EN BANC

G.R. No. 211833, April 07, 2015

FERDINAND R. VILLANUEVA, PRESIDING JUDGE, MCTC, COMPOSTELA-NEW

BATAAN, COMPOSTELA VALLEY PROVINCE, Petitioner, v. JUDICIAL AND BAR
COUNCIL, Respondent.

DECISION

REYES, J.:

Presiding Judge Ferdinand R. Villanueva (petitioner) directly came to this Court via a

Petition for Prohibition, Mandamus, and Certiorari, and Declaratory Relief1 under Rules
65 and 63 of the Rules of Court, respectively, with prayer for the issuance of a
temporary restraining order and/or writ of preliminary injunction, to assail the policy of
the Judicial and Bar Council (JBC), requiring five years of service as judges of first-level
courts before they can qualify as applicant to second-level courts, on the ground that it
is unconstitutional, and was issued with grave abuse of discretion. chanRoblesvirtualLawlibrary

The Facts

The petitioner was appointed on September 18, 2012 as the Presiding Judge of the
Municipal Circuit Trial Court, Compostela-New Bataan, Poblacion, Compostela Valley
Province, Region XI, which is a first-level court. On September 27, 2013, he applied for
the vacant position of Presiding Judge in the following Regional Trial Courts (RTCs):
Branch 31, Tagum City; Branch 13, Davao City; and Branch 6, Prosperidad, Agusan Del
Sur.

In a letter2 dated December 18, 2013, JBC's Office of Recruitment, Selection and

Nomination, informed the petitioner that he was not included in the list of candidates
for the said stations. On the same date, the petitioner sent a letter, through electronic
mail, seeking reconsideration of his non-inclusion in the list of considered applicants
and protesting the inclusion of applicants who did not pass the prejudicature
examination.

The petitioner was informed by the JBC Executive Officer, through a letter3 dated
February 3, 2014, that his protest and reconsideration was duly noted by the JBC en
banc. However, its decision not to include his name in the list of applicants was upheld
due to the JBC's long-standing policy of opening the chance for promotion to second-
level courts to, among others, incumbent judges who have served in their current
position for at least five years, and since the petitioner has been a judge only for more
than a year, he was excluded from the list. This caused the petitioner to take recourse
to this Court.

In his petition, he argued that: (1) the Constitution already prescribed the qualifications
of an RTC judge, and the JBC could add no more; (2) the JBC's five-year requirement
violates the equal protection and due process clauses of the Constitution; and (3) the
JBC's five-year requirement violates the constitutional provision on Social Justice and
Human Rights for Equal Opportunity of Employment. The petitioner also asserted that
the requirement of the Prejudicature Program mandated by Section 104 of Republic Act
(R.A.) No. 85575 should not be merely directory and should be fully implemented. He
further alleged that he has all the qualifications for the position prescribed by the
Constitution and by Congress, since he has already complied with the requirement of 10
years of practice of law.

In compliance with the Court's Resolution6 dated April 22, 2014, the JBC7 and the Office
of the Solicitor General (OSG)8separately submitted their Comments. Summing up the
arguments of the JBC and the OSG, they essentially stated that the petition is
procedurally infirm and that the assailed policy does not violate the equal protection
and due process clauses. They posited that: (1) the writ of certiorari and prohibition
cannot issue to prevent the JBC from performing its principal function under the
Constitution to recommend appointees to the Judiciary because the JBC is not a tribunal
exercising judicial or quasi-judicial function; (2) the remedy of mandamus and
declaratory relief will not lie because the petitioner has no clear legal right that needs to
be protected; (3) the equal protection clause is not violated because the classification of
lower court judges who have served at least five years and those who have served less
than five years is valid as it is performance and experience based; and (4) there is no
violation of due process as the policy is merely internal in nature. chanRoblesvirtualLawlibrary

The Issue

The crux of this petition is whether or not the policy of JBC requiring five years of
service as judges of first-level courts before they can qualify as applicant to second-
level courts is constitutional.

Ruling of the Court

Procedural Issues:

Before resolving the substantive issues, the Court considers it necessary to first
determine whether or not the action for certiorari, prohibition and mandamus, and
declaratory relief commenced by the petitioner was proper.

One. The remedies of certiorari and prohibition are tenable. "The present Rules of

Court uses two special civil actions for determining and correcting grave abuse of
discretion amounting to lack or excess of jurisdiction. These are the special civil actions
for certiorari and prohibition, and both are governed by Rule 65."9 As discussed in the
case of Maria Carolina P. Araullo, etc., et al. v. Benigno Simeon C. Aquino III, etc., et
al.,10 this Court explained that:
chanroblesvirtuallawlibrary

With respect to the Court, however, the remedies of certiorari and prohibition are
necessarily broader in scope and reach, and the writ of certiorari or prohibition may be
issued to correct errors of jurisdiction committed not only by a tribunal, corporation,
board or officer exercising judicial, quasi-judicial or ministerial functions but also to set
right, undo and restrain any act of grave abuse of discretion amounting to lack or
excess of jurisdiction by any branch or instrumentality of the Government, even if the
latter does not exercise judicial, quasi-judicial or ministerial functions. This application
is expressly authorized by the text of the second paragraph of Section 1, supra.

Thus, petitions for certiorari and prohibition are appropriate remedies to raise

constitutional issues and to review and/or prohibit or nullify the acts of legislative and
executive officials.11 (Citation omitted)
In this case, it is clear that the JBC does not fall within the scope of a tribunal, board,
or officer exercising judicial or quasi-judicial functions. In the process of selecting and
screening applicants, the JBC neither acted in any judicial or quasi-judicial capacity nor
assumed unto itself any performance of judicial or quasi-judicial prerogative. However,
since the formulation of guidelines and criteria, including the policy that the petitioner
now assails, is necessary and incidental to the exercise of the JBC's constitutional
mandate, a determination must be made on whether the JBC has acted with grave
abuse of discretion amounting to lack or excess of jurisdiction in issuing and enforcing
the said policy.

Besides, the Court can appropriately take cognizance of this case by virtue of the
Court's power of supervision over the JBC. Jurisprudence provides that the power of
supervision is the power of oversight, or the authority to see that subordinate officers
perform their duties. It ensures that the laws and the rules governing the conduct of a
government entity are observed and complied with. Supervising officials see to it that
rules are followed, but they themselves do not lay down such rules, nor do they have
the discretion to modify or replace them. If the rules are not observed, they may order
the work done or redone, but only to conform to such rules. They may not prescribe
their own manner of execution of the act. They have no discretion on this matter except
to see to it that the rules are followed.12

Following this definition, the supervisory authority of the Court over the JBC is to see to
it that the JBC complies with its own rules and procedures. Thus, when the policies of
the JBC are being attacked, then the Court, through its supervisory authority over the
JBC, has the duty to inquire about the matter and ensure that the JBC complies with its
own rules.

Two. The remedy of mandamus cannot be availed of by the petitioner in assailing JBC's

policy. The petitioner insisted that mandamus is proper because his right was violated
when he was not included in the list of candidates for the RTC courts he applied for. He
said that his non-inclusion in the list of candidates for these stations has caused him
direct injury.

It is essential to the issuance of a writ of mandamus that the applicant should have a
clear legal right to the thing demanded and it must be the imperative duty of the
respondent to perform the act required.13 The petitioner bears the burden to show that
there is such a clear legal right to the performance of the act, and a corresponding
compelling duty on the part of the respondent to perform the act. The remedy of
mandamus, as an extraordinary writ, lies only to compel an officer to perform a
ministerial duty, not a discretionary one.14 Clearly, the use of discretion and the
performance of a ministerial act are mutually exclusive.

The writ of mandamus does not issue to control or review the exercise of discretion or
to compel a course of conduct, which, it quickly seems to us, was what the petitioner
would have the JBC do in his favor. The function of the JBC to select and recommend
nominees for vacant judicial positions is discretionary, not ministerial. Moreso, the
petitioner cannot claim any legal right to be included in the list of nominees for judicial
vacancies. Possession of the constitutional and statutory qualifications for appointment
to the judiciary may not be used to legally demand that one's name be included in the
list of candidates for a judicial vacancy. One's inclusion in the list of the candidates
depends on the discretion of the JBC, thus: chanroblesvirtuallawlibrary

The fact that an individual possesses the constitutional and statutory qualifications for
appointment to the Judiciary does not create an entitlement or expectation that his or
her name be included in the list of candidates for a judicial vacancy. By submitting an
application or accepting a recommendation, one submits to the authority of the JBC to
subject the former to the search, screening, and selection process, and to use its
discretion in deciding whether or not one should be included in the list. Indeed,
assuming that if one has the legal right to be included in the list of candidates simply
because he or she possesses the constitutional and statutory qualifications, then the
application process would then be reduced to a mere mechanical function of the JBC;
and the search, screening, and selection process would not only be unnecessary, but
also improper. However, this is clearly not the constitutional intent. One's inclusion in
the list of candidates is subject to the discretion of the JBC over the selection
of nominees for a particular judicial post. Such candidate's inclusion is not,
therefore, a legally demandable right, but simply a privilege the conferment of which is
subject to the JBC's sound discretion.

Moreover, petitioner is essentially seeking a promotional appointment, that is, a

promotion from a first-level court to a second level court. There is no law, however,
that grants him the right to a promotion to second-level courts. 15 (Emphasis in
the original)
Clearly, to be included as an applicant to second-level judge is not properly compellable
by mandamus inasmuch as it involves the exercise of sound discretion by the JBC.

Three. The petition for declaratory relief is improper. "An action for declaratory relief
should be filed by a person interested under a deed, a will, a contract or other written
instrument, and whose rights are affected by a statute, an executive order, a regulation
or an ordinance. The relief sought under this remedy includes the interpretation and
determination of the validity of the written instrument and the judicial declaration of the
parties' rights or duties thereunder."16 "[T]he purpose of the action is to secure an
authoritative statement of the rights and obligations of the parties under a statute,
deed, contract, etc., for their guidance in its enforcement or compliance and not to
settle issues arising from its alleged breach."17

In this case, the petition for declaratory relief did not involve an unsound policy.
Rather, the petition specifically sought a judicial declaration that the petitioner has the
right to be included in the list of applicants although he failed to meet JBC's five-year
requirement policy. Again, the Court reiterates that no person possesses a legal right
under the Constitution to be included in the list of nominees for vacant judicial
positions. The opportunity of appointment to judicial office is a mere privilege, and not
a judicially enforceable right that may be properly claimed by any person. The inclusion
in the list of candidates, which is one of the incidents of such appointment, is not a
right either. Thus, the petitioner cannot claim any right that could have been affected
by the assailed policy.

Furthermore, the instant petition must necessarily fail because this Court does not have
original jurisdiction over a petition for declaratory relief even if only questions of law
are involved.18 The special civil action of declaratory relief falls under the exclusive
jurisdiction of the appropriate RTC pursuant to Section 1919 of Batas Pambansa Blg.
129, as amended by R.A.No. 7691.20

Therefore, by virtue of the Court's supervisory duty over the JBC and in the exercise of
its expanded judicial power, the Court assumes jurisdiction over the present petition.
But in any event, even if the Court will set aside procedural infirmities, the instant
petition should still be dismissed.
chanRoblesvirtualLawlibrary

Substantive Issues

As an offspring of the 1987 Constitution, the JBC is mandated to recommend

appointees to the judiciary and only those nominated by the JBC in a list officially
transmitted to the President may be appointed by the latter as justice or judge in the
judiciary. Thus, the JBC is burdened with a great responsibility that is imbued with
public interest as it determines the men and women who will sit on the judicial bench.
While the 1987 Constitution has provided the qualifications of members of the judiciary,
this does not preclude the JBC from having its own set of rules and procedures and
providing policies to effectively ensure its mandate.

The functions of searching, screening, and selecting are necessary and incidental to the
JBC's principal function of choosing and recommending nominees for vacancies in the
judiciary for appointment by the President. However, the Constitution did not lay down
in precise terms the process that the JBC shall follow in determining applicants'
qualifications. In carrying out its main function, the JBC has the authority to set the
standards/criteria in choosing its nominees for every vacancy in the judiciary, subject
only to the minimum qualifications required by the Constitution and law for every
position. The search for these long held qualities necessarily requires a degree of
flexibility in order to determine who is most fit among the applicants. Thus, the JBC has
sufficient but not unbridled license to act in performing its duties.

JBC's ultimate goal is to recommend nominees and not simply to fill up judicial
vacancies in order to promote an effective and efficient administration of justice. Given
this pragmatic situation, the JBC had to establish a set of uniform criteria in order to
ascertain whether an applicant meets the minimum constitutional qualifications and
possesses the qualities expected of him and his office. Thus, the adoption of the five-
year requirement policy applied by JBC to the petitioner's case is necessary and
incidental to the function conferred by the Constitution to the JBC.

Equal Protection

There is no question that JBC employs standards to have a rational basis to screen
applicants who cannot be all accommodated and appointed to a vacancy in the
judiciary, to determine who is best qualified among the applicants, and not to
discriminate against any particular individual or class.

The equal protection clause of the Constitution does not require the universal
application of the laws to all persons or things without distinction; what it requires is
simply equality among equals as determined according to a valid classification. Hence,
the Court has affirmed that if a law neither burdens a fundamental right nor targets a
suspect class, the classification stands as long as it bears a rational relationship to
some legitimate government end.21 ChanRoblesVirtualawlibrary

"The equal protection clause, therefore, does not preclude classification of individuals
who may be accorded different treatment under the law as long as the classification is
reasonable and not arbitrary."22 "The mere fact that the legislative classification may
result in actual inequality is not violative of the right to equal protection, for every
classification of persons or things for regulation by law produces inequality in some
degree, but the law is not thereby rendered invalid."23

That is the situation here. In issuing the assailed policy, the JBC merely exercised its
discretion in accordance with the constitutional requirement and its rules that a
member of the Judiciary must be of proven competence, integrity, probity and
independence.24"To ensure the fulfillment of these standards in every member of the
Judiciary, the JBC has been tasked to screen aspiring judges and justices, among
others, making certain that the nominees submitted to the President are all qualified
and suitably best for appointment. In this way, the appointing process itself is shielded
from the possibility of extending judicial appointment to the undeserving and mediocre
and, more importantly, to the ineligible or disqualified."25

Consideration of experience by JBC as one factor in choosing recommended appointees

does not constitute a violation of the equal protection clause. The JBC does not
discriminate when it employs number of years of service to screen and differentiate
applicants from the competition. The number of years of service provides a relevant
basis to determine proven competence which may be measured by experience, among
other factors. The difference in treatment between lower court judges who have served
at least five years and those who have served less than five years, on the other hand,
was rationalized by JBC as follows:chanroblesvirtuallawlibrary

Formulating policies which streamline the selection process falls squarely under the
purview of the JBC. No other constitutional body is bestowed with the mandate and
competency to set criteria for applicants that refer to the more general categories of
probity, integrity and independence.

The assailed criterion or consideration for promotion to a second-level court, which is

five years experience as judge of a first-level court, is a direct adherence to the
qualities prescribed by the Constitution. Placing a premium on many years of judicial
experience, the JBC is merely applying one of the stringent constitutional standards
requiring that a member of the judiciary be of "proven competence." In determining
competence, the JBC considers, among other qualifications, experience and
performance.

Based on the JBC's collective judgment, those who have been judges of first-level
courts for five (5) years are better qualified for promotion to second-level courts. It
deems length of experience as a judge as indicative of conversance with the law and
court procedure. Five years is considered as a sufficient span of time for one to acquire
professional skills for the next level court, declog the dockets, put in place improved
procedures and an efficient case management system, adjust to the work environment,
and gain extensive experience in the judicial process.

A five-year stint in the Judiciary can also provide evidence of the integrity,

probity, and independence of judges seeking promotion. To merit JBC's nomination
for their promotion, they must have had a "record of, and reputation for, honesty,
integrity, incorruptibility, irreproachable conduct, and fidelity to sound moral and ethical
standards." Likewise, their decisions must be reflective of the soundness of their
judgment, courage, rectitude, cold neutrality and strength of character.

Hence, for the purpose of determining whether judges are worthy of promotion to the
next level court, it would be premature or difficult to assess their merit if they have had
less than one year of service on the bench.26 (Citations omitted and emphasis in the
original)
At any rate, five years of service as a lower court judge is not the only factor that
determines the selection of candidates for RTC judge to be appointed by the President.
Persons with this qualification are neither automatically selected nor do they
automatically become nominees. The applicants are chosen based on an array of
factors and are evaluated based on their individual merits. Thus, it cannot be said that
the questioned policy was arbitrary, capricious, or made without any basis.

Clearly, the classification created by the challenged policy satisfies the rational basis
test. The foregoing shows that substantial distinctions do exist between lower court
judges with five year experience and those with less than five years of experience, like
the petitioner, and the classification enshrined in the assailed policy is reasonable and
relevant to its legitimate purpose. The Court, thus, rules that the questioned policy
does not infringe on the equal protection clause as it is based on reasonable
classification intended to gauge the proven competence of the applicants. Therefore,
the said policy is valid and constitutional.

Due Process

The petitioner averred that the assailed policy violates procedural due process for lack
of publication and non-submission to the University of the Philippines Law Center Office
of the National Administrative Register (ONAR). The petitioner said that the assailed
policy will affect all applying judges, thus, the said policy should have been published.

Contrary to the petitioner's contention, the assailed JBC policy need not be filed in the
ONAR because the publication requirement in the ONAR is confined to issuances of
administrative agencies under the Executive branch of the government.27 Since the JBC
is a body under the supervision of the Supreme Court,28 it is not covered by the
publication requirements of the Administrative Code.

Nevertheless, the assailed JBC policy requiring five years of service as judges of first-
level courts before they can qualify as applicants to second-level courts should have
been published. As a general rule, publication is indispensable in order that all statutes,
including administrative rules that are intended to enforce or implement existing laws,
attain binding force and effect. There are, however, several exceptions to the
requirement of publication, such as interpretative regulations and those merely internal
in nature, which regulate only the personnel of the administrative agency and not the
public. 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.29

Here, the assailed JBC policy does not fall within the administrative rules and
regulations exempted from the publication requirement. The assailed policy involves a
qualification standard by which the JBC shall determine proven competence of an
applicant. It is not an internal regulation, because if it were, it would regulate and affect
only the members of the JBC and their staff. Notably, the selection process involves a
call to lawyers who meet the qualifications in the Constitution and are willing to serve in
the Judiciary to apply to these vacant positions. Thus, it is but a natural consequence
thereof that potential applicants be informed of the requirements to the judicial
positions, so that they would be able to prepare for and comply with them.

