G.R. No.

159747

April 13, 2004

GREGORIO B. HONASAN II, petitioner,

vs.
THE PANEL OF INVESTIGATING PROSECUTORS OF THE DEPARTMENT OF JUSTICE (LEO
DACERA, SUSAN F. DACANAY, EDNA A. VALENZUELA AND SEBASTIAN F. CAPONONG, JR.),
CIDG-PNP- P/DIRECTOR EDUARDO MATILLANO, and HON. OMBUDSMAN SIMEON V.
MARCELO, respondents.

DECISION

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

and we all recited it with raised arms and clenched fists. He then took a knife and
demonstrated how to make a cut on the left upper inner arm until it bleeds. The cut was in
form of the letter "I" in the old alphabet but was done in a way that it actually looked like letter
"H". Then, he pressed his right thumb against the blood and pressed the thumb on the lower
middle portion of the copy of the Prayer. He then covered his thumb mark in blood with tape.
He then pressed the cut on his left arm against the NRP flag and left mark of letter "I" on it.
Everybody else followed;
13. That when my turn came, I slightly made a cut on my upper inner arm and pricked a
portion of it to let it bleed and I followed what Senator HONASAN did;
14. That I did not like to participate in the rites but I had the fear for my life with what Senator
HONASAN said that "kaya nating pumatay ng kasamahan";
15. That after the rites, the meeting was adjourned and we left the place;
16. That I avoided Captain Alejano after that meeting but I was extra cautious that he would
not notice it for fear of my life due to the threat made by Senator HONASAN during the
meeting on June 4, 2003 and the information relayed to me by Captain Alejano that their
group had already deeply established their network inside the intelligence community;
17. That sometime in the first week of July 2003, Captain Alejano came to see me to return
the rifle that he borrowed and told me that when the group arrives at the 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 OMB-DOJ Joint Circular, as a ground to
question the jurisdiction of the DOJ over the complaint below, is misplaced. The jurisdiction
of the DOJ is a statutory grant under the Revised Administrative Code. It is not derived from
any provision of the joint circular which embodies the guidelines governing the authority of
both the DOJ and the Office of the Ombudsman to conduct preliminary investigation on
offenses charged in relation to public office.
4. Instead of filing his counter-affidavit, petitioner opted to file a motion to clarify jurisdiction
which, for all intents and purposes, is actually a motion to dismiss that is a prohibited
pleading under Section 3, Rule 112 of the Revised Rules of Criminal Procedure. The DOJ
Panel is not required to act or even recognize it since a preliminary investigation is required
solely for the purpose of determining whether there is a sufficient ground to engender a well
founded belief that a crime has been committed and the respondent is probably guilty thereof
and should be held for trial. The DOJ panel did not outrightly reject the motion of petitioner
but ruled to pass upon the same in the determination of the probable cause; thus, it has not
violated any law or rule or any norm of discretion.
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 non-involvement of the office of the
Ombudsman in the present case does not have any adverse legal consequence upon the
authority of the panel of prosecutors to file and prosecute the information or amended
information.
In fact, other investigatory agencies of the government such as the Department of
Justice in connection with the charge of sedition, and the Presidential Commission on
Good Government, in ill gotten wealth cases, may conduct the
investigation.9 (Emphasis supplied)
In Natividad vs. Felix,10 a 1994 case, where the petitioner municipal mayor contended that it is the
Ombudsman and not the provincial fiscal who has the authority to conduct a preliminary
investigation over his case for alleged Murder, the Court held:
The Deloso case has already been re-examined in two cases, namely Aguinaldo vs.
Domagas andSanchez 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)

(signed)

TEOFISTO T. GUINGONA, JR.

Secretary
Department of Justice

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 investigations-

The following may conduct preliminary investigations:

(a) Provincial or City Prosecutors and their assistants;
(b) Judges of the Municipal Trial Courts and Municipal Circuit Trial Courts;
(c) National and Regional State Prosecutors; and
(d) Other officers as may be authorized by law.
Their authority to conduct preliminary investigation shall include all crimes
cognizable by the proper court in their respective territorial jurisdictions.
SEC. 4. Resolution of investigating prosecutor and its review. - If the investigating prosecutor
finds cause to hold the respondent for trial, he shall prepare the resolution and information,
He shall certify under oath in the information that he, or as shown by the record, an
authorized officer, has personally examined the complainant and his witnesses; that there is
reasonable ground to believe that a crime has been committed and that the accused is
probably guilty thereof; that the accused was informed of the complaint and of the evidence
submitted against him; and that he was given an opportunity to submit controverting
evidence. Otherwise, he shall recommend the dismissal of the complaint.
Within five (5) days from his resolution, he shall forward the record of the case to the
provincial or city prosecutor or chief state prosecutor, or to the Ombudsman or his deputy
in cases of offenses cognizable by the Sandiganbayan in the exercise of its original
jurisdiction. They shall act on the resolution within ten (10) days from their receipt thereof
and shall immediately inform the parties of such action.
No complaint or information may be filed or dismissed by an investigating prosecutor
without the prior written authority or approval of the provincial or city prosecutor or
chief state prosecutor or the Ombudsman or his deputy.
Where the investigating prosecutor recommends the dismissal of the complaint but his
recommendation is disapproved by the provincial or city prosecutor or chief state prosecutor
or the Ombudsman or his deputy on the ground that a probable cause exists, the latter may,
by himself file the information against the respondent, or direct another assistant prosecutor
or state prosecutor to do so without conducting another preliminary investigation.
If upon petition by a proper party under such rules as the Department of Justice may
prescribe or motu proprio, the Secretary of Justice reverses or modifies the resolution of the
provincial or city prosecutor or chief state prosecutor, he shall direct the prosecutor
concerned either to file the corresponding information without conducting another preliminary
investigation, or to dismiss or move for dismissal of the complaint or information with notice
to the parties. The same Rule shall apply in preliminary investigations conducted by the
officers of the Office of the Ombudsman. (Emphasis supplied)
confirm the authority of the DOJ prosecutors to conduct preliminary investigation of criminal
complaints filed with them for offenses cognizable by the proper court within their respective
territorial jurisdictions, including those offenses which come within the original jurisdiction of the
Sandiganbayan; but with the qualification that in offenses falling within the original jurisdiction of the
Sandiganbayan, the prosecutor shall, after their investigation, transmit the records and their

resolutions to the Ombudsman or his deputy for appropriate action. Also, the prosecutor
cannot dismiss the complaint without the prior written authority of the Ombudsman or his deputy, nor
can the prosecutor file an Information with the Sandiganbayan without being deputized by, and
without prior written authority of the Ombudsman or his deputy.
Next, petitioner contends that under OMB-Joint Circular No. 95-001, there is no showing that the
Office of the Ombudsman has deputized the prosecutors of the DOJ to conduct the preliminary
investigation of the charge filed against him.
We find no merit in this argument. As we have lengthily discussed, the Constitution, the Ombudsman
Act of 1989, Administrative Order No. 8 of the Office of the Ombudsman, the prevailing jurisprudence
and under the Revised Rules on Criminal Procedure, all recognize and uphold the concurrent
jurisdiction of the Ombudsman and the DOJ to conduct preliminary investigation on charges filed
against public officers and employees.
To reiterate for emphasis, the power to investigate or conduct preliminary investigation on charges
against any public officers or employees may be exercised by an investigator or by any provincial or
city prosecutor or their assistants, either in their regular capacities or as deputized Ombudsman
prosecutors. The fact that all prosecutors are in effect deputized Ombudsman prosecutors under the
OMB-DOJ Circular is a mere superfluity. The DOJ Panel need not be authorized nor deputized by
the Ombudsman to conduct the preliminary investigation for complaints filed with it because the
DOJ's authority to act as the principal law agency of the government and investigate the commission
of crimes under the Revised Penal Code is derived from the Revised Administrative Code which had
been held in the Natividad case13 as not being contrary to the Constitution. Thus, there is not even a
need to delegate the conduct of the preliminary investigation to an agency which has the jurisdiction
to do so in the first place. However, the Ombudsman may assert its primary jurisdiction at any stage
of the investigation.
Petitioner's contention that OMB-DOJ Joint Circular No. 95-001 is ineffective on the ground that it
was not published is not plausible. We agree with and adopt the Ombudsman's dissertation on the
matter, to wit:
Petitioner appears to be of the belief, although NOT founded on a proper reading and
application of jurisprudence, that OMB-DOJ Joint Circular No. 95-001, an internal
arrangement between the DOJ and the Office of the Ombudsman, has to be published.
As early as 1954, the Honorable Court has already laid down the rule in the case of People
vs. Que Po Lay, 94 Phil. 640 (1954) that only circulars and regulations which prescribe a
penalty for its violation should be published before becoming effective, this, on the general
principle and theory that before the public is bound by its contents, especially its penal
provision, a law, regulation or circular must first be published and the people officially and
specifically informed of said contents and its penalties: said precedent, to date, has not yet
been modified or reversed. OMB-DOJ Joint Circular No. 95-001 DOES NOT contain any
penal provision or prescribe a mandatory act or prohibit any, under pain or penalty.
What is more, in the case of Tanada v. Tuvera, 146 SCRA 453 (1986), the Honorable Court
ruled that:
Interpretative regulations and those merely internal in nature, that is, regulating only the
personnel of the administrative agency and not the public, need not be published. Neither is
publication required of the so-called letters of instructions issued by administrative superiors

concerning the rules or guidelines to be followed by their subordinates in the performance of

their duties. (at page 454. emphasis supplied)
OMB-DOJ Joint Circular No. 95-001 is merely an internal circular between the DOJ and the
Office of the Ombudsman, outlining authority and responsibilities among prosecutors of the
DOJ and of the Office of the Ombudsman in the conduct of preliminary investigation. OMBDOJ Joint Circular No. 95-001 DOES NOT regulate the conduct of persons or the public, in
general.
Accordingly, there is no merit to petitioner's submission that OMB-DOJ Joint Circular No. 95001 has to be published.14
Petitioner insists that the Ombudsman has jurisdiction to conduct the preliminary investigation
because petitioner is a public officer with salary Grade 31 so that the case against him falls
exclusively within the jurisdiction of the Sandiganbayan. Considering the Court's finding that the DOJ
has concurrent jurisdiction to investigate charges against public officers, the fact that petitioner holds
a Salary Grade 31 position does not by itself remove from the DOJ Panel the authority to investigate
the charge of coup d'etat against him.
The question whether or not the offense allegedly committed by petitioner is one of those
enumerated in the Sandiganbayan Law that fall within the exclusive jurisdiction of the
Sandiganbayan will not be resolved in the present petition so as not to pre-empt the result of the
investigation being conducted by the DOJ Panel as to the questions whether or not probable cause
exists to warrant the filing of the information against the petitioner; and to which court should the
information be filed considering the presence of other respondents in the subject complaint.
WHEREFORE, the petition for certiorari is DISMISSED for lack of merit.
SO ORDERED.
Davide, Jr., C.J., Panganiban, Carpio, Corona, Carpio-Morales, Callejo, Sr., Azcuna, and Tinga, JJ.,
concur.
Puno, J., joins J. Ynares-Santiago.
Vitug, J., see separate dissenting opinion.
Quisumbing, J., joins the dissent.
Ynares-Santiago, J., see separate dissenting opinion.
Sandoval-Gutierrez, J., see dissenting opinion.

SEPARATE OPINION
VITUG, J.:
Preliminary investigation is an initial step in the indictment of an accused; it is a substantive right, not
merely a formal or a technical requirement,1 which an accused can avail himself of in full measure.
Thus, an accused is entitled to rightly assail the conduct of an investigation that does not accord with
the law. He may also question the jurisdiction or the authority of the person or agency conducting
that investigation and, if bereft of such jurisdiction or authority, to demand that it be undertaken
strictly in conformity with the legal prescription.2

The Ombudsman is empowered3 to, among other things, investigate and prosecute on its own or on
complaint by any person, any act or omission of any public officer or employee, office or agency,
when such act or omission appears to be illegal, unjust, improper or inefficient. It has primary
jurisdiction over cases cognizable by the Sandiganbayan and, in the exercise of this primary
jurisdiction, it may, at any stage, take over from any agency of Government the investigation of such
cases. This statutory provision, by and large, is a restatement of the constitutional grant to the
Ombudsman of the power to investigate and prosecute "any act or omission of any public officer or
employee, office or agency, when such act or omission appears to be illegal x x x." 4
The Panel of Investigating Prosecutors of the Department of Justice, in taking cognizance of the
preliminary investigation on charges of coup d'etat against petitioner Gregorio Honasan, relies on
OMB-DOJ Circular No. 95-001. That joint circular must be understood as being merely a working
arrangement between the Office of the Ombudsman (OMB) and the Department of Justice (DOJ)
that must not be meant to be such a blanket delegation to the DOJ as to generally allow it to conduct
preliminary investigation over any case cognizable by the OMB.
While Section 31 of Republic Act No. 6770 states that the Ombudsman may "designate or deputize
any fiscal, state prosecutor or lawyer in the government service to act as special investigator or
prosecutor to assist in the investigation and prosecution of certain cases," the provision cannot be
assumed, however, to be an undefined and broad entrustment of authority. If it were otherwise, it
would be unable to either withstand the weight of burden to be within constitutional parameters or
the proscription against undue delegation of powers. The deputized fiscal, state prosecutor or
government lawyer must in each instance be named; the case to which the deputized official is
assigned must be specified; and the investigation must be conducted under the supervision and
control of the Ombudsman. The Ombudsman remains to have the basic responsibility, direct or
incidental, in the investigation and prosecution of such cases.
The Sandiganbayan law5 grants to the Sandiganbayan exclusive original jurisdiction over offenses or
felonies, whether simple or complexed with other crimes, committed by the public officials, including
members of Congress, in relation to their office. The crime of coup d'etat, with which petitioner, a
member of the Senate, has been charged, is said to be closely linked to his "National Recovery
Program," a publication which encapsules the bills and resolutions authored or sponsored by him on
the senate floor. I see the charge as being then related to and bearing on his official function.
On the above score, I vote to grant the petition.

DISSENTING OPINION
YNARES-SANTIAGO, J.:
The first question to answer is which court has jurisdiction to try a Senator who is accused of coup
d'etat. Behind the simple issue is a more salient question - Should this Court allow an all too
restrictive and limiting interpretation of the law rather than take a more judicious approach of
interpreting the law by the spirit, which vivifies, and not by the letter, which killeth?
The elemental thrust of the Majority view is that the Department of Justice (DOJ), not the
Office of the Ombudsman, has the jurisdiction to investigate the petitioner, a Senator, for the
crime of coup d'etatpursuant to Section 4 of Presidential Decree No. 1606 as amended by
Republic Act No. 8249 (Sandiganbayan Law). The Majority maintains that since the crime for

which petitioner is charged falls under Section 4, paragraph (b) of the Sandiganbayan Law, it
is imperative to show that petitioner committed the offense in relation to his office as Senator.
It reasoned that since petitioner committed the felonious acts, as alleged in the complaint,
not in connection with or in relation to his public office, it is the DOJ, and not the Office of the
Ombudsman, which is legally tasked to conduct the preliminary investigation.
In light of the peculiar circumstances prevailing in the instant case and in consideration of the
policies relied upon by the Majority, specifically, the Sandiganbayan Law and Republic Act
No. 6770 (The Ombudsman Act of 1989), I submit that the posture taken by the Majority
seriously deviates from and renders nugatory the very intent for which the laws were
enacted.
The crime of coup d'etat, if committed by members of Congress or by a public officer with a
salary grade above 27, falls within the exclusive original jurisdiction of the Sandiganbayan.
Section 4 of P.D. 1606, as amended, provides:
Sec. 4. Jurisdiction.- The Sandiganbayan shall exercise exclusive original jurisdiction in all
cases involving:
a. Violations of Republic Act No. 3019, as amended, otherwise known as the Anti-Graft and
Corrupt Practices Act, Republic Act No. 1379, and Chapter II, Section 2, Title VII, Book II of
the Revised Penal Code, where one or more of the accused are officials occupying the
following positions in the government, whether in a permanent, acting or interim capacity, at
the time of the commission of the offense:
xxxxxxxxx
(2) Members of Congress and officials thereof classified as Grade "27" and up under the
Compensation and Position Classification Act of 1989;
x x x x x x x x x.
In the case of Lacson v. Executive Secretary,1 we clarified the exclusive original jurisdiction of the
Sandiganbayan pursuant to Presidential Decree ("PD") No. 1606, as amended by Republic Act
("RA") Nos. 7975 and 8249, and made the following definitive pronouncements:
Considering that herein petitioner and intervenors are being charged with murder which is a
felony punishable under Title VIII of the Revised Penal Code, the governing provision on the
jurisdictional offense is not paragraph but paragraph b, Section 4 of R.A. 8249. This
paragraph b pertains to "other offenses or felonies whether simple or complexed with other
crimes committed by the public officials and employees mentioned in subsection a of
[Section 4, R.A. 8249] in relation to their office." The phrase "other offenses or felonies" is
too broad as to include the crime of murder, provided it was committed in relation to the
accused's official functions. Thus, under said paragraph b, what determines the
Sandiganbayan's jurisdiction is the official position or rank of the offender that is, whether
he is one of those public officers or employees enumerated in paragraph a of Section 4. The
offenses mentioned in paragraphs a, b and c of the same Section 4 do not make any
reference to the criminal participation of the accused public officer as to whether he is
charged as a principal, accomplice or accessory. In enacting R.A. 8249, the Congress simply
restored the original provisions of P.D. 1606 which does not mention the criminal
participation of the public officer as a requisite to determine the jurisdiction of the
Sandiganbayan.

As worded, the Sandiganbayan Law requires that for a felony, coup d'etat in this case, to fall under
the exclusive jurisdiction of the Sandiganbayan, two requisites must concur, namely: (1) that the
public officer or employee occupies the position corresponding to Salary Grade 27 or higher; and (2)
that the crime is committed by the public officer or employee in relation to his office. Applying the law
to the case at bar, the Majority found that although the first requirement has been met, the second
requirement is wanting. I disagree.
Following its definition, coup d'etat can only be committed by members of the military or police or
holding any public office or employment, with or without civilian support. Article 134-A of the Revised
Penal Code states:
Article 134-A. Coup d'etat. How committed. The crime of coup d'etat is a swift attack
accompanied by violence, intimidation, threat, strategy or stealth, directed against duly
constituted authorities of the Republic of the Philippines, or any military camp or installation,
communications network, public utilities or other facilities needed for the exercise and
continued possession of power, singly or simultaneously carried out anywhere in the
Philippines by any person or persons, belonging to the military or police or holding any public
office or employment, with or without civilian support or participation for the purpose of
seizing or diminishing state power.
A coup consists mainly of the military personnel and public officers and employees seizing the
controlling levers of the state, which is then used to displace the government from its control of the
remainder. As defined, it is a swift attack directed against the duly constituted authorities or vital
facilities and installations to seize state power. It is therefore inherent in coup d'etat that the crime be
committed "in relation to" the office of a public officer or employee. The violence, intimidation, threat,
strategy or stealth which are inherent in the crime can only be accomplished by those who possess
a degree of trust reposed on such person in that position by the Republic of the Philippines. It is by
exploiting this trust that the swift attack can be made. Since the perpetrators take advantage of their
official positions, it follows that coup d'etat can be committed only through acts directly or intimately
related to the performance of official functions, and the same need not be proved since it inheres in
the very nature of the crime itself.
It is contended by public respondent that the crime of coup d'etat cannot be committed "in relation"
to petitioner's office, since the performance of legislative functions does not include its commission
as part of the job description. To accommodate this reasoning would be to render erroneous this
Court's ruling in People v. Montejo2 that "although public office is not an element of the crime of
murder in [the] abstract," the facts in a particular case may show that ". . . the offense therein
charged is intimately connected with [the accuseds'] respective offices and was perpetrated while
they were in the performance, though improper or irregular, of their official functions." Simply put, if
murder can be committed in the performance of official functions, so can the crime of coup
d'etat.
The Ombudsman is wrong when he says that legislative function is only "to make laws, and to alter
and repeal them." The growing complexity of our society and governmental structure has so
revolutionized the powers and duties of the legislative body such that its members are no longer
confined to making laws. They can perform such other functions, which are, strictly speaking, not
within the ambit of the traditional legislative powers, for instance, to canvass presidential elections,
give concurrence to treaties, to propose constitutional amendments as well as oversight functions.
As an incident thereto and in pursuance thereof, members of Congress may deliver privilege
speeches, interpellations, or simply inform and educate the public in respect to certain proposed
legislative measures.

The complaint alleges that the meeting on June 4, 2003 of the alleged coup plotters involved a
discussion on the issues and concerns within the framework of the National Recovery Program
(NRP), a bill which petitioner authored in the Senate. The act of the petitioner in ventilating the ails of
the society and extolling the merits of the NRP is part of his duties as legislator not only to inform the
public of his legislative measures but also, as a component of the national leadership, to find
answers to the many problems of our society. One can see therefore that Senator Honasan's acts
were "in relation to his office."
It is true that not every crime committed by a high-ranking public officer falls within the exclusive
original jurisdiction of the Sandiganbayan. It is also true that there is no public office or employment
that includes the commission of a crime as part of its job description. However, to follow this latter
argument would mean that there would be no crime falling under Section 4, paragraph (b) PD No.
1606, as amended. This would be an undue truncation of the Sandiganbayan's exclusive original
jurisdiction and contrary to the plain language of the provision.
Only by a reasonable interpretation of the scope and breadth of the term "offense committed in
relation to [an accused's] office" in light of the broad powers and functions of the office of Senator,
can we subserve the very purpose for which the Sandiganbayan and the Office of the Ombudsman
were created.
The raison d' etre for the creation of the Office of the Ombudsman in the 1987 Constitution and for
the grant of its broad investigative authority, is to insulate said office from the long tentacles of
officialdom that are able to penetrate judges' and fiscals' offices, and others involved in the
prosecution of erring public officials, and through the exertion of official pressure and influence,
quash, delay, or dismiss investigations into malfeasances, and misfeasances committed by public
officers.3
In similar vein, the Constitution provides for the creation of the Sandiganbayan to attain the highest
norms of official conduct required of public officers and employees. It is a special court that tries
cases involving public officers and employees that fall within specific salary levels. Thus, section 4 of
the Sandiganbayan Law makes it a requirement that for offenses to fall under the exlusive
jurisdiction of the Sandiganbayan, the public officer involved must occupy a position equivalent to
Salary Grade 27 or higher. This salary grade requirement is not a product of whim or an empty
expression of fancy, but a way to ensure that offenses which spring from official abuse will be tried
by a judicial body insulated from official pressure and unsusceptible to the blandishments, influence
and intimidation from those who seek to subvert the ends of justice.
If we were to give our assent to respondent's restrictive interpretation of the term "in relation to his
office," we would be creating an awkward situation wherein a powerful member of Congress will be
investigated by the DOJ which is an adjunct of the executive department, and tried by a regular court
which is much vulnerable to outside pressure. Contrarily, a more liberal approach would bring the
case to be investigated and tried by specialized Constitutional bodies and, thus ensure the integrity
of the judicial proceedings.
Second, the "primary jurisdiction" of the Office of the Ombudsman to conduct the preliminary
investigation of an offense within the exclusive original jurisdiction of the Sandiganbayan operates as
a mandate on the Office of the Ombudsman, especially when the person under investigation is a
member of Congress. The Ombudsman's refusal to exercise such authority, relegating the conduct
of the preliminary investigation of I.S. No. 2003-1120 to the respondent Investigating Panel
appointed by the Department of Justice ("DOJ") under DOJ Department Order No. 279, s. 2003, is a
dereliction of a duty imposed by no less than the Constitution.

Insofar as the investigation of said crimes is concerned, I submit that the same belongs to the
primary jurisdiction of the Ombudsman. R.A. No. 6770 or the Ombudsman Act of 1989, empowers
the Ombudsman to conduct the investigation of cases involving illegal acts or omissions committed
by any public officer or employee. Section 15, paragraph (1) of the Ombudsman Act of 1989
provides:
SECTION 15. Powers, Functions and Duties. The Office of the Ombudsman shall have the
following powers, functions and duties:
1. Investigate and prosecute on its own or on complaint by any person, any act or
omission of any public officer or employee, office or agency, when such act or
omission appears to be illegal, unjust, improper or inefficient. It has primary
jurisdiction over cases cognizable by the Sandiganbayan and, in the exercise of this
primary jurisdiction, it may take over, at any stage, from any investigatory agency of
Government, the investigation of such cases; x x x. 4
In Uy v. Sandiganbayan,5 the extent and scope of the jurisdiction of the Office of the Ombudsman to
conduct investigations was described as:
The power to investigate and to prosecute granted by law to the Ombudsman is plenary and
unqualified. It pertains to any act or omission of any public officer or employee when such act
or omission appears to be illegal, unjust, improper or inefficient. The law does not make a
distinction between cases cognizable by the Sandiganbayan and those cognizable by
regular courts. It has been held that the clause "any illegal act or omission of any public
official" is broad enough to embrace any crime committed by a public officer or employee.
The reference made by RA 6770 to cases cognizable by the Sandiganbayan, particularly in
Section 15 (1) giving the Ombudsman primary jurisdiction over cases cognizable by the
Sandiganbayan, and Section 11 (4) granting the Special Prosecutor the power to conduct
preliminary investigation and prosecute criminal cases within the jurisdiction of the
Sandiganbayan, should not be construed as confining the scope of the investigatory and
prosecutory power of the Ombudsman to such cases.
The "primary jurisdiction" of the Office of the Ombudsman in cases cognizable by the
Sandiganbayan was reiterated in Laurel v. Desierto:6
Section 15 of RA 6770 gives the Ombudsman primary jurisdiction over cases cognizable by
the Sandiganbayan. The law defines such primary jurisdiction as authorizing the
Ombudsman "to take over, at any stage, from any investigatory agency of the government,
the investigation of such cases." The grant of this authority does not necessarily imply the
exclusion from its jurisdiction of cases involving public officers and employees cognizable by
other courts. The exercise by the Ombudsman of his primary jurisdiction over cases
cognizable by the Sandiganbayan is not incompatible with the discharge of his duty to
investigate and prosecute other offenses committed by public officers and employees.
Indeed, it must be stressed that the powers granted by the legislature to the Ombudsman
are very broad and encompass all kinds of malfeasance, misfeasance and non-feasance
committed by public officers and employees during their tenure of office.
"Primary Jurisdiction" usually refers to cases involving specialized disputes where the practice is to
refer the same to an administrative agency of special competence in observance of the doctrine of
primary jurisdiction. This Court has said that it cannot or will not determine a controversy involving a
question which is within the jurisdiction of the administrative tribunal before the question is resolved

by the administrative tribunal, where the question demands the exercise of sound administrative
discretion requiring the special knowledge, experience and services of the administrative tribunal to
determine technical and intricate matters of fact, and a uniformity of ruling is essential to comply with
the premises of the regulatory statute administered.7 The objective of the doctrine of primary
jurisdiction is "to guide a court in determining whether it should refrain from exercising its jurisdiction
until after an administrative agency has determined some question or some aspect of some question
arising in the proceeding before the court."8 It applies where a claim is originally cognizable in the
courts and comes into play whenever enforcement of the claim requires the resolution of issues
which, under a regulatory scheme, has been placed within the special competence of an
administrative body; in such case, the judicial process is suspended pending referral of such issues
to the administrative body for its view.9
Where the concurrent authority is vested in both the Department of Justice and the Office of the
Ombudsman, the doctrine of primary jurisdiction should operate to restrain the Department of Justice
from exercising its investigative authority if the case will likely be cognizable by the Sandiganbayan.
In such cases, the Office of the Ombudsman should be the proper agency to conduct the preliminary
investigation over such an offense, it being vested with the specialized competence and undoubted
probity to conduct the investigation.
The urgent need to follow the doctrine is more heightened in this case where the accused is a
member of Congress. The DOJ is under the supervision and control of the Office of the President; in
effect, therefore, the investigation would be conducted by the executive over a member of a co-equal
branch of government. It is precisely for this reason that the independent constitutional Office of the
Ombudsman should conduct the preliminary investigation. Senator Honasan is a member of the
political opposition. His right to a preliminary investigation by a fair and uninfluenced body is sacred
and should not be denied. As we stated in the Uy case:
The prosecution of offenses committed by public officers and employees is one of the most
important functions of the Ombudsman. In passing RA 6770, the Congress deliberately
endowed the Ombudsman with such power to make him a more active and effective agent of
the people in ensuring accountability n public office. A review of the development of our
Ombudsman laws reveals this intent.
These pronouncements are in harmony with the constitutional mandate of he Office of the
Ombudsman, as expressed in Article XI of the Constitution.
SECTION 12. The Ombudsman and his Deputies, as protectors of the people, shall act
promptly on complaints filed in any form or manner against public officials or employees of
the Government, or any agency, subdivision or instrumentality thereof, including governmentowned or controlled corporations, and shall, in appropriate cases, notify the complainants of
the actions taken and the result thereof. (Underscoring supplied.)
SECTION 13. The Office of the Ombudsman shall have the following powers, functions, and
duties:
(1) Investigate on its own, or on complaint by any person, any act or omission of any public
official, employee, office or agency, when such act or omission appears to be illegal, unjust,
improper, or inefficient. x x x.
Coupled with these provisions, Section 13 of the Ombudsman Act of 1989 provides:

SECTION 13. Mandate. The Ombudsman and his Deputies, as protectors of the people,
shall act promptly on complaints filed in any form or manner against officers or employees of
the Government, or of any subdivision, agency or instrumentality thereof, including
government-owned or controlled corporations, and enforce their administrative, civil and
criminal liability in every case where the evidence warrants in order to promote efficient
service by the Government to the people. (Underscoring supplied)
The Constitution and the Ombudsman Act of 1989 both mention, unequivocally, that the Office of the
Ombudsman has the duty and mandate to act on the complaints filed against officers or employees
of the Government. It is imperative that this duty be exercised in order to make real the role of the
Office of the Ombudsman as a defender of the people's interest specially in cases like these which
have partisan political taint.
For the foregoing reasons, I vote to GRANT the petition.

DISSENTING OPINION
SANDOVAL-GUTIERREZ, J.:
I am constrained to dissent from the majority opinion for the following reasons: (1) it evades the
consequence of the statutory definition of the crime of coup d'etat; (2) it violates the principle of stare
decisis without a clear explanation why the established doctrine has to be re-examined and
reversed; and (3) it trivializes the importance of two constitutional offices the Ombudsman and the
Senate and in the process, petitioner's right to due process has been impaired.
I
It is an established principle that an act no matter how offensive, destructive, or reprehensible, is not
a crime unless it is defined, prohibited, and punished by law. The prosecution and punishment of any
criminal offense are necessarily circumscribed by the specific provision of law which defines it.
Article 134-A of the Revised Penal Code defines coup d'etat, thus:
"Article 134-A. Coup d'etat. How committed. The crime of coup d'etat is a swift attack
accompanied by violence, intimidation, threat, strategy or stealth, directed against duly
constituted authorities of the Republic of the Philippines, or any military camp or installation,
communications networks, public utilities or other facilities needed for the exercise and
continued possession of power, singly or simultaneously carried out anywhere in the
Philippines by any person or persons, belonging to the military or police or holding any public
office or employment with or without civilian support or participation for the purpose of
seizing or diminishing state power."
There is no question that Senator Honasan, herein petitioner, holds a high public office. If he is
charged with coup d'etat, it has to be in his capacity as a public officer committing the alleged
offense in relation to his public office.
The complaint filed with the Department of Justice alleges the events supposedly constituting the
crime of coup d'etat, thus:

1. On 04 June 2003, Senator Honasan presided over a meeting held "somewhere in San
Juan, Metro Manila."
2. After dinner, Senator Honasan, as presiding officer, "discussed the NRP (National
Recovery Program), the graft and corruption in the government, including the military
institutions, the judiciary, the executive department, and the like."
3. "The discussion concluded that we must use force, violence and armed struggle to
achieve the vision of NRP. x x x Senator Honasan countered that 'we will never achieve
reforms through the democratic processes because the people who are in power will not give
up their positions as they have their vested interests to protect.' x x x Senator Honasan
replied 'kung kaya nating pumatay sa ating mga kalaban, kaya din nating pumatay sa mga
kasamahang magtataksil.' x x x."
4. In the course of the meeting, Senator Honasan presented the plan of action to achieve the
goals of the NRP, i.e., overthrow of the government under the present leadership thru armed
revolution and after which, a junta will be constituted to run the new government.
5. The crime of coup d'etat was committed on 27 July 2003 by military personnel who
occupied Oakwood. Senator Honasan and various military officers, one member of his staff,
and several John Does and Jane Does were involved in the Oakwood incident.
The above allegations determine whether or not petitioner committed the alleged crime as a public
officer "in relation to his office." If it was in relation to his office, the crime falls under the exclusive
original jurisdiction of the Sandiganbayan. It is the Ombudsman who has the primary jurisdiction to
investigate and prosecute the complaint for coup d'etat, thus:
Section 4 of P.D. No. 1606, as amended, defines the jurisdiction of the Sandiganbayan as follows:
"SECTION 4. Jurisdiction. The Sandiganbayan shall exercise exclusive original jurisdiction
in all cases involving:
"a. Violations of Republic No. 3019, as amended, otherwise known as the Anti-Graft
and Corrupt Practices Act, Republic Act No. 1379, and Chapter II, Section 2, Title VII,
Book II of the Revised Penal Code, where one or more of the accused are officials
occupying the following positions in the government, whether in a permanent, acting
or interim capacity, at the time of the commission of the offense:
(1) Officials of the executive branch occupying the positions of regional
director and higher, otherwise classified as Grade '27' and higher, of the
Compensations and Position Classification Act of 1989 (Republic Act No. 67
58), specifically including:
(a) Provincial governors, vice-governors, members of the
Sangguniang Panlalawigan, and provincial treasurers , assessors,
engineers, and other provincial department heads;
(b) City mayors, vice-mayors, members of the Sangguniang
Panlungsod, city treasurers, assessors, engineers, and other city
department heads;

(c) Officials of the diplomatic service occupying the position of consul

and higher;
(d) Philippine Army and air force colonels, naval captains, and all
officers of higher rank;
(e) Officers of the Philippine National Police while occupying the
position of provincial director and those holding the rank of senior
superintendent or higher;
(f) City and provincial prosecutors and their assistants, and officials
and prosecutors in the Office of the Ombudsman and special
prosecutor;
(g) Presidents, directors or trustees, or managers of governmentowned or controlled corporations, state universities or educational
institutions or foundations;
(2) Members of Congress or officials thereof classified as Grade '27' and up
under the Compensation and Position Classification Act of 1989;
(3) Members of the judiciary without prejudice to the provisions of the
Constitution;
(4) Chairman and members of the Constitutional Commissions, without
prejudice to the provisions of the Constitution;
(5) All other national and local officials classified as Grade '27' or higher
under the Compensation and Position Classification Act of 1989.
"b. Other offenses or felonies whether simple or complexed with other crimes
committed by the public officials and employees mentioned in Subsection a of
this section in relation to their office.
"c. Civil and criminal cases filed pursuant to and in connection with Executive Order
Nos. 1, 2, 14 and 14-A, issued in 1986."
Section 15 of Republic Act 6770, or the Ombudsman Act of 1989, provides:
"1) Investigate and prosecute on its own or on complaint by any person, any act or omission
of any public officer or employee, office or agency, when such act or omission appears to be
illegal, unjust, improper or inefficient. It has primary jurisdiction over cases cognizable by
the Sandiganbayan and, in the exercise of his primary jurisdiction, it may take over, at any
stage, from any investigatory agency of Government, the investigation of such cases; x x x"
(Emphasis supplied)
Under the above provisions, what determines the Sandiganbayan's jurisdiction is the official position
or rank of the offender, that is, whether he is one of those public officers enumerated therein.
Petitioner, being a Senator, occupies a government position higher than Grade 27 of the
Compensation and Position Classification Act of 1989. In fact, he holds the third highest position and

rank in the Government. At the apex, the President stands alone. At the second level, we have the
Vice-President, Speaker of the House, Senate President and Chief Justice. Clearly, he is embraced
in the above provisions.
Following the doctrine of "primary jurisdiction," it is the Ombudsman who should conduct the
preliminary investigation of the charge of coup d'etat against petitioner. The DOJ should refrain from
exercising such function.
The crux of the jurisdiction of the DOJ lies in the meaning of "in relation to their office."
The respondents start their discussion of "in relation to public office" with a peculiar presentation.
They contend that the duties of a Senator are to make laws, to appropriate, to tax, to expropriate, to
canvass presidential elections, to declare the existence of a state war, to give concurrence to
treaties and amnesties, to propose constitutional amendments, to impeach, to investigate in aid of
legislation, and to determine the Senate rules of proceedings and discipline of its members. They
maintain that the "alleged acts done to overthrow the incumbent government and authorities by arms
and with violence" cannot be qualified as "acts reminiscent of the discharge of petitioner's legislative
duties as Senator."1
The allegations in the complaint and in the pleadings of the DOJ, the Solicitor General, and the
Ombudsman (who is taking their side) charging petitioner with coup d'etat show hat he was engaged
in a discussion of his National Recovery Program (NRP), corruption in government, and the need for
reform. The NRP is a summary of what he has introduced and intended to introduce into legislation
by Congress. There is no doubt, therefore, that the alleged coup d'etat was committed in relation to
the performance of his official duty as a Senator.
II
The ponencia is a departure or reversion from established doctrine. Under the principle of stare
decisis, the Court should, for the sake of certainty, apply a conclusion reached in one case to
decisions which follow, if the facts are substantially similar. As stated in Santiago vs.
Valenzuela2, stare decisi et non quieta movere. Stand by the decisions and disturb not what is
settled.
In Deloso vs. Domingo3, where the Governor of Zambales and his military and police escorts
ambushed the victims who were passing by in a car, we held that the multiple murders were
committed in relation to public office. In Cunanan vs. Arceo4, the mayor ordered his co-accused to
shoot the victims. We ruled that the murder was in relation to public office. In Alarilla vs.
Sandiganbayan5, the town mayor aimed a gun and threatened to kill a councilor of the municipality
during a public hearing. We concluded that the grave threats were in relation to the mayor's office.
Following these precedents, I am convinced that petitioner's discourse on his National Recovery
Program is in relation to his office.
III
The respondents state that the DOJ is vested with jurisdiction to conduct all investigations and
prosecution of allcrimes. They cite PD 1275, as amended by PD 1513, and the Revised
Administrative Code of 1987 as the source of this plenary power.
While the DOJ has a broad general jurisdiction over crimes found in the Revised Penal Code and
special laws, however, this jurisdiction is not plenary or total. Whenever the Constitution or statute

vests jurisdiction over the investigation and prosecution of certain crimes in an office, the DOJ has
no jurisdiction over those crimes. In election offenses, the Constitution vests the power to investigate
and prosecute in the Commission on Elections.6In crimes committed by public officers in relation to
their office, the Ombudsman is given by both the Constitution and the statute the same power of
investigation and prosecution.7 These powers may not be exercised by the DOJ.
The DOJ cannot pretend to have investigatory and prosecutorial powers above those of the
Ombudsman. The Ombudsman is a constitutional officer with a rank equivalent to that of an
Associate Justice of this Court. The respondent's Prosecution Office investigates and prosecutes all
kinds of offenses from petty crimes, like vagrancy or theft, to more serious crimes, such as those
found in the Revised Penal Code. The Ombudsman, on the other hand, prosecutes offenses in
relation to public office committed by public officers with the rank and position classification of Grade
27 or higher. It is a special kind of jurisdiction which excludes general powers of other prosecutory
offices.
I agree with the petitioner that a becoming sense of courtesy, respect, and propriety requires that the
constitutional officer should conduct the preliminary investigation and prosecution of the complaint
against him and not a fifth assistant city prosecutor or even a panel of prosecutors from the DOJ
National Prosecution Service.
I do not believe that a mere agreement, such as OMB-DOJ Joint Circular No. 95-001, can fully
transfer the prosecutory powers of the Ombudsman to the DOJ without need for deputization in
specific cases. As stated by the petitioner, the DOJ cannot be given a roving commission or
authority to investigate and prosecute cases falling under the Ombudsman's powers anytime the
DOJ pleases without any special and explicit deputization. On this point, I agree with Justice Jose C.
Vitug that the Joint Circular must be understood as a mere working arrangement between the Office
of the Ombudsman and the DOJ that must not be meant to be such a blanket delegation to the DOJ
as to generally allow it to conduct preliminary investigation over any case cognizable by the
Ombudsman.
Petitioner further raises a due process question. He accuses the DOJ of bias, partiality, and
prejudgment. He states that he has absolutely no chance of being cleared by the respondent DOJ
panel because it has already decided, before any presentation of proof, that he must be charged and
arrested without bail.
As stated by the petitioner, there are precedents to the effect that where bias exists, jurisdiction has
to be assumed by a more objective office. In Panlilio vs. Sandiganbayan,8 we recognized that the
PCGG has the authority to investigate the case, yet we ordered the transfer of the case to the
Ombudsman because of the PCGG's "marked bias" against the petitioner.
In Conjuangco vs. PCGG,9 we held that there is a denial of due process where the PCGG showed
"marked bias" in handling the investigation. In Salonga vs. Cruz Pao,10 where the preliminary
investigation was tainted by bias and partiality, we emphasized the right of an accused to be free,
not only from arbitrary arrest and punishment but also from unwarranted and biased prosecution.
The petitioner's pleadings show the proofs of alleged bias. They may be summarized as follows:
First, on July 27, 2003 when the Oakwood incident was just starting, DILG Secretary Lina
and National Security Adviser Roilo Golez went on a media barrage accusing petitioner of
complicity without a shred of evidence.

Second, petitioner was approached by Palace emissaries, Velasco, Defensor, Tiglao, and
Afable to help defuse the incident and ask mutineers to surrender. Then the request was
distorted to make it appear that he went there to save his own skin.
Third, even before any charge was filed, officials of the DOJ were on an almost daily media
program prematurely proclaiming petitioner's guilt. How can the DOJ conduct an impartial
and fair investigation when it has already found him guilty?
Fourth, petitioner was given five days to answer Matillano's complaint but later on, it was
shortened to three days.
Fifth, petitioner filed a 30 page Reply but the DOJ Order was issued at once, or only after
two days, or on Sept. 10, 2003. The Order did not discuss the Reply, but perfunctorily
glossed over and disregarded it.
The petitioner states that the DOJ is constitutionally and factually under the control of the President.
He argues that:
"No questionable prosecution of an opposition Senator who has declared himself available
for the Presidency would be initiated without the instigation, encouragement or approval of
officials at the highest levels of the Administration. Justice requires that the Ombudsman, an
independent constitutional office, handle the investigation and prosecution of this case. The
DOJ cannot act fairly and independently in this case. In fact, all of the actions the DOJ has
taken so far have been marked by bias, hounding and persecution.
And finally, the charges laid against Senator Honasan are unfounded concoctions of fertile
imaginations. The petitioner had no role in the Oakwood mutiny except the quell and pacify
the angry young men fighting for a just cause. Inspiration perhaps, from his National
Recovery Program, but no marching orders whatsoever."
Prosecutors, like Caesar's wife, must be beyond suspicion. Where the test of the cold neutrality
required of them cannot be met, they must yield to another office especially where their jurisdiction is
under question. The tenacious insistence of respondents in handling the investigation of the case
and their unwillingness to transfer it to the Ombudsman in the face of their questionable jurisdiction
are indications of marked bias.
WHEREFORE, I vote to GRANT the petition and to order the Department of Justice to refrain from
conducting preliminary investigation of the complaint for coup d'etat against petitioner for lack of
jurisdiction.
G.R. No. 197293

April 21, 2014

ALFREDO C. MENDOZA, Petitioner,

vs.
PEOPLE OF THE PHILIPPINES AND JUNO CARS, INC., Respondents.
DECISION
LEONEN, J.:

While the determination of probable cause to charge a person of a crime is the sole function of the.
prosecutor, the trial court may, in the protection of one's fundamental right to liberty, dismiss the case
if, upon a personal assessment of the evidence, it finds that the evidence does not establish
probable cause.
This is a petition for review on certiorari assailing the Court of Appeals' decision dated January 14,
2011, which reversed the Regional Trial Court's dismissal of the complaint against petitioner Alfredo
C. Mendoza for qualified theft and estafa.
1

This case stems from a complaint-affidavit filed by Juno Cars, Inc. through its representative, Raul C.
Evangelista, on January 8, 2008 for qualified theft and estafa against Alfredo.
3

In the complaint-affidavit, Juno Cars alleged that on June 2, 2007, it hired Alfredo as Trade-In/Used
Car Supervisor. On November 19, 2007, its Dealer/Operator, Rolando Garcia, conducted a partial
audit of the used cars and discovered that five (5) cars had been sold and released by Alfredo
without Rolandos or the finance managers permission.
4

The partial audit showed that the buyers of the five cars made payments, but Alfredo failed to remit
the payments totalling P886,000.00. It was further alleged that while there were 20 cars under
Alfredos custody, only 18 were accounted for. Further investigation revealed that Alfredo failed to
turn over the files of a 2001 Hyundai Starex and a Honda City 1.5 LXI. Juno Cars alleged that taking
into account the unremitted amounts and the acquisition cost of the Honda City, Alfredo pilfered a
total amount of P1,046,000.00 to its prejudice and damage.
5

In his counter-affidavit, Alfredo raised, among others, Juno Cars supposed failure to prove
ownership over the five (5) cars or its right to possess them with the purported unremitted payments.
Hence, it could not have suffered damage.
6

On March 4, 2008, Provincial Prosecutor Rey F. Delgado issued a Resolution finding probable
cause and recommending the filing of an information against Alfredo for qualified theft and estafa.
7

Alfredo moved for reconsideration, but the motion was denied. He then filed a petition for review
with the Department of Justice on May 16, 2008.
8

While Alfredos motion for reconsideration was still pending before the Office of the City Prosecutor
of Mandaluyong, two informations for qualified theft and estafa were filed before the Regional Trial
Court, Branch 212, Mandaluyong City. On March 31, 2008, Alfredo filed a motion for determination of
probable cause before the trial court. On April 28, 2008, he also filed a motion to defer arraignment.
10

11

12

Several clarificatory hearings were scheduled but were not conducted. On February 4, 2009, the
parties agreed to submit all pending incidents, including the clarificatory hearing, for resolution.
13

14

On March 3, 2009, the trial court, through Presiding Judge Rizalina Capco-Umali, issued an
order dismissing the complaint, stating that:
15

After conducting an independent assessment of the evidence on record which includes the assailed
Resolution dated 04 March 2008, the court holds that the evidence adduced does not support a
finding of probable cause for the offenses of qualified theft and estafa. x x x.
16

Juno Cars filed a motion for reconsideration, which the trial court denied on July 3, 2009.

17

Juno Cars then filed a petition for certiorari with the Court of Appeals, arguing that the trial court
acted without or in excess of its jurisdiction and with grave abuse of discretion when it dismissed the
complaint. It argued that "the determination of probable cause and the decision whether or not to file
a criminal case in court, rightfully belongs to the public prosecutor."
18

On January 14, 2011, the Court of Appeals rendered a decision, reversed the trial court, and
reinstated the case. In its decision, the appellate court ruled that the trial court acted without or in
excess of its jurisdiction "in supplanting the public prosecutors findings of probable cause with her
own findings of insufficiency of evidence and lack of probable cause."
19

20

Aggrieved, Alfredo filed a petition for review under Rule 45 before this court. In essence, he argued
that the trial court was correct in finding that there was no probable cause as shown by the evidence
on record. He argued that "judicial determination of probable cause is broader than [the] executive
determination of probable cause" and that "[i]t is not correct to say that the determination of probable
cause is exclusively vested on the prosecutor x x x."
21

22

In its comment, Juno Cars argued that Alfredo presented questions, issues, and arguments that
were a mere rehash of those already considered and passed upon by the appellate court.
23

The Office of the Solicitor General, arguing for public respondent, stated in its comment that the
appellate court correctly sustained the public prosecutor in his findings of probable cause against
Alfredo. Since there was no showing of grave abuse of discretion on the part of Prosecutor Rey F.
Delgado, the trial court should respect his determination of probable cause.
24

In his reply, Alfredo reiterated that "judicial determination of probable cause[,] while not a superior
faculty[,] covers a broader encompassing perspective in the disposition of the issue on the existence
of probable cause." He argued that the findings of the trial court should be accorded greater weight
than the appellate courts. It merely reviewed the findings of the trial court.
25

26

The primordial issue is whether the trial court may dismiss an information filed by the prosecutor on
the basis of its own independent finding of lack of probable cause.
Time and again, this court has been confronted with the issue of the difference between the
determination of probable cause by the prosecutor on one hand and the determination of probable
cause by the judge on the other. We examine these two concepts again.
Juno Cars filed a complaint against Alfredo for qualified theft and estafa under Article 315, fourth
paragraph, no. 3(c) of the Revised Penal Code. Since qualified theft is punishable by reclusion
perpetua, a preliminary investigation must first be conducted "to determine whether there is sufficient
ground to engender a well-founded belief that a crime has been committed and the respondent is
probably guilty thereof, and should be held for trial," in accordance with Rule 112, Section 1 of the
Rules on Criminal Procedure.
27

28

At this stage, the conduct of the preliminary investigation and the subsequent determination of the
existence of probable cause lie solely within the discretion of the public prosecutor. If upon
evaluation of the evidence, the prosecutor finds sufficient basis to find probable cause, he or she
shall then cause the filing of the information with the court.
29

Once the information has been filed, the judge shall then "personally evaluate the resolution of the
prosecutor and its supporting evidence" to determine whether there is probable cause to issue a
warrant of arrest. At this stage, a judicial determination of probable cause exists.
30

In People v. Castillo and Mejia, this court has stated:

31

There are two kinds of determination of probable cause: executive and judicial. The executive
determination of probable cause is one made during preliminary investigation. It is a function that
properly pertains to the public prosecutor who is given a broad discretion to determine whether
probable cause exists and to charge those whom he believes to have committed the crime as
defined by law and thus should be held for trial. Otherwise stated, such official has the quasi-judicial
authority to determine whether or not a criminal case must be filed in court. Whether or not that
function has been correctly discharged by the public prosecutor, i.e., whether or not he has made a
correct ascertainment of the existence of probable cause in a case, is a matter that the trial court
itself does not and may not be compelled to pass upon.
The judicial determination of probable cause, on the other hand, is one made by the judge to
ascertain whether a warrant of arrest should be issued against the accused. The judge must satisfy
himself that based on the evidence submitted, there is necessity for placing the accused under
custody in order not to frustrate the ends of justice. If the judge finds no probable cause, the judge
cannot be forced to issue the arrest warrant.
32

The difference is clear: The executive determination of probable cause concerns itself with whether
there is enough evidence to support an Information being filed. The judicial determination of
probable cause, on the other hand, determines whether a warrant of arrest should be issued. In
People v. Inting:
33

x x x Judges and Prosecutors alike should distinguish the preliminary inquiry which determines
probable cause for the issuance of a warrant of arrest from the preliminary investigation proper
which ascertains whether the offender should be held for trial or released. Even if the two inquiries
are conducted in the course of one and the same proceeding, there should be no confusion about
the objectives. The determination of probable cause for the warrant of arrest is made by the Judge.
The preliminary investigation properwhether or not there is reasonable ground to believe that the
accused is guilty of the offense charged and, therefore, whether or not he should be subjected to the
expense, rigors and embarrassment of trialis the function of the Prosecutor. (Emphasis supplied)
34

While it is within the trial courts discretion to make an independent assessment of the evidence on
hand, it is only for the purpose of determining whether a warrant of arrest should be issued. The
judge does not act as an appellate court of the prosecutor and has no capacity to review the
prosecutors determination of probable cause; rather, the judge makes a determination of probable
cause independent of the prosecutors finding.
People v. Court of Appeals and Jonathan Cerbo discussed the rationale. In that case, Jonathan
Cerbo allegedly shot Rosalinda Dy in the presence of his father, Billy Cerbo. An information for
murder was filed against Jonathan Cerbo. The daughter of Rosalinda Dy, as private complainant,
executed a complaint-affidavit charging Billy Cerbo with conspiracy. The prosecutor then filed a
motion to amend the information, which was granted by the court. The information was then
amended to include Billy Cerbo as one of the accused, and a warrant of arrest was issued against
him.
35

Billy Cerbo filed a motion to quash the warrant arguing that it was issued without probable cause.
The trial court granted this motion, recalled the warrant, and dismissed the case against him. The
Court of Appeals affirmed this dismissal. This court, however, reversed the Court of Appeals and
ordered the reinstatement of the amended information against Billy Cerbo, stating that:
In granting this petition, we are not prejudging the criminal case or the guilt or innocence of Private
Respondent Billy Cerbo. We are simply saying that, as a general rule, if the information is valid on its
face and there is no showing of manifest error, grave abuse of discretion or prejudice on the part of
the public prosecutor, courts should not dismiss it for want of evidence, because evidentiary matters
should be presented and heard during the trial. The functions and duties of both the trial court and
the public prosecutor in "the proper scheme of things" in our criminal justice system should be
clearly understood.
The rights of the people from what could sometimes be an "oppressive" exercise of government
prosecutorial powers do need to be protected when circumstances so require. But just as we
recognize this need, we also acknowledge that the State must likewise be accorded due process.
Thus, when there is no showing of nefarious irregularity or manifest error in the performance of a
public prosecutors duties, courts ought to refrain from interfering with such lawfully and judicially
mandated duties.
In any case, if there was palpable error or grave abuse of discretion in the public prosecutors finding
of probable cause, the accused can appeal such finding to the justice secretary and move for the
deferment or suspension of the proceedings until such appeal is resolved. (Emphasis supplied)
36

In this case, the resolution dated March 4, 2008 of Prosecutor Rey F. Delgado found that the facts
and evidence were "sufficient to warrant the indictment of [petitioner] x x x." There was nothing in
his resolution which showed that he issued it beyond the discretion granted to him by law and
jurisprudence.
37

While the information filed by Prosecutor Delgado was valid, Judge Capco-Umali still had the
discretion to make her own finding of whether probable cause existed to order the arrest of the
accused and proceed with trial.
Jurisdiction over an accused is acquired when the warrant of arrest is served. Absent this, the court
cannot hold the accused for arraignment and trial.
Article III, Section 2 of the Constitution states:
The right of the people to be secure in their persons, houses, papers, and effects against
unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and
no search warrant or warrant of arrest shall issue except upon probable cause to be determined
personally by the judge after examination under oath or affirmation of the complainant and the
witnesses he may produce, and particularly describing the place to be searched and the persons or
things to be seized.
The Constitution prohibits the issuance of search warrants or warrants of arrest where the judge has
not personally determined the existence of probable cause. The phrase "upon probable cause to be
determined personally by the judge after examination under oath or affirmation of the complainant
and the witnesses he may produce" allows a determination of probable cause by the judge ex parte.

