G.R. No.

159747
April 13, 2004
GREGORIO B. HONASAN II, petitioner, vs. THE PANEL OF
INVESTIGATING PROSECUTORS OF THE DEPARTMENT OF
JUSTICE (LEO DACERA, SUSAN F. DACANAY, EDNA A.
VALENZUELA AND SEBASTIAN F. CAPONONG, JR.), CIDG-PNPP/DIRECTOR EDUARDO MATILLANO, and HON. OMBUDSMAN
SIMEON V. MARCELO, respondents.

2. That I met a certain Captain Gary Alejano of the

Presidential Security Guard (PSG) during our Very Important
Person (VIP) Protection Course sometime in last week of
March 2003;
3. That sometime in May 2003, Captain Alejano gave me a
copy of the pamphlet of the National Recovery Program
(NRP) and told me that: "Kailangan ng Bansa ng taong
kagaya mo na walang bahid ng corruption kaya basahin mo
ito (referring to NRP) pamphlet. I took the pamphlet but
never had the time to read it;
4. That sometime in the afternoon of June 4, 2003, Captain
Alejano invited me to join him in a meeting where the NRP
would be discussed and that there would be a special guest;
5. That Capt. Alejano and I arrived at the meeting at past 9
o'clock in the evening of June 4, 2003 in a house located
somewhere in San Juan, Metro Manila;
6. That upon arrival we were given a document consisting of
about 3-4 pages containing discussion of issues and
concerns within the framework of NRP and we were likewise
served with dinner;
7. That while we were still having dinner at about past 11
o'clock in the evening, Sen. Gregorio "Gringo" Honasan
arrived together with another fellow who was later
introduced as Capt. Turingan;
8. That after Sen. Honasan had taken his dinner, the
meeting proper started presided by Sen. Honasan;
9. That Sen. Honasan discussed the NRP, the graft and
corruption in the government including the military
institution, the judiciary, the executive branch and the like;
10. That the discussion concluded that we must use force,
violence and armed struggle to achieve the vision of NRP. At
this point, I raised the argument that it is my belief that
reforms will be achieved through the democratic processes
and not thru force and violence and/or armed struggle. Sen.
Honasan countered that "we will never achieve reforms
through the democratic processes because the people who
are in power will not give up their positions as they have
their vested interests to protect." After a few more
exchanges of views, Sen. Honasan appeared irritated and
asked me directly three (3) times: "In ka ba o out?" I then
asked whether all those present numbering 30 people, more
or less, are really committed, Sen. Honasan replied: "Kung
kaya nating pumatay sa ating mga kalaban, kaya din nating

DECISION
AUSTRIA-MARTINEZ, J.:
On August 4, 2003, an affidavit-complaint was filed with the
Department of Justice (DOJ) by respondent CIDG-PNP/P Director
Eduardo Matillano. It reads in part:

2. After a thorough investigation, I found that a crime of

coup d'etat was indeed committed by military personnel
who occupied Oakwood on the 27th day of July 2003 and
Senator Gregorio "Gringo"Honasan, II
3.
4. The said crime was committed as follows:
4.1 On June 4, 2003, at on or about 11 p.m., in a house
located in San Juan, Metro Manila, a meeting was held and
presided by Senator Honasan. Attached as Annex "B" is
the affidavit of Perfecto Ragil and made an integral
part of this complaint.

4.8 In the early morning of July 27, 2003, Capt.

Gerardo Gambala, for and in behalf of the military
rebels occupying Oakwood, made a public statement
aired on nation television, stating their withdrawal of
support to the chain of command of the AFP and the
Government of President Gloria Macapagal Arroyo
and they are willing to risk their lives in order to
achieve the National Recovery Agenda of Sen.
Honasan, which they believe is the only program that
would solve the ills of society. . . . (Emphasis
supplied).
The Sworn Statement of AFP Major Perfecto Ragil referred to by
PNP/P Director Matillano is quoted verbatim, to wit:
1. That I am a member of the Communication Electronics
and Information Systems Services, Armed Forces of the
Philippines with the rank of Major;

pumatay sa mga kasamahang magtataksil." I decided not to

pursue further questions;
11. That in the course of the meeting, he presented the plan
of action to achieve the goals of NRP, i.e., overthrow of the
government under the present leadership thru armed
revolution and after which, a junta will be constituted and
that junta will run the new government. He further said that
some of us will resign from the military service and occupy
civilian positions in the new government. He also said that
there is urgency that we implement this plan and that we
would be notified of the next activities.
12. That after the discussion and his presentation, he
explained the rites that we were to undergo-some sort of
"blood compact". He read a prayer that sounded more like a
pledge and we all recited it with raised arms and clenched
fists. He then took a knife and demonstrated how to make a
cut on the left upper inner arm until it bleeds. The cut was in
form of the letter "I" in the old alphabet but was done in a
way that it actually looked like letter "H". Then, he pressed
his right thumb against the blood and pressed the thumb on
the lower middle portion of the copy of the Prayer. He then
covered his thumb mark in blood with tape. He then pressed
the cut on his left arm against the NRP flag and left mark of
letter "I" on it. Everybody else followed;
13. That when my turn came, I slightly made a cut on my
upper inner arm and pricked a portion of it to let it bleed and
I followed what Senator HONASAN did;
14. That I did not like to participate in the rites but I had the
fear for my life with what Senator HONASAN said that "
kaya nating pumatay ng kasamahan";
15. That after the rites, the meeting was adjourned and we
left the place;
16. That I avoided Captain Alejano after that meeting but I
was extra cautious that he would not notice it for fear of my
life due to the threat made by Senator HONASAN during the
meeting on June 4, 2003 and the information relayed to me
by Captain Alejano that their group had already deeply
established their network inside the intelligence community;
17. That sometime in the first week of July 2003, Captain
Alejano came to see me to return the rifle that he borrowed
and told me that when the group arrives at the Malacaang
Compound for "D-DAY", my task is to switch off the
telephone PABX that serves the Malacaang complex. I told

him that I could not do it. No further conversation ensued

and he left;
18. That on Sunday, July 27, 2003, while watching the
television, I saw flashed on the screen Lieutenant Antonio
Trillanes, Captain Gerardo Gambala, Captain Alejano and
some others who were present during the June 4th meeting
that I attended, having a press conference about their
occupation of the Oakwood Hotel. I also saw that the letter
"I" on the arm bands and the banner is the same letter "I" in
the banner which was displayed and on which we pressed
our wound to leave the imprint of the letter "I";
19. That this Affidavit is being executed in order to attest
the veracity of the foregoing and in order to charge
SENATOR GREGORIO "GRINGO" HONASAN, Capt. FELIX
TURINGAN, Capt. GARY ALEJANO, Lt. ANTONIO TRILLANES,
Capt. GERARDO GAMBALA and others for violation of Article
134-A of the Revised Penal Code for the offense of "coup
d'etat". (Emphasis supplied)
The affidavit-complaint is docketed as I.S. No. 2003-1120 and the
Panel of Investigating Prosecutors of the Department of Justice (DOJ
Panel for brevity) sent a subpoena to petitioner for preliminary
investigation.
On August 27, 2003, petitioner, together with his counsel, appeared
at the DOJ. He filed a Motion for Clarification questioning DOJ's
jurisdiction over the case, asserting that since the imputed acts
were committed in relation to his public office, it is the Office of the
Ombudsman, not the DOJ, that has the jurisdiction to conduct the
corresponding preliminary investigation; that should the charge be
filed in court, it is the Sandiganbayan, not the regular courts, that
can legally take cognizance of the case considering that he belongs
to the group of public officials with Salary Grade 31; and praying
that the proceedings be suspended until final resolution of his
motion.
Respondent Matillano submitted his comment/opposition thereto
and petitioner filed a reply.
On September 10, 2003, the DOJ Panel issued an Order, to wit:
On August 27, 2003, Senator Gregorio B. Honasan II filed
through counsel a "Motion to Clarify Jurisdiction". On
September 1, 2003, complainant filed a
Comment/Opposition to the said motion.
The motion and comment/opposition are hereby duly noted
and shall be passed upon in the resolution of this case.
In the meantime, in view of the submission by complainant
of additional affidavits/evidence and to afford respondents

ample opportunity to controvert the same, respondents,

thru counsel are hereby directed to file their respective
counter-affidavits and controverting evidence on or before
September 23, 2003.1
Hence, Senator Gregorio B. Honasan II filed the herein petition
for certiorari under Rule 65 of the Rules of Court against the DOJ
Panel and its members, CIDG-PNP-P/Director Eduardo Matillano and
Ombudsman Simeon V. Marcelo, attributing grave abuse of
discretion on the part of the DOJ Panel in issuing the aforequoted
Order of September 10, 2003 on the ground that the DOJ has no
jurisdiction to conduct the preliminary investigation.
Respondent Ombudsman, the Office of Solicitor General in
representation of respondents DOJ Panel, and Director Matillano
submitted their respective comments.
The Court heard the parties in oral arguments on the following
issues:
1) Whether respondent Department of Justice Panel of
Investigators has jurisdiction to conduct preliminary
investigation over the charge of coup d'etat against
petitioner;
2) Whether Ombudsman-DOJ Circular No. 95-001 violates
the Constitution and Republic Act No. 6770 or Ombudsman
Act of 1989; and
3) Whether respondent DOJ Panel of Investigators
committed grave abuse of discretion in deferring the
resolution of the petitioner's motion to clarify jurisdiction
considering the claim of the petitioner that the DOJ Panel
has no jurisdiction to conduct preliminary investigation.
After the oral arguments, the parties submitted their respective
memoranda. The arguments of petitioner are:
1. The Office of the Ombudsman has jurisdiction to conduct
the preliminary investigation over all public officials,
including petitioner.
2. Respondent DOJ Panel is neither authorized nor deputized
under OMB-DOJ Joint Circular No. 95-001 to conduct the
preliminary investigation involving Honasan.
3. Even if deputized, the respondent DOJ Panel is still
without authority since OMB-DOJ Joint Circular No. 95-001
is ultra vires for being violative of the Constitution, beyond
the powers granted to the Ombudsman by R.A. 6770 and
inoperative due to lack of publication, hence null and void.
4. Since petitioner is charged with coup de 'etat in relation
to his office, it is the Office of the Ombudsman which has
the jurisdiction to conduct the preliminary investigation.

5. The respondent DOJ Panel gravely erred in deferring the

resolution of petitioner's Motion to Clarify Jurisdiction since
the issue involved therein is determinative of the validity of
the preliminary investigation.
6. Respondent DOJ Panel gravely erred when it resolved
petitioner's Motion in the guise of directing him to submit
Counter-Affidavit and yet refused and/or failed to perform its
duties to resolve petitioner's Motion stating its legal and
factual bases.
The arguments of respondent DOJ Panel are:
1. The DOJ has jurisdiction to conduct the preliminary
investigation on petitioner pursuant to Section 3, Chapter I,
Title III, Book IV of the Revised Administrative Code of 1987
in relation to P.D. No. 1275, as amended by P.D. No. 1513.
2. Petitioner is charged with a crime that is not directly nor
intimately related to his public office as a Senator. The
factual allegations in the complaint and the supporting
affidavits are bereft of the requisite nexus between
petitioner's office and the acts complained of.
3. The challenge against the constitutionality of the OMBDOJ Joint Circular, as a ground to question the jurisdiction of
the DOJ over the complaint below, is misplaced. The
jurisdiction of the DOJ is a statutory grant under the Revised
Administrative Code. It is not derived from any provision of
the joint circular which embodies the guidelines governing
the authority of both the DOJ and the Office of the
Ombudsman to conduct preliminary investigation on
offenses charged in relation to public office.
4. Instead of filing his counter-affidavit, petitioner opted to
file a motion to clarify jurisdiction which, for all intents and
purposes, is actually a motion to dismiss that is a prohibited
pleading under Section 3, Rule 112 of the Revised Rules of
Criminal Procedure. The DOJ Panel is not required to act or
even recognize it since a preliminary investigation is
required solely for the purpose of determining whether there
is a sufficient ground to engender a well founded belief that
a crime has been committed and the respondent is probably
guilty thereof and should be held for trial. The DOJ panel did
not outrightly reject the motion of petitioner but ruled to
pass upon the same in the determination of the probable
cause; thus, it has not violated any law or rule or any norm
of discretion.
The arguments of respondent Ombudsman are:

1. The DOJ Panel has full authority and jurisdiction to

conduct preliminary investigation over the petitioner for the
reason that the crime of coup d'etat under Article No. 134-A
of the Revised Penal Code (RPC) may fall under the
jurisdiction of the Sandiganbayan only if the same is
committed "in relation to office" of petitioner, pursuant to
Section 4, P.D. No. 1606, as amended by R.A. No. 7975 and
R.A. No. 8249.
2. Petitioner's premise that the DOJ Panel derives its
authority to conduct preliminary investigation over cases
involving public officers solely from the OMB-DOJ Joint
Circular No. 95-001 is misplaced because the DOJ's
concurrent authority with the OMB to conduct preliminary
investigation of cases involving public officials has been
recognized in Sanchez vs. Demetriou (227 SCRA 627
[1993]) and incorporated in Section 4, Rule 112 of the
Revised Rules of Criminal Procedure.
3. Petitioner's assertion that the Joint Circular is ultra
vires and the DOJ cannot be deputized by the Ombudsman
en masse but must be given in reference to specific cases
has no factual or legal basis. There is no rule or law which
requires the Ombudsman to write out individualized
authorities to deputize prosecutors on a per case basis. The
power of the Ombudsman to deputize DOJ prosecutors
proceeds from the Constitutional grant of power to request
assistance from any government agency necessary to
discharge its functions, as well as from the statutory
authority to so deputize said DOJ prosecutors under Sec. 31
of RA 6770.
4. The Joint Circular which is an internal arrangement
between the DOJ and the Office of the Ombudsman need not
be published since it neither contains a penal provision nor
does it prescribe a mandatory act or prohibit any under pain
or penalty. It does not regulate the conduct of persons or the
public, in general.
The Court finds the petition without merit.
The authority of respondent DOJ Panel is based not on the assailed
OMB-DOJ Circular No. 95-001 but on the provisions of the 1987
Administrative Code under Chapter I, Title III, Book IV, governing
the DOJ, which provides:
Sec. 1. Declaration of policy - It is the declared policy of the
State to provide the government with a principal law agency
which shall be both its legal counsel and prosecution
arm; administer the criminal justice system in accordance

with the accepted processes thereof consisting in the

investigation of the crimes, prosecution of offenders and
administration of the correctional system;
Sec. 3. Powers and Functions - To accomplish its mandate,
the Department shall have the following powers and
functions:

(2) Investigate the commission of crimes, prosecute

offenders and administer the probation and
correction system; (Emphasis supplied)
and Section 1 of P.D. 1275, effective April 11, 1978, to wit:
SECTION 1. Creation of the National Prosecution Service;
Supervision and Control of the Secretary of Justice. There
is hereby created and established a National Prosecution
Service under the supervision and control of the Secretary of
Justice, to be composed of the Prosecution Staff in the Office
of the Secretary of Justice and such number of Regional
State Prosecution Offices, and Provincial and City Fiscal's
Offices as are hereinafter provided, which shall be
primarily responsible for the investigation and
prosecution of all cases involving violations of penal
laws. (Emphasis supplied)
Petitioner claims that it is the Ombudsman, not the DOJ, that has
the jurisdiction to conduct the preliminary investigation under
paragraph (1), Section 13, Article XI of the 1987 Constitution, which
confers upon the Office of the Ombudsman the power
to investigate on its own, or on complaint by any person, any act or
omission of any public official, employee, office or agency, when
such act or omission appears to be illegal, unjust, improper, or
inefficient. Petitioner rationalizes that the 1987 Administrative Code
and the Ombudsman Act of 1989 cannot prevail over the
Constitution, pursuant to Article 7 of the Civil Code, which provides:
Article 7. Laws are repealed only by subsequent ones, and
their violation or non-observance shall not be excused by
disuse, or custom or practice to the contrary.
When the courts declare a law to be inconsistent with the
Constitution, the former shall be void and the latter shall
govern.
Administrative or executive acts, orders and regulations shall be
valid only when they are not contrary to the laws or the
Constitution.
and Mabanag vs. Lopez Vito.2
The Court is not convinced. Paragraph (1) of Section 13, Article XI
of the Constitution, viz:

SEC. 13. The Office of the Ombudsman shall have the

following powers, functions, and duties:
1. Investigate on its own, or on complaint by any person,
any act or omission of any public official, employee, office or
agency, when such act or omission appears to be illegal,
unjust, improper, or inefficient.
does not exclude other government agencies tasked by law to
investigate and prosecute cases involving public officials. If it were
the intention of the framers of the 1987 Constitution, they would
have expressly declared the exclusive conferment of the power to
the Ombudsman. Instead, paragraph (8) of the same Section 13 of
the Constitution provides:
(8) Promulgate its rules of procedure and exercise such
other powers or perform such functions or duties as may be
provided by law.
Accordingly, Congress enacted R.A. 6770, otherwise known as "The
Ombudsman Act of 1989." Section 15 thereof provides:
Sec. 15. Powers, Functions and Duties. - The Office of the
Ombudsman shall have the following powers, functions and
duties:
(1) Investigate and prosecute on its own or on complaint by
any person, any act or omission of any public officer or
employee, office or agency, when such act or omission
appears to be illegal, unjust, improper or inefficient. It has
primary jurisdiction over cases cognizable by the
Sandiganbayan and, in the exercise of this primary
jurisdiction, it may take over, at any stage, from any
investigatory agency of the government, the
investigation of such cases.
. (Emphasis supplied)
Pursuant to the authority given to the Ombudsman by the
Constitution and the Ombudsman Act of 1989 to lay down its own
rules and procedure, the Office of the Ombudsman promulgated
Administrative Order No. 8, dated November 8, 1990,
entitled, Clarifying and Modifying Certain Rules of Procedure of the
Ombudsman, to wit:
A complaint filed in or taken cognizance of by the Office of
the Ombudsman charging any public officer or employee
including those in government-owned or controlled
corporations, with an act or omission alleged to be illegal,
unjust, improper or inefficient is an Ombudsman case. Such
a complaint may be the subject of criminal or administrative
proceedings, or both.

For purposes of investigation and prosecution,

Ombudsman cases involving criminal offenses may be
subdivided into two classes, to wit: (1) those
cognizable by the Sandiganbayan, and (2) those
falling under the jurisdiction of the regular courts.
The difference between the two, aside from the
category of the courts wherein they are filed, is on
the authority to investigate as distinguished from the
authority to prosecute, such cases.
The power to investigate or conduct a preliminary
investigation on any Ombudsman case may be
exercised by an investigator or prosecutor of the
Office of the Ombudsman, or by any Provincial or City
Prosecutor or their assistance, either in their regular
capacities or as deputized Ombudsman prosecutors.
The prosecution of cases cognizable by the
Sandiganbayan shall be under the direct exclusive
control and supervision of the Office of the
Ombudsman. In cases cognizable by the regular
Courts, the control and supervision by the Office of
the Ombudsman is only in Ombudsman cases in the
sense defined above. The law recognizes a
concurrence of jurisdiction between the Office of the
Ombudsman and other investigative agencies of the
government in the prosecution of cases cognizable by
regular courts. (Emphasis supplied)
It is noteworthy that as early as 1990, the Ombudsman had
properly differentiated the authority to investigate cases from the
authority to prosecute cases. It is on this note that the Court will
first dwell on the nature or extent of the authority of the
Ombudsman to investigate cases. Whence, focus is directed to the
second sentence of paragraph (1), Section 15 of the Ombudsman
Act which specifically provides that the Ombudsman has primary
jurisdiction over cases cognizable by the Sandiganbayan, and, in
the exercise of this primary jurisdiction, it may take over, at any
stage, from any investigating agency of the government, the
investigation of such cases.
That the power of the Ombudsman to investigate offenses involving
public officers or employees is not exclusive but is concurrent with
other similarly authorized agencies of the government such as the
provincial, city and state prosecutors has long been settled in
several decisions of the Court.
In Cojuangco, Jr. vs. Presidential Commission on Good
Government, decided in 1990, the Court expressly declared:

A reading of the foregoing provision of the Constitution does

not show that the power of investigation including
preliminary investigation vested on the Ombudsman is
exclusive.3
Interpreting the primary jurisdiction of the Ombudsman under
Section 15 (1) of the Ombudsman Act, the Court held in said case:
Under Section 15 (1) of Republic Act No. 6770 aforecited,
the Ombudsman has primary jurisdiction over cases
cognizable by the Sandiganbayan so that it may take over at
any stage from any investigatory agency of the government,
the investigation of such cases. The authority of the
Ombudsman to investigate offenses involving public
officers or employees is not exclusive but is
concurrent with other similarly authorized agencies
of the government. Such investigatory agencies
referred to include the PCGG and the provincial and
city prosecutors and their assistants, the state
prosecutors and the judges of the municipal trial
courts and municipal circuit trial court.
In other words the provision of the law has opened
up the authority to conduct preliminary investigation
of offenses cognizable by the Sandiganbayan to all
investigatory agencies of the government duly
authorized to conduct a preliminary investigation
under Section 2, Rule 112 of the 1985 Rules of
Criminal Procedure with the only qualification that
the Ombudsman may take over at any stage of such
investigation in the exercise of his primary
jurisdiction.4 (Emphasis supplied)
A little over a month later, the Court, in Deloso vs.
Domingo,5 pronounced that the Ombudsman, under the authority of
Section 13 (1) of the 1987 Constitution, has jurisdiction to
investigate any crime committed by a public official, elucidating
thus:
As protector of the people, the office of the Ombudsman has
the power, function and duty to "act promptly on complaints
filed in any form or manner against public officials" (Sec. 12)
and to "investigate x x x any act or omission of any public
official x x x when such act or omission appears to be illegal,
unjust, improper or inefficient." (Sec. 13[1].) The
Ombudsman is also empowered to "direct the officer
concerned," in this case the Special Prosecutor, "to take
appropriate action against a public official x x x and to
recommend his prosecution" (Sec. 13[3]).

The clause "any [illegal] act or omission of any public

official" is broad enough to embrace any crime committed
by a public official. The law does not qualify the nature of
the illegal act or omission of the public official or employee
that the Ombudsman may investigate. It does not require
that the act or omission be related to or be connected with
or arise from, the performance of official duty. Since the law
does not distinguish, neither should we.
The reason for the creation of the Ombudsman in the 1987
Constitution and for the grant to it of broad investigative
authority, is to insulate said office from the long tentacles of
officialdom that are able to penetrate judges' and fiscals'
offices, and others involved in the prosecution of erring
public officials, and through the exertion of official pressure
and influence, quash, delay, or dismiss investigations into
malfeasances and misfeasances committed by public
officers. It was deemed necessary, therefore, to create a
special office to investigate all criminal complaints against
public officers regardless of whether or not the acts or
omissions complained of are related to or arise from the
performance of the duties of their office. The Ombudsman
Act makes perfectly clear that the jurisdiction of the
Ombudsman encompasses "all kinds of malfeasance,
misfeasance, and non-feasance that have been committed
by any officer or employee as mentioned in Section 13
hereof, during his tenure of office" (Sec. 16, R.A. 6770).
.........
Indeed, the labors of the constitutional commission that
created the Ombudsman as a special body to investigate
erring public officials would be wasted if its jurisdiction were
confined to the investigation of minor and less grave
offenses arising from, or related to, the duties of public
office, but would exclude those grave and terrible crimes
that spring from abuses of official powers and prerogatives,
for it is the investigation of the latter where the need for an
independent, fearless, and honest investigative body, like
the Ombudsman, is greatest.6
At first blush, there appears to be conflicting views in the rulings of
the Court in the Cojuangco, Jr. case and theDeloso case. However,
the contrariety is more apparent than real. In subsequent cases,
the Court elucidated on the nature of the powers of the
Ombudsman to investigate.
In 1993, the Court held in Sanchez vs. Demetriou,7 that while it may
be true that the Ombudsman has jurisdiction to investigate and