The Court also noted the fact that in JBC-009, otherwise known as the Rules of the
Judicial and Bar Council, the JBC had put its criteria in writing and listed the guidelines
in determining competence, independence, integrity and probity. Section 1, Paragraph
1 of Rule 9 expressly provides that applicants for the Court of Appeals and
the Sandiganbayan, should, as a general rule, have at least five years of experience as
an RTC judge, thus: chanroblesvirtuallawlibrary

RULE 9 - SPECIAL GUIDELINES FOR NOMINATION TO A VACANCY IN THE COURT OF

APPEALS AND SANDIGANBAYAN

Section 1. Additional criteria for nomination to the Court of Appeals and the
Sandiganbayan. - In addition to the foregoing guidelines the Council should consider
the following in evaluating the merits of applicants for a vacancy in the Court of Appeals
and Sandiganbayan:

1. As a general rule, he must have at least five years of experience as a judge of

Regional Trial Court, except when he has in his favor outstanding credentials, as
evidenced by, inter alia, impressive scholastic or educational record and performance in
the Bar examinations, excellent reputation for honesty, integrity, probity and
independence of mind; at least very satisfactory performance rating for three (3) years
preceding the filing of his application for nomination; and excellent potentials for
appellate judgeship.

x x x x (Emphasis ours)
The express declaration of these guidelines in JBC-009, which have been duly published
on the website of the JBC and in a newspaper of general circulation suggests that the
JBC is aware that these are not mere internal rules, but are rules implementing the
Constitution that should be published. Thus, if the JBC were so-minded to add special
guidelines for determining competence of applicants for RTC judges, then it could and
should have amended its rules and published the same. This, the JBC did not do as
JBC-009 and its amendatory rule do not have special guidelines for applicants to the
RTC.

Moreover, jurisprudence has held that rules implementing a statute should be

published. Thus, by analogy, publication is also required for the five-year requirement
because it seeks to implement a constitutional provision requiring proven competence
from members of the judiciary.

Nonetheless, the JBC's failure to publish the assailed policy has not prejudiced the
petitioner's private interest. At the risk of being repetitive, the petitioner has no legal
right to be included in the list of nominees for judicial vacancies since the possession of
the constitutional and statutory qualifications for appointment to the Judiciary may not
be used to legally demand that one's name be included in the list of candidates for a
judicial vacancy. One's inclusion in the shortlist is strictly within the discretion of the
JBC.30

As to the issue that the JBC failed or refused to implement the completion of the
prejudicature program as a requirement for appointment or promotion in the judiciary
under R.A. No. 8557, this ground of the petition, being unsubstantiated, was
unfounded. Clearly, it cannot be said that JBC unlawfully neglects the performance of a
duty enjoined by law.

Finally, the petitioner argued but failed to establish that the assailed policy violates the
constitutional provision under social justice and human rights for equal opportunity of
employment. The OSG explained: chanroblesvirtuallawlibrary

[T]he questioned policy does not violate equality of employment opportunities. The
constitutional provision does not call for appointment to the Judiciary of all who might,
for any number of reasons, wish to apply. As with all professions, it is regulated by the
State. The office of a judge is no ordinary office. It is imbued with public interest and is
central in the administration of justice x x x. Applicants who meet the constitutional and
legal qualifications must vie and withstand the competition and rigorous screening and
selection process. They must submit themselves to the selection criteria, processes and
discretion of respondent JBC, which has the constitutional mandate of screening and
selecting candidates whose names will be in the list to be submitted to the President.
So long as a fair opportunity is available for all applicants who are evaluated on the
basis of their individual merits and abilities, the questioned policy cannot be struck
down as unconstitutional.31 (Citations omitted)
From the foregoing, it is apparent that the petitioner has not established a clear legal
right to justify the issuance of a preliminary injunction. The petitioner has merely filed
an application with the JBC for the position of RTC judge, and he has no clear legal right
to be nominated for that office nor to be selected and included in the list to be
submitted to the President which is subject to the discretion of the JBC. The JBC has
the power to determine who shall be recommended to the judicial post. To be included
in the list of applicants is a privilege as one can only be chosen under existing criteria
imposed by the JBC itself. As such, prospective applicants, including the petitioner,
cannot claim any demandable right to take part in it if they fail to meet these criteria.
Hence, in the absence of a clear legal right, the issuance of an injunctive writ is not
justified.

As the constitutional body granted with the power of searching for, screening, and
selecting applicants relative to recommending appointees to the Judiciary, the JBC has
the authority to determine how best to perform such constitutional mandate. Pursuant
to this authority, the JBC issues various policies setting forth the guidelines to be
observed in the evaluation of applicants, and formulates rules and guidelines in order to
ensure that the rules are updated to respond to existing circumstances. Its discretion is
freed from legislative, executive or judicial intervention to ensure that the JBC is
shielded from any outside pressure and improper influence. Limiting qualified applicants
in this case to those judges with five years of experience was an exercise of discretion
by the JBC. The potential applicants, however, should have been informed of the
requirements to the judicial positions, so that they could properly prepare for and
comply with them. Hence, unless there are good and compelling reasons to do so, the
Court will refrain from interfering with the exercise of JBC's powers, and will respect the
initiative and independence inherent in the latter. cralawred

WHEREFORE, premises considered, the petition is DISMISSED. The Court,

however, DIRECTS that the Judicial and Bar Council comply with the publication
requirement of (1) the assailed policy requiring five years of experience as judges of
first-level courts before they can qualify as applicant to the Regional Trial Court, and
(2) other special guidelines that the Judicial and Bar Council is or will be implementing.

SO ORDERED. chanroblesvirtuallawlibrary

Sereno, C. J., no part.

Carpio, Velasco, Jr., Bersamin, Del Castillo, Perez, and Mendoza, JJ., concur.
Leonardo-De Castro, J., I concur and also join the concurring opinion of Justice Brion.
Brion, J., see concurring opinion.
Peralta, J., I join the opinion of J. Brion.
Villarama, Jr., J., on official leave.
Perlas-Bernabe, J., on leave.
Leonen, J., see separate concurring opinion.
Jardeleza, J., no part.

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Legal ResourcesAUSL Exclusive

SENATOR JINGGOY EJERCITO ESTRADA v. NBI, G.R. Nos. 212140-41, January 21, 2015

♦ Decision, Carpio [J]

♦ Dissenting Opinion, Brion [J]

♦ Dissenting Opinion, Velasco, Jr. [J]

♦ Concurring Opinion, Leonen [J]

Republic of the Philippines

SUPREME COURT

Manila

EN BANC
G.R. Nos. 212140-41 January 21, 2015

SENATOR JINGGOY EJERCITO ESTRADA, Petitioner,

vs.

OFFICE OF THE OMBUDSMAN, FIELD INVESTIGATION OFFICE, Office of the Ombudsman, NATIONAL
BUREAU OF INVESTIGATION and ATTY. LEVITO D. BALIGOD, Respondents.

DECISION

CARPIO, J.:

It is a fundamental principle that the accused in a preliminary investigation has no right to cross-examine
the witnesses which the complainant may present. Section 3, Rule 112 of the Rules of Court expressly
provides that the respondent shall only have the right to submit a counter-affidavit, to examine all other
evidence submitted by the complainant and, where the fiscal sets a hearing to propound clarificatory
questions to the parties or their witnesses, to be afforded an opportunity to be present but without the
right to examine or crossexamine.

- Paderanga v. Drilon1

This case is a Petition for Certiorari2 with prayer for (1) the issuance of a temporary restraining order
and/or Writ of Preliminary Injunction enjoining respondents Office of the Ombudsman (Ombudsman),
Field Investigation Office (FIO) of the Ombudsman, National Bureau of Investigation (NBI), and Atty.
Levito D. Baligod (Atty. Baligod) (collectively, respondents), from conducting further proceedings in
OMB-CC-13-03013 and OMB-C-C-13-0397 until the present Petition has been resolved with finality; and
(2) this Court’s declaration that petitioner Senator Jinggoy Ejercito Estrada (Sen. Estrada)was denied due
process of law, and that the Order of the Ombudsman dated 27 March 2014 and the proceedings in
OMB-C-C-13-03013 and OMB-C-C-13-0397 subsequent to and affected by the issuance of the challenged
27 March 2014 Order are void.

OMB-C-C-13-0313,3 entitled National Bureau of Investigation and Atty. Levito D. Baligod v. Jose
"Jinggoy" P. Ejercito Estrada, et al.,refers to the complaint for Plunder as defined under Republic Act
(RA) No. 7080, while OMB-C-C-13-0397,4 entitled Field Investigation Office, Office of the Ombudsman v.
Jose "Jinggoy" P. Ejercito-Estrada, et al., refers to the complaint for Plunder as defined underRA No.
7080 and for violation of Section 3(e) of RA No. 3019 (Anti-Graft and Corrupt Practices Act).

The Facts

On 25 November 2013, the Ombudsman served upon Sen. Estrada a copy of the complaint in OMB-C-C-
13-0313, filed by the NBI and Atty. Baligod, which prayed, among others, that criminal proceedings for
Plunder as defined in RA No. 7080 be conducted against Sen. Estrada. Sen. Estrada filed his counter-
affidavit inOMB-C-C-13-0313 on 9 January 2014.

On 3 December 2013, the Ombudsman served upon Sen. Estrada a copy of the complaint in OMB-C-C-
13-0397, filed by the FIO of the Ombudsman, which prayed, among others, that criminal proceedings for
Plunder, as defined in RA No. 7080, and for violation of Section 3(e) of RA No. 3019, be conducted
against Sen. Estrada. Sen. Estrada filed his counter affidavit in OMB-C-C-13-0397 on 16 January 2014.

Eighteen of Sen. Estrada’s co-respondents in the two complaints filed their counter-affidavits between 9
December 2013 and 14 March 2014.5

On 20 March 2014, Sen. Estrada filed his Request to be Furnished with Copies of Counter-Affidavits of
the Other Respondents, Affidavits of New Witnesses and Other Filings (Request) in OMB-C-C-13-0313. In
his Request, Sen. Estrada asked for copies of the following documents:

(a) Affidavit of [co-respondent] Ruby Tuason (Tuason);

(b) Affidavit of [co-respondent] Dennis L. Cunanan (Cunanan);

(c) Counter-Affidavit of [co-respondent] Gondelina G. Amata (Amata);

(d) Counter-Affidavit of [co-respondent] Mario L. Relampagos (Relampagos);

(e) Consolidated Reply of complainant NBI, if one had been filed; and
(f) Affidavits/Counter-Affidavits/Pleadings/Filings filed by all the other respondents and/or additional
witnesses for the Complainants.6

Sen. Estrada’s request was made "[p]ursuant to the right of a respondent ‘to examine the evidence
submitted by the complainant which he may not have been furnished’ (Section 3[b], Rule 112 of the
Rules of Court) and to ‘have access to the evidence on record’ (Section 4[c], Rule II of the Rules of
Procedure of the Office of the Ombudsman)."7

On 27 March 2014, the Ombudsman issued the assailed Order in OMB-C-C-13-0313. The pertinent
portions of the assailed Order read:

This Office finds however finds [sic] that the foregoing provisions [pertaining to Section 3[b], Rule 112 of
the Rules of Court and Section 4[c], Rule II of the Rules of Procedure of the Office of the Ombudsman]
do not entitle respondent [Sen. Estrada]to be furnished all the filings of the respondents.

Rule 112 (3) (a) & (c) of the Rules of Court provides [sic]:

(a) The complaintshall 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 …

xxx xxx xxx

(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.

Further to quote the rule in furnishing copies of affidavits to parties under the Rules of Procedure of the
Office of the Ombudsman [Section 4 of Rule II of Administrative Order No. 07 issued on April 10, 1990]:

a) If the complaint is not under oath or is based only on official reports, the investigating officer shall
require the complainant or supporting witnesses to execute affidavits to substantiate the complaints.
b) After such affidavits have been secured, the investigating officer shall issue an order, attaching
thereto a copy of the affidavits and other supporting documents, directing the respondents to submit,
within ten (10) days from receipt thereof, his counter-affidavits and controverting evidence with proof
of service thereof on the complainant. The complainant may file reply affidavits within ten (10) days
after service of the counter-affidavits.

It can be gleaned from these aforecited provisions that this Office is required to furnish [Sen. Estrada] a
copy of the Complaint and its supporting affidavits and documents; and this Office complied with this
requirement when it furnished [Sen. Estrada] with the foregoing documents attached to the Orders to
File Counter-Affidavit dated 19 November 2013 and 25 November 2013.

It is to be noted that there is noprovision under this Office’s Rules of Procedure which entitles
respondent to be furnished all the filings by the other parties, e.g. the respondents. Ruby Tuason,
Dennis Cunanan, Gondelina G. Amata and Mario L. Relampagos themselves are all respondents in these
cases. Under the Rules of Court as well as the Rules of Procedure of the Office of the Ombudsman, the
respondents are only required to furnish their counter-affidavits and controverting evidence to the
complainant, and not to the other respondents.

To reiterate, the rights of respondent [Sen.] Estrada in the conduct of the preliminary investigation
depend on the rights granted to him by law and these cannot be based on whatever rights he believes
[that] he is entitled to or those that may be derived from the phrase "due process of law." Thus, this
Office cannot grant his motion to be furnished with copies of all the filings by the other parties.
Nevertheless, he should be furnished a copy of the Reply of complainant NBI as he is entitled thereto
under the rules; however, as of this date, no Reply has been filed by complainant NBI.

WHEREFORE, respondent [Sen.] Estrada’s Request to be Furnished with Copies of Counter-Affidavits of

the Other Respondents, Affidavits of New Witnesses and Other Filingsis DENIED. He is nevertheless
entitled to be furnished a copy of the Reply if complainant opts to file such pleading.8 (Emphases in the
original)

On 28 March 2014, the Ombudsman issued in OMB-C-C-13-0313 and OMB-C-C-13-0397 a Joint

Resolution9 which found probable cause to indict Sen. Estrada and his co-respondents with one count of
plunder and 11 counts of violation of Section 3(e) of RA No. 3019. Sen. Estrada filed a Motion for
Reconsideration (of the Joint Resolution dated 28 March 2014) dated 7 April 2014. Sen. Estrada prayed
for the issuance of a new resolution dismissing the charges against him. Without filing a Motion for
Reconsideration of the Ombudsman’s 27 March 2014 Order denying his Request, Sen. Estrada filed the
present Petition for Certiorari under Rule 65 and sought to annul and set aside the 27 March 2014
Order.
THE ARGUMENTS

Sen. Estrada raised the following grounds in his Petition:

THE OFFICE OF THE OMBUDSMAN, IN ISSUING THE CHALLENGED ORDER DATED 27 MARCH 2014, ACTED
WITHOUT OR IN EXCESS OF ITS JURISDICTION OR WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO
LACK OR EXCESS OF JURISDICTION AND VIOLATED SEN. ESTRADA'S CONSTITUTIONAL RIGHT TO DUE
PROCESS OF LAW.10 Sen. Estrada also claimed that under the circumstances, he has "no appeal or any
other plain, speedy, and adequate remedy in the ordinary course of law, except through this
Petition."11 Sen. Estrada applied for the issuance of a temporary restraining order and/or writ of
preliminary injunction to restrain public respondents from conducting further proceedings in OMB-C-C-
13-0313 and OMB-C-C-13-0397. Finally, Sen. Estrada asked for a judgment declaring that (a) he has been
denied due process of law, and as a consequence thereof, (b) the Order dated 27 March 2014, as well as
the proceedings in OMB-C-C-13-0313 and OMB-C-C-13-0397 subsequent to and affected bythe issuance
of the 27 March 2014 Order, are void.12

On the same date, 7 May 2014, the Ombudsman issued in OMBC-C-13-0313 and OMB-C-C-13-0397 a
Joint Order furnishing Sen. Estrada with the counter-affidavits of Tuason, Cunanan, Amata, Relampagos,
Francisco Figura, Gregoria Buenaventura, and Alexis Sevidal, and directing him to comment thereon
within a non-extendible period of five days fromreceipt of the order.

On 12 May 2014, Sen. Estrada filed before the Ombudsman a motion to suspend proceedings in OMB-C-
C-13-0313 and OMB-C-C-13-0397 because the denial of his Request to be furnished copies of counter-
affidavits of his co-respondents deprived him of his right to procedural due process, and he has filed the
present Petition before thisCourt. The Ombudsman denied Sen. Estrada’s motion to suspend in an Order
dated 15 May 2014. Sen. Estrada filed a motion for reconsideration of the Order dated 15 May 2014 but
his motion was denied in an Order dated 3 June 2014.

As of 2 June 2014,the date of filing of the Ombudsman’s Comment to the present Petition, Sen. Estrada
had not filed a comment on the counter-affidavits furnished to him. On 4 June 2014, the Ombudsman
issued a Joint Order in OMB-C-C-13-0313 and OMB-C-C-13-0397 denying, among other motions filed by
the other respondents, Sen. Estrada’s motion for reconsideration dated 7 April 2014. The pertinent
portion of the 4 June 2014 Joint Order stated:

While it is true that Senator Estrada’s request for copies of Tuason, Cunanan, Amata, Relampagos,
Figura, Buenaventura and Sevidal’s affidavits was denied by Order dated 27 March 2014 and before the
promulgation of the assailed Joint Resolution, this Office thereafter reevaluated the request and granted
it byOrder dated 7 May 2014 granting his request. Copies of the requested counter-affidavits were
appended to the copy of the Order dated 7 May 2014 transmitted to Senator Estrada through counsel.

This Office, in fact, held in abeyance the disposition of the motions for reconsideration in this proceeding
in light of its grant to Senator Estrada a period of five days from receipt of the 7 May 2014 Order to
formally respond to the above-named co-respondents’ claims.