For this reason, Section 6, paragraph (a) of Rule 112 of the Rules on Criminal Procedure mandates
the judge to "immediately dismiss the case if the evidence on record fails to establish probable
cause." Section 6, paragraph (a) of Rule 112 reads:
Section 6. When warrant of arrest may issue. (a) By the Regional Trial Court. Within ten (10)
days from the filing of the complaint or information, the judge shall personally evaluate the resolution
of the prosecutor and its supporting evidence. He may immediately dismiss the case if the evidence
on record clearly fails to establish probable cause. If he finds probable cause, he shall issue a
warrant of arrest, or a commitment order if the accused has already been arrested pursuant to a
warrant issued by the judge who conducted the preliminary investigation or when the complaint or
information was filed pursuant to section 7 of this Rule. In case of doubt on the existence of probable
cause, the judge may order the prosecutor to present additional evidence within five (5) days from
notice and the issue must be resolved by the court within thirty (30) days from the filing of the
complaint of information.
In People v. Hon. Yadao:

38

Section 6, Rule 112 of the Rules of Court gives the trial court three options upon the filing of the
criminal information: (1) dismiss the case if the evidence on record clearly failed to establish
probable cause; (2) issue a warrant of arrest if it finds probable cause; and (3) order the prosecutor
to present additional evidence within five days from notice in case of doubt as to the existence of
probable cause.
But the option to order the prosecutor to present additional evidence is not mandatory. The courts
first option under the above is for it to "immediately dismiss the case if the evidence on record clearly
fails to establish probable cause." That is the situation here: the evidence on record clearly fails to
establish probable cause against the respondents. (Emphasis supplied)
1wphi1

39

It is also settled that "once a complaint or information is filed in court, any disposition of the case,
whether as to its dismissal or the conviction or the acquittal of the accused, rests in the sound
discretion of the court."
40

In this case, Judge Capco-Umali made an independent assessment of the evidence on record and
concluded that "the evidence adduced does not support a finding of probable cause for the offenses
of qualified theft and estafa." Specifically, she found that Juno Cars "failed to prove by competent
evidence" that the vehicles alleged to have been pilfered by Alfredo were lawfully possessed or
owned by them, or that these vehicles were received by Alfredo, to be able to substantiate the
charge of qualified theft. She also found that the complaint "[did] not state with particularity the exact
value of the alleged office files or their valuation purportedly have been removed, concealed or
destroyed by the accused," which she found crucial to the prosecution of the crime of estafa under
Article 315, fourth paragraph, no. 3(c) of the Revised Penal Code. She also noted that:
41

42

43

x x x As a matter of fact, this court had even ordered that this case be set for clarificatory hearing to
clear out essential matters pertinent to the offense charged and even directed the private
complainant to bring documents relative to the same/payment as well as affidavit of
witnesses/buyers with the end view of satisfying itself that indeed probable cause exists to commit
the present case which private complainant failed to do.
44

Accordingly, with the present laws and jurisprudence on the matter, Judge Capco-Umali correctly
dismissed the case against Alfredo.
Although jurisprudence and procedural rules allow it, a judge must always proceed with caution in
dismissing cases due to lack of probable cause, considering the preliminary nature of the evidence
before it. It is only when he or she finds that the evidence on hand absolutely fails to support a
finding of probable cause that he or she can dismiss the case. On the other hand, if a judge finds
probable cause, he or she must not hesitate to proceed with arraignment and trial in order that
justice may be served.
WHEREFORE, the petition is GRANTED. The decision dated January 14, 2011 of the Court of
Appeals in CA-G.R. SP. No. 110774 is REVERSED and SET ASIDE. Criminal Case Nos. MC0811604-05 against Alfredo C. Mendoza are DISMISSED.
SO ORDERED.
G.R. No. 114266 December 4, 1996
PEOPLE OF THE PHILIPPINES, plaintiff,
vs.
ROGELIO VILLANUEVA and MAMERTO DURANA, accused.
MAMERTO DURANA, accused-appellant.

BELLOSILLO, J.:p
DIOSDADO MENIANO was hacked dead for which ROGELIO VILLANUEVA and MAMERTO
DURANA were charged with murder. Villanueva however remained at large so that only Durana was
tried. Thereafter Durana was sentenced to reclusion perpetua and ordered to indemnify the heirs of
their victim in the amount of P50,000.00. 1
On 12 November 1992, around ten-thirty in the evening, at Barangay Tagpuro, Tacloban City,
Diosdado Meniano and his wife Gloria were awakened by a loud voice from outside their house
challenging Diosdado to a flight. Gloria Meniano readily recognized the voice as that of accused
Mamerto Durana. 2 The challenge was hurled a number of times by Durana. It was not heeded initially by
the Diosdado until after Durana threatened to go up the house if the former would not go down. Diosdado
decided finally to go down but not without arming himself with a short bolo. Gloria remained inside the
house. She peeped through the bamboo slats which served as external walls of their house. 3 Since the
moon was bright she was able to see Durana clearly as the intruder. 4 She also saw the accused Rogelio
Villanueva hiding near the San Francisco plants. 5 As soon as Diosdado went out of his house he was
immediately hacked by Villanueva. 6Despite the hacking, Durana continued challenging Diosdado to a
fight. He even taunted the victim, "You cannot bear a wound." 7 Villanueva and Durana then ran away.
Elenita Meniano, sister-in-law and neighbor of Diosdado, also witnessed the hacking incident. She
testified that on 12 November 1992 she and her husband were awakened by the shouts of Mamerto
Durana challenging Diosdado to a fight; 8 that they watched the incident through the window and saw

Diosdado hacked by Villanueva after the former went down from his house; that after Diosdado was slain,
she saw Durana brandishing a bolo near the crime scene. 9

The body of Diosdado Meniano was examined by Dr. Angel A. Cordero, Medico-Legal Officer, Camp
Kangleion, Palo, Leyte, who ascribed the cause of death to "shock and hemorrhage due to hacking
wounds of the right basal portion of the skull, lacerating the spinal column." 10
The defense is alibi. Mamerto Durana claims that in the evening of 12 November 1992 he was in the
store of a certain Rogelio Baganio some 30 meters from the house of the deceased to buy
cigarettes 11 and to fetch his children who were watching television in the store. Baganio's store was
about half a kilometer away from his residence.
The defense of appellant was not sustained by the trial court.
In this appeal appellant contends that the court a quo erred (a) in failing to consider the fact that he
was not a party respondent during the preliminary investigation of the case and (b) in giving
credence to the testimony of Gloria Meniano. 12
Accused-appellant argues that the instant case was filed in court for murder only against the other
accused, Rogelio Villanueva, on the basis of the resolution of the prosecutor in I.S. No. 92-1524; that
he was not made a respondent in the investigation; that despite the sworn statements of witnesses
Gloria Meniano and Elenita Meniano who pointed to him as co-conspirator, he was not included in
the charge for murder because, according to the police, he would be used as a witness against the
accused Villanueva.
The argument is without merit. It is settled that the absence of a preliminary investigation does not
impair the validity of the information or otherwise render the same defective; neither does it affect the
jurisdiction of the court over the case, nor does it constitute a ground for quashing the
information. 13 If no preliminary investigation has been held, or if it is flawed, the trial court may, on motion
of the accused, order an investigation or reinvestigation and hold the proceedings on the criminal case in
abeyance. 14 In this case, accused-appellant failed to invoke such right to preliminary investigation before
or at the time he entered his plea at arraignment. 15 He can no longer invoke that right at this late stage of
the proceedings.
Appellant likewise cites what he believes are inconsistencies in the testimony of prosecution witness
Gloria Meniano which cast serious doubt on its truthfulness: (a) her statement that when her
husband was hacked appellant and his co-accused were still there 16 although she later testified that
the other accused was able to run away when her husband was felled after the attack, 17 and, (b) that
during the investigation Gloria informed the police authorities that her husband went out of the house
because appellant asked her for a stick of cigarette but in court she swore that appellant challenged her
husband to a
fight. 18
It is the policy of the Court, founded on reason and experience, to sustain the factual findings of the
trial court in criminal cases on the rational assumption that it is in a better position to assess the
evidence before it; consequently, findings of the trial court are entitled to the highest degree of
respect and will not be disturbed on appeal in the absence of any showing that the court overlooked,
misunderstood or misapplied some facts or circumstances of weight and substance which if

considered would have affected the result of the case. It is the trial court and not any court on appeal
that can best ascertain the credibility of witnesses.
Discrepancies on minor matters do not impair the essential integrity of the evidence for the
prosecution as a whole nor reflect on the honesty of the witness. 19 The alleged inconsistencies on the
testimony of Gloria Meniano dwell on minor and trivial matters which only serve to strengthen than
weaken her credibility. The most honest witness may sometimes commit mistakes but such honest lapses
do not necessarily impair his credibility especially when minor details are involved. Human memory may
be temporarily paralyzed by a startling event especially if the same involves a person close to the witness.
Contrary to the allegations of the accused-appellant, there was no such inconsistency in the
testimony of Gloria Meniano concerning the former's participation in the killing of her husband. To the
questions of the trial court, the witness clearly testified as to the existence of conspiracy between
appellant and his co-accused. Thus
Court:
Q. I will ask some clarificatory questions. The police would have not
known the incident if you did not give information to the police, right?
A. Yes, sir.
Q. Now, here you said that Mamerto Durana was asking from your
husband a stick of cigarette. Did you say this to the police.
A. I did not say that to the police.
Q. Then how could the police state it here if not given that information
by you?
A. I was still confused at that time because of the death of my
husband.
Q. Now, here in this excerpt of the blotter the person you identified to
the police who hacked your husband was not Rogelio Villanueva but
Mamerto Durana and apparently this is the information you gave to
the police?
A. No, sir, that is not what I told to (sic) the police.
Q. What did you tell to (sic) the police?
A. I told the policemen that it was Rogelio Villanueva who hacked my
husband.
Q. Why did you not tell the police that the accused here Mamerto
Durana was asking for a stick of cigarette from your husband that is
the reason why your husband went out of the house?

A. Maybe I was still confused at that time, I do not know.

Q. But even if you were confused the fact that the dead man here is
your husband you cannot be confused which one killed your husband
and what preceded?
A. I would not be confused on the person who killed my husband.
Q. The court feels that the situation is like this, that either you are
telling the truth or this complaint was only based on suspicion that it
was the two accused who conspired to kill your husband or maybe
you did not see the actual killing?
A. It is not only my suspicion because I saw that it was Rogelio
Villanueva who hacked my husband.
Q. So it is clear now that what you told the police was that Mamerto
Durana challenged your husband to a fight and not that Mamerto
Durana was asking for a stick of cigarette from your husband?
A. Yes sir. 20
Gloria Meniano's testimony in court jibes with the sworn statement she executed on 16 November
1992 before the police authorities. 21 This statement as well as her testimony clearly points to the
appellant as the person who challenged and drew Diosdado Meniano out of his house so that the latter
could be hacked without warning by his co-accused. The inconsistency alleged by accused-appellant
referred merely to a police investigation report stating that Meniano allegedly told the police authorities
that appellant asked for a cigarette stick from the deceased prompting the latter to go out of his house.
This cannot prevail over the positive identification in court by the witnesses for the prosecution that
appellant was one of two culprits criminally responsible for the death of Diosdado Meniano.
We hold that the trial court correctly found the existence of conspiracy between the two accused in
killing the deceased with the employment of treachery. Conspiracy can be inferred from and
established by the acts of the accused themselves when said acts point to a joint purpose and
design, concerted action and community of interests. 22 In the instant case, it was clearly shown that
while appellant purposely challenged the deceased to go out of his house, his co-accused secretly hid
among the plants outside of the house to await Diosdado and when the latter finally appeared, the former
suddenly and without warning pounched upon the victim and hacked him to death. Indeed Villanueva and
Durana gave their victim no chance to defend himself nor even to repel the assault on him considering the
unexpected attack on his person to ensure the accomplishment of their objective without risk to
themselves. Conspiracy between appellant and his co-accused having been established, the guilt or
culpability of one is imputable to both of them in equal degree 23 although accused Rogelio Villanueva still
has to be apprehended and then tried before he can be declared guilty as the evidence may warrant.
The penalty for murder under Art. 248 of the Revised Penal Code is reclusion temporal in its
maximum period to death. There being no mitigating or aggravating circumstances that attended the
commission of the offense, the trial court therefore correctly imposed the penalty of reclusion
perpetua upon accused Mamerto Durana.

WHEREFORE, the decision finding accused-appellant MAMERTO DURANA guilty of murder and
imposing upon him a prison term of reclusion perpetua, as well as ordering him to indemnify the
heirs of Diosdado Meniano in the amount of P50,000.00 is AFFIRMED, with costs against accusedappellant.
SO ORDERED.
G.R. No. 169042

October 5, 2011

ERDITO QUARTO, Petitioner,

vs.
THE HONORABLE OMBUDSMAN SIMEON MARCELO, CHIEF SPECIAL PROSECUTOR
DENNIS VILLA IGNACIO, LUISITO M. TABLAN, RAUL B. BORILLO, and LUIS A.
GAYYA, Respondents.
DECISION
BRION, J.:
Before the Court is a petition for certiorari and mandamus1 filed by Erdito Quarto (petitioner)
assailing the Ombudsmans January 7, 20042 and November 4, 20043 resolutions which granted
Luisito M. Tablan, Raul B. Borillo, and Luis A. Gayya (collectively, respondents) immunity from
prosecution, resulting in the respondents exclusion from the criminal informations filed before the
Sandiganbayan. The petitioner seeks to nullify the immunity granted to the respondents, and to
compel the Ombudsman to include them as accused in the informations for estafa through
falsification of public documents4 and for violation of Section 3(e), Republic Act (RA) No. 3019. 5
FACTUAL ANTECEDENTS
The petitioner is the Chief of the Central Equipment and Spare Parts Division (CESPD), 6 Bureau of
Equipment (BOE), Department of Public Works and Highways (DPWH), Port Area, Manila. As
CESPD Chief, he is also the Head of the Special Inspectorate Team (SIT) of the DPWH. 7 The
respondents are members of the SIT.8
On January 9, 2002, DPWH Secretary Simeon Datumanong created a committee to investigate
alleged anomalous transactions involving the repairs and/or purchase of spare parts of DPWH
service vehicles in 2001.9On January 17, 2002, the committee designated the DPWH Internal Audit
Service (IAS) as its Technical Working Group to conduct the actual investigation. 10
In the course of its investigation, the DPWH-IAS11 learned that the emergency repairs and/or
purchase of spare parts of DPWH service vehicles basically undergo the following documentary
process:
I. Determination of repairs and/or spare parts needed
a. The end-user requesting repair brings the service vehicle to the Motorpool Section,
CESPD for initial inspection and preparation of Job Order; and

b. Based on the Job Order, the SIT conducts a pre-repair inspection (to determine the
necessity of repair and whether the repair is emergency in nature) and prepares a PreRepair Inspection Report, with a recommendation for its approval by the CESPD Chief.
II. Preparation and Approval of Requisition for Supplies and/or Equipment with accompanying
documents (Job Order and Pre-Inspection Report)
a. The Procurement Section, Administrative Manpower Management Service (AMMS)
prepares the Requisition for Supplies and Equipment (RSE), the Canvass Quotation of three
Suppliers, the Certificate of Emergency Purchase, and the Certificate of Fair Wear and Tear;
b. The end-user signs the RSE with the recommending approval of the concerned head of
office; and
c. The AMMS Director approves the RSE.
III. Repair of Vehicles
a. The end-user selects the repair shop/auto supply from accredited establishments;
b. The selected repair shop/auto supply repairs the service vehicle and issues the
corresponding sales invoice and/or official receipt;
c. The end-user accepts the repair and executes a Certificate of Acceptance;
d. The SIT conducts a post-repair inspection (to check if the vehicle was repaired and
whether the repair conformed to specifications) and prepares a Post-Repair Inspection
Report, with a recommendation for its approval by the CESPD Chief. The Motorpool and the
end-user would prepare the Report of Waste Materials also for the signature of the CESPD
Chief; and
e. The Assets and Supply Management and Control Division recommends payment of the
expense/s incurred.
The processing of the payment of claims for reimbursement follows the above process.
Based on this procedure, the DPWH-IAS discovered that from March to December 2001, several
emergency repairs and/or purchase of spare parts of hundreds of DPWH service vehicles, which
were approved and paid by the government, did not actually take place, resulting in government
losses of approximately P143 million for this ten-month period alone.12
Thus, Atty. Irene D. Ofilada of the DPWH-IAS filed before the Office of the Ombudsman13 a
Complaint-Affidavit14and a Supplemental Complaint-Affidavit15 charging several high-ranking DPWH
officials and employees including the petitioner, the respondents, and other private individuals who
purportedly benefited from the anomalous transactions with Plunder, Money Laundering,
Malversation, and violations of RA No. 3019 and the Administrative Code. 16
Atty. Ofilada imputed the following acts to the petitioner:

With dishonesty and grave misconduct, [the petitioner] x x x approved four (4) job orders for [the]
repairs [and/or] purchase of spare parts of [the vehicle assigned to Atty. Ofilada,] noted the certificate
of urgency of said repairs [and/or] purchase[,] concurred with both the pre-repair and post repair
inspection reports thereon, participated in the accomplishment of the supporting Requisition for
Supplies and Equipment (RSE) x x x[,] and participated in the approval of the disbursement voucher
authorizing payment of said repairs as necessary and lawful [even if said vehicle was never referred
to the Motorpool Section, CESPD for repair].
The documents relating to [this vehicle] were filed within a period of one month (between September
to October 2001) [and] were used to authorize the payment of said non existent ghost repairs to the
damage and prejudice of the [DPWH.]17 (emphases ours)
On the other hand, Atty. Ofilada charged the respondents with the following:
With dishonesty and grave misconduct, [respondents] as members of the [SIT] xxx accomplished
and signed Pre-Repair Inspection and Post Repair Inspection Reports in support of the four job
orders [and made] it appear that the vehicle was inspected prior and after the alleged repair
[although they knew that the vehicle was never turned over for inspection]. The accomplishment of
the Pre-Repair and Post-Repair Inspection Report[s] led to the preparation of the Request for
Supplies and Equipment which was the basis of the preparation of the disbursement vouchers
ultimately authorizing the payment of the said repairs thru reimbursement scheme to the damage
and prejudice of the DPWH.
x x x the [P]re-[R]epair and [P]ost-[R]epair [I]nspection [R]eports of the [SIT] xxx are fictitious and
falsified as no actual inspection could have transpired[.] 18 (emphasis ours)
The petitioner denied the allegations against him, claiming that he merely relied on his subordinates
when he signed the job orders and the inspection reports.19 In contrast, the respondents admitted the
existence of irregularities in the repairs and/or purchase of spare parts of DPWH service vehicles,
and offered to testify and to provide evidence against the DPWH officials and employees involved in
the anomaly in exchange for their immunity from prosecution. The respondents submitted:
5.2 x x x since we assumed our duties as members of the SIT xxx, we observed that [the] DPWH
vehicles were being sent to the repair shop in violation of the prescribed guidelines governing the
emergency repair of a service vehicle. In most instances, service vehicles are immediately brought
to a car repair shop of the end-users choice without bringing it first to the [Motorpool Section,
CESPD, BOE] for the preparation of the required job order by [Gayya] of the Motorpool Section and
the pre-repair inspection to be conducted by the SIT. After the purported repairs are done, SIT
members are made to sign a post-repair inspection report which already includes a typed-in
recommendation for the payment of repairs, and the signature of the Head of the [SIT] indicating his
alleged concurrence with the findings of the SIT despite the absence of an actual inspection. The
post-repair inspection report is accompanied by the following attachments, to wit: a) a falsified job
order signed by the head of the [SIT] and the Chief of the Motorpool Section x x x [and] e) an empty
or falsified [p]re-repair inspection report[.]
5.3 Initially[,] we tried to curb the above anomalous practices being perpetrated by suppliers and
officials of the DPWH x x x [by making] known [our] objections to the questionable job orders for the
proposed repairs of DPWH service vehicles[,] thus:

a. On July, 9, 1999, [Tablan] wrote the Head of the SIT a memorandum x x x stating that the
job orders for [several identified vehicles] x x x violated the prohibition against splitting of job
orders x x x. [Tablan recommended for public bidding the proposed repairs for the said
vehicles].
b. In connection with the job orders involving [several identified vehicles] x x x Tablan and
Borillo wrote the Head of the SIT a Memorandum x x x recommending that the whereabouts
of the end-user be verified, and the service vehicle be re-inspected and/or disposed of.
c. Since the July 9, 1999 Memorandum was returned to x x x Tablan without any action being
undertaken by the SIT Chief, [Tablan and Borillo] reiterated the recommendation for the
public bidding of the proposed repairs described therein[.]
6. In our attempts to perform our sworn duties, however, we incurred the displeasure of the
suppliers, the head of [SIT] and other officials of the DPWH who threatened various
administrative sanctions against us if we should not accede to their wishes. x x x
7. In addition to the foregoing, there are other factors which conspired to prevent us from
properly performing our duties. For one, the DPWH processes an average of 3,000 repairs
per calendar year. Given the staggering number and extent of repairs, including the volume
of paperwork, it was practically impossible for [us] to implement the rules which proved too
tedious under the circumstance. As such, a "short-cut" of the rules was necessary to
accommodate the demands of the end-user, the suppliers, our superiors, and other
executives of the DPWH. x x x
8. The anomalous practices of the DPWH executives and suppliers in the purported repair of
DPWH service vehicles were indeed more widespread and rampant in the year 2001. As a
precautionary measure, we took the initiative of photocopying these sets of falsified
documents as they were presented to us before we affixed our respective signatures
thereon. We grouped these documents into Sets A and B[.]
xxxx
11. x x x That the service vehicle x x x has not been actually inspected by [Tablan and
Borillo] is attested to by the pre and post repair inspection reports initially bearing the
signature of the head of the SIT as concurring official without the required signatures of
Borillo and Tablan. More importantly, these DPWH officials did not bother, in a majority of
cases, to "cover their tracks" when they prepared and signed the pre and post repair
inspection reports on the same dates. Based on proper procedure, a post repair inspection
report is to be accomplished only after the preparation and approval of the Job Order, prerepair inspection report, RSE, Cash Invoice and Acceptance by the end-user. In this case,
the RSE, Cash Invoice and Certificate of Acceptance are dated much later than the postrepair inspection report. Since xxx there was no actual pre-repair and post-repair inspection
conducted, the foregoing sample instances paved the way for the "ghost repairs" of DPWH
service vehicles, to the detriment and prejudice of the government.
12. Because of the anomalous transactions, the joke circulating around the DPWH is that we
are actually the directors of the DPWH since we are the "last to sign," so to speak. That the
signature[s] of the [respondent] SIT members are merely pro forma is all the more

pronounced in a sample set consisting of a number of pre-repair inspection reports for a

particular month in 2001. The pre-repair inspection reports of the service vehicles indicated
therein are empty of any findings and bear the signature of the head of the SIT as concurring
official. All the foregoing documents above detailed negate the convenient excuse proffered
by DPWH executives that they sign the documents only after the SIT had inspected the
service vehicle and prepared the pre and post repair inspection reports.
xxxx
14.1 xxx the above examples are only a representative sampling of the extent of the
anomalous transactions involving DPWH service vehicles which can be considered "ghost
repairs." There are more instances wherein [we] are willing to testify to in exchange for
immunity from prosecution.20 (emphases ours)
After conducting preliminary investigation, the Ombudsman filed with the Sandiganbayan 21 several
informations charging a number of DPWH officials and employees with plunder,22 estafa through
falsification of official/commercial documents and violation of Section 3(e), RA No. 3019. On the
other hand, the Ombudsman granted the respondents request for immunity in exchange for their
testimonies and cooperation in the prosecution of the cases filed.
The petitioner initially filed a certiorari petition with the Sandiganbayan, questioning the
Ombudsmans grant of immunity in the respondents favor. The Sandiganbayan, however, dismissed
the petition for lack of jurisdiction and advised the petitioner to instead question the Ombudsmans
actions before this Court.23 Hence, this present petition.
THE PETITION
The petitioner argues that the Ombudsman should have included the respondents in the
informations since it was their inspection reports that actually paved the way for the commission of
the alleged irregularities.24 The petitioner asserts that the respondents criminal complicity clearly
appears since "no repair could have started" and "no payment for repairs, ghost or not," could have
been made without the respondents pre-repair and post-repair inspection reports. By excluding the
respondents in the informations, the Ombudsman is engaged in "selective prosecution" which is a
clear case of grave abuse of discretion.
The petitioner claims that before the Ombudsman may avail of the respondents as state witnesses,
they must be included first in the informations filed with the court. Thereafter, the Ombudsman can
ask the court for their discharge so that they can be utilized as state witnesses under the conditions
laid down in Section 17, Rule 119 of the Rules of Court since the court has the "sole province" to
determine whether these conditions exist.
These conditions require, inter alia, that there should be "absolute necessity" for the testimony of the
proposed witness and that he/she should not appear to be the "most guilty." The petitioner claims
that the respondents failed to comply with these conditions as the Ombudsmans "evidence," which
became the basis of the informations subsequently filed, shows that the respondents testimony is
not absolutely necessary; in fact, the manner of the respondents participation proves that they are
the "most guilty" in the premises.
THE COMMENTS OF THE OMBUDSMAN AND THE RESPONDENTS

The Ombudsman counters that RA No. 6770 (the Ombudsman Act of 1989) expressly grants him the
power to grant immunity from prosecution to witnesses. Given this power, the Ombudsman asserts
that Section 17, Rule 119 of the Rules of Court, which presupposes that the witness is originally
included in the information, is inapplicable to the present case since the decision on whom to
prosecute is an executive, not a judicial, prerogative. 25
The Ombudsman invokes this Courts policy of non-interference in the Ombudsmans exercise of his
discretion in matters involving his investigatory and prosecutorial powers. 26 The petitioners claim that
the respondents are the "most guilty" is a matter of defense which the petitioner may raise not in this
proceeding, but in the trial proper.27
On the other hand, the respondents submit that the Ombudsman has ample discretion in
determining who should be included in the information on the basis of his finding of probable cause.
The courts can only interfere in the Ombudsmans exercise of his discretion in case of a clear
showing of grave abuse of discretion, which the petitioner failed to establish. 28
THE PETITIONERS REPLY29
While conceding that the Ombudsman has the power and the discretion to grant immunity to the
respondents, the petitioner asserts that this power must be exercised within the confines of Section
17, Rule 119 of the Rules of Court which requires, inter alia, that the proposed witness must not
appear to be the "most guilty." By ignoring this provision and extending immunity to the respondents
whose false reports ultimately led to the payment for supposed repairs, and who are, thus, the "real
culprits,"30 the Ombudsman gravely abused his discretion a fatal defect correctible by certiorari.
Amplifying on the respondents "guilt," the petitioner cites the DPWHs decision in an administrative
case which the Civil Service Commission affirmed, finding the respondents guilty of dishonesty and
grave misconduct involving the same set of facts.31
OUR RULING
We dismiss the petition on two grounds: first, the petitioner did not avail of the remedies available to
him before filing this present petition; and, second, within the context of the Courts policy of noninterference with the Ombudsmans exercise of his investigatory and prosecutory powers, the
petitioner failed to establish that the grant of immunity to the respondents was attended by grave
abuse of discretion.
I. The petitioner did not exhaust remedies available in the ordinary course of law
As extraordinary writs, both Sections 1 (certiorari) and 3 (mandamus), Rule 65 of the Rules of Court
require, as a pre-condition for these remedies, that there be no other plain, speedy and adequate
remedy in the ordinary course of law. In the present case, the petitioner has not shown that he
moved for a reconsideration of the assailed resolutions based substantially on the same grounds
stated in this present petition.32 Neither did the petitioner file a motion for the inclusion of the
respondents in the informations before filing the present petition. 33These are adequate remedies that
the petitioner chose to forego; he bypassed these remedies and proceeded to seek recourse
through the present petition.34

Similarly, the petitioner has not shown that he filed the present petition with this Court within the
sixty-day reglementary period35 from notice of the assailed Ombudsmans resolutions. He did not do
so, of course, since he initially and erroneously filed a certiorari petition with the Sandiganbayan. We
remind the petitioner that the remedy from the Ombudsmans orders or resolutions in criminal cases
is to file a petition for certiorari under Rule 6536 with this Court.37
The petition likewise fails even on the merits.
II. The respondents exclusion in the informations is grounded on the Ombudsmans grant of
immunity
Mandamus is the proper remedy to compel the performance of a ministerial duty imposed by law
upon the respondent.38 In matters involving the exercise of judgment and discretion, mandamus may
only be resorted to, to compel the respondent to take action; it cannot be used to direct the manner
or the particular way discretion is to be exercised.39
In the exercise of his investigatory and prosecutorial powers, the Ombudsman is generally no
different from an ordinary prosecutor in determining who must be charged. 40 He also enjoys the
same latitude of discretion in determining what constitutes sufficient evidence to support a finding of
probable cause (that must be established for the filing of an information in court) 41 and the degree of
participation of those involved or the lack thereof. His findings and conclusions on these matters are
not ordinarily subject to review by the courts except when he gravely abuses his discretion, 42 i.e.,
when his action amounts to an evasion of a positive duty or a virtual refusal to perform a duty
enjoined by law, or when he acts outside the contemplation of law.43
If, on the basis of the same evidence, the Ombudsman arbitrarily excludes from an indictment some
individuals while impleading all others, the remedy of mandamus lies 44 since he is duty-bound, as a
rule, to include in the information all persons who appear responsible for the offense involved. 45
Citing the cases of Guiao v. Figueroa46 and Castro, Jr., et al. v. Castaeda and Liceralde,47 the
petitioner argues for the inclusion of the respondents in the criminal informations, pointing out that
the respondents accomplished the inspection reports that allegedly set in motion the documentary
process in the repair of the DPWH vehicles; these reports led to the payment by the government and
the consequent losses.
In Guiao and Castro, we ruled that mandamus lies to compel a prosecutor who refuses (i) to include
in the information certain persons, whose participation in the commission of a crime clearly appears,
and (ii) to follow the proper procedure for the discharge of these persons in order that they may be
utilized as prosecution witnesses.
These cited cases, however, did not take place in the same setting as the present case as they were
actions by the public prosecutor, not by the Ombudsman. In the present case, the Ombudsman
granted the respondents immunity from prosecution pursuant to RA No. 6770 which specifically
empowers the Ombudsman to grant immunity "in any hearing, inquiry or proceeding being
conducted by the Ombudsman or under its authority, in the performance or in the furtherance of its
constitutional functions and statutory objectives." The pertinent provision Section 17 of this law
provides:
Sec. 17. Immunities. x x x.

Under such terms and conditions as it may determine, taking into account the pertinent
provisions of theRules of Court, the Ombudsman may grant immunity from criminal prosecution to
any person whose testimony or whose possession and production of documents or other evidence
may be necessary to determine the truth in any hearing, inquiry or proceeding being conducted by
the Ombudsman or under its authority, in the performance or in the furtherance of its constitutional
functions and statutory objectives. The immunity granted under this and the immediately preceding
paragraph shall not exempt the witness from criminal prosecution for perjury or false testimony nor
shall he be exempt from demotion or removal from office. [emphasis ours]
To briefly outline the rationale for this provision, among the most important powers of the State is the
power to compel testimony from its residents; this power enables the government to secure vital
information necessary to carry out its myriad functions.48 This power though is not absolute. The
constitutionally-enshrined right against compulsory self-incrimination is a leading exception. The
states power to compel testimony and the production of a persons private books and papers run
against a solid constitutional wall when the person under compulsion is himself sought to be
penalized. In balancing between state interests and individual rights in this situation, the principles of
free government favor the individual to whom the state must yield. 49
1avvphi1

A state response to the constitutional exception to its vast powers, especially in the field of ordinary
criminal prosecution and in law enforcement and administration, is the use of an immunity
statute.50 Immunity statutes seek a rational accommodation between the imperatives of an
individuals constitutional right against self-incrimination51 (considered the fount from which all
statutes granting immunity emanate52) and the legitimate governmental interest in securing
testimony.53 By voluntarily offering to give information on the commission of a crime and to testify
against the culprits, a person opens himself to investigation and prosecution if he himself had
participated in the criminal act. To secure his testimony without exposing him to the risk of
prosecution, the law recognizes that the witness can be given immunity from prosecution. 54 In this
manner, the state interest is satisfied while respecting the individuals constitutional right against selfincrimination.
III. Nature of the power to grant immunity
The power to grant immunity from prosecution is essentially a legislative prerogative. 55 The exclusive
power of Congress to define crimes and their nature and to provide for their punishment
concomitantly carries the power to immunize certain persons from prosecution to facilitate the
attainment of state interests, among them, the solution and prosecution of crimes with high political,
social and economic impact.56 In the exercise of this power, Congress possesses broad discretion
and can lay down the conditions and the extent of the immunity to be granted. 57
Early on, legislations granting immunity from prosecution were few.58 However, their number
escalated with the increase of the need to secure vital information in the course and for purposes of
prosecution. These statutes59considered not only the importance of the testimony sought, but also
the unique character of some offenses and of some situations where the criminal participants
themselves are in the best position to give useful testimony.60RA No. 6770 or the Ombudsman Act of
1989 was formulated along these lines and reasoning with the vision of making the Ombudsman the
protector of the people against inept, abusive and corrupt government officers and
employees.61 Congress saw it fit to grant the Ombudsman the power to directly confer immunity to
enable his office to effectively carry out its constitutional and statutory mandate of ensuring effective
accountability in the public service.62

IV. Considerations in the grant of immunity

While the legislature is the source of the power to grant immunity, the authority to implement is
lodged elsewhere. The authority to choose the individual to whom immunity would be granted is a
constituent part of the process and is essentially an executive function. Mapa, Jr. v.
Sandiganbayan63 is instructive on this point:
The decision to grant immunity from prosecution forms a constituent part of the prosecution process.
It is essentially a tactical decision to forego prosecution of a person for government to achieve a
higher objective. It is a deliberate renunciation of the right of the State to prosecute all who appear to
be guilty of having committed a crime. Its justification lies in the particular need of the State to obtain
the conviction of the more guilty criminals who, otherwise, will probably elude the long arm of the
law. Whether or not the delicate power should be exercised, who should be extended the privilege,
the timing of its grant, are questions addressed solely to the sound judgment of the prosecution. The
power to prosecute includes the right to determine who shall be prosecuted and the corollary right to
decide whom not to prosecute. In reviewing the exercise of prosecutorial discretion in these areas,
the jurisdiction of the respondent court is limited. For the business of a court of justice is to be an
impartial tribunal, and not to get involved with the success or failure of the prosecution to prosecute.
Every now and then, the prosecution may err in the selection of its strategies, but such errors are not
for neutral courts to rectify, any more than courts should correct the blunders of the defense.
[emphasis ours]
RA No. 6770 fully recognizes this prosecutory prerogative by empowering the Ombudsman to grant
immunity, subject to "such terms and conditions" as he may determine. The only textual limitation
imposed by law on this authority is the need to take "into account the pertinent provisions of the
Rules of Court," i.e., Section 17, Rule 119 of the Rules of Court. 64 This provision requires that:
(a) There is absolute necessity for the testimony of the accused whose discharge is
requested;
(b) There is no other direct evidence available for the proper prosecution of the offense
committed, except the testimony of said accused;
(c) The testimony of said accused can be substantially corroborated in its material points;
(d) Said accused does not appear to be the most guilty; and
(e) Said accused has not at any time been convicted of any offense involving moral
turpitude.
This Rule is itself unique as, without detracting from the executive nature of the power to prosecute
and the power to grant immunity, it clarifies that in cases already filed with the courts, 65 the
prosecution merely makes a proposal and initiates the process of granting immunity to an accusedwitness in order to utilize him as a witness against his co-accused.66 As we explained in Webb v. De
Leon67 in the context of the Witness Protection, Security and Benefit Act:
The right to prosecute vests the prosecutor with a wide range of discretion the discretion of
whether, what and whom to charge, the exercise of which depends on a smorgasbord of factors
which are best appreciated by prosecutors. We thus hold that it is not constitutionally impermissible

for Congress to enact R.A. No. 6981 vesting in the Department of Justice the power to determine
who can qualify as a witness in the program and who shall be granted immunity from prosecution.
Section 9 of Rule 119 does not support the proposition that the power to choose who shall be a state
witness is an inherent judicial prerogative. Under this provision, the court is given the power to
discharge a state witness only because it has already acquired jurisdiction over the crime and the
accused. The discharge of an accused is part of the exercise of jurisdiction but is not a recognition of
an inherent judicial function. [emphasis ours]
Thus, it is the trial court that determines whether the prosecutions preliminary assessment of the
accused-witness qualifications to be a state witness satisfies the procedural norms. 68 This
relationship is in reality a symbiotic one as the trial court, by the very nature of its role in the
administration of justice,69 largely exercises its prerogative based on the prosecutors findings and
evaluation. On this point, the Courts pronouncement in the 1918 case of United States v.
Abanzado70 is still very much relevant:
A trial judge cannot be expected or required to inform himself with absolute certainty at the very
outset of the trial as to everything which may be developed in the course of the trial in regard to the
guilty participation of the accused in the commission of the crime charged in the complaint. If that
were practicable or possible there would be little need for the formality of a trial. He must rely in large
part upon the suggestions and the information furnished by the prosecuting officer in coming to his
conclusions as to the "necessity for the testimony of the accused whose discharge is requested"; as
to the availability or nonavailability of other direct or corroborative evidence; as to which of the
accused is "most guilty," and the like.
Notably, this cited case also observes that the Rules-provided guidelines are mere express
declarations of the conditions which the courts ought to have in mind in exercising their sound
discretion in granting the prosecutions motion for the discharge of an accused. 71 In other words,
these guidelines are necessarily implied in the discretion granted to the courts.
RA No. 6770 recognizes that these same principles should apply when the Ombudsman directly
grants immunity to a witness. The same consideration to achieve the greater and higher purpose
of securing the conviction of the most guilty and the greatest number among the accused 72 is
involved whether the grant is secured by the public prosecutor with active court intervention, or by
the Ombudsman. If there is any distinction at all between the public prosecutor and the Ombudsman
in this endeavor, it is in the specificity of and the higher priority given by law to the Ombudsmans
purpose and objective to focus on offenses committed by public officers and employees to ensure
accountability in the public service. This accounts for the Ombudsmans unique power to grant
immunity by itself and even prior to the filing of information in court, a power that the public
prosecutor himself generally does not enjoy.73
V. Extent of judicial review of a bestowed immunity
An immunity statute does not, and cannot, rule out a review by this Court of the Ombudsmans
exercise of discretion. Like all other officials under our constitutional scheme of government, all their
acts must adhere to the Constitution.74 The parameters of our review, however, are narrow. In the
first place, what we review are executive acts of a constitutionally independent Ombudsman. 75 Also,
we undertake the review given the underlying reality that this Court is not a trier of facts. Since the
determination of the requirements under Section 17, Rule 119 of the Rules of Court is highly factual
in nature, the Court must, thus, generally defer to the judgment of the Ombudsman who is in a better

position (than the Sandiganbayan or the defense) to know the relative strength and/or weakness of
the evidence presently in his possession and the kind, tenor and source of testimony he needs to
enable him to prove his case.76 It should not be forgotten, too, that the grant of immunity effectively
but conditionally results in the extinction of the criminal liability the accused-witnesses might have
incurred, as defined in the terms of the grant.77 This point is no less important as the grant directly
affects the individual and enforces his right against self-incrimination. These dynamics should
constantly remind us that we must tread softly, but not any less critically, in our review of the
Ombudsmans grant of immunity.
From the point of view of the Courts own operations, we are circumscribed by the nature of the
review powers granted to us under the Constitution and the Rules of Court. We rule on the basis of a
petition for certiorari under Rule 65 and address mainly the Ombudsmans exercise of discretion.
Our room for intervention only occurs when a clear and grave abuse of the exercise of discretion is
shown. Necessarily, this limitation similarly reflects on the petitioner who comes to us on the
allegation of grave abuse of discretion; the petitioner himself is bound to clearly and convincingly
establish that the Ombudsman gravely abused his discretion in granting immunity in order to fully
establish his case.78
As a last observation, we note the unique wording of the grant of the power of immunity to the
Ombudsman. It is not without significance that the law encompassed (and appears to have pointedly
not separated) the consideration of Section 17, Rule 119 of the Rules of Court within the broader
context of "such terms and conditions as the Ombudsman may determine." This deliberate statutory
wording, to our mind, indicates the intent to define the role of Section 17, Rule 119 in the
Ombudsmans exercise of discretion. It suggests a broad grant of discretion that allows the
Ombudsmans consideration of factors other than those outlined under Section 17, Rule 119; the
wording creates the opening for the invocation, when proper, of the constitutional and statutory
intents behind the establishment of the Ombudsman.
Based on these considerations, we shall now proceed to determine whether the petitioner has
clearly and convincingly shown that the Ombudsman gravely abused his discretion in granting
immunity to the respondents.
Va. Absolute necessity for testimony of the respondents
Under the factual and legal situation before us, we find that the petitioner miserably failed to clearly
and convincingly establish that the Ombudsman gravely abused his discretion in granting immunity
to the respondents. While he claims that both conditions (a) and (d) of Section 17, Rule 119 of the
Rules of Court are absent, we observe his utter lack of argument addressing the "absolute
necessity" of the respondents testimony. In fact, the petitioner simply concluded that the requirement
of "absolute necessity" does not exist based on the Ombudsmans "evidence," without even
attempting to explain how he arrived at this conclusion.
We note in this regard that the respondents proposed testimony tends to counteract the petitioners
personal defense of good faith (i.e., that he had no actual participation and merely relied on his
subordinates) in approving the job orders and in his concurrence with the inspection reports. In their
Joint Counter-Affidavit, the respondents narrated the accused DPWH officials/employees flagrant
disregard of the proper procedure and the guidelines in the repair of DPWH service vehicles which
culminated in losses to the government. Particularly telling is the respondents statement that a
number of pre-repair inspection reports for a particular month in 2001 bear the petitioners signature

despite the fact that these reports are not supported by findings from the respondents as SIT
members.79 This kind of statement cannot but impact on how the Ombudsman viewed the question
of "absolute necessity" of the respondents testimony since this testimony meets the defense of good
faith head-on to prove the prosecutions allegations. Under these circumstances, we cannot
preempt, foreclose, nor replace with our own the Ombudsmans position on this point as it is clearly
not without basis.
Vb. The respondents do not appear to be the "most guilty"
Similarly, far from concluding that the respondents are the "most guilty," we find that the
circumstances surrounding the preparation of the inspection reports can significantly lessen the
degree of the respondents criminal complicity in defrauding the government. Again, this is a matter
that the Ombudsman, in the exercise of his discretion, could not have avoided when he considered
the grant of immunity to the respondents.
We note, too, that while the petitioner incessantly harped on the respondents role in the preparation
of the inspection reports, yet, as head of the SIT, he was eerily silent on the circumstances
surrounding this preparation, particularly on the respondents explanation that they tried "to curb the
anomalous practices"80 in the DPWH. We are aware, of course, that the present petition merely
questions the immunity granted to the respondents and their consequent exclusion from the
informations; it does not assail the finding of probable cause against the petitioner himself. This
current reality may explain the petitioners silence on the respondents assertions; the respondents
allegations, too, still have to be proven during the trial. However, these considerations are not
sufficient to save the petitioner from the necessity of controverting the respondents allegations, even
for the limited purpose of the present petition, since his counter-assertion on this basic ground (that
the respondents bear the most guilt) is essential and critical to the viability of his petition.
In considering the respondents possible degree of guilt, we are keenly aware of their admission that
they resorted to a "short-cut"81 in the procedure to be observed in the repairs and/or purchase of
emergency parts of DPWH service vehicles. To our mind, however, this admission does not
necessarily result in making the respondents the "most guilty" in the premises; not even a
semblance of being the "most guilty" can be deduced therefrom.
In sum, the character of the respondents involvement vis--vis the crimes filed against the DPWH
officials/employees, coupled with the substance of the respondents disclosures, compels this Court
to take a dim view of the position that the Ombudsman gravely abused his discretion in granting
immunity to the respondents. The better view is that the Ombudsman simply saw the higher value of
utilizing the respondents themselves as witnesses instead of prosecuting them in order to fully
establish and strengthen its case against those mainly responsible for the criminal act, as indicated
by the available evidence.
1avvphi1

VI. The respondents administrative liability has no bearing at all on the immunity granted to the
respondents
The fact that the respondents had previously been found administratively liable, based on the same
set of facts, does not necessarily make them the "most guilty." An administrative case is altogether
different from a criminal case, such that the disposition in the former does not necessarily result in
the same disposition for the latter, although both may arise from the same set of facts. 82 The most
that we can read from the finding of liability is that the respondents have been found to be

administratively guilty by substantial evidence the quantum of proof required in an administrative

proceeding. The requirement of the Revised Rules of Criminal Procedure (which RA No. 6770
adopted by reference) that the proposed witness should not appear to be the "most guilty" is
obviously in line with the character83 and purpose84 of a criminal proceeding, and the much stricter
standards85 observed in these cases. They are standards entirely different from those applicable in
administrative proceedings.
VII. The policy of non-interference with the Ombudsmans investigatory and prosecutory powers
cautions a stay of judicial hand
The Constitution and RA No. 6770 have endowed the Office of the Ombudsman with a wide latitude
of investigatory and prosecutory powers, freed, to the extent possible within our governmental
system and structure, from legislative, executive, or judicial intervention, and insulated from outside
pressure and improper influence.86Consistent with this purpose and subject to the command of
paragraph 2, Section 1, Article VIII of the 1987 Constitution, 87 the Court reiterates its policy of noninterference with the Ombudsmans exercise of his investigatory and prosecutory powers (among
them, the power to grant immunity to witnesses88), and respects the initiative and independence
inherent in the Ombudsman who, "beholden to no one, acts as the champion of the people and the
preserver of the integrity of the public service."89 Ocampo IV v. Ombudsman90 best explains the
reason behind this policy:
The rule is based not only upon respect for the investigatory and prosecutory powers granted by the
Constitution to the Office of the Ombudsman but upon practicality as well. Otherwise, the functions
of the courts will be grievously hampered by innumerable petitions assailing the dismissal of
investigatory proceedings conducted by the Office of the Ombudsman with regard to complaints filed
before it, in much the same way that the courts would be extremely swamped if they could be
compelled to review the exercise of discretion on the part of the fiscals or prosecuting attorneys each
time they decide to file an information in court or dismiss a complaint by a private complainant.
Following this policy, we deem it neither appropriate nor advisable to interfere with the
Ombudsmans grant of immunity to the respondents, particularly in this case, where the petitioner
has not clearly and convincingly shown the grave abuse of discretion that would call for our
intervention.
WHEREFORE, the petition is hereby DISMISSED. Costs against the petitioner.
SO ORDERED.
G.R. No. 196842

October 9, 2013

ALFREDO ROMULO A. BUSUEGO, Petitioner,

vs.
OFFICE OF THE OMBUDSMAN MINDANAO and ROSA S. BUSUEGO, Respondents.
DECISION
PEREZ, J.:

Before us is a petition for certiorari seeking to annul and set aside the Resolution of the Ombudsman
dated 17 April 20091 and Order dated October 2010,2 which directed the tiling of an Information for
Concubinage under Article 334 of the Revised Penal Code against petitioner Alfredo Romulo A.
Busuego (Alfredo).
We chronicle the facts thus.
Private respondent Rosa S. Busuego (Rosa) filed a complaint for: (1) Concubinage under Article 334
of the Revised Penal Code; (2) violation of Republic Act No. 9262 (Anti-Violence Against Women
and Their Children); and (3) Grave Threats under Article 282 of the Revised Penal Code, before the
Office of the Ombudsman against her husband, Alfredo, with designation Chief of Hospital, Davao
Regional Hospital, Apokon, Tagum City.
In her complaint, Rosa painted a picture of a marriage in disarray.
She and Alfredo were married on 12 July 1975 at the Assumption Church, Davao City. Their union
was blessed with two (2) sons, Alfred and Robert, born in 1976 and 1978, respectively. Sometime in
1983, their marriage turned sour. At this time, Rosa unearthed photographs of, and love letters
addressed to Alfredo from, other women. Rosa confronted Alfredo who claimed ignorance of the
existence of these letters and innocence of any wrongdoing.
Purportedly, Alfredo very rarely stayed at home to spend time with his family. He would come home
late at night on weekdays and head early to work the next day; his weekends were spent with his
friends, instead of with his family. Rosa considered herself lucky if their family was able to spend a
solid hour with Alfredo.
Around this time, an opportunity to work as nurse in New York City, United States of America (US)
opened up for Rosa. Rosa informed Alfredo, who vehemently opposed Rosas plan to work abroad.
Nonetheless, Rosa completed the necessary requirements to work in the US and was scheduled to
depart the Philippines in March 1985.
Before leaving, Rosa took up the matter again with Alfredo, who remained opposed to her working
abroad. Furious with Rosas pressing, Alfredo took his loaded gun and pointed it at Rosas right
temple, threatening and taunting Rosa to attempt to leave him and their family. Alfredo was only
staved off because Rosas mother arrived at the couples house. Alfredo left the house in a rage:
Rosa and her mother heard gun shots fired outside.
Because of that incident, Rosa acted up to her plan and left for the US. While in the US, Rosa
became homesick and was subsequently joined by her children who were brought to the US by
Alfredo. Rosa singularly reared them: Alfred, from grade school to university, while Robert, upon
finishing high school, went back to Davao City to study medicine and lived with Alfredo.
During that time his entire family was in the US, Alfredo never sent financial support. In fact, it was
Rosa who would remit money to Alfredo from time to time, believing that Alfredo had stopped
womanizing. Rosa continued to spend her annual vacation in Davao City.
Sometime in 1997, Rosa learned that a certain Emy Sia (Sia) was living at their conjugal home.
When Rosa asked Alfredo, the latter explained that Sia was a nurse working at the Regional Hospital
in Tagum who was in a sorry plight as she was allegedly being raped by Rosas brother-in-law. To

get her out of the situation, Alfredo allowed Sia to live in their house and sleep in the maids quarters.
At that time, Rosa gave Alfredo the benefit of the doubt.
In October 2005, Rosa finally learned of Alfredos extra-marital relationships. Robert, who was
already living in Davao City, called Rosa to complain of Alfredos illicit affairs and shabby treatment
of him. Rosa then rang up Alfredo which, not surprisingly, resulted in an altercation. Robert executed
an affidavit, corroborating his mothers story and confirming his fathers illicit affairs:
1. In varying dates from July 1997 to January 1998, Robert found it strange that Sia slept
with his father in the conjugal bedroom.
2. He did not inform his mother of that odd arrangement as he did not want to bring trouble to
their family.
3. Eventually, Sia herself confirmed to Robert that she was Alfredos mistress.
4. During this period of concubinage, Sia was hospitalized and upon her discharge, she and
Alfredo resumed their cohabitation.
5. The relationship between Alfredo and Sia ended only when the latter found another
boyfriend. 6. His father next took up an affair with Julie de Leon (de Leon) whom Robert met
when de Leon fetched Alfredo on one occasion when their vehicle broke down in the middle
of the road.
7. Robert read various Short Message Service (SMS) exchanges between Julie and Alfredo
on Alfredos mobile phone.
8. On 23, 24, 30 and 31 December 2004, de Leon stayed in Rosas and Alfredos conjugal
dwelling and stayed in the conjugal room the entire nights thereof.
The househelpers, Melissa S. Diambangan and Liza S. Diambangan, likewise executed a joint
affidavit in support of Rosas allegations:
1. They had seen Sia sleep and stay overnight with Alfredo in the conjugal bedroom.
2. Sia herself, who called Alfredo "Papa," confirmed the twos sexual relationship.
3. On 23, 24, 30 and 31 December 2004, de Leon stayed in the conjugal dwelling and slept
overnight with Alfredo in the conjugal room.
As a result, Rosa and their other son Alfred forthwith flew to Davao City without informing Alfredo of
their impending return. Upon Rosas return, she gathered and consolidated information on her
husbands sexual affairs.
Pursuant to her charges of violation of Republic Act No. 9262 and Grave Threats, Rosa averred that
during the course of their marriage, apart from the marital infidelity, Alfredo physically and verbally
abused her and her family. On one occasion after Rosa confirmed the affairs, Alfredo threatened
their family, including other members of their household that he will gun them down should he

chance upon them in Tagum City. Lastly, on 22 March 2006, Alfredo purportedly dismissed house
helper Liza Diambangan and threatened her.
As expected, Alfredo, in his counter-affidavit, denied all accusations against him and alleged that:
1. Rosa, despite his pleas for them to remain and raise their family in the Philippines, chose
to live in the US, separate from him.
2. Rosas allegations that he had kept photographs of, and love letters from, other women,
were only made to create a cause of action for the suit for Legal Separation which Rosa filed
sometime in 1998.
3. It was highly improbable that he committed acts of concubinage with Sia and de Leon
since from the time he became Chief of Hospital of the Davao Regional Hospital in Tagum
City, he practically stayed all days of the work week in the hospital. The instances he went
home were few and far between, only to check on the house and provide for household
expenses.
4. When Robert returned to Davao City and lived with him, it became more impossible for
him to have shacked up with Sia and de Leon in the conjugal dwelling.
5. With respect to his alleged relationship with Sia, without admitting to anything, that Sia, for
a time, may have lived in his and Rosas conjugal house, staying at the maids quarters.
However, at no instance did he keep Sia as his mistress in the conjugal dwelling.
6. As regards the dates of December 23, 24, 30 and 31, 2004 when he supposedly stayed
with de Leon in the conjugal room, Alfredo pointed out that said dates were busiest days of
the year in the hospital where his presence as Chief of Hospital is most required.
7. By Rosas own admission, she first learned of Alfredos alleged concubinage in 1997, and
yet she still continued with her yearly visits to Alfredo in Davao City. Those instances ought
to be construed as condonation of the concubinage.
8. Significantly, the alleged concubines, Sia and de Leon, were not impleaded along with
Alfredo as party-respondents in the complaint in violation of Article 344 of the Revised Penal
Code.
Alfredo made short shrift of Rosas charges of violation of Republic Act No. 9262 and Grave Threats.
He claimed that, at no time, did he threaten, the lives or, to harm his wife, their family and members
of their household. He only berated the help for perpetrating gossip about his behavior and conduct.
In their subsequent exchange of responsive pleadings, Rosa maintained Alfredos culpability, and
naturally, Alfredo claimed innocence.
In the course thereof, the procedural issue of Rosas failure to implead Sia and de Leon as
respondents cropped up. Alfredo insisted that Rosas complaint ought to be dismissed for failure to
implead his alleged concubines as respondents.