prosecute any illegal act or omission of any public official, the

authority of the Ombudsman to investigate is merely a primary and
not an exclusive authority, thus:
The Ombudsman is indeed empowered under Section 15,
paragraph (1) of RA 6770 to investigate and prosecute any
illegal act or omission of any public official. However as we
held only two years ago in the case of Aguinaldo vs.
Domagas,8 this authority "is not an exclusive authority but
rather a shared or concurrent authority in respect of the
offense charged."
Petitioners finally assert that the information and amended
information filed in this case needed the approval of the
Ombudsman. It is not disputed that the information and
amended information here did not have the approval of the
Ombudsman. However, we do not believe that such
approval was necessary at all. In Deloso v. Domingo, 191
SCRA 545 (1990), the Court held that the Ombudsman has
authority to investigate charges of illegal acts or omissions
on the part of any public official, i.e., any crime imputed to a
public official. It must, however, be pointed out that
the authority of the Ombudsman to investigate "any
[illegal] act or omission of any public official" (191
SCRA 550) is not an exclusive authority but rather a
shared or concurrent authority in respect of the
offense charged, i.e., the crime of sedition. Thus, the noninvolvement of the office of the Ombudsman in the present
case does not have any adverse legal consequence upon
the authority of the panel of prosecutors to file and
prosecute the information or amended information.
In fact, other investigatory agencies of the
government such as the Department of Justice in
connection with the charge of sedition, and the
Presidential Commission on Good Government, in ill
gotten wealth cases, may conduct the
investigation.9 (Emphasis supplied)
In Natividad vs. Felix,10 a 1994 case, where the petitioner municipal
mayor contended that it is the Ombudsman and not the provincial
fiscal who has the authority to conduct a preliminary investigation
over his case for alleged Murder, the Court held:
The Deloso case has already been re-examined in two cases,
namely Aguinaldo vs. Domagas and Sanchez vs. Demetriou.
However, by way of amplification, we feel the need for
tracing the history of the legislation relative to the
jurisdiction of Sandiganbayan since the Ombudsman's

primary jurisdiction is dependent on the cases cognizable by

the former.
In the process, we shall observe how the policy of the law,
with reference to the subject matter, has been in a state of
flux.
These laws, in chronological order, are the following: (a)
Pres. Decree No. 1486, -- the first law on the
Sandiganbayan; (b) Pres. Decree No. 1606 which expressly
repealed Pres. Decree No. 1486; (c) Section 20 of Batas
Pambansa Blg. 129; (d) Pres. Decree No. 1860; and (e) Pres.
Decree No. 1861.
The latest law on the Sandiganbayan, Sec. 1 of Pres. Decree
No. 1861 reads as follows:
"SECTION 1. Section 4 of Presidential Decree No.
1606 is hereby amended to read as follows:
'SEC. 4. Jurisdiction. The Sandiganbayan shall
exercise:
'(a) Exclusive original jurisdiction in all cases
involving:
...
(2) Other offenses or felonies committed by
public officers and employees in relation to
their office, including those employed in
government-owned or controlled corporation,
whether simple or complexed with other
crimes, where the penalty prescribed by law is
higher thatprision correccional or
imprisonment for six (6) years, or a fine
of P6,000: PROVIDED, HOWEVER, that
offenses or felonies mentioned in this
paragraph where the penalty prescribed by
law does not exceed prision correccional or
imprisonment for six (6) years or a fine
of P6,000 shall be tried by the proper Regional
Trial Court, Metropolitan Trial Court, Municipal
Trial Court and Municipal Circuit Trial Court."
A perusal of the aforecited law shows that two requirements
must concur under Sec. 4 (a) (2) for an offense to fall under
the Sandiganbayan's jurisdiction, namely: the offense
committed by the public officer must be in relation to his
office and the penalty prescribed be higher then prision
correccional or imprisonment for six (6) years, or a fine
of P6,000.00.11

Applying the law to the case at bench, we find that although

the second requirement has been met, the first requirement
is wanting. A review of these Presidential Decrees, except
Batas Pambansa Blg. 129, would reveal that the crime
committed by public officers or employees must be "in
relation to their office" if it is to fall within the jurisdiction of
the Sandiganbayan. This phrase which is traceable to Pres.
Decree No. 1468, has been retained by Pres. Decree No.
1861 as a requirement before the Ombudsman can acquire
primary jurisdiction on its power to investigate.
It cannot be denied that Pres. Decree No. 1861 is
in pari materia to Article XI, Sections 12 and 13 of the
1987 Constitution and the Ombudsman Act of 1989
because, as earlier mentioned, the Ombudsman's
power to investigate is dependent on the cases
cognizable by the Sandiganbayan. Statutes are
in pari materia when they relate to the same person
or thing or to the same class of persons or things, or
object, or cover the same specific or particular
subject matter.
It is axiomatic in statutory construction that a statute
must be interpreted, not only to be consistent with
itself, but also to harmonize with other laws on the
same subject matter, as to form a complete, coherent
and intelligible system. The rule is expressed in the
maxim, "interpretare et concordare legibus est
optimus interpretandi," or every statute must be so
construed and harmonized with other statutes as to
form a uniform system of jurisprudence. Thus, in the
application and interpretation of Article XI, Sections
12 and 13 of the 1987 Constitution and the
Ombudsman Act of 1989, Pres. Decree No. 1861 must
be taken into consideration. It must be assumed that
when the 1987 Constitution was written, its framers
had in mind previous statutes relating to the same
subject matter. In the absence of any express repeal
or amendment, the 1987 Constitution and the
Ombudsman Act of 1989 are deemed in accord with
existing statute, specifically, Pres. Decree No.
1861.12 (Emphasis supplied)
R.A. No. 8249 which amended Section 4, paragraph (b) of the
Sandiganbayan Law (P.D. 1861) likewise provides that for other
offenses, aside from those enumerated under paragraphs (a) and
(c), to fall under the exclusive jurisdiction of the Sandiganbayan,

they must have been committed by public officers or employees in

relation to their office.
In summation, the Constitution, Section 15 of the Ombudsman Act
of 1989 and Section 4 of the Sandiganbayan Law, as amended, do
not give to the Ombudsman exclusive jurisdiction to investigate
offenses committed by public officers or employees. The authority
of the Ombudsman to investigate offenses involving public officers
or employees is concurrent with other government investigating
agencies such as provincial, city and state prosecutors. However,
the Ombudsman, in the exercise of its primary jurisdiction over
cases cognizable by the Sandiganbayan, may take over, at any
stage, from any investigating agency of the government, the
investigation of such cases.
In other words, respondent DOJ Panel is not precluded from
conducting any investigation of cases against public officers
involving violations of penal laws but if the cases fall under the
exclusive jurisdiction of the Sandiganbayan, then respondent
Ombudsman may, in the exercise of its primary jurisdiction take
over at any stage.
Thus, with the jurisprudential declarations that the Ombudsman
and the DOJ have concurrent jurisdiction to conduct preliminary
investigation, the respective heads of said offices came up with
OMB-DOJ Joint Circular No. 95-001 for the proper guidelines of their
respective prosecutors in the conduct of their investigations, to wit:
OMB-DOJ JOINT CIRCULAR NO. 95-001
Series of 1995
TO: ALL GRAFT INVESTIGATION/SPECIAL PROSECUTION
OFFICERS OF THE OFFICE OF THE OMBUDSMAN
ALL REGIONAL STATE PROSECUTORS AND THEIR
ASSISTANTS, PROVINCIAL/CITY PROSECUTORS AND THEIR
ASSISTANTS, STATE PROSECUTORS AND PROSECUTING
ATTORNEYS OF THE DEPARTMENT OF JUSTICE.
SUBJECT: HANDLING COMPLAINTS FILED AGAINST PUBLIC
OFFICERS AND EMPLOYEES, THE CONDUCT OF PRELIMINARY
INVESTIGATION, PREPARATION OF RESOLUTIONS AND
INFORMATIONS AND PROSECUTION OF CASES BY
PROVINCIAL AND CITY PROSECUTORS AND THEIR
ASSISTANTS.
x------------------------------------------------------------------------------------------------------x
In a recent dialogue between the OFFICE OF THE
OMBUDSMAN and the DEPARTMENT OF JUSTICE, discussion
centered around the latest pronouncement of the supreme
court on the extent to which the ombudsman may call upon

the government prosecutors for assistance in the

investigation and prosecution of criminal cases cognizable
by his office and the conditions under which he may do so.
Also discussed was Republic Act No. 7975 otherwise known
as "an act to strengthen the functional and structural
organization of the sandiganbayan, amending for the
purpose presidential decree no. 1606, as amended" and its
implications on the jurisdiction of the office of the
Ombudsman on criminal offenses committed by public
officers and employees.
Concerns were expressed on unnecessary delays that could
be caused by discussions on jurisdiction between the OFFICE
OF THE OMBUDSMAN and the department of justice, and by
procedural conflicts in the filing of complaints against public
officers and employees, the conduct of preliminary
investigations, the preparation of resolutions and
informations, and the prosecution of cases by provincial and
city prosecutors and their assistants as deputized
prosecutors of the ombudsman.
Recognizing the concerns, the office of the ombudsman and
the department of justice, in a series of consultations, have
agreed on the following guidelines to be observed in the
investigation and prosecution of cases against public officers
and employees:
1. Preliminary investigation and prosecution of offenses
committed by public officers and employees in relation to
office whether cognizable by the sandiganbayan or the
regular courts, and whether filed with the office of the
ombudsman or with the office of the provincial/city
prosecutor shall be under the control and supervision of the
office of the ombudsman.
2. Unless the Ombudsman under its Constitutional mandate
finds reason to believe otherwise, offenses not in relation to
office and cognizable by the regular courts shall be
investigated and prosecuted by the office of the
provincial/city prosecutor, which shall rule thereon with
finality.
3. Preparation of criminal information shall be the
responsibility of the investigating officer who conducted the
preliminary investigation. Resolutions recommending
prosecution together with the duly accomplished criminal
informations shall be forwarded to the appropriate
approving authority.

4. Considering that the office of the ombudsman has

jurisdiction over public officers and employees and for
effective monitoring of all investigations and prosecutions of
cases involving public officers and employees, the office of
the provincial/city prosecutor shall submit to the office of
the ombudsman a monthly list of complaints filed with their
respective offices against public officers and employees.
Manila, Philippines, October 5, 1995.
(signed)
TEOFISTO T. GUINGONA, JR.
Secretary
Department of Justice

(signed)
ANIANO A. DESIERTO
Ombudsman
Office of the Ombudsman

A close examination of the circular supports the view of the

respondent Ombudsman that it is just an internal agreement
between the Ombudsman and the DOJ.
Sections 2 and 4, Rule 112 of the Revised Rules on Criminal
Procedure on Preliminary Investigation, effective December 1,
2000, to wit:
SEC. 2. Officers authorized to conduct preliminary
investigationsThe following may conduct preliminary investigations:
(a) Provincial or City Prosecutors and their assistants;
(b) Judges of the Municipal Trial Courts and Municipal
Circuit Trial Courts;
(c) National and Regional State Prosecutors; and
(d) Other officers as may be authorized by law.
Their authority to conduct preliminary investigation
shall include all crimes cognizable by the proper
court in their respective territorial jurisdictions.
SEC. 4. Resolution of investigating prosecutor and its review.
- If the investigating prosecutor finds cause to hold the
respondent for trial, he shall prepare the resolution and
information, He shall certify under oath in the information
that he, or as shown by the record, an authorized officer,
has personally examined the complainant and his witnesses;
that there is reasonable ground to believe that a crime has
been committed and that the accused is probably guilty
thereof; that the accused was informed of the complaint and
of the evidence submitted against him; and that he was
given an opportunity to submit controverting evidence.
Otherwise, he shall recommend the dismissal of the
complaint.