In view of the foregoing, this Office fails to see how Senator Estrada was deprived of his right to
procedural due process.13 (Emphasis supplied)

On 2 June 2014, the Ombudsman, the FIO, and the NBI (collectively, public respondents), through the
Officeof the Solicitor General, filed their Comment to the present Petition. The public respondents
argued that:

I. PETITIONER [SEN. ESTRADA] WAS NOTDENIED DUE PROCESS OF LAW.

II. THE PETITION FOR CERTIORARI IS PROCEDURALLY INFIRM.

A. LITIS PENDENTIA EXISTS IN THIS CASE.

B. PETITIONER HAS A PLAIN, SPEEDY AND ADEQUATE REMEDY IN THE ORDINARY COURSE OF LAW.

III. PETITIONER IS NOTENTITLED TO A WRIT OF PRELIMINARY INJUNCTION AND/OR TEMPORARY

RESTRAINING ORDER.14

On 6 June 2014, Atty. Baligod filed his Comment to the present Petition. Atty. Baligod stated that Sen.
Estrada’s resort to a Petition for Certiorari under Rule 65 is improper. Sen. Estrada should have either
filed a motion for reconsideration of the 27 March 2014 Order or incorporated the alleged irregularity in
his motion for reconsideration of the 28 March 2014 Joint Resolution. There was also no violation of
Sen. Estrada’s right to due process because there is no rule which mandates that a respondent such as
Sen. Estrada be furnished with copies of the submissions of his corespondents.
On 16 June 2014, Sen. Estrada filed his Reply to the public respondents’ Comment. Sen. Estrada insisted
that he was denied due process. Although Sen. Estrada received copies of the counter-affidavits of
Cunanan, Amata, Relampagos, Buenaventura, Figura, Sevidal, as well as one of Tuason’s counter-
affidavits, heclaimed that he was not given the following documents:

a) One other Counter-Affidavit of Ruby Tuason dated 21 February 2014;

b) Counter-Affidavit of Sofia D. Cruz dated 31 January 2014;

c) Counter-Affidavit of Evelyn Sugcang dated 11 February 2014;

d) Two (2) Counter-Affidavits of Alan A. Javellana dated 06 February 2014;

e) Counter-Affidavit of VictorRoman Cojamco Cacal dated 11 December 2013 (to the FIO Complaint);

f) Counter-Affidavit of VictorRoman Cojamco Cacal dated 22 January 2014 (to the NBI Complaint);

g) Two (2) counter-affidavits of Ma. Julie A. VillaralvoJohnson both dated 14 March 2014;

h) Counter-affidavit of Rhodora Bulatad Mendoza dated 06 March 2014;

i) Counter-affidavit of Maria Ninez P. Guañizo dated 28 January 2014;

j) Two (2) counter-affidavits of Marivic V. Jover both dated 09 December 2013; and

k) Counter-affidavit of Francisco B. Figura dated 08 January 2014. Sen. Estrada argues that the Petition
isnot rendered moot by the subsequent issuance of the 7 May 2014 Joint Order because there is a
recurring violation of his right to due process. Sen. Estrada also insists that there is no forum shopping as
the present Petition arose from an incident in the main proceeding, and that he has no other plain,
speedy, and adequate remedy in the ordinary course of law. Finally, Sen. Estrada reiterates his
application for the issuance of a temporary restraining order and/or writ of preliminary injunction to
restrain public respondents from conducting further proceedings in OMB-C-C-13-0313 and OMB-C-C-13-
0397.

This Court’s Ruling

Considering the facts narrated above, the Ombudsman’s denial in its 27 March 2014 Order of Sen.
Estrada’s Request did not constitute grave abuse of discretion. Indeed, the denial did not violate Sen.
Estrada’s constitutional right to due process.

First. There is no law or rule which requires the Ombudsman to furnish a respondent with copies of the
counter-affidavits of his co-respondents.

We reproduce below Sections 3 and 4, Rule 112 of the Revised Rules of Criminal Procedure, as well as
Rule II of Administrative Order No. 7, Rules of Procedure of the Office of the Ombudsman, for ready
reference.

From the Revised Rules of Criminal Procedure, Rule 112: Preliminary Investigation

Section 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 who must
certify thathe 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 ora
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. 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 orhis 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 any other 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. From the Rules of Procedure
of the Office of the Ombudsman, Administrative Order No. 7, Rule II: Procedure in Criminal Cases

Section 1. Grounds. — A criminal complaint may be brought for an offense in violation of R.A. 3019,as
amended, R.A. 1379, as amended, R.A. 6713, Title VII, Chapter II, Section 2 of the Revised Penal Code,
and for such other offenses committed by public officers and employees in relation to office.

Sec. 2. Evaluation. — Upon evaluating the complaint, the investigating officer shall recommend whether
it may be:

a) dismissed outright for want of palpable merit;

b) referred to respondent for comment;

c) indorsed to the proper government office or agency which has jurisdiction over the case;
d) forwarded to the appropriate office or official for fact-finding investigation;

e) referred for administrative adjudication; or

f) subjected to a preliminary investigation.

Sec. 3. Preliminary investigation; who may conduct.— Preliminary investigation may be conducted by
any of the following:

1) Ombudsman Investigators;

2) Special Prosecuting Officers;

3) Deputized Prosecutors;

4) Investigating Officials authorized by law to conduct preliminary investigations; or

5) Lawyers in the government service, so designated by the Ombudsman.

Sec. 4. Procedure. — The preliminary investigation of cases falling under the jurisdiction of the
Sandiganbayan and Regional Trial Courts shall be conducted in the manner prescribed in Section 3, Rule
112 of the Rules of Court, subject to the following provisions:

a) If the complaint is not under oath or is based only on official reports, the investigating officer shall
require the complainant or supporting witnesses to execute affidavits to substantiate the complaints.

b) After such affidavits have been secured, the investigating officer shall issue an order, attaching
thereto a copy of the affidavits and other supporting documents, directing the respondent to submit,
within ten (10) days from receipt thereof, his counter-affidavits and controverting evidence with proof
of service thereof on thecomplainant. The complainant may file reply affidavits within ten (10) days after
service of the counter-affidavits.
c) If the respondent does not file a counter-affidavit, the investigating officer may consider the comment
filed by him, if any, as his answer to the complaint. In any event, the respondent shall have access to the
evidence on record.

d) No motion to dismiss shall be allowed except for lack of jurisdiction. Neither may a motion for a bill of
particulars be entertained. If respondent desires any matter in the complainant’s affidavit to be clarified,
the particularization thereof may be done at the time of clarificatory questioning in the manner
provided in paragraph (f) of this section.

e) If the respondent cannot be served with the order mentioned in paragraph 6 hereof, or having been
served, does not comply therewith, the complaint shall be deemed submitted for resolution on the basis
of the evidence on record.

f) If, after the filing of the requisite affidavits and their supporting evidences, there are facts material to
the case which the investigating officer may need to be clarified on, he may conduct a clarificatory
hearing during which the parties shall be afforded the opportunity to be present but without the right to
examine or cross-examine the witness being questioned. Where the appearance of the parties or
witnesses is impracticable, the clarificatory questioning may be conducted in writing, whereby the
questions desired to be asked by the investigating officer or a party shall be reduced into writing and
served on the witness concerned who shall be required to answer the same in writing and under oath.

g) Upon the termination of the preliminary investigation, the investigating officer shall forward the
records of the case together with his resolution to the designated authorities for their appropriate
action thereon.

No information may be filed and no complaint may be dismissed without the written authority or
approval of the Ombudsman in cases falling within the jurisdiction of the Sandiganbayan, or of the
proper Deputy Ombudsman in all other cases.

xxxx

Sec. 6. Notice to parties.— The parties shall be served with a copy of the resolution as finally approved
by the Ombudsman or by the proper Deputy Ombudsman.
Sec. 7. Motion for reconsideration.— a) Only one (1) motion for reconsideration or reinvestigation of
anapproved order or resolution shall be allowed, the same to be filed within fifteen (15) days from
notice thereof with the Office of the Ombudsman, or the proper deputy ombudsman as the case may
be.

xxxx

b) The filing of a motion for reconsideration/reinvestigation shall not bar the filing of the corresponding
Information in court on the basis of the finding of probable cause in the resolution subject of the
motion. (Emphasis supplied)

Sen. Estrada claims that the denial of his Request for the counter affidavits of his co-respondents
violates his constitutional right to due process. Sen. Estrada, however, fails to specify a law or rule which
states that it is a compulsory requirement of due process in a preliminary investigation that the
Ombudsman furnish a respondent with the counter-affidavits of his co-respondents. Neither Section
3(b), Rule 112 of the Revised Rules of Criminal Procedure nor Section 4(c), Rule II of the Rules of
Procedure of the Office of the Ombudsman supports Sen. Estrada’s claim. What the Rules of Procedure
of the Office of the Ombudsman require is for the Ombudsman to furnish the respondent with a copy of
the complaint and the supporting affidavits and documents at the time the order to submit the counter-
affidavit is issued to the respondent. This is clear from Section 4(b), Rule II of the Rules of Procedure of
the Office of the Ombudsman when it states, "[a]fter such affidavits [of the complainant and his
witnesses] have been secured, the investigating officer shall issue an order, attaching thereto a copy of
the affidavits and other supporting documents, directing the respondent to submit, within ten (10) days
from receipt thereof, his counter-affidavits x x x." At this point, there is still no counter-affidavit
submitted by any respondent. Clearly, what Section 4(b) refers to are affidavits of the complainant and
his witnesses, not the affidavits of the co-respondents. Obviously, the counter-affidavits of the co-
respondents are not part of the supporting affidavits of the complainant. No grave abuse of discretion
can thus be attributed to the Ombudsman for the issuance of the 27 March 2014 Order which denied
Sen. Estrada’s Request.

Although Section 4(c), Rule II of the Rules of Procedure of the Office of the Ombudsman provides that a
respondent "shall have access to the evidence on record," this provision should be construed in relation
to Section 4(a) and (b) of the same Rule, as well as to the Rules of Criminal Procedure. First, Section 4(a)
states that "theinvestigating officer shall require the complainant or supporting witnesses to execute
affidavits to substantiate the complaint." The "supporting witnesses" are the witnesses of the
complainant, and do not refer to the co-respondents.
Second, Section 4(b) states that "the investigating officer shall issue an order attaching thereto a copy of
the affidavits and all other supporting documents, directing the respondent" tosubmit his counter-
affidavit. The affidavits referred to in Section 4(b) are the affidavits mentioned in Section

4(a). Clearly, the affidavits to be furnished to the respondent are the affidavits of the complainant and
his supporting witnesses. The provision in the immediately succeeding Section 4(c) of the same Rule II
that a respondent shall have "access to the evidence on record" does not stand alone, but should be
read in relation to the provisions of Section 4(a and b) of the same Rule II requiring the investigating
officer to furnish the respondent with the "affidavits and other supporting documents" submitted by
"the complainant or supporting witnesses." Thus, a respondent’s "access to evidence on record" in
Section 4(c), Rule II of the Ombudsman’s Rules of Procedure refers to the affidavits and supporting
documents of "the complainant or supporting witnesses" in Section 4(a) of the same Rule II.

Third, Section 3(b), Rule 112 of the Revised Rules of Criminal Procedure provides that "[t]he 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." A respondent’s right to examine refers only to "the
evidence submitted by the complainant."

Thus, whether under Rule 112 of the Revised Rules of Criminal Procedure or under Rule II of the
Ombudsman’s Rules of Procedure, there is no requirement whatsoever that the affidavits executed by
the corespondents should be furnished to a respondent. Justice Velasco’s dissent relies on the ruling in
Office of the Ombudsman v. Reyes (Reyes case),15 an administrative case, in which a different set of
rules of procedure and standards apply. Sen. Estrada’s Petition, in contrast, involves the preliminary
investigation stage in a criminal case. Rule III on the Procedure in Administrative Cases of the Rules of
Procedure of the Office of the Ombudsman applies in the Reyes case, while Rule II on the Procedure in
Criminal Cases of the Rules of Procedure of the Office of the Ombudsman applies in Sen. Estrada’s
Petition. In both cases, the Rules of Court apply in a suppletory character or by analogy.16

In the Reyescase, the complainant Acero executed an affidavit against Reyes and Peñaloza, who were
both employees of the Land Transportation Office. Peñaloza submitted his counter-affidavit, as well as
those of his two witnesses. Reyes adopted his counter-affidavit in another case before the Ombudsman
as it involved the same parties and the same incident. None of the parties appeared during the
preliminary conference. Peñaloza waived his right to a formal investigation and was willing to submit the
case for resolution based on the evidence on record. Peñaloza also submitted a counter-affidavit of his
third witness. The Ombudsman found Reyes guilty of grave misconduct and dismissed him from the
service. On the other hand, Peñaloza was found guilty of simple misconduct and penalized with
suspension from office without pay for six months. This Court agreed with the Court of Appeals’ finding
that Reyes’ right to due process was indeed violated. This Court remanded the records of the case to the
Ombudsman, for two reasons: (1) Reyes should not have been meted the penalty of dismissal from the
service when the evidence was not substantial, and (2) there was disregard of Reyes’ right to due
process because he was not furnished a copy of the counter-affidavits of Peñaloza and of Peñaloza’s
three witnesses. In the Reyes case, failure to furnish a copy of the counter-affidavits happened in the
administrative proceedings on the merits, which resulted in Reyes’ dismissal from the service. In Sen.
Estrada’s Petition, the denial of his Request happened during the preliminary investigation where the
only issue is the existence of probable cause for the purpose of determining whether an information
should be filed, and does not prevent Sen. Estrada from requesting a copy of the counter-affidavits of his
co-respondents during the pre-trial or even during the trial.

We should remember to consider the differences in adjudicating cases, particularly an administrative

case and a criminal case:

Any lawyer worth his salt knows that quanta of proof and adjective rules vary depending on whether the
cases to which they are meant to apply are criminal, civil or administrative in character. In criminal
actions, proof beyond reasonable doubt is required for conviction;in civil actions and proceedings,
preponderance of evidence, as support for a judgment; and in administrative cases, substantial
evidence, as basis for adjudication. In criminal and civil actions, application of the Rules of Court is called
for, with more or less strictness. In administrative proceedings, however, the technical rules of
pleadingand procedure, and of evidence, are not strictly adhered to; they generally apply only
suppletorily; indeed, in agrarian disputes application of the Rules of Court is actually prohibited.17

It should be underscored that the conduct of a preliminary investigation is only for the determination of
probable cause, and "probable cause merely implies probability of guilt and should be determined in a
summary manner. A preliminary investigation is not a part of the 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."18 Thus, the rights of a respondent in a preliminary investigation
are limited to those granted by procedural law.

A preliminary investigation is defined as 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. The quantum of evidence now required in preliminary investigation is such evidence
sufficient to "engender a well founded belief" as tothe fact of the commission of a crime and the
respondent's probable guilt thereof. A preliminary investigation is not the occasion for the full and
exhaustive display of the parties’ evidence; it is for the presentation of such evidence only as may
engender a well-grounded belief that an offense has been committed and that the accused is probably
guilty thereof. We are in accord with the state prosecutor’s findings in the case at bar that there exists
prima facie evidence of petitioner’s involvement in the commission of the crime, it being sufficiently
supported by the evidence presented and the facts obtaining therein.
Likewise devoid of cogency is petitioner’s argument that the testimonies of Galarion and Hanopol are
inadmissible as to him since he was not granted the opportunity of cross-examination.

It is a fundamental principle that the accused in a preliminary investigation has no right to cross-examine
the witnesses which the complainant may present. Section 3, Rule 112 of the Rules of Court expressly
provides that the respondent shall only have the right to submit a counter-affidavit, to examine all other
evidence submitted by the complainant and, where the fiscal sets a hearing to propound clarificatory
questions to the parties or their witnesses, to be afforded an opportunity to be present but without the
right to examine or cross-examine. Thus, even if petitioner was not given the opportunity to cross-
examine Galarion and Hanopol atthe time they were presented to testify during the separate trial of the
case against Galarion and Roxas, he cannot assert any legal right to cross-examine them at the
preliminary investigation precisely because such right was never available to him. The admissibility or
inadmissibility of said testimonies should be ventilated before the trial court during the trial proper and
not in the preliminary investigation.

Furthermore, the technical rules on evidence are not binding on the fiscal who has jurisdiction and
control over the conduct of a preliminary investigation. If by its very nature a preliminary investigation
could be waived by the accused, we find no compelling justification for a strict application of the
evidentiary rules. In addition, considering that under Section 8, Rule 112 of the Rules of Court, the
record of the preliminary investigation does not form part of the record of the case in the Regional Trial
Court, then the testimonies of Galarion and Hanopol may not be admitted by the trial court if not
presented in evidence by the prosecuting fiscal. And, even if the prosecution does present such
testimonies, petitioner can always object thereto and the trial court can rule on the admissibility
thereof; or the petitioner can, during the trial, petition said court to compel the presentation of Galarion
and Hanopol for purposes of cross-examination.19 (Emphasis supplied)

Furthermore, in citing the Reyes case, Justice Velasco’s dissent overlooked a vital portion of the Court of
Appeals’ reasoning. This Court quoted from the Court of Appeals’ decision: "x x x [A]dmissions made by
Peñaloza in his sworn statement are binding only on him. Res inter alios act a alteri nocere non debet.
The rights of a party cannot be prejudiced by an act, declaration or omission of another." In OMB-C-C-
13-0313 and OMB-C-C-13-0397, the admissions of Sen. Estrada’s co-respondents can in no way
prejudice Sen. Estrada. Even granting Justice Velasco’s argument that the 28 March 2014 Joint
Resolution in OMB-C-C-13-0313 and OMB-C-C-13-039720 mentioned the testimonies of Sen. Estrada’s
corespondents like Tuason and Cunanan, their testimonies were merely corroborative of the testimonies
of complainants’ witnesses Benhur Luy, Marina Sula, and Merlina Suñas and were not mentioned in
isolation from the testimonies of complainants’ witnesses.

Moreover, the sufficiency of the evidence put forward by the Ombudsman against Sen. Estrada to
establish its finding of probable cause in the 28 March 2014 Joint Resolution in OMB-C-C-13-0313 and
OMB-CC-13-0397 was judicially confirmed by the Sandiganbayan, when it examined the evidence, found
probable cause, and issued a warrant of arrest against Sen. Estrada on 23 June 2014.

We likewise take exception to Justice Brion’s assertion that "the due process standards that at the very
least should be considered in the conduct of a preliminary investigation are those that this Court first
articulated in Ang Tibay v. Court of Industrial Relations [Ang Tibay]."21 Simply put, the Ang Tibay
guidelines for administrative cases do not apply to preliminary investigations in criminal cases. An
application of the Ang Tibay guidelines to preliminary investigations will have absurd and disastrous
consequences.