Specifically to dispose of that issue, the Ombudsman scheduled a clarificatory hearing where both
Rosa and Alfredo were represented by their respective counsels:
x x x Rosa was apprised of the need to implead the two alleged mistresses in the complaint for
Concubinage pursuant to Article 344 of the Revised Penal Code. Although Alfredo objected to the
amendment of the complaint, at this point in time, due to the alleged procedural lapse committed by
Rosa, this Office explained to the parties that the position of Alfredo would just prolong the conduct
of the preliminary investigation since Rosa can just re-file her complaint. The doctrine of res judicata
does not apply in the preliminary investigation stage. Hence, the counsel for Rosa was directed to
submit to this Office the addresses of the alleged mistresses so that they could be served with the
Order directing them to file their counter-affidavits.
Rosa submitted an Ex-Parte Manifestation on the last known addresses of Julie de Leon and Emy
Sia. x x x.3
On 24 June 2008, the Ombudsman issued a Joint Order4 impleading Sia and de Leon as partyrespondents in the complaint for Concubinage and directing them to submit their respective counteraffidavits within a period of time. Copies of the Joint Order were mailed to Sias and de Leons last
known addresses, as provided by Rosa to the Ombudsman.
Sia and de Leon did not submit their respective counter-affidavits: a copy of the Joint Order sent to
Sias last known address was returned to the Ombudsman with the notation on the Registry Return
Receipt No. 1624 "Return to Sender; removed," while a copy thereof to de Leon was received on 3
September 2008 by Ananias de Leon.5
Apparently still opposed to the Ombudsmans ruling to simply amend the complaint and implead
therein Alfredos alleged mistresses, Alfredo filed his Comment to the 24 June 2008 Order with
Motion to Dismiss and/or Refer the charges to the Appropriate Provincial/City Prosecutor 6 praying for
dismissal of the complaint for: (1) failure to implead the two mistresses in violation of Article 344 of
the Revised Penal Code; and in the alternative, (2) referral of the complaint to the Office of the City
Prosecutor as provided in OMB-DOJ Circular No. 95-001.
Rosa filed a Reply to that latest pleading of Alfredo.
On 17 April 2009, the Ombudsman issued the herein assailed Resolution, disposing of the
procedural issues:
Before dwelling into the merits of the case, this Office finds an urgent need to resolve the ancillary
issues raised by petitioner Dr. Busuego on: 1.) the alleged legal infirmity of Rosass initiatory
pleading by resorting to a procedural short cut which would result to the delay in the disposition of
this case; and 2.) the criminal charges imputed are not in relation to office, hence, the Office of the
Provincial/City Prosecutor shall investigate and prosecute this case pursuant to OMB-DOJ Joint
Circular No. 95-001, Series of 1995.
On the first issue, this Office observed that Busuego had already pointed out in his counter-Affidavit
the alleged deficiency in the complaint. Rosa also explained in her Reply that the names of the
mistresses were categorically mentioned in the complaint. She averred that this Office is empowered
to investigate and prosecute any act or omission of a public official or employee to the exclusion of
non-government employees. She stated that the inclusion of the alleged concubines in the

Information to be filed in court is a matter of procedure, within the competence of the investigating
prosecutor.
In order to clarify some matters, including the said issue, with the parties, the clarificatory hearing
was conducted. It was explained in the said hearing the need to implead the alleged concubines in
this case pursuant to Article 344 of the Revised Penal Code and to obviate the proceedings, Rosa
was directed to submit the addresses of the alleged concubines. Busuegos position that the said
short cut procedure would delay the proceedings is misplaced. If the case will be dismissed based
on procedural infirmity, Rosa could still amend her complaint and re-file this case since the doctrine
of res judicata does not apply in the preliminary investigation stage of the proceedings.
On the second issue, the motion of Busuego to refer this case to the Office of the City Prosecutor
was belatedly filed. Record would show that the motion praying for the referral of this case to the
Office of the City Prosecutor was filed on 17 July 2008, after the parties have already filed all their
pleadings and the case is now ripe for resolution. Further, referral to the said office is not mandatory
as cited in the said Joint Circular.7
In the same Resolution, the Ombudsman, ultimately, found probable cause to indict only Alfredo and
Sia of Concubinage and directed the filing of an Information against them in the appropriate court:
WHEREFORE, in view of the foregoing, this Office finds a prima facie case for violation of Article 334
of the Revised Penal Code (concubinage) and that petitioner ALFREDO ROMULO BUSUEGO y
ABRIO, and EMY SIA, are probably guilty thereof.
Let the herewith Information be filed in the appropriate court.
The charges for: 1.) Concubinage against Alfredo Romulo Busuego y Abrio and Julie de Leon; 2.)
Grave Threats against Alfredo Romulo y Abrio; and 3.) violation of RA 9262 (Anti-Violence Against
Women and Children Act), are hereby DISMISSED for lack of merit.8
Alfredo filed a Partial Motion for Reconsideration excepting to the Ombudsmans ruling on the
automatic inclusion of Sia as respondent in the complaint and their indictment for the crime of
Concubinage. Alfredo is adamant that Rosas complaint should have, at the outset, impleaded his
alleged concubines. Failing such, the Ombudsman cannot resort to automatic inclusion of partyrespondents, erroneously finding him and Sia prima facie culpable for Concubinage. For good
measure, Alfredo pointed out that from Rosas own allegations, she had condoned or pardoned
Alfredos supposed concubinage. Alfredo likewise submitted Liza S. Diambangans affidavit,
recanting her previous affidavit corroborating Rosas charges.
Nonetheless, the Ombudsman stood pat on its ruling, declared that the Partial Motion for
Reconsideration was filed out of time, and gave scant attention to Liza S. Diambangans affidavit of
recantation:
WHEREFORE, all the foregoing considered, this instant Motion for Reconsideration is hereby
DENIED. The findings in the questioned Resolution hereby remains undisturbed. Let the Information
for Concubinage be filed in the proper court against herein Busuego. 9

Alfredo now comes to us on petition for certiorari alleging grave abuse of discretion in the
Ombudsmans finding of probable cause to indict him and Sia for Concubinage. Alfredos badges of
grave abuse of discretion are the following:
1. The Ombudsman railroaded the inclusion of Sia and de Leon as party-respondents in the
complaint;
2. The Ombudsman did not refer the complaint to the Department of Justice, considering that
the offense of Concubinage is not committed in relation to his office as Chief of Hospital;
3. The Ombudsman glossed over Rosas condonation of Alfredos supposed Concubinage
when she alleged in the complaint that she had known of Alfredos womanizing and believed
him to have changed his ways;
4. The Ombudsman did not take into consideration the affidavit of recantation of Liza
Diambangan; and
5. The Ombudsman found probable cause to indict Alfredo and Sia for Concubinage.
We sustain the Ombudsman.
The Ombudsman has full discretionary authority in the determination of probable cause during a
preliminary investigation.10 This is the reason why judicial review of the resolution of the Ombudsman
in the exercise of its power and duty to investigate and prosecute felonies and/or offenses of public
officers is limited to a determination of whether there has been a grave abuse of discretion
amounting to lack or excess of jurisdiction. Courts are not empowered to substitute their judgment
for that of the Ombudsman.11
By grave abuse of discretion is meant such capricious and whimsical exercise of judgment
tantamount to lack of jurisdiction.12 The abuse of discretion must be so patent and gross as to
amount to an evasion of a positive duty or a virtual refusal to perform a duty enjoined by law, or to
act at all in contemplation of law, as where the power is exercised in an arbitrary and despotic
manner by reason of passion or hostility.13 In this regard, petitioner failed to demonstrate the
Ombudsman's abuse, much less grave abuse, of discretion.
First. Alfredo insists that the Ombudsmans automatic inclusion, over his vehement objections of Sia
and de Leon as party-respondents, violates Article 344 of the Revised Penal Code and Section 5,
Rule 110 of the Rules of Court, which respectively provide:
Art. 344. Prosecution of the crimes of adultery, concubinage, seduction, abduction, rape and acts of
lasciviousness. The crimes of adultery and concubinage shall not be prosecuted except upon a
complaint filed by the offended spouse.
The offended party cannot institute criminal prosecution without including both the guilty parties, if
they are both alive, nor, in any case, if he shall have consented or pardoned the offenders.
Section 5. Who must prosecute criminal action. xxx.

The crimes of adultery and concubinage shall not be prosecuted except upon a complaint filed by
the offended spouse. The offended party cannot institute criminal prosecution without including the
guilty parties, if both are alive, nor, in any case, if the offended party has consented to the offense or
pardoned the offenders.
We do not agree.
The submission of Alfredo is belied by the fact that the Ombudsman merely followed the provisions
of its Rules of Procedure. Thus:
Rule II
PROCEDURE IN CRIMINAL CASES
xxxx
Section 2. Evaluation Upon evaluating the complaint, the investigating officer shall recommend
whether it may be:
a) dismissed outright for want of palpable merit;
b) referred to respondent for comment;
c) indorsed to the proper government office or agency which has jurisdiction over the case;
d) forwarded to the appropriate office or official for fact-finding investigation;
e) referred for administrative adjudication; or
f) subjected to a preliminary investigation.
xxxx
Section 4. Procedure The preliminary investigation of cases falling under the jurisdiction of the
Sandiganbayan and Regional Trial Courts shall be conducted in the manner prescribed in Section 3,
Rule 112 of the Rules of Court, subject to the following provisions:
a) x x x
b) After such affidavits have been secured, the investigating officer shall issue an order,
attaching thereto a copy of the affidavits and other supporting documents, directing the
respondents to submit, within ten (10) days from receipt thereof, his counter-affidavits and
controverting evidence with proof of service thereof on the complainant. The complainant
may file reply affidavits within ten (10) days after service of the counter-affidavits.
c) If the respondents does not file a counter-affidavit, the investigating officer may consider
the comment filed by him, if any, as his answer to the complaint. In any event, the
respondent shall have access to the evidence on record.

d) No motion to dismiss shall be allowed except for lack of jurisdiction.

Neither may a motion for a bill of particulars be entertained.
If respondent desires any matter in the complainants affidavit to be clarified, the
particularization thereof may be done at the time of the clarificatory questioning in the
manner provided in paragraph (f) of this section.
e) If the respondents cannot be served with the order mentioned in paragraph 6 hereof, or
having been served, does not comply therewith, the complaint shall be deemed submitted for
resolution on the basis of the evidence on the record.
f) If, after the filing of the requisite affidavits and their supporting evidences, there are facts
material to the case which the investigating officer may need to be clarified on, he may
conduct a clarificatory hearing during which the parties shall be afforded the opportunity to
be present but without the right to examine or cross-examine the witness being questioned.
Where the appearance of the parties or witnesses is impracticable, the clarificatory
questioning may be conducted in writing, whereby the questions desired to be asked by the
investigating officer or a party shall be reduced into writing and served on the witness
concerned who shall be required to answer the same in writing and under oath.
g) Upon the termination of the preliminary investigation, the investigating officer shall forward
the records of the case together with his resolution to the designated authorities for their
appropriate action thereon.
No information may be filed and no complaint may be dismissed without the written authority or
approval of the ombudsman in cases falling within the jurisdiction of the Sandiganbyan, or of the
proper Deputy Ombudsman in all other cases. (Emphasis supplied).
Notably, Rosas complaint contained not just the Concubinage charge, but other charges: violation of
Republic Act No. 9262 and Grave Threats. Upon the Ombudsmans perusal, the complaint was
supported by affidavits corroborating Rosas accusations. Thus, at that stage, the Ombudsman
properly referred the complaint to Alfredo for comment. Nonetheless, while the Ombudsman found
no reason for outright dismissal, it deemed it fit to hold a clarificatory hearing to discuss the
applicability of Article 344 of the Revised Penal Code, the issue having been insisted upon by
Alfredo.
Surely the procedural sequence of referral of the complaint to respondent for comment and
thereafter the holding of a clarificatory hearing is provided for in paragraph b, Section 2 and
paragraphs d and f, Section 4 of Rule II, which we have at the outset underscored. Thus did the
Ombudsman rule:
In order to clarify some matters, including the said issue, with the parties, the clarificatory hearing
was conducted. It was explained in the said hearing the need to implead the alleged concubines in
this case pursuant to Article 344 of the Revised Penal Code and to obviate the proceedings, Rosa
was directed to submit the addresses of the alleged concubines. Busuegos position that the said
short cut procedure would delay the proceedings is misplaced. If the case will be dismissed based
on procedural infirmity, Rosa could still amend her complaint and re-file this case since the doctrine
of res judicata does not apply in the preliminary investigation stage of the proceedings. 14

The Ombudsman merely facilitated the amendment of the complaint to cure the defect pointed out
by Alfredo. We agree with the Ombudsman that it would be superfluous to dismiss the complaint
when amendment thereof is allowed by its Rules of Procedure15 and the Rules of Court.16
Second. Alfredo claims that the Ombudsman should have referred Rosas complaint to the
Department of Justice (DOJ), since the crime of Concubinage is not committed in relation to his
being a public officer. This is not a new argument.
The Ombudsmans primary jurisdiction, albeit concurrent with the DOJ, to conduct preliminary
investigation of crimes involving public officers, without regard to its commission in relation to office,
had long been settled in Sen. Honasan II v. The Panel of Investigating Prosecutors of DOJ, 17 and
affirmed in subsequent cases:
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, the 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
ALL GRAFT INVESTIGATION/SPECIAL PROSECUTIONOFFICERS OF THE OFFICE OF THE
OMBUDSMAN
TO: ALL REGIONAL STATE PROSECUTORS AND THEIR ASSISTANTS, PROVINCIAL/CITY
PROSECUTORS AND THEIR ASSISTANTS, STATE PROSECUTORS ANDPROSECUTING
ATTORNEYS OF THE DEPARTMENT OFJUSTICE.
SUBJECT: HANDLING COMPLAINTS FILED AGAINST PUBLICOFFICERS AND EMPLOYEES,
THE CONDUCT OFPRELIMINARY INVESTIGATION, PREPARATION OFRESOLUTIONS 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.
xxxx
A close examination of the circular supports the view of the respondent Ombudsman that it is just an
internal agreement between the Ombudsman and the DOJ.

Sections 2 and 4, Rule 112 of the Revised Rules on Criminal Procedure on Preliminary Investigation,
effective December 1, 2000, to wit:
SEC. 2. Officers authorized to conduct preliminary investigations
The following may conduct preliminary investigations:
(a) Provincial or City Prosecutors and their assistants;
(b) Judges of the Municipal Trial Courts and Municipal Circuit Trial Courts;
(c) National and Regional State Prosecutors; and
(d) Other officers as may be authorized by law.
Their authority to conduct preliminary investigation shall include all crimes cognizable by the proper
court in their respective territorial jurisdictions.
SEC. 4. Resolution of investigating prosecutor and its review. - If the investigating prosecutor finds
cause to hold the respondent for trial, he shall prepare the resolution and information. He shall certify
under oath in the information that he, or as shown by the record, an authorized officer, has
personally examined the complainant and his witnesses; that there is reasonable ground to believe
that a crime has been committed and that the accused is probably guilty thereof; that the accused
was informed of the complaint and of the evidence submitted against him; and that he was given an
opportunity to submit controverting evidence. Otherwise, he shall recommend the dismissal of the
complaint.
Within five (5) days from his resolution, he shall forward the record of the case to the provincial or
city prosecutor or chief state prosecutor, or to the Ombudsman or his deputy in cases of offenses
cognizable by the Sandiganbayan in the exercise of its original jurisdiction. They shall act on the
resolution within ten (10) days from their receipt thereof and shall immediately inform the parties of
such action.
No complaint or information may be filed or dismissed by an investigating prosecutor without the
prior written authority or approval of the provincial or city prosecutor or chief state prosecutor or the
Ombudsman or his deputy.
Where the investigating prosecutor recommends the dismissal of the complaint but his
recommendation is disapproved by the provincial or city prosecutor or chief state prosecutor or the
Ombudsman or his deputy on the ground that a probable cause exists, the latter may, by himself file
the information against the respondent, or direct another assistant prosecutor or state prosecutor to
do so without conducting another preliminary investigation.
If upon petition by a proper party under such rules as the Department of Justice may prescribe or
motu proprio, the Secretary of Justice reverses or modifies the resolution of the provincial or city
prosecutor or chief state prosecutor, he shall direct the prosecutor concerned either to file the
corresponding information without conducting another preliminary investigation, or to dismiss or

move for dismissal of the complaint or information with notice to the parties. The same Rule shall
apply in preliminary investigations conducted by the officers of the Office of the Ombudsman.
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.
xxxx
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 DOJs
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 case citation omitted 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. (Emphasis supplied).
In Honasan II, although Senator Gregorio "Gringo" Honasan was a public officer who was charged
with coup detat for the occupation of Oakwood on 27 July 2003, the preliminary investigation
therefor was conducted by the DOJ. Honasan questioned the jurisdiction of the DOJ to do so,
proferring that it was the Ombudsman which had jurisdiction since the imputed acts were committed
in relation to his public office. We clarified that the DOJ and the Ombudsman have concurrent
jurisdiction to investigate offenses involving public officers or employees. Nonetheless, we pointed
out that 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. Plainly, applying that ruling in this case, the Ombudsman has primary
jurisdiction, albeit concurrent with the DOJ, over Rosas complaint, and after choosing to exercise
such jurisdiction, need not defer to the dictates of a respondent in a complaint, such as Alfredo. In
other words, the Ombudsman may exercise jurisdiction to the exclusion of the DOJ.
Third. Alfredo next argues that Rosa had pardoned his concubinage, having admitted to knowing of
his womanizing and yet continuing with their relationship as demonstrated in Rosas annual visits to
him in Davao City.
We are not convinced.

Old jurisprudence has held that the cynosure in the question of whether the wife condoned the
concubinage lies in the wifes "line of conduct under the assumption that she really believed [her
husband] guilty of concubinage:"
Condonation is the forgiveness of a marital offense constituting a ground for legal separation or, as
stated in I Bouver's Law Dictionary, p. 585, condonation is the conditional forgiveness or remission,
by a husband or wife of a matrimonial offense which the latter has committed.
xxxx
A detailed examination of the testimony of the plaintiff-husband, especially those portions quoted
above, clearly shows that there was a condonation on the part of the husband for the supposed acts
of rank infidelity amounting to adultery committed by defendant-wife. Admitting for the sake of
argument that the infidelities amounting to adultery were committed by the defendant, a
reconciliation was effected between her and the plaintiff. The act of the latter in persuading her to
come along with him, and the fact that she went with him and consented to be brought to the house
of his cousin Pedro Bugayong and together they slept there as husband and wife for one day and
one night, and the further fact that in the second night they again slept together in their house
likewise as husband and wife all these facts have no other meaning in the opinion of this court
than that a reconciliation between them was effected and that there was a condonation of the wife by
the husband. The reconciliation occurred almost ten months after he came to know of the acts of
infidelity amounting to adultery.
In Shackleton vs. Shackleton, 48 N. J. Eq. 364; 21 Atl. 935, it has been held that condonation is
implied from sexual intercourse after knowledge of the other infidelity. Such acts necessarily implied
forgiveness. It is entirely consonant with reason and justice that if the wife freely consents to sexual
intercourse after she has full knowledge of the husband's guilt, her consent should operate as a
pardon of his wrong.
In Tiffanys Domestic and Family Relations, section 107 says:
Condonation. Is the forgiveness of a marital offense constituting a ground for divorce and bars the
right to a divorce. But it is on the condition, implied by the law when not express, that the wrongdoer
shall not again commit the offense; and also that he shall thereafter treat the other spouse with
conjugal kindness. A breach of the condition will revive the original offense as a ground for divorce.
Condonation may be express or implied.
It has been held in a long line of decisions of the various supreme courts of the different states of the
U. S. that 'a single voluntary act of sexual intercourse by the innocent spouse after discovery of the
offense is ordinarily sufficient to constitute condonation, especially as against the husband'. (27
Corpus Juris Secundum, section 61 and cases cited therein).
In the lights of the facts testified to by the plaintiff-husband, of the legal provisions above quoted, and
of the various decisions above-cited, the inevitable conclusion is that the present action is untenable.
Although no acts of infidelity might have been committed by the wife, We agree with the trial judge
that the conduct of the plaintiff-husband above narrated despite his belief that his wife was unfaithful,
deprives him, as alleged the offended spouse, of any action for legal separation against the
offending wife, because his said conduct comes within the restriction of Article 100 of the Civil Code.

The only general rule in American jurisprudence is that any cohabitation with the guilty party, after
the commission of the offense, and with the knowledge or belief on the part of the injured party of its
commission, will amount to conclusive evidence of condonation; but this presumption may be
rebutted by evidence (60 L. J. Prob. 73).18
Although the foregoing speaks of condonation of concubinage as a ground for legal separation, the
holding therein applies with equal force in a prosecution for concubinage as a felony. Indeed, Rosas
admission was that she believed her husband had stopped womanizing, not that she had knowledge
of Alfredos specific acts of concubinage with Sia and de Leon, specifically keeping them in the
conjugal dwelling. This admission set against the specific acts of concubinage listed in Article
33419 of the Revised Penal Code does not amount to condonation. Their continued cohabitation as
husband and wife construed from Rosas annual visits to Davao City is not acquiescence to Alfredos
relations with his concubines. On that score, we have succinctly held:
We can find nothing in the record which can be construed as pardon or condonation. It is true that
the offended party has to a considerable extent been patient with her husband's shortcomings, but
that seems to have been due to his promises of improvement; nowhere does it appear that she has
consented to her husband's immorality or that she has acquiesced in his relations with his
concubine.20
Fourth. Alfredo next grasps at Liza S. Diambangans affidavit of recantation to eliminate his probable
culpability for concubinage.
Again, we are not swayed by Alfredos asseverations.
We have generally looked with disfavor upon retraction of testimonies previously given in court.
Affidavits of recantation are unreliable and deserve scant consideration. The asserted motives for
the repudiation are commonly held suspect, and the veracity of the statements made in the affidavit
of repudiation are frequently and deservedly subject to serious doubt. 21
In Firaza v. People, we intoned:
Merely because a witness says that what he had declared is false and that what he now says is true,
is not sufficient ground for concluding that the previous testimony is false. No such reasoning has
ever crystallized into a rule of credibility. The rule is that a witness may be impeached by a previous
contradictory statement x x x not that a previous statement is presumed to be false merely because
a witness now says that the same is not true. The jurisprudence of this Court has always been
otherwise, i.e., that contradictory testimony given subsequently does not necessarily discredit the
previous testimony if the contradictions are satisfactorily explained. [Citations omitted].
Indeed, it is a dangerous rule to set aside a testimony which has been solemnly taken before a court
of justice in an open and free trial and under conditions precisely sought to discourage and forestall
falsehood simply because one of the witnesses who had given the testimony later on changed his
mind. Such a rule will make solemn trials a mockery and place the investigation of the truth at the
mercy of unscrupulous witnesses. Unless there be special circumstances which, coupled with the
retraction of the witness, really raise doubt as to the truth of the testimony given by him at the trial
and accepted by the trial judge, and only if such testimony is essential to the judgment of conviction,
or its elimination would lead the trial judge to a different conclusion, an acquittal of the accused
based on such a retraction would not be justified.22

In this case, Liza S. Diambangans testimony merely corroborates the still standing story of Robert
and Melissa Diambangan, the other helper in the Busuego household. Clearly, the twos consistent
story may still be the basis of the Ombudsmans finding of a prima facie case of concubinage against
Alfredo and Sia.
Finally. Despite his vigorous arguments, Alfredo claims that there is simply no basis for indicting him
and Sia for concubinage.
Article 334 of the Revised Penal Code lists three (3) specific acts of concubinage by a husband:
(1) keeping a mistress in the conjugal dwelling; (2) sexual intercourse, under scandalous
circumstances, with a woman who is not his wife; and (3) cohabiting with a woman who is not his
wife in any other place.
The Ombudsman found a prima facie case against Alfredo and Sia based on the testimony of
Robert, Melissa S. Diambangan and Liza S. Diambangan that Alfredo had kept Sia in the conjugal
dwelling where Sia even stayed at the conjugal room. We completely agree with the Ombudsmans
disquisition:
x x x. It is ingrained in human behavior that a child has love, respect and loyalty to his family and
would strive to keep the family harmonious and united. This is the very reason why Robert did not
inform his mother about his fathers infidelities during the time when his father was keeping his
mistress at the conjugal dwelling. A son would never turn against his father by fabricating such a
serious story which will cause his home to crumble, if such is not true. His natural instinct is to
protect his home, which he did when he kept silent for a long time. What broke the camels back was
the abusive treatment he allegedly suffered and the thought that things would change for the better if
his mom would intervene.
The story of Robert in his Affidavit was reinforced by the two house helpers Melissa S. Diambangan
and Liza S. Diambangan, who were employed by the family. Melissa was with the Busuego family in
their conjugal home in 1997. She left the family in 2005 but returned in 2006. Liza started working
with the family in 2002. Melissa revealed that it was Emy Sia who recruited her to work with the
Busuego family. They both attested to the fact that Alfredo and Emy Sia slept together in the
bedroom of Alfredo but Emy Sia would sleep in the maids quarter when Rosa and Alfred came
home for a visit in 1997. They recalled that Emy Sia calls Alfredo "papa". They narrated that Emy Sia
would even confide to them some private matters relating to her sexual proclivities with Alfredo. 23
1wphi1

We further note that the presence of Sia at the Busuego household and her interim residence
thereat was not disputed nor explained. Alfredo just cavalierly declares that Sia may have stayed in
the conjugal dwelling, but never as his mistress, and Sia supposedly slept in the maids quarters.
While such a claim is not necessarily preposterous we hold that such is a matter of defense which
Alfredo should raise in court given that Rosa s complaint and its accompanying affidavits have
created a prima facie case for Concubinage against Alfredo and Sia.
WHEREFORE the petition is DISMISSED The Resolutions of the Ombudsman dated 17 April 2009
and 11 October 2010 are AFFIRMED.

SO ORDERED.
G.R. No. 199082

September 18, 2012

JOSE MIGUEL T. ARROYO, Petitioner,

vs.
DEPARTMENT OF JUSTICE; COMMISSION ON ELECTIONS; HON. LEILA DE LIMA, in her
capacity as Secretary of the Department of Justice; HON. SIXTO BRILLANTES, .JR., in his
capacity as Chairperson of the Commission on Elections; and the JOINT DOJ-COMELEC
PRELIMINARY INVESTIGATION COMMITTEE and FACT-FINDING TEAM, Respondents.
x-----------------------x
G.R. No. 199085
BENJAMIN S. ABALOS, SR., Petitioner,
vs.
HON. LEILA DE LIMA, in her capacity as Secretary of Justice; HON. SIXTO S. BRILLANTES,
JR., in his capacity as COMELEC Chairperson; RENE V. SARMIENTO, LUCENITO N. TAGLE,
ARMANDO V. VELASCO, ELIAS R. YUSOPH, CHRISTIAN ROBERT S. LIM AND AUGUSTO C.
LAGMAN, in their capacity as COMELEC COMMISSIONERS; CLARO A. ARELLANO, GEOUGE
C. DEE, JACINTO G. ANG, ROMEO B. FORTES AND MICHAEL D. VILLARET, in their capacity
as CHAIRPERSON AND MEMBERS, RESPECTIVELY, OF THE JOINT DOJ-COMELEC
PRELIMINARY INVESTIGATION COMMITEE ON THE 2004 AND 2007 ELECTION
FRAUD,Respondents.
x-----------------------x
G.R. No.199118
GLORIA MACAPAGAL-ARROYO, Petitioner,
vs.
COMMISSION ON ELECTIONS, represented by Chairperson Sixto S. Brillantes, Jr.,
DEPARTMENT OF JUSTICE, represented by Secretary Leila M. De Lima, JOINT DOJCOMELEC PRELIMINARY INVESTIGATION COMMITTEE, SENATOR AQUILINO M. PIMENTEL
III, and DOJ-COMELEC FACT FINDING TEAM, Respondents.
DECISION
PERALTA, J.:
The Court is vested with the constitutional mandate to resolve justiciable controversies by applying
the rule of law with due deference to the right to due process, irrespective of the standing in society
of the parties involved. It is an assurance that in this jurisdiction, the wheels of justice turn
unimpeded by public opinion or clamor, but only for the ultimate end of giving each and every
member of society his just due without distinction.
Before the Court are three (3) consolidated petitions and supplemental petitions for Certiorari and
Prohibition under Rule 65 of the Rules of Court filed by Jose Miguel T. Arroyo (Mike Arroyo) in G.R.
No. 199082, Benjamin S. Abalos, Sr. (Abalos) in G.R. No. 199085 and Gloria Macapagal

Arroyo (GMA) in G.R. No. 199118 assailing the following: (1) Commission on Elections (Comelec)
Resolution No. 9266 "In the Matter of the Commission on Elections and Department of Justice Joint
Investigation on the Alleged Election Offenses Committed during the 2004 and 2007 Elections
Pursuant to Law"1 dated August 2, 2011; (2) Joint Order No. 001-2011 (Joint Order) "Creating and
Constituting a Joint DOJ-Comelec Preliminary Investigation Committee [Joint Committee] and FactFinding Team on the 2004 and 2007 National Elections Electoral Fraud and
Manipulation Cases"2 dated August 15, 2011; (3) Rules of Procedure on the Conduct of Preliminary
Investigation on the Alleged Election Fraud in the 2004 and 2007 National Elections (Joint
Committee Rules of Procedure)3 dated August 23, 2011; and (4) Initial Report of the Fact-Finding
Team dated October 20, 2011.4 The consolidated petitions and supplemental petitions likewise assail
the validity of the proceedings undertaken pursuant to the aforesaid issuances.
The Antecedents
Acting on the discovery of alleged new evidence and the surfacing of new witnesses indicating the
occurrence of massive electoral fraud and manipulation of election results in the 2004 and 2007
National Elections, on August 2, 2011, the Comelec issued Resolution No. 9266 approving the
creation of a committee jointly with the Department of Justice (DOJ), which shall conduct preliminary
investigation on the alleged election offenses and anomalies committed during the 2004 and 2007
elections.5
On August 4, 2011, the Secretary of Justice issued Department Order No. 640 6 naming three (3) of
its prosecutors to the Joint Committee.
On August 15, 2011, the Comelec and the DOJ issued Joint Order No. 001-2011 creating and
constituting a Joint Committee and Fact-Finding Team on the 2004 and 2007 National Elections
electoral fraud and manipulation cases. The Joint Committee and the Fact-Finding Team are
composed of officials from the DOJ and the Comelec. Section 2 of the Joint Order lays down the
mandate of the Joint Committee, to wit:
Section 2. Mandate. The Committee shall conduct the necessary preliminary investigation on the
basis of the evidence gathered and the charges recommended by the Fact-Finding Team created
and referred to in Section 4 hereof. Resolutions finding probable cause for election offenses, defined
and penalized under the Omnibus Election Code and other election laws shall be approved by the
Comelec in accordance with the Comelec Rules of Procedure. For other offenses, or those not
covered by the Omnibus Election Code and other election laws, the corresponding criminal
information may be filed directly with the appropriate courts.7
The Fact-Finding Team,8 on the other hand, was created for the purpose of gathering real,
documentary, and testimonial evidence which can be utilized in the preliminary investigation to be
conducted by the Joint Committee. Its specific duties and functions as enumerated in Section 4 of
the Joint Order are as follows:
a) Gather and document reports, intelligence information, and investigative leads from official
as well as unofficial sources and informants;
b) Conduct interviews, record testimonies, take affidavits of witnesses, and collate material
and relevant documentary evidence, such as, but not limited to, election documents used in
the 2004 and 2007 national elections. For security reasons, or to protect the identities of
informants, the Fact-Finding Team may conduct interviews or document testimonies
discreetly;

c) Assess and evaluate affidavits already executed and other documentary evidence
submitted or may be submitted to the Fact-Finding Team and/or Committee;
d) Identify the offenders, their offenses and the manner of their commission, individually or in
conspiracy, and the provisions of election and general criminal laws violated, establish
evidence for individual criminal and administrative liability and prosecution, and prepare the
necessary documentation, such as complaints and charge sheets for the initiation of
preliminary investigation proceedings against said individuals to be conducted by the
Committee;
e) Regularly submit to the Committee, the Secretary of Justice and the Chairman of the
Comelec periodic reports and recommendations, supported by real, testimonial and
documentary evidence, which may then serve as the Committees basis for immediately
commencing appropriate preliminary investigation proceedings, as provided under Section 6
of this Joint Order; and
f) Upon the termination of its investigation, make a full and final report to the Committee, the
Secretary of Justice, and the Chairman of the Comelec. 9
Pursuant to Section 710 of the Joint Order, on August 23, 2011, the Joint Committee promulgated its
Rules of Procedure.
The members of the Fact-Finding Team unanimously agreed that the subject of the Initial Report
would be the electoral fraud and manipulation of election results allegedly committed during the May
14, 2007 elections. Thus, in its Initial Report11 dated October 20, 2011, the Fact-Finding Team
concluded that manipulation of the results in the May 14, 2007 senatorial elections in the provinces
of North and South Cotabato and Maguindanao were indeed perpetrated. 12 The Fact-Finding Team
recommended that petitioner Abalos and ten (10) others13 be subjected to preliminary investigation
for electoral sabotage for conspiring to manipulate the election results in North and South Cotabato.
Twenty-six (26)14 persons, including petitioners GMA and Abalos, were likewise recommended for
preliminary investigation for electoral sabotage for manipulating the election results in
Maguindanao.15 Several persons were also recommended to be charged administratively, while
others,16 including petitioner Mike Arroyo, were recommended to be subjected to further
investigation.17 The case resulting from the investigation of the Fact-Finding Team was docketed as
DOJ-Comelec Case No. 001-2011.
Meanwhile, on October 17, 2011, Senator Aquilino Pimentel III (Senator Pimentel) filed a ComplaintAffidavit18 for Electoral Sabotage against petitioners and twelve others 19 and several John Does and
Jane Does. The case was docketed as DOJ-Comelec Case No. 002-2011.
On October 24, 2011, the Joint Committee issued two subpoenas against petitioners in DOJComelec Case Nos. 001-2011 and 002-2011.20 On November 3, 2011, petitioners, through counsel,
appeared before the Joint Committee.21On that preliminary hearing, the Joint Committee
consolidated the two DOJ-Comelec cases. Respondents therein were likewise ordered to submit
their Counter-Affidavits by November 14, 2011.22
Thereafter, petitioners filed before the Court separate Petitions for Certiorari and Prohibition with
Prayer for the Issuance of a Temporary Restraining Order (TRO) and/or Writ of Preliminary
Injunction assailing the creation of the Joint Panel. 23 The petitions were eventually consolidated.
On November 14, 2011, petitioner Mike Arroyo filed a Motion to Defer Proceedings 24 before the Joint
Committee, in view of the pendency of his petition before the Court. On the same day, petitioner

GMA filed before the Joint Committee an Omnibus Motion Ad Cautelam 25 to require Senator
Pimentel to furnish her with documents referred to in his complaint-affidavit and for the production of
election documents as basis for the charge of electoral sabotage. GMA contended that for the crime
of electoral sabotage to be established, there is a need to present election documents allegedly
tampered which resulted in the increase or decrease in the number of votes of local and national
candidates.26 GMA prayed that she be allowed to file her counter-affidavit within ten (10) days from
receipt of the requested documents.27 Petitioner Abalos, for his part, filed a Motion to Suspend
Proceedings (Ex Abundante Ad Cautelam),28 in view of the pendency of his petition brought before
the Court.
In an Order29 dated November 15, 2011, the Joint Committee denied the aforesaid motions of
petitioners. GMA subsequently filed a motion for reconsideration. 30
On November 16, 2011, the Joint Committee promulgated a Joint Resolution which was later
indorsed to the Comelec.31 On November 18, 2011, after conducting a special session, the Comelec
en banc issued a Resolution32approving and adopting the Joint Resolution subject to modifications.
The dispositive portion of the Comelec Resolution reads:
WHEREFORE, premises considered, the Resolution of the Joint DOJ-COMELEC Preliminary
Investigation Committee in DOJ-COMELEC Case No. 001-2011 and DOJ-COMELEC Case No. 0022011, upon the recommendation of the COMELECs own representatives in the Committee, is
hereby APPROVED and ADOPTED, subject to the following MODIFICATIONS:
1. That information/s for the crime of ELECTORAL SABOTAGE under Section 42 (b) of R.A.
9369, amending Section 27 (b) of R.A. 6646, be filed against GLORIA MACAPAGALARROYO, BENJAMIN ABALOS, SR., LINTANG H. BEDOL, DATU ANDAL AMPATUAN, SR.
and PETER REYES;
2. That the charges against MICHAEL C. ABAS, NICODEMO FERRER, REUBEN BASIAO,
JAIME PAZ and NORIE K. UNAS be subjected to further investigation;
3. That the charges against JOSE MIGUEL T. ARROYO, BONG SERRANO, ALBERTO
AGRA, ANDREI BON TAGUM, GABBY CLAUDIO, ROMY DAYDAY, JEREMY JAVIER,
JOHN DOE a.k.a BUTCH, be DISMISSED for insufficiency of evidence to establish probable
cause;
4. That the recommendation that ESTELITA B. ORBASE, ELIZA A. GASMIN, ELSA Z.
ATINEN, SALIAO S. AMBA, MAGSAYSAY B. MOHAMAD, SALONGA K. EDZELA, RAGAH
D. AYUNAN, SUSAN U. CANANBAN, RUSSAM H. MABANG, ASUNCION CORAZON P.
RENIEDO, NENA A. ALID, MA. SUSAN L. ALBANO, ROHAIDA T. KHALID, ARAW M. CAO,
JEEHAN S. NUR, ALICE A. LIM, NORIJEAN P. HANGKAL, CHRISTINA ROAN M. DALOPE,
and MACEDA L. ABO be administratively charged be subjected to further review by this
Commission to determine the appropriate charge/s that may be filed against them;
5. That the findings of lack of probable cause against LILIAN S. SUAN-RADAM and YOGIE
G. MARTIRIZAR be REJECTED by reason of the pendency of their respective cases before
the Regional Trial Court of Pasay (Branch 114) and this Commission for the same offense
under consideration.
In the higher interest of justice and by reason of manifest attempts to frustrate the governments right
to prosecute and to obtain speedy disposition of the present case pending before the Commission,
the Law Department and/or any COMELEC legal officers as may be authorized by this Commission

is hereby ORDERED to IMMEDIATELY PREPARE and FILE the necessary Information/s before the
appropriate court/s
SO ORDERED.33 (Emphasis supplied.)
On even date, pursuant to the above Resolution, the Comelecs Law Department filed with the
Regional Trial Court (RTC), Pasay City, an Information against petitioner GMA, Governor Andal
Ampatuan, Sr., and Atty. Lintang H. Bedol, for violation of Section 42 (b)(3) of Republic Act (R.A.) No.
9369, amending Section 27 (b) of R.A. No. 6646, docketed as Criminal Case No. RPSY-11-04432CR.34 The case was raffled to Branch 112 and the corresponding Warrant of Arrest was issued which
was served on GMA on the same day.35
On November 18, 2011, petitioner GMA filed with the RTC an Urgent Omnibus Motion Ad
Cautelam36 with leave to allow the Joint Committee to resolve the motion for reconsideration filed by
GMA, to defer issuance of a warrant of arrest and a Hold Departure Order, and to proceed to judicial
determination of probable cause. She, likewise, filed with the Comelec a Motion to Vacate Ad
Cautelam37 praying that its Resolution be vacated for being null and void. The RTC nonetheless
issued a warrant for her arrest which was duly served. GMA thereafter filed a Motion for Bail which
was granted.
Issues
In G.R. No. 199082, petitioner Arroyo relies on the following grounds:
A. THE CREATION OF THE JOINT COMMITTEE VIA THE JOINT ORDER IS AT WAR WITH
THE DUE PROCESS AND EQUAL PROTECTION CLAUSE OF THE CONSTITUTION,
HAVING BEEN CREATED WITH THE SOLE END IN VIEW OF INVESTIGATING AND
PROSECUTING CERTAIN PERSONS AND INCIDENTS ONLY, SPECIFICALLY THOSE
INVOLVING THE 2004 AND 2007 ELECTIONS TO THE EXCLUSION OF OTHERS, IN
VIOLATION OF THE DOCTRINE IN BIRAOGO V. TRUTH COMMISSION AND
COMPANION CASE.
B. NO LAW OR RULE AUTHORIZES THE JOINT COMMITTEE TO CONDUCT
PRELIMINARY INVESTIGATION.
C. THE CREATION OF THE JOINT COMMITTEE, WHICH FUSES THE COMMISSION ON
ELECTIONS - A CONSTITUTIONALLY INDEPENDENT BODY - WITH THE DEPARTMENT
OF JUSTICE A POLITICAL AGENT OF THE EXECUTIVE DEMOLISHES THE
INDEPENDENCE OF THE COMMISSION ON ELECTIONS AS PROVIDED IN ARTICLE
IX(A), SECTIONS 1 AND 2 AND IX(C) OF THE CONSTITUTION.
D. IN VIEW OF THE NUMEROUS AND PERSISTENT PUBLIC PRONOUNCEMENTS OF
THE PRESIDENT, HIS SPOKESPERSONS, THE HEADS OF THE DOJ AND THE
COMELEC, AND MEMBERS OF THE JOINT COMMITTEE THAT CASES SHOULD BE
FILED AGAINST PETITIONER AND HIS FAMILY AND ALLEGED ASSOCIATES BY THE
END OF 2011, THE PROCEEDINGS THEREOF SHOULD BE ENJOINED FOR BEING
PERSECUTORY, PURSUANT TO ALLADO V. DIOKNO AND RELATED CASES.
E. THE CREATION AND CONSTITUTION OF THE JOINT COMMITTEE TRAMPLES UPON
PETITIONERS RIGHT TO A FAIR PROCEEDING BY AN INDEPENDENT AND IMPARTIAL
TRIBUNAL.

F. THE COMELEC, AND SUBSEQUENTLY, THE RTC OF PASAY CITY, HAVE ASSUMED
JURISDICTION OVER THE SUBJECT MATTER SOUGHT TO BE INVESTIGATED BY THE
JOINT COMMITTEE, TO THE EXCLUSION OF ANY BODY, INCLUDING THE JOINT
COMMITTEE.38
In G.R. No. 199085, petitioner Abalos raises the following issues:
I.
DOES JOINT ORDER NO. 001-2011, CREATING THE JOINT DOJ-COMELEC FACTFINDING TEAM AND PRELIMINARY INVESTIGATON COMMITTEE VIOLATE
PETITIONERS CONSTITUTIONAL RIGHT TO EQUAL PROTECTION OF THE LAW?
II.
DID THE CONDUCT AND PROCEEDINGS OF THE JOINT DOJ-COMELEC FACT-FINDING
TEAM AND PRELIMINARY INVESTIGATION COMMITTEE VIOLATE PETITIONERS
CONSTITUTIONAL RIGHT TO DUE PROCESS OF LAW?
III.
DID THE DOJ AND COMELEC VIOLATE THE PRINCIPLE OF SEPARATION OF POWERS
BY CREATING THE JOINT DOJ-COMELEC FACT-FINDING TEAM AND PRELIMINARY
INVESTIGATION COMMITTEE WHICH ENCROACHED UPON THE POWERS OF THE
LEGISLATURE AND THE REGIONAL TRIAL COURT?
IV.
DOES THE JOINT DOJ-COMELEC FACT-FINDING TEAM AND PRELIMINARY
INVESTIGATION COMMITTEE HAVE THE POWER AND LEGAL AUTHORITY TO
CONDUCT A PRELIMINARY INVESTIGATION OF THE SAME ELECTORAL SABOTAGE
CASES WHICH THE COMELEC HAD ALREADY TAKEN COGNIZANCE OF? 39
In G.R. No. 199118, petitioner GMA anchors her petition on the following grounds:
I. THE EXECUTIVE DEPARTMENT, THROUGH THE DOJ, OSTENSIBLY ACTING
"JOINTLY" WITH THE COMELEC, HAS ACTED BEYOND THE LIMITS OF THE
CONSTITUTION, IN THAT IT HAS COMPROMISED THE INDEPENDENCE OF THE
COMELEC.
II. THE COMELEC HAS EFFECTIVELY ABDICATED ITS CONSTITUTIONAL MANDATE
"TO INVESTIGATE AND, WHERE APPROPRIATE, PROSECUTE CASES OF VIOLATIONS
OF ELECTION LAWS, INCLUDING ACTS OR OMISSIONS CONSTITUTING ELECTION
FRAUDS, OFFENSES, AND MALPRACTICES" (ARTICLE IX-C, SECTION 26, 1987
CONSTITUTION OF THE REPUBLIC OF THE PHILIPPINES) IN FAVOR OF THE
EXECUTIVE DEPARTMENT, ACTING THROUGH RESPONDENT JUSTICE SECRETARY
DE LIMA.
III. DOJ-COMELEC JOINT ORDER NO. 001-2011 AND THE JOINT COMMITTEE RULES
HAVE NOT BEEN PUBLISHED PURSUANT TO TAADA V. TUVERA, G.R. No. L-63915 (29
DECEMBER 1986). AFTER ALL, AS THE HONORABLE COURT LIKEWISE DECLARED IN

REPUBLIC V. PILIPINAS SHELL PETROLEUM CORPORATION, G.R. No. 173918 (08

APRIL 2008), (SIC)40
We deferred the resolution of petitioners Motion for the Issuance of a TRO and, instead, required the
respondents to comment on the petitions.41
We likewise scheduled the consolidated cases for oral argument for which the parties were directed
to limit their respective discussions to the following issues:
I. Whether or not Joint Order No. 001-2011 "Creating and Constituting a Joint DOJ-COMELEC
Preliminary Investigation Committee and Fact-Finding Team on the 2004 and 2007 National
Elections Electoral Fraud and Manipulation Cases" is constitutional in light of the following:
A. The due process clause of the 1987 Constitution
B. The equal protection clause of the 1987 Constitution
C. The principle of separation of powers
D. The independence of the COMELEC as a constitutional body
II. Whether or not the COMELEC has jurisdiction under the law to conduct preliminary investigation
jointly with the DOJ.
A. Whether or not due process was observed by the Joint DOJ-COMELEC Fact-Finding Team and
Preliminary Investigation Committee, and the COMELEC in the conduct of the preliminary
investigation and approval of the Joint Panels Resolution. 42
The Court, thereafter, required the parties to submit their respective Memoranda. 43
The Courts Ruling
Procedural Issues
Respondents claim that Mike Arroyos petition is moot and that of GMA is moot and academic. They
explain that the Mike Arroyo petition presents no actual controversy that necessitates the exercise by
the Court of its power of judicial review, considering that he was not among those indicted for
electoral sabotage in the 2007 national elections as the Comelec dismissed the case against him for
insufficiency of evidence.44 Anent the 2004 national elections, the Fact-Finding Team is yet to
complete its investigation so Mike Arroyos apprehensions are merely speculative and
anticipatory.45 As to the GMA petition, respondents aver that any judgment of the Court will have no
practical legal effect because an Information has already been filed against her in Branch 112, RTC
of Pasay City.46 With the filing of the Information, the RTC has already acquired jurisdiction over the
case, including all issues relating to the constitutionality or legality of her preliminary
investigation.47 Respondents also claim that the issues relating to the constitutionality and validity of
the conduct of the preliminary investigation of GMA are best left to the trial court, considering that it
involves questions of fact.48 Respondents add that considering that the RTC has concurrent
jurisdiction to determine a constitutional issue, it will be practical for the Court to allow the RTC to
determine the constitutional issues in this case.49
We do not agree.

Mootness
It cannot be gainsaid that for a court to exercise its power of adjudication, there must be an actual
case or controversy, that is, one which involves a conflict of legal rights, an assertion of opposite
legal claims susceptible of judicial resolution.50 The case must not be moot or academic or based on
extra-legal or other similar considerations not cognizable by a court of justice. 51
A case becomes moot and academic when it ceases to present a justiciable controversy so that a
declaration on the issue would be of no practical use or value. 52 However, a case should not be
dismissed simply because one of the issues raised therein had become moot and academic by the
onset of a supervening event, whether intended or incidental, if there are other causes which need to
be resolved after trial.53
Here, the consolidated cases are not rendered moot and academic by the promulgation of the Joint
Resolution by the Joint Committee and the approval thereof by the Comelec. It must be recalled that
the main issues in the three petitions before us are the constitutionality and legality of the creation of
the Joint Committee and the Fact-Finding Team as well as the proceedings undertaken pursuant
thereto. The assailed Joint Order specifically provides that the Joint Committee was created for
purposes of investigating the alleged massive electoral fraud during the 2004 and 2007 national
elections. However, in the Fact-Finding Teams Initial Report, the team specifically agreed that the
report would focus on the irregularities during the 2007 elections. Also, in its November 18, 2011
Resolution, the Comelec, while directing the filing of information against petitioners Abalos and
GMA, ordered that further investigations be conducted against the other respondents therein.
Apparently, the Fact-Finding Teams and Joint
Committees respective mandates have not been fulfilled and they are, therefore, bound to continue
discharging their duties set forth in the assailed Joint Order. Moreover, petitioners question the
validity of the proceedings undertaken by the Fact-Finding Team and the Joint Committee leading to
the filing of information, on constitutional grounds. We are not, therefore, barred from deciding on the
petitions simply by the occurrence of the supervening events of filing an information and dismissal of
the charges.
Jurisdiction over the validity of the
conduct of the preliminary investigation
This is not the first time that the Court is confronted with the issue of jurisdiction to conduct
preliminary investigation and at the same time with the propriety of the conduct of preliminary
investigation. In Cojuangco, Jr. v. Presidential Commission on Good Government (PCGG), 54 the
Court resolved two issues, namely: (1) whether or not the PCGG has the power to conduct a
preliminary investigation of the anti-graft and corruption cases filed by the Solicitor General against
Eduardo Conjuangco, Jr. and other respondents for the alleged misuse of coconut levy funds; and
(2) on the assumption that it has jurisdiction to conduct such a preliminary investigation, whether or
not its conduct constitutes a violation of petitioners right to due process and equal protection of the
law.55 The Court decided these issues notwithstanding the fact that Informations had already been
filed with the trial court.
In Allado v. Diokno,56 in a petition for certiorari assailing the propriety of the issuance of a warrant of
arrest, the Court could not ignore the undue haste in the filing of the information and the inordinate
interest of the government in filing the same. Thus, this Court took time to determine whether or not
there was, indeed, probable cause to warrant the filing of information. This, notwithstanding the fact
that information had been filed and a warrant of arrest had been issued. Petitioners therein came
directly to this Court and sought relief to rectify the injustice that they suffered.