Within five (5) days from his resolution, he shall forward the
record of the case to the provincial or city prosecutor or
chief state prosecutor, or to the Ombudsman or his
deputy in cases of offenses cognizable by the
Sandiganbayan in the exercise of its original
jurisdiction. They shall act on the resolution within ten (10)
days from their receipt thereof and shall immediately inform
the parties of such action.
No complaint or information may be filed or
dismissed by an investigating prosecutor without the
prior written authority or approval of the provincial
or city prosecutor or chief state prosecutor or the
Ombudsman or his deputy.
Where the investigating prosecutor recommends the
dismissal of the complaint but his recommendation is
disapproved by the provincial or city prosecutor or chief
state prosecutor or the Ombudsman or his deputy on the
ground that a probable cause exists, the latter may, by
himself file the information against the respondent, or direct
another assistant prosecutor or state prosecutor to do so
without conducting another preliminary investigation.
If upon petition by a proper party under such rules as the
Department of Justice may prescribe or motu proprio, the
Secretary of Justice reverses or modifies the resolution of
the provincial or city prosecutor or chief state prosecutor, he
shall direct the prosecutor concerned either to file the
corresponding information without conducting another
preliminary investigation, or to dismiss or move for dismissal
of the complaint or information with notice to the parties.
The same Rule shall apply in preliminary investigations
conducted by the officers of the Office of the Ombudsman.
(Emphasis supplied)
confirm the authority of the DOJ prosecutors to conduct preliminary
investigation of criminal complaints filed with them for offenses
cognizable by the proper court within their respective territorial
jurisdictions, including those offenses which come within the
original jurisdiction of the Sandiganbayan; but with the qualification
that in offenses falling within the original jurisdiction of the
Sandiganbayan, the prosecutor shall, after their
investigation, transmit the records and their resolutions to
the Ombudsman or his deputy for appropriate action. Also,
the prosecutor cannot dismiss the complaint without the prior
written authority of the Ombudsman or his deputy, nor can the
prosecutor file an Information with the Sandiganbayan without

being deputized by, and without prior written authority of the

Ombudsman or his deputy.
Next, petitioner contends that under OMB-Joint Circular No. 95-001,
there is no showing that the Office of the Ombudsman has
deputized the prosecutors of the DOJ to conduct the preliminary
investigation of the charge filed against him.
We find no merit in this argument. As we have lengthily discussed,
the Constitution, the Ombudsman Act of 1989, Administrative Order
No. 8 of the Office of the Ombudsman, the prevailing jurisprudence
and under the Revised Rules on Criminal Procedure, all recognize
and uphold the concurrent jurisdiction of the Ombudsman and the
DOJ to conduct preliminary investigation on charges filed against
public officers and employees.
To reiterate for emphasis, the power to investigate or conduct
preliminary investigation on charges against any public officers or
employees may be exercised by an investigator or by any
provincial or city prosecutor or their assistants, either in their
regular capacities or as deputized Ombudsman prosecutors. The
fact that all prosecutors are in effect deputized Ombudsman
prosecutors under the OMB-DOJ Circular is a mere superfluity. The
DOJ Panel need not be authorized nor deputized by the
Ombudsman to conduct the preliminary investigation for
complaints filed with it because the DOJ's authority to act as the
principal law agency of the government and investigate the
commission of crimes under the Revised Penal Code is derived from
the Revised Administrative Code which had been held in
the Natividad case13 as not being contrary to the Constitution. Thus,
there is not even a need to delegate the conduct of the preliminary
investigation to an agency which has the jurisdiction to do so in the
first place. However, the Ombudsman may assert its primary
jurisdiction at any stage of the investigation.
Petitioner's contention that OMB-DOJ Joint Circular No. 95-001 is
ineffective on the ground that it was not published is not plausible.
We agree with and adopt the Ombudsman's dissertation on the
matter, to wit:
Petitioner appears to be of the belief, although NOT founded
on a proper reading and application of jurisprudence, that
OMB-DOJ Joint Circular No. 95-001, an internal arrangement
between the DOJ and the Office of the Ombudsman, has to
be published.
As early as 1954, the Honorable Court has already laid down
the rule in the case of People vs. Que Po Lay, 94 Phil. 640
(1954) that only circulars and regulations which prescribe a
penalty for its violation should be published before

10

becoming effective, this, on the general principle and theory

that before the public is bound by its contents, especially its
penal provision, a law, regulation or circular must first be
published and the people officially and specifically informed
of said contents and its penalties: said precedent, to date,
has not yet been modified or reversed. OMB-DOJ Joint
Circular No. 95-001 DOES NOT contain any penal provision
or prescribe a mandatory act or prohibit any, under pain or
penalty.
What is more, in the case of Tanada v. Tuvera, 146 SCRA 453
(1986), the Honorable Court ruled that:
Interpretative regulations and those merely internal in
nature, that is, regulating only the personnel of the
administrative agency and not the public, need not be
published. Neither is publication required of the so-called
letters of instructions issued by administrative superiors
concerning the rules or guidelines to be followed by their
subordinates in the performance of their duties. (at page
454. emphasis supplied)
OMB-DOJ Joint Circular No. 95-001 is merely an internal
circular between the DOJ and the Office of the Ombudsman,
outlining authority and responsibilities among prosecutors of
the DOJ and of the Office of the Ombudsman in the conduct
of preliminary investigation. OMB-DOJ Joint Circular No. 95001 DOES NOT regulate the conduct of persons or the
public, in general.
Accordingly, there is no merit to petitioner's submission that
OMB-DOJ Joint Circular No. 95-001 has to be published. 14
Petitioner insists that the Ombudsman has jurisdiction to conduct
the preliminary investigation because petitioner is a public officer
with salary Grade 31 so that the case against him falls exclusively
within the jurisdiction of the Sandiganbayan. Considering the
Court's finding that the DOJ has concurrent jurisdiction to
investigate charges against public officers, the fact that petitioner
holds a Salary Grade 31 position does not by itself remove from the
DOJ Panel the authority to investigate the charge of coup
d'etat against him.
The question whether or not the offense allegedly committed by
petitioner is one of those enumerated in the Sandiganbayan Law
that fall within the exclusive jurisdiction of the Sandiganbayan will
not be resolved in the present petition so as not to pre-empt the
result of the investigation being conducted by the DOJ Panel as to
the questions whether or not probable cause exists to warrant the
filing of the information against the petitioner; and to which court

should the information be filed considering the presence of other

respondents in the subject complaint.
WHEREFORE, the petition for certiorari is DISMISSED for lack of
merit.
Gatbonton v. NLRC and Mapua
G.R. NO. 146779

January 23, 2006

Lessons Applicable: Publication must be in full, Preventive

suspension, damages
Laws Applicable: Art. 2 Civil Code, Section 8, Rule XXIII, Book V of
the Omnibus Rules Implementing the Labor Code
FACTS:

November 1998: A civil engineering student of respondent

Mapua Institute of Technology (MIT) filed a letter-complaint against
Renato S. Gatbonton, an associate professor of the Faculty of Civil
Engineering for unfair/unjust grading system, sexual harassment
and conduct unbecoming of an academician.

Pending investigating, MIT, through its committee on Decorum

and Investigation placed him under a 30-day preventive suspension
effective January 11, 1999.
o The committee believed that his continued stay during the
investigation will affect his performance as a faculty member, as
well as the students learning and that the suspension will allow
petitioner to prepare himself for the investigation and will prevent
his influence to other members of the community.

He filed a complaint with the NLRC for illegal suspension,

damages and attorneys fees

He questioned the validity of the administrative proceedings

with the RTC in a petition for certiorari but was terminated
since MIT agreed to publish in the school organ the rules and
regulations implementing Republic Act No. 7877 (R.A. No. 7877)
and disregard the previous administrative proceedings

Labor Arbiter: 30-day preventive suspension is illegal

and directed MIT to pay his wages during the said period

NLRC: set aside the Labor Arbiters decision

CA on special civil action for certiorari: affirming the NLRC

11

Issues:
1.

Whether Mapuas Rules and Regulations is effective as of

January 11, 1999 when it was published only on February 23,
1999 (persons)
2.
W/N there is a valid justification for the 30-day preventive
suspension under the Labor Code (labor)
3.
Whether damages should be awarded

Held: Petition is partially granted. CA, NLRC set aside and Labors
Arbiter reinstated
1.

NO
R.A. No. 7877 imposed the duty on educational or training
institutions to "promulgate rules and regulations in consultation
with and jointly approved by the employees or students or trainees,
through their duly designated representatives, prescribing the
procedures for the investigation of sexual harassment cases and
the administrative sanctions therefor

Taada vs. Tuvera:

o all statutes, including those of local application and private laws
shall be published as a condition for their effectivity is fixed by the
legislative.(especially penal laws)
o Covered by this rule are presidential decrees and executive orders
promulgated by the President in the exercise of legislative powers
whenever the same are validly delegated by the legislature or, at
present, directly conferred by the Constitution. Administrative rules
and regulations must also be published if their purpose is to
enforce or implement existing law pursuant also to a valid
delegation.

publication must be in full or it is no publication at all since its

purpose is to inform the public of the contents of the laws

Mapua Rules is one of those issuances that should be published

for its effectivity, since its purpose is to enforce and implement R.A.
No. 7877, which is a law of general application
o Mapua Rules Section 3 Rule IV (Administrative Provisions) states
that it shall take effect 15 days after publication by the committee.

2.

NO.
Preventive suspension is a disciplinary measure for the
protection of the companys property pending investigation of any
alleged malfeasance or misfeasance committed by the employee.
The employer may place the worker concerned under preventive
suspension if his continued employment poses a serious and
imminent threat to the life or property of the employer or of his coworkers. However, when it is determined that there is no sufficient
basis to justify an employees preventive suspension, the latter is
entitled to the payment of salaries during the time of preventive
suspension

Section 8, Rule XXIII, Book V of the Ominibus Rules, there is no

valid justification
o does not show that evidence of petitioners guilt is strong and that
the school head is morally convinced that petitioners continued
stay during the period of investigation constitutes a distraction to
the normal operations of the institution; or that petitioner poses a
risk or danger to the life or property of the other members of the
educational community
3.

No.
While petitioners preventive suspension may have been
unjustified, this does not automatically mean that he is entitled to
moral or other damages
o No showing of bad faith or in a wanton or fraudulent manner in
preventively suspending petitioner
Marcos v. Judge Fernando Vil. Pamintuan
A.M. RTJ-07-2062, Jan 18, 2011
Lessons Applicable: Ignorance of the Law

12

FACTS:
Judge Reyes in an order on May 30, 1996 dismissed Civil Case
No. 3383-R due to forum shopping and ordered that that the
Buddha statuette in the custody of this Court be immediately
released to the children of the late Rogelio Roxas in trust for the
estate of the late Rogelio Roxas
RTC: Denied the separate motions for reconsideration by the
parties

o
o

o
o

Judge Pamintuan in an order dated May 9, 2006 set the case for
hearing on June 29, 2006 purportedly to formally and finally release
the Golden Buddha to its rightful owner.
Marcos was one of the subpoenaed parties, being a person with
interest in the case
Buddha Statuette or Buddha replica is awarded to the estate of
Rogelio Roxas. However, the Buddha Statuette or Buddha replica
shall be under custodia legis until the final settlement of the estate
of the late Rogelio Roxas, or upon the appointment of his estates
administrator
Also ruled that the Golden Buddha in its custody is a fake one
November 15, 2006: Marcos filed a complaint-affidavit charging
Judge Pamintuan with Gross Ignorance of the Law for reversing
motu proprio the final and executory order of then Acting Presiding
Judge Antonio Reyes in Civil Case No. 3383-R, entitled Albert D.
Umali, in his capacity as the exclusive administrator and as
President of the Treasure Hunters Association of the Philippines v.
Jose D. Roxas, et al.
Pamintuan Commented that Marcos should have filed a motion for
reconsideration instead of filing an administrative complaint.
Marcos, in her Reply-Affidavit, cited Section 1 of Rule 37 which
provides that only the aggrieved party may file a motion for
reconsideration within the period for taking an appeal
Office of the Court Administrator (OCA) recommended that Judge
Pamintuan be dismissed from the service with the additional
penalty of forfeiture of all his retirement benefits and
disqualification from re-employment in the government service,
including government owned or controlled corporations, for Gross
Ignorance of the Law and for violation of Canon 4 of the Code of
Judicial Conduct.
A final judgment may no longer be modified in any respect, even if
the modification is meant to correct erroneous conclusions of fact
or law. Should judgment of lower courts which may normally be
subject to review by higher tribunals become final and executory
before, or without exhaustion of all recourse of appeal, they too
become inviolable, impervious to modification.
Judge Pamintuan was placed under preventive suspension
pending resolution of the administrative case to stop him from
committing further damage to the judiciary.

Judge Pamintuan moved for reconsideration and eventually filed

a Motion for Early Resolution of Motion for Reconsideration and to
Submit the Case for Decision.
Judge Pamintuan then sent a letter requesting for his backpay
and benefits covering the period of his preventive suspension denied for being premature and for lack of merit
ISSUE: W/N Judge Pamintuan is guilty of Gross Ignorance of the Law

HELD: Judge Fernando Vil Pamintuan of the RTC of Baguio City,

Branch 3, is DISMISSED from the service
Judge Pamintuan should have realized that the trial court did not
rule on that point that the Golden Buddha is fake in its May 30,
1996 Order (even in its September 2, 1996 Order)
Section 6, Canon 4 of the New Code of Judicial Conduct:
SECTION 6. Judges, like any other citizen, are entitled to freedom
of expression, belief, association and assembly, but in exercising
such rights, they shall always conduct themselves in such manner
as to preserve the dignity of the judicial office and the impartiality
and independence of the judiciary.
The doctrine of immutability and inalterability of a final
judgment has a two-fold purpose, to wit:
1. to avoid delay in the administration of justice and thus,
procedurally, to make orderly the discharge of judicial
business
2. to put an end to judicial controversies, at the risk of
occasional errors, which is precisely why courts exist.
Notably, this is NOT Judge Pamintuans first and sole
administrative case. Judge Pamintuan was charged with Gross
Ignorance of the Law, Gross Violation of the Constitutional Rights of
the Accused, Arrogance and Violation of the Canons of Judicial
Ethics and was suspended for 1 year. Having been previously
warned and punished for various infractions, Judge Pamintuan now
deserves the ultimate administrative penalty dismissal from
service

People of the Philippines vs. Quiachon, G.R. No. 170236 ,

August 31, 2006

13

Facts: Appellant Roberto Quiachon was charged with the crime of

qualified rape. On or about May 12, 2001, the accused, by means of
force and intimidation had sexual intercourse with one Rowena
Quiachon, his daughter, 8 years old, a deaf-mute minor. Rowel
recounted that on the night of May 12, 2001, Rowel saw his father
on top of his sister Rowena and they were covered by a blanket or
"kumot." His father's buttocks were moving up and down, and
Rowel could hear Rowena crying. He could not do anything because
he was afraid of their father. Rowel remained in the room but the
following morning, he told his aunt, Carmelita Mateo about what he
had witnessed. Together, Carmelita and Rowel went to the police to
report
what
had
transpired.

effectinsofar as they favor the persons guilty of a felony, who is not

ahabitual criminal, as this term is defined in Rule 5 of Article 62 of
this Code, although at the time of the publication of such laws, a
final sentence has been pronounced and the convict is serving the
same.
However, appellant is not eligible for parole because Section 3 of
R.A. No. 9346 provides that "persons convicted of offenses
punished with reclusion perpetua, or whose sentences will be
reduced to reclusion perpetua by reason of the law, shall not be
eligible for parole."