Ang Tibay enumerated the constitutional requirements of due process, which Ang Tibay described as the
"fundamental and essential requirements of due process in trials and investigations of an administrative
character."22 These requirements are "fundamental and essential" because without these, there isno
due process as mandated by the Constitution. These "fundamental and essential requirements" cannot
be taken away by legislation because theyare part of constitutional due process. These "fundamental
and essential requirements" are:

(1) The first of these rights is the right to a hearing, which includes the right of the party interested or
affected to present his own case and submit evidence in support thereof. x x x.

(2) Not only must the party be given an opportunity to present his case and adduce evidence tending to
establish the rights which he asserts but the tribunal must consider the evidence presented. x x x.

(3) "While the duty to deliberatedoes not impose the obligation to decide right, it does imply a necessity
which cannot be disregarded, namely, that of having something to support its decision. A decision with
absolutely nothing to support it is a nullity, x x x."

(4) Not only must there be some evidence to support a finding or conclusion, but the evidence must be
"substantial." "Substantial evidence is more than a mere scintilla. It means such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion." x x x.

(5) The decision must be rendered on the evidence presented at the hearing, or at least contained in the
record and disclosed to the parties affected. x x x.
(6) The Court of Industrial Relations or any of its judges, therefore, must act on its or his own
independent consideration of the law and facts of the controversy, and not simply accept the views of a
subordinate in arriving at a decision. x x x.

(7) The Court of Industrial Relations should, in all controversial questions, render its decision in sucha
manner that the parties to the proceeding can know the various issues involved, and the reasons for the
decisions rendered. The performance of this duty is inseparable from the authority conferred upon it.23

The guidelines set forth in Ang Tibay are further clarified in GSIS v. CA24 (GSIS): "what Ang Tibay failed
to explicitly state was, prescinding from the general principles governing due process, the requirement
of an impartial tribunalwhich, needless to say, dictates that one called upon to resolve a dispute may not
sit as judge and jury simultaneously, neither may he review his decision on appeal."25 The GSIS
clarification affirms the non applicability of the Ang Tibay guidelines to preliminary investigations in
criminal cases: The investigating officer, which is the role that the Office of the Ombudsman plays in the
investigation and prosecution of government personnel, will never be the impartial tribunal required in
Ang Tibay, as amplified in GSIS. The purpose of the Office of the Ombudsman in conducting a
preliminary investigation, after conducting its own factfinding investigation, is to determine probable
cause for filing an information, and not to make a final adjudication of the rights and obligations of the
parties under the law, which is the purpose of the guidelines in Ang Tibay. The investigating officer
investigates, determines probable cause, and prosecutes the criminal case after filing the corresponding
information.

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.26 The Ombudsman and the prosecution service under the control and supervision of the
Secretary of the Department of Justice are inherently the fact-finder, investigator, hearing officer, judge
and jury of the respondent in preliminary investigations. Obviously, this procedure cannot comply with
Ang Tibay, as amplified in GSIS. However, there is nothing unconstitutional with this procedure because
this is merely an Executive function, a part of the law enforcement process leading to trial in court
where the requirements mandated in Ang Tibay, as amplified in GSIS, will apply. This has been the
procedure under the 1935, 1973 and 1987 Constitutions. To now rule that Ang Tibay, as amplified in
GSIS, should apply to preliminary investigations will mean that all past and present preliminary
investigations are in gross violation of constitutional due process.

Moreover, a person under preliminary investigation, as Sen. Estrada is in the present case when he filed
his Request, is not yet an accused person, and hence cannot demand the full exercise of the rights of an
accused person:
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, 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,
wealso 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.27

Justice J.B.L. Reyes, writing for the Court, emphatically declared in Lozada v. Hernandez,28 that the
"rights conferred upon accused persons to participate in preliminary investigations concerning
themselves depend upon the provisions of law by which such rights are specifically secured, rather than
upon the phrase ‘due process of law’." This reiterates Justice Jose P. Laurel’s oft-quoted pronouncement
in Hashim v. Boncan29 that "the right to a preliminary investigation is statutory, not constitutional." In
short, the rights of a respondent ina preliminary investigation are merely statutory rights, not
constitutional due process rights. An investigation to determine probable cause for the filing of an
information does not initiate a criminal action so as to trigger into operation Section 14(2), Article III of
the Constitution.30 It is the filing of a complaint or information in court that initiates a criminal action.31

The rights to due process in administrative cases as prescribed in Ang Tibay,as amplified in GSIS, are
granted by the Constitution; hence, these rights cannot be taken away by merelegislation. On the other
hand, as repeatedly reiterated by this Court, the right to a preliminary investigation is merely a statutory
right,32 not part of the "fundamental and essential requirements" of due process as prescribed in Ang
Tibay and amplified in GSIS. Thus, a preliminary investigation can be taken away by legislation. The
constitutional right of an accused to confront the witnesses against him does not apply in preliminary
investigations; nor will the absence of a preliminary investigation be an infringement of his right to
confront the witnesses against him.33 A preliminary investigation may be done away with entirely
without infringing the constitutional right of an accused under the due process clause to a fair trial.34
The quantum of evidence needed in Ang Tibay, as amplified in GSIS, is greater than the evidenceneeded
in a preliminary investigation to establish probable cause, or to establish the existence of a prima facie
case that would warrant the prosecution of a case. Ang Tibay refers to "substantial evidence," while the
establishment of probable cause needs "only more than ‘bare suspicion,’ or ‘less than evidence which
would justify . . . conviction’." In the United States, from where we borrowed the concept of probable
cause,35 the prevailing definition of probable cause is this:

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, non technical 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.36

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. Justice Brion, in the recent case of Unilever Philippines, Inc. v. Tan37 (Unilever),
stated:

The determination of probable cause needs only to rest on evidence showing that more likely than not,
a crime has been committed and there is enough reason to believe that it was committed by the
accused. It need not be based on clear and convincing evidence of guilt, neither on evidence establishing
absolute certainty of guilt. What is merely required is "probability of guilt." Its determination, too, does
not call for the application of rules or standards of proof that a judgment of conviction requires after
trial on the merits. Thus, in concluding that there is probable cause, it suffices that it is believed that the
act or omission complained of constitutes the very offense charged.

It is also important to stress that the determination of probable cause does not depend on the validity
or merits of a party’s accusation or defense or on the admissibility or veracity of testimonies presented.
As previously discussed, these matters are better ventilated during the trial proper of the case. As held
in Metropolitan Bank & Trust Company v. Gonzales:

Probable cause has been defined as the existence of such facts and circumstances as would excite the
belief in a reasonable mind, acting on the facts within the knowledge of the prosecutor, that the person
charged was guilty of the crime for which he was prosecuted. x x x. The term does not mean "actual or
positive cause" nor does it import absolute certainty. It is merely based on opinion and reasonable
belief. Thus, a finding of probable cause does not require an inquiry into whether there is sufficient
evidence to procure a conviction. It is enough that it is believed that the act or omission complained of
constitutes the offense charged. Precisely, there is a trial for the reception of evidence of the
prosecution in support of the charge. (Bold facing and italicization supplied)

Justice Brion’s pronouncement in Unilever that "the determination of probable cause does not depend
on the validity or merits of a party’s accusation or defense or on the admissibility or veracity of
testimonies presented" correctly recognizes the doctrine in the United States that the determination of
probable cause can rest partially, or even entirely, on hearsay evidence, as long as the person making
the hearsay statement is credible. In United States v. Ventresca,38 the United States Supreme Court
held:

While a warrant may issue only upon a finding of "probable cause," this Court has long held that "the
term ‘probable cause’ . . . means less than evidence which would justify condemnation," Locke v. United
States, 7 Cranch 339, 11 U.S. 348, and that a finding of "probable cause" may rest upon evidence which
is not legally competent in a criminal trial. Draper v. United States, 358 U.S. 307, 358 U.S. 311. As the
Court stated in Brinegar v. United States, 338 U.S. 160, 173, "There is a large difference between the two
things tobe proved (guilt and probable cause), as well as between the tribunals which determine them,
and therefore a like difference in the quanta and modes of proof required to establish them." Thus,
hearsay may be the basis for issuance of the warrant "so long as there . . . [is] a substantial basis for
crediting the hearsay." Jones v. United States, supra, at 362 U.S. 272. And, in Aguilar, we recognized that
"an affidavit may be based on hearsay information and need not reflect the direct personal observations
of the affiant," so long as the magistrate is "informed of some of the underlying circumstances"
supporting the affiant’s conclusions and his belief that any informant involved "whose identity need not
be disclosed . . ." was "credible" or his information "reliable." Aguilar v. Texas, supra, at 378 U.S. 114.
(Emphasis supplied)

Thus, probable cause can be established with hearsay evidence, as long as there is substantial basis for
crediting the hearsay. Hearsay evidence is admissible in determining probable cause in a preliminary
investigation because such investigation is merely preliminary, and does not finally adjudicate rights and
obligations of parties. However, in administrative cases, where rights and obligations are finally
adjudicated, what is required is "substantial evidence" which cannot rest entirely or even partially on
hearsay evidence. Substantial basis is not the same as substantial evidence because substantial evidence
excludes hearsay evidence while substantial basis can include hearsay evidence. To require the
application of Ang Tibay, as amplified in GSIS, in preliminary investigations will change the quantum of
evidence required in determining probable cause from evidence of likelihood or probability of guilt to
substantial evidence of guilt.
It is, moreover, necessary to distinguish between the constitutionally guaranteed rights of an accused
and the right to a preliminary investigation. To treat them the same will lead toabsurd and disastrous
consequences.

All pending criminal cases in all courts throughout the country will have to be remanded to the
preliminary investigation level because none of these will satisfy Ang Tibay, as amplified in GSIS.
Preliminary investigations are conducted by prosecutors, who are the same officials who will determine
probable cause and prosecute the cases in court. The prosecutor is hardly the impartial tribunal
contemplated in Ang Tibay, as amplified in GSIS. A reinvestigation by an investigating officer outside of
the prosecution service will be necessary if Ang Tibay, as amplified in GSIS, were to be applied. This will
require a new legislation. In the meantime, all pending criminal cases in all courts will have to be
remanded for reinvestigation, to proceed only when a new law is in place. To require Ang Tibay, as
amplified in GSIS, to apply to preliminary investigation will necessarily change the concept of preliminary
investigation as we know it now. Applying the constitutional due process in Ang Tibay, as amplified in
GSIS, to preliminary investigation will necessarily require the application of the rights of an accused in
Section 14(2), Article III of the 1987 Constitution. This means that the respondent can demand an actual
hearing and the right to cross-examine the witnesses against him, rights which are not afforded at
present toa respondent in a preliminary investigation.

The application of Ang Tibay, as amplified in GSIS, is not limited to those with pending preliminary
investigations but even to those convicted by final judgment and already serving their sentences. The
rule is well-settled that a judicial decision applies retroactively if it has a beneficial effect on a person
convicted by final judgment even if he is already serving his sentence, provided that he is not a habitual
criminal.39 This Court retains its control over a case "until the full satisfaction of the final judgment
conformably with established legal processes."40 Applying Ang Tibay, as amplified in GSIS, to
preliminary investigations will result in thousands of prisoners, convicted by final judgment, being set
free from prison.

Second. Sen. Estrada’s present Petition for Certiorari is premature.

Justice Velasco’s dissent prefers thatSen. Estrada not "be subjected to the rigors of a criminal
prosecution incourt" because there is "a pending question regarding the Ombudsman’s grave abuse of
its discretion preceding the finding of a probable cause to indict him." Restated bluntly, Justice Velasco’s
dissent would like this Court to conclude that the mere filing of the present Petition for Certiorari
questioning the Ombudsman’s denial of Sen. Estrada’s Request should have, by itself, voided all
proceedings related to the present case.

Although it is true that, in its 27 March 2014 Order, the Ombudsman denied Sen. Estrada’s Request, the
Ombudsman subsequently reconsidered its Order. On 7 May 2014, the same date that Sen. Estrada filed
the present Petition, the Ombudsman issued a Joint Order in OMB-C-C-13-0313 and OMB-C-C-13-0397
that furnishedSen. Estrada with the counter-affidavits of Ruby Tuason, Dennis Cunanan, Gondelina
Amata, Mario Relampagos, Francisco Figura, Gregoria Buenaventura, and AlexisSevidal, and directed
him to comment within a non-extendible period of five days from receipt of said Order. Sen. Estrada did
not file any comment, as noted in the 4 June 2014 Joint Order of the Ombudsman.

On 4 June 2014, the Ombudsman issued another Joint Order and denied Sen. Estrada’s Motion for
Reconsideration ofits 28 March 2014 Joint Resolution which found probable cause toindict Sen. Estrada
and his corespondents with one count of plunder and 11 counts of violation of Section 3(e), Republic Act
No. 3019. In this 4 June 2014 Joint Order, the Ombudsman stated that "[t]his Office, in fact, held in
abeyance the disposition of motions for reconsideration in this proceeding in light of its grant to Senator
Estrada a period of five days from receipt of the 7 May 2014 Order to formally respond to the above-
named respondents’ claims."

We underscore Sen. Estrada’s procedural omission. Sen. Estrada did not file any pleading, much less a
motion for reconsideration, to the 27 March 2014 Order inOMB-C-C-13-0313. Sen. Estrada immediately
proceeded to file this Petition for Certiorari before this Court. Sen. Estrada’s resort to a petitionfor
certiorari before this Court stands in stark contrast to his filing of his 7 April 2014 Motion for
Reconsideration of the 28 March 2014 Joint Resolution finding probable cause. The present Petition for
Certiorari is premature.

A motion for reconsideration allows the public respondent an opportunity to correct its factual and legal
errors. Sen. Estrada, however, failed to present a compelling reason that the present Petition falls under
the exceptions41 to the general rule that the filing of a motion for reconsideration is required prior to
the filing of a petition for certiorari. This Court has reiterated in numerous decisions that a motion for
reconsideration is mandatory before the filing of a petition for certiorari.42

Justice Velasco’s dissent faults the majority for their refusal to apply the Reyes case to the present
Petition. Justice Velasco’s dissent insists that "this Court cannot neglect to emphasize that, despite the
variance in the quanta of evidence required, a uniform observance of the singular concept of due
process is indispensable in all proceedings."

As we try to follow Justice Velasco’s insistence, we direct Justice Velasco and those who join him in his
dissent to this Court’s ruling in Ruivivar v. Office of the Ombudsman (Ruivivar),43 wherein we stated that
"[t]he law can no longer help one who had been given ample opportunity to be heard but who did not
take full advantage of the proffered chance."
The Ruivivar case, like the Reyes44 case, was also an administrative case before the Ombudsman. The
Ombudsman found petitioner Rachel Beatriz Ruivivar administratively liable for discourtesy in the course
of her official functions and imposed on her the penalty of reprimand. Petitioner filed a motion for
reconsideration of the decision on the ground that she was not furnished copies of the affidavits of the
private respondent’s witnesses. The Ombudsman subsequently ordered that petitioner be furnished
with copies of the counter-affidavits of private respondent’s witnesses, and that petitioner should "file,
within ten (10) days from receipt of this Order, such pleading which she may deem fit under the
circumstances." Petitioner received copies of the affidavits, and simply filed a manifestation where she
maintained that her receipt of the affidavits did not alter the deprivation of her right to due process or
cure the irregularity in the Ombudsman’s decision to penalize her.

In Ruivivar, petitioner received the affidavits of the private respondent’s witnesses afterthe Ombudsman
rendered a decision against her. We disposed of petitioner’s deprivation of due process claim in this
manner:

The CA Decision dismissed the petition for certiorari on the ground that the petitioner failed to exhaust
all the administrative remedies available to her before the Ombudsman. This ruling is legallycorrect as
exhaustion of administrative remedies is a requisite for the filing of a petition for certiorari. Other than
this legal significance, however, the ruling necessarily carries the direct and immediate implication that
the petitioner has been granted the opportunity to be heard and has refused to avail of this opportunity;
hence, she cannot claim denial of due process. In the words of the CA ruling itself: "Petitioner was given
the opportunity by public respondent to rebut the affidavits submitted by private respondent. . . and
had a speedy and adequate administrative remedy but she failed to avail thereof for reasons only known
to her."

For a fuller appreciation of our above conclusion, we clarify that although they are separate and distinct
concepts, exhaustion of administrative remedies and due process embody linked and related principles.
The "exhaustion" principle applies when the ruling court or tribunal is not given the opportunity tore-
examine its findings and conclusions because of an available opportunity that a party seeking recourse
against the court or the tribunal’s ruling omitted to take. Under the concept of "due process," on the
other hand, a violation occurs when a court or tribunal rules against a party without giving him orher the
opportunity to be heard. Thus, the exhaustion principle is based on the perspective of the ruling court or
tribunal, while due process is considered from the point of view of the litigating party against whom a
ruling was made. The commonality they share is in the same"opportunity" that underlies both. In the
context of the present case, the available opportunity to consider and appreciate the petitioner’s
counter-statement offacts was denied the Ombudsman; hence, the petitioner is barred from seeking
recourse at the CA because the ground she would invoke was not considered at all at the Ombudsman
level. At the same time, the petitioner – who had the same opportunity to rebut the belatedly-furnished
affidavits of the private respondent’s witnesses – was not denied and cannot now claim denial of due
process because she did not take advantage of the opportunity opened to her at the Ombudsman level.
The records show that the petitioner duly filed a motion for reconsideration on due process grounds
(i.e., for the private respondent’s failure to furnish her copies of the affidavits of witnesses) and on
questions relating to the appreciation of the evidence on record. The Ombudsman acted on this motion
by issuing its Order of January 17, 2003 belatedly furnishing her with copies of the private respondent’s
witnesses, together with the "directive to file, within ten (10) days from receipt of this Order, such
pleading which she may deem fit under the circumstances."

Given this opportunity to act on the belatedly-furnished affidavits, the petitioner simply chose to file a
"Manifestation" where she took the position that "The order of the Ombudsman dated 17 January 2003
supplying her with the affidavits of the complainant does not cure the 04 November 2002 order," and on
this basis prayed that the Ombudsman’s decision "be reconsidered and the complaint dismissed for lack
of merit."