Hierarchy of courts
Neither can the petitions be dismissed solely because of violation of the principle of hierarchy of
courts. This principle requires that recourse must first be made to the lower-ranked court exercising
concurrent jurisdiction with a higher court.57 The Supreme Court has original jurisdiction over
petitions for certiorari, prohibition, mandamus, quo warranto, and habeas corpus. While this
jurisdiction is shared with the Court of Appeals and the RTC, a direct invocation of this Courts
jurisdiction is allowed when there are special and important reasons therefor, clearly and especially
set out in the petition, as in the present case.58 In the consolidated petitions, petitioners invoke
exemption from the observance of the rule on hierarchy of courts in keeping with the Courts duty to
determine whether or not the other branches of government have kept themselves within the limits of
the Constitution and the laws, and that they have not abused the discretion given to them. 59
It is noteworthy that the consolidated petitions assail the constitutionality of issuances and
resolutions of the DOJ and the Comelec. The general rule is that this Court shall exercise only
appellate jurisdiction over cases involving the constitutionality of a statute, treaty or regulation.
However, such rule is subject to exception, that is, in circumstances where the Court believes that
resolving the issue of constitutionality of a law or regulation at the first instance is of paramount
importance and immediately affects the social, economic, and moral well-being of the people. 60
This case falls within the exception. An expeditious resolution of the issues raised in the petitions is
necessary. Besides, the Court has entertained a direct resort to the Court without the requisite
motion for reconsideration filed below or without exhaustion of administrative remedies where there
is an urgent necessity for the resolution of the question and any further delay would prejudice the
interests of the government or of the petitioners and when there is an alleged violation of due
process, as in the present case.61 We apply the same relaxation of the Rules in the present case
and, thus, entertain direct resort to this Court.
Substantive Issues
Bases for the Creation of the
Fact-Finding Team and Joint Committee
Section 2, Article IX-C of the 1987 Constitution enumerates the powers and functions of the
Comelec. Paragraph (6) thereof vests in the Comelec the power to:
(6) File, upon a verified complaint, or on its own initiative, petitions in court for inclusion or exclusion
of voters; investigate and, where appropriate, prosecute cases of violations of election laws,
including acts or omissions constituting election frauds, offenses, and malpractices.
This was an important innovation introduced by the 1987 Constitution, because the above-quoted
provision was not in the 1935 and 1973 Constitutions.62
The grant to the Comelec of the power to investigate and prosecute election offenses as an adjunct
to the enforcement and administration of all election laws is intended to enable the Comelec to
effectively insure to the people the free, orderly, and honest conduct of elections. The failure of the
Comelec to exercise this power could result in the frustration of the true will of the people and make
a mere idle ceremony of the sacred right and duty of every qualified citizen to vote. 63
The constitutional grant of prosecutorial power in the Comelec was reflected in Section 265 of Batas
Pambansa Blg. 881, otherwise known as the Omnibus Election Code, to wit:

Section 265. Prosecution. The Commission shall, through its duly authorized legal officers, have the
exclusive power to conduct preliminary investigation of all election offenses punishable under this
Code, and to prosecute the same. The Commission may avail of the assistance of other prosecuting
arms of the government: Provided, however, That in the event that the Commission fails to act on
any complaint within four months from his filing, the complainant may file the complaint with the
office of the fiscal [public prosecutor], or with the Ministry Department of Justice for proper
investigation and prosecution, if warranted.
Under the above provision of law, the power to conduct preliminary investigation is vested
exclusively with the Comelec. The latter, however, was given by the same provision of law the
authority to avail itself of the assistance of other prosecuting arms of the government. 64 Thus, under
Section 2,65 Rule 34 of the Comelec Rules of Procedure, provincial and city prosecutors and their
assistants are given continuing authority as deputies to conduct preliminary investigation of
complaints involving election offenses under election laws and to prosecute the same. The
complaints may be filed directly with them or may be indorsed to them by the petitioner or its duly
authorized representatives.66
Thus, under the Omnibus Election Code, while the exclusive jurisdiction to conduct preliminary
investigation had been lodged with the Comelec, the prosecutors had been conducting preliminary
investigations pursuant to the continuing delegated authority given by the Comelec. The reason for
this delegation of authority has been explained in Commission on Elections v. Espaol: 67
The deputation of the Provincial and City Prosecutors is necessitated by the need for prompt
investigation and dispensation of election cases as an indispensable part of the task of securing fine,
orderly, honest, peaceful and credible elections. Enfeebled by lack of funds and the magnitude of its
workload, the petitioner does not have a sufficient number of legal officers to conduct such
investigation and to prosecute such cases.68
Moreover, as we acknowledged in People v. Basilla,69 the prompt and fair investigation and
prosecution of election offenses committed before or in the course of nationwide elections would
simply not be possible without the assistance of provincial and city fiscals prosecutors and their
assistants and staff members, and of the state prosecutors of the DOJ. 70
Section 265 of the Omnibus Election Code was amended by Section 43 of R.A. No. 9369, 71 which
reads:
Section 43. Section 265 of Batas Pambansa Blg. 881 is hereby amended to read as follows:
SEC. 265. Prosecution. The Commission shall, through its duly authorized legal officers, have the
power, concurrent with the other prosecuting arms of the government, to conduct preliminary
investigation of all election offenses punishable under this Code, and to prosecute the same. 72
As clearly set forth above, instead of a mere delegated authority, the other prosecuting arms of the
government, such as the DOJ, now exercise concurrent jurisdiction with the Comelec to conduct
preliminary investigation of all election offenses and to prosecute the same.
It is, therefore, not only the power but the duty of both the Comelec and the DOJ to perform any act
necessary to ensure the prompt and fair investigation and prosecution of election offenses. Pursuant
to the above constitutional and statutory provisions, and as will be explained further below, we find
no impediment for the Comelec and the DOJ to create the Joint Committee and Fact-Finding Team
for the purpose of conducting a thorough investigation of the alleged massive electoral fraud and the

manipulation of election results in the 2004 and 2007 national elections relating in particular to the
presidential and senatorial elections.73
Constitutionality of Joint-Order No. 001-2011
A. Equal Protection Clause
Petitioners claim that the creation of the Joint Committee and Fact-Finding Team is in violation of the
equal protection clause of the Constitution because its sole purpose is the investigation and
prosecution of certain persons and incidents. They argue that there is no substantial distinction
between the allegations of massive electoral fraud in 2004 and 2007, on the one hand, and previous
and subsequent national elections, on the other hand; and no substantial distinction between
petitioners and the other persons or public officials who might have been involved in previous
election offenses. They insist that the Joint Panel was created to target only the Arroyo
Administration as well as public officials linked to the Arroyo Administration. To bolster their claim,
petitioners explain that Joint Order No. 001-2011 is similar to Executive Order No. 1 (creating the
Philippine Truth Commission) which this Court had already nullified for being
violative of the equal protection clause.
Respondents, however, refute the above contentions and argue that the wide array of the possible
election offenses and broad spectrum of individuals who may have committed them, if any,
immediately negate the assertion that the assailed orders are aimed only at the officials of the Arroyo
Administration.
We agree with the respondents.
The equal protection clause is enshrined in Section 1, Article III of the Constitution which reads:
Section 1. No person shall be deprived of life, liberty, or property without due process of law, nor
shall any person be denied the equal protection of the laws. 74
The concept of equal protection has been laid down in Biraogo v. Philippine Truth Commission of
2010:75
One of the basic principles on which this government was founded is that of the equality of right
which is embodied in Section 1, Article III of the 1987 Constitution. The equal protection of the laws
is embraced in the concept of due process, as every unfair discrimination offends the requirements
of justice and fair play. It has been embodied in a separate clause, however, to provide for a more
specific guaranty against any form of undue favoritism or hostility from the government. Arbitrariness
in general may be challenged on the basis of the due process clause. But if the particular act
assailed partakes of an unwarranted partiality or prejudice, the sharper weapon to cut it down is the
equal protection clause.
According to a long line of decisions, equal protection simply requires that all persons or things
similarly situated should be treated alike, both as to rights conferred and responsibilities imposed. It
requires public bodies and institutions to treat similarly-situated individuals in a similar manner. The
purpose of the equal protection clause is to secure every person within a state's jurisdiction against
intentional and arbitrary discrimination, whether occasioned by the express terms of a statute or by
its improper execution through the state's duly-constituted authorities. In other words, the concept of

equal justice under the law requires the state to govern impartially, and it may not draw distinctions
between individuals solely on differences that are irrelevant to a legitimate governmental objective. 76
Unlike the matter addressed by the Courts ruling in Biraogo v. Philippine Truth Commission of 2010,
Joint Order No. 001-2011 cannot be nullified on the ground that it singles out the officials of the
Arroyo Administration and, therefore, it infringes the equal protection clause. The Philippine Truth
Commission of 2010 was expressly created for the purpose of investigating alleged graft and
corruption during the Arroyo Administration since Executive Order No. 1 77 specifically referred to the
"previous administration"; while the Joint Committee was created for the purpose of conducting
preliminary investigation of election offenses during the 2004 and 2007 elections. While GMA and
Mike Arroyo were among those subjected to preliminary investigation, not all respondents therein
were linked to GMA as there were public officers who were investigated upon in connection with their
acts in the performance of their official duties. Private individuals were also subjected to the
investigation by the Joint Committee.
The equal protection guarantee exists to prevent undue favor or privilege. It is intended to eliminate
discrimination and oppression based on inequality. Recognizing the existence of real differences
among men, it does not demand absolute equality. It merely requires that all persons under like
circumstances and conditions shall be treated alike both as to privileges conferred and liabilities
enforced.78
We once held that the Office of the Ombudsman is granted virtually plenary investigatory powers by
the Constitution and by law and thus may, for every particular investigation, whether commenced by
complaint or on its own initiative, decide how best to pursue each investigation. Since the Office of
the Ombudsman is granted such latitude, its varying treatment of similarly situated investigations
cannot by itself be considered a violation of any of the parties rights to the equal protection of the
laws.79 This same doctrine should likewise apply in the present case.
Thus, as the constitutional body granted with the broad power of enforcing and administering all laws
and regulations relative to the conduct of an election, plebiscite, initiative, referendum and
recall,80 and tasked to ensure free, orderly, honest, peaceful, and credible elections, 81 the Comelec
has the authority to determine how best to perform such constitutional mandate. Pursuant to this
authority, the Comelec issues various resolutions prior to every local or national elections setting
forth the guidelines to be observed in the conduct of the elections. This shows that every election is
distinct and requires different guidelines in order to ensure that the rules are updated to respond to
existing circumstances.
Moreover, as has been practiced in the past, complaints for violations of election laws may be filed
either with the Comelec or with the DOJ. The Comelec may even initiate, motu proprio, complaints
for election offenses.82
Pursuant to law and the Comelecs own Rules, investigations may be conducted either by the
Comelec itself through its law department or through the prosecutors of the DOJ. These varying
procedures and treatment do not, however, mean that respondents are not treated alike. Thus,
petitioners insistence of infringement of their constitutional right to equal protection of the law is
misplaced.
B. Due Process
Petitioners claim that the Joint Panel does not possess the required cold neutrality of an impartial
judge because it is all at once the evidence-gatherer, prosecutor and judge. They explain that since
the Fact-Finding Team has found probable cause to subject them to preliminary investigation, it is

impossible for the Joint Committee to arrive at an opposite conclusion. Petitioners likewise express
doubts of any possibility that the Joint Committee will be fair and impartial to them as Secretary De
Lima and Chairman Brillantes had repeatedly expressed prejudgment against petitioners through
their statements captured by the media.
For their part, respondents contend that petitioners failed to present proof that the President of the
Philippines, Secretary of Justice, and Chairman of the Comelec actually made the statements
allegedly prejudging their case and in the context in which they interpreted them. They likewise
contend that assuming that said statements were made, there was no showing that Secretary De
Lima had tried to intervene in the investigation to influence its outcome nor was it proven that the
Joint Committee itself had prejudged the case. Lastly, they point out that Joint Order No. 001-2011
created two bodies, the Fact-Finding Team and the Joint Committee, with their respective mandates.
Hence, they cannot be considered as one.
We find for respondents.
It is settled that the conduct of preliminary investigation is, like court proceedings, subject to the
requirements of both substantive and procedural due process. 83 Preliminary investigation is
considered as a judicial proceeding wherein the prosecutor or investigating officer, by the nature of
his functions, acts as a quasi-judicial officer.84 The authority of a prosecutor or investigating officer
duly empowered to preside over or to conduct a preliminary investigation is no less than that of a
municipal judge or even an RTC Judge.85 Thus, as emphasized by the Court in Ladlad v. Velasco: 86
x x x We cannot emphasize too strongly that prosecutors should not allow, and should avoid, giving
the impression that their noble office is being used or prostituted, wittingly or unwittingly, for political
ends, or other purposes alien to, or subversive of, the basic and fundamental objective of serving the
interest of justice evenhandedly, without fear or favor to any and all litigants alike, whether rich or
poor, weak or strong, powerless or mighty. Only by strict adherence to the established procedure
may public's perception of the impartiality of the prosecutor be enhanced. 87
In this case, as correctly pointed out by respondents, there was no showing that the statements
claimed to have prejudged the case against petitioners were made by Secretary De Lima and
Chairman Brillantes or were in the prejudicial context in which petitioners claimed the statements
were made. A reading of the statements allegedly made by them reveals that they were just
responding to hypothetical questions in the event that probable cause would eventually be found by
the Joint Committee.
More importantly, there was no proof or even an allegation that the Joint Committee itself, tasked to
conduct the requisite preliminary investigation against petitioners, made biased statements that
would convey to the public that the members were favoring a particular party. Neither did the
petitioners show that the President of the Philippines, the Secretary of Justice or the Chairman of the
Comelec intervened in the conduct of the preliminary investigation or exerted undue pressure on
their subordinates to tailor their decision with their public declarations and adhere to a predetermined result.88 Moreover, insofar as the Comelec is concerned, it must be emphasized that the
constitutional body is collegial. The act of the head of a collegial body cannot be considered as that
of the entire body itself.89 In equating the alleged bias of the above-named officials with that of the
Joint Committee, there would be no arm of the government credible enough to conduct a preliminary
investigation.90
It must also be emphasized that Joint Order No. 001-2011 created two bodies, namely: (1) the FactFinding Team tasked to gather real, documentary and testimonial evidence which can be utilized in
the preliminary investigation to be conducted by the Joint Committee; and (2) the Joint Committee

mandated to conduct preliminary investigation. It is, therefore, inaccurate to say that there is only
one body which acted as evidence-gatherer, prosecutor and judge.
C. Separation of powers
Petitioners claim that the Joint Panel is a new public office as shown by its composition, the creation
of its own Rules of Procedure, and the source of funding for its operation. It is their position that the
power of the DOJ to investigate the commission of crimes and the Comelecs constitutional mandate
to investigate and prosecute violations of election laws do not include the power to create a new
public office in the guise of a joint committee. Thus, in creating the Joint Panel, the DOJ and the
Comelec encroached upon the power of the Legislature to create public office.
Respondents dispute this and contend that the Joint Committee and Fact-Finding Team are not new
public offices, but merely collaborations between two existing government agencies sharing
concurrent jurisdiction. This is shown by the fact that the members of the Joint Panel are existing
officers of the DOJ and the Comelec who exercise duties and functions that are already vested in
them.
Again, we agree with respondents.
As clearly explained above, the Comelec is granted the power to investigate, and where appropriate,
prosecute cases of election offenses. This is necessary in ensuring free, orderly, honest, peaceful
and credible elections. On the other hand, the DOJ is mandated to administer the criminal justice
system in accordance with the accepted processes thereof consisting in the investigation of the
crimes, prosecution of offenders and administration of the correctional system. 91 It is specifically
empowered to "investigate the commission of crimes, prosecute offenders and administer the
probation and correction system."92 Also, the provincial or city prosecutors and their assistants, as
well as the national and regional state prosecutors, are specifically named as the officers authorized
to conduct preliminary investigation.93 Recently, the Comelec, through its duly authorized legal
offices, is given the power, concurrent with the other prosecuting arms of the government such as
the DOJ, to conduct preliminary investigation of all election offenses.94
Undoubtedly, it is the Constitution, statutes, and the Rules of Court and not the assailed Joint Order
which give the DOJ and the Comelec the power to conduct preliminary investigation. No new power
is given to them by virtue of the assailed order. As to the members of the Joint Committee and FactFinding Team, they perform such functions that they already perform by virtue of their current
positions as prosecutors of the DOJ and legal officers of the Comelec. Thus, in no way can we
consider the Joint Committee as a new public office.
D. Independence of the Comelec
Petitioners claim that in creating the Joint Panel, the Comelec has effectively abdicated its
constitutional mandate to investigate and, where appropriate, to prosecute cases of violation of
election laws including acts or omissions constituting election frauds, offenses, and malpractices in
favor of the Executive Department acting through the DOJ Secretary. Under the set- up, the
Comelec personnel is placed under the supervision and control of the DOJ. The chairperson is a
DOJ official. Thus, the Comelec has willingly surrendered its independence to the DOJ and has
acceded to share its exercise of judgment and discretion with the Executive Branch.
We do not agree.

Section 1,95 Article IX-A of the 1987 Constitution expressly describes all the Constitutional
Commissions as independent. Although essentially executive in nature, they are not under the
control of the President of the Philippines in the discharge of their respective functions. 96 The
Constitution envisions a truly independent Comelec committed to ensure free, orderly, honest,
peaceful, and credible elections and to serve as the guardian of the peoples sacred right of suffrage
the citizenrys vital weapon in effecting a peaceful change of government and in achieving and
promoting political stability.97
Prior to the amendment of Section 265 of the Omnibus Election Code, the Comelec had the
exclusive authority to investigate and prosecute election offenses. In the discharge of this exclusive
power, the Comelec was given the right to avail and, in fact, availed of the assistance of other
prosecuting arms of the government such as the prosecutors of the DOJ. By virtue of this continuing
authority, the state prosecutors and the provincial or city prosecutors were authorized to receive the
complaint for election offense and delegate the conduct of investigation to any of their assistants.
The investigating prosecutor, in turn, would make a recommendation either to dismiss the complaint
or to file the information. This recommendation is subject to the approval of the state, provincial or
city prosecutor, who himself may file the information with the proper court if he finds sufficient cause
to do so, subject, however, to the accuseds right to appeal to the Comelec. 98
Moreover, during the past national and local elections, the Comelec issued Resolutions 99 requesting
the Secretary of Justice to assign prosecutors as members of Special Task Forces to assist the
Comelec in the investigation and prosecution of election offenses. These Special Task Forces were
created because of the need for additional lawyers to handle the investigation and prosecution of
election offenses.
Clearly, the Comelec recognizes the need to delegate to the prosecutors the power to conduct
preliminary investigation. Otherwise, the prompt resolution of alleged election offenses will not be
attained. This delegation of power, otherwise known as deputation, has long been recognized and, in
fact, been utilized as an effective means of disposing of various election offense cases. Apparently,
as mere deputies, the prosecutors played a vital role in the conduct of preliminary investigation, in
the resolution of complaints filed before them, and in the filing of the informations with the proper
court.
As pointed out by the Court in Barangay Association for National Advancement and Transparency
(BANAT) Party-List v. Commission on Elections,100 the grant of exclusive power to investigate and
prosecute cases of election offenses to the Comelec was not by virtue of the Constitution but by the
Omnibus Election Code which was eventually amended by Section 43 of R.A. 9369. Thus, the DOJ
now conducts preliminary investigation of election offenses concurrently with the Comelec and no
longer as mere deputies. If the prosecutors had been allowed to conduct preliminary investigation
and file the necessary information by virtue only of a delegated authority, they now have better
grounds to perform such function by virtue of the statutory grant of authority. If deputation was
justified because of lack of funds and legal officers to ensure prompt and fair investigation and
prosecution of election offenses, the same justification should be cited to justify the grant to the other
prosecuting arms of the government of such concurrent jurisdiction.
In view of the foregoing disquisition, we find no impediment for the creation of a Joint Committee.
While the composition of the Joint Committee and Fact-Finding Team is dominated by DOJ officials,
it does not necessarily follow that the Comelec is inferior. Under the Joint Order, resolutions of the
Joint Committee finding probable cause for election offenses shall still be approved by the Comelec
in accordance with the Comelec Rules of Procedure. This shows that the Comelec, though it acts
jointly with the DOJ, remains in control of the proceedings. In no way can we say that the Comelec
has thereby abdicated its independence to the executive department.

The text and intent of the constitutional provision granting the Comelec the authority to investigate
and prosecute election offenses is to give the Comelec all the necessary and incidental powers for it
to achieve the objective of holding free, orderly, honest, peaceful, and credible elections. 101 The
Comelec should be allowed considerable latitude in devising means and methods that will insure the
accomplishment of the great objective for which it was created.102We may not agree fully with its
choice of means, but unless these are clearly illegal or constitute gross abuse of discretion, this
Court should not interfere.103 Thus, Comelec Resolution No. 9266, approving the creation of the Joint
Committee and Fact-Finding Team, should be viewed not as an abdication of the constitutional
bodys independence but as a means to fulfill its duty of ensuring the prompt investigation and
prosecution of election offenses as an adjunct of its mandate of ensuring a free, orderly, honest,
peaceful and credible elections.
Although it belongs to the executive department, as the agency tasked to investigate crimes,
prosecute offenders, and administer the correctional system, the DOJ is likewise not barred from
acting jointly with the Comelec. It must be emphasized that the DOJ and the Comelec exercise
concurrent jurisdiction in conducting preliminary investigation of election offenses. The doctrine of
concurrent jurisdiction means equal jurisdiction to deal with the same subject matter.104 Contrary to
the contention of the petitioners, there is no prohibition on simultaneous exercise of power between
two coordinate bodies. What is prohibited is the situation where one files a complaint against a
respondent initially with one office (such as the Comelec) for preliminary investigation which was
immediately acted upon by said office and the re-filing of substantially the same complaint with
another office (such as the DOJ). The subsequent assumption of jurisdiction by the second office
over the cases filed will not be allowed. Indeed, it is a settled rule that the body or agency that first
takes cognizance of the complaint shall exercise jurisdiction to the exclusion of the others. 105 As
cogently held by the Court in Department of Justice v. Hon. Liwag:106
To allow the same complaint to be filed successively before two or more investigative bodies would
promote multiplicity of proceedings. It would also cause undue difficulties to the respondent who
would have to appear and defend his position before every agency or body where the same
complaint was filed. This would lead hapless litigants at a loss as to where to appear and plead their
cause or defense.
There is yet another undesirable consequence. There is the distinct possibility that the two bodies
exercising jurisdiction at the same time would come up with conflicting resolutions regarding the guilt
of the respondents.
Finally, the second investigation would entail an unnecessary expenditure of public funds, and the
use of valuable and limited resources of Government, in a duplication of proceedings already started
with the Ombudsman.107
None of these problems would likely arise in the present case. The Comelec and the DOJ
themselves agreed that they would exercise their concurrent jurisdiction jointly. Although the
preliminary investigation was conducted on the basis of two complaints the initial report of the
Fact-Finding Team and the complaint of Senator Pimentel both complaints were filed with the Joint
Committee. Consequently, the complaints were filed with and the preliminary investigation was
conducted by only one investigative body. Thus, we find no reason to disallow the exercise of
concurrent jurisdiction jointly by those given such authority. This is especially true in this case given
the magnitude of the crimes allegedly committed by petitioners. The joint preliminary investigation
also serves to maximize the resources and manpower of both the Comelec and the DOJ for the
prompt disposition of the cases.

Citing the principle of concurrent jurisdiction, petitioners insist that the investigation conducted by the
Comelec involving Radam and Martirizar bars the creation of the Joint Committee for purposes of
conducting another preliminary investigation. In short, they claim that the exercise by the Comelec of
its jurisdiction to investigate excludes other bodies such as the DOJ and the Joint Committee from
taking cognizance of the case. Petitioners add that the investigation should have been conducted
also by the Comelec as the 2007 cases of Radam and Martirizar include several John Does and
Jane Does.
We do not agree.
While the Comelec conducted the preliminary investigation against Radam, Martirizar and other
unidentified persons, it only pertains to election offenses allegedly committed in North and South
Cotabato. On the other hand, the preliminary investigation conducted by the Joint Committee
(involving GMA) pertains to election offenses supposedly committed in Maguindanao. More
importantly, considering the broad power of the Comelec to choose the means of fulfilling its duty of
ensuring the prompt investigation and prosecution of election offenses as discussed earlier, there is
nothing wrong if the Comelec chooses to work jointly with the DOJ in the conduct of said
investigation. To reiterate, in no way can we consider this as an act abdicating the independence of
the Comelec.
Publication Requirement
In the conduct of preliminary investigation, the DOJ is governed by the Rules of Court, while the
Comelec is governed by the 1993 Comelec Rules of Procedure. There is, therefore, no need to
promulgate new Rules as may be complementary to the DOJ and Comelec Rules.
As earlier discussed, considering that Joint Order No. 001-2011 only enables the Comelec and the
DOJ to exercise powers which are already vested in them by the Constitution and other existing
laws, it need not be published for it to be valid and effective. A close examination of the Joint
Committees Rules of Procedure, however, would show that its provisions affect the public.
Specifically, the following provisions of the Rules either restrict the rights of or provide remedies to
the affected parties, to wit: (1) Section 1 provides that "the Joint Committee will no longer entertain
complaints from the public as soon as the Fact-Finding Team submits its final report, except for such
complaints involving offenses mentioned in the Fact-Finding Teams Final Report"; (2) Section 2
states that "the Joint Committee shall not entertain a Motion to Dismiss"; and (3) Section 5 provides
that a Motion for Reconsideration may be availed of by the aggrieved parties against the Joint
Committees Resolution. Consequently, publication of the Rules is necessary.
The publication requirement covers not only statutes but administrative regulations and issuances,
as clearly outlined in Taada v. Tuvera:108 effectivity, which shall begin fifteen days after publication
unless a different effectivity date is fixed by the legislature. Covered by this rule are presidential
decrees and executive orders promulgated by the President in the exercise of legislative powers
whenever the same are validly delegated by the legislature or, at present, directly conferred by the
Constitution. Administrative rules and regulations must also be published if their purpose is to
enforce or implement existing law pursuant also to a valid delegation. Interpretative regulations and
those merely internal in nature, that is, regulating only the personnel of the administrative agency
and not the public, need not be published. Neither is publication required of the so called letters of
instructions issued by administrative superiors concerning the rules or guidelines to be followed by
their subordinates in the performance of their duties.109
As opposed to Honasan II v. The Panel of Investigating Prosecutors of the Department of
Justice,110 where the Court held that OMB-DOJ Joint Circular No. 95-001 is only an internal

arrangement between the DOJ and the Office of the Ombudsman outlining the authority and
responsibilities among prosecutors of both offices in the conduct of preliminary investigation, the
assailed Joint Committees Rules of Procedure regulate not only the prosecutors of the DOJ and the
Comelec but also the conduct and rights of persons, or the public in general. The publication
requirement should, therefore, not be ignored.
Publication is a necessary component of procedural due process to give as wide publicity as
possible so that all persons having an interest in the proceedings may be notified thereof. 111 The
requirement of publication is intended to satisfy the basic requirements of due process. It is
imperative for it will be the height of injustice to punish or otherwise burden a citizen for the
transgressions of a law or rule of which he had no notice whatsoever.112
Nevertheless, even if the Joint Committees Rules of Procedure is ineffective for lack of publication,
the proceedings undertaken by the Joint Committee are not rendered null and void for that reason,
because the preliminary investigation was conducted by the Joint Committee pursuant to the
procedures laid down in Rule 112 of the Rules on Criminal Procedure and the 1993 Comelec Rules
of Procedure.
Validity of the Conduct of
Preliminary Investigation
In her Supplemental Petition,113 GMA outlines the incidents that took place after the filing of the
instant petition, specifically the issuance by the Joint Committee of the Joint Resolution, the approval
with modification of such resolution by the Comelec and the filing of information and the issuance of
a warrant of arrest by the RTC. With these supervening events, GMA further assails the validity of
the proceedings that took place based on the following additional grounds: (1) the undue and
unbelievable haste attending the Joint Committees conduct of the preliminary investigation, its
resolution of the case, and its referral to and approval by the Comelec, taken in conjunction with the
statements from the Office of the President, demonstrate a deliberate and reprehensible pattern of
abuse of inalienable rights and a blatant disregard of the envisioned integrity and independence of
the Comelec; (2) as it stands, the creation of the Joint Committee was for the singular purpose of
railroading the proceedings in the prosecution of the petitioner and in flagrant violation of her right to
due process and equal protection of the laws; (3) the proceedings of the Joint Committee cannot be
considered impartial and fair, considering that respondents have acted as law enforcers, who
conducted the criminal investigation, gathered evidence and thereafter ordered the filing of
complaints, and at the same time authorized preliminary investigation based on the complaints they
caused to be filed; (4) the Comelec became an instrument of oppression when it hastily approved
the resolution of the Joint Committee even if two of its members were in no position to cast their
votes as they admitted to not having yet read the voluminous records of the cases; and (5) flagrant
and repeated violations of her right to due process at every stage of the proceedings demonstrate a
deliberate attempt to single out petitioner through the creation of the Joint Committee. 114
In their Supplement to the Consolidated Comment,115 respondents accuse petitioners of violating the
rule against forum shopping. They contend that in filing the Supplemental Petition before the Court,
the Urgent Omnibus Motion Ad Cautelam with the RTC, and the Motion to Vacate Ad Cautelam with
the Comelec, GMA raises the common issue of whether or not the proceedings before the Joint
Committee and the Comelec are null and void for violating the Constitution. Respondents likewise
claim that the issues raised in the supplemental petition are factual which is beyond the power of this
Court to decide.
We cannot dismiss the cases before us on the ground of forum shopping.

Forum shopping is the act of a party against whom an adverse judgment has been rendered in one
forum, of seeking another and possibly favorable opinion in another forum other than by appeal or
the special civil action of certiorari.116There can also be forum shopping when a party institutes two or
more suits in different courts, either simultaneously or successively, in order to ask the courts to rule
on the same and related causes and/or to grant the same or substantially the same reliefs on the
supposition that one or the other court would make a favorable disposition or increase a partys
chances of obtaining a favorable decision or action.117
Indeed, petitioner GMA filed a Supplemental Petition before the Court, an Urgent Omnibus Motion
Ad Cautelam before the RTC, and a Motion to Vacate Ad Cautelam before the Comelec,
emphasizing the unbelievable haste committed by the Joint Committee and the Comelec in
disposing of the cases before them. However, a plain reading of the allegations in GMAs motion
before the RTC would show that GMA raised the issue of undue haste in issuing the Joint Resolution
only in support of her prayer for the trial court to hold in abeyance the issuance of the warrant of
arrest, considering that her motion for reconsideration of the denial of her motion to be furnished
copies of documents was not yet acted upon by the Joint Committee. If at all the constitutional issue
of violation of due process was raised, it was merely incidental. More importantly, GMA raised in her
motion with the RTC the finding of probable cause as she sought the judicial determination of
probable cause which is not an issue in the petitions before us. GMAs ultimate prayer is actually for
the court to defer the issuance of the warrant of arrest. Clearly, the reliefs sought in the RTC are
different from the reliefs sought in this case. Thus, there is no forum shopping.
With respect to the Motion to Vacate Ad Cautelam filed with the Comelec, while the issues raised
therein are substantially similar to the issues in the supplemental petition which, therefore, strictly
speaking, warrants outright dismissal on the ground of forum shopping, we cannot do so in this case
in light of the due process issues raised by GMA.118 It is worthy to note that the main issues in the
present petitions are the constitutionality of the creation of the Joint Panel and the validity of the
proceedings undertaken pursuant thereto for alleged violation of the constitutional right to due
process. In questioning the propriety of the conduct of the preliminary investigation in her
Supplemental Petition, GMA only raises her continuing objection to the exercise of jurisdiction of the
Joint Committee and the Comelec. There is, therefore, no impediment for the Court to rule on the
validity of the conduct of preliminary investigation.
In Uy v. Office of the Ombudsman,119 the Court explained the nature of preliminary investigation, to
wit:
A preliminary investigation is held before an accused is placed on trial to secure the innocent against
hasty, malicious, and oppressive prosecution; to protect him from an open and public accusation of a
crime, as well as from the trouble, expenses, and anxiety of a public trial. It is also intended to
protect the state from having to conduct useless and expensive trials. While the right is statutory
rather than constitutional, it is a component of due process in administering criminal justice. The right
to have a preliminary investigation conducted before being bound for trial and before being exposed
to the risk of incarceration and penalty is not a mere formal or technical right; it is a substantive right.
To deny the accused's claim to a preliminary investigation is to deprive him of the full measure of his
right to due process.120
A preliminary investigation is the crucial sieve in the criminal justice system which spells for an
individual the difference between months if not years of agonizing trial and possibly jail term, on the
one hand, and peace of mind and liberty, on the other hand. Thus, we have characterized the right to
a preliminary investigation as not a mere formal or technical right but a substantive one, forming part
of due process in criminal justice.121

In a preliminary investigation, the Rules of Court guarantee the petitioners basic due process rights
such as the right to be furnished a copy of the complaint, the affidavits, and other supporting
documents, and the right to submit counter-affidavits, and other supporting documents in her
defense.122 Admittedly, GMA received the notice requiring her to submit her counter-affidavit. Yet, she
did not comply, allegedly because she could not prepare her counter-affidavit. She claimed that she
was not furnished by Senator Pimentel pertinent documents that she needed to adequately prepare
her counter-affidavit.
In her Omnibus Motion Ad Cautelam123 to require Senator Pimentel to furnish her with documents
referred to in his complaint-affidavit and for production of election documents as basis for the charge
of electoral sabotage, GMA prayed that the Joint Committee issue an Order directing the FactFinding Team and Senator Pimentel to furnish her with copies of the following documents:
a. Complaint-affidavit and other relevant documents of Senator Aquilino Pimentel III filed
before the Commission on Elections against Attys. Lilia Suan-Radam and Yogie Martirizar, as
well as the Informations filed in the Regional Trial Court of Pasay City, Branch 114 in
Criminal Case Nos. R-PSU-11-03190-CR to R-PSU-11-03200-CR.
b. Records in the petitions filed by complainant Pimentel before the National Board of
Canvassers, specifically in NBC Case Nos. 07-162, 07-168, 07-157, 07-159, 07-161 and 07163.
c. Documents which served as basis in the allegations of "Significant findings specific to the
protested municipalities in the Province of Maguindanao."
d. Documents which served as basis in the allegations of "Significant findings specific to the
protested municipalities in the Province of Lanao del Norte."
e. Documents which served as basis in the allegations of "Significant findings specific to the
protested municipalities in the Province of Shariff Kabunsuan."
f. Documents which served as basis in the allegations of "Significant findings specific to the
protested municipalities in the Province of Lanao del Sur."
g. Documents which served as basis in the allegations of "Significant findings specific to the
protested municipalities in the Province of Sulu."
h. Documents which served as basis in the allegations of "Significant findings specific to the
protested municipalities in the Province of Basilan."
i. Documents which served as basis in the allegations of "Significant findings specific to the
protested municipalities in the Province of Sultan Kudarat." 124
GMA likewise requested the production of election documents used in the Provinces of South and
North Cotabato and Maguindanao.125
The Joint Committee, however, denied GMAs motion which carried with it the denial to extend the
filing of her counter-affidavit. Consequently, the cases were submitted for resolution sans GMAs and
the other petitioners counter-affidavits. This, according to GMA, violates her right to due process of
law.

We do not agree.
GMAs insistence of her right to be furnished the above-enumerated documents is based on Section
3 (b), Rule 112 of the Rules on Criminal Procedure, which reads:
(b) x x x
The respondent shall have the right to examine the evidence submitted by the complainant which he
may not have been furnished and to copy them at his expense. If the evidence is voluminous, the
complainant may be required to specify those which he intends to present against the respondent,
and these shall be made available for examination or copying by the respondent at his expense,
Objects as evidence need not be furnished a party but shall be made available for examination,
copying or photographing at the expense of the requesting party.126
Section 6 (a), Rule 34 of the Comelec Rules of Procedure also grants the respondent such right of
examination, to wit:
Sec. 6. Conduct of preliminary investigation. (a) If on the basis of the complaint, affidavits and
other supporting evidence, the investigating officer finds no ground to continue with the inquiry, he
shall recommend the dismissal of the complaint and shall follow the procedure prescribed in Sec. 8
(c) of this Rule. Otherwise, he shall issue a subpoena to the respondent, attaching thereto a copy of
the complaint, affidavits and other supporting documents giving said respondent ten (10) days from
receipt within which to submit counter-affidavits and other supporting documents. The respondent
shall have the right to examine all other evidence submitted by the complainant. 127
Clearly from the above-quoted provisions, the subpoena issued against respondent therein should
be accompanied by a copy of the complaint and the supporting affidavits and documents. GMA also
has the right to examine documents but such right of examination is limited only to the documents or
evidence submitted by the complainants (Senator Pimentel and the Fact-Finding Team) which she
may not have been furnished and to copy them at her expense.
While it is true that Senator Pimentel referred to certain election documents which served as bases
in the allegations of significant findings specific to the protested municipalities involved, there were
no annexes or attachments to the complaint filed. 128 As stated in the Joint Committees Order dated
November 15, 2011 denying GMAs Omnibus Motion Ad Cautelam, Senator Pimentel was ordered to
furnish petitioners with all the supporting evidence129 However, Senator Pimentel manifested that he
was adopting all the affidavits attached to the Fact-Finding Teams Initial Report. 130 Therefore, when
GMA was furnished with the documents attached to the Initial Report, she was already granted the
right to examine as guaranteed by the Comelec Rules of Procedure and the Rules on Criminal
Procedure. Those were the only documents submitted by the complainants to the Committee. If
there are other documents that were referred to in Senator Pimentels complaint but were not
submitted to the Joint Committee, the latter considered those documents unnecessary at that point
(without foreclosing the relevance of other evidence that may later be presented during the trial) 131 as
the evidence submitted before it were considered adequate to find probable cause against
her.132 Anyway, the failure of the complainant to submit documents supporting his allegations in the
complaint may only weaken his claims and eventually works for the benefit of the respondent as
these merely are allegations unsupported by independent evidence.
We must, however, emphasize at this point that during the preliminary investigation, the
complainants are not obliged to prove their cause beyond reasonable doubt. It would be unfair to
expect them to present the entire evidence needed to secure the conviction of the accused prior to

the filing of information.133 A preliminary investigation is not the occasion for the full and exhaustive
display of the parties respective evidence but the presentation only of such evidence as may
engender a well-grounded belief that an offense has been committed and that the accused is
probably guilty thereof and should be held for trial.134 Precisely there is a trial to allow the reception of
evidence for the prosecution in support of the charge. 135
With the denial of GMAs motion to be furnished with and examine the documents referred to in
Senator Pimentels complaint, GMAs motion to extend the filing of her counter-affidavit and
countervailing evidence was consequently denied. Indeed, considering the nature of the crime for
which GMA was subjected to preliminary investigation and the documents attached to the complaint,
it is incumbent upon the Joint Committee to afford her ample time to examine the documents
submitted to the Joint Committee in order that she would be able to prepare her counter-affidavit.
She cannot, however, insist to examine documents not in the possession and custody of the Joint
Committee nor submitted by the complainants. Otherwise, it might cause undue and unnecessary
delay in the disposition of the cases. This undue delay might result in the violation of the right to a
speedy disposition of cases as enshrined in Section 16, Article III of the Constitution which states
that "all persons shall have the right to a speedy disposition of their cases before all judicial, quasijudicial, or administrative bodies." The constitutional right to speedy disposition of cases is not
limited to the accused in criminal proceedings but extends to all parties in all cases, including civil
and administrative cases, and in all proceedings, including judicial and quasi-judicial hearings. 136 Any
party to a case has the right to demand on all officials tasked with the administration of justice to
expedite its disposition.137 Society has a particular interest in bringing swift prosecutions, and the
societys representatives are the ones who should protect that interest. 138
Even assuming for the sake of argument that the denial of GMAs motion to be furnished with and
examine the documents referred to in Senator Pimentels complaint carried with it the denial to
extend the filing of her counter-affidavit and other countervailing evidence rendering the preliminary
investigation irregular, such irregularity would not divest the RTC of jurisdiction over the case and
would not nullify the warrant of arrest issued in connection therewith, considering that Informations
had already been filed against petitioners, except Mike Arroyo. This would only compel us to
suspend the proceedings in the RTC and remand the case to the Joint Committee so that GMA
could submit her counter-affidavit and other countervailing evidence if she still opts to. However, to
do so would hold back the progress of the case which is anathema to the accuseds right to speedy
disposition of cases.
It is well settled that the absence or irregularity of preliminary investigation does not affect the courts
jurisdiction over the case. Nor does it impair the validity of the criminal information or render it
defective. Dismissal is not the remedy.139 Neither is it a ground to quash the information or nullify the
order of arrest issued against the accused or justify the release of the accused from detention. 140 The
proper course of action that should be taken is to hold in abeyance the proceedings upon such
information and to remand the case for the conduct of preliminary investigation. 141
In the landmark cases of Cojuangco, Jr. v. Presidential Commission on Good Government
(PCGG)142 and Allado v. Diokno,143 we dismissed the criminal cases and set aside the informations
and warrants of arrest. In Cojuangco, we dismissed the criminal case because the information was
filed by the PCGG which we declared to be unauthorized to conduct the preliminary investigation
and, consequently, file the information as it did not possess the cold neutrality of an impartial judge.
In Allado, we set aside the warrant of arrest issued against petitioners therein and enjoined the trial
court from proceeding further for lack of probable cause. For one, there was serious doubt on the
reported death of the victim in that case since the corpus delicti had not been established nor had
his remains been recovered;and based on the evidence submitted, there was nothing to incriminate
petitioners therein. In this case, we cannot reach the same conclusion because the Information filed

before the RTC of Pasay City was filed by the Comelec en banc which had the authority to file the
information for electoral sabotage and because the presence or absence of probable cause is not an
issue herein. As can be gleaned from their assignment of errors/issues, petitioners did not question
the finding of probable cause in any of their supplemental petitions. It was only in GMAs
memorandum where she belatedly included a discussion on the "insufficiency" of the evidence
supporting the finding of probable cause for the filing of the Information for electoral sabotage
against her.144 A closer look at her arguments, however, would show that they were included only to
highlight the necessity of examining the election documents GMA requested to see before she could
file her counter-affidavit. At any rate, since GMA failed to submit her counter-affidavit and other
countervailing evidence within the period required by the Joint Committee, we cannot excuse her
from non-compliance.
There might have been overzealousness on the part of the Joint Committee in terminating the
investigation, endorsing the Joint Resolution to the Comelec for approval, and in filing the
information in court. However, speed in the conduct of proceedings by a judicial or quasi-judicial
officer cannot per se be instantly attributed to an injudicious performance of functions. 145 The orderly
administration of justice remains the paramount consideration with particular regard to the peculiar
circumstances of each case.146 To be sure, petitioners were given the opportunity to present
countervailing evidence. Instead of complying with the Joint Committees directive, several motions
were filed but were denied by the Joint Committee. Consequently, petitioners right to submit
counter-affidavit and countervailing evidence was forfeited. Taking into account the constitutional
right to speedy disposition of cases and following the procedures set forth in the Rules on Criminal
Procedure and the Comelec Rules of Procedure, the Joint Committee finally reached its conclusion
and referred the case to the Comelec. The latter, in turn, performed its task and filed the information
in court. Indeed, petitioners were given the opportunity to be heard. They even actively participated
in the proceedings and in fact filed several motions before the Joint Committee. Consistent with the
constitutional mandate of speedy disposition of cases, unnecessary delays should be avoided.
Finally, we take judicial notice that on February 23, 2012, GMA was already arraigned and entered a
plea of "not guilty" to the charge against her and thereafter filed a Motion for Bail which has been
granted. Considering that the constitutionality of the creation of the Joint Panel is sustained, the
actions of the Joint Committee and Fact-Finding Team are valid and effective. As the information was
filed by the Commission authorized to do so, its validity is sustained. Thus, we consider said entry of
plea and the Petition for Bail waiver on the part of GMA of her right to submit counter-affidavit and
countervailing evidence before the Joint Committee, and recognition of the validity of the information
against her. Her act indicates that she opts to avail of judicial remedies instead of the executive
remedy of going back to the Joint Committee for the submission of the counter-affidavit and
countervailing evidence. Besides, as discussed earlier, the absence or irregularity of preliminary
investigation does not affect the courts jurisdiction over the case nor does it impair the validity of the
criminal information or render it defective.
It must be stressed, however, that this supervening event does not render the cases before the
Court moot and academic as the main issues raised by petitioners are the constitutionality of the
creation of the Joint Committee and the Fact-Finding Team and the validity of the proceedings
undertaken pursuant to their respective mandates.
The Court notes that the Joint Committee and the Comelec have not disposed of the cases of the
other respondents subjects of the preliminary investigation as some of them were subjected to
further investigation. In order to remove the cloud of doubt that pervades that petitioners are being
singled out, it is to the best interest of all the parties concerned that the Joint Committee and the
Comelec terminate the proceedings as to the other respondents therein and not make a piecemeal
disposition of the cases.

A peripheral issue which nonetheless deserves our attention is the question about the credibility of
the Comelec brought about by the alleged professional relationship between Comelec Chairman
Brillantes on one hand and the complainant Senator Pimentel and Fernando Poe, Jr. (FPJ), GMAs
rival in the 2004 elections, on the other hand; and by the other Commissioners 147 reasons for their
partial inhibition. To be sure, Chairman Brillantes relationship with FPJ and Senator Pimentel is not
one of the grounds for the mandatory disqualification of a Commissioner. At its most expansive, it
may be considered a ground for voluntary inhibition which is indeed discretionary as the same was
primarily a matter of conscience and sound discretion on the part of the Commissioner judge based
on his or her rational and logical assessment of the case. 148 Bare allegations of bias and prejudice
are not enough in the absence of clear and convincing evidence to overcome the presumption that a
judge will undertake his noble role to dispense justice according to law and evidence without fear or
favor.149 It being discretionary and since Commissioner Brillantes was in the best position to
determine whether or not there was a need to inhibit from the case, his decision to participate in the
proceedings, in view of higher interest of justice, equity and public interest, should be respected.
While a party has the right to seek the inhibition or disqualification of a judge (or prosecutor or
Commissioner) who does not appear to be wholly free, disinterested, impartial, and independent in
handling the case, this right must be weighed with his duty to decide cases without fear of
repression.150
Indeed, in Javier v. Comelec,151 the Court set aside the Comelecs decision against Javier when it
was disclosed that one of the Commissioners who had decided the case was a law partner of
Javiers opponent and who had refused to excuse himself from hearing the case. Javier, however, is
not applicable in this case. First, the cited case involves the Comelecs exercise of its adjudicatory
function as it was called upon to resolve the propriety of the proclamation of the winner in the May
1984 elections for Batasang Pambansa of Antique. Clearly, the grounds for inhibition/disqualification
were applicable. Second, the case arose at the time where the purity of suffrage has been defiled
and the popular will scorned through the confabulation of those in authority.152 In other words, the
controversy arose at the time when the public confidence in the Comelec was practically nil because
of its transparent bias in favor of the administration.153Lastly, in determining the propriety of the
decision rendered by the Comelec, the Court took into consideration not only the relationship (being
former partners in the law firm) between private respondents therein, Arturo F. Pacificador, and then
Comelec Commissioner Jaime Opinion (Commissioner Opinion) but also the general attitude of the
Comelec toward the party in power at that time. Moreover, the questioned Comelec decision was
rendered only by a division of the Comelec. The Court thus concluded in Javier that Commissioner
Opinions refusal to inhibit himself divested the Comelecs Second Division of the necessary vote for
the questioned decision and rendered the proceedings null and void. 154
On the contrary, the present case involves only the conduct of preliminary investigation and the
questioned resolution is an act of the Comelec En Banc where all the Commissioners participated
and more than a majority (even if Chairman Brillantes is excluded) voted in favor of the assailed
Comelec resolution. Unlike in 1986, public confidence in the Comelec remains. The Commissioners
have already taken their positions in light of the claim of "bias and partiality" and the causes of their
partial inhibition. Their positions should be respected confident that in doing so, they had the end in
view of ensuring that the credibility of the Commission is not seriously affected.
To recapitulate, we find and so hold that petitioners failed to establish any constitutional or legal
impediment to the creation of the Joint DOJ-Comelec Preliminary Investigation Committee and FactFinding Team.
First, while GMA and Mike Arroyo were among those subjected to preliminary investigation, not all
respondents therein were linked to GMA; thus, Joint Order No. 001-2011 does not violate the equal
protection clause of the Constitution.

Second, the due process clause is likewise not infringed upon by the alleged prejudgment of the
case as petitioners failed to prove that the Joint Panel itself showed such bias and partiality against
them. Neither was it shown that the Justice Secretary herself actually intervened in the conduct of
the preliminary investigation. More importantly, considering that the Comelec is a collegial body, the
perceived prejudgment of Chairman Brillantes as head of the Comelec cannot be considered an act
of the body itself.
Third, the assailed Joint Order did not create new offices because the Joint Committee and FactFinding Team perform functions that they already perform by virtue of the Constitution, the statutes,
and the Rules of Court.
1wphi1

Fourth, in acting jointly with the DOJ, the Comelec cannot be considered to have abdicated its
independence in favor of the executive branch of government. Resolution No. 9266 was validly
issued by the Comelec as a means to fulfill its duty of ensuring the prompt investigation and
prosecution of election offenses as an adjunct of its mandate of ensuring a free, orderly, honest,
peaceful, and credible elections. The role of the DOJ in the conduct of preliminary investigation of
election offenses has long been recognized by the Comelec because of its lack of funds and legal
officers to conduct investigations and to prosecute such cases on its own. This is especially true
after R.A. No. 9369 vested in the Comelec and the DOJ the concurrent jurisdiction to conduct
preliminary investigation of all election offenses. While we uphold the validity of Comelec Resolution
No. 9266 and Joint Order No. 001-2011, we declare the Joint Committees Rules of Procedure infirm
for failure to comply with the publication requirement. Consequently, Rule 112 of the Rules on
Criminal Procedure and the 1993 Comelec Rules of Procedure govern.
Fifth, petitioners were given the opportunity to be heard. They were furnished a copy of the
complaint, the affidavits, and other supporting documents submitted to the Joint Committee and they
were required to submit their counter-affidavit and countervailing evidence. As to petitioners Mike
Arroyo and Abalos, the pendency of the cases before the Court does not automatically suspend the
proceedings before the Joint Committee nor excuse them from their failure to file the required
counter-affidavits. With the foregoing disquisitions, we find no reason to nullify the proceedings
undertaken by the Joint Committee and the Comelec in the electoral sabotage cases against
petitioners.
WHEREFORE, premises considered, the petitions and supplemental petitions are DISMISSED.
Comelec Resolution No. 9266 dated August 2, 2011, Joint Order No. 001-2011 dated August 15,
2011, and the Fact-Finding Teams Initial Report dated October 20, 2011, are declared VALID.
However, the Rules of Procedure on the Conduct of Preliminary Investigation on the Alleged Election
Fraud in the 2004 and 2007 National Elections is declared INEFFECTIVE for lack of publication.
In view of the constitutionality of the Joint Panel and the proceedings having been conducted in
accordance with Rule 112 of the Rules on Criminal Procedure and Rule 34 of the Comelec Rules of
Procedure, the conduct of the preliminary investigation is hereby declared VALID.
Let the proceedings in the Regional Trial Court of Pasay City, Branch 112, where the criminal cases
for electoral sabotage against petitioners GMA and Abalos are pending, proceed with dispatch.
SO ORDERED.
March 11, 2015
G.R. No. 176033

FELILIBETH AGUINALDO and BENJAMIN PEREZ, Petitioners,

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

The procedural antecedents are as follows:

On December 2, 2002, private respondents Reynaldo P. Ventus and Jojo B. Joson filed a ComplaintAffidavit for estafa against petitioners Aguinaldo and Perez before the Office of the City Prosecutor
(OCP) of Manila. Claiming to be business partners in financing casino players, private respondents
alleged that sometime in March and April 2002, petitioners connived in convincing them to part with
their Two Hundred Sixty Thousand (P260,000.00) Pesos in consideration of a pledge of two motor
vehicles which the latter had misrepresented to be owned by Aguinaldo, but turned out to be owned
by one Levita De Castro, manager/operator of LEDC Rent-A-Car.
3

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

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

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

On February 25, 2003, Assistant City Prosecutor (ACP) Renato F. Gonzaga issued a
Resolution recommending both petitioners to be indicted in court for estafa under Article 315,
paragraph (2) of the Revised Penal Code (RPC). He also noted that Aguinaldo failed to appear and
to submit any controverting evidence despite the subpoena.
7

On July 16, 2003, an Information (I.S. No. 02L-51569) charging petitioners with the crime of estafa
under Article 315, paragraph 2 (a) of the RPC was filed with the Regional Trial Court of Manila.
8

Docketed as Criminal Case No. 03-216182, entitled "People of the Philippines v. Felilibeth Aguinaldo
and Benjamin Perez," the case was raffled to the public respondent.
On July 31, 2003, Perez was arrested, so he filed an Urgent Motion for Reduction of Bail to be
Posted in Cash, which the public respondent granted in an Order of even date.
9

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

On August 4, 2003, petitioners jointly filed with the OCP of Manila their "Motion for Reconsideration
and Motion for the Withdrawal of the Information Prematurely Filed With the Regional Trial Court,
Branch 8, City of Manila." Citing the Counter-Affidavit and Rejoinder-Affidavit of Perez, Aguinaldo
asserted, among others, that no deceit or false pretenses was committed because private
respondents were fully aware that she does not own the pledged motor vehicles.
11

On August 6, 2003, the public respondent issued an Order granting the motion for withdrawal of
information, and directing the recall of the arrest warrant only insofar as Aguinaldo was concerned,
pending resolution of her motion for reconsideration with the OCP.
12

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

14

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

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

On February 27, 2004, petitioners filed with the Department of Justice (DOJ) a petition for review in
I.S. No. 02L-51569 for estafa, entitled "Benjamin Perez and Felilibeth Aguinaldo v. Reynaldo P.
Ventus and Jojo B. Joson."
17

Acting on the prosecution's recommendation for the denial of petitioners' motions for reconsideration
and withdrawal of the information, and its motion to set the case for trial, the public respondent
issued an Order dated March 15, 2004 directing the issuance of a warrant of arrest against
Aguinaldo and the setting of the case for arraignment.
18

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

20

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

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

23

On October 15, 2004, De Castro filed a Manifestation informing the public respondent that the DOJ
had already promulgated a Resolution dated September 6, 2004 denying petitioners' petition for
review in I.S. No. 02G- 29349 & 02G-28820 for estafa, entitled "Levita De Castro v. Felilibeth
Aguinaldo."
24

25

On May 16, 2005, the public respondent issued an Order granting the Motion to Reinstate Case and
to Issue Warrant of Arrest, thus:
Pending with this Court are (1) Motion to Reinstate Case and to Issue Warrant of Arrest against
accused Aguinaldo filed by private prosecutor with conformity of the public prosecutor. x x x
It appears from the records that:
(1)the warrant of arrest issued against accused Aguinaldo was recalled pending resolution of
the Petition for Review filed with the DOJ; x x x
(2)the Petition for Review was subsequently dismissed
xxx
(3)accused Aguinaldo has not yet posted bail bond.
In view of the foregoing, (the) Motion to Reinstate Case and to Issue Warrant of Arrest is GRANTED.
Let this case be REINSTATED and let warrant of arrest be issued against accused Aguinaldo.
xxxx
SO ORDERED.