The Regional Trial Court found the appellant guilty beyond

reasonable doubt of the crime of qualified rape defined and
penalized under Articles 266-A and B of the Revised Penal Code.
The court imposed death penalty against the accused. The defense
argued that the benefits of RA 9346 should be extended to the
accused.

JARILLO vs. PEOPLE

This resolves the Petition for Review on Certiorari under Rule 45 of

the Rules of Court, praying that the Decision [1] of the Court of
Appeals (CA), dated July 21, 2003, and its Resolution [2] dated July 8,
2004, be reversed and set aside.

Issue: Whether the appellant can benefit from R.A. 9346 which
abolished
the
death
penalty
law.
Held: Yes. In view of the enactment of Republic Act (R.A.) No. 9346
on June 24, 2006 prohibiting the imposition of the death penalty,
the penalty to be meted on appellant is reclusion perpetua in
accordance
with
Section
2
thereof
which
reads:

On May 31, 2000, petitioner was charged with Bigamy before the
Regional Trial Court (RTC) of Pasay City, Branch 117 under the
following Information in Criminal Case No. 00-08-11:
INFORMATION

SECTION 2. In lieu of the death penalty, the following shall be

imposed:

The undersigned Assistant City Prosecutor

accuses VICTORIA S. JARILLO of the crime of BIGAMY,
committed as follows:

the penalty of reclusion perpetua, when the law violated makes use
of the nomenclature of the penalties of the Revised Penal Code; or
(b) the penalty of life imprisonment, when the law violated does not
make use of the nomenclature of the penalties of the Revised Penal
Code.

That on or about the 26th day of November

1979, in Pasay City, Metro Manila, Philippines and
within the jurisdiction of this Honorable Court, the
above-named accused, Victoria S. Jarillo, being
previously united in lawful marriage with Rafael M.
Alocillo, and without the said marriage having been
legally dissolved, did then and there willfully,
unlawfully and feloniously contract a second

The aforequoted provision of R.A. No. 9346 is applicable in this case

pursuant to the principle in criminal law, favorabilia sunt amplianda
adiosa restrigenda. Penal laws which are favorable to accused are
given retroactive effect. This principle is embodied under Article 22
of the Revised Penal Code, which provides as follows: Retroactive
effect of penal laws. Penal laws shall have a retroactive

14

marriage with Emmanuel Ebora Santos Uy which

marriage was only discovered on January 12, 1999.

In 1999, Emmanuel Uy filed against the appellant

Civil Case No. 99-93582 for annulment of marriage
before the Regional Trial Court of Manila.

Contrary to law.
Thereafter, appellant Jarillo was charged with bigamy
before the Regional Trial Court of Pasay City x x x.
On July 14, 2000, petitioner pleaded not guilty during
arraignment and, thereafter, trial proceeded.

xxxx
Parenthetically, accused-appellant filed against
Alocillo, on October 5, 2000, before the Regional Trial
Court
of
Makati,
Civil
Case
No.
00-1217,
for declaration of nullity of their marriage.

The undisputed facts, as accurately summarized by the CA, are as

follows.
On May 24, 1974, Victoria Jarillo and Rafael Alocillo
were married in a civil wedding ceremony solemnized
by Hon. Monico C. Tanyag, then Municipal Mayor of
Taguig, Rizal (Exhs. A, A-1, H, H-1, H-2, O, O-1, pp.
20-21, TSN dated November 17, 2000).

On July 9, 2001, the court a quo promulgated

the assailed decision, the dispositive portion of which
states:
WHEREFORE,
upon
the
foregoing premises, this court hereby
finds
accused
Victoria
Soriano
Jarillo GUILTY beyond reasonable doubt
of the crime of BIGAMY.
Accordingly, said accused is
hereby
sentenced
to
suffer
an
indeterminate
penalty
of SIX
(6)
YEARS of
prision
correccional,
as
minimum, to TEN
(10)
YEARS of
prision mayor, as maximum.

On May 4, 1975, Victoria Jarillo and Rafael Alocillo

again celebrated marriage in a church wedding
ceremony before Rev. Angel Resultay in San
Carlos City, Pangasinan (pp. 25-26, TSN dated
November 17, 2000). Out of the marital union,
appellant begot a daughter, Rachelle J. Alocillo on
October 29, 1975 (Exhs. F, R, R-1).
Appellant Victoria Jarillo thereafter contracted a
subsequent marriage with Emmanuel Ebora Santos
Uy, at the City Court of Pasay City, Branch 1, before
then Hon. Judge Nicanor Cruz on November 26, 1979
(Exhs. D, J, J-1, Q, Q-1, pp. 15-18, TSN dated
November 22, 2000).

This
court
makes
no
pronouncement on the civil aspect of
this case, such as the nullity of
accuseds bigamous marriage to Uy and
its effect on their children and their
property. This
aspect
is
being
determined by the Regional Trial Court
of Manila in Civil Case No. 99-93582.

On April 16, 1995, appellant and Emmanuel Uy

exchanged marital vows anew in a church wedding
in Manila (Exh. E).

15

Costs against the accused.

consequences, among which is incurring criminal liability for

bigamy.[5]

The motion for reconsideration was likewise

denied by the same court in that assailed Order dated
2 August 2001.[3]

Hence, the present petition for review on certiorari under

Rule 45 of the Rules of Court where petitioner alleges that:

For her defense, petitioner insisted that (1) her 1974 and
1975 marriages to Alocillo were null and void because Alocillo was
allegedly still married to a certain Loretta Tillman at the time of the
celebration of their marriage; (2) her marriages to both Alocillo and
Uy were null and void for lack of a valid marriage license; and (3)
the action had prescribed, since Uy knew about her marriage to
Alocillo as far back as 1978.
On appeal to the CA, petitioners conviction was affirmed in
toto. In its Decision dated July 21, 2003, the CA held that petitioner
committed bigamy when she contracted marriage with Emmanuel
Santos Uy because, at that time, her marriage to Rafael Alocillo had
not yet been declared null and void by the court. This being so, the
presumption is, her previous marriage to Alocillo was still existing
at the time of her marriage to Uy. The CA also struck down, for lack
of sufficient evidence, petitioners contentions that her marriages
were celebrated without a marriage license, and that Uy had notice
of her previous marriage as far back as 1978.
In the meantime, the RTC of Makati City, Branch 140,
rendered a Decision dated March 28, 2003, declaring petitioners
1974 and 1975 marriages to Alocillo null and void ab initio on the
ground of Alocillos psychological incapacity. Said decision became
final and executory on July 9, 2003. In her motion for
reconsideration, petitioner invoked said declaration of nullity as a
ground for the reversal of her conviction. However, in its Resolution
dated July 8, 2004, the CA, citing Tenebro v. Court of Appeals,
[4]
denied reconsideration and ruled that [t]he subsequent
declaration of nullity of her first marriage on the ground of
psychological incapacity, while it retroacts to the date of the
celebration of the marriage insofar as the vinculum between the
spouses is concerned, the said marriage is not without legal

V.1. THE COURT OF APPEALS COMMITTED

REVERSIBLE ERROR IN PROCEEDING WITH THE CASE
DESPITE THE PENDENCY OF A CASE WHICH IS
PREJUDICIAL TO THE OUTCOME OF THIS CASE.
V.2. THE COURT OF APPEALS COMMITTED
REVERSIBLE ERROR IN AFFIRMING THE CONVICTION
OF PETITIONER FOR THE CRIME OF BIGAMY DESPITE
THE SUPERVENING PROOF THAT THE FIRST TWO
MARRIAGES OF PETITIONER TO ALOCILLO HAD BEEN
DECLARED BY FINAL JUDGMENT NULL AND VOID AB
INITIO.
V.3. THE COURT OF APPEALS COMMITTED
REVERSIBLE ERROR IN NOT CONSIDERING THAT
THERE IS A PENDING ANNULMENT OF MARRIAGE AT
THE REGIONAL TRIAL COURT BRANCH 38 BETWEEN
EMMANUEL SANTOS AND VICTORIA S. JARILLO.
V.4. THE COURT OF APPEALS COMMITTED
REVERSIBLE ERROR IN NOT CONSIDERING THAT THE
INSTANT CASE OF BIGAMY HAD ALREADY PRESCRIBED.
V.5. THE COURT OF APPEALS COMMITTED
REVERSIBLE ERROR IN NOT CONSIDERING THAT THE
MARRIAGE
OF
VICTORIA
JARILLO
AND
EMMANUEL SANTOS UY HAS NO VALID MARRIAGE
LICENSE.
V.6. THE COURT OF APPEALS COMMITTED
REVERSIBLE ERROR IN NOT ACQUITTING THE
PETITIONER BUT IMPOSED AN ERRONEOUS PENALTY

16

UNDER THE REVISED PENAL

INDETERMINATE SENTENCE LAW.

CODE

AND

THE

determination of the criminal charge. It

therefore, not a prejudicial question. x x x[7]

is,

The foregoing ruling had been reiterated in Abunado v. People,

[8]
where it was held thus:
The first, second, third and fifth issues, being closely related,
shall be discussed jointly. It is true that right after the presentation
of the prosecution evidence, petitioner moved for suspension of the
proceedings on the ground of the pendency of the petition for
declaration of nullity of petitioners marriages to Alocillo, which,
petitioner claimed involved a prejudicial question. In her appeal,
she also asserted that the petition for declaration of nullity of her
marriage to Uy, initiated by the latter, was a ground for suspension
of the proceedings. The RTC denied her motion for suspension,
while the CA struck down her arguments. In Marbella-Bobis v.
Bobis,[6] the Court categorically stated that:

The subsequent judicial declaration of the

nullity of the first marriage was immaterial
because prior to the declaration of nullity, the
crime had already been consummated. Moreover,
petitioners assertion would only delay the prosecution
of bigamy cases considering that an accused could
simply file a petition to declare his previous marriage
void and invoke the pendency of that action as a
prejudicial question in the criminal case. We cannot
allow that.
The outcome of the civil case for
annulment of petitioners marriage to [private
complainant]
had
no
bearing
upon
the
determination of petitioners innocence or guilt
in the criminal case for bigamy, because all that
is required for the charge of bigamy to prosper
is that the first marriage be subsisting at the
time the second marriage is contracted.
Thus, under the law, a marriage, even one
which is void or voidable, shall be deemed valid until
declared otherwise in a judicial proceeding. In this
case, even if petitioner eventually obtained a
declaration that his first marriage was void ab initio,
the point is, both the first and the second marriage
were subsisting before the first marriage was
annulled.[9]

x x x as ruled in Landicho v. Relova, he who contracts

a second marriage before the judicial declaration of
nullity of the first marriage assumes the risk of being
prosecuted for bigamy, and in such a case the
criminal case may not be suspended on the
ground of the pendency of a civil case for
declaration of nullity. x x x
xxxx
x x x The reason is that, without a judicial
declaration of its nullity, the first marriage is
presumed to be subsisting. In the case at bar,
respondent was for all legal intents and purposes
regarded as a married man at the time he contracted
his second marriage with petitioner. Against this legal
backdrop, any decision in the civil action for
nullity would not erase the fact that respondent
entered into a second marriage during the
subsistence of a first marriage. Thus, a decision
in the civil case is not essential to the