For her part, the private respondent filed a Comment/Opposition to Motion for Reconsideration dated
27 January 2003 and prayed for the denial of the petitioner’s motion.

In the February 12, 2003 Order, the Ombudsman denied the petitioner’s motion for reconsideration
after finding no basis to alter or modify its ruling. Significantly, the Ombudsman fully discussed in this
Order the due process significance of the petitioner’s failure to adequately respond to the belatedly-
furnished affidavits. The Ombudsman said:

"Undoubtedly, the respondent herein has been furnished by this Office with copies of the affidavits,
which she claims she has not received. Furthermore, the respondent has been given the opportunity to
present her side relative thereto, however, she chose not to submit countervailing evidence
orargument. The respondent, therefore (sic), cannot claim denial of due process for purposes of
assailing the Decision issued in the present case. On this score, the Supreme Court held in the case of
People v. Acot, 232 SCRA 406, that "a party cannot feign denial of due process where he had the
opportunity to present his side". This becomes all the more important since, as correctly pointed out by
the complainant, the decision issued in the present case is deemed final and unappealable pursuant to
Section 27 of Republic Act 6770, and Section 7, Rule III of Administrative Order No. 07. Despite the clear
provisions of the law and the rules, the respondent herein was given the opportunity not normally
accorded, to present her side, but she opted not to do so which is evidently fatal to her cause."
[emphasis supplied].

Under these circumstances, we cannot help but recognize that the petitioner’s cause is a lost one, not
only for her failure to exhaust her available administrative remedy, but also on due process grounds.
The law can no longer help one who had been given ample opportunity to be heard but who did not
take full advantage of the proffered chance.45

Ruivivar applies with even greater force to the present Petition because here the affidavits of Sen.
Estrada’s co-respondents were furnished to him beforethe Ombudsman rendered her 4 June 2014 Joint
Order. In Ruivivar, the affidavits were furnished after the Ombudsman issued a decision.

Justice Velasco’s dissent cites the cases of Tatad v. Sandiganbayan46 (Tatad) and Duterte v.
Sandiganbayan47 (Duterte) in an attempt to prop up its stand. A careful reading of these cases,
however, would show that they do not stand on all fours with the present case. In Tatad, this Court
ruled that "the inordinate delay in terminating the preliminary investigation and filing the information
[by the Tanodbayan] in the present case is violative of the constitutionally guaranteed right of the
petitioner to due process and to a speedy disposition of the cases against him."48 The Tanod bayan took
almost three years to terminate the preliminary investigation, despite Presidential Decree No. 911’s
prescription of a ten-day period for the prosecutor to resolve a case under preliminary investigation. We
ruled similarly in Duterte, where the petitioners were merely asked to comment and were not asked to
file counter-affidavits as isthe proper procedure in a preliminary investigation. Moreover, in Duterte, the
Ombudsman took four years to terminate its preliminary investigation.

As we follow the reasoning in Justice Velasco’s dissent, it becomes more apparent that Sen. Estrada’s
present Petition for Certiorari is premature for lack of filing of a motion for reconsideration before the
Ombudsman. When the Ombudsman gave Sen. Estrada copies of the counter-affidavits and even waited
for the lapse of the given period for the filing of his comment, Sen. Estrada failed to avail of the
opportunity to be heard due to his own fault. Thus, Sen. Estrada’s failure cannot in any way be
construed as violation of due process by the Ombudsman, much less of grave abuse of discretion. Sen.
Estrada has not filed any comment, and still chooses not to.

Third. Sen. Estrada’s present Petition for Certiorari constitutes forum shopping and should be summarily
dismissed.

In his verification and certification of non-forum shopping in the present petition filed on 7 May 2014,
Sen. Estrada stated:

3.1 I, however, disclose that I have filed a Motion for Reconsideration dated 07 April 2014 in OMB-C-C-
13-0313 and OMB-CC-13-0397, raising as sole issuethe finding of probable cause in the Joint Resolution
dated 28 March 2014.
Such Motion for Reconsideration has yet to be resolved by the Office of the Ombudsman.49 (Emphasis
supplied)

Sen. Estrada’s Motion for Reconsideration of the 28 March 2014 Joint Resolution prayed that the
Ombudsman reconsider and issue a new resolution dismissing the charges against him. However, in this
Motion for Reconsideration, Sen. Estrada assailed the Ombudsman’s 27 March 2014 Joint Order denying
his Request, and that such denial is a violation of his right to due process.

8. It is respectfully submitted that the Ombudsman violated the foregoing rule [Rule 112, Section 4 of
the Rules of Court] and principles. A reading of the Joint Resolution will reveal that various pieces of
evidence which Senator Estrada was not furnished with – hence, depriving him of the opportunity to
controvert the same – were heavily considered by the Ombudsman in finding probable cause to charge
him with Plunder and with violations of Section 3(e) of R.A. No. 3019.

xxxx

11. Notably, under dated 20 March 2014, Senator Estrada filed a "Request to be Furnished with Copies
of Counter-Affidavits of the Other Respondents, Affidavits of New Witnesses and Other Filings,"
pursuant to the right of a respondent "to examine the evidence submitted by the complainant which he
may not have been furnished" (Section 3[b], Rule 112 of the Rules of Court), and to "have access to the
evidence on record" (Section 4[c], Rule II of the Rules of Procedure of the Office of the Ombudsman).

However, notwithstanding the gravity of the offenses leveled against Senator Estrada and the law’s
vigilance in protecting the rights of an accused, the Special Panel of Investigators, in an Order dated 27
March 2014, unceremoniously denied the request on the ground that "there is no provision under this
Office’s Rules of Procedure which entitles respondent to be furnished all the filings by the other parties x
x x x." (Order dated 27 March 2013, p. 3)

As such, Senator Estrada was not properly apprised of the evidence offered against him, which were
eventually made the bases of the Ombudsman’s finding of probable cause.50

The Ombudsman denied Sen. Estrada’s Motion for Reconsideration in its 4 June 2014 Joint Order.
Clearly, Sen. Estrada expressly raised in his Motion for Reconsideration with the Ombudsman the
violation of his right to due process, the same issue he is raising in this petition. In the verification and
certification of non-forum shopping attached to his petition docketed as G.R. Nos. 212761-62 filed on 23
June 2014, Sen. Estrada disclosed the pendency of the present petition, as well as those before the
Sandiganbayan for the determination of the existence of probable cause. In his petition in G.R. Nos.
212761-62, Sen. Estrada again mentioned the Ombudsman’s 27 March 2014 Joint Order denying his
Request.

17. Sen. Estrada was shocked not only at the Office of the Ombudsman’s finding of probable cause,
which he maintains is without legal or factual basis, but also thatsuch finding of probable cause was
premised on evidence not disclosed tohim, including those subject of his Request to be Furnished with
Copiesof Counter-Affidavits of the Other Respondents, Affidavits of New Witnesses and Other Filings
dated 20 March 2014.

In particular, the Office of the Ombudsman used as basis for the Joint Resolution the following
documents –

i. Alexis G. Sevidal’s Counter-Affidavits dated 15 January and 24 February 2014;

ii. Dennis L. Cunanan’s Counter-Affidavits both dated 20 February 2014;

iii. Francisco B. Figura’s Counter-Affidavit dated 08 January 2014;

iv. Ruby Tuason’s Counter-Affidavits both dated 21 February 2014;

v. Gregoria G. Buenaventura’s Counter-Affidavit dated 06 March 2014; and

vi. Philippine Daily Inquirer Online Edition news article entitled "Benhur Luy upstages Napoles in Senate
Hearing" by Norman Bordadora and TJ Borgonio, published on 06 March 2014, none of which were ever
furnished Sen. Estrada prior to the issuance of the challenged Joint Resolution, despite written request.

xxxx

II

THE OFFICE OF THE OMBUDSMAN, IN ISSUING THE CHALLENGED JOINT RESOLUTION DATED 28 MARCH
2014 AND CHALLENGED JOINT ORDER DATED 04 JUNE 2014, NOT ONLY ACTED WITHOUT OR IN EXCESS
OF ITS JURISDICTION OR WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF
JURISDICTION, BUT ALSO VIOLATED SEN. ESTRADA’S CONSTITUTIONAL RIGHT TO DUE PROCESS OF LAW
AND TO EQUAL PROTECTION OF THE LAWS.

xxxx

2.17 x x x x

Notably, in its Joint Order dated 07 May 2014, the Office of the Ombudsman even arbitrarily limited the
filing of Sen. Estrada’s comment to the voluminous documents comprisingthe documents it furnished
Sen. Estrada to a "non-extendible" period offive (5) days, making it virtually impossible for Sen. Estrada
to adequately study the charges leveled against him and intelligently respond to them. The Joint Order
also failed to disclose the existence of other counter-affidavits and failed to furnish Sen. Estrada copies
of such counter-affidavits.51

Sen. Estrada has not been candid with this Court. His claim that the finding of probable cause was the
"sole issue" he raised before the Ombudsman in his Motion for Reconsideration dated 7 April 2014 is
obviously false.

Moreover, even though Sen. Estrada acknowledged his receipt of the Ombudsman’s 4 June 2014 Joint
Order which denied his motion for reconsideration of the 28 March 2014 Joint Resolution, Sen. Estrada
did not mention that the 4 June 2014 Joint Order stated that the Ombudsman "held in abeyance the
disposition of the motions for reconsideration in this proceeding in light of its grant to [Sen. Estrada] a
period of five days from receipt of the 7 May 2014 [Joint] Order to formally respond to the abovenamed
co-respondent’s claims."

Sen. Estrada claims that his rights were violated but he flouts the rules himself.

The rule against forum shopping is not limited tothe fulfillment of the requisites of litis pendentia.52 To
determine whether a party violated the rule against forum shopping, the most important factor to ask is
whether the elements of litis pendentia are present, or whether a final judgment in one case will
amount to res judicatain another.53 Undergirding the principle of litis pendentia is the theory that a
party isnot allowed to vex another more than once regarding the same subject matter and for the same
cause of action. This theory is founded on the public policy that the same matter should not be the
subject of controversy in court more than once in order that possible conflicting judgments may be
avoided, for the sake of the stability in the rights and status of persons.54
x x x [D]espite the fact that what the petitioners filed wasa petition for certiorari, a recourse that – in the
usual course and because of its nature and purpose – is not covered by the rule on forum shopping. The
exception from the forum shopping rule, however, is true only where a petition for certiorari is properly
or regularly invoked in the usual course; the exception does not apply when the relief sought, through a
petition for certiorari, is still pending with or has as yet to be decided by the respondent court, tribunal
or body exercising judicial or quasi-judicial body, e.g., a motion for reconsideration of the order assailed
via a petition for certiorari under Rule 65, as in the present case. This conclusion is supported and
strengthened by Section 1, Rule 65 of the Revised Rules of Court which provides that the availability of a
remedy in the ordinary course of law precludes the filing of a petition for certiorari; under this rule, the
petition’s dismissal is the necessary consequence if recourse to Rule 65 is prematurely taken.

To be sure, the simultaneous remedies the petitioners sought could result in possible conflicting rulings,
or at the very least, to complicated situations, between the RTC and the Court of Appeals. An extreme
possible result is for the appellate court to confirm that the RTC decision is meritorious, yet the RTC may
at the same time reconsider its ruling and recall its order of dismissal. In this eventuality, the result is the
affirmation of the decision that the court a quo has backtracked on. Other permutations depending on
the rulings of the two courts and the timing of these rulings are possible. In every case, our justice
system suffers as this kind of sharp practice opens the system to the possibility of manipulation; to
uncertainties when conflict of rulings arise; and at least to vexation for complications other than conflict
of rulings. Thus, it matters not that ultimately the Court of Appeals may completely agree with the RTC;
what the rule on forum shopping addresses are the possibility and the actuality of its harmful effects on
our judicial system.55

Sen. Estrada resorted to simultaneous remedies by filing this Petition alleging violation of due process by
the Ombudsman even as his Motion for Reconsideration raising the very same issue remained pending
with the Ombudsman. This is plain and simple forum shopping, warranting outright dismissal of this
Petition.

SUMMARY

The Ombudsman, in furnishing Sen. Estrada a copy of the complaint and its supporting affidavits and
documents, fully complied with Sections 3 and 4 of Rule 112 of the Revised Rules of Criminal Procedure,
and Section 4, Rule II of the Rules of Procedure of the Office of the Ombudsman, Administrative Order
No. 7. Both the Revised Rules of Criminal Procedure and the Rules of Procedure of the Office of the
Ombudsman require the investigating officer to furnish the respondent with copies of the affidavits of
the complainant and affidavits of his supporting witnesses. Neither of these Rules require the
investigating officer to furnish the respondent with copies of the affidavits of his co-respondents. The
right of the respondent is only "to examine the evidence submitted by the complainant," as expressly
stated in Section 3(b), Rule 112 of the Revised Rules of Criminal Procedure. This Court has unequivocally
ruled in Paderanga that "Section 3, Rule 112 of the Revised Rules of Criminal Procedure expressly
provides that the respondent shall only have the right to submit a counter-affidavit, to examine all other
evidence submitted by the complainant and, where the fiscal sets a hearing to propound clarificatory
questions to the parties or their witnesses, to be afforded an opportunity to be present but without the
right to examine or cross-examine." Moreover, Section 4 (a, b and c) of Rule II of the Ombudsman’s Rule
of Procedure, read together, only require the investigating officer to furnish the respondent with copies
of the affidavits of the complainant and his supporting witnesses.1âwphi1 There is no law or rule
requiring the investigating officer to furnish the respondent with copies of the affidavits of his co-
respondents.

In the 7 May 2014 Joint Order, the Ombudsman went beyond legal duty and even furnished Sen. Estrada
with copies of the counter-affidavits of his co-respondents whom he specifically named, as well as the
counteraffidavits of some of other co-respondents. In the 4 June 2014 Joint Order, the Ombudsman
even held in abeyancethe disposition of the motions for reconsideration because the Ombudsman
granted Sen. Estrada five days from receipt of the 7 May 2014 Joint Order to formally respond to the
claims made by his co-respondents. The Ombudsman faithfully complied with the existing Rules on
preliminary investigation and even accommodated Sen. Estrada beyond what the Rules required. Thus,
the Ombudsman could not be faulted with grave abuse of discretion. Since this is a Petition for Certiorari
under Rule 65, the Petition fails in the absence of grave abuse of discretion on the part of the
Ombudsman.

The constitutional due process requirements mandated in Ang Tibay, as amplified in GSIS, are not
applicable to preliminary investigations which are creations of statutory law giving rise to mere statutory
rights. A law can abolish preliminary investigations without running afoul with the constitutional
requirements of dueprocess as prescribed in Ang Tibay, as amplified in GSIS. The present procedures for
preliminary investigations do not comply, and were never intended to comply, with Ang Tibay, as
amplified in GSIS. Preliminary investigations do not adjudicate with finality rights and obligations of
parties, while administrative investigations governed by Ang Tibay, as amplified in GSIS, so adjudicate.
Ang Tibay,as amplified in GSIS, requires substantial evidencefor a decision against the respondent in the
administrative case.In preliminary investigations, only likelihood or probability of guiltis required. To
apply Ang Tibay,as amplified in GSIS,to preliminary investigations will change the quantum of evidence
required to establish probable cause. The respondent in an administrative case governed by Ang
Tibay,as amplified in GSIS,has the right to an actual hearing and to cross-examine the witnesses against
him. In preliminary investigations, the respondent has no such rights.

Also, in an administrative case governed by Ang Tibay, as amplified in GSIS, the hearing officer must be
impartial and cannot be the fact-finder, investigator, and hearing officer atthe same time. In preliminary
investigations, the same public officer may be the investigator and hearing officer at the same time, or
the fact-finder, investigator and hearing officer may be under the control and supervisionof the same
public officer, like the Ombudsman or Secretary of Justice. This explains why Ang Tibay, as amplified in
GSIS, does not apply to preliminary investigations. To now declare that the guidelines in Ang Tibay, as
amplified in GSIS, are fundamental and essential requirements in preliminary investigations will render
all past and present preliminary investigations invalid for violation of constitutional due process. This will
mean remanding for reinvestigation all criminal cases now pending in all courts throughout the country.
No preliminary investigation can proceeduntil a new law designates a public officer, outside of the
prosecution service, to determine probable cause. Moreover, those serving sentences by final judgment
would have to be released from prison because their conviction violated constitutional due process. Sen.
Estrada did not file a Motion for Reconsideration of the 27 March 2014 Order in OMB-C-C-13-0313
denying his Request, which is the subject of the present Petition. He should have filed a Motion for R
econsideration, in the same manner that he filed a Motion for Reconsideration of the 15 May 2014
Order denying his motion to suspend proceedings. The unquestioned rule in this jurisdiction is that
certiorari will lie only if there is no appeal or any other plain, speedy and adequate remedy in the
ordinary course of law against the acts of the public respondent.56 The plain, speedy and adequate
remedy expressly provided by law is a Motion for Reconsideration of the 27 March 2014 Order of the
Ombudsman. Sen. Estrada's failure to file a Motion for Reconsideration renders this Petition premature.

Sen. Estrada also raised in this Petition the same issue he raised in his Motion for Reconsideration of the
28 March 2014 Joint Resolution of the Ombudsman finding probable cause. While his Motion for
Reconsideration of the 28 March 2014 Joint Resolution was pending, Sen. Estrada did not wait for the
resolution of the Ombudsman and instead proceeded to file the present Petition for Certiorari. The
Ombudsman issued a Joint Order on 4 June 2014 and specifically addressed the issue that Sen. Estrada is
raising in this Petition. Thus, Sen. Estrada's present Petition for Certiorari is not only premature, it also
constitutes forum shopping. WHEREFORE, we DISMISS the Petition for Certiorari in G.R. Nos. 212140-41.

SO ORDERED.

ANTONIO T. CARPIO

Associate Justice

WE CONCUR:

MARIA LOURDES P.A. SERENO

Chief Justice

PRESBITERO J. VELASCO, JR.

Associate Justice TERESITA J. LEONARDO-DE CASTRO

Associate Justice

ARTURO D. BRION*

Associate Justice DIOSDADO M. PERALTA

Associate Justice

LUCAS P. BERSAMIN

Associate Justice MARIANO C. DEL CASTILLO

Associate Justice

MARTIN S. VILLARAMA, JR.