26

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

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

Aggrieved, petitioners filed with the CA a Petition for Certiorari under Rule 65 of the Rules of Court,
attributing grave abuse of discretion amounting to lack or excess of jurisdiction on the part of the
public respondent in issuing the Orders dated May 16, 2005 and August 23, 2005. On August 11,

2006, the CA dismissed the petition for lack of merit. Petitioners filed a motion for reconsideration,
but the CA denied it in a Resolution dated December 4, 2006. Hence, this instant petition for review
on certiorari.
29

Petitioners raise the following issues:

I.
THE HONORABLE COURT OF APPEALS FAILED TO APPRECIATE THAT THE MOTION TO
REINSTATE THE CASE AND ISSUE A WARRANT OF ARREST WAS FILED BY ONE LEVITA DE
CASTRO WHO IS NOT A PARTY TO CRIMINAL CASE NO. 03-21[6]182.
II.
A PROCEDURAL TECHINICALITY THAT THE SUSPENSION ALLOWED FOR ARRAIGNMENT IS
ALREADY BEYOND THE 60- DAY PERIOD MAY BE RELAXED IN THE INTEREST OF AN
ORDERLY AND SPEEDY ADMINISTRATION OF JUSTICE.
III.
THE PRELIMINARY INVESTIGATION ON THE I.S. NO. 02L-51569 (CRIMINAL CASE NO. 0321[6]182) BY THE OFFICE OF THE CITY PROSECUTOR OF MANILA HAS NOT YET BEEN
COMPLETED.
30

On the first issue, petitioners argue that the public respondent erred in issuing the Order dated May
16, 2005 reinstating the case and issuing an arrest warrant against Aguinaldo. They point out that
the Motion to Reinstate the Case and to Issue a Warrant of Arrest against Aguinaldo was filed by De
Castro who is not a party in Criminal Case No. 03-216182, entitled "People of the Philippines v.
Felilibeth Aguinaldo and Benjamin Perez," instead of private complainants Reynaldo P. Ventus and
Jojo B. Joson. They also assert that said motion was erroneously granted based on the purported
denial of their petition for review by the DOJ, despite a Certification showing that their actual petition
in I.S. Number 02L-51569, entitled "Reynaldo Ventus, et al. v. Felilibeth Aguinaldo," has not yet been
resolved and is still pending with the DOJ.
On the second issue, petitioners argue that the provision of Section 11, Rule 116 of the Rules of
Court limiting the suspension for arraignment to only sixty (60) days is merely directory; thus, it
cannot deprive petitioners of their procedural right to due process, as their petition for review has not
yet been resolved by the DOJ.
On the third issue, petitioners take exception that even before they could receive a copy of the DOJ
resolution denying their petition for review, and thus move for its reconsideration, the Information in
Criminal Case No. 03-216182 had already been filed with the RTC on July 16, 2003. They contend
that such precipitate filing of the Information and issuance of a warrant of arrest put petitioners at the
risk of incarceration without the preliminary investigation having been completed because they were
not afforded their right to file a motion for reconsideration of the DOJ resolution. In support of their
contention, they raise the following arguments: that the right to preliminary investigation is a
substantive, not merely a procedural right; that an Information filed without affording the respondent
his right to file a motion for reconsideration of an adverse resolution, is fatally premature; and, that a

denial of a complete preliminary investigation deprives the accused of the full measure of his right to
due process and infringes on his constitutional right to liberty.
The petition is denied for lack of merit.
On the first issue, petitioners are correct in pointing out that the Motion to Reinstate the Case and
Issue a Warrant of Arrest was filed by one Levita De Castro who is not a party to Criminal Case No.
03-216182. Records show that De Castro is not even a private complainant, but a mere witness for
being the owner of the vehicles allegedly used by petitioners in defrauding and convincing private
respondents to part with their P260,000.00. Thus, the public respondent should have granted
petitioners' motion to expunge, and treated De Castro's motion as a mere scrap of paper with no
legal effect, as it was filed by one who is not a party to that case.
31

Petitioners are also correct in noting that De Castro's motion was granted based on the purported
dismissal of their petition for review with the DOJ. In reinstating the case and issuing the arrest
warrant against Aguinaldo, the public respondent erroneously relied on the DOJ Resolution dated
September 6, 2004 dismissing the petition for review in a different case, i.e., I.S. No. 02G-29349 &
02G-28820, entitled "Levita De Castro v. Felilibeth Aguinaldo, for two (2) counts of estafa." As
correctly noted by petitioners, however, their petition for review with the DOJ is still pending
resolution. In particular, Assistant Chief State Prosecutor Miguel F. Guido, Jr. certified that based on
available records of the Office of the Chief State Prosecutor, their petition for review filed in I.S.
Number 02L-51569, entitled "Reynaldo Ventus, et al. v. Felilibeth Aguinaldo" for estafa, is still
pending resolution as of May 27, 2005. It bears stressing that their petition stemmed from Criminal
Case No. 03-216812, entitled "People of the Philippines v. Felilibeth Aguinaldo and Benjamin Perez"
wherein the public respondent issued the interlocutory orders assailed before the CA, and now
before the Court.
32

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

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

35

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

37

In Heirs of Feraren v. Court of Appeals, the Court ruled that in a long line of decisions, it has
repeatedly held that while rules of procedure are liberally construed, the provisions on reglementary
periods are strictly applied, indispensable as they are to the prevention of needless delays, and are
necessary to the orderly and speedy discharge of judicial business. After all, rules of procedure do
not exist for the convenience of the litigants, and they are not to be trifled with lightly or overlooked
38

by the mere expedience of invoking "substantial justice." Relaxation or suspension of procedural

rules, or the exemption of a case from their operation, is warranted only by compelling reasons or
when the purpose of justice requires it.
39

Consistent with the foregoing jurisprudence, and there being no such reasons shown to warrant
relaxation of procedural rules in this case, the CA correctly ruled, thus:
In the case at bar, the petitioners' petition for review was filed with the Secretary of Justice on
February 27, 2004. As early as April 16, 2004, upon the petitioners' motion, the arraignment of the
petitioners herein was ordered deferred by the public respondent. We believe that the period of one
year and one month from April 16, 2004 to May 16, 2005 when the public respondent ordered the
issuance of a warrant for the arrest of petitioner Aguinaldo, was more than ample time to give the
petitioners the opportunity to obtain a resolution of their petition for review from the DOJ. The
petitioners though submitted a Certification from the DOJ dated May 30, 2005 stating that their
petition for review is pending resolution by the Department as of May 27, 2005. However, such delay
in the resolution does not extend the period of 60 days prescribed under the afore-quoted Section
11(c), Rule 116 of the Revised Rules on Criminal Procedure. Besides, the petitioners may be faulted
for the delay in the resolution of their petition. According to their counsel, she received the letter
dated April 15, 2004 from the DOJ requiring her to submit the pertinent pleadings relative to
petitioners' petition for review; admittedly, however, the same was complied with only on October 15,
2004. We therefore find that the trial court did not commit grave abuse of discretion in issuing the
assailed orders.
40

On the third issue, the Court is likewise unconvinced by petitioners' argument that the precipitate
filing of the Information and the issuance of a warrant of arrest put petitioners at the risk of
incarceration without the preliminary investigation having been completed because they were not
afforded their right to file a motion for reconsideration of the DOJ resolution.
While they are correct in stating that the right to preliminary investigation is a substantive, not merely
a procedural right, petitioners are wrong in arguing that the Information filed, without affording the
respondent his right to file a motion for reconsideration of an adverse DOJ resolution, is fatally
premature. In support of their argument, petitioners cite Sales v. Sandiganbayan wherein it was
held that since filing of a motion for reconsideration is an integral part of the preliminary investigation
proper, an Information filed without first affording the accused his right to a motion for
reconsideration, is tantamount to a denial of the right itself to a preliminary investigation.
41

The Court finds petitioners' reliance on Sales as misplaced. A closer look into said case would
reveal that the accused therein was denied his right to move for a reconsideration or a
reinvestigation of an adverse resolution in a preliminary investigation under the Rules of Procedure
of the Ombudsman before the filing of an Information. In contrast, petitioners in this case were
afforded their right to move for reconsideration of the adverse resolution in a preliminary
investigation when they filed their "Motion for Reconsideration and Motion for the Withdrawal of
Information Prematurely Filed with the Regional Trial Court, Branch 8, City of Manila," pursuant to
Section 3 of the 2000 National Prosecution Service (NPS Rule on Appeal) and Section 56 of the
Manual for Prosecutors .
42

43

44

45

With the Information for estafa against petitioners having been filed on July 16, 2003, the public
respondent cannot be faulted with grave abuse of discretion in issuing the August 23, 2005 Order
denying their motion to quash warrant of arrest, and setting their arraignment, pending the final

resolution of their petition for review by the DOJ. The Court believes that the period of almost one (1)
year and seven (7) months from the time petitioners filed their petition for review with the DOJ on
February 27, 2004 to September 14, 2005 when the trial court finally set their arraignment, was
more than ample time to give petitioners the opportunity to obtain a resolution of their petition. In
fact, the public respondent had been very liberal with petitioners in applying Section 11 (c), Rule 116
of the Rules of Court which limits the suspension of arraignment to a 60-day period from the filing of
such petition. Indeed, with more than eleven (11) years having elapsed from the filing of the petition
for review and petitioners have yet to be arraigned, it is now high time for the continuation of the trial
on the merits in the criminal case below, as the 60-day period counted from the filing of the petition
for review with the DOJ had long lapsed.
46

On whether petitioners were accorded their right to a complete preliminary investigation as part of
their right to due process, the Court rules in the affirmative. Having submitted his Counter-Affidavit
and Rejoinder- Affidavit to the OCP of Manila before the filing of Information for estafa, Perez cannot
be heard to decry that his right to preliminary investigation was not completed. For her part, while
Aguinaldo was not personally informed of any notice of preliminary investigation prior to the filing of
the Information, she was nonetheless given opportunity to be heard during such investigation. In
petitioners' motion for reconsideration of the February 25, 2003 Resolution of ACP Gonzaga,
Aguinaldo relied mostly on the Counter- Affidavit and Rejoinder-Affidavit of Perez to assail the
recommendation of the prosecutor to indict her for estafa. Since the filing of such motion for
reconsideration was held to be consistent with the principle of due process and allowed under
Section 56 of the Manual for Prosecutors, she cannot complain denial of her right to preliminary
investigation.
47

48

Both petitioners cannot, therefore, claim denial of their right to a complete preliminary investigation
as part of their right to due process. After all, "[d]ue process simply demands an opportunity to be
heard. Due process is satisfied when the parties are afforded a fair and reasonable opportunity to
explain their respective sides of the controversy. Where an opportunity to be heard either through
oral arguments or through pleadings is accorded, there is no denial of procedural due process."
49

In fine, the Court holds that public respondent erred in issuing the May 16, 2005 Order granting the
Motion to Reinstate Case and to Issue Warrant of Arrest, as it was filed by one who is not a party to
the case, and it was based on the DOJ's dismissal of a petition for review in a different case.
Nevertheless, the Court upholds the CA ruling that the public respondent committed no grave abuse
of discretion when he issued the August 23, 2005 Order denying petitioners' motion to quash warrant
of arrest, and setting their arraignment, despite the pendency of their petition for review with the
DOJ. For one, the public respondent had been very liberal in applying Section 11 (c), Rule 116 of the
Rules of Court which allows suspension of arraignment for a period of 60 days only. For another,
records show that petitioners were given opportunity to be heard during the preliminary investigation
of their estafa case.
Considering that this case had been held in abeyance long enough without petitioners having been
arraigned, the Court directs the remand of this case to the trial court for trial on the merits with strict
observance of Circular No. 38-98 dated August 11, 1998, or the "Implementing the Provisions of
Republic Act No. 8493, entitled 'An Act to Ensure a Speedy Trial of All Criminal Cases Before the
Sandiganbayan, Regional Trial Court, Metropolitan Trial Court, Municipal Trial Court in Cities,
Municipal Trial Court and Municipal Circuit Trial Court, Appropriating Funds Therefor, and for Other
Purposes.'" In this regard, suffice it to state that petitioners cannot invoke violation of their right to
speedy trial because Section 9 (3) of Circular No. 38-98 excludes in computing the time within which

trial must commence the delay resulting from extraordinary remedies against interlocutory orders,
such as their petitions before the CA and the Court.
Finally, in order to avoid delay in the proceedings, judges are reminded that the pendency of a
motion for reconsideration, motion for reinvestigation, or petition for review is not a cause for the
quashal of a warrant of arrest previously issued because the quashal of a warrant of arrest may only
take place upon the finding that no probable cause exists. Moreover, judges should take note of the
following:
1.If there is a pending motion for reconsideration or motion for reinvestigation of the resolution of the
public prosecutor, the court may suspend the proceedings upon motion by the parties. However, the
court should set the arraignment of the accused and direct the public prosecutor to submit the
resolution disposing of the motion on or before the period fixed by the court, which in no instance
could be more than the period fixed by the court counted from the granting of the motion to suspend
arraignment, otherwise the court will proceed with the arraignment as scheduled and without further
delay.
2.If there is a pending petition for review before the DOJ, the court may suspend the proceedings
upon motion by the parties. However, the court should set the arraignment of the accused and direct
the DOJ to submit the resolution disposing of the petition on or before the period fixed by the Rules
which, in no instance, could be more than sixty (60) days from the filing of the Petition for Review
before the DOJ, otherwise, the court will proceed with the arraignment as scheduled and without
further delay.
WHEREFORE, premises considered, the petition is DENIED. The Decision dated August 11, 2006 of
the Court of Appeals and its Resolution dated December 4, 2006 in CA-G.R. SP No. 92094, are
AFFIRMED. Considering that the proceedings in this criminal case had been held in abeyance long
enough, let the records of this case be remanded to the trial court which is hereby DIRECTED to try
the case on the merits with dispatch in accordance with the Court's Circular No. 38-98 dated August
11, 1998.
SO ORDERED.
G.R. No. 101837 February 11, 1992
ROLITO GO y TAMBUNTING, petitioner,
vs.
THE COURT OF APPEALS, THE HON. BENJAMIN V. PELAYO, Presiding Judge, Branch 168,
Regional Trial Court, NCJR Pasig, M.M., and PEOPLE OF THE PHILIPPINES, respondents.

FELICIANO, J.:
According to the findings of the San Juan Police in their Investigation Report, 1 on 2 July 1991, Eldon
Maguan was driving his car along Wilson St., San Juan, Metro Manila, heading towards P. Guevarra St.
Petitioner entered Wilson St., where it is a one-way street and started travelling in the opposite or "wrong"
direction. At the corner of Wilson and J. Abad Santos Sts., petitioner's and Maguan's cars nearly bumped
each other. Petitioner alighted from his car, walked over and shot Maguan inside his car. Petitioner then

boarded his car and left the scene. A security guard at a nearby restaurant was able to take down
petitioner's car plate number. The police arrived shortly thereafter at the scene of the shooting and there
retrieved an empty shell and one round of live ammunition for a 9 mm caliber pistol. Verification at the
Land Transportation Office showed that the car was registered to one Elsa Ang Go.

The following day, the police returned to the scene of the shooting to find out where the suspect had
come from; they were informed that petitioner had dined at Cravings Bake Shop shortly before the
shooting. The police obtained a facsimile or impression of the credit card used by petitioner from the
cashier of the bake shop. The security guard of the bake shop was shown a picture of petitioner and
he positively identified him as the same person who had shot Maguan. Having established that the
assailant was probably the petitioner, the police launched a manhunt for petitioner.
On 8 July 1991, petitioner presented himself before the San Juan Police Station to verify news
reports that he was being hunted by the police; he was accompanied by two (2) lawyers. The police
forthwith detained him. An eyewitness to the shooting, who was at the police station at that time,
positively identified petitioner as the gunman. That same day, the police promptly filed a complaint
for frustrated homicide 2 against petitioner with the Office of the Provincial Prosecutor of Rizal. First
Assistant Provincial Prosecutor Dennis Villa Ignacio ("Prosecutor") informed petitioner, in the presence of
his lawyers, that he could avail himself of his right to preliminary investigation but that he must first sign a
waiver of the provisions of Article 125 of the Revised Penal Code. Petitioner refused to execute any such
waiver.
On 9 July 1991, while the complaint was still with the Prosecutor, and before an information could be
filed in court, the victim, Eldon Maguan, died of his gunshot wound(s).
Accordingly, on 11 July 1991, the Prosecutor, instead of filing an information for frustrated homicide,
filed an information for murder 3 before the Regional Trial Court. No bail was recommended. At the
bottom of the information, the Prosecutor certified that no preliminary investigation had been conducted
because the accused did not execute and sign a waiver of the provisions of Article 125 of the Revised
Penal Code.
In the afternoon of the same day, 11 July 1991, counsel for petitioner filed with the Prosecutor an
omnibus motion for immediate release and proper preliminary investigation, 4 alleging that the
warrantless arrest of petitioner was unlawful and that no preliminary investigation had been conducted
before the information was filed. Petitioner also prayed that he be released on recognizance or on bail.
Provincial Prosecutor Mauro Castro, acting on the omnibus motion, wrote on the last page of the motion
itself that he interposed no objection to petitioner being granted provisional liberty on a cash bond of
P100,000.00.
On 12 July 1991, petitioner filed an urgent ex-parte motion for special raffle 5 in order to expedite
action on the Prosecutor's bail recommendation. The case was raffled to the sala of respondent Judge,
who, on the same date, approved the cash bond 6 posted by petitioner and ordered his
release. 7 Petitioner was in fact released that same day.
On 16 July 1991, the Prosecutor filed with the Regional Trial Court a motion for leave to conduct
preliminary investigation 8 and prayed that in the meantime all proceedings in the court be suspended.
He stated that petitioner had filed before the Office of the Provincial Prosecutor of Rizal an omnibus
motion for immediate release and preliminary investigation, which motion had been granted by Provincial
Prosecutor Mauro Castro, who also agreed to recommend cash bail of P100,000.00. The Prosecutor
attached to the motion for leave a copy of petitioner's omnibus motion of 11 July 1991.

Also on 16 July 1991, the trial court issued an Order 9 granting leave to conduct preliminary
investigation and cancelling the arraignment set for 15 August 1991 until after the prosecution shall have
concluded its preliminary investigation.
On 17 July 1991, however, respondent Judge motu proprio issued an Order, 10 embodying the
following: (1) the 12 July 1991 Order which granted bail was recalled; petitioner was given 48 hours from
receipt of the Order to surrender himself; (2) the 16 July 1991 Order which granted leave to the
prosecutor to conduct preliminary investigation was recalled and cancelled; (3) petitioner's omnibus
motion for immediate release and preliminary investigation dated 11 July 1991 was treated as a petition
for bail and set for hearing on 23 July 1991.
On 19 July 1991, petitioner filed a petition for certiorari, prohibition and mandamus before the
Supreme Court assailing the 17 July 1991 Order, contending that the information was null and void
because no preliminary investigation had been previously conducted, in violation of his right to due
process. Petitioner also moved for suspension of all proceedings in the case pending resolution by
the Supreme Court of his petition; this motion was, however, denied by respondent Judge.
On 23 July 1991, petitioner surrendered to the police.
By a Resolution dated 24 July 1991, this Court remanded the petition for certiorari, prohibition
and mandamus to the Court of Appeals.
On 16 August 1991, respondent Judge issued an order in open court setting the arraignment of
petitioner on 23 August 1991.
On 19 August 1991, petitioner filed with the Court of Appeals a motion to restrain his arraignment.
On 23 August 1991, respondent judge issued a Commitment Order directing the Provincial Warden
of Rizal to admit petitioner into his custody at the Rizal Provincial Jail. On the same date, petitioner
was arraigned. In view, however, of his refusal to enter a plea, the trial court entered for him a plea of
not guilty. The Trial court then set the criminal case for continuous hearings on 19, 24 and 26
September; on 2, 3, 11 and 17 October; and on 7, 8, 14, 15, 21 and 22 November 1991. 11
On 27 August 1991, petitioner filed a petition for habeas corpus 12 in the Court of Appeals. He alleged that in view
of public respondent's failure to join issues in the petition for certiorari earlier filed by him, after the lapse of more than a month, thus
prolonging his detention, he was entitled to be released on habeas corpus.

On 30 August 1991, the Court of Appeals issued the writ of habeas corpus. 13 The petition
for certiorari, prohibition and mandamus, on the one hand, and the petition for habeas corpus, upon the
other, were subsequently consolidated in the Court of Appeals.
The Court of Appeals, on 2 September 1991, issued a resolution denying petitioner's motion to
restrain his arraignment on the ground that that motion had become moot and academic.
On 19 September 1991, trial of the criminal case commenced and the prosecution presented its first
witness.
On 23 September 1991, the Court of Appeals rendered a consolidated decision
(2) petitions, on the following grounds:

14

dismissing the two

a. Petitioner's warrantless arrest was valid because the offense for which he was
arrested and charged had been "freshly committed." His identity had been
established through investigation. At the time he showed up at the police station,
there had been an existing manhunt for him. During the confrontation at the San
Juan Police Station, one witness positively identified petitioner as the culprit.
b. Petitioner's act of posting bail constituted waiver of any irregularity attending his
arrest. He waived his right to preliminary investigation by not invoking it properly and
seasonably under the Rules.
c. The trial court did not abuse its discretion when it issued the 17 July 1991 Order
because the trial court had the inherent power to amend and control its processes so
as to make them conformable to law and justice.
d. Since there was a valid information for murder against petitioner and a valid
commitment order (issued by the trial judge after petitioner surrendered to the
authorities whereby petitioner was given to the custody of the Provincial Warden), the
petition for habeas corpus could not be granted.
On 3 October 1991, the prosecution presented three (3) more witnesses at the trial. Counsel for
petitioner also filed a "Withdrawal of Appearance" 15 with the trial court, with petitioner's conformity.
On 4 October 1991, the present Petition for Review on Certiorari was filed. On 14 October 1991, the
Court issued a Resolution directing respondent Judge to hold in abeyance the hearing of the criminal
case below until further orders from this Court.
In this Petition for Review, two (2) principal issues need to be addressed: first, whether or not a
lawful warrantless arrest had been effected by the San Juan Police in respect of petitioner Go; and
second, whether petitioner had effectively waived his right to preliminary investigation. We consider
these issues seriatim.
In respect of the first issue, the Solicitor General argues that under the facts of the case, petitioner
had been validly arrested without warrant. Since petitioner's identity as the gunman who had shot
Eldon Maguan on 2 July 1991 had been sufficiently established by police work, petitioner was validly
arrested six (6) days later at the San Juan Police Station. The Solicitor General invokes Nazareno
v. Station Commander, etc., et al., 16 one of the seven (7) cases consolidated with In the Matter of the
Petition for Habeas Corpus of Roberto Umil, etc., v. Ramos, et al. 17 where a majority of the Court upheld
a warrantees arrest as valid although effected fourteen (14) days after the killing in connection with which
Nazareno had been arrested. Accordingly, in the view of the Solicitor General, the provisions of Section 7,
Rule 112 of the Rules of Court were applicable and because petitioner had declined to waive the
provisions of Article 125 of the Revised Penal Code, the Prosecutor was legally justified in filing the
information for murder even without preliminary investigation.
On the other hand, petitioner argues that he was not lawfully arrested without warrant because he
went to the police station six (6) days after the shooting which he had allegedly perpetrated. Thus,
petitioner argues, the crime had not been "just committed" at the time that he was arrested.
Moreover, none of the police officers who arrested him had been an eyewitness to the shooting of
Maguan and accordingly none had the "personal knowledge" required for the lawfulness of a
warrantees arrest. Since there had been no lawful warrantless arrest. Section 7, Rule 112 of the

Rules of Court which establishes the only exception to the right to preliminary investigation, could
not apply in respect of petitioner.
The reliance of both petitioner and the Solicitor General upon Umil v. Ramos is, in the circumstances
of this case, misplaced. In Umil v. Ramos, by an eight-to-six vote, the Court sustained the legality of
the warrantless arrests of petitioners made from one (1) to fourteen days after the actual commission
of the offenses, upon the ground that such offenses constituted "continuing crimes." Those offenses
were subversion, membership in an outlawed organization like the New People's Army, etc. In the
instant case, the offense for which petitioner was arrested was murder, an offense which was
obviously commenced and completed at one definite location in time and space. No one had
pretended that the fatal shooting of Maguan was a "continuing crime."
Secondly, we do not believe that the warrantees "arrest" or detention of petitioner in the instant case
falls within the terms of Section 5 of Rule 113 of the 1985 Rules on Criminal Procedure which
provides as follows:
Sec. 5 Arrest without warrant; when lawful. A peace officer or a private person
may, without warrant, arrest a person:
(a) When, in his presence, the person to be arrested has committed, is actually
committing, or is attempting to commit an offense;
(b) When an offense has in fact just been committed, and he has personal
knowledge of facts indicating that the person to be arrested has committed it; and
(c) When the person to be arrested is a prisoner who has escaped from a penal
establishment or place where he is serving final judgment or temporarily confined
while his case is pending, or has escaped while being transferred from one
confinement to another.
In cases falling under paragraphs (a) and (b) hereof, the person arrested without a
warrant shall be forthwith delivered to the nearest police station or jail, and he shall
be proceed against in accordance with Rule 112, Section 7.
Petitioner's "arrest" took place six (6) days after the shooting of Maguan. The "arresting" officers
obviously were not present, within the meaning of Section 5(a), at the time petitioner had allegedly
shot Maguan. Neither could the "arrest" effected six (6) days after the shooting be reasonably
regarded as effected "when [the shooting had] in fact just been committed" within the meaning of
Section 5(b). Moreover, none of the "arresting" officers had any "personal knowledge" of facts
indicating that petitioner was the gunman who had shot Maguan. The information upon which the
police acted had been derived from statements made by alleged eyewitnesses to the shooting
one stated that petitioner was the gunman; another was able to take down the alleged gunman's
car's plate number which turned out to be registered in petitioner's wife's name. That information did
not, however, constitute "personal knowledge." 18
It is thus clear to the Court that there was no lawful warrantless arrest of petitioner within the
meaning of Section 5 of Rule 113. It is clear too that Section 7 of Rule 112, which provides:

Sec. 7 When accused lawfully arrested without warrant. When a person is lawfully
arrested without a warrant for an offense cognizable by the Regional Trial Court the
complaint or information may be filed by the offended party, peace officer or fiscal
without a preliminary investigation having been first conducted, on the basis of the
affidavit of the offended party or arresting office or person
However, before the filing of such complaint or information, the person arrested may
ask for a preliminary investigation by a proper officer in accordance with this Rule,
but he must sign a waiver of the provisions of Article 125 of the Revised Penal Code,
as amended, with the assistance of a lawyer and in case of non-availability of a
lawyer, a responsible person of his choice. Notwithstanding such waiver, he may
apply for bail as provided in the corresponding rule and the investigation must be
terminated within fifteen (15) days from its inception.
If the case has been filed in court without a preliminary investigation having been first
conducted, the accused may within five (5) days from the time he learns of the filing
of the information, ask for a preliminary investigation with the same right to adduce
evidence in his favor in the manner prescribed in this Rule. (Emphasis supplied)
is also not applicable. Indeed, petitioner was not arrested at all. When he walked into San Juan
Police Station, accompanied by two (2) lawyers, he in fact placed himself at the disposal of the
police authorities. He did not state that he was "surrendering" himself, in all probability to avoid the
implication he was admitting that he had slain Eldon Maguan or that he was otherwise guilty of a
crime. When the police filed a complaint for frustrated homicide with the Prosecutor, the latter should
have immediately scheduled a preliminary investigation to determine whether there was probable
cause for charging petitioner in court for the killing of Eldon Maguan. Instead, as noted earlier, the
Prosecutor proceed under the erroneous supposition that Section 7 of Rule 112 was applicable and
required petitioner to waive the provisions of Article 125 of the Revised Penal Code as a condition
for carrying out a preliminary investigation. This was substantive error, for petitioner was entitled to a
preliminary investigation and that right should have been accorded him without any conditions.
Moreover, since petitioner had not been arrested, with or without a warrant, he was also entitled to
be released forthwith subject only to his appearing at the preliminary investigation.
Turning to the second issue of whether or not petitioner had waived his right to preliminary
investigation, we note that petitioner had from the very beginning demanded that a preliminary
investigation be conducted. As earlier pointed out, on the same day that the information for murder
was filed with the Regional Trial Court, petitioner filed with the Prosecutor an omnibus motion for
immediate release and preliminary investigation. The Solicitor General contends that that omnibus
motion should have been filed with the trial court and not with the Prosecutor, and that the petitioner
should accordingly be held to have waived his right to preliminary investigation. We do not believe
that waiver of petitioner's statutory right to preliminary investigation may be predicated on such a
slim basis. The preliminary investigation was to be conducted by the Prosecutor, not by the Regional
Trial Court. It is true that at the time of filing of petitioner's omnibus motion, the information for
murder had already been filed with the Regional Trial Court: it is not clear from the record whether
petitioner was aware of this fact at the time his omnibus motion was actually filed with the
Prosecutor. In Crespo v. Mogul, 19 this Court held:
The preliminary investigation conducted by the fiscal for the purpose of determining
whether a prima facie case exists to warranting the prosecution of the accused is

terminated upon the filing of the information in the proper court. In turn, as above
stated, the filing of said information sets in motion the criminal action against the
accused in Court. Should the fiscal find it proper to conduct a reinvestigation of the
case, at such stage, the permission of the Court must be secured. After such
reinvestigation the finding and recommendations of the fiscal should be submitted to
the Court for appropriate action. While it is true that the fiscal has the quasijudicial discretion to determine whether or not a criminal case should be filed in court
or not, once the case had already been brought to Court whatever disposition the
fiscal may feel should be proper in the case thereafter should be addressed for the
consideration of the Court. The only qualification is that the action of the Court must
not impair the substantial rights of the accused., or the right of the People to due
process of law.
xxx xxx xxx
The rule therefore in this jurisdiction is that once a complaint or information is filed in
Court any disposition of the case [such] as its dismissal or the conviction or acquittal
of the accused rests in the sound discretion of the Court. Although the fiscal retains
the direction and control of the prosecution of criminal cases even while the case is
already in Court he cannot impose his opinion on the trial court. The Court is the best
and sole judge on what to do with the case before it. . . . 20 (Citations omitted;
emphasis supplied)
Nonetheless, since petitioner in his omnibus motion was asking for preliminary investigation
and not for a re-investigation (Crespo v. Mogul involved a re-investigation), and since the
Prosecutor himself did file with the trial court, on the 5th day after filing the information for
murder, a motion for leave to conduct preliminary investigation (attaching to his motion a
copy of petitioner's omnibus motion), we conclude that petitioner's omnibus motion was in
effect filed with the trial court. What was crystal clear was that petitioner did ask for a
preliminary investigation on the very day that the information was filed without such
preliminary investigation, and that the trial court was five (5) days later apprised of the desire
of the petitioner for such preliminary investigation. Finally, the trial court did in fact grant the
Prosecutor's prayer for leave to conduct preliminary investigation. Thus, even on the
(mistaken) supposition apparently made by the Prosecutor that Section 7 of Rule 112 of the
Revised Court was applicable, the 5-day reglementary period in Section 7, Rule 112 must be
held to have been substantially complied with.
We believe and so hold that petitioner did not waive his right to a preliminary investigation. While
that right is statutory rather than constitutional in its fundament, since it has in fact been established
by statute, it is a component part of due process in criminal justice. 21 The right to have a preliminary
investigation conducted before being bound over to trial for a criminal offense and hence formally at risk
of incarceration or some other penalty, is not a mere formal or technical right; it is a substantive right. The
accused in a criminal trial is inevitably exposed to prolonged anxiety, aggravation, humiliation, not to
speak of expense; the right to an opportunity to avoid a process painful to any one save, perhaps, to
hardened criminals, is a valuable right. To deny petitioner's claim to a preliminary investigation would be
to deprive him the full measure of his right to due process.
The question may be raised whether petitioner still retains his right to a preliminary investigation in
the instant case considering that he was already arraigned on 23 August 1991. The rule is that the

right to preliminary investigation is waived when the accused fails to invoke it before or at the time of
entering a plea at arraignment.22 In the instant case, petitioner Go had vigorously insisted on his right to
preliminary investigation before his arraignment.At the time of his arraignment, petitioner was already
before the Court of Appeals on certiorari, prohibition and mandamusprecisely asking for a preliminary
investigation before being forced to stand trial.
Again, in the circumstances of this case, we do not believe that by posting bail petitioner had waived
his right to preliminary investigation. In People v. Selfaison, 23 we did hold that appellants there had
waived their right to preliminary investigation because immediately after their arrest, they filed bail and
proceeded to trial "without previously claiming that they did not have the benefit of a preliminary
investigation." 24 In the instant case, petitioner Go asked for release on recognizance or on bail and for
preliminary investigation in one omnibus motion. He had thus claimed his right to preliminary
investigation before respondent Judge approved the cash bond posted by petitioner and ordered his
release on 12 July 1991. Accordingly, we cannot reasonably imply waiver of preliminary investigation on
the part of petitioner. In fact, when the Prosecutor filed a motion in court asking for leave to conduct
preliminary investigation, he clearly if impliedly recognized that petitioner's claim to preliminary
investigation was a legitimate one.
We would clarify, however, that contrary to petitioner's contention the failure to accord preliminary
investigation, while constituting a denial of the appropriate and full measure of the statutory process
of criminal justice, did not impair the validity of the information for murder nor affect the jurisdiction of
the trial court. 25
It must also be recalled that the Prosecutor had actually agreed that petitioner was entitled to bail.
This was equivalent to an acknowledgment on the part of the Prosecutor that the evidence of guilt
then in his hands was not strong. Accordingly, we consider that the 17 July 1991 order of respondent
Judge recalling his own order granting bail and requiring petitioner to surrender himself within fortyeight (48) hours from notice, was plainly arbitrary considering that no evidence at all and certainly
no new or additional evidence had been submitted to respondent Judge that could have justified
the recall of his order issued just five (5) days before. It follows that petitioner was entitled to be
released on bail as a matter of right.
The final question which the Court must face is this: how does the fact that, in the instant case, trial
on the merits has already commenced, the Prosecutor having already presented four (4) witnesses,
impact upon, firstly, petitioner's right to a preliminary investigation and, secondly, petitioner's right to
be released on bail? Does he continue to be entitled to have a preliminary investigation conducted in
respect of the charge against him? Does petitioner remain entitled to be released on bail?
Turning first to the matter of preliminary investigation, we consider that petitioner remains entitled to
a preliminary investigation although trial on the merits has already began. Trial on the merits should
be suspended or held in abeyance and a preliminary investigation forthwith accorded to
petitioner. 26 It is true that the Prosecutor might, in view of the evidence that he may at this time have on
hand, conclude that probable cause exists; upon the other hand, the Prosecutor conceivably could reach
the conclusion that the evidence on hand does not warrant a finding of probable cause. In any event, the
constitutional point is that petitioner was not accorded what he was entitled to by way of procedural due
process. 27 Petitioner was forced to undergo arraignment and literally pushed to trial without preliminary
investigation, with extraordinary haste, to the applause from the audience that filled the courtroom. If he
submitted to arraignment at trial, petitioner did so "kicking and screaming," in a manner of speaking .
During the proceedings held before the trial court on 23 August 1991, the date set for arraignment of
petitioner, and just before arraignment, counsel made very clear petitioner's vigorous protest and

objection to the arraignment precisely because of the denial of preliminary investigation. 28 So energetic
and determined were petitioner's counsel's protests and objections that an obviously angered court and
prosecutor dared him to withdraw or walkout, promising to replace him with counsel de oficio. During the
trial, before the prosecution called its first witness, petitioner through counsel once again reiterated his
objection to going to trial without preliminary investigation: petitioner's counsel made of record his
"continuing objection." 29 Petitioner had promptly gone to the appellate court on certiorari and prohibition
to challenge the lawfulness of the procedure he was being forced to undergo and the lawfulness of his
detention. 30 If he did not walk out on the trial, and if he cross-examined the prosecution's witnesses, it
was because he was extremely loath to be represented by counsel de oficio selected by the trial judge,
and to run the risk of being held to have waived also his right to use what is frequently the only test of
truth in the judicial process.

In respect of the matter of bail, we similarly believe and so hold that petitioner remains entitled to be
released on bail as a matter of right. Should the evidence already of record concerning petitioner's
guilt be, in the reasonable belief of the Prosecutor, strong, the Prosecutor may move in the trial court
for cancellation of petitioner's bail. It would then be up to the trial court, after a careful and objective
assessment of the evidence on record, to grant or deny the motion for cancellation of bail.
To reach any other conclusions here, that is, to hold that petitioner's rights to a preliminary
investigation and to bail were effectively obliterated by evidence subsequently admitted into the
record would be to legitimize the deprivation of due process and to permit the Government to benefit
from its own wrong or culpable omission and effectively to dilute important rights of accused persons
well-nigh to the vanishing point. It may be that to require the State to accord petitioner his rights to a
preliminary investigation and to bail at this point, could turn out ultimately to be largely a ceremonial
exercise. But the Court is not compelled to speculate. And, in any case, it would not
be idle ceremony; rather, it would be a celebration by the State of the rights and liberties of its own
people and a re-affirmation of its obligation and determination to respect those rights and liberties.
ACCORDINGLY, the Court resolved to GRANT the Petition for Review on Certiorari. The Order of
the trial court dated 17 July 1991 is hereby SET ASIDE and NULLIFIED, and the Decision of the
Court of Appeals dated 23 September 1991 hereby REVERSED.
The Office of the Provincial Prosecutor is hereby ORDERED to conduct forthwith a preliminary
investigation of the charge of murder against petitioner Go, and to complete such preliminary
investigation within a period of fifteen (15) days from commencement thereof. The trial on the merits
of the criminal case in the Regional Trial Court shall be SUSPENDED to await the conclusion of the
preliminary investigation.
Meantime, petitioner is hereby ORDERED released forthwith upon posting of a cash bail bond of
One Hundred Thousand Pesos (P100,000.00). This release shall be without prejudice to any lawful
order that the trial court may issue, should the Office of the Provincial Prosecutor move for
cancellation of bail at the conclusion of the preliminary investigation.
No pronouncement as to costs. This Decision is immediately executory.
SO ORDERED.
G.R. No. 108431

July 14, 2000

OSCAR G. RARO, petitioner,

vs.
THE HONORABLE SANDIGANBAYAN, (Second Division), THE HONORABLE OMBUDSMAN
and PEOPLE OF THE PHILIPPINES, respondents.
DECISION
YNARES-SANTIAGO, J.:
The issue in this special civil action of certiorari and prohibition is whether or not the Sandiganbayan
gravely abused its discretion in denying a motion to quash an information on the ground that the
preliminary investigation allegedly violated the right of the accused to due process of law.
Petitioner Oscar G. Raro, a lawyer, was the Corporate Secretary of the Philippine Charity
Sweepstakes Office (PCSO). As such, petitioner was the Acting Manager of the Special Projects
Department that was in charge of the experimental Small Town Lottery (STL), which under PCSO
Resolution No. 118, dated April 1987, was to be operated in certain areas of the country. On July 30,
1987, the PCSO, through Atty. Reynaldo E. Ilagan of the Special Projects Department, authorized
Elmec Trading and Management Corporation (ELMEC) to operate the STL in the province of
Camarines Norte. ELMEC in turn employed Luis ("Bing") F. Abao, a resident of Daet, Camarines
Norte, as Provincial Manager of the experimental STL in said province. 1 Abao allegedly invested
P100,000.00 in the STL operation in that province.
In a complaint that he filed with the Tanodbayan in Manila on May 20, 1988, Abao alleged that
petitioner, in his capacity as PCSO Corporate Secretary, "personally and directly intervened in the
operation of said lottery to his financial benefit and advantage" by committing the following acts:
(1) Causing the employment of members of his family in the experimental STL project that
was under his supervision, in violation of Section 3 (d) of the Anti-Graft Law;
(2) Deciding on the dismissal of certain lottery employees and in bad faith driving Abao "to
sever from the management of lottery" which at that time was grossing about P250,000.00
daily under a "profit-sharing" agreement, thus causing Abao "damage and injury" in the
amount of P1,300,000.00, in violation of Section 3 (e) of the Anti-Graft Law; and
(3) Regularly demanding from Abao amounts totaling more than P100,000.00 as his share
in the experimental lottery, in violation of Section 3 (h) of the Anti-Graft Law.
Abao maintained further that petitioner got mad at him when he gave petitioner a check instead of
cash, which petitioner later used to accuse Abao of issuing a bouncing check notwithstanding that
the check was not encashed. Abao added that petitioner was not only dishonest but displayed such
dishonesty.2 The complaint filed by Abaos counsel was verified and subscribed before a notary
public,3 and docketed in the Office of the Ombudsman as OSP-88-01263.
Overall Ombudsman Jose G. Colayco, on July 1, 1988, endorsed the complaint to the National
Bureau of Investigation (NBI).4 On May 11, 1989, NBI-LED Officer-in-Charge Gerarda G. Galang
submitted a report stating that the investigation conducted by NBI Senior Agent Salvador A. Duka
yielded the following findings:

(a) On the charge of employment of relatives, Abao charged that petitioner asked him to
appoint his (petitioners) brother as station manager of the lottery in Labo, Camarines Norte.
Likewise according to Abao, petitioner imposed on him the appointment of petitioners
sister, Marissa Raro- Remigio as the STL provincial cashier. Per the joint affidavit of Yoly
Malubay, Ruben Galeon, Rosalio Poblete and Francisco Villaluz, petitioners brother named
Antonio, the lottery station manager, signed payrolls, vouchers and other pertinent papers
using the name Joel Remigio, Marissas husband. In 1988, Antonio Raro was appointed
Assistant Provincial Operations Manager of the STL in Camarines Norte. On the other hand,
Marissa Raro-Remigio claimed that it was ELMEC that offered her the position of treasurer of
the STL and that on January 27, 1988, ELMEC terminated the employment of Abao and the
employees he had hired. However, the circumstances surrounding ELMECs employment of
petitioners brother and sister were not verified from the owners of ELMEC.
(b) With respect to the charge that petitioner demanded from Abao the total amount of
P100,000.00, no receipt was shown to prove petitioners having in fact received that sum
although Ruidera and Galeon, in their affidavits, confirmed that said amount was given to
petitioner and to Atty. Ilagan. Since the sworn statements of Ilagan and Cordez and those of
Fernando Carrascoso and Rustico Manalo, who allegedly received 25% of the proceeds of
the STL, had not yet been taken, there were certain aspects of the charge that should be
considered. Hence, "no definite conclusion could be made" thereon.
(c) The subject of dismissal of employees was not yet covered by the investigation.
With these findings, Galang recommended that further investigation be conducted and that a copy of
the "evaluation comment" be furnished the Ombudsman with the information "that further
investigation (was) still being conducted on some aspects of the case." 5 Accordingly, NBI Director J.
Antonio M. Carpio endorsed on May 11, 1989 the "evaluation comment" and the NBI agents report
to the Ombudsman.6
On July 12, 1989, NBI Agent Duka submitted a Disposition Form stating that per the joint affidavit of
Yolly Manubay, Ruben Galeon, Rosario Poblete and Francisco Villaluz, petitioners brother, Antonio
Raro signed "numerous vouchers, payrolls and other papers" in the name of Joel Remigio. The
sworn statement of Teddy Aguirre and xerox copies of vouchers supported this. However, the original
copies of the vouchers could not be secured on account of the cessation of operation of the STL in
Camarines Norte since July 1988. Neither could the sworn statement of Antonio Raro be secured.
Thus, NBI Agent Duka recommended that further investigation be conducted in coordination with
LUCSO in Lucena City.7
Ombudsman Graft Investigation Officer II (GIO II) Theresa Medialdea-Caraos submitted to
Ombudsman Conrado Vasquez a Memorandum dated March 15, 1990, with the following
recommendation:
"RECOMMENDED ACTION: The initial report of the NBI points only to the anomalies allegedly
committed by the respondents brother, Antonio. The appointment of his sister which was supposedly
imposed on the complainant is not supported by evidence other than the mere allegation of the
latter.
The misdeeds committed by respondent were not based on facts as presented by NBI.

It is therefore recommended that further investigation by NBI be conducted in order to determine the
veracity of the charges."
The Memorandum was recommended for approval by Acting Director Gualberto J. de la Llana and
approved on March 22, 1990 by Ombudsman Vasquez.8
On September 19, 1990, the NBI recommended the prosecution of petitioner based on Abaos
complaint.9 Thus, on May 14, 1991, GIO II Caraos formally directed petitioner to file his counteraffidavit and controverting evidence to the complaint of May 6, 1988, with a warning that his failure
"to do so shall be construed as a waiver of his right to be heard and the preliminary investigation
shall proceed accordingly."10 On petitioners motion, the Ombudsman granted him until September 7,
1991 within which to file his counter-affidavit. On September 7, 1991, petitioner sought another
extension within which to file his counter-affidavit.11
Petitioner filed his counter-affidavit on October 25, 1991. 12 He asserted that he removed some
employees from the lottery to avoid undue injury to the government. He denied that he hired or
caused to be hired his brother and sister in the "experimental lottery research" as they maintained
their affairs without his interference. He also denied demanding or receiving any amount from Abao
or from the lottery operator as it was impossible for him to demand bribe money in the form of a
check. He claimed that Abaos complaint was a desperate effort to malign him. 13
On November 29, 1991, GIO II Caraos issued a Resolution stating that:
"Evaluating the complaint, as well as the controverting evidence presented by the respondent, we
find prima facie case against herein respondent for Violation of R.A. 3019.
"At the outset, it must be stressed that in a preliminary investigation, it is not required that all
reasonable doubts on the accuseds guilt must be removed; what is required only is that evidence be
sufficient to establish probable cause that the accused committed the offense charged. Moreover, as
between the positive assertions of complainant Abano and the mere denials of the respondent, the
former deserves more credence as it is acknowledged that the same has greater evidentiary value
than the latter. Probable cause has been established by the clear and positive testimonies of the
complainant and his witnesses pointing to the herein respondent as responsible for various acts
relative to the operation of the lottery in Violation of the Anti-Graft law specifically Sec. 3 (a), (b), (c),
(h) and (k). Such finding is duly supported by the recommendation of the NBI report which also
recommended the filing of proper criminal charge against the respondent.
"Furthermore, most of the allegations of the respondents as contained in his counter-affidavit are
matters of defense which can be best ventilated in court during trial. In fact, the other allegations of
respondents which are mere insinuations as to the motive of the complainant in filing the case, only
deserve scant consideration.
"Wherefore, all legal premises considered, let an information be filed before the proper court against
respondent Raro.
"SO RESOLVED."14
Director Cesar T. Palana recommended approval of the above Resolution on December 5,
1991.15 However, on January 27, 1992, Assistant Ombudsman Abelardo L. Aportadera, Jr., who

reviewed the Resolution, recommended its disapproval and the dismissal of the complaint, on the
ground that the NBI report was "based merely on testimonial evidence" that "would not suffice to
establish a prima facie case" against herein petitioner. He averred that more than oral evidence
should support the charge of extortion and that petitioners witnesses had amply clarified the charge
of nepotism.16
On June 11, 1992, Special Prosecution Officer I (SPO I) Wendell E. Barreras-Sulit, after reviewing
the Resolution of GIO II Caraos, issued a Memorandum finding that said Resolution "did not fully
discuss the evidence that would support the particular charges recommended to be filed" against
petitioner. After analyzing each of the charges, SPO I Barreras-Sulit concluded that petitioner should
only be charged with violation of Section 3 (b) of R.A. 3019 as there was prima facie case that
petitioner received the total amount of P116,000.00 on four different occasions. Attached to the
Memorandum was the information charging petitioner with violation of Section 3 (b) of Republic Act
No. 3019.17
SPO I Barreras-Sulits Memorandum was approved by Deputy Special Prosecutor Jose De G.
Ferrer, Special Prosecutor Aniano A. Desierto and Ombudsman Vasquez.18 Hence, on July 2, 1992,
an information dated May 19, 1992 prepared by SPO I Barreras-Sulit was filed with the
Sandiganbayan,19 accusing petitioner with violation of Section 3 (b) of Republic Act No. 3019
committed as follows:
"That on or about the period from October, 1987 to January 1988, in Daet, Camarines Norte, Manila
and Quezon City, Philippines, and within the jurisdiction of this Honorable Court, the above named
accused, a public officer being then the Corporate Secretary and Acting Department Manager of the
Special Projects Department of the Philippine Charity Sweepstakes Office (PCSO), San Marcelino,
Malate, Metro Manila, tasked to monitor and oversee the Small Town Lottery Experimental Project of
the PCSO in certain areas including Camarines Norte, taking advantage of his said public position
and while in the performance of his official duties as such, did then and there, wilfully, unlawfully and
criminally demand and receive on four different occasions the amount totalling to ONE HUNDRED
SIXTEEN THOUSAND SEVEN HUNDRED NINETY NINE PESOS and NINETY NINE CENTAVOS
(P116,799.99), Philippine Currency, from Mr. Luis "Bing" F. Abao, Provincial Manager of the STL
operations in Camarines Norte, as his share in the net proceeds of the said STL which was not
authorized under the law but which amount was given to and received by him in his capacity as
overseer and monitoring arm of the PCSO in the Small Town Lottery operation in Camarines Norte.
"CONTRARY TO LAW."
On July 6, 1992, the Sandiganbayan issued an order for petitioners arrest and fixed bail in the
amount of P12,000.00.20 On the same day, petitioner applied for bail before the Regional Trial Court
of Cabanatuan City, Branch 26,21 which forthwith approved the application.22 On July 8, 1992,
petitioner filed with the Sandiganbayan a manifestation and motion for the lifting of the order of
arrest.23 Accordingly, the Sandiganbayan recalled its order of arrest the following day.24
Petitioner subsequently filed with the Sandiganbayan a motion for the reinvestigation of the
Resolution of the Ombudsman dated 11 June 1992,25 alleging that:
1. The "prejudicial and indecent delay in the preliminary investigation" violated his rights to
due process of law and to speedy disposition of the case because while the complaint was
filed on May 20, 1988, the information against him was filed more than four (4) years later.

2. Despite the delay in filing the information, hastiness attended the proceedings in that he
was not furnished a copy of the resolution on which the information was based. Moreover,
the information was dated May 19, 1992 or even before the resolution that gave rise to it was
finished on June 11, 1992. There was a need for a reinvestigation to protect him from hasty,
malicious and oppressive prosecution.
3. The resolution of June 11, 1992 was a "picture of legal and factual infirmities." While no
evidence supported the complaint other than the reports of NBI Agents Duka and Lasala and
the affidavits dated June 30, 1988 of Rene Ruidera and Ben Galeon, these bases for the
information were "worthless pieces of documents." Moreover, he was not furnished a copy of
the NBI report showing that he received P116,000.00 from the proceeds of the STL
operation, and the NBI never conducted a reinvestigation as required by NBI Director Carpio.
4. The complaint was based solely on the affidavit of Abao and those of Ruidera and
Galeon who were mere hearsay witnesses. The allegations in the complaint were facts to be
established (factum probandum) requiring further evidentiary facts (factum probans). The
only source of the charges, therefore, were the bare assertions of Abao who was not a
credible witness. He was "consumed by vengeance", because petitioner had him audited for
"unexplained disposition" of STL funds during Abaos campaign for mayor of Daet. Hence,
to get back at petitioner, Abao circulated "fabrications and fairy tale" against him even
before the Sandiganbayan.
After hearing, the Sandiganbayan granted the petitioners motion for reinvestigation in a Resolution
dated July 28, 1992, and ordered the defense to file a motion for reconsideration and/or
reinvestigation with the Office of the Ombudsman within ten (10) days from July 29, 1992, and the
prosecution to conduct such reinvestigation and to terminate it on or before August 31, 1992.
Likewise, the Sandiganbayan required the prosecution to furnish petitioner a copy of the NBI Report
of September 18, 1990, and reset the arraignment to September 8, 1992 at 8:30 a.m. The
Sandiganbayans directives were based on the following findings:
"We have gone over the grounds and arguments alleged in accuseds aforesaid motion and We do
not subscribe to the claim that there was prejudicial and indecent delay in the preliminary
investigation, considering that the initial complaint filed by complainant Luis F. Abalo (sic) on May 20,
1988 had been referred to the National Bureau of Investigation on July 1, 1988 and the report of the
latter agency was only submitted on September 18, 1990. Thereafter, Graft Investigator II Theresa
M. Caraos conducted a preliminary investigation, wherein accused submitted his counter-affidavit
denying the charges levelled against him, culminating in the issuance of a resolution dated
November 29, 1991, recommending the filing of the proper information with this Court.
"The Caraos (sic) resolution was reviewed by proper officials in the Office of the Ombudsman, the
latest of which was made by Special Prosecution Officer I Wendell E. Barreras-Sulit, who adopted
the recommendation for the filing only of a charge under Section 3(b) of R.A. 3019 in her resolution
of June 11, 1992. However, the information, as prepared by Atty. Barreras-Sulit, is dated May 19,
1992 and approved by Ombudsman Conrado M. Vasquez on June 25, 1992 and filed with this Court
on July 2, 1992. On this score, We find nothing irregular with respect to the afore-cited dates, despite
the contention of the accused that there was "hastiness despite delay." Moreover, the doctrines
enunciated in Tatad (159 SCRA 70) are not entirely on all fours with the situation depicted in the
case at bar, having been modified in Lecaroz (G.R. Nos. 918223-35, promulgated June 7, 1990)
and Gonzales (199 SCRA 298).

"On the other hand, there appears to be some semblance of validity to accuseds other grounds, to
wit, that he was not furnished a copy of the NBI report during the preliminary investigation, hence, he
was not able to refute the allegations contained therein and (2) (sic) that he was not furnished a copy
of the resolution upon which the information was based before the filing thereof, thus, he was
deprived of his right to file a motion for reconsideration. Under Administrative Order No. 09, issued
by the Ombudsman on October 15, 1991, which amended Rule II, Section 7 of Rep. Act No. 6770
(sic), a respondent has five (5) days from receipt of the resolution finding a prima facie case against
him within which to file a motion for reconsideration. Likewise, under Section 7 of Rule II, supra, he
may move for a reinvestigation based on errors or irregularities during the preliminary investigation
or on newly-discovered evidence."26
Petitioner filed with the Sandiganbayan a motion for extension of time to file his motion for
reinvestigation,27 which was granted on August 13, 1992.28
On August 12, 1992, complainant Abao wrote a letter addressed to Special Prosecution Officer III
(SPO III) Roger Berbano, Sr. of the Sandiganbayan, alleging that:
(1) Petitioner was not able to refute the charges against him of violation of Section 3 (a), (b),
(c), (h) and (k) of Republic Act No. 3019 "except to discredit the truth about the P116,000.00
he demanded and got from me;"
(2) Petitioner admitted in a press conference the existence of a check in the amount of
P51,799.00 but his claim that it bounced was not true because the check with Atty. Reynaldo
Ilagan as payee was in his (Abaos) possession;
(3) The "bribe money" was good to the "exact centavo" because it was 25% of the daily
gross earnings of the lottery;
(4) He was not a dismissed employee of ELMEC because he financed and managed the
STL operation "upon the prodding of PCSO through Atty. Raro" and he received
commissions and percentages as late as March 1988 as shown by vouchers signed by
Marissa Raro-Remigio;
(5) His candidacy for mayor in the January 18, 1988 elections was never affected by
allegations of mismanagement; he stayed as the general manager of ELMEC until March
1988; and
(6) The findings of Senator Maceda of the Senate Committee on Games and Amusement
that the operation of the STL was the source of corruption and "milking cow of corrupt PCSO
officials" and hence, its discontinuance upon the order of the President, was the "best
evidence of corruption" perpetrated by petitioner.
On August 14, 1992, SPO III Berbano issued an Order stating that the grounds and issues raised in
petitioners motion for reinvestigation were "clearly matters of defense to be ventilated during the trial
of the case on the merits." Hence, he recommended the denial of the motion for reinvestigation,
which recommendation was approved by the Ombudsman, Conrado M. Vasquez, on August 26,
1992.29