For the very same reasons elucidated in the above-quoted cases,

petitioners conviction of the crime of bigamy must be affirmed. The
subsequent judicial declaration of nullity of petitioners two
marriages to Alocillo cannot be considered a valid defense in the
crime of bigamy. The moment petitioner contracted a second

17

marriage without the previous one having been judicially declared

null and void, the crime of bigamy was already consummated
because at the time of the celebration of the second marriage,
petitioners marriage to Alocillo, which had not yet been declared
null and void by a court of competent jurisdiction, was deemed
valid and subsisting. Neither would a judicial declaration of the
nullity of petitioners marriage to Uy make any difference. [10] As held
in Tenebro, [s]ince a marriage contracted during the subsistence of
a valid marriage is automatically void, the nullity of this second
marriage is not per se an argument for the avoidance of criminal
liability for bigamy. x x x A plain reading of [Article 349 of the
Revised Penal Code], therefore, would indicate that the provision
penalizes the mere act of contracting a second or subsequent
marriage during the subsistence of a valid marriage.[11]

her allegation. Petitioners testimony that her own mother told Uy in

1978 that she (petitioner) is already married to Alocillo does not
inspire belief, as it is totally unsupported by any corroborating
evidence. The trial court correctly observed that:

x x x She did not call to the witness stand her mother

the person who allegedly actually told Uy about her
previous marriage to Alocillo. It must be obvious that
without the confirmatory testimony of her mother, the
attribution of the latter of any act which she allegedly
did is hearsay.[13]
As ruled in Sermonia v. Court of Appeals,[14] the prescriptive
period for the crime of bigamy should be counted only from the
day on which the said crime was discovered by the offended
party, the authorities or their [agents], as opposed to being
counted from the date of registration of the bigamous marriage.
[15]
Since petitioner failed to prove with certainty that the period of
prescription began to run as of 1978, her defense is, therefore,
ineffectual.

Petitioners defense of prescription is likewise doomed to fail.

Under Article 349 of the Revised Penal Code, bigamy is
punishable by prision mayor, which is classified under Article 25 of
said Code as an afflictive penalty. Article 90 thereof provides that
[c]rimes punishable by other afflictive penalties shall prescribe in
fifteen years, while Article 91 states that [t]he period of
prescription shall commence to run from the day on which the
crime is discovered by the offended party, the authorities, or their
agents x x x .

Finally, petitioner avers that the RTC and the CA imposed an

erroneous penalty under the Revised Penal Code. Again, petitioner
is mistaken.

Petitioner asserts that Uy had known of her previous

marriage as far back as 1978; hence, prescription began to run
from that time. Note that the party who raises a fact as a matter
of defense has the burden of proving it. The defendant or accused
is obliged to produce evidence in support of its defense; otherwise,
failing to establish the same, it remains self-serving. [12] Thus, for
petitioners defense of prescription to prosper, it was incumbent
upon her to adduce evidence that as early as the year 1978, Uy
already obtained knowledge of her previous marriage.

The Indeterminate Sentence Law provides that the accused

shall be sentenced to an indeterminate penalty, the maximum term
of which shall be that which, in view of the attending
circumstances, could be properly imposed under the Revised Penal
Code, and the minimum of which shall be within the range of the
penalty next lower than that prescribed by the Code for the
offense, without first considering any modifying circumstance
attendant to the commission of the crime. The Indeterminate
Sentence Law leaves it entirely within the sound discretion of the
court to determine the minimum penalty, as long as it is anywhere
within the range of the penalty next lower without any reference to

A close examination of the records of the case reveals that

petitioner utterly failed to present sufficient evidence to support

18

the periods into which it might be subdivided. The modifying

circumstances are considered only in the imposition of the
maximum term of the indeterminate sentence.[16]

ATTY. FERRER vs. SPS. DIAZ

The basic questions to be resolved in this case are: Is a waiver of
hereditary rights in favor of another executed by a future heir while the
parents are still living valid? Is an adverse claim annotated on the title of
a property on the basis of such waiver likewise valid and effective as to
bind the subsequent owners and hold them liable to the claimant?

Applying the foregoing rule, it is clear that the penalty

imposed on petitioner is proper. Under Article 349 of the Revised
Penal Code, the imposable penalty for bigamy is prision mayor. The
penalty next lower isprision correccional, which ranges from 6
months and 1 day to 6 years. The minimum penalty of six years
imposed by the trial court is, therefore, correct as it is still within
the duration of prision correccional. There being no mitigating or
aggravating circumstances proven in this case, the prescribed
penalty of prision mayor should be imposed in its medium period,
which is from 8 years and 1 day to 10 years. Again, the trial court
correctly imposed a maximum penalty of 10 years.
However, for humanitarian purposes, and considering that
petitioners marriage to Alocillo has after all been declared by final
judgment[17] to be void ab initio on account of the latters
psychological incapacity, by reason of which, petitioner was
subjected to manipulative abuse, the Court deems it proper to
reduce the penalty imposed by the lower courts. Thus, petitioner
should be sentenced to suffer an indeterminate penalty of
imprisonment from Two (2) years, Four (4) months and One (1) day
of prision correccional, as minimum, to 8 years and 1 day of prision
mayor, as maximum.

This Petition for Review on Certiorari[1] under Rule 45 of the Rules

of Court assails the December 12, 2003 Decision[2] of the Court of
Appeals (CA) in CA-G.R. CV No. 70888.[3] Said Decision modified the June
14, 2001Summary Judgment[4] of the Regional Trial Court (RTC)
of Quezon City in Civil Case No. Q-99-38876 by holding respondents
Spouses Bienvenido and Elizabeth Pangan (the Pangans) not solidarily
liable with the other respondents, Spouses Alfredo and Imelda Diaz (the
Diazes) and Reina Comandante (Comandante), to petitioner Atty. Pedro
M.
Ferrer
(Atty.
Ferrer). Likewise
assailed
is
the
CA
[5]
Resolution dated September 10, 2004 which denied petitioners as well
as respondents Spouses Diaz and Comandantes respective motions for
reconsideration.
The parties respective versions of the factual antecedents are as follows:

Version of the Petitioner

IN VIEW OF THE FOREGOING, the petition is PARTLY
GRANTED. The Decision of the Court of Appeals dated July 21,
2003,
and
its
Resolution
dated
July
8,
2004
are
hereby MODIFIED as to the penalty imposed, but AFFIRMED in all
other respects. Petitioner is sentenced to suffer an indeterminate
penalty of imprisonment from Two (2) years, Four (4) months and
One (1) day of prision correccional, as minimum, to Eight (8) years
and One (1) day of prision mayor, as maximum.

Petitioner Atty. Ferrer claimed in his original Complaint[6] that

on May 7, 1999, the Diazes, as represented by their daughter
Comandante, through a Special Power of Attorney (SPA),[7] obtained from
him a loan of P1,118,228.00.The loan was secured by a Real Estate
Mortgage Contract[8] by way of second mortgage over Transfer Certificate
of Title (TCT) No. RT-6604 [9] and a Promissory Note[10] payable within six
months or up to November 7, 1999.Comandante also issued to petitioner
postdated checks to secure payment of said loan.

SO ORDERED.

19

and which property is titled and registered in the name of

my parents Alfredo T. Diaz and Imelda G. Diaz, as
evidenced by Transfer Certificate of Title No. RT 6604
(82020) PR-18887.

Petitioner further claimed that prior to this or on May 29, 1998,

Comandante, for a valuable consideration of P600,000.00, which amount
formed part of the abovementioned secured loan, executed in his favor
an instrument entitled Waiver of Hereditary Rights and Interests Over a
Real Property (Still Undivided),[11] the pertinent portions of which read:

(sgd.)

I, REINA D. COMANDANTE, of legal age, Filipino,

married, with residence and postal address at No. 6, Road
20, Project 8, Quezon City, Metro Manila, Philippines, for a
valuable consideration of SIX HUNDRED THOUSAND
PESOS (P600,000.00) which constitutes my legal
obligation/loan to Pedro M. Ferrer, likewise of legal age,
Filipino, married to Erlinda B. Ferrer, with residence and
postal address at No. 9, Lot 4, Puerto Rico Street, Loyola
Grand Villas, Quezon City, Metro Manila, Philippines, by
virtue of these presents, do hereby WAIVE, and/or
REPUDIATE all my hereditary rights and interests as a
legitimate heir/daughter of Sps. Alfredo T. Diaz and
Imelda G. Diaz in favor of said Pedro M. Ferrer, his heirs
and assigns over a certain parcel of land together with all
the improvements found thereon and which property is
more particularly described as follows:

REINA D. COMANDANTE
Affiant

On the basis of said waiver, petitioner executed an Affidavit of

Adverse Claim[12] which he caused to be annotated at the back of TCT No.
RT-6604 on May 26, 1999.

The Diazes, however, reneged on their obligation as the checks

issued by Comandante were dishonored upon presentment. Despite
repeated demands, said respondents still failed and refused to settle the
loan. Thus, petitioner filed onSeptember 29, 1999 a Complaint[13] for
Collection of Sum of Money Secured by Real Estate Mortgage Contract
against the Diazes and Comandante docketed as Civil Case No. Q-9938876 and raffled to Branch 224 of RTC, Quezon City.

TRANSFER CERTIFICATE OF TITLE

NO. RT-6604 (82020) PR-18887

Petitioner twice amended his complaint. First, by including as an

alternative relief the Judicial Foreclosure of Mortgage[14] and, second, by
impleading as additional defendants the Pangans as the mortgaged
property covered by TCT No. RT-6604 was already transferred under their
names in TCT No. N-209049. Petitioner prayed in his second amended

xxxx

20

complaint that all the respondents be ordered to jointly and solidarily pay
him the sum of P1,118,228.00, exclusive of interests, and/or for the
judicial foreclosure of the property pursuant to the Real Estate Mortgage
Contract.

to be the total amount of Comandantes monetary obligation to him

exclusive of charges and interests. Comandante alleged that she
reminded petitioner that she was not the registered owner of the subject
property and that although her parents granted her SPA, same only
pertains to her authority to mortgage the property to banks and other
financial institutions and not to individuals. Petitioner nonetheless
assured Comandante that the SPA was also applicable to their
transaction. As Comandante was still hesitant, petitioner and his wife
threatened to foreclose the formers taxi units and present the postdated
checks she issued to the bank for payment. For fear of losing her taxi
units which were the only source of her livelihood, Comandante was thus
constrained to sign the mortgage agreement as well as the promissory
note. Petitioner, however, did not furnish her with copies of said
documents on the pretext that they still have to be notarized, but, as can
be gleaned from the records, the documents were never
notarized. Moreover, Comandante claimed that the SPA alluded to by
petitioner in his complaint was not the same SPA under which she
thought she derived the authority to execute the mortgage contract.

Version of the Respondents

In her Answer[15] to petitioners original complaint, Comandante

alleged that petitioner and his wife were her fellow members in the
Couples for Christ Movement. Sometime in 1998, she sought the help of
petitioner with regard to the mortgage with a bank of her parents lot
located at No. 6, Rd. 20, Project 8, Quezon City and covered by TCT No.
RT-6604. She also sought financial accommodations from the couple on
several occasions which totaled P500,000.00.Comandante, however,
claimed that these loans were secured by chattel mortgages over her
taxi units in addition to several postdated checks she issued in favor of
petitioner.

Comandante likewise alleged that on September 29, 1999 at

10:00 o clock in the morning, she executed an Affidavit of
Repudiation/Revocation of Waiver of Hereditary Rights and Interests Over
A (Still Undivided) Real Property,[16]which she caused to be annotated on
the title of the subject property with the Registry of Deeds of Quezon City
on the same day. Interestingly, petitioner filed his complaint later that
day too.

As she could not practically comply with her obligation, petitioner

and his wife, presented to Comandante sometime in May 1998 a
document denominated as Waiver of Hereditary Rights and Interests
Over a Real Property (Still Undivided) pertaining to a waiver of her
hereditary share over her parents abovementioned property. Purportedly,
the execution of said waiver was to secure Comandantes loan with the
couple which at that time had already ballooned toP600,000.00 due to
interests.