Associate Justice JOSE PORTUGAL PEREZ

Associate Justice

JOSE CATRAL MENDDOZA

Associate Justice BIENVENIDO L. REYES

Associate Justice

ESTELA M. PERLAS-BERNABE

Associate Justice MARVIC M.V.F. LEONEN

Associate Justice

FRANCIS H. JARDELEZA

Associate Justice

CERTIFICATION

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

MARIA LOURDES P.A. SERENO

Chief Justice

V
 EN BANC

G.R. No. 208062, April 07, 2015

SOCIAL WEATHER STATIONS, INC. AND PULSE ASIA,

INC., Petitioners, v. COMMISSION ON ELECTIONS, Respondent.

DECISION

LEONEN, J.:

This resolves the Petition1 for certiorari and prohibition under Rule 64, in relation to
Rule 65, of the 1997 Rules of Civil Procedure praying that respondent Commission on
Elections' Resolution No. 96742 dated April 23, 2013 be nullified and set aside and that
the Commission on Elections be permanently enjoined from enforcing the same
Resolution, as well as prosecuting Social Weather Stations, Inc. and Pulse Asia, Inc. for
violating it or otherwise compelling compliance with it.3

Commission on Elections' (COMELEC) Resolution No. 9674 directed Social Weather

Stations, Inc. (SWS) and Pulse Asia, Inc. (Pulse Asia), as well as "other survey firms of
similar circumstance"4 to submit to COMELEC the names of all commissioners and
payors of all surveys published from February 12, 2013 to April 23, 2013, including
those of their "subscribers."5

SWS and Pulse Asia are social research and public polling firms. Among their activities
is the conduct of pre-election surveys.6

As recounted by SWS and Pulse Asia, on February 15 to February 17, 2013, SWS
conducted a pre-election survey on voters' preferences for senatorial candidates.
Thereafter, it published its findings.7 The following question was asked in the survey:

Kung ang eleksyon ay gaganapin ngayon, sino ang pinakamalamang ninyong iboboto
bilang mga SENADOR ng PILIPINAS? Narito ang listahan ng mga kandidato. Paki-
shade o itiman po ang naaangkop na oval katabi ng pangalan hg mga taong
pinakamalamang ninyong iboboto. Maaari po kayong pumili ng hanggang labindalawang
(12) kandidato.

(LIST OF CANDIDATES OMITTED)

If the elections were held today, whom would you most probably vote for
as  SENATORS of the PHILIPPINES?  Here is a list of candidates. Please shade the
oval beside the name of the persons you would most likely vote for. You may choose up
to twelve (12) candidates.

(LIST OF CANDIDATES OMITTED)8 (Emphasis in the original)

On March 20, 2013, Representative Tobias M. Tiangco (Tiangco), Secretary-General of

the United Nationalist Alliance (UNA), wrote Atty. Esmeralda Ladra, Director of
COMELEC's Law Department.9 In his letter,10 Tiangco asked COMELEC to "compel [SWS]
to either comply with the directive in the Fair Election Act and COMELEC Resolution No.
9[6]1[5] and give the names or identities of the subscribers who paid for the [pre-
election survey conducted from February 15 to February 17, 2013], or be liable for the
violation thereof, an act constitutive of an election offense."11

Tiangco recounted that on February 28, 2013, he wrote to SWS requesting, among
others, that he "be furnished the identity of persons who paid for the [pre-election
survey conducted from February 15 to February 17, 2013] as well as those who
subscribed to it."12 Sometime in March 2013, SWS supposedly replied to Tiangco,
"furnishing [him] with some particulars about the survey but [without] disclosing] the
identity of the persons who commissioned or subscribed to the survey."13

Acting on Tiangco's letter and on the COMELEC Law Department's recommendation, the
COMELEC En Bane issued the Order14 dated April 10, 2013 setting the matter for
hearing on April 16, 2013. The same Order directed SWS to submit its Comment within
three (3) days of receipt.15 On April 12, 2013, Pulse Asia received a letter from
COMELEC "requesting its representative to attend the COMELEC hearing on 16 April
2013."16

SWS and Pulse Asia recounted that during the hearing, COMELEC Chairman Sixto S.
Brillantes, Jr. (COMELEC Chairman Brillantes) stated that the proceeding was merely a
clarificatory hearing and not a formal hearing or an investigation.17

On April 23, 2013, COMELEC issued the assailed Resolution No. 9674. The entire
dispositive portion of this Resolution reads:

WHEREFORE, premises considered, the Commis[s]ion RESOLVED, as it hereby

RESOLVES, to DIRECT the SWS, Pulse Asia and other survey firms of similar
circumstance to submit within three (3) days from receipt of this Resolution the names
of all commissioners and payors of surveys published from February 12, 2013 to the
date of the promulgation of this Resolution for copying and verification by the
Commission. The submission shall include the names of all "subscribers" of those
published surveys. Such information/data shall be for the exclusive and confidential use
of the Commission;

RESOLVED FURTHER, that all surveys published subsequent to the promulgation of

this Resolution must be accompanied by all the information required in Republic Act no.
9006, including the names of commissioners, payors and subscribers.

This resolution shall take effect immediately after publication.

A violation of these rules shall constitu[t]e an election offense as provided in Republic

Act no. 9006, or the Fair Election Act.18 (Emphasis in the original)

As basis for Resolution No. 9674, COMELEC cited Article IX-C, Section 2(1)19 of the
1987 Constitution and Sections 5.1 to 5.320 of Republic Act No. 9006, otherwise known
as the Fair Election Act, as implemented by COMELEC Resolution No. 9615.21

SWS and Pulse Asia alleged that following the issuance of Resolution No. 9674 and as
of their filing before this court of the present Petition, they had not been furnished
copies of Resolution No. 9674.22 (They emphasized that while a certified true copy of
this Resolution was attached to their Petition, this was a copy which they themselves
secured "for the purpose of complying.with the requirement that Rule 65 petitions must
be accompanied by a certified true copy of the assailed order or resolution[.]"23)

In the letter24 dated April 30, 2013, SWS and Pulse Asia informed COMELEC Chairman
Brillantes that they had not received a copy of Resolution No. 9674. They also
articulated their view that Resolution No. 9674 was tainted with irregularities, having
been issued ultra vires (i.e., in excess of what the Fair Election Act allows) and in
violation of the non-impairment of contracts clause of the Constitution. They also
expressed their intention to bring the matter before this court on account of these
supposed irregularities. Thus, they requested that COMELEC defer or hold in abeyance
Resolution No. 9674's enforcement.25

On May 8, 2013, the COMELEC Law Department issued a Notice26 to SWS (and also to
Pulse Asia) directing it to furnish COMELEC with a list of the names of all
"commissioners, subscribers, and payors of surveys published from February 12, 2013
until April 23, 2013."27 SWS was warned that failure to comply with the Notice shall
constitute an election offense punishable under the Omnibus Election Code.28

On July 1, 2013, COMELEC issued a Subpoena29 notifying SWS and Pulse Asia that a
Complaint "for violation of Section 264[,] par. 1 and 2 of the Omnibus Election Code30 in
relation to R.A. 9006"31 was filed against them. (This was docketed as E.O. Case No.
13-222). They were also directed to appear and to submit their counter-affidavits and
other supporting documents at the hearing set on August 6, 2013.32

SWS and Pulse Asia maintained that before receiving the Subpoena, they were never
informed that a criminal case had been filed against them. They added that they were
never furnished copies of the relevant criminal Complaint.33

On July 26, 2013, petitioners Social Weather Stations, Inc. and Pulse Asia, Inc. filed the
present Petition.34 They assail Resolution No. 9674 as having been issued ultra vires.
They are of the position that Resolution No. 9674, in requiring the submission of
information on subscribers, is in excess of what the Fair Election Act
requires.35 Likewise, they, assert that Resolution No. 9674 transgresses the Fair
Election Act in making itself executory immediately after publication.36 Moreover, they
claim that it violates the non-impairment of contracts clause of the Constitution,37 and
was enforced in violation of their right to due process (as they were charged with its
violation despite not having been properly served with copies of the complaint filed
against them).38 Petitioners pray for the issuance of a temporary restraining order
and/or writ of preliminary injunction in the interim.39

In this court's July 30, 2013 Resolution,40 COMELEC was required to file a Comment on
the Petition. In the same Resolution, this court issued a temporary restraining order
"enjoining the enforcement of COMELEC Resolution No. 9674 with respect to submission
of the names of regular subscribers but not to the submission of (1) the names of
specific subscribers for the limited period of February 12, 2013 to April 23, 2013 who
have paid a substantial amount of money for access to survey results and privileged
survey data; and (2) the names of all commissioners and payors of surveys published
within the same period."41
On October 10, 2013, COMELEC filed its Comment.42 On February 12, 2014, petitioners
filed their Joint Reply.43

In this court's February 18, 2014 Resolution,44 the present Petition was given due
course, and the parties were directed to file their memoranda. Petitioners complied on
May 16, 201445 and COMELEC on June 25, 2014.46

For resolution are the following issues:

First, whether Resolution No. 9674 is invalid in that it requires the disclosure of the
names of "subscribers" of election surveys;

Second, whether the rights of petitioners to free speech will be curtailed by the
requirement to submit the names of their subscribers;

Third, whether Resolution No. 9674, insofar as it compels petitioners to submit the
names of their subscribers, violates the constitutional proscription against the
impairment of contracts (Article II, Section 10);

Fourth, whether at the time petitioners were required by COMELEC to reveal the names
of the subscribers to their election surveys, Resolution No. 9674 was already in force
and effect; and

Lastly, whether COMELEC deprived petitioners of due process of law when it:

a) failed to provide them with a copy of Resolution No. 9674 and the criminal complaint
for an election offense; and

b) refused to specify the election offense under which they were being prosecuted.

We sustain the validity of Resolution No. 9674. The names of those who commission or
pay for election surveys, including subscribers of survey firms, must be disclosed
pursuant to Section 5.2(a) of the Fair Election Act. This requirement is a valid
regulation in the exercise of police power and effects the constitutional policy of
"guarantee[ing] equal access to opportunities for public service[.]"47 Section 5.2(a)'s
requirement of disclosing subscribers neither curtails petitioners' free speech rights nor
violates the constitutional proscription against the impairment of contracts.

However, it is evident that Resolution No. 9674 was promulgated in violation of the
period set by the Fair Election Act. Petitioners were also not served a copy of Resolution
No. 9674 with which they were asked to comply. They were neither shown nor served
copies of the criminal Complaint subject of E.O. Case No. 13-222. Petitioners' right to
due process was, thus, violated.

Petitioners assail Resolution No. 9674's requirement of submission of names of

subscribers, including those who did not commission or pay for a specific survey or
cause its publication, for being ultra vires. They maintain that the Fair Election Act "as it
was written by Congress covers only those who commission or pay for a particular
election survey, and requires disclosure of their names only when that particular survey
is published."48 From this, they add that COMELEC exceeded its authority — "creating]
an election offense where there was none before"49 — in considering as an election
offense any violation of Resolution No. 9674.

COMELEC, for its part, insists on the "wide latitude of discretion"50 granted to it in the
performance of its constitutional duty to "[e]nforce and administer all laws and
regulations relative to the conduct of an election[.]"51 It adds that "as the specialized
constitutional body charged with the enforcement and administration of election
laws,"52 its contemporaneous construction of Section 5.2(a) of the Fair Election Act is
"entitled to great weight and respect."53 Citing the supposed legislative intent of Section
5.2 as "broaden[ing] the subject of disclosure,"54 COMELEC claims that Section 5.2(a)
"draws no distinction between the direct payors and the indirect payors of the
survey."55 It adds that requiring the disclosure of survey subscribers addresses the
requirement of reporting election expenditures by candidates and political parties,
thereby helping COMELEC check compliance with this requirement.56

Section 5.2(a) of the Fair Election Act, read in a manner consistent not only with its text
but also with the purpose for which it, along with the Fair Election Act, was adopted,
sustains COMELEC's position.

Republic Act No. 9006 was adopted with the end in mind of "guarantee[ing] or
ensuring] equal opportunity for public service"57 and to this end, stipulates mechanisms
for the "supervision] or regulation of] the enjoyment or utilization of all franchises or
permits for the operation of media of communication or information[.]"58 Hence, its
short title: Fair Election Act.

Situated within the constitutional order, the Fair Election Act provides means to realize
the policy articulated in Article II, Section 26 of the 1987 Constitution to "guarantee
equal access to opportunities for public service[.]" Article II, Section 26 models an
understanding of Philippine political and electoral reality. It is not merely hortatory or a
statement of value. Among others, it sums up an aversion to the perpetuation of
political power through electoral contests skewed in favor of those with resources to
dominate the deliberative space in any media.

Apart from making real Article II, Section 26's constitutional policy, the Fair Election Act
represents the legislature's compliance with the requirement of Article XIII, Section 1:
"Congress . . . give[s] highest priority to the enactment of measures that. . .
reduce . . . political inequalities ... by equitably diffusing wealth and political power for
the common good."59

Moreover, the constitutional desire to "guarantee equal access to opportunities for

public service"60 is the same intent that animates the Constitution's investiture in
COMELEC of the power to "supervise or regulate the enjoyment or utilization of all
franchises or permits for the operation of transportation and other public utilities, media
of communication or information, all grants, special privileges, or concessions granted
by the Government or any subdivision, agency, or instrumentality thereof, including
any government-owned or controlled corporation or its subsidiary."61

Specific provisions in the Fair Election Act regulate the means through which candidates
for elective public office, as well as political parties and groups participating in the
party-list system, are able to make themselves known to voters, the same means
through which they earn votes.

Section 3 permits the use of lawful election propaganda.62 Section 4 regulates published

or printed, and broadcast election propaganda.63 Section 6 governs access to media
time and space.64 Sections 7 and 8 provide for COMELEC's competencies (i.e.,
affirmative action, and the so-called "COMELEC Space" and "COMELEC Time") that
enable it to equalize candidates' exposure to voters.65 Section 9 regulates venues for
the posting of campaign materials.66 Section 10 provides for parties' and candidates'
right to reply.67 Section 11 requires media outlets to make available the use of their
facilities for election propaganda at discounted rates.68

The Fair Election Act also governs published surveys during elections.

Section 5.1 defines election surveys-as "the measurement of opinions and perceptions
of the voters as regards a candidate's popularity, qualifications, platforms or a matter
of public discussion in relation to the election, including voters' preference for
candidates or publicly discussed issues during the campaign period[.]" Sections 5.2 and
5.3 provide regulations that facilitate transparency with respect to ' election surveys.
Section 5.469 is no longer in effect, having been declared unconstitutional in this court's
May 5, 2001 Decision in Social Weather Stations and Kamahalan Publishing Corp. v.
COMELEC.70 Section 5.571 pertains to exit polls.

Section 5.2 enumerates the information that a person publishing an election survey
must publish along with the survey itself:

5.2 During the election period, any person, natural as well as juridical, candidate or
organization who publishes a survey must likewise publish the following information: chanroblesvirtuallawlibrary

a. The name of the person, candidate, party or. organization who

commissioned or paid for the survey;
b. The name of the person, polling firm or survey organization who
conducted the survey;
c. The period during which the survey was conducted, the
methodology used, including the number of individual respondents
and the areas from which they were selected, and the specific
questions asked;
d. The margin of error of the survey;
e. For each question for which the margin of error is greater than that
reported under paragraph (d), the margin of error for that
question; and
f. A mailing address and telephone number, indicating it as an
address or telephone number at which the sponsor can be
contacted to obtain a written report regarding the survey in
accordance with Subsection 5.3. (Emphasis supplied)

Section 5.3 facilitates the inspection, copying, and verification not only of an election
survey but also of the raw data used as bases for its conclusions:
5.3 The survey together with raw data gathered to support its conclusions shall be
available for inspection, copying and verification by the COMELEC or by a registered
political party or a bona fide candidate, or by any COMELEC-accredited citizen's arm. A
reasonable fee sufficient to cover the costs of inspection, copying and verification may
be charged.

As with all the other provisions of the Fair Election Act, Section 5 is a means to
guarantee equal access to the deliberative forums essential to win an elective public
office. Any reading of Section 5 and of its individual components, such as Section
5.2(a), cannot be divorced from this purpose.

The inclusion of election surveys in the list of items regulated by the Fair Election Act is
a recognition that election surveys are not a mere descriptive aggregation of data.
Publishing surveys are a means to shape the preference of voters, inform the strategy
of campaign machineries, and ultimately, affect the outcome of elections. Election
surveys have a similar nature as election propaganda. They are expensive, normally
paid for by those interested in the outcome of elections, and have tremendous
consequences on election results.

II

Views vary on the precise extent to which surveys or "polls" shape voter preferences, if
at all.

Election surveys have been critiqued for amplifying the notion of an election as a "horse
race"72 and for reducing elections to the lowest common denominator of percentage
points or a candidate's erstwhile share in the vote market rather than focusing on
issues, principles, programs, and platforms.

Several possible, albeit conflicting, effects of surveys on voter behavior have been
postulated:

First, there is the bandwagon effect where "electors rally to support the candidate

leading in the polls."73 This "assumes that knowledge of a popular 'tide' will likely
change voting intentions in [favor] of the frontrunner, that many electors feel more
comfortable supporting a popular choice or that people accept the perceived collective
wisdom of others as being enough reason for supporting a candidate."74

Second, there is the underdog effect where "electors rally to support the candidate

trailing in the polls."75 This shift can be motivated by sympathy for the perceived
underdog.76

Third, there is the motivating effect where "individuals who had not intended to vote
are persuaded to do so,"77 having been alerted to the fact of an election's imminence.78

Fourth, there is also the demotivating effect where "voters abstain from voting out of
certainty that their candidate or party will win[.]"79

Fifth, there are reports of a behavior known as strategic voting where "voting is

influenced by the chances of winning[.]"80
Lastly, there is also the theory of a free-will effect where "voters cast their ballots to
prove the polls wrong[.]"81

Election surveys published during election periods create the "politics of

expectations."82 Voters act in accordance with what is perceived to be an existing or
emerging state of affairs with respect to how candidates are faring.