In the meantime, on August 18, 1992, petitioner filed with the Office of the Ombudsman a motion for
the reconsideration of the Ombudsmans Resolution of June 11, 1992. He asserted that SPO I
Barreras-Sulit based her Resolution on the NBI Report of September 18, 1990 and the affidavits
dated June 30, 1988 of Rene Ruidera and Ben Galeon, all of which had no evidentiary value
because they are hearsay and basically based on information furnished them by Abao. According
to petitioner, the said Report was incomplete and inconclusive because the findings therein needed
further investigation. Reiterating his arguments that factum probans is required during a preliminary
investigation and that Abao is not a credible witness, petitioner contended that he should be spared
from the trouble, expense and anxiety as well as the stigma resulting from an open and public
accusation of a crime.30
Subsequently, petitioner also filed with the Tanodbayan a "Motion for a Last Review" of the Special
Prosecutors Order of August 14, 1992. He alleged that the Office of the Special Prosecutor (OSP)
failed to take into consideration the very motion for reconsideration that should have been the
subject of that Order. He contended that the OSP might not have been aware of the motions he filed
for extension of time within which to file the motion for reconsideration, and the OSPs preparation of
the Order of August 14, 1992 before it received the motion for reconsideration constituted a gross
procedural defect. Petitioner further asserted that "the minimum requirement for a meaningful
determination of probable cause should take into consideration the strength of the evidence of the
accused and the inherent baselessness of the complainants." He thus prayed that the Resolution of
June 11, 1992 recommending the filing of an information against him be reversed, the complaint
dismissed, and the information filed with the Sandiganbayan withdrawn. 31
The scheduled arraignment of petitioner on September 8, 1992 was cancelled considering that the
reinvestigation ordered by the Sandiganbayan had "not yet been terminated." The Sandiganbayan
granted SPO III Berbano a twenty-day extension within which to resolve the motion for
reconsideration, and reset the arraignment for October 2, 1992. 32
On September 24, 1992, SPO III Berbano denied petitioners motion for reconsideration and the
motion for a last review, upon a finding that the November 21, 1991 Resolution of GIO II Caraos and
the Memorandum of SPO I Barreras-Sulit, both of which bore the imprimatur of the Ombudsman,
"simply signify that there exists a prima facie case or probable cause" against petitioner. Hence, he
reiterated that the issues raised were evidentiary in nature and should be resolved by the
Sandiganbayan.33
Petitioner did not appear at his arraignment on October 2, 1992. Hence, upon motion of the
prosecution, a warrant for his arrest was issued. However, petitioners counsel arrived late and
undertook to bring the proper medical certificate showing that petitioner was ill. The Sandiganbayan
reset the arraignment for October 12, 1992.34 Later, petitioner sought the reconsideration of the
Order for his arrest on the ground that he was then suffering from viral influenza and submitted a
medical certificate to that effect.35 The Sandiganbayan considered that incident closed and
terminated, and directed that the arraignment should proceed on October 12, 1992. 36
On that date, petitioner filed with the Sandiganbayan a motion to quash the information, 37 on the
ground that the court did not acquire jurisdiction in view of violations of accuseds constitutional
rights during the preliminary investigation. He argued that the determination of probable cause by
the prosecuting officer does not preclude the courts from demanding further proof thereon.
Citing Brocka v. Enrile38 where this Court held that a sham and hastily conducted preliminary

investigation may be lawfully enjoined, petitioner pointed out the following as indicia of the "falsity
and hastiness" of the proceedings before the Ombudsman:
1. While the Resolution recommending the filing of an information was issued on June 11,
1992, the information was already prepared on May 19, 1992 thereby showing that said
Resolution was no more than a formality. For petitioner, the situation was akin to "birth
preced(ing) pregnancy."
2. SPO III Berbano denied the motion for reconsideration in his Order of August 14, 1992 or
four (4) days before he filed the motion for reconsideration on August 18, 1992 thereby
showing that the prosecutors were "hell-bent and determined, come high or low waters,
reason or no reason, to proceed" with their determination to prosecute him. That procedure
also made a mockery of the Sandiganbayans Resolution of July 28, 1992 directing the
Ombudsman to conduct a reinvestigation of the case.
3. At the hearing on September 8, 1992, SPO III Berbano confided to his counsel, Atty.
Tomas Z. Roxas, Jr., that on August 14, 1992, Abao had sent him a letter with the
admonition that Berbano should not be like petitioners U.P. fraternity brothers who would
cover up petitioners corrupt and foul deeds. Berbano was pressured by said letter as
indicated by his denial on August 14, 1992 "of the motion for reconsideration yet to be filed
on 18 August 1992." After all, Berbano was aspiring for the Bench and it was not a "far-flung
conclusion" that a favorable consideration of said motion for reconsideration "may prompt
Abao to accuse him of partiality, Berbano being the UP fraternity brother of the accused."
Berbano in fact admitted to Roxas that he was being pressured to deny petitioners motion
for reconsideration.
4. Because the crime charged was for violation of Section 3 (b) of Republic Act No. 3019,
Abao should be charged as the briber. Abao never applied for immunity from prosecution
because his "testimony" was uncorroborated on material points. Moreover, while petitioner
was deprived information on what was happening with the case, Abao was regularly
furnished with progress reports thereon. Abao publicized such reports in Camarines Norte
in clear violation of P.D. No. 749 mandating that proceedings in preliminary investigations
shall be strictly confidential to protect the reputation of the official involved.
Petitioner alleged further that there was a "jurally and constitutionally defective determination of
probable cause" as the complainant and his witnesses were never personally examined by any of
the officers at the Offices of the Ombudsman and the Special Prosecutor. Neither was the complaint
ever sworn to before them. He argued once again on the failure of the NBI to conduct a
reinvestigation of the case and the hearsay nature of the affidavits of Ruidera and Galeon.
On November 19, 1992, SPO III Berbano filed an opposition to the motion to quash, arguing that all
the pleadings filed by petitioner were duly considered, as shown by the Orders of August 14, 1992
and September 24, 1992, both of which were approved by his superiors, including the Ombudsman.
While Atty. Roxas "is himself a Fraternity Brod of the Alpha Phi Beta Fraternity of UP," Berbano
denied that he was ever pressured into denying petitioners motion for reconsideration. Furthermore,
Berbano averred that petitioners ground for the motion to quash, i.e., that the Sandiganbayan never
acquired jurisdiction over an information that was the result of a highly anomalous preliminary
investigation, may only be "inferred" from Section 3 (b) of Rule 117 of the 1985 Rules on Criminal
Procedure requiring the court to have jurisdiction over the offense charged or over the person of the

accused. By filing a motion to quash, petitioner was deemed to have admitted the allegations in the
information and hence, there was "only one way clear under the circumstances," and that was to
proceed with the trial of the case.39
The Sandiganbayan40 denied the motion to quash for lack of merit. It found "no persuasive reason to
depart from its earlier holding" in the Resolution of July 28, 1992 "that there was no indecent delay in
the manner by which the preliminary investigation was held." It ruled that the long period of time that
the preliminary investigation took was not meant to persecute petitioner. Neither was there clear and
convincing proof that SPO III Berbano succumbed to pressure and considered petitioners pleadings
with partiality. The Sandiganbayan stressed that its authority to determine probable cause "is limited
only for the purpose of issuing a warrant of arrest, and not for the purpose of justifying the filing or
non-filing of the Information." It found "no compelling justification to disturb the findings made by the
prosecution of the existence of probable cause that caused it to file" the information, and that the
objections raised by accused-movant on this point involve matters which could be best passed upon
by this Court during trial on the merits. Thus, the Sandiganbayan set petitioners arraignment on
November 23, 1992.41
Petitioners counsel once again moved for the resetting of the scheduled arraignment on the ground
that he was filing a motion for the reconsideration of the Resolution denying his motion to quash.
The Sandiganbayan gave him fifteen (15) days within which to file the motion for reconsideration and
the prosecution ten (10) days from receipt of said motion within which to comment. Meanwhile, the
arraignment was reset to January 11, 1993.42
Petitioners motion for reconsideration was filed on December 8, 1992. He reiterated therein that the
preliminary investigation conducted was "sham and attended by irregularities amounting to violation
of the very purpose for which preliminary investigation was instituted in our statute books." He
emphasized that SPO III Berbano was indeed pressured into denying his motions because of his
application for judgeship. He claimed that the Sandiganbayan erred when it ruled that the "courts
power to examine the conclusions drawn by the prosecutor after the preliminary investigation is only
for the purpose of determining the existence of just and proper cause to issue a warrant of arrest."
Relying on the ruling in Salonga v. Cruz Pao43 wherein this Court reviewed the prosecutions
findings of a prima facie case against Salonga, petitioner averred that it is infinitely more important
than conventional adherence to general rules of criminal procedure to respect the citizens right to be
free not only from arbitrary arrest and punishment but also from unwarranted and vexatious
prosecution.
The prosecution did not file a comment or opposition to the motion for reconsideration. On January
5, 1993, the Sandiganbayan issued a Resolution denying said motion for lack of merit and setting
petitioners arraignment on January 11, 1993. The Sandiganbayan held that petitioners allegations
that the preliminary investigation was sham and that SPO III Berbano was partial are not supported
by competent proof. Brushing aside said allegations as mere speculations, the Sandiganbayan
found no reason to depart from its earlier conclusion that there was no compelling justification to
disturb the prosecutions finding of a probable cause.44
Hence, the instant petition for certiorari and prohibition with application for the issuance of a
temporary restraining order to enjoin respondents Sandiganbayan, the Ombudsman and the People
of the Philippines from proceeding with Criminal Case No. 17800. On February 4, 1993, this Court
denied the prayer for temporary restraining order and required respondents to comment on the
petition.45 Petitioners arraignment proceeded on February 19, 1993, where he entered a plea of not

guilty to the crime charged.46 On September 21, 1993, after respondents filed their comment and
petitioner his reply thereto, this Court gave due course to the instant petition and required the parties
to file their respective memoranda.47 Meanwhile, the Sandiganbayan suspended proceedings in
Criminal Case No. 17800 on account of the pendency of the instant petition. 48
Petitioner alleges in this petition for certiorari and prohibition that: (a) the determination of "probable
cause" in Criminal Case No. 17800 was constitutionally defective because the Ombudsman, before
filing the information, and the Sandiganbayan, before issuing the warrant of arrest, failed to examine
the complainant under oath; (b) the preliminary investigation was hasty, malicious, persecutory and
based on inadmissible evidence thereby violating his right to due process of law, and (c) the
unexplained 4-year delay in resolving the preliminary investigation, coupled with the favorable
consideration of the complaint albeit manifestly false and politically motivated, violated his
constitutional rights to speedy trial and to due process of law.49
At the outset, it is settled that a special civil action for certiorari and prohibition is not the proper
remedy to assail the denial of a motion to quash an information. This is succinctly underscored
in Quion v. Sandiganbayan as follows:
"The special civil action of certiorari or prohibition is not the proper remedy against interlocutory
orders such as those assailed in these proceedings; i.e., an order denying a motion to quash the
information, and one declaring the accused to have waived his right to present evidence and
considering the case submitted for decision. As pointed out by the Office of the Solicitor General
(citing Nierras v. Dacuycuy, 181 SCRA 1 [1990]), and Acharon v. Purisima, et al., 13 SCRA 309;
People v. Madaluyo, 1 SCRA 990), the established rule is that when such an adverse interlocutory
order is rendered, the remedy is not to resort forthwith to certiorari or prohibition, but to continue with
the case in due course and, when an unfavorable verdict is handed down to take an appeal in the
manner authorized by law. It is only where there are special circumstances clearly demonstrating the
inadequacy of an appeal that the special civil action of certiorari or prohibition may exceptionally be
allowed. The Court has been cited to no such special circumstances in the cases at bar." 50
In the case at bar, there is no showing of such special circumstances. The jurisdiction of the
Ombudsman over the complaint is not even questioned by petitioner 51 as his motion to quash the
information is based on the allegedly "highly anomalous preliminary investigation" that amounted to
a denial of his rights to due process and to speedy disposition of the charge against him. However,
an incomplete preliminary investigation52 or the absence thereof53 may not warrant the quashal of an
information. In such cases, the proper procedure is for the Sandiganbayan to hold in abeyance any
further proceedings conducted and to remand the case to the Ombudsman for preliminary
investigation or completion thereof. However, granting arguendo that the preliminary investigation
was sham and highly anomalous in this case, that defect was cured when the above procedure was
in fact observed by the Sandiganbayan. Hence, on the issue alone of the propriety of the remedy
sought by petitioner, the instant petition for certiorari and prohibition must fail. However, in the
interest of justice, we shall resolve the issue of whether or not the Ombudsman conducted the
preliminary investigation erroneously and irregularly.
Petitioner contends that both the Ombudsman and the Sandiganbayan failed to examine the
complainant personally to determine the existence of probable cause that would warrant the filing of
an information against him and, consequently, the issuance of a warrant of arrest. He rues the fact
that the complaint filed by Abao against him was subscribed to before an ordinary notary public and

that the sworn statements of witnesses against him were sworn to before a provincial fiscal, not
deputized by the Ombudsman, but acting merely as an officer authorized to administer oaths. 54
Article XI, Section 12 of the 1987 Constitution, which was in force and effect when Abao filed the
complaint against petitioner, provides:
"Sec. 12. The Ombudsman and his Deputies, as protectors of the people, shall act promptly
on complaints filed in any form or manner against public officials or employees of the Government,
or any subdivision, agency or instrumentality thereof, including government-owned or controlled
corporations, and shall, in appropriate cases, notify the complainants of the action taken and the
result thereof." (Underscoring supplied.)
The mandate to act promptly on complaints filed in any form or manner against officers or
employees of the Government is restated in Section 13 of Republic Act No. 6770 ("The Ombudsman
Act of 1989"), approved into law on November 17, 1989. The same authority to act on complaints "in
any form, either verbal or in writing," is also reiterated in Rule 1, Section 3 of the Rules of Procedure
of the Office of the Ombudsman, which is embodied in Administrative Order No. 07 dated April 10,
1990, issued pursuant to the rule-making power of the Ombudsman under Section 13 (8) of the 1987
Constitution and Sections 18, 23 and 27 of "The Ombudsman Act of 1989."
In accordance with the foregoing constitutional and statutory provisions, this Court, in Diaz v.
Sandiganbayan,55held valid charges that were not made in writing or under oath. This Court found as
sufficient basis the Solicitor Generals sworn testimony at the joint fact-finding investigation
conducted by the Senate Blue Ribbon Committee and the Ombudsman for the latter to conduct an
investigation. On the other hand, in Olivas v. Office of the Ombudsman,56 where the complaint
against petitioner was initiated by anonymous letters, this Court held that the PCGG, to whom the
letters were addressed and who became the complainant in the proceedings, should have reduced
the evidence it had gathered into affidavits. The submission of affidavits, provided for in Rule II,
Section 4 (a) of Administrative Order No. 07, is also required by due process in adversary
proceedings.57 However, the submission of affidavits is not mandatory and jurisdictional. Rule 1,
Section 3 of the same administrative order merely states that it is "preferable" that the complaint "be
in writing and under oath" for its speedier disposition. Clearly in consonance with the provision that
the complaint may be in any form, the Ombudsman Rules of Procedure does not require that the
complaint be subscribed only before the Ombudsman or his duly authorized representative. In any
event, the issue of the sufficiency in form of the complaint was rendered moot and academic by
petitioners filing of a counter-affidavit wherein he controverted the allegations in the complaint. 58
The referral of the complaint to the NBI does not mean that the Ombudsman abdicated its
constitutional and statutory duty to conduct preliminary investigations. Article XI, Section 13 of the
1987 Constitution vests in the Ombudsman the powers, functions and duties to:
"(2) Direct, upon complaint or at its own instance, any public official or employee of the Government,
or any subdivision, agency or instrumentality thereof, as well as of any government-owned or
controlled corporation with original charter, to perform and expedite any act or duty required by law,
or to stop, prevent, and correct any abuse or impropriety in the performance of duties.
(3) Direct the officer concerned to take appropriate action against a public official or employee at
fault, andrecommend his removal, suspension, demotion, fine, censure, or prosecution, and ensure
compliance therewith." (Underscoring supplied.)

Thus, by referring Abanos complaint to the NBI, the Ombudsman did not thereby delegate the
conduct of the preliminary investigation of the case to that investigative bureau. What was delegated
was only the fact-finding function, preparatory to the preliminary investigation still to be conducted by
the Ombudsman.59 Notably, under Rule II, Section 2 (d) of Administrative Order No. 07, the
investigating officer has the option to forward the complaint to the appropriate office or official for
fact-finding investigation. While Administrative Order No. 07 took effect in mid-1990 60 or after the
complaint in this case was referred to the NBI, the inclusion of that constitutionally sanctioned
practice in the Ombudsman Rules of Procedure lends validity to the Ombudsmans action in this
case.
Under the circumstances of this case, the Ombudsmans failure to personally administer oath to the
complainant does not mean that the Ombudsman did not personally determine the existence of
probable cause to warrant the filing of an information.
Neither did the Sandiganbayan violate petitioners right to due process of law by its failure to
personally examine the complainant before it issued the warrant of arrest. In a preliminary
examination for the issuance of a warrant of arrest, a court is not required to review in detail the
evidence submitted during the preliminary investigation. What is required is that the judge
"personally evaluates the report and supporting documents submitted by the prosecution in
determining probable cause."61 In the absence of evidence that the Sandiganbayan did notpersonally
evaluate the necessary records of the case, the presumption of regularity in the conduct of its official
business shall stand.
At this juncture, it is apropos to state once again the nature of a preliminary investigation. In Cruz, Jr.
v. People,the Court said:
"It must be stressed that a preliminary investigation is merely inquisitorial, and it is often the only
means of discovering the persons who may be reasonably charged with a crime, to enable the
prosecutor to prepare his complaint or information. It is not a trial of the case on the merits and has
no purpose except that of determining whether a crime has been committed and whether there is
probable cause to believe that the accused is guilty thereof, and it does not place the persons
against whom it is taken in jeopardy.
"The established rule is that a preliminary investigation is not the occasion for the full and exhaustive
display of the parties evidence; it is for the presentation of such evidence only as may engender a
well-grounded belief that an offense has been committed and that the accused is probably guilty
thereof.
xxx

xxx

xxx

"The main function of the government prosecutor during the preliminary investigation is merely to
determine the existence of probable cause, and to file the corresponding information if he finds it to
be so. And, probable cause has been defined as the existence of such facts and circumstances as
would excite the belief, in a reasonable mind, acting on the facts within the knowledge of the
prosecutor, that the person charged was guilty of the crime for which he was prosecuted." 62
In determining probable cause, an inquiry into the sufficiency of evidence to warrant conviction is not
required. It is enough that it is believed that the act or omission complained of constitutes the offense
charged. The trial of a case is conducted precisely for the reception of evidence of the prosecution in

support of the charge.63 In the performance of his task to determine probable cause, the
Ombudsmans discretion is paramount. Thus, inCamanag v. Guerrero, this Court said:
"x x x. (S)uffice it to state that this Court has adopted a policy of non-interference in the conduct of
preliminary investigations, and leaves to the investigating prosecutor sufficient latitude of discretion
in the exercise of determination of what constitutes sufficient evidence as will establish probable
cause for filing of information against the supposed offender."64
Neither is there merit in petitioners contention that the preliminary investigation conducted by the
Ombudsman was "hasty, malicious and persecutory" and that it was based on inadmissible
evidence.
Petitioner emphasizes the fact that while the Resolution recommending the filing of the information
was issued on June 11, 1992, the information was already prepared almost a month earlier on May
19, 1992.65 This may show oversight in the handling of the documents pertinent to this case
considering that the date of the information should have been corrected to conform to the date of the
resolution where its filing was approved by the prosecutors superiors. However, such faux pas did
not violate petitioners substantive rights. The error in the date of the information did not affect its
validity, especially since the recommendation to file it was with the imprimaturof the Ombudsman
himself.
With respect to the denial by SPO III Berbano of the motion for reinvestigation on August 14, 1992 or
prior to petitioners filing of his motion for reconsideration on August 18, 1992, the record shows that
petitioner filed two motions for extension of time to file the motion for reinvestigation without the
knowledge of SPO III Berbano. What the latter resolved on August 14, 1992 was petitioners motion
for reinvestigation before the Sandiganbayan. Likewise, petitioners allegation that SPO III Berbano
was not an impartial prosecutor cannot be given credence for lack of sufficient proof thereon. SPO III
Berbano is presumed to have issued the Resolution denying the motion for reinvestigation in the
regular performance of his duties.
Neither is there factual support to petitioners claim that the 4-year delay in the completion of the
preliminary investigation is unexplained. The record clearly shows that the Ombudsman exerted
utmost effort to determine the veracity of Abaos allegations against petitioner. That it took the NBI
almost two years to complete its report on the matter does not mean that petitioners right to speedy
disposition of the charge was brushed aside. If delay may be imputed in the proceedings, the same
should be reckoned only from October 25, 1991 when petitioner filed his counter-affidavit. 66 Thirty-six
(36) days thereafter or on November 29, 1991, GIO II Caraos issued the Resolution recommending
the filing of the information. Further delay, if indeed it could be called one, was caused by the review
of GIO II Caraos recommendation by her superiors. Some seven and a half months later, or on June
11, 1992, the information was filed with the Sandiganbayan. There is thus no reason to conclude that
the Ombudsman ran roughshod over the petitioners right to a speedy preliminary investigation. In
the determination of whether or not that right has been violated, the factors that may be considered
and weighed are "the length of delay, the reasons for such delay, the assertion or failure to assert
such right by the accused, and the prejudice caused by the delay." 67
The length of time it took before the conclusion of the preliminary investigation may only be
attributed to the adherence of the Ombudsman and the NBI to the rules of procedure and the
rudiments of fair play. The allegations of Abaos complaint had to be verified; the Ombudsman did
not believe the same hook, line and sinker. Recently, the Court held that while the Rules of Court

provides a ten-day period from submission of the case within which an investigating officer must
come out with a resolution, that period of time is merely directory. Thus:
"The Court is not unmindful of the duty of the Ombudsman under the Constitution and Republic Act
No. 6770 to act promptly on Complaints brought before him. But such duty should not be mistaken
with a hasty resolution of cases at the expense of thoroughness and correctness. Judicial notice
should be taken of the fact that the nature of the Office of the Ombudsman encourages individuals
who clamor for efficient government service to freely lodge their Complaints against wrongdoings of
government personnel, thus resulting in a steady stream of cases reaching the Office of the
Ombudsman."68
Finally, there is no ground to give credence to petitioners claim that the complainant should be
charged as a briber on account of his admission that he gave petitioner some sum of money; or that
evidence presented during the preliminary investigation, specifically the affidavits of witnesses, were
hearsay and inadmissible. As we stated earlier, this Court cannot supplant the Ombudsmans
discretion in the determination of what crime to charge an accused.
All told, this Court finds no reason to reverse the assailed Resolutions of the
Sandiganbayan. Petitioners insinuation that he was subjected to the proceedings before the
Ombudsman and the Sandiganbayan for politically motivated reasons, has not been established with
sufficient evidence. In the absence of any imputation that public respondents were impelled by illmotive in filing the case against him, it is presumed that there is no such motive and that public
respondents merely filed the case to correct a public wrong.69
1wphi1

WHEREFORE, the instant petition for certiorari and prohibition is DISMISSED for lack of merit. The
assailed Resolutions of the Sandiganbayan are hereby AFFIRMED. The Sandiganbayan is
DIRECTED to proceed with deliberate dispatch in the disposition of Criminal Case No. 17800.
SO ORDERED.
G.R. No. 85468 September 7, 1989
QUINTIN S. DOROMAL, petitioner,
vs.
SANDIGANBAYAN, OMBUDSMAN AND SPECIAL PROSECUTOR, respondents.

GRIO-AQUINO, J.:
Brought up for review before this Court is the order dated August 19, 1988 of the Sandiganbayan
denying petitioner's motion to quash the information against him in Criminal Case No. 12893, entitled
"People of the Philippines vs. Hon. Quintin S. Doromal," and the Sandiganbayan's order suspending
him from office during the pendency of the case.
In October 1987, Special Prosecution Officer II, Dionisio A. Caoili, conducted a preliminary
investigation of the charge against the petitioner, Quintin S. Doromal, a former Commissioner of the
Presidential Commission on Good Government (PCGG), for- violation of the Anti-Graft and Corrupt

Practices Act (RA 3019), Sec. 3(h), in connection with his shareholdings and position as president
and director of the Doromal International Trading Corporation (DITC) which submitted bids to supply
P61 million worth of electronic, electrical, automotive, mechanical and airconditioning equipment to
the Department of Education, Culture and Sports (or DECS) and the National Manpower and Youth
Council (or NMYC).
On January 25,1988, with the approval of Special Prosecutor Raul Gonzales, Caoili filed in the
Sandiganbayan an information against the petitioner (Criminal Case No. 12766) alleging :
That in or about the period from April 28, 19866 to October 16, 1987, in Metro
Manila, Philippines and within the jurisdiction of this Honorable Court, the abovenamed accused, a public officer, being then Commissioner of the Presidential
Commission on Good Government, did then and there wilfully and unlawfully have
direct or indirect financial interest in the Doromal International Trading Corporation,
an entity which transacted or entered into a business transaction or contract with the
Department of Education, Culture and Sports and the National Manpower and Youth
Council, both agencies of the government which business, contracts or transactions
he is prohibited by law and the constitution from having any interest. (pp. 246-247,
Rollo; Emphasis supplied.)
The petitioner filed a petition for certiorari and prohibition in this Court questioning the jurisdiction of
the "Tanodbayan" to file the information without the approval of the Ombudsman after the effectivity
of the 1987 Constitution (G.R. No. 81766, entitled "Doromal vs. Sandiganbayan").
On June 30, 1988, this Court annulled the information in accordance with its decision in the
consolidated cases ofZaldivar vs. Sandiganbayan, G.R. Nos. 79690-707 and Zaldivar vs.
Gonzales, G.R. No. 80578, April 27, 1988 (160 SCRA 843), where it ruled that:
... the incumbent Tanodbayan (called Special Prosecutor under the 1987 Constitution
and who is supposed to retain powers and duties NOT GIVEN to the Ombudsman) is
clearly without authority to conduct preliminary investigations and to direct the filing
of criminal cases with the Sandiganbayan, except upon orders of the Ombudsman.
This right to do so was lost effective February 2, 1 987. From that time, he has been
divested of such authority.
Upon the annulment of the information against the petitioner, the Special Prosecutor sought
clearance from the Ombudsman to refile it.
In a Memorandum dated July 8,1988, the Ombudsman, Honorable Conrado Vasquez, granted
clearance but advised that "some changes be made in the information previously filed." (p. 107,
Rollo.)
Complying with that Memorandum, a new information, duly approved by the Ombudsman, was filed
in the Sandiganbayan (Criminal Case No. 12893), alleging that:
..., the above-named accused [Doromal] a public officer, being then a Commissioner
of the Presidential Commission on Good Government, did then and there wilfully and
unlawfully, participate in a business through the Doromal International Trading
Corporation, a family corporation of which he is the President, and which company

participated in the biddings conducted by the Department of Education, Culture and

Sports and the National Manpower & Youth Council, which act or participation is
prohibited by law and the constitution. (p. 68, Rollo; Emphasis supplied.)
On July 25, 1988, petitioner filed a "Motion to Quash" the information for being:
(a) invalid because there had been no preliminary investigation; and
(b) defective because the facts alleged do not constitute the offense charged (Annex
C).
The Sandiganbayan denied the motion to quash in its orders dated July 25,1988 and August
19,1988 (Annexes D, N and 0, pp. 81,173 & 179, Rollo).
On August 22, 1988, the Special Prosecutor filed a "Motion to Suspend Accused Pendente Lite"
pursuant to Section 13 of the Anti- Graft and Corrupt Practices Act (R.A. 3019). Over the petitioner's
objection (because the President had earlier approved his application for indefinite leave of absence
as PCGG commissioner "effective immediately and until final decision of the courts in your case"
[Annex S-1, p. 189, Rollo]), the Sandiganbayan on September 5, 1988 ordered his
suspension pendente lite from his position as PCGG Commissioner and from any other office he
may be holding (Annex T). His motion for reconsideration of that order was also denied by the Court
(Annex Y). Hence, this petition for certiorari and prohibition alleging that the Sandiganbayan gravely
abused its discretion: (1) in denying the petitioner's motion to quash the information in Criminal Case
No. 12893; and, (2) in suspending the petitioner from office despite the President's having previously
approved his indefinite leave of absence " until final decision" in this case.
The petitioner contends that as the preliminary investigation that was conducted prior to the filing of
the original information in Criminal Case No. 12766 was nullified by this Court, another preliminary
investigation should have been conducted before the new information in Criminal Case No. 12893
was filed against him. The denial of his right to such investigation allegedly violates his right to due
process and constitutes a ground to quash the information.
On the other hand, the public respondent argues that another preliminary investigation is
unnecessary because both old and new informations involve the same subject matter a violation of
Section 3 (H) of R.A. No. 3019 (the Anti-Graft and Corrupt Practices Act) in relation to Section 13,
Article VII of the 1987 Constitution. Moreover, the petitioner allegedly waived the second preliminary
investigation by his failure to comply with the Court's Order dated August 12, 1988 directing him to
submit a statement of new or additional facts, duly supported by photo copies of documents which
he would present should a new preliminary investigation be ordered (Annex H, p. 94, Rollo).
The petition is meritorious. A new preliminary investigation of the charge against the petitioner is in
order not only because the first was a nullity (a dead limb on the judicial tree which should be lopped
off and wholly disregarded"-Anuran vs. Aquino, 38 Phil. 29) but also because the accused demands
it as his right. Moreover, the charge against him had been changed, as directed by the Ombudsman.
Thus, while the first information in Criminal Case No. 12766 charge that the DITCentered into a business transaction or contract with the Department of Education,
Culture and Sports and the National Manpower and Youth Council, ... which

business, contracts or transactions he [petitioner] is prohibited by law and the

constitution from having any interest. (P. 70, Rollo.)
the new information in Criminal Case No. 12883 alleges that the petitioner:
unlawfully participate[d] in a business through the Doromal International Trading
Corporation, a family corporation of which he is the President, and which company
participated in the biddings conducted by the Department of Education, Culture and
Sports and the National Manpower & Youth Council, which act or participation is
prohibited by law and the constitution. (p. 68, Rollo.)
The petitioner's right to a preliminary investigation of the new charge is secured to him by the
following provisions of Rule 112 of the 1985 Rules on Criminal Procedure:
SEC. 3. Procedure. ... no complaint or information for an offense cognizable by the
Regional Trial Court shall be filed without a preliminary investigation having been first
conducted. .....
SEC. 7. When accused lawfully arrested without warrant.- When a person is lawfully
arrested without a warrant for an offense cognizable by the Regional Trial Court, the
complaint or information may be filed by the offended party, peace officer or fiscal
without a preliminary investigation having been first conducted; on the basis of the
affidavit of the offended party or arresting officer or person.
However, before the filing of such complaint or information, the person arrested may
ask for a preliminary investigation by a proper officer in accordance with this
Rules ....
If the case has been filed in court without a preliminary investigation having been first
conducted, the accused may within five (5) days from the time he learns of the filing
of the information, ask for a preliminary investigation with the same right to adduce
evidence in his favor in the manner prescribed in this Rule.
That right of the accused is "a substantial one." Its denial over his opposition is a "prejudicial error, in
that it subjects the accused to the loss of life, liberty, or property without due process of law" (U.S.
vs. Marfori, 35 Phil. 666).
The need to conduct a new preliminary investigation when the defendant demands it and the
allegations of the complaint have been amended, has been more than once affirmed by this Court:
III. (a) ..., the Court finds that since the information for alleged violation of the AntiGraft Law was filed without any previous notice to petitioners and due preliminary
investigation thereof, and despite the dismissal of the original charge for falsification
as being 'without any factual or legal basis, 'petitioners are entitled to a new
preliminary investigation for the graft charge, with all the rights to which they are
entitled under section 1 of Republic Act No. 5180, approved September 8, 1967, as
invoked by them anew from respondent court, viz, the submittal of the testimonies in
affidavit form of the complainant and his witnesses duly sworn to before the
investigating fiscal, and the right of accused, through counsel, to cross-examine them

and to adduce evidence in their defense. In line with the settled doctrine as restated
in People vs. Abejuela (38 SCRA 324), respondent court shall hold in abeyance all
proceedings in the case before it until after the outcome of such new preliminary
investigation. (Luciano vs. Mariano, 40 SCRA 187, 201; emphasis ours).
The right of the accused not to be brought to trial except when remanded therefor as
a result of a preliminary examination before a committing magistrate, it has been held
is a substantial one. Its denial over the objections of the accused is prejudicial error
in that it subjects the accused to the loss of life, liberty or property without due
process of law. (Conde vs. Judge of Court of First Instance of Tayabas, 45 Phil.
173,176.)
The absence of a preliminary investigation if it is not waived may amount to a denial
of due process. (San Diego vs. Hernandez, 24 SCRA 110, 114.)
In this jurisdiction, the preliminary investigation in criminal cases is not a creation of
the Constitution;its origin is statutory and it exists and the right thereto can be
invoked when so established and granted by law. (Mariano Marcos, et al. vs. Roman
A. Cruz, 68 Phil. 96; Emphasis supplied.)
The Solicitor General's argument that the right to a preliminary investigation may be waived and was
in fact waived by the petitioner, impliedly admits that the right exists. Since the right belongs to the
accused, he alone may waive it. If he demands it, the State may not withhold it.
However, as the absence of a preliminary investigation is not a ground to quash the complaint or
information (Sec. 3, Rule 117, Rules of Court), the proceedings upon such information in the
Sandiganbayan should be held in abeyance and the case should be remanded to the office of the
Ombudsman for him or the Special Prosecutor to conduct a preliminary investigation. Thus did We
rule in Luciano vs. Mariano, 40 SCRA 187, 201; Ilagan vs. Enrile 139 SCRA 349 and more recently
in Sanciangco, Jr. vs. People, 149 SCRA 1, 3-4:
The absence of preliminary investigation does not affect the court's jurisdiction over
the case. Nor do they impair the validity of the information or otherwise render it
defective; but, if there were no preliminary investigations and the defendants, before
entering their plea, invite the attention of the court to their absence, the court, instead
of dismissing the information should conduct such investigation, order the fiscal to
conduct it or remand the case to the inferior court so that the preliminary
investigation may be conducted. (See People vs. Gomez, 117 SCRA 72, 77-78; citing
People vs. Casiano, 1 SCRA 478). In this case, the Tanodbayan has the duty to
conduct the said investigation.
There is no merit in petitioner's insistence that the information should be quashed because the
Special Prosecutor admitted in the Sandiganbayan that he does not possess any document signed
and/or submitted to the DECS by the petitioner after he became a PCGG Commissioner (p. 49,
Rollo). That admission allegedly belies the averment in the information that the petitioner
"participated' in the business of the DITC in which he is prohibited by the Constitution or by law from
having any interest. (Sec. 3-h, RA No. 3019).

The Sandiganbayan in its order of August 19, 1988 correctly observed that "the presence of a signed
document bearing the signature of accused Doromal as part of the application to bid ... is not a sine
qua non" (Annex O, p. 179. Rollo), for, the Ombudsman indicated in his Memorandum/Clearance to
the Special Prosecutor, that the petitioner "can rightfully be charged ...with having participated in a
business which act is absolutely prohibited by Section 13 of Article VII of the Constitution" because
"the DITC remained a family corporation in which Doromal has at least an indirect interest." (pp. 107108, Rollo).
Section 13, Article VII of the 1987 Constitution provides that "the President, Vice-President, the
members of the Cabinet and their deputies or assistants shall not... during (their) tenure, ...directly or
indirectly... participate in any business." The constitutional ban is similar to the prohibition in the Civil
Service Law (PD No. 807, Sec. 36, subpar. 24) that "Pursuit of private business ... without the
permission required by Civil Service Rules and Regulations" shall be a ground for disciplinary action
against any officer or employee in the civil service.
On the suspension of the petitioner from office, Section 13 of the Anti-Graft and Corrupt Practices
Act (RA 3019) provides:
SEC. 13. Suspension and loss of benefits.-Any public officer against whom any
criminal prosecution under a valid information under this Act or under the provisions
of the Revised Penal Code on bribery is pending in court, shall be suspended from
office. Should he be convicted by final judgment, he shall lose all retirement or
gratuity benefits under any law, but if he is acquitted, he shall be entitled to
reinstatement and to the salaries and benefits which he failed to receive during
suspension, unless in the meantime administrative proceedings have been filed
against him.
Since the petitioner is an incumbent public official charged in a valid information with an offense
punishable under the Constitution and the laws (RA 3019 and PD 807), the law's command that he
"shall be suspended from office"pendente lite must be obeyed. His approved leave of absence is not
a bar to his preventive suspension for, as indicated by the Solicitor General, an approved leave,
whether it be for a fixed or indefinite period, may be cancelled or shortened at will by the incumbent.
Nevertheless, as we held in Layno, Sr. vs. Sandiganbayan, 136 SCRA 536 (1985), a preventive
suspension for an indefinite period of time, such as one that would last until the case against the
incumbent official shall have been finally terminated, would (4 outrun the bounds of reason and
result in sheer oppression" and a denial of due process.
In the case of Garcia vs. The Executive Secretary, 6 SCRA 1 (1962), this Court ordered the
immediate reinstatement, to his position as chairman of the National Science Development Board, of
a presidential appointee whose preventive suspension had lasted for nearly seven (7) months. Some
members of the Court held that the maximum period of sixty (60) days provided in Section 35 of the
Civil Service Act of 1959 (Republic Act 2260) was applicable to the petitioner. The others believed,
however, that period may not apply strictly to cases of presidential appointees, nevertheless, the
preventive suspension shall be limited to a reasonable period. Obviously, the Court found the
petitioner's preventive suspension for seven (7) months to be unreasonable. The Court stated:
To adopt the theory of respondents that an officer appointed by the President, facing
administrative charges can be preventively suspended indefinitely, would be to

countenance a situation where the preventive suspension can, in effect, be the

penalty itself without a finding of guilt after due hearing; contrary to the express
mandate of the Constitution (No officer or employee in the Civil Service shall be
removed or suspended except for cause as provided by law. [Art. XII, Sec. 4,
Constitution of the Philippines]) and the Civil Service Law (No officer or employee in
the Civil Service shall be removed or suspended except for cause as provided by law
and after due process). ... In the guise of a preventive suspension, his term of office
could be shortened and he could, in effect, be removed without a finding of a cause
duly established after due hearing, in violation of the Constitution. ....
Pursuant to the guarantee of equal protection of the laws in the Bill of Rights of our Constitution, that
same ruling was applied in Deloso vs. Sandiganbayan, G.R. Nos. 86899-903, May 15,1989.
The petitioner herein is no less entitled to similar protection. Since his preventive suspension has
exceeded the reasonable maximum period of ninety (90) days provided in Section 42 of the Civil
Service Decree of the Philippines (P.D. 807), it should now be lifted.
WHEREFORE, the petition for certiorari and prohibition is granted. The Sandiganbayan shall
immediately remand Criminal Case No. 12893 to the Office of the Ombudsman for preliminary
investigation and shall hold in abeyance the proceedings before it pending the result of such
investigation. The preventive suspension of the petitioner is hereby lifted. No costs.
SO ORDERED.
G.R. Nos. 217126-27, November 10, 2015
CONCHITA CARPIO MORALES, IN HER CAPACITY AS THE OMBUDSMAN, Petitioner, v. COURT OF
APPEALS (SIXTH DIVISION) AND JEJOMAR ERWIN S. BINAY, JR., Respondents.
DECISION
PERLAS-BERNABE, J.:
"All government is a trust, every branch of government is a trust, and immemorially acknowledged so to
be[.]"1
ChanRoblesVirtualawlibrary

The Case
Before the Court is a petition for certiorari and prohibition2 filed on March 25, 2015 by petitioner Conchita
Carpio Morales, in her capacity as the Ombudsman (Ombudsman), through the Office of the Solicitor
General (OSG), assailing: (a) the Resolution3 dated March 16, 2015 of public respondent the Court of
Appeals (CA) in CA-G.R. SP No. 139453, which granted private respondent Jejomar Erwin S. Binay, Jr.'s
(Binay, Jr.) prayer for the issuance of a temporary restraining order (TRO) against the implementation of the
Joint Order4 dated March 10, 20,15 of the Ombudsman in OMB-C-A-15-0058 to 0063 (preventive suspension
order) preventively suspending him and several other public officers and employees of the City Government
of Makati, for six (6) months without pay; and (b) the Resolution 5 dated March 20, 2015 of the CA, ordering
the Ombudsman to comment on Binay, Jr.'s petition for contempt 6 in CA-G.R. SP No. 139504.
Pursuant to the Resolution7 dated April 6, 2015, the CA issued a writ of preliminary injunction 8 (WPI) in CAG.R. SP No. 139453 which further enjoined the implementation of the preventive suspension order,
prompting the Ombudsman to file a supplemental petition 9 on April 13, 2015.
The Facts

On July 22, 2014, a complaint/affidavit10 was filed by Atty. Renato L. Bondal and Nicolas "Ching" Enciso VI
before the Office of the Ombudsman against Binay, Jr. and other public officers and employees of the City
Government of Makati (Binay, Jr., et al), accusing them of Plunder11 and violation of Republic Act No. (RA)
3019,12 otherwise known as "The Anti-Graft and Corrupt Practices Act," in connection with the five (5)
phases of the procurement and construction of the Makati City Hall Parking Building (Makati Parking
Building).13
On September 9, 2014, the Ombudsman constituted a Special Panel of Investigators 14 to conduct a factfinding investigation, submit an investigation report, and file the necessary complaint, if warranted (1st
Special Panel).15 Pursuant to the Ombudsman's directive, on March 5, 2015, the 1st Special Panel filed a
complaint16 (OMB Complaint) against Binay, Jr., et al, charging them with six (6) administrative cases17 for
Grave Misconduct, Serious Dishonesty, and Conduct Prejudicial to the Best Interest of the Service, and six
(6) criminal cases18 for violation of Section 3 (e) of RA 3019, Malversation of Public Funds, and Falsification
of Public Documents (OMB Cases).19
As to Binay, Jr., the OMB Complaint alleged that he was involved in anomalous activities attending the
following procurement and construction phases of the Makati Parking Building project, committed during his
previous and present terms as City Mayor of Makati:
Binay, Jr.'s First Term (2010 to 2013)20
(a) On September 21, 2010, Binay, Jr. issued the Notice of Award21 for Phase III of the Makati Parking
Building project to Hilmarc's Construction Corporation (Hilmarc's), and consequently, executed the
corresponding contract22 on September 28, 2010,23without the required publication and the lack of
architectural design,24 and approved the release of funds therefor in the following amounts as follows: (1)
P130,518,394.80 on December 15, 2010;25 (2) P134,470,659.64 on January 19, 2011;26 (3)
P92,775,202.27 on February 25, 2011;27 (4) P57,148,625.51 on March 28, 2011;28(5) P40,908,750.61
on May 3, 2011;29 and (6) P106,672,761.90 on July 7, 2011;30
(b) On August 11, 2011, Binay, Jr. issued the Notice of Award31 for Phase IV of the Makati Parking Building
project to Hilmarc's, and consequently, executed the corresponding contract 32 on August 18, 2011,33 without
the required publication and the lack of architectural design, 34 and approved the release of funds therefor in
the following amounts as follows: (1) P182,325,538.97 on October 4, 2O11; 35 (2) P173,132,606.91 on
October 28,2011;36 (3) P80,408,735.20 on December 12, 2011;37(4) P62,878,291.81 on February 10,
2012;38 and (5) P59,639,167.90 on October 1, 2012;39
(c) On September 6, 2012, Binay, Jr. issued the Notice of Award 40 for Phase V of the Makati Parking Building
project to Hilmarc's, and consequently, executed the corresponding contract 41 on September 13,
2012,42 without the required publication and the lack of architectural design, 43 and approved the release of
the funds therefor in the amounts of P32,398,220.0544 and P30,582,629.3045 on December 20, 2012; and
Binay, Jr.'s Second Term (2013 to 2016)46
(d) On July 3, 2013 and July 4, 2013, Binay, Jr. approved the release of funds for the remaining balance of
the September 13, 2012 contract with Hilmarc's for Phase V of the Makati Parking Building project in the
amount of P27,443,629.97;47 and
(e) On July 24, 2013, Binay, Jr. approved the release of funds for the remaining balance of the
contract48 with MANA Architecture & Interior Design Co. (MANA) for the design and architectural services
covering the Makati Parking Building project in the amount of P429,011.48. 49
On March 6, 2015, the Ombudsman created another Special Panel of Investigators to conduct a preliminary
investigation and administrative adjudication on the OMB Cases (2 nd Special Panel).50Thereafter, on March 9,
2015, the 2nd Special Panel issued separate orders51 for each of the OMB Cases, requiring Binay, Jr., et al. to
file their respective counter-affidavits. 52
Before Binay, Jr., et al.'s filing of their counter-affidavits, the Ombudsman, upon the recommendation of the
2nd Special Panel, issued on March 10, 2015, the subject preventive suspension order, placing Binay, Jr., et
al. under preventive suspension for not more than six (6) months without pay, during the pendency of the
OMB Cases.53 The Ombudsman ruled that the requisites for the preventive suspension of a public officer are
present,54 finding that: (a) the evidence of Binay, Jr., et al.'s guilt was strong given that (1) the losing

bidders and members of the Bids and Awards Committee of Makati City had attested to the irregularities
attending the Makati Parking Building project; (2) the documents on record negated the publication of bids;
and (3) the disbursement vouchers, checks, and official receipts showed the release of funds; and (b) (1)
Binay, Jr., et al. were administratively charged with Grave Misconduct, Serious Dishonesty, and Conduct
Prejudicial to the Best Interest of the Service; (2) said charges, if proven to be true, warrant removal from
public service under the Revised Rules on Administrative Cases in the Civil Service (RRACCS), and (3) Binay,
Jr., et al.'s respective positions give them access to public records and allow them to influence possible
witnesses; hence, their continued stay in office may prejudice the investigation relative to the OMB Cases
filed against them.55 Consequently, the Ombudsman directed the Department of Interior and Local
Government (DILG), through Secretary Manuel A. Roxas II (Secretary Roxas), to immediately implement the
preventive suspension order against Binay, Jr., et al., upon receipt of the same.56
On March 11, 2015, a copy of the preventive suspension order was sent to the Office of the City Mayor, and
received by Maricon Ausan, a member of Binay, Jr.'s staff.57
The Proceedings Before the CA
On even date,58 Binay, Jr. filed a petition for certiorari59 before the CA, docketed as CA-G.R. SP No.
139453, seeking the nullification of the preventive suspension order, and praying for the issuance of a TRO
and/or WPI to enjoin its implementation.60Primarily, Binay, Jr. argued that he could not be held
administratively liable for any anomalous activity attending any of the five (5) phases of the Makati
Parking Building project since: (a) Phases I and II were undertaken before he was elected Mayor of Makati in
2010; and (b) Phases III to V transpired during his first term and that his re-election as City Mayor of
Makati for a second term effectively condoned his administrative liability therefor, if any, thus
rendering the administrative cases against him moot and academic. 61In any event, Binay, Jr. claimed
that the Ombudsman's preventive suspension order failed to show that the evidence of guilt
presented against him is strong, maintaining that he did not participate in any of the purported
irregularities.62 In support of his prayer for injunctive relief, Binay, Jr. argued that he has a clear and
unmistakable right to hold public office, having won by landslide vote in the 2010 and 2013 elections, and
that, in view of the condonation doctrine, as well as the lack of evidence to sustain the charges against him,
his suspension from office would undeservedly deprive the electorate of the services of the person they have
conscientiously chosen and voted into office.63
On March 16, 2015, at around 8:24 a.m., Secretary Roxas caused the implementation of the preventive
suspension order through the DILG National Capital Region - Regional Director, Renato L. Brion, CESO III
(Director Brion), who posted a copy thereof on the wall of the Makati City Hall after failing to personally
serve the same on Binay, Jr. as the points of entry to the Makati City Hall were closed. At around 9:47 a.m.,
Assistant City Prosecutor of Makati Billy C. Evangelista administered the oath of office on Makati City Vice
Mayor Romulo V. Pea, Jr. (Pea, Jr.) who thereupon assumed office as Acting Mayor.64
At noon of the same day, the CA issued a Resolution65 (dated March 16, 2015), granting Binay, Jr.'s prayer
for a TRO,66 notwithstanding Pena, Jr.'s assumption of duties as Acting Mayor earlier that day.67 Citing the
case of Governor Garcia, Jr. v. CA,68 the CA found that it was more prudent on its part to issue a TRO in
view of the extreme urgency of the matter and seriousness of the issues raised, considering that if it were
established that the acts subject of the administrative cases against Binay, Jr. were all committed during his
prior term, then, applying the condonation doctrine, Binay, Jr.'s re-election meant that he can no longer be
administratively charged.69 The CA then directed the Ombudsman to comment on Binay, Jr.'s petition
for certiorari .70
On March 17, 2015, the Ombudsman manifested71 that the TRO did not state what act was being restrained
and that since the preventive suspension order had already been served and implemented, there was no
longer any act to restrain.72
On the same day, Binay, Jr. filed a petition for contempt, 73 docketed as CA-G.R. SP No. 139504, accusing
Secretary Roxas, Director Brion, the officials of the Philippine National Police, and Pena, Jr. of deliberately
refusing to obey the CA, thereby allegedly impeding, obstructing, or degrading the administration of
justice.74 The Ombudsman and Department of Justice Secretary Leila M. De Lima were subsequently
impleaded as additional respondents upon Binay, Jr.'s filing of the amended and supplemental petition for
contempt75 (petition for contempt) on March 19, 2015.76 Among others, Binay, Jr. accused the Ombudsman
and other respondents therein for willfully and maliciously ignoring the TRO issued by the CA against the
preventive suspension order.77

In a Resolution78dated March 20, 2015, the CA ordered the consolidation of CA-G.R. SP No. 139453 and
CA-G.R. SP No. 139504, and, without necessarily giving due course to Binay, Jr.'s petition for
contempt, directed the Ombudsman to file her comment thereto. 79 The cases were set for hearing of oral
arguments on March 30 and 31, 2015.80
The Proceedings Before the Court
Prior to the hearing of the oral arguments before the CA, or on March 25, 2015, the Ombudsman filed the
present petition before this Court, assailing the CA's March 16, 2015 Resolution, which granted Binay, Jr.'s
prayer for TRO in CA-G.R. SP No. 139453, and the March 20, 2015 Resolution directing her to file a
comment on Binay, Jr.'s petition for contempt in CA-G.R. SP No. 139504. 81 The Ombudsman claims that: (a)
the CA had no jurisdiction to grant Binay, Jr.'s prayer for a TRO, citing Section 14 of RA 6770, 82 or "The
Ombudsman Act of 1989," which states that no injunctive writ could be issued to delay the Ombudsman's
investigation unless there is prima facie evidence that the subject matter thereof is outside the latter's
jurisdiction;83 and (b) the CA's directive for the Ombudsman to comment on Binay, Jr.'s petition for contempt
is illegal and improper, considering that the Ombudsman is an impeachable officer, and therefore, cannot be
subjected to contempt proceedings.84
In his comment85 filed on April 6, 2015, Binay, Jr. argues that Section 1, Article VIII of the 1987 Constitution
specifically grants the CA judicial power to review acts of any branch or instrumentality of government,
including the Office of the Ombudsman, in case of grave abuse of discretion amounting to lack or excess of
jurisdiction, which he asserts was committed in this case when said office issued the preventive suspension
order against him.86 Binay, Jr. posits that it was incumbent upon the Ombudsman to1 have been apprised of
the condonation doctrine as this would have weighed heavily in determining whether there was strong
evidence to warrant the issuance of the preventive suspension order.87 In this relation, Binay, Jr. maintains
that the CA correctly enjoined the implementation of the preventive suspension order given his clear and
unmistakable right to public office, and that it is clear that he could not be held administratively liable for
any of the charges against him since his subsequent re-election in 2013 operated as a condonation of any
administrative offenses he may have committed during his previous term. 88 As regards the CA's order for the
Ombudsman to comment on his petition for contempt, Binay, Jr. submits that while the Ombudsman is
indeed an impeachable officer and, hence, cannot be removed from office except by way of impeachment,
an action for contempt imposes the penalty of fine and imprisonment, without necessarily resulting in
removal from office. Thus, the fact that the Ombudsman is an impeachable officer should not deprive the CA
of its inherent power to punish contempt.89
Meanwhile, the CA issued a Resolution90 dated April 6, 2015, after the oral arguments before it were
held,91 granting Binay, Jr.'s prayer for a WPI, which further enjoined the implementation of the preventive
suspension order. In so ruling, the CA found that Binay, Jr. has an ostensible right to the final relief prayed
for, namely, the nullification of the preventive suspension order, in view of the condonation doctrine,
citing Aguinaldo v. Santos.92 Particularly, it found that the Ombudsman can hardly impose preventive
suspension against Binay, Jr. given that his re-election in 2013 as City Mayor of Makati condoned any
administrative liability arising from anomalous activities relative to the Makati Parking Building project from
2007 to 2013.93 In this regard, the CA added that, although there were acts which were apparently
committed by Binay, Jr. beyond his first term namely, the alleged payments on July 3, July 4, and July 24,
2013,94 corresponding to the services of Hillmarc's and MANA - still, Binay, Jr. cannot be held
administratively liable therefor based on the cases ofSalalima v. Guingona, Jr.,95 and Mayor Garcia v.
Mojica96 wherein the condonation doctrine was still applied by the Court although the payments were made
after the official's re-election, reasoning that the payments were merely effected pursuant to contracts
executed before said re-election.97 To this, the CA added that there was no concrete evidence of Binay, Jr.'s
participation for the alleged payments made on July 3, 4, and 24, 2013. 98
In view of the CA's supervening issuance of a WPI pursuant to its April 6, 2015 Resolution, the Ombudsman
filed a supplemental petition99 before this Court, arguing that the condonation doctrine is irrelevant to the
determination of whether the evidence of guilt is strong for purposes of issuing preventive suspension
orders. The Ombudsman also maintained that a reliance on the condonation doctrine is a matter of defense,
which should have been raised by Binay, Jr. before it during the administrative proceedings, and that, at any
rate, there is no condonation because Binay, Jr. committed acts subject of the OMB Complaint after his reelection in 2013.100
On April 14 and 21, 2015,101 the Court conducted hearings for the oral arguments of the parties. Thereafter,
they were required to file their respective memoranda.102 In compliance thereto, the Ombudsman filed her
Memorandum103 on May 20, 2015, while Binay, Jr. submitted his Memorandum the following day.104

Pursuant to a Resolution105 dated June 16, 2015, the Court directed the parties to comment on each other's
memoranda, and the OSG to comment on the Ombudsman's Memorandum, all within ten (10) days from
receipt of the notice.
On July 15, 2015, both parties filed their respective comments to each other's memoranda. 106Meanwhile, on
July 16, 2015, the OSG filed its Manifestation In Lieu of Comment, 107 simply stating that it was mutually
agreed upon that the Office of the Ombudsman would file its Memorandum, consistent with its desire to
state its "institutional position."108 In her Memorandum and Comment to Binay, Jr.'s Memorandum, the
Ombudsman pleaded, among others, that this Court abandon the condonation doctrine. 109 In view of the
foregoing, the case was deemed submitted for resolution.
chanrobleslaw

The Issues Before the Court

Based on the parties' respective pleadings, and as raised during the oral arguments conducted before this
Court, the main issues to be resolved in seriatim are as follows:
I.

Whether or not the present petition, and not motions for reconsideration of the assailed CA
issuances in CA-G.R. SP No. 139453 and CA-G.R. SP No. 139504, is the Ombudsman's
plain, speedy, and adequate remedy;
cralawlawlibrary

II.

Whether or not the CA has subject matter jurisdiction over the main petition forcertiorari in
CA-G.R. SP No. 139453;
cralawlawlibrary

III.

Whether or not the CA has subject matter jurisdiction to issue a TRO and/or WPI enjoining
the implementation of a preventive suspension order issued by the Ombudsman;
cralawlawlibrary

IV.

Whether or not the CA gravely abused its discretion in issuing the TRO and eventually, the
WPI in CA-G.R. SP No. 139453 enjoining the implementation of the preventive suspension
order against Binay, Jr. based on the condonation doctrine; and

V.

Whether or not the CA's directive for the Ombudsman to ' comment on Binay, Jr.'s petition
for contempt in CA- G.R. SP No. 139504 is improper and illegal.

