hence, even if
administrative tribunals exercising quasi-judicial powers are not
strictly bound by procedural requirements, they are still bound by law
and equity to observe the fundamental requirements of due process. In
the application of the principle of due process, what is sought to be
safeguarded is not lack of previous notice but the denial of the
opportunity to be heard.
 
The case for violation of BP 22 was filed by the Investigating Fiscal
even without the conduct of preliminary investigation. The accused
never received a subpoena from the Office of the Provincial
Prosecutor. The preliminary investigation was flawed from the very
beginning when the Fiscal did not issue the subpoena and wait for the
counter-affidavit of the accused. He was completely deprived of the
opportunity to be heard on the charges against him and was
irrefragably denied due process.

C. NO PRELIMINARY
INVESTIGATION WAS
CONDUCTED IN THIS CASE IN
SERIOUS VIOLATION OF THE
CONSTITUTIONAL RIGHT TO
DUE PROCESS OF ACCUSED

In People v. Oandasa, 25 SCRA 277, the Supreme holds:

8
Motion to Quash Warrant- Danilo Abarca
 “The right to a preliminary investigation is a
statutory grant, and to withhold it would be to
transgress constitutional due process.”

However, in order to satisfy the due process clause it is not enough

that the preliminary investigation is conducted in the sense of making
sure that a transgressor shall not escape with impunity.  A preliminary
investigation serves not only the purposes of the State.  More
important, it is a part of the guarantees of freedom and fair play
which are birthrights of all who live in our country.  It is, therefore,
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. 

As held in Mercado v. Court of First Instance of Rizal, 116 SCRA 93, it

holds:

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 vitalizing and not denigrating constitutional
rights.  So it has been before.  It should continue to be
so. 

D. PRELIMINARY INVESTIGATION IS
A COMPONENT OF PROCEDURAL
DUE PROCESS WHICH COULD
NOT BE DISPENSED WITH

Due process is comprised of two components -- substantive due process

which requires the intrinsic validity of the law in interfering with the
rights of the person to his life, liberty, or property, and procedural
due process which consists of the two basic rights of notice and

9
Motion to Quash Warrant- Danilo Abarca
 hearing, as well as the guarantee of being heard by an impartial
and competent tribunal.

One component of procedural due process is the right to preliminary

investigation, a procedure enshrined in Section 3, Rule 112 of the
Revised Rules of Criminal Procedure, to wit:

“Sec.3. Procedure.- Except as provided 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) xxx….

(b) Within ten (10) days after the filing of the complaint,
the investigating officer shall either dismiss the same if he
found no ground to continue with the inquiry, or issue
subpoena to the respondent, attaching thereto a copy
of the complaint, affidavits and other supporting
documents. Within ten (10) 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 complaint.”

As clearly provided by the above cited provision, the investigating

officer, that is the prosecutor, must issue a subpoena to the
respondent to a criminal complaint should he find ground to continue
with the inquiry. Hence, at this early stage of the proceeding, the
respondent is already accorded the right to be informed of the
criminal complaint against him. The significance of the right to
preliminary investigation as a key component of an accused’s right to
due process has been upheld by the Supreme Court in a long line of
cases. “This procedure (in Section 3, Rule 112 of the Rules of
Criminal Procedure) is to be observed in order to assure that a person
undergoing such preliminary investigation will be afforded due
process”. In a more recent case, the Supreme Court likewise held:

10
Motion to Quash Warrant- Danilo Abarca
 “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.

Not only that, the Supreme Court in these cases emphasized that the
denial of the right to preliminary investigation, being a key component
of the accused’s right to due process, invalidates the proceedings had
on a case. In the case of Secretary of Justice v. Lantion the Supreme
Court also held, to wit:

In a preliminary investigation which is an administrative

investigatory proceeding, Section 3, Rule 112 of the Rules of
Court guarantees the respondent's basic due process rights,
granting him 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 within
ten days from receipt thereof. Moreover, the respondent shall
have the right to examine all other evidence submitted by the
complainant.” x x x

“True to the mandate of the due process clause, the basic

rights of notice and hearing pervade not only in criminal and
civil proceedings, but in administrative proceedings as well.
Non-observance of these rights will invalidate the
proceedings. Individuals are entitled to be notified of any
pending case affecting their interests, and upon notice, they may
claim the right to appear therein and present their side and to
refute the position of the opposing parties (Cruz, Phil.
Administrative Law, 1996 ed., p. 64).

It is well to emphasize the stern reminder of the Supreme Court in the

case of Salonga vs. Cruz Pano, supra, when it held:

“Infinitely more important that conventional adherence to

general rules of criminal procedure is respect for the
citizen’s right to be free not only from arbitrary arrest and
punishment but also from unwarranted and vexatious
prosecution. The integrity of a democratic society is
corrupted if a person is carelessly included in the trial of
around forty persons when on the very face of the record
no evidence linking him to the alleged conspiracy exists.”

11
Motion to Quash Warrant- Danilo Abarca
 In light of the clear lapse of the public prosecutor himself that no
preliminary investigation was conducted against the herein accused,
one comes to the inevitable conclusion that accused’s right to due
process has been gravely, seriously, and massively violated. Hence, the
proceedings – starting from the filing of the information, which led to
the issuance of warrant of arrest of herein accused are all null and
void.

CONCLUSION
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. 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. After all, the purpose of
preliminary investigation is not only to determine whether
there is sufficient ground to engender a well-founded
belief that a crime has been committed and the respondent
therein is probably guilty thereof and should be held for
trial; it is just as well for the purpose of securing the
innocent against hasty, malicious and oppressive
prosecution, and to protect him from an open and public
accusation of a crime, from the trouble, expense and
anxiety of a public trial. More importantly, in the appraisal
of the case presented to him for resolution, the duty of a
prosecutor is more to do justice and less to prosecute.

PRAYER

WHEREFORE, PREMISES CONSIDERED, in the interest of justice and to

uphold the rule of law, the herein accused respectfully and humbly prays
that the Warrant of Arrest issued against the accused BE QUASHED/
RECALLED; and that this case BE OUTRIGHTLY DISMISSED.

Other forms of relief that are just and equitable under the premises are
likewise prayed for.

12
Motion to Quash Warrant- Danilo Abarca
RESPECTFULLY SUBMITTED. Davao City (for Quezon, Bukidnon) May 6,
2019.

MAHINAY LAW OFFICE

187 Dominica St., Solariega
Talomo, Davao City
Atty. Gilda S. Mahinay, MAEcon
+63-906-624-8650/+63-919-863-9226
Telephone No.082-285-3710
Email ad: jbci98@yahoo.com

By:

ATTY. GILDA S. MAHINAY, MA

. Econ
Counsel for Danilo Abarca
187 Dominica St. Solariega, Puan, Talomo,Davao City
PTR No. 2470304/January 8, 2019
IBP No. 068212/ January 10,2019
Roll No. 70474
MCLE EXEMPTED

NOTICE OF HEARING

THE BRANCH CLERK OF COURT

Municipal Trial Court
Quezon, Bukidnon

Greetings!
      

13
Motion to Quash Warrant- Danilo Abarca
Please submit the foregoing motion for the kind consideration and approval of the
Honorable Court upon receipt hereof sans appearance of counsel.

ATTY. GILDA S. MAHINAY, MA Econ.

Counsel for Danilo Abarca

copy furnished:
The Provincial Prosecutor
Province of Bukidnon
     
Erlinda A. Abalde
Brgy. Butong, Quezon
Bukidnon

14
Motion to Quash Warrant- Danilo Abarca