Of the six (6) effects, the bandwagon effect has a particular resonance and has been of
concern. Surveys, or opinion polls, "by directly influencing individual-level support . . . ,
can be self-fulfilling prophecies and produce opinion cascades."83 "[A] poll's prediction
may come to pass not only because it measures public opinion but also because it may
influence public opinion."84

The bandwagon effect is of particular concern because of the observed human tendency
to conform. Three (3) mechanisms through which survey results may induce conformity
have been posited:

(1) normative social influence, or people's desire to adopt the majority position in order
to feel liked and accepted or believe they are on the winning team;

(2) informational social influence, or people learning from the 'wisdom of crowds' via
social proof because they 'believe that others' interpretation of an ambiguous situation
is more accurate . . . and will help [them] choose an appropriate course of action'; and

(3) people resolving cognitive dissonance by switching to the side they infer is going to
win based on the poll.85cralawlawlibrary

Likewise, it has been argued that the bandwagon effect is but the obverse of the so-
called false-consensus effect or false-consensus bias:

The bandwagon effect, a form of conformity, is the mirror image of the false consensus
effect, where people misperceive that their own behaviors and attitudes are more
popular than they actually are. In the political domain, one mechanism underlying the
false consensus effect is wishful thinking - people gaining utility from thinking their
candidate is ahead or their opinions are popular.86

The bandwagon effect induced by election surveys assumes even greater significance in
considering the health of a democracy.

Integral to our appreciation of democracy is the recognition that democracy is

fundamentally deliberative. It is rooted in the exchange and dialogue of ideas.
Accordingly, free expression, not least of all from the minority and from those who do
not conform, i.e., those who dissent and criticize, is indispensable:

Proponents of the political theory on "deliberative democracy" submit that "substantial,

open, [and] ethical dialogue is a critical, and indeed defining, feature of a good polity."
This theory may be considered broad, but it definitely "includes [a] collective decision
making with the participation of all who will be affected by the decision." It anchors on
the principle that the cornerstone of every democracy is that sovereignty resides in the
people. To ensure order in running the state's affairs, sovereign powers were delegated
and individuals would be elected or nominated in key government positions to represent
the people. On this note, the theory on deliberative democracy may evolve to the right
of the people to make government accountable. Necessarily, this includes the right of
the people to criticize acts made pursuant to governmental functions.

Speech that promotes dialogue on public affairs, or airs out grievances and political
discontent, should thus be protected and encouraged.

Borrowing the words of Justice Brandeis, "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."

In this jurisdiction, this court held that "[t]he interest of society and the maintenance of
good government demand a full discussion of public affairs." This court has, thus,
adopted the principle that "debate on public issues should be uninhibited, robust, and
wide open . . . [including even] unpleasantly sharp attacks on government and public
officials."87
cralawlawlibrary

However, "conformity pressures can suppress minority opinion."88 The bandwagon

effect conjures images of an impregnable majority, thereby tending to push farther
toward the peripheries those who are already marginalized. Worse, the bandwagon
effect foments the illusion of a homogenous monolith denying the very existence of
those in the minority. This undermines the "normative conceptions of
democracy"89 substituting the democratic dialogue with acquiescence to perceived or
projected orthodoxy.

Surveys, far from being a passive "snapshot of many viewpoints held by a segment of
the population at a given time,"90 can warp existing public opinion and can mould public
opinion. They are constitutive. Published election surveys offer valuable insight into
public opinion not just because they represent it but more so because they also tend to
make it.

Appreciating this tendency to both entrench and marginalize is of acute relevance in the
context of Philippine political reality. This is the same reality that our policymakers,
primarily the framers of the Constitution, have seen fit to address.

III

The constitutional dictum to "guarantee equal access to opportunities for public

service"91 and (even more specifically and explicitly) to "prohibit political
dynasties"92 does not exist in a vacuum.

Politics in the Philippines has been criticized as "a lucrative means of self-
aggrandizement."93 Ours is an exclusive system that perpetuates power and provides
sanctuary to those who have already secured their place. Traditional Filipino politics
connotes elite families that, with the state, are "engaged in a reciprocal relationship
that constantly defines and redefines both."94 As recounted by Alfred McCoy, this
reciprocal relationship, typified by rent-seeking (i.e., "taking advantage of their access
to state privileges to expand proprietary wealth"95), is a vicious cycle propagated for as
long as the Philippines has been a republic: "The emergence of the Republic as a weak
postcolonial state augmented the power of rent-seeking political families — a
development that further weakened the state's own resources."96

The Philippines, as it emerged in the wake of Ferdinand Marcos' presidency and the
adoption of the 1987 Constitution, saw the "celebritification"97 of political office. On the
legislature and studying emerging contrasts in the composition of its two chambers —
the Senate and the House of Representatives — it has been noted:

The old political families, however are not as strong in the Senate as they are in the
House. This could be read, if not as a total repudiation by voters of family power, then
at least as an attempt by them to tap other sources of national leadership. Celebrities
and military and police officers have emerged as alternatives to traditional politicians. It
could be that these new men and women have captured the popular imagination or that
they are more in tune with the public pulse. But their emergence could very well be
seen as an indication of the paucity of choices: Political parties, for one, have not
succeeded in proffering a wider range of options to an electorate weary of trapos.98

This celebritification nurtures misleading notions of an enhanced or healthier

democracy, one that opens avenues to a crop of political leaders not belonging to
oligarchic families. Viewed critically however, this is nothing more than a pipe dream.
New elites now share the political stage with the old. The tension between two contrary
tendencies actually serves to preserve the status quo of elitism — an expanded elitism
perhaps, but elitism no less. To evoke a truism, "the more things change, the more
they stay the same":

But the "celebritification" of the Senate can also be interpreted as the democratization
of an exclusive body once reserved only for the very rich, the politically experienced,
and the intellectually brilliant. In a sense, the bar of entry has been lowered,
and anyone with national renown can contest a seat in a chamber once famous for
sharp debates and polysyllabic peroration.

The main criterion for a Senate seat is now name recall. This is where celebrities have
the edge even over older political families with bankable names. . . .

....

The diminishing clout of old families in the Senate—and their continued dominance in
the House—shows the push and pull of two contrary tendencies. The first tendency is
toward the new: The importance of name recall in national elections taking place in a
media-inundated environment makes it easier for movie and media personalities, and
harder for old-style politicians, to be elected. The second tendency is veering toward
the old: At the district level, trapo-style patronage and machine politics remain deeply
entrenched, giving political families the edge in elections."99

Thus, where once there was elitism solely along lines of kinship — Alfred McCoy's so-
called "anarchy of families" — now there is also elitism demarcated by name recall,
populist projection, and media exposure, arguably, an "anarchy of celebrities."
Certainly, it is not the business of this court to engage in its own determination of the
wisdom of policy. Nevertheless, having to grapple with the tasks of adjudication and
interpretation, it has become necessary to bring to light the intent that underlies the
disputed statutory provision, as well as the constitutional regime and social context, in
which this provision is situated.

To reiterate, the inclusion of published election surveys in a statute that regulates

election propaganda and other means through which candidates may shape voter
preferences is itself telling of the recognition that published election surveys, too, may
influence voter preferences. This inclusion is similarly telling of a recognition that, left
unregulated, election surveys can undermine the purposes of ensuring "fair" elections.
These recognitions are embedded in the Fair Election Act; they are not judicial
constructs. In adjudicating with these' as bases, this court is merely adhering to the
legislative imperative.

IV

It is necessary that the Fair Election Act be appreciated for what it is: a mechanism for
ensuring equality. The Fair Election Act is a means to effect the "necessary condition" to
a genuine democratic dialogue, to realizing a deliberative democracy. The concept of
this "necessary condition" was previously considered by this court in Diocese of Bacolod
v. COMELEC:100

In his seminal work, Repressive Tolerance, philosopher and social theorist Herbert

Marcuse recognized how institutionalized inequality exists as a background limitation,
rendering freedoms exercised within such limitation as merely "protecting] the already
established machinery of discrimination." In his view, any improvement "in the normal
course of events" within an unequal society, without subversion, only strengthens
existing interests of those in power and control.

In other words, abstract guarantees of fundamental rights like freedom of expression

may become meaningless if not taken in a real context. This tendency to tackle rights in
the abstract compromises liberties. In his words:

Liberty is selfi-determination, autonomy—this is almost a tautology, but a tautology

which results from a whole series of synthetic judgments. It stipulates the ability to
determine one's own life: to be able to determine what to do and what not to do, what
to suffer and what not. But the subject of this autonomy is never the contingent,
private individual as that which he actually is or happens to be; it is rather the
individual as a human being who is capable of being free with the others. And the
problem of making possible such a harmony between every individual liberty and the
other is not that of finding a compromise between competitors, or between freedom
and law, between general and individual interest, common and private welfare in an
established society, but of creating the society in which man is no longer enslaved by
institutions which vitiate self-determination from the beginning. In other words,
freedom is still to be created even for the freest of the existing societies.

Marcuse suggests that the democratic argument — with all opinions presented to and
deliberated by the people — "implies a necessary condition, namely, that the people
must be capable of deliberating and choosing on the basis of knowledge, that they must
have access to authentic information, and that, on this basis, their evaluation must be
the result of autonomous thought'." He submits that "[different opinions and
'philosophies' can no longer compete peacefully for adherence and persuasion on
rational grounds: the 'marketplace of ideas' is organized and delimited by those who
determine the national and the individual interest."

A slant toward left manifests from his belief that "there is a 'natural right' of resistance
for oppressed and overpowered minorities to use extralegal means if the legal ones
have proved to be inadequate." Marcuse, thus, stands for an equality that breaks away
and transcends from established hierarchies, power structures, and indoctrinations. The
tolerance of libertarian society he refers to as "repressive tolerance."101

What is involved here is petitioners' freedom of speech and of expression, that is, to
publish their findings. More specifically, what is involved here is their right to political
speech, that which "refers to speech 'both intended and received as a contribution to
public deliberation about some issue,' 'foster[ing] informed and civic-minded
deliberation."102

The nature of the speech involved, as well as the Fair Election Act's purpose of ensuring
political equality, calls into operation the equality-based approach to weighing liberty to
express vis-a-vis equality of opportunities. As explained in Diocese of Bacolod:103

In an equality-based approach, "politically disadvantaged speech prevails over

regulation[,] but regulation promoting political equality prevails over speech." This view
allows the government leeway to redistribute or equalize 'speaking power,' such as
protecting, even implicitly subsidizing, unpopular or dissenting voices often
systematically subdued within society's ideological ladder. This view acknowledges that
there are dominant political actors who, through authority, power, resources, identity,
or status, have capabilities that may drown out the messages of others. This is
especially true in a developing or emerging economy that is part of the majoritarian
world like ours.

...

The scope of the guarantee of free expression takes into consideration the
constitutional respect for human potentiality and the effect of speech. It valorizes the
ability of human beings to express and their necessity to relate. On the other hand, a
complete guarantee must also take into consideration the effects it will have in a
deliberative democracy. Skewed distribution of resources as well as the cultural
hegemony of the majority may have the effect of drowning out the speech and the
messages of those in the minority. In a sense, social inequality does have its effect on
the exercise and effect of the guarantee of free speech. Those who have more will have
better access to media that reaches a wider audience than those who have less. Those
who espouse the more popular ideas will have better reception than the subversive and
the dissenters of society. To be really heard and understood, the marginalized view
normally undergoes its own degree of struggle.

The traditional view has been to tolerate the viewpoint of the speaker and the content
of his or her expression. This view, thus, restricts laws or regulation that allows public
officials to make judgments of the value of such viewpoint or message content. This
should still be the principal approach.

However, the requirements of the Constitution regarding equality in opportunity must

provide limits to some expression during electoral campaigns.104

The required judicial temperament in appraising speech in the context of electoral

campaigns which is principally designed to endorse a candidate, both by candidates and
/ or political parties, on the one hand, and private citizens, on the other, has thus been
articulated:

Thus clearly, regulation of speech in the context of electoral campaigns made by

candidates or the members of their political parties or their political parties may be
regulated as to time, place, and manner. This is the effect of our rulings in Osmeña v.
COMELEC and National Press Club v. COMELEC.

Regulation of speech in the context of electoral campaigns made by persons who are
not candidates or who do not speak as members of a political party which are, taken as
a whole, principally advocacies of a social issue that the public must consider during
elections is unconstitutional. Such regulation is inconsistent with the guarantee of
according the fullest possible range of opinions coming from the electorate including
those that can catalyze candid, uninhibited, and robust debate in the criteria for the
choice of a candidate.

This does not mean that there cannot be a specie of speech by a private citizen which
will not amount to an election paraphernalia to be validly regulated by law.

Regulation of election paraphernalia will still be constitutionally valid if it reaches into

speech of persons who are not candidates or who do not speak as members of a
political party if they are not candidates, only if what is regulated is declarative speech
that, taken as a whole, has for its principal object the endorsement of a candidate only.
The regulation (a) should be provided by law, (b) reasonable, (c) narrowly tailored to
meet the objective of enhancing the opportunity of all candidates to be heard and
considering the primacy of the guarantee of free expression, and (d) demonstrably the
least restrictive means to achieve that object. The regulation must only be with respect
to the time, place, and manner of the rendition of the message. In no situation may the
speech be prohibited or censored on the basis of its content. For this purpose, it will not
matter whether the speech is made with or on private property.105 [Emphasis in the
original]

Concededly, what is involved here is not election propaganda per se. Election surveys,
on their face, do not state or allude to preferred candidates. As a means, election
surveys are ambivalent. To an academician, they are an aggrupation of data. To a
journalist, they are matters for reportage. To a historian, they form part of a chronicle.
Election surveys thus become unambiguous only when viewed in relation to the end for
which they are employed. To those whose end is to get a candidate elected, election
surveys, when limited to their own private consumption, are a means to formulate
strategy. When published, however, the tendency to shape voter preferences comes
into play. In this respect, published election surveys partake of the nature of election
propaganda. It is then declarative speech in the context of an electoral campaign
properly subject to regulation. Hence, Section 5.2 of the Fair Election Act's regulation
of published surveys.

We thus proceed to evaluate Resolution No. 9674's requirement of disclosing the names
of subscribers to election surveys in light of the requisites for valid regulation of
declarative speech by private entities in the context of an election campaign:

First, the text of Section 5.2(a) of the Fair Election Act supports the inclusion of
subscribers among those persons who "paid for the survey[.]"106 Thus, Resolution No.
9674 is a regulation finding basis in statute.

COMELEC correctly points out that in Section 5.2(a) of the Fair Election Act, those who
"commissioned" and those who "paid for" the published survey are separated by the
disjunctive term "or."107 This disassociates those who "commissioned" from those who
"paid for" and identifies them as alternatives to each other.108 Section 5.2(a) thus
requires the disclosure of two (2) classes of persons: "[first,] those who commissioned
or sponsored the survey; and [second,] those who paid for the survey."109

The second class makes no distinction between those who pay for a specific survey and
those who pay for election surveys in general. Indeed, subscribers do not escape the
burden of paying for the component articles comprising a subscription. They may pay
for them in aggregate, but they pay for them just the same. From the text of Section
5.2(a), the legislative intent or regulatory concern is clear: "those who have financed,
one way or another, the [published] survey"110 must be disclosed.

Second, not only an important or substantial state interest but even a compelling one
reasonably grounds Resolution No. 9674's inclusion of subscribers to election surveys.
Thus, regardless of whether an intermediate or a strict standard is used, Resolution No.
9674 passes scrutiny.

It is settled that constitutionally declared principles are a compelling state interest:

Compelling governmental interest would include constitutionally declared principles. We

have held, for example, that "the welfare of children and the State's mandate to protect
and care for them, as parens patriae, constitute a substantial and compelling
government interest in regulating . . . utterances in TV broadcast."111

Here, we have established that the regulation of election surveys effects the
constitutional policy, articulated in Article II, Section 26, and reiterated and affirmed in
Article IX-C, Section 4 and Article XIII, Section 26 of the 1987 Constitution, of
"guarantee[ing] equal access to opportunities for public service[.]"112

Resolution No. 9674 addresses the reality that an election survey is formative as it is
descriptive. It can be a means to shape the preference of voters and, thus, the outcome
of elections. In the hands of those whose end is to get a candidate elected, it is a
means for such end and partakes of the nature of election propaganda. Accordingly, the
imperative of "fair" elections impels their regulation.

Lastly, Resolution No. 9674 is "narrowly tailored to meet the objective of enhancing the
opportunity of all candidates to be heard and considering the primacy of the guarantee
of free expression"113 and is "demonstrably the least restrictive means to achieve that
object."114

While it does regulate expression (i.e., petitioners' publication of election surveys), it

does not go so far as to suppress desired expression. There is neither prohibition nor
censorship specifically aimed at election surveys. The freedom to publish election
surveys remains. All Resolution No. 9674 does is articulate a regulation as regards
the manner of publication, that is, that the disclosure of those who commissioned
and/or paid for, including those subscribed to, published election surveys must be
made. cralawlawlibrary

VI

Petitioners harp on what they claim to be Section 5.2(a)'s "plain meaning" and assert
that there is no room to entertain COMELEC's construction of Section 5.2(a).115

It has been said that "[a] cardinal rule in statutory construction is that when the law is
clear and free from any doubt or ambiguity, there is no room for construction or
interpretation. There is only room for application."116

Clarifications, however, are in order.

First, verba legis or the so-called plain-meaning rule applies only when the law
is completely clear, such that there is absolutely no room for interpretation. Its
application is premised on a situation where the words of the legislature are clear that
its intention, insofar as the facts of a case demand from the point of view of a
contemporary interpretative community, is neither vague nor ambiguous. This is a
matter of judicial appreciation. It cannot apply merely on a party's contention of
supposed clarity and lack of room for interpretation.

This is descriptive of the situation here.

Interestingly, both COMELEC and petitioners appeal to what they (respectively)

construe to be plainly evident from Section 5.2(a)'s text: on the part of COMELEC, that
the use of the words "paid for" evinces no distinction between direct purchasers and
those who purchase via subscription schemes; and, on the part of petitioners, that
Section 5.2(a)'s desistance from actually using the word "subscriber" means that
subscribers are beyond its contemplation.117 The variance in the parties' positions,
considering that they are both banking on what they claim to be the Fair Election Act's
plain meaning, is the best evidence of an extant ambiguity.

Second, statutory construction cannot lend itself to pedantic rigor that foments
absurdity. The dangers of inordinate insistence on literal interpretation are
commonsensical and need not be belabored. These dangers are by no means endemic
to legal interpretation. Even in everyday conversations, misplaced literal interpretations
are fodder for humor. A fixation on technical rules of grammar is no less innocuous. A
pompously doctrinaire' approach to text can stifle, rather than facilitate, the legislative
wisdom that unbridled textualism purports to bolster.118
Third, the assumption that there is, in all cases, a universal plain language is
erroneous. In reality, universality and uniformity of meaning is a rarity. A contrary
belief wrongly assumes that language is static.