By way of special and affirmative defenses, Comandante

asserted in her Answer to the amended complaint[17] that said complaint
states no cause of action against her because the Real Estate Mortgage
Contract and the waiver referred to by petitioner in his complaint were
not duly, knowingly and validly executed by her; that the Waiver of
Hereditary Rights and Interests Over a Real Property (Still Undivided) is a
useless document as its execution is prohibited by Article 1347 of the
Civil Code,[18] hence, it cannot be the source of any right or obligation in
petitioners favor; that the Real Estate Mortgage was of doubtful validity

A year later, the couple again required Comandante to sign the

following documents: (1) a Real Estate Mortgage Contract over her
parents property; and, (2) an undated Promissory Note, both
corresponding to the amount ofP1,118,228.00, which petitioner claimed

21

as she executed the same without valid authority from her parents; and,
that the prayer for collection and/or judicial foreclosure was irregular as
petitioner cannot seek said remedies at the same time.

protesting. Soon thereafter, they were issued TCT No. N-209049 in lieu of
TCT No. RT-6604 which was cancelled. [22]

However, on December 21, 1999, they were surprised upon

being informed by petitioner that the subject land had been mortgaged
to him by the Diazes. Upon inquiry from Comandante, the latter readily
admitted that she has a personal loan with petitioner for which the
mortgage of the property in petitioners favor was executed. She
admitted, though, that her parents were not aware of such mortgage and
that they did not authorize her to enter into such contract.Comandante
also informed the Pangans that the signatures of her parents appearing
on the SPA are fictitious and that it was petitioner who prepared such
document.

Apart from executing the affidavit of repudiation, Comandante

also filed on October 4, 1999 a Petition for Cancellation of Adverse Claim
(P.E. 2468) Under The Memorandum of Encumbrances of TCT No. RT6604 (82020) PR-18887[19] docketed as LRC Case No. Q-12009 (99) and
raffled to Branch 220 of RTC, Quezon City. Petitioner who was impleaded
as respondent therein moved for the consolidation of said case[20] with
Civil Case No. Q-99-38876. OnJune 24, 2000, Branch 220 of RTC, Quezon
City ordered the consolidation of LRC Case No. Q-12009 (99) with Civil
Case No. Q-99-38876. Accordingly, the records of the former case was
forwarded to Branch 224.

As affirmative defense, the Pangans asserted that the annotation

of petitioners adverse claim on TCT No. RT-6604 cannot impair their
rights as new owners of the subject property. They claimed that the
Waiver of Hereditary Rights and Interests Over a Real Property (Still
Undivided) upon which petitioners adverse claim is anchored cannot be
the source of any right or interest over the property considering that it is
null and void under paragraph 2 of Article 1347 of the Civil Code.

For their part, the Diazes asserted that petitioner has no cause of
action against them. They claimed that they do not even know petitioner
and that they did not execute any SPA in favor of Comandante
authorizing her to mortgage for the second time the subject
property. They also contested the due execution of the SPA as it was
neither authenticated before the Philippine Consulate in the United
States nor notarized before a notary public in the State of New
York where the Diazes have been residing for 16 years. They claimed
that they do not owe petitioner anything. The Diazes also pointed out
that the complaint merely refers to Comandantes personal obligation to
petitioner with which they had nothing to do. They thus prayed that the
complaint against them be dismissed.[21]

Moreover, the Pangans asserted that the Real Estate Mortgage

Contract cannot bind them nor in any way impair their ownership of
subject property because it was not registered before the Register of
Deeds.[23]

At the Pangans end, they alleged that they acquired the subject
property by purchase in good faith and for a consideration
of P3,000,000.00 on November 11, 1999 from the Diazes through the
latters daughter Comandante who was clothed with SPA acknowledged
before the Consul of New York. The Pangans immediately took actual
possession of the property without anyone complaining or

All the respondents interposed their respective counterclaims and

prayed for moral and exemplary damages and attorneys fees in varying
amounts.

22

After the filing of the parties respective Oppositions to the said

motions for summary judgment, the trial court, in an Order dated May
31, 2001,[26] deemed both motions for summary judgment submitted for
resolution. Quoting substantially petitioners allegations in his Motion for
Summary Judgment, it thereafter rendered on June 14, 2001 a Summary
Judgment[27] in favor of petitioner, the dispositive portion of which reads:

After the parties have submitted their respective pre-trial briefs,

the Diazes filed on March 29, 2001 a Motion for Summary
Judgment[24] alleging that: first, since the documents alluded to by
petitioner in his complaint were defective, he was not entitled to any
legal right or relief; and, second, it was clear from the pleadings that it is
Comandante who has an outstanding obligation with petitioner which the
latter never denied. With these, the Diazes believed that there is no
genuine issue as to any material fact against them and, hence, they were
entitled to summary judgment.

WHEREFORE, premises considered, summary

judgment is hereby rendered in favor of plaintiff and
against defendants by:

On May 7, 2001, petitioner also filed a Motion for Summary

Judgment,[25] claiming that his suit against the respondents is meritorious
and well-founded and that same is documented and supported by law
and jurisprudence. He averred that his adverse claim annotated at the
back of TCT No. RT-6604, which was carried over in TCT No. 209049
under the names of the Pangans, is not merely anchored on the Waiver
of Hereditary Rights and Interests Over a Real Property (Still Undivided)
executed by Comandante, but also on the Real Estate Mortgage likewise
executed by her in representation of her parents and in favor of
petitioner. Petitioner insisted that said adverse claim is not frivolous and
invalid and is registrable under Section 70 of Presidential Decree (PD) No.
1529. In fact, the Registrar of Deeds of Quezon City had already
determined the sufficiency and/or validity of such registration by
annotating said claim, and this, respondents failed to question. Petitioner
further averred that even before the sale and transfer to the Pangans of
the subject property, the latter were already aware of the existence of his
adverse claim. In view of these, petitioner prayed that his Motion for
Summary Judgment be granted.

a)
ORDERING all defendants jointly and
solidarily to pay plaintiff the sum of ONE MILLION ONE
HUNDRED EIGHTEEN THOUSAND TWO HUNDRED
TWENTY EIGHT PESOS (P1,118,228.00) which is blood
money of plaintiff;

b)
ORDERING the Honorable Registrar of
Deeds of Quezon City that the rights and interest of the
plaintiff over subject property be annotated at the back of
T.C.T. No. N-209049;

c)
SENTENCING all defendants to pay
plaintiffs expenses of TEN THOUSAND PESOS
(P10,000.00) and to pay the costs of suit.

Ruling of the Regional Trial Court

IT IS SO ORDERED.[28]

23

Comandante. In the ultimate, the CA merely modified the assailed

Summary Judgment of the trial court by excluding the Pangans among
those solidarily liable to petitioner, in effect affirming in all other respects
the assailed summary judgment, viz:
The Pangans, the Diazes, and Comandante appealed to the CA. [29] The
Pangans faulted the trial court in holding them jointly and severally liable
with the Diazes and Comandante for the satisfaction of the latters
personal
obligation
to
petitioner
in
the
total
amount
of P1,118,228.00. The Diazes and Comandante, on the other hand,
imputed error upon the trial court in rendering summary judgment in
favor of petitioner. They averred that assuming the summary judgment
was proper, the trial court should not have considered the Real Estate
Mortgage Contract and the Promissory Note as they were defective, as
well as petitioners frivolous and non-registrable adverse claim.

WHEREFORE, foregoing premises considered, the

Decision of the Regional Trial Court of Quezon City,
Branch 224 in Civil Case No. Q-99-38876 is hereby
MODIFIED, as follows:

1. Ordering defendants-appellants Comandante and

Spouses Diaz to jointly and severally pay plaintiff the sum
of Php 1,118, 228.00; and

In its Decision[30] dated December 12, 2003, the CA declared

Comandantes waiver of hereditary rights null and void. However, it found
the Real Estate Mortgage executed by Comandante on behalf of her
parents as binding between the parties thereto.

2. Ordering defendants-appellants Comandante and

Spouses Diaz to jointly and severally pay plaintiff the
amount of Php10,000.00 plus cost of suit.

As regards the Pangans, the CA ruled that the mortgage contract was not
binding upon them as they were purchasers in good faith and for
value. The property was free from the mortgage encumbrance of
petitioner when they acquired it as they only came to know of the
adverse claim through petitioners phone call which came right after the
formers acquisition of the property. The CA further ruled that as
Comandantes waiver of hereditary rights and interests upon which
petitioners adverse claim was based is a nullity, it could not be a source
of any right in his favor. Hence, the Pangans were not bound to take
notice of such claim and are thus not liable to petitioner.

SO ORDERED.[31]

Petitioners Motion for Reconsideration[32] having been denied by

the CA in its Resolution[33] dated September 10, 2004, he now comes to
us through this petition for review on certiorari insisting that the Pangans
should, together with the other respondents, be held solidarily liable to
him for the amount of P1,118,228.00.

Noticeably, the appellate court did not rule on the propriety of the
issuance of the Summary Judgment as raised by the Diazes and

24

1. That I am the Recipient/Benefactor of

compulsory heirs share over an undivided certain
parcel of land together with all the improvements
found therein x x x as evidenced by Waiver of
Hereditary Rights and Interests Over A Real
Property, executed by REINA D. COMANDANTE (a
compulsory/legitimate heir of Sps. Alfredo T. Diaz
and Imelda G. Diaz), x x x.

Our Ruling

The petition lacks merit.

Petitioner merely reiterates his contentions in the Motion for

Summary Judgment he filed before the trial court. He insists that his
Adverse Claim annotated at the back of TCT No. RT-6604 is not merely
anchored on ComandantesWaiver of Hereditary Rights and Interests Over
A Real Property (Still Undivided) but also on her being the attorney-in-fact
of the Diazes when she executed the mortgage contract in favor of
petitioner. He avers that his adverse claim is not frivolous or invalid and is
registrable as the Registrar of Deeds of Quezon City even allowed its
annotation. He also claims that even prior to the sale of subject property
to the Pangans, the latter already knew of his valid and existing adverse
claim thereon and are, therefore, not purchasers in good faith. Thus,
petitioner maintains that the Pangans should be held, together with the
Diazes and Comandante, jointly and severally liable to him in the total
amount of P1,118,228.00.

2. That in order to protect my interest over

said property as a Recipient/Benefactor, for the
registered owners/parents might dispose (of) and/or
encumber the same in a fraudulent manner without my
knowledge and consent, for the owners duplicate title
was not surrendered to me, it is petitioned that this
Affidavit of Adverse Claim be ANNOTATED at the back of
the said title particularly on the original copy of Transfer
Certificate of Title No. RT-6604 (82020) PR-18887 which is
on file with the Register of Deeds of Quezon City.

3. That I am executing this Affidavit in order to

attest (to) the truth of the foregoing facts and to petition
the Honorable Registrar of Deeds, Quezon City, to
annotate this Affidavit of Adverse Claim at the back of the
said title particularly the original copy of Transfer
Certificate of Title No. RT-6604 (82020) PR-18887 which is
on file with the said office, so that my interest as
Recipient/Benefactor of the said property will be
protected especially the registered owner/parents, in a
fraudulent manner might dispose (of) and/or encumber
the same without my knowledge and consent. (Emphasis
ours)

Petitioners contentions are untenable.

The Affidavit of Adverse Claim executed by petitioner reads in
part:

xxxx

25

Clearly,
petitioners
based solely on the waiver
Comandante. This fact cannot
inscription of his adverse claim
follows:

Section 70. Adverse Claim. Whoever claims any

part or interest in registered land adverse to the
registered owner, arising subsequent to the date of the
original registration, may, if no other provision is made in
this Decree for registering the same, make a statement in
writing setting forth fully his alleged right or interest, and
how or under whom acquired, a reference to the number
of the certificate of title of the registered owner, the name
of the registered owner, and a description of the land in
which the right or interest is claimed.

Affidavit of Adverse
Claim was
of hereditary interest executed by
be any clearer especially so when the
at the back of TCT No. RT-6604 reads as

P.E. 2468/T-(82020)RT-6604 - - AFFIDAVIT OF

ADVERSE CLAIM - - Executed under oath by PEDRO M.
FERRER, married to Erlinda B. Ferrer, claiming among
others that they have a claim, the interest over
said property as Recipient/Benefactor, by virtue of
a waiver of Hereditary Rights and Interest over a
real property x x x[34] (Emphasis ours)

The statement shall be signed and sworn to, and

shall state the adverse claimants residence, and a place
at which all notices may be served upon him. This
statement shall be entitled to registration as an adverse
claim on the certificate of title. The adverse claim shall be
effective for a period of thirty days from the date of
registration. After the lapse of said period, the
annotation of adverse claim may be cancelled
upon filing of a verified petition therefor by the
party in interest: Provided, however, That after
cancellation, no second adverse claim based on the same
ground shall be registered by the same claimant.

Therefore, there is no basis for petitioners assertion that the adverse

claim was also anchored on the mortgage contract allegedly executed by
Comandante on behalf of her parents.