The Ruling of the Court

The petition is partly meritorious.

chanroble slaw

I.
A common requirement to both a petition for certiorari and a petition for prohibition taken under Rule 65 of
the 1997 Rules of Civil Procedure is that the petitioner has no other plain, speedy, and adequate remedy in
the ordinary course of law. Sections 1 and 2 thereof provide:
Section 1. Petition for certiorari. - When any tribunal, board or officer exercising judicial or quasi-judicial
functions has acted without or in excess of its or his jurisdiction, or with grave abuse of discretion amounting
to lack or excess of jurisdiction, and there is no appeal, nor any plain, speedy, and adequate remedy in
the ordinary course of law, a person aggrieved thereby may file a verified petition in the proper court,
alleging the facts with certainty and praying that judgment be rendered annulling or modifying the
proceedings of such tribunal, board or officer, and granting such incidental reliefs as law and justice may
require.
xxxx
Section 2. Petition for prohibition. - When the proceedings of any tribunal, corporation, board, officer or
person, whether exercising judicial, quasi-judicial or ministerial functions, are without or in excess of its or
his jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction, and there is no
appeal, or any other plain, speedy, and adequate remedy in the ordinary course of law, a person
aggrieved thereby may file a verified petition in the proper court, alleging the facts r with certainty and

praying that judgment be rendered commanding the respondent to desist from further proceedings in the
action or matter specified therein, or otherwise granting such incidental reliefs as law and justice may
require.
x x x x (Emphases supplied)
Hence, as a general rule, a motion for reconsideration must first be filed with the lower court prior to
resorting to the extraordinary remedy of certiorari or prohibition since a motion for reconsideration may still
be considered as a plain, speedy, and adequate remedy in the ordinary course of law. The rationale for the
pre-requisite is to grant an opportunity for the lower court or agency to correct any actual or perceived error
attributed to it by the re-examination of the legal and factual circumstances of the case. 110
Jurisprudence states that "[i]t is [the] inadequacy, [and] not the mere absence of all other legal remedies
and the danger of failure of justice without the writ, that must usually determine the propriety
of certiorari [or prohibition]. A remedy is plain, speedy[,] and adequate if it will promptly relieve the
petitioner from the injurious effects of the judgment, order, or resolution of the lower court or agency, x x
x."111
In this light, certain exceptions were crafted to the general rule requiring a prior motion for reconsideration
before the filing of a petition for certiorari, which exceptions also apply to a petition for prohibition. 112 These
are: (a) where the order is a patent nullity, as where the court a quo has no jurisdiction; (b) where the
questions raised in the certiorari proceedings have been duly raised and passed upon by the lower court, or
are the same as those raised and passed upon in the lower court; (c) where there is an urgent necessity for
the resolution of the question and any further delay would prejudice the interests of the Government or of
the petitioner or the subject matter of the action is perishable; (d) where, under the circumstances, a
motion for reconsideration would be useless; (e) where petitioner was deprived of due process and there is
extreme urgency for relief; (f) where, in a criminal case, relief from an order of arrest is urgent and the
granting of such relief by the trial court is improbable; (g) where the proceedings in the lower court are a
nullity for lack of due process; (h) where the proceedings were ex parte or in which the petitioner had no
opportunity to object; and (i)where the issue raised is one purely of law or where public interest is
involved.113
In this case, it is ineluctably clear that the above-highlighted exceptions attend since, for the first time, the
question on the authority of the CA - and of this Court, for that matter - to enjoin the implementation of a
preventive suspension order issued by the Office of the Ombudsman is put to the fore. This case tests the
constitutional and statutory limits of the fundamental powers of key government institutions - namely, the
Office of the Ombudsman, the Legislature, and the Judiciary - and hence, involves an issue of transcendental
public importance that demands no less than a careful but expeditious resolution. Also raised is the equally
important issue on the propriety of the continuous application of the condonation doctrine as invoked by a
public officer who desires exculpation from administrative liability. As such, the Ombudsman's direct resort
to certiorari and prohibition before this Court, notwithstanding her failure to move for the prior
reconsideration of the assailed issuances in CA-G.R. SP No. 139453 and CA-G.R. SP No. 139504 before the
CA, is justified.
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II.
Albeit raised for the first time by the Ombudsman in her Memorandum, 114 it is nonetheless proper to resolve
the issue on the CA's lack of subject matter jurisdiction over the main petition for certiorari in CA-G.R. SP
No. 139453, in view of the well-established rule that a court's jurisdiction over the subject matter may be
raised at any stage of the proceedings. The rationale is that subject matter jurisdiction is conferred by law,
and the lack of it affects the very authority of the court to take cognizance of and to render judgment on the
action.115 Hence, it should be preliminarily determined if the CA indeed had subject matter jurisdiction over
the main CA-G.R. SP No. 139453 petition, as the same determines the validity of all subsequent proceedings
relative thereto. It is noteworthy to point out that Binay, Jr. was given the opportunity by this Court to be
heard on this issue,116 as he, in fact, duly submitted his opposition through his comment to the
Ombudsman's Memorandum.117 That being said, the Court perceives no reasonable objection against ruling
on this issue.
The Ombudsman's argument against the CA's lack of subject matter jurisdiction over the main petition, and
her corollary prayer for its dismissal, is based on her interpretation of Section 14, RA 6770, or the
Ombudsman Act,118 which reads in full:

Section 14. Restrictions. - No writ of injunction shall be issued by any court to delay an investigation being
conducted by the Ombudsman under this Act, unless there is aprima facie evidence that the subject matter
of the investigation is outside the jurisdiction of the Office of the Ombudsman.
No court shall hear any appeal or application for remedy against the decision or findings of the Ombudsman,
except the Supreme Court, on pure question of law.
The subject provision may be dissected into two (2) parts.
The first paragraph of Section 14, RA 6770 is a prohibition against any court (except the Supreme
Court119) from issuing a writ of injunction to delay an investigation being conducted by the Office of the
Ombudsman. Generally speaking, "[injunction is a judicial writ, process or proceeding whereby a party is
ordered to do or refrain from doing a certain act. It may be the main action or merely a provisional remedy
for and as an incident in the main action."120 Considering the textual qualifier "to delay," which connotes a
suspension of an action while the main case remains pending, the "writ of injunction" mentioned in this
paragraph could only refer to injunctions of the provisional kind, consistent with the nature of a provisional
injunctive relief.
The exception to the no injunction policy is when there is prima facie evidence that the subject matter of the
investigation is outside the office's jurisdiction. The Office of the Ombudsman has disciplinary authority over
all elective and appointive officials of the government and its subdivisions, instrumentalities, and agencies,
with the exception only of impeachable officers, Members of Congress, and the Judiciary.121 Nonetheless, the
Ombudsman retains the power to investigate any serious misconduct in office allegedly committed by
officials removable by impeachment, for the purpose of filing a verified complaint for impeachment, if
warranted.122 Note that the Ombudsman has concurrent jurisdiction over certain administrative cases which
are within the jurisdiction of the regular courts or administrative agencies, but has primary jurisdiction to
investigate any act or omission of a public officer or employee who is under the jurisdiction of the
Sandiganbayan.123
On the other hand, the second paragraph of Section 14, RA 6770 provides that no appeal or application
for remedy may be heard against the decision or findings of the Ombudsman, with the exception of the
Supreme Court on pure questions of law. This paragraph, which the Ombudsman particularly relies on in
arguing that the CA had no jurisdiction over the main CA-G.R. SP No. 139453 petition, as it is supposedly
this Court which has the sole jurisdiction to conduct a judicial review of its decisions or findings, is vague for
two (2) reasons: (1) it is unclear what the phrase "application for remedy" or the word "findings" refers to;
and (2) it does not specify what procedural remedy is solely allowable to this Court, save that the same be
taken only against a pure question of law. The task then, is to apply the relevant principles of statutory
construction to resolve the ambiguity.
"The underlying principle of all construction is that the intent of the legislature should be sought in the words
employed to express it, and that when found[,] it should be made to govern, x x x. If the words of the law
seem to be of doubtful import, it may then perhaps become necessary to look beyond them in order to
ascertain what was in the legislative mind at the time the law was enacted; what the circumstances were,
under which the action was taken; what evil, if any, was meant to be redressed; x x x [a]nd where the law
has contemporaneously been put into operation, and in doing so a construction has necessarily been put
upon it, this construction, especially if followed for some considerable period, is entitled to great respect, as
being very probably a true expression of the legislative purpose, and is not lightly to be overruled, although
it is not conclusive."124
As an aid to construction, courts may avail themselves of the actual proceedings of the legislative body in
interpreting a statute of doubtful meaning. In case of doubt as to what a provision of a statute means, the
meaning put to the provision during the legislative deliberations may be adopted, 125 albeit not controlling in
the interpretation of the law.126
A. The Senate deliberations cited by the
Ombudsman do not pertain to the second
paragraph of Section 14, RA 6770.
The Ombudsman submits that the legislative intent behind Section 14, RA 6770, particularly on the matter
of judicial review of her office's decisions or findings, is supposedly clear from the following Senate
deliberations:127

Senator [Edgardo J.] Angara, x x x. On page 15, Mr. President, line 14, after the phrase "petition for"
delete the word "review" and in lieu thereof, insert the wordCERTIORARI. So that, review or appeal from the
decision of the Ombudsman would only be taken not on a petition for review, but on certiorari.
The President [Jovito R. Salonga]. What is the practical effect of that? Will it be more difficult to
reverse the decision under review?
Senator Angara. It has two practical effect ways, Mr. President. First is that the findings of facts of the
Ombudsman would be almost conclusive if supported by substantial evidence. Second, we would
not unnecessarily clog the docket of the Supreme Court. So, it in effect will be a very strict
appeal procedure.
xxxx
Senator [Teofisto T.] Guingona, [Jr.]. Does this mean that, for example, if there are exhaustive
remedies available to a respondent, the respondent himself has the right to exhaust the administrative
remedies available to him?
Senator Angara. Yes, Mr. President, that is correct.
Senator Guingona. And he himself may cut the proceeding short by appealing to the Supreme Court
only on certiorari ?
Senator Angara. On question of law, yes.
Senator Guingona. And no other remedy is available to him?
Senator Angara. Going to the Supreme Court, Mr. President?
Senator Guingona. Yes. What I mean to say is, at what stage, for example, if he is a presidential
appointee who is the respondent, if there is f no certiorari available, is the respondent given the right to
exhaust his administrative remedies first before the Ombudsman can take the appropriate action?
Senator Angara. Yes, Mr. President, because we do not intend to change the administrative law principle
that before one can go to court, he must exhaust all administrative remedies xxx available to him before he
goes and seeks judicial review.
xxxx
Senator [Neptali A.] Gonzales. What is the purpose of the Committee in changing the method of
appeal from one of a petition for review to a petition for certiorari ?
Senator Angara. To make it consistent, Mr. President, with the provision here in the bill to the
effect that the finding of facts of the Ombudsman is conclusive if supported by substantial
evidence.
Senator Gonzales. A statement has been made by the Honorable Presiding Officer to which I concur, that
in an appeal by certiorari , the appeal is more difficult. Because in certiorari it is a matter of
discretion on the part of the court, whether to give due course to the petition or dismiss it
outright. Is that not correct, Mr. President?
Senator Angara. That is absolutely correct, Mr. President
Senator Gonzales. And in a petition for certiorari , the issue is limited to whether or not the
Ombudsman here has acted without jurisdiction and has committed a grave abuse of discretion
amounting to lack of jurisdiction. Is that not the consequence, Mr. President.
Senator Angara. That is correct, Mr. President.
Senator Gonzales. And it is, therefore, in this sense that the intention of the Committee is to make it
harder to have a judicial review, but should be limited only to cases that I have enumerated.

Senator Angara. Yes, Mr. President.

Senator Gonzales. I think, Mr. President, our Supreme Court has made a distinction between a petition for
review and a petition for certiorari ; because before, under the 1935 Constitution appeal from any order,
ruling or decision of the COMELEC shall be by means of review. But under the Constitution it is now
by certiorari and the Supreme Court said that by this change, the court exercising judicial review will not
inquire into the facts, into the evidence, because we will not go deeply by way of review into the evidence
on record but its authority will be limited to a determination of whether the administrative agency acted
without, or in excess of, jurisdiction, or committed a grave abuse of discretion. So, I assume that that is the
purpose of this amendment, Mr. President.
Senator Angara. The distinguished Gentleman has stated it so well.
Senator Gonzales. I just want to put that in the Record. Senator Angara. It is very well stated, Mr.
President.
xxxx
The President. It is evident that there must be some final authority to render decisions. Should it
be the Ombudsman or should it be the Supreme Court?
Senator Angara. As I understand it, under our scheme of government, Mr. President,it is and has to be
the Supreme Court to make the final determination.
The President. Then if that is so, we have to modify Section 17.
Senator Angara. That is why, Mr. President, some of our Colleagues have made a reservation to introduce
an appropriate change during the period of Individual Amendments.
xxxx
The President. All right. Is there any objection to the amendment inserting the wordCERTIORARI instead of
"review"? [Silence] Hearing none, the same is approved. 128
Upon an assiduous scrutiny of these deliberations, the Court is, however, unconvinced that the provision
debated on was Section 14, RA 6770, as the Ombudsman invokes. Note that the exchange begins with the
suggestion of Senator Angara to delete the word "review" that comes after the phrase "petition for review"
and, in its stead, insert the word "certiorari" so that the "review or appeal from the decision of the
Ombudsman would not only be taken on a petition for review, but on certiorari" The ensuing exchange
between Senators Gonzales and Angara then dwells on the purpose of changing the method of review from
one of a petition for review to a petition for certiorari - that is, to make "the appeal x x x more difficult."
Ultimately, the amendment to the change in wording, from "petition for review" to "petition for certiorari"
was approved.
Noticeably, these references to a "petition for review" and the proposed "petition for certiorari" are nowhere
to be found in the text of Section 14, RA 6770. In fact, it was earlier mentioned that this provision,
particularly its second paragraph, does not indicate what specific procedural remedy one should take in
assailing a decision or finding of the Ombudsman; it only reveals that the remedy be taken to this Court
based on pure questions of law. More so, it was even commented upon during the oral arguments of this
case129 that there was no debate or clarification made on the current formulation of the second paragraph of
Section 14, RA 6770 per the available excerpts of the Senate deliberations. In any case, at least for the
above-cited deliberations, the Court finds no adequate support to sustain the Ombudsman's entreaty that
the CA had no subject matter jurisdiction over the main CA-G.R. SP No. 139453 petition.
On the contrary, it actually makes greater sense to posit that these deliberations refer to another
Ombudsman Act provision, namely Section 27, RA 6770. This is because the latter textually reflects the
approval of Senator Angara's suggested amendment, i.e., that the Ombudsman's decision or finding may be
assailed in a petition for certiorari to this Court (fourth paragraph), and further, his comment on the
conclusive nature of the factual findings of the Ombudsman, if supported by substantial evidence (third
paragraph):

Section 27. Effectivity and Finality of Decisions. (1) All provisionary orders of the Office of the Ombudsman
are immediately effective and executory.
A motion for reconsideration of any order, directive or decision of the Office of the Ombudsman must be filed
within five (5) days after receipt of written notice and shall be entertained only on any of the following
grounds:
(1) New evidence has been discovered which materially affects the order, directive or decision;
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(2) Errors of law or irregularities have been committed prejudicial to the interest of the movant. The motion
for reconsideration shall be resolved within three (3) days from filing: Provided, That only one motion for
reconsideration shall be entertained.
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Findings of fact by the Office of the Ombudsman when supported by substantial evidence are conclusive.
Any order, directive or decision imposing the penalty of public censure or reprimand, suspension of not more
than one (1) month's salary shall be final and unappealable.
In all administrative disciplinary cases, orders, directives, or decisions of the Office of the
Ombudsman may be appealed to the Supreme Court by filing apetition for certiorari within ten
(10) days from receipt of the written notice of the order, directive or decision or denial of the
motion for reconsideration in accordance with Rule 45 of the Rules of Court.
The above rules may be amended or modified by the Office of the ' Ombudsman as the interest of justice
may require. (Emphasis and underscoring supplied)
At first blush, it appears that Section 27, RA 6770 is equally ambiguous in stating that a "petition
forcertiorari" should be taken in accordance with Rule 45 of the Rules of Court, as it is well-known that
under the present 1997 Rules of Civil Procedure, petitions for certiorari are governed by Rule 65 of the said
Rules. However, it should be discerned that the Ombudsman Act was passed way back in 1989 130 and,
hence, before the advent of the 1997 Rules of Civil Procedure. 131 At that time, the governing 1964 Rules of
Court,132 consistent with Section 27, RA 6770, referred to the appeal taken thereunder as a petition
for certiorari , thus possibly explaining the remedy's textual denomination, at least in the provision's final
approved version:
RULE 45
Appeal from Court of Appeals to Supreme Court
SECTION 1. Filing of Petition with Supreme Court. - A party may appeal by certiorari , from a judgment of
the Court of Appeals, by filing with the Supreme Court a petition for certiorari , within fifteen (15) days
from notice of judgment or of the denial of his motion for reconsideration filed in due time, and paying at
the same time, to the clerk of said court the corresponding docketing fee. The petition shall not be acted
upon without proof of service of a copy thereof to the Court of Appeals. (Emphasis supplied)
B. Construing the second paragraph of
Section 14, RA 6770.
The Senate deliberations' lack of discussion on the second paragraph of Section 14, RA 6770
notwithstanding, the other principles of statutory construction can apply to ascertain the meaning of the
provision.
To recount, the second paragraph of Section 14, RA 6770 states that "[n]o court shall hear any appeal
or application for remedy against the decision or findings of the Ombudsman, except the
Supreme Court, on pure question of law." ;
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As a general rule, the second paragraph of Section 14, RA 6770 bans the whole range of remedies
against issuances of the Ombudsman, by prohibiting: (a) an appeal against any decision or finding of
the Ombudsman, and (b) "any application of remedy" (subject to the exception below) against the same. To
clarify, the phrase "application for remedy," being a generally worded provision, and being separated from
the term "appeal" by the disjunctive "or",133 refers to any remedy (whether taken mainly or provisionally),
except an appeal, following the maxim generalia verba sunt generaliter intelligenda: general words are to be
understood in a general sense.134 By the same principle, the word "findings," which is also separated from
the word "decision" by the disjunctive "or", would therefore refer to any finding made by the Ombudsman
(whether final or provisional), except a decision.

The subject provision, however, crafts an exception to the foregoing general rule. While the specific
procedural vehicle is not explicit from its text, it is fairly deducible that the second paragraph of Section 14,
RA 6770 excepts, as the only allowable remedy against "the decision or findings of the Ombudsman," a
Rule 45 appeal, for the reason that it is the only remedy taken to the Supreme Court on "pure
questions of law," whether under the 1964 Rules of Court or the 1997 Rules of Civil Procedure:
Rule 45, 1964 Rules of Court
RULE 45
Appeal from Court of Appeals to Supreme Court
xxxx
Section 2. Contents of Petition. The petition shall contain a concise statement of the matters involved, the
assignment of errors made in the court below, and the reasons relied on for the allowance of the petition,
and it should be accompanied with a true copy of the judgment sought to be reviewed, together with twelve
(12) copies of the record on appeal, if any, and of the petitioner's brief as filed in the Court of Appeals. A
verified statement of the date when notice of judgment and denial of the motion for reconsideration, if any,
were received shall accompany the petition.
Only questions of law may be raised in the petition and must be distinctly set forth. If no record on
appeal has been filed in the Court of Appeals, the clerk of the Supreme Court, upon admission of the
petition, shall demand from the Court of Appeals the elevation of the whole record of the case. (Emphasis
and underscoring supplied)
Rule 45, 1997 Rules of Civil Procedure

RULE 45
Appeal by Certiorari to the Supreme Court
Section 1. Filing of petition with Supreme Court. - A party desiring to appeal bycertiorari from a judgment,
final order or resolution of the Court of Appeals, the Sandiganbayan, the Court of Tax Appeals, the Regional
Trial Court or other courts, whenever authorized by law, may file with the Supreme Court a verified petition
for review on certiorari. The petition may include an application for a writ of preliminary injunction or other
provisional remedies and shall raise only questions of law, which must be distinctly set forth. The
petitioner may seek the same provisional remedies by verified motion filed in the same action or proceeding
at any time during its pendency. (Emphasis and underscoring supplied)
That the remedy excepted in the second paragraph of Section 14, RA 6770 could be a petition
forcertiorari under Rule 65 of the 1964 Rules of Court or the 1997 Rules of Procedure is a suggestion that
defies traditional norms of procedure. It is basic procedural law that a Rule 65 petition is based on errors of
jurisdiction, and not errors of judgment to which the classifications of (a) questions of fact, (b) questions of
law, or (c) questions of mixed fact and law, relate to. In fact, there is no procedural rule, whether in the old
or new Rules, which grounds a Rule 65 petition on pure questions of law. Indeed, it is also a statutory
construction principle that the lawmaking body cannot be said to have intended the establishment of
conflicting and hostile systems on the same subject. Such a result would render legislation a useless and idle
ceremony, and subject the laws to uncertainty and unintelligibility.135 There should then be no confusion that
the second paragraph of Section 14, RA 6770 refers to a Rule 45 appeal to this Court, and no other. In sum,
the appropriate construction of this Ombudsman Act provision is that all remedies against issuances of the
Office of the Ombudsman are prohibited, except the above-stated Rule 45 remedy to the Court on pure
questions of law.
C. Validity of the second paragraph of
Section 14, RA 6770.
Of course, the second paragraph of Section 14, RA 6770's extremely limited restriction on remedies is
inappropriate since a Rule 45 appeal -which is within the sphere of the rules of procedure promulgated by
this Court - can only be taken against final decisions or orders of lower courts, 136and not against "findings" of
quasi-judicial agencies. As will be later elaborated upon, Congress cannot interfere with matters of

procedure; hence, it cannot alter the scope of a Rule 45 appeal so as to apply to interlocutory "findings"
issued by the Ombudsman. More significantly, by confining the remedy to a Rule 45 appeal, the
provision takes away the remedy of certiorari, grounded on errors of jurisdiction, in denigration of the
judicial power constitutionally vested in courts. In this light, the second paragraph of Section 14, RA 6770
also increased this Court's appellate jurisdiction, without a showing, however, that it gave its consent to the
same. The provision is, in fact, very similar to the fourth paragraph of Section 27, RA 6770 (as above-cited),
which was invalidated in the case of Fabian v. Desiertoni137 (Fabian).138
In Fabian, the Court struck down the fourth paragraph of Section 27, RA 6770 as unconstitutional since it
had the effect of increasing the appellate jurisdiction of the Court without its advice and concurrence in
violation of Section 30, Article VI of the 1987 Constitution. 139 Moreover, this provision was found to be
inconsistent with Section 1, Rule 45 of the present 1997 Rules of Procedure which, as above-intimated,
applies only to a review of "judgments or final orders of the Court of Appeals, the Sandiganbayan, the Court
of Tax Appeals, the Regional Trial Court, or other courts authorized by law;" and not of quasi-judicial
agencies, such as the Office of the Ombudsman, the remedy now being a Rule 43 appeal to the Court
of Appeals. In Ruivivar v. Office of the Ombudsman,140 the Court's ratiocinations and ruling in Fabian were
recounted:
The case of Fabian v. Desierto arose from the doubt created in the application of Section 27 of R.A. No.
6770 (The Ombudsman's Act) and Section 7, Rule III of A.O. No. 7 (Rules of Procedure of the Office of the
Ombudsman) on the availability of appeal before the Supreme Court to assail a decision or order of the
Ombudsman in administrative cases. In Fabian, we invalidated Section 27 of R.A. No. 6770 (and
Section 7, Rule III of A.O. No. 7 and the other rules implementing the Act) insofar as it provided
for appeal by certiorari under Rule 45 from the decisions or orders of the Ombudsman in
administrative cases. We held that Section 27 of R.A. No. 6770 had the effect, not only of
increasing the appellate jurisdiction of this Court without its advice and concurrence in violation
of Section 30, Article VI of the Constitution; it was also inconsistent with Section 1, Rule 45 of
the Rules of Court which provides that a petition for review on certiorari shall apply only to a
review of "judgments or final orders of the Court of Appeals, the Sandiganbayan, the Court of Tax
Appeals, the Regional Trial Court, or other courts authorized by law." We pointedly said:
As a consequence of our ratiocination that Section 27 of Republic Act No. 6770 should be struck down as
unconstitutional, and in line with the regulatory philosophy adopted in appeals from quasi-judicial agencies
in the 1997 Revised Rules of Civil Procedure, appeals from decisions of the Office of the Ombudsman in
administrative disciplinary cases should be taken to the CA under the provisions of Rule 43. 141 (Emphasis
supplied)
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Since the second paragraph of Section 14, RA 6770 limits the remedy against "decision or findings" of the
Ombudsman to a Rule 45 appeal and thus - similar to the fourth paragraph of Section 27, RA 6770 142 attempts to effectively increase the Supreme Court's appellate jurisdiction without its advice and
concurrence,143 it is therefore concluded that the former provision is also unconstitutional and perforce,
invalid. Contrary to the Ombudsman's posturing,144Fabian should squarely apply since the above-stated
Ombudsman Act provisions are in part materia in that they "cover the same specific or particular subject
matter,"145 that is, the manner of judicial review over issuances of the Ombudsman.
Note that since the second paragraph of Section 14, RA 6770 is clearly determinative of the existence of the
CA's subject matter jurisdiction over the main CA-G.R. SP No. 139453 petition, including all subsequent
proceedings relative thereto, as the Ombudsman herself has developed, the Court deems it proper to
resolve this issue ex mero motu (on its own motion146). This procedure, as was similarly adopted
in Fabian, finds its bearings in settled case law:
The conventional rule, however, is that a challenge on constitutional grounds must be raised by a party to
the case, neither of whom did so in this case, but that is not an inflexible rule, as we shall explain.
Since the constitution is intended for the observance of the judiciary and other departments of the
government and the judges are sworn to support its provisions, the courts are not at liberty to overlook or
disregard its commands or countenance evasions thereof. When it is clear , that a statute transgresses the
authority vested in a legislative body, it is the duty of the courts to declare that the constitution, and not the
statute, governs in a case before them for judgment.
Thus, while courts will not ordinarily pass upon constitutional questions which are not raised in the
pleadings, the rule has been recognized to admit of certain exceptions. It does not preclude a court from

inquiring into its own jurisdiction or compel it to enter a judgment that it lacks jurisdiction to enter. If a
statute on which a court's jurisdiction in a proceeding depends is unconstitutional, the court has no
jurisdiction in the proceeding, and since it may determine whether or not it has jurisdiction, it necessarily
follows that it may inquire into the constitutionality of the statute.
Constitutional questions, not raised in the regular and orderly procedure in the trial are
ordinarily rejected unless the jurisdiction of the court below or that of the appellate court is
involved in which case it may be raised at any time or on the court's own motion. The Court ex
mero motu may take cognizance of lack of jurisdiction at any point in the case where that fact is developed.
The court has a clearly recognized right to determine its own jurisdiction in any proceeding. 147(Emphasis
supplied)
D. Consequence of invalidity.
In this case, the Rule 65 petition for certiorari in CA-G.R. SP No. 139453 was filed by Binay, Jr. before the CA
in order to nullify the preventive suspension order issued by the Ombudsman, an interlocutory
order,148 hence, unappealable.149
In several cases decided after Fabian, the Court has ruled that Rule 65 petitions for certiorari against
unappelable issuances150 of the Ombudsman should be filed before the CA, and not directly before this
Court:
In Office of the Ombudsman v. Capulong151 (March 12, 2014), wherein a preventive suspension order issued
by the Office of the Ombudsman was - similar to this case - assailed through a Rule 65 petition
for certiorari filed by the public officer before the CA, the Court held that "[t]here being a finding of grave
abuse of discretion on the part of the Ombudsman, it was certainly imperative for the CA to grant incidental
reliefs, as sanctioned by Section 1 of Rule 65."152
In Dagan v. Office of the Ombudsman153 (November 19, 2013), involving a Rule 65 petition
forcertiorari assailing a final and unappealable order of the Office of the Ombudsman in an administrative
case, the Court remarked that "petitioner employed the correct mode of review in this case, i.e., a special
civil action for certiorari before the Court of Appeals."154 In this relation, it stated that while "a special civil
action for Certiorari is within the concurrent original jurisdiction of the Supreme Court and the Court of
Appeals, such petition should be initially filed with the Court of Appeals in observance of the doctrine of
hierarchy of courts." Further, the Court upheld Barata v. Abalos, Jr.155 (June 6, 2001), wherein it was ruled
that the remedy against final and unappealable orders of the Office of the Ombudsman in an administrative
case was a Rule 65 petition to the CA. The same verdict was reached in Ruivivar156 (September 16, 2008).
Thus, with the unconstitutionality of the second paragraph of Section 14, RA 6770, the Court, consistent
with existing jurisprudence, concludes that the CA has subject matter jurisdiction over the main CA-G.R. SP
No. 139453 petition. That being said, the Court now examines the objections of the Ombudsman, this time
against the CA's authority to issue the assailed TRO and WPI against the implementation of the preventive
suspension order, incidental to that main case.
III.
From the inception of these proceedings, the Ombudsman has been adamant that the CA has no jurisdiction
to issue any provisional injunctive writ against her office to enjoin its preventive suspension orders. As basis,
she invokes the first paragraph of Section 14, RA 6770 in conjunction with her office's independence
under the 1987 Constitution. She advances the idea that "[i]n order to further ensure [her office's]
independence, [RA 6770] likewise insulated it from judicial intervention," 157 particularly, "from injunctive
reliefs traditionally obtainable from the courts,"158claiming that said writs may work "just as effectively as
direct harassment or political pressure would."159
A. The concept of Ombudsman independence.
Section 5, Article XI of the 1987 Constitution guarantees the independence of the Office of the Ombudsman:
Section 5. There is hereby created the independent Office of the Ombudsman, composed of the
Ombudsman to be known as Tanodbayan, one overall Deputy and at least one Deputy each for Luzon,

Visayas[,] and Mindanao. A separate Deputy for the military establishment may likewise be appointed.
(Emphasis supplied)
In Gonzales III v. Office of the President160 (Gonzales III), the Court traced the historical underpinnings of
the Office of the Ombudsman:
Prior to the 1973 Constitution, past presidents established several Ombudsman-like agencies to serve as the
people's medium for airing grievances and for direct redress against abuses and misconduct in the
government. Ultimately, however, these agencies failed to fully realize their objective for lack of the political
independence necessary for the effective performance of their function as government critic.
It was under the 1973 Constitution that the Office of the Ombudsman became a constitutionally-mandated
office to give it political independence and adequate powers to enforce its mandate. Pursuant to the ( 1973
Constitution, President Ferdinand Marcos enacted Presidential Decree (PD) No. 1487, as amended by PD No.
1607 and PD No. 1630, creating the Office of the Ombudsman to be known as Tanodbayan. It was tasked
principally to investigate, on complaint or motu proprio, any administrative act of any administrative agency,
including any government-owned or controlled corporation. When the Office of the Tanodbayan was
reorganized in 1979, the powers previously vested in the Special Prosecutor were transferred to the
Tanodbayan himself. He was given the exclusive authority to conduct preliminary investigation of all cases
cognizable by the Sandiganbayan, file the corresponding information, and control the prosecution of these
cases.
With the advent of the 1987 Constitution, a new Office of the Ombudsman was created by constitutional
fiat. Unlike in the 1973 Constitution, its independence was expressly and constitutionally
guaranteed. Its objectives are to enforce the state policy in Section 27, Article II and the standard of
accountability in public service under Section 1, Article XI of the 1987 Constitution. These provisions
read:
Section 27. The State shall maintain honesty and integrity in the public service and take positive and
effective measures against graft and corruption.
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Section 1. Public office is a public trust. Public officers and employees must, at all times, be accountable to
the people, serve them with utmost responsibility, integrity, loyalty, and efficiency; act with patriotism and
justice, and lead modest lives.161 (Emphasis supplied)
More significantly, Gonzales III explained the broad scope of the office's mandate, and in correlation, the
impetus behind its independence:
Under Section 12, Article XI of the 1987 Constitution, the Office of the Ombudsman is envisioned to be the
"protector of the people" against the inept, abusive, and corrupt in the Government, to function essentially
as a complaints and action bureau. This constitutional vision of a Philippine Ombudsman practically intends
to make the Ombudsman an authority to directly check and guard against the ills, abuses and excesses , of
the bureaucracy. Pursuant to Section 13 (8), Article XI of the 1987 Constitution, Congress enacted RA No.
6770 to enable it to further realize the vision of the Constitution. Section 21 of RA No. 6770 provides:
Section 21. Official Subject to Disciplinary Authority; Exceptions. - The Office of the Ombudsman shall have
disciplinary authority over all elective and appointive officials of the Government and its subdivisions,
instrumentalities, and agencies, including Members of the Cabinet, local government, government-owned or
controlled corporations and their subsidiaries, except over officials who may be removed only by
impeachment or over Members of Congress, and the Judiciary.
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As the Ombudsman is expected to be an "activist watchman," the < Court has upheld its actions, although
not squarely falling under the broad powers granted [to] it by the Constitution and by RA No. 6770, if these
actions are reasonably in line with its official function and consistent with the law and the Constitution.
The Ombudsman's broad investigative and disciplinary powers include all acts of malfeasance, misfeasance,
and nonfeasance of all public officials, including Members of the Cabinet and key Executive officers, during
their tenure. To support these broad powers, the Constitution saw it fit to insulate the Office of the
Ombudsman from the pressures and influence of officialdom and partisan politics and from fear
of external reprisal by making it an "independent" office, x x x.
xxxx

Given the scope of its disciplinary authority, the Office of the Ombudsman is a very powerful government
constitutional agency that is considered "a notch above other grievance-handling investigative bodies." It
has powers, both constitutional and statutory, that are commensurate , with its daunting task of enforcing
accountability of public officers.162 (Emphasis and underscoring supplied)
Gonzales III is the first case which grappled with the meaning of the Ombudsman's independence vis-a-vis
the independence of the other constitutional bodies. Pertinently, the Court observed:
(1) "[T]he independence enjoyed by the Office of the Ombudsman and by the Constitutional Commissions
shares certain characteristics - they do not owe their existence to any act of Congress, but are
created by the Constitution itself; additionally, they all enjoy fiscal autonomy. In general terms, the
framers of the Constitution intended that these 'independent' bodies be insulated from political
pressure to the extent that the absence of 'independence' would result in the impairment of their core
functions"163;
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(2) "[T]he Judiciary, the Constitutional Commissions, and the Ombudsman must have the independence and
flexibility needed in the discharge of their constitutional duties. The imposition of restrictions and constraints
on the manner the independent constitutional offices allocate and utilize the funds appropriated
for their operations is anathema to fiscal autonomy and violative not only [of] the express mandate of
the Constitution, but especially as regards the Supreme Court, of the independence and separation of
powers upon which the entire fabric of our constitutional system is based"; 164 and
(3) "[T]he constitutional deliberations explain the Constitutional Commissions' need for independence. In
the deliberations of the 1973 Constitution, the delegates amended the 1935 Constitution by providing for a
constitutionally-created Civil Service Commission, instead of one created by law, on the premise that the
effectivity of this body is dependent on its freedom from the tentacles of politics. In a similar
manner, the deliberations of the 1987 Constitution on the Commission on Audit highlighted the
developments in the past Constitutions geared towards insulating the Commission on Audit from
political pressure."165
At bottom, the decisive ruling in Gonzales III, however, was that the independence of the Office of the
Ombudsman, as well as that of the foregoing independent bodies, meant freedom from control or
supervision of the Executive Department:
[T]he independent constitutional commissions have been consistently intended by the framers to
be independent from executive control or supervision or any form of political influence. At least
insofar as these bodies are concerned, jurisprudence is not scarce on how the "independence" granted to
these bodies prevents presidential interference.
In Brillantes, Jr. v. Yorac (G.R. No. 93867, December 18, 1990, 192 SCRA 358), we emphasized that the
Constitutional Commissions, which have been characterized under the Constitution as "independent,"
are not under the control of the President, even if they discharge functions that are executive in nature.
The Court declared as unconstitutional the President's act of temporarily appointing the respondent in that
case as Acting Chairman of the [Commission on Elections] "however well-meaning" it might have been.
In Bautista v. Senator Salonga (254 Phil. 156, 179 [1989]), the Court categorically stated that the tenure of
the commissioners of the independent Commission on Human Rights could not be placed under the
discretionary power of the President.
xxxx
The kind of independence enjoyed by the Office of the Ombudsman certainly cannot be inferior - but is
similar in degree and kind - to the independence similarly guaranteed by the Constitution to the
Constitutional Commissions since all these offices fill the political interstices of a republican democracy that
are crucial to its existence and proper functioning. 166 (Emphases and underscoring supplied)
Thus, in Gonzales III, the Court declared Section 8 (2), RA 6770, which provides that "[a] Deputy or the
Special Prosecutor, may be removed from office by the President for any of the grounds provided for the
removal of the Ombudsman, and after due process," partially unconstitutional insofar as it subjected the
Deputy Ombudsman to the disciplinary authority of the President for violating the principle of independence.
Meanwhile, the validity of Section 8 (2), RA 6770 was maintained insofar as the Office of the Special

Prosecutor was concerned since said office was not considered to be constitutionally within the Office of the
Ombudsman and is, hence, not entitled to the independence the latter enjoys under the Constitution. 167
As may be deduced from the various discourses in Gonzales III, the concept of Ombudsman's independence
covers three (3) things:
First: creation by the Constitution, which means that the office cannot be abolished, nor its
constitutionally specified functions and privileges, be removed, altered, or modified by law, unless the
Constitution itself allows, or an amendment thereto is made;
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Second: fiscal autonomy, which means that the office "may not be obstructed from [its] freedom to use
or dispose of [its] funds for purposes germane to [its] functions; 168hence, its budget cannot be strategically
decreased by officials of the political branches of government so as to impair said functions; and
Third: insulation from executive supervision and control, which means that those within the ranks of
the office can only be disciplined by an internal authority.
Evidently, all three aspects of independence intend to protect the Office of the Ombudsman frompolitical
harassment and pressure, so as to free it from the "insidious tentacles of politics." 169
That being the case, the concept of Ombudsman independence cannot be invoked as basis to insulate the
Ombudsman from judicial power constitutionally vested unto the courts. Courts are apolitical bodies, which
are ordained to act as impartial tribunals and apply even justice to all. Hence, the Ombudsman's notion that
it can be exempt from an incident of judicial power - that is, a provisional writ of injunction against a
preventive suspension order - clearly strays from the concept's rationale of insulating the office from political
harassment or pressure.
B. The first paragraph of Section 14, RA
6770 in light of the powers of Congress and the
Court under the 1987 Constitution.
The Ombudsman's erroneous abstraction of her office's independence notwithstanding, it remains that the
first paragraph of Section 14, RA 6770 textually prohibits courts from extending provisional injunctive relief
to delay any investigation conducted by her office. Despite the usage of the general phrase "[n]o writ of
injunction shall be issued by any court," the Ombudsman herself concedes that the prohibition does not
cover the Supreme Court.170 As support, she cites the following Senate deliberations:
Senator [Ernesto M.] Maceda. Mr. President, I do not know if an amendment is necessary. I would just
like to inquire for the record whether below the Supreme Court, it is understood that there is no
injunction policy against the Ombudsman by lower courts. Or, is it necessary to have a special
paragraph for that?
Senator Angara. Well, there is no provision here, Mr. President, that will prevent an injunction against the
Ombudsman being issued.
Senator Maceda. In which case, I think that the intention, this being one of the highest
constitutional bodies, is to subject this only to certiorari to the Supreme Court. I think an
injunction from the Supreme Court is, of course, in order but no lower courts should be allowed
to interfere. We had a very bad experience with even, let us say, the Forestry Code where no injunction is
supposed to be issued against the Department of Natural Resources. Injunctions are issued right and
left by RTC judges all over the country.
The President. Why do we not make an express provision to that effect?
Senator Angara. We would welcome that, Mr. President.
The President. No [writs of injunction] from the trial courts other than the Supreme Court.
Senator Maceda. I so move, Mr. President, for that amendment.
The President. Is there any objection? [Silence] Hearing none, the same is approved.171

Further, she acknowledges that by virtue of Sections 1 and 5 (1), Article VIII of the 1987 Constitution, acts
of the Ombudsman, including interlocutory orders, are subject to the Supreme Court's power of judicial
review As a corollary, the Supreme Court may issue ancillary mjunctive writs or provisional remedies in the
exercise of its power of judicial review over matters pertaining to ongoing investigations by the Office of the
Ombudsman. Respecting the CA, however, the Ombudsman begs to differ.172
With these submissions, it is therefore apt to examine the validity of the first paragraph of Section 14, RA
6770 insofar as it prohibits all courts, except this Court, from issuing provisional writs of injunction to enjoin
an Ombudsman investigation. That the constitutionality of this provision is the lis mota of this case has not
been seriously disputed. In fact, the issue anent its constitutionality was properly raised and presented
during the course of these proceedings.173 More importantly, its resolution is clearly necessary to the
complete disposition of this case.174
In the enduring words of Justice Laurel in Angara v. The Electoral Commission (Angara),175 the "Constitution
has blocked out with deft strokes and in bold lines, allotment of power to the executive, the legislative[,]
and the judicial departments of the government."176 The constitutional demarcation of the three fundamental
powers of government is more commonly known as the principle of separation of powers. In the landmark
case of Belgica v. Ochoa, Jr. (Belgica),177 the Court held that "there is a violation of the separation of powers
principle when one branch of government unduly encroaches on the domain of another." 178 In particular,
"there is a violation of the principle when there is impermissible (a) interference with and/or (b) assumption
of another department's functions."179
Under Section 1, Article VIII of the 1987 Constitution, judicial power is allocated to the Supreme Court
and all such lower courts:
Section 1. The judicial power shall be vested in one Supreme Court and in such lower courts as may be
established by law.
Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which
are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of
discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the
Government.
This Court is the only court established by the Constitution, while all other lower courts may be
established by laws passed by Congress. Thus, through the passage of Batas Pambansa Bilang (BP)
129,180 known as "The Judiciary Reorganization Act of 1980," the Court of Appeals, 181 the Regional Trial
Courts,182 and the Metropolitan Trial Courts, Municipal Trial Courts, and Municipal Circuit Trial Courts 183 were
established. Later, through the passage of RA 1125,184 and Presidential Decree No. (PD) 1486,185 the Court of
Tax Appeals, and the Sandiganbayan were respectively established.
In addition to the authority to establish lower courts, Section 2, Article VIII of the 1987
Constitution empowers Congress to define, prescribe, and apportion the jurisdiction of all
courts, except that it may not deprive the Supreme Court of its jurisdiction over cases
enumerated in Section 5186 of the same Article:
Section 2. The Congress shall have the power to define, prescribe, ' and apportion the jurisdiction of the
various courts but may not deprive the Supreme Court of its jurisdiction over cases enumerated in Section 5
hereof.
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Jurisdiction, as hereinabove used, more accurately pertains to jurisdiction over the subject matter of an
action. In The Diocese ofBacolod v. Commission on Elections,187 subject matter jurisdiction was defined as
"the authority 'to hear and determine cases of the general class to which the proceedings in
question belong and is conferred by the sovereign authority which organizes the court and
defines its powers.'"
Among others, Congress defined, prescribed, and apportioned the subject matter jurisdiction of this Court
(subject to the aforementioned constitutional limitations), the Court of Appeals, and the trial courts, through
the passage of BP 129, as amended.

In this case, the basis for the CA's subject matter jurisdiction over Binay, Jr.'s main petition
forcertiorari in CA-G.R. SP No. 139453 is Section 9(1), Chapter I of BP 129, as amended:
Section 9. Jurisdiction. - The Court of Appeals shall exercise:
1.

Original jurisdiction to issue writs of mandamus, prohibition, certiorari, habeas

corpus, and quo warranto, and auxiliary writs or processes, whether or not in aid of its
appellate jurisdiction[.]

Note that the CA's certiorari jurisdiction, as above-stated, is not only original but also concurrentwith the
Regional Trial Courts (under Section 21 (1), Chapter II of BP 129), and the Supreme Court (under Section 5,
Article VIII of the 1987 Philippine Constitution). In view of the concurrence of these courts' jurisdiction over
petitions for certiorari, the doctrine of hierarchy of courts should be followed. In People v.
Cuaresma,188 the doctrine was explained as follows:
[T]his concurrence of jurisdiction is not x x x to be taken as according to parties seeking any of the writs
an absolute, unrestrained freedom of choice of the court to which application therefor will be directed. There
is after all a hierarchy of courts. That hierarchy is determinative of the venue of appeals, and should also
serve as a general determinant of the appropriate forum for petitions for the extraordinary writs. A
becoming regard for that judicial hierarchy most certainly indicates that petitions for the issuance of
extraordinary writs against first level ("inferior") courts should be filed with the Regional Trial Court, and
those against the latter, with the Court of Appeals.189
When a court has subject matter jurisdiction over a particular case, as conferred unto it by law, said
court may then exercise its jurisdiction acquired over that case, which is called judicial power.
Judicial power, as vested in the Supreme Court and all other courts established by law, has been defined
as the "totality of powers a court exercises when it assumes jurisdiction and hears and decides a
case."190 Under Section 1, Article VIII of the 1987 Constitution, it includes "the duty of the courts of
justice to settle actual controversies involving rights which are legally demandable and
enforceable, and to determine whether or not there has been a grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the
Government."
In Oposa v. Factoran, Jr.191 the Court explained the expanded scope of judicial power under the 1987
Constitution:
The first part of the authority represents the traditional concept of judicial power, involving the settlement of
conflicting rights as conferred by law. The second part of the authority represents a broadening of f judicial
power to enable the courts of justice to review what was before forbidden territory, to wit, the discretion of
the political departments of the government.
As worded, the new provision vests in the judiciary, and particularly the Supreme Court, the power to rule
upon even the wisdom of the decisions of the executive and the legislature and to declare their acts invalid
for lack or excess of jurisdiction because they are tainted with grave abuse of discretion. The catch, of
course, is the meaning of "grave abuse of discretion," which is a very elastic phrase that can expand or
contract according to the disposition of the judiciary.192
Judicial power is never exercised in a vacuum. A court's exercise of the jurisdiction it has acquired
over a particular case conforms to the limits and parameters of the rules of procedure duly
promulgated by this Court. In other words, procedure is the framework within which judicial power is
exercised. In Manila Railroad Co. v. Attorney-General,193 the Court elucidated that "[t]he power or authority
of the court over the subject matter existed and was fixed before procedure in a given cause
began. Procedure does not alter or change that power or authority; it simply directs the manner
in which it shall be fully and justly exercised. To be sure, in certain cases, if that power is not
exercised in conformity with the provisions of the procedural law, purely, the court attempting to exercise it
loses the power to exercise it legally. This does not mean that it loses jurisdiction of the subject matter." 194

While the power to define, prescribe, and apportion the jurisdiction of the various courts is, by constitutional
design, vested unto Congress, the power to promulgate rules concerning the protection and
enforcement of constitutional rights, pleading, practice, and procedure in all courts belongs
exclusively to this Court. Section 5 (5), Article VIII of the 1987 Constitution reads:
Section 5. The Supreme Court shall have the following powers:
xxxx
(5) Promulgate rules concerning the protection and enforcement of constitutional rights,
pleading, practice, and procedure in all courts, the admission to the practice of law, the Integrated Bar,
and legal assistance to the underprivileged. Such rules shall provide a simplified and inexpensive procedure
for the speedy disposition of cases, shall be uniform for all courts of the same grade, and shall not diminish,
increase, or modify substantive rights. Rules of procedure of special courts and quasi-judicial bodies shall
remain effective unless disapproved by the Supreme Court. (Emphases and underscoring supplied)
In Echegaray v. Secretary of Justice195 (Echegaray), the Court traced the evolution of its rule-making
authority, which, under the 1935196 and 1973 Constitutions,197 had been priorly subjected to a power-sharing
scheme with Congress.198 As it now stands, the 1987 Constitution textually altered the old provisions by
deleting the concurrent power of Congress to amend the rules, thus solidifying in one body the
Court's rule-making powers, in line with the Framers' vision of institutionalizing a "[s]tronger and more
independent judiciary."199
The records of the deliberations of the Constitutional Commission would show 200 that the Framers debated
on whether or not the Court's rule-making powers should be shared with Congress. There was an initial
suggestion to insert the sentence "The National Assembly may repeal, alter, or supplement the said rules
with the advice and concurrence of the Supreme Court", right after the phrase "Promulgate rules concerning
the protection and enforcement of constitutional rights, pleading, practice, and procedure in all courts, the
admission to the practice of law, the integrated bar, and legal assistance to the underprivileged^" in the
enumeration of powers of the Supreme Court. Later, Commissioner Felicitas S. Aquino proposed to delete
the former sentence and, instead, after the word "[underprivileged," place a comma (,) to be followed by
"the phrase with the concurrence of the National Assembly." Eventually, a compromise formulation was
reached wherein (a) the Committee members agreed to Commissioner Aquino's proposal to delete the
phrase "the National Assembly may repeal, alter, or supplement the said rules with the advice and
concurrence of the Supreme Court" and (b) in turn, Commissioner Aquino agreed to withdraw his proposal
to add "the phrase with the concurrence of the National Assembly." The changes were approved,
thereby leading to the present lack of textual reference to any form of Congressional
participation in Section 5 (5), Article VIII, supra. The prevailing consideration was that "both
bodies, the Supreme Court and the Legislature, have their inherent powers."201
Thus, as it now stands, Congress has no authority to repeal, alter, or supplement rules concerning pleading,
practice, and procedure. As pronounced in Echegaray:
The rule making power of this Court was expanded. This Court for the first time was given the power to
promulgate rules concerning the protection and enforcement of constitutional rights. The Court was also r
granted for the first time the power to disapprove rules of procedure of special courts and quasi-judicial
bodies. But most importantly, the 1987 Constitution took away the power of Congress to repeal,
alter, or supplement rules concerning pleading, practice and procedure. In fine, the power to
promulgate rules of pleading, practice and procedure is no longer shared by this Court with
Congress, more so with the Executive.202 (Emphasis and underscoring supplied)
Under its rule-making authority, the Court has periodically passed various rules of procedure, among others,
the current 1997 Rules of Civil Procedure. Identifying the appropriate procedural remedies needed
for the reasonable exercise of every court's judicial power, the provisional remedies of
temporary restraining orders and writs of preliminary injunction were thus provided.
A temporary restraining order and a writ of preliminary injunction both constitute temporary measures
availed of during the pendency of the action. They are, by nature, ancillary because they are mere incidents
in and are dependent upon the result of the main action. It is well-settled that thesole object of a
temporary restraining order or a writ of preliminary injunction, whether prohibitory or
mandatory, is to preserve the status quo203 until the merits of the case can be heard. They are usually

granted when it is made to appear that there is a substantial controversy between the parties and one of
them is committing an act or threatening the immediate commission of an act that will cause irreparable
injury or destroy the status quo of the controversy before a full hearing can be had on the merits of the
case. In other words, they are preservative remedies for the protection of substantive rights or interests,
and, hence, not a cause of action in itself, but merely adjunct to a main suit. 204 In a sense, they are
regulatory processes meant to prevent a case from being mooted by the interim acts of the parties.
Rule 58 of the 1997 Rules of Civil Procedure generally governs the provisional remedies of a TRO and a WPI.
A preliminary injunction is defined under Section 1,205 Rule 58, while Section 3206 of the same Rule
enumerates the grounds for its issuance. Meanwhile, under Section 5 207 thereof, a TRO may be issued as a
precursor to the issuance of a writ of preliminary injunction under certain procedural parameters.
The power of a court to issue these provisional injunctive reliefs coincides with its inherent power to issue
all auxiliary writs, processes, and other means necessary to carry its acquired jurisdiction into
effect under Section 6, Rule 135 of the Rules of Court which reads:
Section 6. Means to carry jurisdiction into effect. - When by law jurisdiction is conferred on a court or judicial
officer, all auxiliary writs, f processes and other means necessary to carry it into effect may be employed by
such court or officer; and if the procedure to be followed in the exercise of such jurisdiction is not specifically
pointed out by law208or by these rules, any suitable process or mode of proceeding may be adopted which
appears comfortable to the spirit of the said law or rules.
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In City of Manila v. Grecia-Cuerdo,209 which is a case involving "[t]he supervisory power or jurisdiction of the
[Court of Tax Appeals] to issue a writ of certiorari in aid of its appellate jurisdiction"210 over "decisions,
orders or resolutions of the RTCs in local tax cases originally decided or resolved by them in the exercise of
their original or appellate jurisdiction,"211 the Court ruled that said power "should coexist with, and be a
complement to, its appellate jurisdiction to review, by appeal, the final orders and decisions of the RTC, in
order to have complete supervision over the acts of the latter:" 212
A grant of appellate jurisdiction implies that there is included in it the power necessary to exercise it
effectively, to make all orders that ; will preserve the subject of the action, and to give effect to
the final determination of the appeal. It carries with it the power to protect that jurisdiction and to make
the decisions of the court thereunder effective. The court, in aid of its appellate jurisdiction, has authority to
control all auxiliary and incidental matters necessary to the efficient and proper exercise of that jurisdiction.
For this purpose, it may, when necessary, prohibit or restrain the performance of any act which might
interfere with the proper exercise of its rightful jurisdiction in cases pending before it. 213 (Emphasis supplied)
In this light, the Court expounded on the inherent powers of a court endowed with subject matter
jurisdiction:
[A] court which is endowed with a particular jurisdiction should have powers which are necessary to enable
it to act effectively within such jurisdiction. These should be regarded as powers which are inherent in
its jurisdiction and the court must possess them in order to enforce its rules of practice and to
suppress any abuses of its process and to t defeat any attempted thwarting of such process.
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Indeed, courts possess certain inherent powers which may be said to be implied from a general grant of
jurisdiction, in addition to those expressly conferred on them. These inherent powers are such powers
as are necessary for the ordinary and efficient exercise of jurisdiction; or are essential to the
existence, dignity and functions of the courts, as well as to the due administration of justice; or
are directly appropriate, convenient and suitable to the execution of their granted powers; and
include the power to maintain the court's jurisdiction and render it effective in behalf of the
litigants.214 (Emphases and underscoring supplied)
Broadly speaking, the inherent powers of the courts resonates the long-entrenched constitutional principle,
articulated way back in the 1936 case of Angara, that "where a general power is conferred or duty enjoined,
every particular power necessary for the exercise of the one or the performance of the other is also
conferred."215

In the United States, the "inherent powers doctrine refers to the principle, by which the courts deal with
diverse matters over which they are thought to have intrinsic authority like procedural [rule-making] and
general judicial housekeeping. To justify the invocation or exercise of inherent powers, a court must show
that the powers are reasonably necessary to achieve the specific purpose for which the exercise
is sought. Inherent powers enable the judiciary to accomplish its constitutionally mandated
functions."216
In Smothers v. Lewis217 (Smothers), a case involving the constitutionality of a statute which prohibited
courts from enjoining the enforcement of a revocation order of an alcohol beverage license pending
appeal,218 the Supreme Court of Kentucky held:
[T]he Court is x x x vested with certain "inherent" powers to do that which is reasonably necessary
for the administration of justice within the scope of their jurisdiction. x x x [W]e said while
considering the rule making power and the judicial power to be one and the same that ". . . the grant of
judicial power [rule making power] to the courts by the constitution carries with it, as a
necessary incident, the right to make that power effective in the administration of justice."
(Emphases supplied)
Significantly, Smothers characterized a court's issuance of provisional injunctive relief as an exercise of the
court's inherent power, and to this end, stated that any attempt on the part of Congress to interfere with the
same was constitutionally impermissible:
It is a result of this foregoing line of thinking that we now adopt the language framework of 28 Am.Jur.2d,
Injunctions, Section 15, and once and for all make clear that a court, once having obtained jurisdiction of a
cause of action, has, as an incidental to its constitutional grant of power, inherent power to do all things
reasonably necessary to the administration of justice in the case before it. In the exercise of this power,
a court, when necessary in order to protect or preserve the subject matter of the litigation, to
protect its jurisdiction and to make its judgment effective, may grant or issue a temporary
injunction in aid of or ancillary to the principal action.
The control over this inherent judicial power, in this particular instance the injunction, is
exclusively within the constitutional realm of the courts. As such, it is not within the purview of
the legislature to grant or deny the power nor is it within the purview of the legislature to shape
or fashion circumstances under which this inherently judicial power may be or may not be
granted or denied.
This Court has historically recognized constitutional limitations upon the power of the legislature to interfere
with or to inhibit the performance of constitutionally granted and inherently provided judicial functions, x x x
xxxx
We reiterate our previously adopted language, ". . . a court, once having obtained jurisdiction of a cause of
action, has, as incidental to its general jurisdiction, inherent power to do all things reasonably necessary f to
the administration of justice in the case before it. . ." This includes the inherent power to issue
injunctions.(Emphases supplied)
Smothers also pointed out that the legislature's authority to provide a right to appeal in the statute does not
necessarily mean that it could control the appellate judicial proceeding:
However, the fact that the legislature statutorily provided for this appeal does not give it the right to
encroach upon the constitutionally granted powers of the judiciary. Once the administrative action has
ended and the right to appeal arises the legislature is void of any right to control a subsequent
appellate judicial proceeding. The judicial rules have come into play and have preempted the
field.219 (Emphasis supplied)
With these considerations in mind, the Court rules that when Congress passed the first paragraph of Section
14, RA 6770 and, in so doing, took away from the courts their power to issue a TRO and/or WPI to enjoin an
investigation conducted by the Ombudsman, it encroached upon this Court's constitutional rule-making
authority. Clearly, these issuances, which are, by nature, provisional reliefs and auxiliary writs created under
the provisions of the Rules of Court, are matters of procedurewhich belong exclusively within the province

of this Court. Rule 58 of the Rules of Court did not create, define, and regulate a right but merely prescribed
the means of implementing an existing right 220 since it only provided for temporary reliefs to preserve the
applicant's right in esse which is threatened to be violated during the course of a pending litigation. In the
case of Fabian,211 it was stated that:
If the rule takes away a vested right, it is not procedural. If the rule creates a right such as the right to
appeal, it may be classified as a substantive matter; but if it operates as a means of implementing an
existing right then the rule deals merely with procedure.
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Notably, there have been similar attempts on the part of Congress, in the exercise of its legislative power, to
amend the Rules of Court, as in the cases of: (a) In Re: Exemption of The National Power Corporation from
Payment of Filing/ Docket Fees;222 (b) Re: Petition for Recognition of the Exemption of the Government
Service Insurance System (GSIS) from Payment of Legal Fees; 223 and (c) Baguio Market Vendors MultiPurpose Cooperative (BAMARVEMPCO) v. Cabato-Cortes224 While these cases involved legislative enactments
exempting government owned and controlled corporations and cooperatives from paying filing fees, thus,
effectively modifying Rule 141 of the Rules of Court (Rule on Legal Fees), it was, nonetheless, ruled that the
prerogative to amend, repeal or even establish new rules of procedure225 solely belongs to the
Court, to the exclusion of the legislative and executive branches of government. On this score, the
Court described its authority to promulgate rules on pleading, practice, and procedure as exclusive and
"[o]ne of the safeguards of [its] institutional independence."226
That Congress has been vested with the authority to define, prescribe, and apportion the jurisdiction of the
various courts under Section 2, Article VIII supra, as well as to create statutory courts under Section 1,
Article VIII supra, does not result in an abnegation of the Court's own power to promulgate rules of
pleading, practice, and procedure under Section 5 (5), Article VIII supra. Albeit operatively interrelated,
these powers are nonetheless institutionally separate and distinct, each to be preserved under its own
sphere of authority. When Congress creates a court and delimits its jurisdiction, the procedure for
which its jurisdiction is exercised is fixed by the Court through the rules it promulgates. The first
paragraph of Section 14, RA 6770 is not a jurisdiction-vesting provision, as the Ombudsman
misconceives,227 because it does not define, prescribe, and apportion the subject matter jurisdiction of courts
to act on certiorari cases; the certiorari jurisdiction of courts, particularly the CA, stands under the relevant
sections of BP 129 which were not shown to have been repealed. Instead, through this provision, Congress
interfered with a provisional remedy that was created by this Court under its duly promulgated
rules of procedure, which utility is both integral and inherent to every court's exercise of judicial
power. Without the Court's consent to the proscription, as may be manifested by an adoption of
the same as part of the rules of procedure through an administrative circular issued therefor,
there thus, stands to be a violation of the separation of powers principle.
In addition, it should be pointed out that the breach of Congress in prohibiting provisional injunctions, such
as in the first paragraph of Section 14, RA 6770, does not only undermine the constitutional allocation of
powers; it also practically dilutes a court's ability to carry out its functions. This is so since a
particular case can easily be mooted by supervening events if no provisional injunctive relief is
extended while the court is hearing the same. Accordingly, the court's acquired jurisdiction, through
which it exercises its judicial power, is rendered nugatory. Indeed, the force of judicial power, especially
under the present Constitution, cannot be enervated due to a court's inability to regulate what occurs during
a proceeding's course. As earlier intimated, when jurisdiction over the subject matter is accorded by law and
has been acquired by a court, its exercise thereof should be undipped. To give true meaning to the judicial
power contemplated by the Framers of our Constitution, the Court's duly promulgated rules of procedure
should therefore remain unabridged, this, even by statute. Truth be told, the policy against provisional
injunctive writs in whatever variant should only subsist under rules of procedure duly promulgated by the
Court given its sole prerogative over the same.
The following exchange between Associate Justice Marvic Mario Victor F. Leonen (Justice Leonen) and the
Acting Solicitor General Florin T. Hilbay (Acting Solicitor General Hilbay) mirrors the foregoing observations:
JUSTICE LEONEN:
Okay. Now, would you know what rule covers injunction in the Rules of Court?
ACTING SOLICITOR GENERAL HILBAY:
Rule 58, Your Honor.