The more appropriate and more effective approach is, thus, holistic rather than
parochial: to consider context and the interplay of the historical, the contemporary, and
even the envisioned. Judicial interpretation entails the convergence of social realities
and social ideals. The latter are meant to be effected by the legal apparatus, chief of
which is the bedrock of the prevailing legal order: the Constitution. Indeed, the word in
the vernacular that describes the Constitution — saligan — demonstrates this
imperative of constitutional primacy.

Thus, we refuse to read Section 5.2(a) of the Fair Election Act in isolation. Here, we
consider not an abstruse provision but a stipulation that is part of the whole, i.e., the
statute of which it is a part, that is aimed at realizing the ideal of fair elections. We
consider not a cloistered provision but a norm that should have a present authoritative
effect to achieve the ideals of those who currently read, depend on, and demand fealty
from the Constitution. cralawlawlibrary

VII

We note with favor COMELEC's emphasis on the "wide latitude of discretion"119 granted

to it in the performance of its constitutional duty to "[e]nforce and administer all laws
arid regulations relative to the conduct of an election[.]"120 But this is with the caution
that it does not reach "grave abuse of discretion[.]121

Alliance for Nationalism and Democracy v. COMELEC 122 had the following to say
regarding factual findings made by COMELEC, an independent constitutional organ:

[T]he rule that factual findings of administrative bodies will not be disturbed by courts
of justice except when there is absolutely no evidence or no substantial evidence in
support of such findings should be applied with greater force when it concerns the
COMELEC, as the framers of the Constitution intended to place the COMELEC—created
and explicitly made independent by the Constitution itself—on a level higher than
statutory administrative organs.123

Proceeding from this, we emphasize that this norm of deference applies not only to
factual findings. This applies with equal force to independent constitutional organs'
general exercise of their functions. The constitutional placing of independent
constitutional organs on a plane higher than those of administrative agencies created
only by statute is not restricted to competence in fact-finding. It extends to all purposes
for which the Constitution created them.

We reiterate, however, that our recognition of this deferential norm is made with
caution. This rule of deference does not give independent constitutional organs, like
COMELEC, license to gravely abuse their discretion. With respect to rule-making, while
the wisdom of "subordinate legislation" or the rule-making power of agencies tasked
with the administration of government is acknowledged, rule-making agencies are not
given unfettered power to promulgate rules. As explained in Gerochi v. Department of
Energy,124 it is imperative that subordinate legislation "be germane to the objects and
purposes of the law and that the regulation be not in contradiction to, but in conformity
with, the standards prescribed by the law."125 A regulation that purports to effect a
statute but goes beyond the bounds of that statute is ultra vires; it is in excess of the
rule-making agency's competence. Thus, it is void and ineffectual.

This is not the case here. There is no grave abuse of discretion. Resolution No. 9674
serves a constitutional purpose and works well within the bounds of the Constitution
and of statute.cralawlawlibrary

VIII

Petitioners argue that Resolution No. 9674 constitutes a prior restraint in that:

Resolution No. 9674 makes it an election offense for a survey firm not to disclose the
names of subscribers who have paid substantial amounts to them, even if ihe survey
portions provided to them have not been published. 1'his requirement is unduly
burdensome and onerous and constitutes a prior restraint on the right of survey firms
to gather information on public opinion and disseminate it to the citizenry.

. . . If Resolution No. 9674 is allowed to stand, survey firms will no longer be able to
operate because they will not have enough clients and will not be financially
sustainable. COMELEC will finally be able to do indirectly what it could not do directly,
which is to prohibit the conduct of election surveys and the publication or dissemination
of the results to the public.126

Petitioners' assertions are erroneous.

Chavez v. Gonzales127 explained the concept of prior restraint as follows:

Prior restraint refers to official governmental restrictions on the press or other forms of
expression in advance of actual publication or dissemination. Freedom from prior
restraint is largely freedom from government censorship of publications, whatever the
form of censorship, and regardless of whether it is wielded by the executive, legislative
or judicial branch of the government. Thus, it precludes governmental acts that
required approval of a proposal to publish; licensing or permits as prerequisites to
publication including the payment of license taxes for the privilege to publish; and even
injunctions against publication. Even the closure of the business and printing offices of
certain newspapers, resulting in the discontinuation of their printing and publication,
are deemed as previous restraint or censorship. Any law or official that requires some
form of permission to be had before publication can be made, commits an infringement
of the constitutional right, and remedy can be had at the courts.128 (Emphasis supplied,
citations omitted)

The very definition of "prior restraint" negates petitioner's assertions. Resolution No.
9674 poses no prohibition or censorship specifically aimed at election surveys. Apart
from regulating the manner of publication, petitioners remain free to publish election
surveys. COMELEC correctly points out that "[t]he disclosure requirement kicks in only
upon, not prior to, publication."129

In any case, the requirement of disclosing subscribers is neither unduly burdensome

nor onerous. Prior to the promulgation of Resolution No. 9674, survey firms were
already understood to be bound by the requirement to disclose those who
commissioned or paid for published election surveys. Petitioners have been complying
with this without incident since the Fair Election Act was enacted in 2001. After more
than a decade of compliance, it is odd for petitioners to suddenly assail the disclosure
requirement as unduly burdensome or onerous.

Petitioners' claim that "[i]f Resolution No. 9674 is allowed to stand, survey firms will no
longer be able to operate because they will not have enough clients and will not be
financially sustainable"130 is too speculative and conjectural to warrant our
consideration. The assumption is that persons who want to avail of election survey
results will automatically be dissuaded from doing so when there is a requirement of
submission of their names during the campaign period. This is neither self-evident, nor
a presumption that is susceptible to judicial notice. There is no evidence to establish a
causal connection.

Petitioners' free speech rights must be weighed in relation to the Fair Election Act's
purpose of ensuring political equality and, therefore, the speech of others who want to
participate unencumbered in our political spaces. On one hand, there are petitioners'
right to publish and publications which are attended by the interests of those who can
employ published data to their partisan ends. On the other, there is regulation that may
effect equality and, thus, strengthen the capacity of those on society's margins or those
who grope for resources to engage in the democratic dialogue. The latter fosters the
ideals of deliberative democracy. It does not trump the former; rather, it provides the
environment where the survey group's free speech rights should reside. cralawlawlibrary

IX

Petitioners argue that Resolution No. 9674 violates Article III, Section 10 of the 1987
Constitution.131 They claim that it "unduly interferes with [their] existing contracts . . .
by forcing [them] to disclose information that, under the contracts, is confidential or
privileged."132

For its part, COMELEC argues that "[t]he non-impairment clause of the Constitution
must yield to the loftier purposes sought to be achieved by the government."133 It adds
that "[petitioners' existing contracts with third parties must be understood to have been
made in reference to the possible exercise of the COMELEC's regulatory powers."134

It is settled that "the constitutional guaranty of non-impairment... is limited by the

exercise of the police power of the State, in the interest of public health, safety, morals
and general welfare."135 "It is a basic rule in contracts that the law is deemed written
into the contract between the parties."136 The incorporation of regulations into contracts
is "a postulate of the police power of the State."137

The relation of the state's police power to the principle of non-impairment of contracts
was thoroughly explained in Ortigas and Co. V. Feati Bank:138

[W]hile non-impairment of contracts is constitutionally guaranteed, the rule is not

absolute, since it has to be reconciled with the legitimate exercise of police power, i.e.,
"the power to prescribe regulations to promote the health, morals, peace, education,
good order or safety and general welfare of the people." Invariably described as "the
most essential, insistent, and illimitable of powers" and "in a sense, the greatest and
most powerful attribute of government," the exercise of the power may be judicially
inquired into and corrected only if it is capricious, whimsical, unjust or unreasonable,
there having been a denial of due process or a violation of any other applicable
constitutional guarantee. As this Court held through Justice Jose P. Bengzon
in Philippine Long Distance Company vs. City of Davao, et al. police power "is elastic
and must be responsive to various social conditions; it is not confined within narrow
circumscriptions of precedents resting on past conditions; it must follow the legal
progress of a democratic way of life." We were even more emphatic in Vda. de Genuino
vs. The Court of Agrarian Relations, et al, when We declared: "We do not see why
public welfare when clashing with the individual right to property should not be made to
prevail through the state's exercise of its police power."139 (Citations omitted)

This case does not involve a "capricious, whimsical, unjust or

unreasonable"140 regulation. We have demonstrated that not only an important or
substantial state interest, but even a compelling one anchors Resolution No. 9674's
requirement of disclosing subscribers to election surveys. It effects the constitutional
policy of "guarantee[ing] equal access to opportunities for public service"141 and is
impelled by the imperative of "fair" elections.

As a valid exercise of COMELEC's regulatory powers, Resolution No. 9674 is correctly

deemed written into petitioners' existing contracts.

Parenthetically, the obligations of agreements manifested in the concept of contracts

are creations of law. This right to demand performance not only involves its requisites,
privileges, and regulation in the Civil Code or special laws, but is also subject to the
Constitution. The expectations inherent in a contract may be compelling, but so are the
normative frameworks demanded by law and the provisions of the Constitution. cralawlawlibrary

Petitioners point out that Section 13 of the Fair Election Act provides that "[r]ules and
regulations promulgated by the COMELEC under and by authority of this Section shall
take effect on the seventh day after their publication in at least two (2) daily
newspapers of general circulation." In contrast, Resolution No. 9674 provides that it
"shall take effect immediately  after publication."142 Thus, they assert that Resolution
No. 9674's effectivity clause is invalid. From this, they argue that Resolution No. 9674
has not taken effect and cannot be enforced against them or against other persons.143

COMELEC counters that Section 13 of the Fair Election Act's provision that rules shall
take effect "on the seventh day after their publication" applies only to Resolution No.
9615, the Implementing Rules and Regulations (IRR) of the Fair Election Act, and not to
Resolution No. 9674, which "merely enforces Section 26144 of Resolution No. 9615."145

Noting that Resolution No. 9674 was nevertheless published in the Philippine Daily
Inquirer and the Philippine Star both on April 25, 2013, COMELEC adds that, in any
case, "the lapse of the seven-day period from the date of its publication has rendered
the instant issue moot and academic."146
It is COMELEC which is in error on this score. Section 13 of the Fair Election Act reads:

Section 13. Authority of the COMELEC to Promulgate Rules; Election Offenses. - The

COMELEC shall promulgate and furnish all political parties and candidates and the mass
media entities the rules and regulations for the implementation of this Act, consistent
with the criteria established in Article IX-C, Section 4 of the Constitution and Section 86
of the Omnibus Election Code (Batas Pambansa Bldg. 881).

Rules and regulations promulgated by the COMELEC under and by authority of this
Section shall take effect on the seventh day after their publication in at least two (2)
daily newspapers of general circulation. Prior to effectivity of said rules and regulations,
no political advertisement or propaganda for or against any candidate or political party
shall be published or broadcast through mass media.

Violation of this Act and the rules and regulations of the COMELEC issued to implement
this Act shall be an election offense punishable under the first and second paragraphs of
Section 264 of the Omnibus Election Code (Batas Pambansa Bldg. 881). (Emphasis
supplied)

Resolution No. 9615 is denominated "Rules and Regulations Implementing Republic Act
No. 9006, otherwise known as the 'Fair Election Act', in connection to [sic] the 13 May
2013 National and Local Elections, and Subsequent Elections[.]"

The only conceivable reason that would lead COMELEC to the conclusion that it is only
Resolution No. 9615 (and not the assailed Resolution No. 9674) that needs to comply
with the requirement of Section 13 of the Fair Election Act is Section 13's use of the
phrase "rules and regulations for the implementation of this Act[.]" That is, since
Resolution No. 9615 is the Resolution which, by name, is called the "Rules and
Regulations Implementing Republic Act No. 9006," COMELEC seems to think that other
rules named differently need not comply.

It is an error to insist on this literal reasoning.

Section 13 applies to all rules and regulations implementing the Fair Election Act,
regardless of how they are denominated or called. COMELEC's further reasoning that
what Resolution No. 9674 intends to implement is Resolution No. 9615 and not the Fair
Election Act itself is nothing but a circuitous denial of Resolution No. 9674's true nature.
COMELEC's reasoning is its own admission that the assailed Resolution supplements
what the Implementing Rules and Regulations of the Fair Election Act provides.
Ultimately, Resolution No. 9674 also implements the Fair Election Act and must, thus,
comply with the requirements of its Section 13.

Accordingly, Resolution No. 9674 could not have become effective as soon as it was
published in the Philippine Daily Inquirer and the Philippine Star on April 25, 2013.
Taking into consideration the seven-day period required by Section 13, the soonest that
it could have come into effect was on May 2, 2013.

This notwithstanding, petitioners were not bound to comply with the requirement "to
submit within three (3) days from receipt of this Resolution the names of all
commissioners and payors of surveys published from February 12, 2013 to the date of
the promulgation of this Resolution[.]"147 As shall be discussed, COMELEC's (continuing)
failure to serve copies of Resolution No. 9674 on petitioners prevented this three-day
period from even commencing. cralawlawlibrary

XI

Petitioners point out that they were never served copies of Resolution No. 9674. Thus,
they claim that this Resolution's self-stated three-day period within which they must
comply has not begun to run and that COMELEC's insistence on their compliance
violates their right to due process. They add that COMELEC has also failed to provide
them with copies of the criminal complaint subject of E.O. Case No. 13-222 for which
the Subpoena dated July 1, 2013 was issued against them.

COMELEC, however, insists that "[petitioners were given fair notice of the
Resolution"148 in that:

[t]he-Notice dated 08 May 2013 sent to and received by petitioners not only makes
reference to the Resolution by its number and title but also indicates its date of
promulgation, the two newspapers of general circulation in which it was published, it
date of publication, and, more important [sic], reproduces in full its dispositive
portion[.]149

COMELEC adds that, in any case, petitioners were "able to secure a certified true copy
of the [assailed] Resolution."150 On the filing of a criminal complaint, COMELEC asserts
that attached to the Subpoena served on petitioners was a copy of Resolution No. 13-
0739 of the COMELEC En Bane which "provides a verbatim reproduction of the
Memorandum of the Director of the Law Department detailing petitioners' failure to
comply with the assailed Resolution and of the Memorandum of Commissioner
[Christian Robert S.] Lim submitting the matter for the appropriate action of the
COMELEC en bane."151

COMELEC relies on infirm reasoning and reveals how, in criminally charging petitioners,
it acted arbitrarily, whimsically, and capriciously, and violated petitioners' right to due
process.

By its own reasoning, COMELEC admits that petitioners were never actually served
copies of Resolution No. 9674 after it was promulgated on April 23, 2013. It insists,
however, that this flaw has been remedied by service to petitioners of the May 8, 2013
Notice which reproduced Resolution No. 9674's dispositive portion.

Dismembering an official issuance by producing only a portion of it (even if the

reproduced portion is the most significant, i.e., dispositive, portion) is not the same as
serving on the concerned parties a copy of the official issuance itself. Petitioners may
have been informed of what the dispositive portion stated, but it remains that they
were never notified and served copies of the assailed Resolution itself. In Resolution No.
9674's own words, compliance was expected "within three (3) days from receipt of this
Resolution[,]"152 not of its partial, dismembered, reproduction.

Not having been served with copies of Resolution No. 9674 itself, petitioners are right in
construing the three-day period for compliance as not having begun to run. From this,
it follows that no violation of the requirement "to submit within three (3) days from
receipt of this Resolution the names of all commissioners and payors of surveys
published from February 12, 2013 to the date of the promulgation of this
Resolution[.]"153 could have been committed. Thus, there was no basis for considering
petitioners to have committed an election offense arising from this alleged violation.

It is of no consequence that the May 8, 2013 Notice warned petitioners that failure to
comply with it "shall constitute an election offense punishable under the first and
second paragraphs of Section 264 of the Omnibus Election Code."154 It is true that the
Omnibus Election Code has been in force and effect long before Resolution No. 9674
was promulgated; nevertheless, the supposed violation of the Omnibus Election Code
rests on petitioners' alleged non-compliance with Resolution No. 9674. This is a matter
which, as we have demonstrated, is baseless, the three-day period for compliance not
having even commenced.

It is similarly inconsequential that petitioners were subsequently able to obtain certified

true copies of Resolution No. 9674. Petitioners' own diligence in complying with the
formal requirements of Rule 65 petitions filed before this court cannot possibly be the
cure for COMELEC's inaction. These certified true copies were secured precisely to
enable petitioners to assail COMELEC's actions, not to validate them. It would be
misguided to subscribe to COMELEC's suggestion that petitioners' diligence should be
their own undoing. To accede to this would be to effectively intimidate parties with
legitimate grievances against government actions from taking the necessary steps to
comply with (formal) requisites for judicial remedies and, ultimately, prevent them from
protecting their rights.

COMELEC's error is compounded by its failure to provide petitioners with copies of the
criminal complaint subject of E.O. Case No. 13-222. COMELEC has neither alleged nor
proven that it has done so. Per its own allegations, all it did was serve petitioners with
the May 8, 2013 Notice and the July 1, 2013 Subpoena.

These facts considered, it was not only grave error, but grave abuse of discretion, for
COMELEC to pursue unfounded criminal charges against petitioners. In so doing,
COMELEC violated petitioners' right to due process.

WHEREFORE, the Petition is PARTIALLY GRANTED in that COMELEC Resolution No.

9674 is upheld, and respondent Commission on Elections is ENJOINED from
prosecuting petitioners Social Weather Stations, Inc. and Pulse Asia, Inc. for their
supposed violation of COMELEC Resolution No. 9674 in respect of their non-submission
of the names of all commissioners and payors, including subscribers, of surveys
published during the campaign period for the 2013 elections.

SO ORDERED. chanroblesvirtuallawlibrary

Sereno, C.J., Carpio, Velasco, Jr., Leonardo-De Castro, Brion, Peralta, Bersamin, Del
Castillo, Perez, Mendoza, Reyes, and Leonen, JJ., concur.
Villarama, Jr., J., on official leave.
Perlas-Bernabe, J., on leave.
Jardeleza, J., no part, prior action as SolGen.