The questions next to be resolved are: Is Comandantes waiver of

hereditary rights valid? Is petitioners adverse claim based on such
waiver likewise valid and effective?

Before the lapse of thirty days aforesaid, any

party in interest may file a petition in the Court of
First Instance where the land is situated for the
cancellation of the adverse claim, and the court
shall grant a speedy hearing upon the question of
validity of such adverse claim, and shall render
judgment as may be just and equitable. If the
adverse claim is adjudged to be invalid, the

We note at the outset that the validity of petitioners adverse

claim should have been determined by the trial court after the petition
for cancellation of petitioners adverse claim filed by Comandante was
consolidated with Civil Case No. Q-99-38876.[35] This is in consonance
with Section 70 of PD 1529 which provides:

26

registration thereof shall be ordered cancelled. If,

in any case, the court, after notice and hearing, shall find
that the adverse claim thus registered was frivolous, it
may fine the claimant in an amount not less than one
thousand pesos nor more than five thousand pesos, in its
discretion. Before the lapse of thirty days, the claimant
may withdraw his adverse claim by filing with the
Register of Deeds a sworn petition to that effect.
(Emphasis ours)

a loan of P1,118,228.00 which is a blood money of the

plaintiff. Moreover, subject Adverse Claim in LRC
Case No. Q-12009 (99) is NOT frivolous and invalid
and consequently, REGISTRABLE by virtue of
Section 110 of the Land Registration Act (now
Section
70
of
Presidential
Decree
No.
1529). [37] (Emphasis ours)

Pursuant to the third paragraph of the afore-quoted provision, it

has been held that the validity or efficaciousness of an adverse claim
may only be determined by the Court upon petition by an interested
party, in which event, the Court shall order the immediate hearing
thereof and make the proper adjudication as justice and equity may
warrant. And, it is only when such claim is found unmeritorious that the
registration of the adverse claim may be cancelled.[36]

It does not escape our attention that the trial court merely echoed the
claim of petitioner that his adverse claim subject of LRC Case No. Q12009 (99) is not frivolous, invalid and is consequently registrable. We
likewise lament the apparent lack of effort on the part of said court to
make even a short ratiocination as to how it came up with said
conclusion. In fact, what followed the above-quoted portion of the
summary judgment are mere recitals of the arguments raised by
petitioner in his motion for summary judgment. And in the dispositive
portion, the trial court merely casually ordered that petitioners adverse
claim be inscribed at the back of the title of the Pangans. What is worse is
that despite this glaring defect, the CA manifestly overlooked the matter
even if respondents vigorously raised the same before it.

As correctly pointed out by respondents, the records is bereft of

any showing that the trial court conducted any hearing on the
matter. Instead, what the trial court did was to include this material issue
among those for which it has rendered its summary judgment as shown
by the following portion of the judgment:

Be that as it may, respondents efforts of pointing out this flaw,

which we find significant, have not gone to naught as will be hereinafter
discussed.

x x x it will be NOTED that subject Adverse Claim

annotated at the back of Transfer Certificate of Title No.
RT-6604 (82020) PR-18887, and carried over to
defendants-Sps. Pangans Title No. N-20909, is not merely
anchored on defendant Reina Comandantes Waiver of
Hereditary Rights and Interest Over a Real Property but
also on her being the Attorney-In-Fact of the previous
registered owners/parents/defendants Sps. Alfredo and
Imelda Diaz about the Real Estate Mortgage Contract for

All the respondents contend that the Waiver of Hereditary Rights and
Interest Over a Real Property (Still Undivided) executed by Comandante
is null and void for being violative of Article 1347 of the Civil Code, hence,
petitioners adverse claim which was based upon such waiver is likewise
void and cannot confer upon the latter any right or interest over the
property.

27

We agree with the respondents.

From the foregoing, it is clear that Comandante and petitioner

entered into a contract involving the formers future inheritance as
embodied in the Waiver of Hereditary Rights and Interest Over a Real
Property (Still Undivided) executed by her in petitioners favor.

Pursuant to the second paragraph of Article 1347 of the Civil Code, no

contract may be entered into upon a future inheritance except in cases
expressly authorized by law. For the inheritance to be considered future,
the succession must not have been opened at the time of the contract. A
contract may be classified as a contract upon future inheritance,
prohibited under the second paragraph of Article 1347, where the
following requisites concur:

(1)

In Taedo v. Court of Appeals,[39] we invalidated the contract of

sale between Lazaro Taedo and therein private respondents since the
subject matter thereof was a one hectare of whatever share the former
shall
have
over
Lot
191
of
the
cadastral
survey
of Gerona, Province of Tarlac and covered by Title T-13829 of the
Register of Deeds of Tarlac. It constitutes a part of Taedos future
inheritance from his parents, which cannot be the source of any right nor
the creator of any obligation between the parties.

That the succession has not yet been opened.

(2)

That the object of the contract forms part of the

inheritance; and,

(3)

That the promissor has, with respect to the

object, an expectancy of a right which is purely
hereditary in nature.[38]

Guided by the above discussions, we similarly declare in this case

that the Waiver of Hereditary Rights and Interest Over a Real Property
(Still Undivided) executed by Comandante in favor of petitioner as not
valid and that same cannot be the source of any right or create any
obligation between them for being violative of the second paragraph of
Article 1347 of the Civil Code.

Anent the validity and effectivity of petitioners adverse claim, it is

provided in Section 70 of PD 1529, that it is necessary that the claimant
has a right or interest in the registered land adverse to the registered
owner and that it must arise subsequent to registration. Here, as no right
or interest on the subject property flows from Comandantes invalid
waiver of hereditary rights upon petitioner, the latter is thus not entitled
to the registration of his adverse claim. Therefore, petitioners adverse
claim is without any basis and must consequently be adjudged invalid
and ineffective and perforce be cancelled.

In this case, there is no question that at the time of execution of

Comandantes Waiver of Hereditary Rights and Interest Over a Real
Property (Still Undivided), succession to either of her parents properties
has not yet been opened since both of them are still living. With respect
to the other two requisites, both are likewise present considering that the
property subject matter of Comandantes waiver concededly forms part
of the properties that she expect to inherit from her parents upon their
death and, such expectancy of a right, as shown by the facts, is
undoubtedly purely hereditary in nature.

28

Albeit we have already resolved the issues raised by petitioner, we shall

not stop here as the Diazes and Comandante in their Comment [40] call
our attention to the failure of the CA to pass upon the issue of the
propriety of the issuance by the trial court of the Summary Judgment in
favor of petitioner despite the fact that they have raised this issue before
the appellate court. They argue that summary judgment is proper only
when there is clearly no genuine issue as to any material fact in the
action. Thus, where the defendant presented defenses tendering factual
issue which call for presentation of evidence, as when he specifically
denies the material allegations in the complaint, summary judgment
cannot be rendered.

Rule 35 of the Rules of Court provides for summary judgment, the

pertinent provisions of which are the following:

Section 1. Summary Judgment for claimant. A

party seeking to recover upon a claim, counterclaim, or
cross-claim or to obtain a declaratory relief may, at any
time after the pleading in answer thereto has been
served, move with supporting affidavits, depositions or
admissions for a summary judgment in his favor upon all
or any part thereof.

The Diazes and Comandante then enumerate the genuine issues

in the case which they claim should have precluded the trial court from
issuing a summary judgment in petitioners favor. First, the execution of
the SPA in favor of Comandante referred to by petitioner in his complaint
was never admitted by the Diazes. They assert that as such fact is
disputed, trial should have been conducted to determine the truth of the
matter, same being a genuine issue. Despite this, the trial court merely
took the word of the plaintiff and assumed that said document was
indeed executed by them. Second, although Comandante acknowledges
that she has a personal obligation with petitioner, she nevertheless, did
not admit that it was in the amount of P1,118,228.00. Instead, she
claims only the amount of P500,000.00 or P600,000.00 (if inclusive of
interest) as her obligation. Moreover, the Diazes deny borrowing any
money from petitioner and neither did the Pangans owe him a single
centavo. Thus, the true amount of the obligation due the petitioner and
how each of the respondents are responsible for such amount are
genuine issues which need formal presentation of evidence. Lastly, they
aver that the trial court ignored factual and material issues such as the
lack of probative value of Comandantes waiver of hereditary rights as
well as of the SPA; the fact that Comandante signed the mortgage
contract and promissory note in her personal capacity; and, that all such
documents were prepared by petitioner who acted as a lawyer and the
creditor of Comandante at the same time.

Section 2. Summary Judgment for the defending

party. A party against whom a claim, counterclaim or
cross-claim is asserted or a declaratory relief is sought
may, at any time, move with supporting affidavits,
depositions or admissions for a summary judgment in his
favor as to all or any part thereof.

Section 3. Motion and proceedings thereon. The motion

shall be served at least ten (10) days before the time
specified for the hearing. The adverse party may serve
opposing affidavits, depositions, or admissions at least
three (3) days before the hearing. After the hearing, the
judgment sought shall be rendered forthwith if the
pleadings, supporting affidavits, depositions and
admissions on file, show that, except as to the amount of
damages, there is no genuine issue as to any material
fact and that the moving party is entitled to a judgment
as a matter of law.

29

As can be deduced from the above provisions, summary

judgment is a procedural devise resorted to in order to avoid long drawn
out litigations and useless delays. When the pleadings on file show that
there are no genuine issues of facts to be tried, the Rules of Court allows
a party to obtain immediate relief by way of summary judgment. That is,
when the facts are not in dispute, the court is allowed to decide the case
summarily by applying the law to the material facts. Conversely, where
the pleadings tender a genuine issue, summary judgment is not
proper. A genuine issue is such fact which requires the presentation of
evidence as distinguished from a sham, fictitious, contrived or false
claim.[41]

The Diazes, for their part, also denied that they executed the SPA
authorizing their daughter to mortgage their property to petitioner as
well as having any obligation to the latter.

Clearly, there are genuine issues in this case which require the
presentation of evidence. For one, it is necessary to ascertain in a full
blown trial the validity and due execution of the SPA, the Real Estate
Mortgage and the Promissory Notes because the determination of the
following equally significant questions depends on them, to wit: (1) Are
the Diazes obligated to petitioner or is the obligation a purely personal
obligation of Comandante? and, (2) Is the sum ofP1,118,228.00 as shown
in the Real Estate Mortgage and the Promissory Note, the amount which
is really due the petitioner?

Here, we find the existence of genuine issues which removes the

case from the coverage of summary judgment. The variance in the
allegations of the parties in their pleadings is evident.

Petitioner anchors his complaint for sum of money and/or judicial

foreclosure on the alleged real estate mortgage over the subject property
allegedly entered into by Comandante in behalf of her parents to secure
payment of a loan amounting to P1,118,228.00. To support this claim,
petitioner attached to his complaint (1) the SPA alleged to have been
executed by the Diazes; (2) the Real Estate Mortgage Contract pertaining
to the amount of P1,118,228.00; and, (3) a Promissory Note.

To stress, trial courts have limited authority to render summary

judgments and may do so only when there is clearly no genuine issue as
to any material fact. When the facts as pleaded by the parties are
disputed or contested, proceedings for summary judgment cannot take
the place of trial.[42] From the foregoing, it is apparent that the trial court
should have refrained from issuing the summary judgment but instead
proceeded to conduct a full blown trial of the case. In view of this, the
present case should be remanded to the trial court for further
proceedings and proper disposition according to the rudiments of a
regular trial on the merits and not through an abbreviated termination of
the case by summary judgment.

Comandante, in her Answer to petitioners Amended Complaint,

assailed the validity and due execution of the abovementioned
documents. She asserted that the same were not duly, knowingly and
validly executed by her and that it was petitioner who prepared all of
them. Also, although she admitted owing petitioner, same was not an
absolute admission as she limited herself to an obligation amounting only
to P600,000.00 inclusive of charges and interests. She likewise claimed
that such obligation is her personal obligation and not of her parents.

WHEREFORE, the petition is DENIED. The assailed Decision of the

Court of Appeals dated December 12, 2003 insofar as it excluded the
respondents Spouses Bienvenido Pangan and Elizabeth Pangan from
among those solidarily liable to petitioner Atty. Pedro M. Ferrer,
is AFFIRMED. The inscription of the adverse claim of petitioner Atty.

30

Pedro
M.
Ferrer
on
T.C.T.
No.
N-209049
is
hereby
ordered CANCELLED. Insofar as its other aspects are concerned, the
assailed Decision is SET ASIDE and VACATED. The case

is REMANDED to the Regional Trial Court of Quezon City, Branch 224 for
further proceedings in accordance with this Decision.

31