JUSTICE LEONEN:
58, that is under the general rubric if Justice Bersamin will correct me if I will be mistaken under the rubric
of what is called provisional remedies, our resident expert because Justice Peralta is not here so Justice
Bersamin for a while. So provisional remedy you have injunction, x x x.
xxxx
JUSTICE LEONEN:
Okay, Now, we go to the Constitution. Section 5, subparagraph 5 of Article VIII of the Constitution, if you
have a copy of the Constitution, can you please read that provision? Section 5, Article VIII the Judiciary
subparagraph 5, would you kindly read that provision?
ACTING SOLICTOR GENERAL HILBAY.
"Promulgate rules concerning the protection and enforcement of constitutional rights, pleading, practice and
procedure in all courts..."
JUSTICE LEONEN:
Okay, we can stop with that, promulgate rules concerning pleading, practice and procedure in all courts. This
is the power, the competence, the jurisdiction of what constitutional organ?
ACTING SOLICITOR GENERAL HILBAY:
The Supreme Court, Your Honor.
JUSTICE LEONEN:
The Supreme Court. This is different from Article VIII Sections 1 and 2 which we've already been discussed
with you by my other colleagues, is that not correct?
ACTING SOLICITOR GENERAL HILBAY:
Correct, Your Honor.
JUSTICE LEONEN:
Okay, so in Section 2, [apportion] jurisdiction that is the power of Congress, is that not correct?
ACTING SOLICITOR GENERAL HILBAY:
Correct, Your Honor.
JUSTICE LEONEN:
On the other hand, the power to promulgate rules is with the Court, is that not correct?
ACTING SOLICITOR GENERAL HILBAY:
Correct, Your Honor.
JUSTICE LEONEN:
A TRO and a writ of preliminary injunction, would it be a separate case or is it part of litigation in an ordinary
case?
ACTING SOLICITOR GENERAL HILBAY:
It is an ancillary remedy, Your Honor.
JUSTICE LEONEN:
In fact, it originated as an equitable remedy, is that not correct?
ACTING SOLICITOR GENERAL HILBAY:
Correct, Your Honor.
JUSTICE LEONEN:
In order to preserve the power of a court so that at the end of litigation, it will not be rendered
moot and academic, is that not correct?
ACTING SOLICITOR GENERAL HILBAY:
Correct, Your Honor.

JUSTICE LEONEN:
In that view, isn't Section 14, first paragraph, unconstitutional?
ACTING SOLICITOR GENERAL HILBAY:
No, Your Honor.
xxxx
JUSTICE LEONEN.
Can Congress say that a Court cannot prescribe Motions to Dismiss under Rule 16?
ACTING SOLICITOR GENERAL HILBAY:
Your Honor, Congress cannot impair the power of the Court to create remedies, x x x.
JUSTICE LEONEN.
What about bill [of] particulars, can Congress say, no Court shall have the power to issue the supplemental
pleading called the bill of t particular [s]? It cannot, because that's part of procedure...
ACTING SOLICITOR GENERAL HILBAY:
That is true.
JUSTICE LEONEN
...or for that matter, no Court shall act on a Motion to Quash, is that not correct?
ACTING SOLICITOR GENERAL HILBAY:
Correct.
JUSTICE LEONEN:
So what's different with the writ of injunction?
ACTING SOLICITOR GENERAL HILBAY:
Writ of injunction, Your Honor, requires the existence of jurisdiction on the part of a court that was created
by Congress. In the absence of jurisdiction... (interrupted)
JUSTICE LEONEN:
No, writ of injunction does not attach to a court. In other words, when they create a special agrarian court it
has all procedures with it but it does not attach particularly to that particular court, is that not correct?
ACTING SOLICTOR GENERAL HILBAY:
When Congress, Your Honor, creates a special court...
JUSTICE LEONEN:
Again, Counsel, what statute provides for a TRO, created the concept of a TRO? It was a Rule. A rule of
procedure and the Rules of Court, is that not correct?
ACTING SOLICITOR GENERAL HILBAY:
Yes, Your Honor.
JUSTICE LEONEN:
And a TRO and a writ of preliminary injunction does not exist unless it is [an] ancillary to a particular
injunction in a court, is that not correct?
ACTING SOLICITOR GENERAL HILBAY:
Correct, Your Honor.
xxxx228 (Emphasis supplied)
In Biraogo v. The Philippine Truth Commission of 2010,229 the Court instructed that "[i]t is through the
Constitution that the fundamental powers of government are established, limited and defined, and by which
these powers are distributed among the several departments. The Constitution is the basic and paramount
law to which all other laws must conform and to which all persons, including the highest officials of the land,
must defer." It would then follow that laws that do not conform to the Constitution shall be stricken down for

being unconstitutional.230
However, despite the ostensible breach of the separation of powers principle, the Court is not oblivious to
the policy considerations behind the first paragraph of Section 14, RA 6770, as well as other statutory
provisions of similar import. Thus, pending deliberation on whether or not to adopt the same, the Court,
under its sole prerogative and authority over all matters of procedure, deems it proper to declare as
ineffective the prohibition against courts other than the Supreme Court from issuing provisional injunctive
writs to enjoin investigations conducted by the Office of the Ombudsman, until it is adopted as part of the
rules of procedure through an administrative circular duly issued therefor.
Hence, with Congress interfering with matters of procedure (through passing the first paragraph of Section
14, RA 6770) without the Court's consent thereto, it remains that the CA had the authority to issue the
questioned injunctive writs enjoining the implementation of the preventive suspension order against Binay,
Jr. At the risk of belaboring the point, these issuances were merely ancillary to the exercise of the
CA's certiorari jurisdiction conferred to it under Section 9 (1), Chapter I of BP 129, as amended, and which it
had already acquired over the main CA-G.R. SP No. 139453 case.
IV.
The foregoing notwithstanding, the issue of whether or not the CA gravely abused its jurisdiction in issuing
the TRO and WPI in CA-G.R. SP No. 139453 against the preventive suspension order is a persisting objection
to the validity of said injunctive writs. For its proper analysis, the Court first provides the context of the
assailed injunctive writs.
A. Subject matter of the CA's iniunctive writs is the preventive suspension order.
By nature, a preventive suspension order is not a penalty but only a preventive measure. InQuimbo
v. Acting Ombudsman Gervacio,231 the Court explained the distinction, stating that its purpose is to
prevent the official to be suspended from using his position and the powers and prerogatives of
his office to influence potential witnesses or tamper with records which may be vital in the
prosecution of the case against him:
Jurisprudential law establishes a clear-cut distinction between suspension as preventive
measure and suspension as penalty. The distinction, by considering the purpose aspect of the suspensions,
is readily cognizable as they have different ends sought to be achieved.
Preventive suspension is merely a preventive measure, a preliminary step in an administrative
investigation. The purpose of the suspension order is to prevent the accused from using his
position and the powers and prerogatives of his office to influence potential witnesses or tamper
with records which may be vital in the prosecution of the case against him. If after such
investigation, the charge is established and the person investigated is found guilty of acts warranting his
suspension or removal, then he is suspended, removed or dismissed. This is the penalty.
That preventive suspension is not a penalty is in fact explicitly provided by Section 24 of Rule XIV of the
Omnibus Rules Implementing Book V of the Administrative Code of 1987 (Executive Order No. 292) and
other Pertinent Civil Service Laws.
Section. 24. Preventive suspension is not a punishment or penalty for misconduct in office but is considered
to be a preventive measure. (Emphasis supplied)
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Not being a penalty, the period within which one is under preventive suspension is not considered part of the
actual penalty of suspension. So Section 25 of the same Rule XIV provides:
Section 25. The period within which a public officer or employee charged is placed under preventive
suspension shall not be considered part of the actual penalty of suspension imposed upon the
employee found guilty.232 (Emphases supplied)
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The requisites for issuing a preventive suspension order are explicitly stated in Section 24, RA 6770:
Section 24. Preventive Suspension. - The Ombudsman or his Deputy may preventively suspend any officer
or employee under his authority pending an investigation, if in his judgment the evidence of guilt is
strong, and (a) the charge against such officer or employee involves dishonesty, oppression or
grave misconduct or neglect in the performance of duty; (b) the charges would warrant removal
from the service; or (c) the respondent's continued stay in office may prejudice the case filed

against him.
The preventive suspension shall continue until the case is terminated by the Office of the Ombudsman but
not more than six (6) months, without pay, except when the delay in the disposition of the case by the
Office of the Ombudsman is due to the fault, negligence or petition of the respondent, in which case the
period of such delay shall not be counted in computing the period of suspension herein provided. (Emphasis
and underscoring supplied)
In other words, the law sets forth two (2) conditions that must be satisfied to justify the issuance of an
order of preventive suspension pending an investigation, namely:
(1) The evidence of guilt is strong; and
(2) Either of the following circumstances co-exist with the first requirement:
(a) The charge involves dishonesty, oppression or grave misconduct or neglect in the performance of duty;
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(b) The charge would warrant removal from the service; or

(c) The respondent's continued stay in office may prejudice the case filed against him. 233

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B. The basis of the CA's injunctive writs is the condonation doctrine.

Examining the CA's Resolutions in CA-G.R. SP No. 139453 would, however, show that the Ombudsman's
non-compliance with the requisites provided in Section 24, RA 6770 was not the basis for the issuance of the
assailed injunctive writs.
The CA's March 16, 2015 Resolution which directed the issuance of the assailed TRO was based on the case
of Governor Garcia, Jr. v. CA234 (Governor Garcia, Jr.), wherein the Court emphasized that "if it were
established in the CA that the acts subject of the administrative complaint were indeed committed during
petitioner [Garcia's] prior term, then, following settled jurisprudence, he can no longer be administratively
charged."235 Thus, the Court, contemplating the application of the condonation doctrine, among others,
cautioned, in the said case, that "it would have been more prudent for [the appellate court] to have, at the
very least, on account of the extreme urgency of the matter and the seriousness of the issues raised in
the certiorari petition, issued a TRO x x x"236during the pendency of the proceedings.
Similarly, the CA's April 6, 2015 Resolution which directed the issuance of the assailed WPI was based on the
condonation doctrine, citing the case of Aguinaldo v. Santos237 The CA held that Binay, Jr. has an
ostensible right to the final relief prayed for, i.e., the nullification of the preventive suspension order, finding
that the Ombudsman can hardly impose preventive suspension against Binay, Jr. given that his re-election in
2013 as City Mayor of Makati condoned any administrative liability arising from anomalous activities relative
to the Makati Parking Building project from 2007 to 2013. 238 Moreover, the CA observed that although there
were acts which were apparently committed by Binay, Jr. beyond his first term , i.e., the alleged payments
on July 3, 4, and 24, 2013,239 corresponding to the services of Hillmarc's and MANA - still, Binay, Jr. cannot
be held administratively liable therefor based on the cases of Salalima v. Guingona, Jr.,240 and Mayor
Garcia v. Mojica,241 wherein the condonation dobtrine was applied by the Court although the payments
were made after the official's election, reasoning that the payments were merely effected pursuant to
contracts executed before said re-election.242
The Ombudsman contends that it was inappropriate for the CA to have considered the condonation doctrine
since it was a matter of defense which should have been raised and passed upon by her office during the
administrative disciplinary proceedings.243 However, the Court agrees with the CA that it was not precluded
from considering the same given that it was material to the propriety of according provisional injunctive
relief in conformity with the ruling in Governor Garcia, Jr., which was the subsisting jurisprudence at that
time. Thus, since condonation was duly raised by Binay, Jr. in his petition in CA-G.R. SP No. 139453, 244 the
CA did not err in passing upon the same. Note that although Binay, Jr. secondarily argued that the evidence
of guilt against him was not strong in his petition in CA-G.R. SP No. 139453, 245 it appears that the CA found
that the application of the condonation doctrine was already sufficient to enjoin the implementation of the
preventive suspension order. Again, there is nothing aberrant with this since, as remarked in the same case
ofGovernor Garcia, Jr., if it was established that the acts subject of the administrative complaint were indeed
committed during Binay, Jr.'s prior term, then, following the condonation doctrine, he can no longer be
administratively charged. In other words, with condonation having been invoked by Binay, Jr. as an

exculpatory affirmative defense at the onset, the CA deemed it unnecessary to determine if the evidence of
guilt against him was strong, at least for the purpose of issuing the subject injunctive writs.
With the preliminary objection resolved and the basis of the assailed writs herein laid down, the Court now
proceeds to determine if the CA gravely abused its discretion in applying the condonation doctrine.
C. The origin of the condonation doctrine.
Generally speaking, condonation has been defined as "[a] victim's express or implied forgiveness of an
offense, [especially] by treating the offender as if there had been no offense."246
The condonation doctrine - which connotes this same sense of complete extinguishment of liability as will be
herein elaborated upon - is not based on statutory law. It is a jurisprudential creation that originated from
the 1959 case of Pascual v. Hon. Provincial Board ofNueva Ecija,247 (Pascual),which was therefore
decided under the 1935 Constitution.
In Pascual, therein petitioner, Arturo Pascual, was elected Mayor of San Jose, Nueva Ecija, sometime in
November 1951, and was later re-elected to the same position in 1955. During his second term, or on
October 6, 1956, the Acting Provincial Governor filed administrative charges before the Provincial Board
of Nueva Ecija against him for grave abuse of authority and usurpation of judicial functions for acting on a
criminal complaint in Criminal Case No. 3556 on December 18 and 20, 1954. In defense, Arturo Pascual
argued that he cannot be made liable for the acts charged against him since they were committed during his
previous term of office, and therefore, invalid grounds for disciplining him during his second term. The
Provincial Board, as well as the Court of First Instance of Nueva Ecija, later decided against Arturo Pascual,
and when the case reached this Court on appeal, it recognized that the controversy posed a novel issue that is, whether or not an elective official may be disciplined for a wrongful act committed by him during his
immediately preceding term of office.
As there was no legal precedent on the issue at that time, the Court, in Pascual, resorted to
American authorities and "found that cases on the matter are conflicting due in part, probably, to
differences in statutes and constitutional provisions, and also, in part, to a divergence of views with respect
to the question of whether the subsequent election or appointment condones the prior
misconduct."248Without going into the variables of these conflicting views and cases, it proceeded to
state that:
The weight of authorities x x x seems to incline toward the rule denying the right to remove one
from office because of misconduct during a prior term, to which we fully subscribe.249 (Emphasis and
underscoring supplied)
The conclusion is at once problematic since this Court has now uncovered that there is really no established
weight of authority in the United States (US) favoring the doctrine of condonation, which, in the words of
Pascual, theorizes that an official's re-election denies the right to remove him from office due to a
misconduct during a prior term. In fact, as pointed out during the oral arguments of this case, at least
seventeen (17) states in the US have abandoned the condonation doctrine. 250 The Ombudsman aptly cites
several rulings of various US State courts, as well as literature published on the matter, to demonstrate the
fact that the doctrine is not uniformly applied across all state jurisdictions. Indeed, the treatment is
nuanced:
(1) For one, it has been widely recognized that the propriety of removing a public officer from his current
term or office for misconduct which he allegedly committed in a prior term of office is governed by the
language of the statute or constitutional provision applicable to the facts of a particular case (see In Re
Removal of Member of Council Coppola).251 As an example, a Texas statute, on the one hand, expressly
allows removal only for an act committed during a present term: "no officer shall be prosecuted or removed
from office for any act he may have committed prior to his election to office" (see State ex rel. Rowlings v.
Loomis).252 On the other hand, the Supreme Court of Oklahoma allows removal from office for "acts of
commission, omission, or neglect committed, done or omitted during a previous or preceding term of office"
(see State v. Bailey)253Meanwhile, in some states where the removal statute is silent or unclear, the case's
resolution was contingent upon the interpretation of the phrase "in office." On one end, the Supreme Court
of Ohio strictly construed a removal statute containing the phrase "misfeasance of malfeasance in office" and
thereby declared that, in the absence of clear legislative language making, the word "office" must be limited
to the single term during which the offense charged against the public officer occurred (seeState ex rel.

Stokes v. Probate Court of Cuyahoga County)254 Similarly, the Common Pleas Court of Allegheny County,
Pennsylvania decided that the phrase "in office" in its state constitution was a time limitation with regard to
the grounds of removal, so that an officer could not be removed for misbehaviour which occurred; prior to
the taking of the office (see Commonwealth v. Rudman)255The opposite was construed in the Supreme Court
of Louisiana which took the view that an officer's inability to hold an office resulted from the commission of
certain offenses, and at once rendered him unfit to continue in office, adding the fact that the officer had
been re-elected did not condone or purge the offense (see State ex rel. Billon v. Bourgeois).256 Also, in the
Supreme Court of New York, Apellate Division, Fourth Department, the court construed the words "in office"
to refer not to a particular term of office but to an entire tenure; it stated that the whole purpose of the
legislature in enacting the statute in question could easily be lost sight of, and the intent of the law-making
body be thwarted, if an unworthy official could not be removed during one term for misconduct for a
previous one (Newman v. Strobel).257
(2) For another, condonation depended on whether or not the public officer was a successor in the same
office for which he has been administratively charged. The "own-successor theory," which is recognized in
numerous States as an exception to condonation doctrine, is premised on the idea that each term of a reelected incumbent is not taken as separate and distinct, but rather, regarded as one continuous term of
office. Thus, infractions committed in a previous term are grounds for removal because a re-elected
incumbent has no prior term to speak of258 (see Attorney-General v. Tufts;259State v. Welsh;260Hawkins v.
Common Council of Grand Rapids;261Territory v. Sanches;262and Tibbs v. City of Atlanta).263
(3) Furthermore, some State courts took into consideration the continuing nature of an offense in cases
where the condonation doctrine was invoked. In State ex rel. Douglas v. Megaarden,264 the public officer
charged with malversation of public funds was denied the defense of condonation by the Supreme Court of
Minnesota, observing that "the large sums of money illegally collected during the previous years are still
retained by him." In State ex rel. Beck v. Harvey265 the Supreme Court of Kansas ruled that "there is no
necessity" of applying the condonation doctrine since "the misconduct continued in the present term of
office[;] [thus] there was a duty upon defendant to restore this money on demand of the county
commissioners." Moreover, in State ex rel. Londerholm v. Schroeder,266 the Supreme Court of Kansas held
that "insofar as nondelivery and excessive prices are concerned, x x x there remains a continuing duty on
the part of the defendant to make restitution to the country x x x, this duty extends into the present term,
and neglect to discharge it constitutes misconduct."
Overall, the foregoing data clearly contravenes the preliminary conclusion in Pascual that there is a "weight
of authority" in the US on the condonation doctrine. In fact, without any cogent exegesis to show
that Pascual had accounted for the numerous factors relevant to the debate on condonation, an outright
adoption of the doctrine in this jurisdiction would not have been proper.
At any rate, these US cases are only of persuasive value in the process of this Court's decision-making.
"[They] are not relied upon as precedents, but as guides of interpretation." 267 Therefore, the ultimate
analysis is on whether or not the condonation doctrine, as espoused in Pascual, and carried over in
numerous cases after, can be held up against prevailing legal norms. Note that the doctrine ofstare
decisis does not preclude this Court from revisiting existing doctrine. As adjudged in the case ofBelgica,
the stare decisis rule should not operate when there are powerful countervailing considerations against its
application.268 In other words, stare decisis becomes an intractable rule only when circumstances exist to
preclude reversal of standing precedent.269 As the Ombudsman correctly points out, jurisprudence, after all,
is not a rigid, atemporal abstraction; it is an organic creature that develops and devolves along with the
society within which it thrives.270 In the words of a recent US Supreme Court Decision, "[w]hat we can
decide, we can undecide."271
In this case, the Court agrees with the Ombudsman that since the time Pascual was decided, the legal
landscape has radically shifted. Again, Pascual was a 1959 case decided under the 1935 Constitution, which
dated provisions do not reflect the experience of the Filipino People under the 1973 and 1987 Constitutions.
Therefore, the plain difference in setting, including, of course, the sheer impact of the condonation doctrine
on public accountability, calls for Pascual's judicious re-examination.
D. Testing the Condonation Doctrine.
Pascual's ratio decidendi may be dissected into three (3) parts:
First, the penalty of removal may not be extended beyond the term in which the public officer was elected
for each term is separate and distinct:

Offenses committed, or acts done, during previous term are generally held not to furnish cause
for removal and this is especially true where the constitution provides that the penalty in proceedings for
removal shall not extend beyond the removal from office, and disqualification from holding office
for the term for which the officer was elected or appointed. (67 C.J.S. p. 248, citing Rice vs.
State, 161 S.W. 2d. 401; Montgomery vs. Nowell, 40 S.W. 2d. 418;People ex rel. Bagshaw vs.
Thompson, 130 P. 2d. 237; Board of Com'rs of Kingfisher County vs. Shutter, 281 P. 222; State vs.
Blake, 280 P. 388;In re Fudula, 147 A. 67; State vs. Ward, 43 S.W. 2d. 217).
The underlying theory is that each term is separate from other terms x x x.272
Second, an elective official's re-election serves as a condonation of previous misconduct, thereby cutting
the right to remove him therefor; and
[T]hat the reelection to office operates as a condonation of the officer's previous misconduct to the extent of
cutting off the right to remove him therefor. (43 Am. Jur. p. 45, citing Atty. Gen. vs. Hasty, 184 Ala. 121, 63
So. 559, 50 L.R.A. (NS) 553.273(emphasis supplied)
Third, courts may not deprive the electorate, who are assumed to have known the life and character of
candidates, of their right to elect officers:
As held in Conant vs. Grogan (1887) 6 N.Y.S.R. 322, cited in 17 A.I.R. 281, 63 So. 559, 50 LRA (NS) 553
The Court should never remove a public officer for acts done prior to his present term of office. To do
otherwise would be to deprive the people of their right to elect their officers. When the people have
elected a man to office, it must be assumed that they did this with knowledge of his life and
character, and that they disregarded or forgave his faults or misconduct, if he had been guilty of
any. It is not for the court, by reason of such faults or misconduct to practically overrule the will of the
people.274 (Emphases supplied)
The notable cases on condonation following Pascual are as follows:
(1) Lizares v. Hechanova275 (May 17, 1966) - wherein the Court first applied the condonation doctrine,
thereby quoting the above-stated passages from Pascual in verbatim.
(2) Insco v. Sanchez, et al.276 (December 18, 1967) - wherein the Court clarified that the condonation
doctrine does not apply to a criminal case. It was explained that a criminal case is different from an
administrative case in that the former involves the People of the Philippines as a community, and is a public
wrong to the State at large; whereas, in the latter, only the populace of the constituency he serves is
affected. In addition, the Court noted that it is only the President who may pardon a criminal offense.
(3) Aguinaldo v. Santos277 (Aguinaldo; August 21, 1992) - a case decided under the 1987
Constitution wherein the condonation doctrine was applied in favor of then Cagayan Governor Rodolfo E.
Aguinaldo although his re-election merely supervened the pendency of, the proceedings.
(4) Salalima v. Guinsona, Jr.278 (Salalima; May 22, 1996) -wherein the Court reinforced the
condonation doctrine by stating that the same is justified by "sound public policy." According to
the Court, condonation prevented the elective official from being "hounded" by administrative cases filed by
his "political enemies" during a new term, for which he has to defend himself "to the detriment of public
service." Also, the Court mentioned that the administrative liability condoned by re-election covered the
execution of the contract and the incidents related therewith. 279
(5) Mayor Garcia v. Mojica280 (Mayor Garcia; September 10, 1999) - wherein the benefit of the doctrine
was extended to then Cebu City Mayor Alvin B. Garcia who was administratively charged for his involvement
in an anomalous contract for the supply of asphalt for Cebu City, executed only four (4) days before the
upcoming elections. The Court ruled that notwithstanding the timing of the contract's execution, the
electorate is presumed to have known the petitioner's background and character, including his past
misconduct; hence, his subsequent re-election was deemed a condonation of his prior transgressions. More
importantly, the Court held that the determinative time element in applying the condonation doctrine should
be the time when the contract was perfected;this meant that as long as the contract was entered into
during a prior term, acts which were done to implement the same, even if done during a
succeeding term, do not negate the application of the condonation doctrine in favor of the
elective official.

(6) Salumbides, Jr. v. Office of the Ombudsman281 (Salumbides, Jr.; April 23, 2010) - wherein the Court
explained the doctrinal innovations in the Salalima and Mayor Garcia rulings, to wit:
Salalima v. Guingona, Jr. and Mayor Garcia v. Hon. Mojica reinforced the doctrine. The condonation rule
was applied even if the administrative complaint was not filed before the reelection of the public
official, and even if the alleged misconduct occurred four days before the elections,
respectively. Salalima did not distinguish as to the date of filing of the administrative complaint, as long as
the alleged misconduct was committed during the prior term, the precise timing or period of whichGarcia did
not further distinguish, as long as the wrongdoing that gave rise to the public official's culpability was
committed prior to the date of reelection.282 (Emphasis supplied)
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The Court, citing Civil Service Commission v. Sojor,283 also clarified that the condonation doctrine would
not apply to appointive officials since, as to them, there is no sovereign will to disenfranchise.
(7) And finally, the above discussed case of Governor Garcia, Jr. -wherein the Court remarked that it
would have been prudent for the appellate court therein to have issued a temporary restraining order
against the implementation of a preventive suspension order issued by the Ombudsman in view of the
condonation doctrine.
A thorough review of the cases post-1987, among others, Aguinaldo, Salalima, Mayor Garcia, andGovernor
Garcia, Jr. - all cited by the CA to justify its March 16, 2015 and April 6, 2015 Resolutions directing the
issuance of the assailed injunctive writs - would show that the basis for condonation under the prevailing
constitutional and statutory framework was never accounted for. What remains apparent from the text of
these cases is that the basis for condonation, as jurisprudential doctrine, was - and still remains - the abovecited postulates of Pascual, which was lifted from rulings of US courts where condonation was amply
supported by their own state laws. With respect to its applicability to administrative cases, the core premise
of condonation - that is, an elective official's re-election cuts qff the right to remove him for an
administrative offense committed during a prior term - was adopted hook, line, and sinker in our
jurisprudence largely because the legality of that doctrine was never tested against existing legal norms. As
in the US, the propriety of condonation is - as it should be -dependent on the legal foundation of the
adjudicating jurisdiction. Hence, the Court undertakes an examination of our current laws in order to
determine if there is legal basis for the continued application of the doctrine of condonation.
The foundation of our entire legal system is the Constitution. It is the supreme law of the land; 284thus, the
unbending rule is that every statute should be read in light of the Constitution. 285 Likewise, the Constitution
is a framework of a workable government; hence, its interpretation must take into account the complexities,
realities, and politics attendant to the operation of the political branches of government. 286
As earlier intimated, Pascual was a decision promulgated in 1959. Therefore, it was decided within the
context of the 1935 Constitution which was silent with respect to public accountability, or of the nature of
public office being a public trust. The provision in the 1935 Constitution that comes closest in dealing with
public office is Section 2, Article II which states that "[t]he defense of the State is a prime duty of
government, and in the fulfillment of this duty all citizens may be required by law to render personal military
or civil service."287 Perhaps owing to the 1935 Constitution's silence on public accountability, and considering
the dearth of jurisprudential rulings on the matter, as well as the variance in the policy considerations, there
was no glaring objection confronting the Pascual Court in adopting the condonation doctrine that originated
from select US cases existing at that time.
With the advent of the 1973 Constitution, the approach in dealing with public officers underwent a significant
change. The new charter introduced an entire article on accountability of public officers, found in Article XIII.
Section 1 thereof positively recognized, acknowledged, and declared that "[p]ublic office is a public
trust." Accordingly, "[p]ublic officers and employees shall serve with the highest degree of
responsibility, integrity, loyalty and efficiency, and shall remain accountable to the people."
After the turbulent decades of Martial Law rule, the Filipino People have framed and adopted the 1987
Constitution, which sets forth in the Declaration of Principles and State Policies in Article II that "[t]he
State shall maintain honesty and integrity in the public service and take positive and effective
measures against graft and corruption."288 Learning how unbridled power could corrupt public servants
under the regime of a dictator, the Framers put primacy on the integrity of the public service by declaring it
as a constitutional principle and a State policy. More significantly, the 1987 Constitution strengthened and

solidified what has been first proclaimed in the 1973 Constitution by commanding public officers to be
accountable to the people at all times:
Section 1. Public office is a public trust. Public officers and employees must at all times be accountable
to the people, serve them with utmost responsibility, integrity, loyalty, and efficiency and act
with patriotism and justice, and lead modest lives.
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In Belgica, it was explained that:

[t]he aphorism forged under Section 1, Article XI of the 1987 Constitution, which states that "public office is
a public trust," is an overarching reminder that every instrumentality of government should exercise their
official functions only in accordance with the principles of the Constitution which embodies the parameters of
the people's trust. The notion of a public trust connotes accountability x x x.289 (Emphasis supplied)

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The same mandate is found in the Revised Administrative Code under the section of the Civil Service
Commission,290 and also, in the Code of Conduct and Ethical Standards for Public Officials and Employees. 291
For local elective officials like Binay, Jr., the grounds to discipline, suspend or remove an elective local
official from office are stated in Section 60 of Republic Act No. 7160,292 otherwise known as the "Local
Government Code of 1991" (LGC), which was approved on October 10 1991, and took effect on January 1,
1992:
Section 60. Grounds for Disciplinary Action. - An elective local official may be disciplined, suspended, or
removed from office on any of the r following grounds:
(a) Disloyalty to the Republic of the Philippines;
(b) Culpable violation of the Constitution;
(c) Dishonesty, oppression, misconduct in office, gross negligence, or dereliction of duty;
(d) Commission of any offense involving moral turpitude or an offense punishable by at least prision
mayor;
(e) Abuse of authority;
(f) Unauthorized absence for fifteen (15) consecutive working days, except in the case of members of
the sangguniang panlalawigan, sangguniang panlunsod, sanggunian bayan, and sangguniang barangay;
(g) Application for, or acquisition of, foreign citizenship or residence or the status of an immigrant of another
country; and
(h) Such other grounds as may be provided in this Code and other laws.
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An elective local official may be removed from office on the grounds enumerated above by order of the
proper court.
Related to this provision is Section 40 (b) of the LGC which states that those removed from office as a
result of an administrative case shall be disqualified from running for any elective local position:
Section 40. Disqualifications. - The following persons are disqualified from running for any elective local
position:
xxxx
(b) Those removed from office as a result of an administrative case;
x x x x (Emphasis supplied)

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In the same sense, Section 52 (a) of the RRACCS provides that the penalty of dismissal from service
carries the accessory penalty of perpetual disqualification from holding public office:
Section 52. - Administrative Disabilities Inherent in Certain Penalties. a.

The penalty of dismissal shall carry with it cancellation of eligibility, forfeiture of retirement
benefits, perpetual disqualification from holding public office, and bar from taking the civil
service examinations.

In contrast, Section 66 (b) of the LGC states that the penalty of suspension shall not exceed the
unexpired term of the elective local official nor constitute a bar to his candidacy for as long as he meets the
qualifications required for the office. Note, however, that the provision only pertains to the duration of the
penalty and its effect on the official's candidacy. Nothing therein states that the administrative liability
therefor is extinguished by the fact of re-election:
Section 66. Form and Notice of Decision. - x x x.
xxxx
(b) The penalty of suspension shall not exceed the unexpired term of the respondent or a period of six (6)
months for every administrative offense, nor shall said penalty be a bar to the candidacy of the respondent
so suspended as long as he meets the qualifications required for the office.
Reading the 1987 Constitution together with the above-cited legal provisions now leads this Court to the
conclusion that the doctrine of condonation is actually bereft of legal bases.
To begin with, the concept of public office is a public trust and the corollary requirement of
accountability to the people at all times, as mandated under the 1987 Constitution, is plainly
inconsistent with the idea that an elective local official's administrative liability for a misconduct committed
during a prior term can be wiped off by the fact that he was elected to a second term of office, or even
another elective post. Election is not a mode of condoning an administrative offense, and there is
simply no constitutional or statutory basis in our jurisdiction to support the notion that an official elected for
a different term is fully absolved of any administrative liability arising from an offense done during a prior
term. In this jurisdiction, liability arising from administrative offenses may be condoned bv the
President in light of Section 19, Article VII of the 1987 Constitution which was interpreted in Llamas v.
Orbos293 to apply to administrative offenses:
The Constitution does not distinguish between which cases executive clemency may be exercised by the
President, with the sole exclusion of impeachment cases. By the same token, if executive clemency may be
exercised only in criminal cases, it would indeed be unnecessary to provide for the exclusion of
impeachment cases from the coverage of Article VII, Section 19 of the Constitution. Following petitioner's
proposed interpretation, cases of impeachment are automatically excluded inasmuch as the same do not
necessarily involve criminal offenses.
In the same vein, We do not clearly see any valid and convincing , reason why the President cannot grant
executive clemency in administrative cases. It is Our considered view that if the President can grant
reprieves, commutations and pardons, and remit fines and forfeitures in criminal cases, with much more
reason can she grant executive clemency in administrative cases, which are clearly less serious than criminal
offenses.
Also, it cannot be inferred from Section 60 of the LGC that the grounds for discipline enumerated therein
cannot anymore be invoked against an elective local official to hold him administratively liable once he is reelected to office. In fact, Section 40 (b) of the LGC precludes condonation since in the first place, an elective
local official who is meted with the penalty of removal could not be re-elected to an elective local position
due to a direct disqualification from running for such post. In similar regard, Section 52 (a) of the RRACCS
imposes a penalty of perpetual disqualification from holding public office as an accessory to the penalty of
dismissal from service.
To compare, some of the cases adopted in Pascual were decided by US State jurisdictions wherein the
doctrine of condonation of administrative liability was supported by either a constitutional or statutory
provision stating, in effect, that an officer cannot be removed by a misconduct committed during a previous
term,294 or that the disqualification to hold the office does not extend beyond the term in which the
official's delinquency occurred.295 In one case,296 the absence of a provision against the re-election of an
officer removed - unlike Section 40 (b) of the LGC-was the justification behind condonation. In another
case,297 it was deemed that condonation through re-election was a policy under their constitution - which
adoption in this jurisdiction runs counter to our present Constitution's requirements on public accountability.
There was even one case where the doctrine of condonation was not adjudicated upon but only invoked by a
party as a ground;298 while in another case, which was not reported in full in the official series, the crux of
the disposition was that the evidence of a prior irregularity in no way pertained to the charge at issue and

therefore, was deemed to be incompetent.299 Hence, owing to either their variance or inapplicability, none of
these cases can be used as basis for the continued adoption of the condonation doctrine under our existing
laws.
At best, Section 66 (b) of the LGC prohibits the enforcement of the penalty of suspension beyond the
unexpired portion of the elective local official's prior term, and likewise allows said official to still run for reelection This treatment is similar to People ex rel Bagshaw v. Thompson300 andMontgomery v. Novell301 both
cited in Pascual, wherein it was ruled that an officer cannot besuspended for a misconduct committed
during a prior term. However, as previously stated, nothing in Section 66 (b) states that the elective local
official's administrative liability is extinguished by the fact of re-election. Thus, at all events, no legal
provision actually supports the theory that the liability is condoned.
Relatedly it should be clarified that there is no truth in Pascual's postulation that the courts would be
depriving the electorate of their right to elect their officers if condonation were not to be sanctioned. In
political law, election pertains to the process by which a particular constituency chooses an individual to hold
a public office. In this jurisdiction, there is, again, no legal basis to conclude that election automatically
implies condonation. Neither is there any legal basis to say that every democratic and republican state has
an inherent regime of condonation. If condonation of an elective official's administrative liability would
perhaps, be allowed in this jurisdiction, then the same should have been provided by law under our
governing legal mechanisms. May it be at the time of Pascualor at present, by no means has it been shown
that such a law, whether in a constitutional or statutory provision, exists. Therefore, inferring from this
manifest absence, it cannot be said that the electorate's will has been abdicated.
Equally infirm is Pascual's proposition that the electorate, when re-electing a local official, are assumed to
have done so with knowledge of his life and character, and that they disregarded or forgave his faults or
misconduct, if he had been guilty of any. Suffice it to state that no such presumption exists in any
statute or procedural rule.302 Besides, it is contrary to human experience that the electorate would have
full knowledge of a public official's misdeeds. The Ombudsman correctly points out the reality that most
corrupt acts by public officers are shrouded in secrecy, and concealed from the public. Misconduct
committed by an elective official is easily covered up, and is almost always unknown to the
electorate when they cast their votes.303 At a conceptual level, condonation presupposes that the
condoner has actual knowledge of what is to be condoned. Thus, there could be no condonation of an
act that is unknown. As observed inWalsh v. City Council of Trenton304 decided by the New Jersey
Supreme Court:
Many of the cases holding that re-election of a public official prevents his removal for acts done in a
preceding term of office are reasoned out on the theory of condonation. We cannot subscribe to that theory
because condonation, implying as it does forgiveness, connotes knowledge and in the absence of knowledge
there can be no condonation. One cannot forgive something of which one has no knowledge.
That being said, this Court simply finds no legal authority to sustain the condonation doctrine in this
jurisdiction. As can be seen from this discourse, it was a doctrine adopted from one class of US rulings way
back in 1959 and thus, out of touch from - and now rendered obsolete by - the current legal regime. In
consequence, it is high time for this Court to abandon the condonation doctrine that originated from Pascual,
and affirmed in the cases following the same, such as Aguinaldo, Salalima, Mayor Garcia, and Governor
Garcia, Jr. which were all relied upon by the CA.
It should, however, be clarified that this Court's abandonment of the condonation doctrine should
beprospective in application for the reason that judicial decisions applying or interpreting the laws or the
Constitution, until reversed, shall form part of the legal system of the Philippines. 305 Unto this Court devolves
the sole authority to interpret what the Constitution means, and all persons are bound to follow its
interpretation. As explained in De Castro v. Judicial Bar Council.306
Judicial decisions assume the same authority as a statute itself and, until authoritatively abandoned,
necessarily become, to the extent that they are applicable, the criteria that must control the actuations, not
only of those called upon to abide by them, but also of those duty-bound to enforce obedience to them. 307
Hence, while the future may ultimately uncover a doctrine's error, it should be, as a general rule,
recognized as "good law" prior to its abandonment. Consequently, the people's reliance thereupon should be
respected. The landmark case on this matter is People v. Jabinal,308 wherein it was ruled:

[W]hen a doctrine of this Court is overruled and a different view is adopted, the new doctrine should be
applied prospectively, and should not apply to parties who had relied on the old doctrine and acted on the
faith thereof.
Later, in Spouses Benzonan v. CA,309 it was further elaborated:
[Pursuant to Article 8 of the Civil Code "judicial decisions applying or interpreting the laws or the
Constitution shall form a part of the legal system of the Philippines." But while our decisions form part of the
law of the land, they are also subject to Article 4 of the Civil Code which provides that "laws shall have no
retroactive effect unless the contrary is provided." This is expressed in the familiar legal maxim lex prospicit,
non respicit, the law looks forward not backward. The rationale against retroactivity is easy to perceive. The
retroactive application of a law usually divests rights that have already become vested or impairs the
obligations of contract and hence, is unconstitutional. 310
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Indeed, the lessons of history teach us that institutions can greatly benefit from hindsight and rectify its
ensuing course. Thus, while it is truly perplexing to think that a doctrine which is barren of legal anchorage
was able to endure in our jurisprudence for a considerable length of time, this Court, under a new
membership, takes up the cudgels and now abandons the condonation doctrine.
E. Consequence of ruling.
As for this section of the Decision, the issue to be resolved is whether or not the CA committed grave
abuse of discretion amounting to lack or excess of jurisdiction in issuing the assailed injunctive
writs.
It is well-settled that an act of a court or tribunal can only be considered as with grave abuse of
discretion when such act is done in a capricious or whimsical exercise of judgment as is equivalent
to lack of jurisdiction. The abuse of discretion must be so patent and gross as to amount to an evasion of
a positive duty or to a virtual refusal to perform a duty enjoined by law, or to act at all in contemplation of
law, as where the power is exercised in an arbitrary and despotic manner by reason of passion and
hostility.311 It has also been held that "grave abuse of discretion arises when a lower court or tribunal
patently violates the Constitution, the law or existing jurisprudence."312
As earlier established, records disclose that the CA's resolutions directing the issuance of the assailed
injunctive writs were all hinged on cases enunciating the condonation doctrine. To recount, the March 16,
2015 Resolution directing the issuance of the subject TRO was based on the case of Governor Garcia, Jr.,
while the April 6, 2015 Resolution directing the issuance of the subject WPI was based on the cases
of Aguinaldo, Salalima, Mayor Garcia, and again, Governor Garcia, Jr. Thus, by merely following settled
precedents on the condonation doctrine, which at that time, unwittingly remained "good law," it cannot be
concluded that the CA committed a grave abuse of discretion based on its legal attribution above.
Accordingly, the WPI against the Ombudsman's preventive suspension order was correctly issued.
With this, the ensuing course of action should have been for the CA to resolve the main petition
forcertiorari in CA-G.R. SP No. 139453 on the merits. However, considering that the Ombudsman, on
October 9, 2015, had already found Binay, Jr. administratively liable and imposed upon him the penalty of
dismissal, which carries the accessory penalty of perpetual disqualification from holding public office, for the
present administrative charges against him, the said CA petition appears to have been mooted. 313 As initially
intimated, the preventive suspension order is only an ancillary issuance that, at its core, serves the purpose
of assisting the Office of the Ombudsman in its investigation. It therefore has no more purpose - and
perforce, dissolves - upon the termination of the office's process of investigation in the instant administrative
case.
F. Exceptions to the mootness principle.
This notwithstanding, this Court deems it apt to clarify that the mootness of the issue regarding the validity
of the preventive suspension order subject of this case does not preclude any of its foregoing
determinations, particularly, its abandonment of the condonation doctrine. As explained in Belgica, '"the
moot and academic principle' is not a magical formula that can automatically dissuade the Court in resolving
a case. The Court will decide cases, otherwise moot, if: first, there is a grave violation of the
Constitution; second, the exceptional character of the situation and the paramount public interest is
involved; third, when the constitutional issue raised requires formulation of controlling principles to guide

the bench, the bar, and the public; and fourth, the case is capable of repetition yet evading review." 314 All of
these scenarios obtain in this case:
First, it would be a violation of the Court's own duty to uphold and defend the Constitution if it were not to
abandon the condonation doctrine now that its infirmities have become apparent. As extensively discussed,
the continued application of the condonation doctrine is simply impermissible under the auspices of the
present Constitution which explicitly mandates that public office is a public trust and that public officials shall
be accountable to the people at all times.
Second, the condonation doctrine is a peculiar jurisprudential creation that has persisted as a defense of
elective officials to escape administrative liability. It is the first time that the legal intricacies of this doctrine
have been brought to light; thus, this is a situation of exceptional character which this Court must ultimately
resolve. Further, since the doctrine has served as a perennial obstacle against exacting public accountability
from the multitude of elective local officials throughout the years, it is indubitable that paramount public
interest is involved.
Third, the issue on the validity of the condonation doctrine clearly requires the formulation of controlling
principles to guide the bench, the bar, and the public. The issue does not only involve an in-depth exegesis
of administrative law principles, but also puts to the forefront of legal discourse the potency of the
accountability provisions of the 1987 Constitution. The Court owes it to the bench, the bar, and the public to
explain how this controversial doctrine came about, and now, its reasons for abandoning the same in view of
its relevance on the parameters of public office.
And fourth, the defense of condonation has been consistently invoked by elective local officials against the
administrative charges filed against them. To provide a sample size, the Ombudsman has informed the Court
that "for the period of July 2013 to December 2014 alone, 85 cases from the Luzon Office and 24 cases from
the Central Office were dismissed on the ground of condonation. Thus, in just one and a half years, over a
hundred cases of alleged misconduct - involving infractions such as dishonesty, oppression, gross neglect of
duty and grave misconduct - were placed beyond the reach of the Ombudsman's investigatory and
prosecutorial powers."315 Evidently, this fortifies the finding that the case is capable of repetition and must
therefore, not evade review.
In any event, the abandonment of a doctrine is wholly within the prerogative of the Court. As mentioned, it
is its own jurisprudential creation and may therefore, pursuant to its mandate to uphold and defend the
Constitution, revoke it notwithstanding supervening events that render the subject of discussion moot.
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V.
With all matters pertaining to CA-G.R. SP No. 139453 passed upon, the Court now rules on the final issue on
whether or not the CA's Resolution316 dated March 20, 2015 directing the Ombudsman to comment on Binay,
Jr.'s petition for contempt in CA-G.R. SP No. 139504 is improper and illegal.
The sole premise of the Ombudsman's contention is that, as an impeachable officer, she cannot be the
subject of a charge for indirect contempt317 because this action is criminal in nature and the penalty therefor
would result in her effective removal from office.318 However, a reading of the aforesaid March 20, 2015
Resolution does not show that she has already been subjected to contempt proceedings. This issuance, in?
fact, makes it clear that notwithstanding the directive for the Ombudsman to comment, the CA has not
necessarily given due course to Binay, Jr.'s contempt petition:
Without necessarily giving due course to the Petition for Contempt respondents [Hon. Conchita
Carpio Morales, in her capacity as the Ombudsman, and the Department of Interior and Local Government]
are hereby DIRECTED to file Comment on the Petition/Amended and Supplemental Petition for Contempt
(CA-G.R. SP No. 139504) within an inextendible period of three (3) days from receipt hereof. (Emphasis and
underscoring supplied)
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Thus, even if the Ombudsman accedes to the CA's directive by filing a comment, wherein she may properly
raise her objections to the contempt proceedings by virtue of her being an impeachable officer, the CA, in
the exercise of its sound judicial discretion, may still opt not to give due course to Binay, Jr.'s contempt
petition and accordingly, dismiss the same. Sjmply put, absent any indication that the contempt petition has
been given due course by the CA, it would then be premature for this Court to rule on the issue. The
submission of the Ombudsman on this score is perforce denied.

WHEREFORE, the petition is PARTLY GRANTED. Under the premises of this Decision, the Court resolves
as follows:
(a) the second paragraph of Section 14 of Republic Act No. 6770 is declared UNCONSTITUTIONAL, while
the policy against the issuance of provisional injunctive writs by courts other than the Supreme Court to
enjoin an investigation conducted by the Office of the Ombudsman under the first paragraph of the said
provision is DECLARED ineffective until the Court adopts the same as part of the rules of procedure through
an administrative circular duly issued therefor;
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(b) The condonation doctrine is ABANDONED, but the abandonment is PROSPECTIVE in effect;

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(c) The Court of Appeals (CA) is DIRECTED to act on respondent Jejomar Erwin S. Binay, Jr.'s (Binay, Jr.)
petition for certiorari in CA-G.R. SP No. 139453 in light of the Office of the Ombudsman's supervening
issuance of its Joint Decision dated October 9, 2015 finding Binay, Jr. administratively liable in the six (6)
administrative complamts, docketed as OMB-C-A-15-0058, OMB-C-A-15-0059, OMB-C-A-15-0060, OMB-C-A15-0061, OMB-C-A-15-0062, and OMB-C-A-15-0063; and
(d) After the filing of petitioner Ombudsman Conchita Carpio Morales's comment, the CA isDIRECTED to
resolve Binay, Jr.'s petition for contempt in CA-G.R. SP No. 139504 with utmost dispatch.
SO ORDERED.

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G.R. No. 175289

August 31, 2011

CRISOSTOMO VILLARIN and ANIANO LATAYADA, Petitioners,

vs.
PEOPLE OF THE PHILIPPINES, Respondent.
DECISION
DEL CASTILLO, J.:
Mere possession of timber without the legal documents required under forest laws and regulations
makes one automatically liable of violation of Section 68, Presidential Decree (P.D.) No. 705, 1 as
amended. Lack of criminal intent is not a valid defense.
This petition for review on certiorari seeks to reverse the June 28, 2005 Decision 2 of the Court of
Appeals (CA) in CA-G.R. CR No. 26720 which affirmed in all respects the Judgment 3 of the Regional
Trial Court (RTC), Branch 38, Cagayan De Oro City, finding petitioners guilty beyond reasonable
doubt of violation of Section 68, P.D. No. 705, as amended. Likewise assailed in this petition is the
September 22, 2006 Resolution4 denying petitioners Motion for
Reconsideration.5
Factual Antecedents
In a Criminal Complaint6 filed before the Municipal Trial Court in Cities, Branch 4, Cagayan de Oro
City by Marcelino B. Pioquinto (Pioquinto), Chief of the Forest Protection and Law Enforcement Unit
under the TL Strike Force Team of Department of Environment and Natural Resources (DENR),
petitioner Aniano Latayada (Latayada) and three others namely, Barangay Captain Camilo Sudaria
(Sudaria) of Tagpangi, Cagayan de Oro City, Marlon Baillo (Baillo) and Cipriano Boyatac (Boyatac),
were charged with violation of Section 68, P.D. No. 705 as amended by Executive Order No. 277. 7

Subsequently, however, the Office of the City Prosecutor of Cagayan de Oro City issued a
Resolution8 dated March 13, 1996 recommending the filing of an Information for the aforesaid charge
not only against Latayada, Baillo and Boyatac but also against petitioner Crisostomo Villarin
(Villarin), then Barangay Captain of Pagalungan, Cagayan de Oro City. The dismissal of the
complaint against Sudaria was likewise recommended. Said Resolution was then approved by the
Office of the Ombudsman-Mindanao through a Resolution9 dated May 9, 1996 ordering the filing of
the Information in the RTC of Cagayan de Oro City.
Thus, on October 29, 1996, an Information10 was filed against petitioners Villarin and Latayada and
their co-accused Baillo and Boyatac, for violation of Section 68, P.D. No. 705 as follows:
That on or about January 13, 1996, in Pagalungan, Cagayan de Oro City, Philippines, and within the
jurisdiction of this Honorable Court, pursuant to RA 7975, the accused, Crisostomo Villarin, a public
officer being the Barangay Captain of Pagalungan, this City, with salary grade below 27, taking
advantage of his official position and committing the offense in relation to his office, and the other
above-named accused, all private individuals, namely: Marlon Baillo, Cipriano Boyatac, and Aniano
Latayada, confederating and mutually helping one another did then and there, willfully, unlawfully
and feloniously gather and possess sixty-three (63) pieces flitches of varying sizes belonging to the
Apitong specie with a total volume of Four Thousand Three Hundred Twenty Six (4,326) board feet
valued at P108,150.00, without any authority and supporting documents as required under existing
forest laws and regulation to the damage and prejudice of the government.
CONTRARY TO LAW.11
On January 14, 1997, Villarin, Boyatac and Baillo, filed a Motion for Reinvestigation. 12 They alleged
that the Joint Affidavit13 of the personnel of the DENR which became one of the bases in filing the
Information never mentioned Villarin as one of the perpetrators of the crime while the accusations
against Baillo and Boyatac were not based on the personal knowledge of the affiants. They also
asserted that their indictment was based on polluted sources, consisting of the sworn statements of
witnesses like Latayada and Sudaria, who both appeared to have participated in the commission of
the crime charged.
Instead of resolving the Motion for Reinvestigation, the RTC, in its Order 14 dated January 27, 1997,
directed Villarin, Boyatac, and Baillo to file their Motion for Reinvestigation with the Office of the
Ombudsman-Mindanao, it being the entity which filed the Information in Court. On March 31, 1997,
only Villarin filed a Petition for Reinvestigation15 but same was, however, denied by the Office of the
Ombudsman-Mindanao in an Order16dated May 15, 1997 because the grounds relied upon were not
based on newly discovered evidence or errors of fact, law or irregularities that are prejudicial to the
interest of the movants, pursuant to Administrative Order No. 07 or the Rules of Procedure of the
Office of the Ombudsman in Criminal Cases. The Office of the Ombudsman-Mindanao likewise
opined that Villarin was directly implicated by Latayada, his co-accused.
The RTC thus proceeded with the arraignment of the accused who entered separate pleas of not
guilty.17Thereafter, trial ensued.
The Version of the Prosecution
On December 31, 1995, at around five oclock in the afternoon, prosecution witness Roland Granada
(Granada) noticed that a public utility jeep loaded with timber stopped near his house. The driver,
petitioner Latayada, was accompanied by four to five other persons, one of whom was Boyatac while
the rest could not be identified by Granada.18 They alighted from the jeep and unloaded the timber 10
to 15 meters away from the Batinay bridge at Barangay Pagalungan, Cagayan De Oro City. Another

prosecution witness, Pastor Pansacala (Pansacala), also noticed the jeep with plate number MBB
226 and owned by Sudaria, loaded with timber.19 Being then the president of a community-based
organization which serves as a watchdog of illegal cutting of trees,20 Pansacala even ordered a
certain Mario Bael to count the timber.21
At six oclock in the evening of the same day, Barangay Captain Angeles Alarcon (Alarcon) 22 noticed
that the pile of timber was already placed near the bridge. Since she had no knowledge of any
scheduled repair of the Batinay bridge she was surprised to discover that the timber would be used
for the repair. After inquiring from the people living near the bridge, she learned that Latayada and
Boyatac delivered the timber.23
Another prosecution witness, Ariel Palanga (Palanga), testified that at seven oclock in the morning
of January 1, 1996, Boyatac bought a stick of cigarette from his store and requested him to cover the
pile of timber near the bridge for a fee. Palanga acceded and covered the pile with coconut leaves. 24
On January 13, 1996, at around ten oclock in the morning, prosecution witness Juan Casenas
(Casenas), a radio and TV personality of RMN-TV8, took footages of the timber 25 hidden and
covered by coconut leaves. Casenas also took footages of more logs inside a bodega at the other
side of the bridge. In the following evening, the footages were shown in a news program on
television.
On the same day, members of the DENR Region 10 Strike Force Team measured the timber which
consisted of 63 pieces of Apitong flitches and determined that it totaled 4,326 board feet 26 and
subsequently entrusted the same to Alarcon for safekeeping.
Upon further investigation, it was learned that the timber was requisitioned by Villarin, who was then
Barangay Captain of Pagulangan, Cagayan de Oro City. Villarin gave Sudaria the specifications for
the requisitioned timber. Thereafter, Boyatac informed Villarin that the timber was already delivered
on December 31, 1995.27
On January 18, 1996, Felix Vera Cruz (Vera Cruz), a security guard at the DENR Region 10 Office,
received and signed for the confiscated timber since the property custodian at that time was not
around.
The filing of the aforestated Information followed.
The Version of the Defense
In response to the clamor of the residents of Barangays Tampangan, Pigsag-an, Tuburan and
Taglinao, all in Cagayan De Oro City, Villarin, decided to repair the impassable Batinay bridge. The
project was allegedly with the concurrence of the Barangay Council.
Pressured to immediately commence the needed repairs, Villarin commissioned Boyatac to inquire
from Sudaria about the availability of timber without first informing the City Engineer. Sudaria asked
for the specifications which Villarin gave. Villarin then asked Baillo and Boyatac to attend to the
same. When the timber was already available, it was transported from Tagpangi to Batinay.
However, the timber flitches were seized by the DENR Strike Force Team and taken to its office
where they were received by Vera Cruz, the security guard on duty.
Ruling of the Regional Trial Court

In its Memorandum filed before the trial court, the defense notified the court of Boyatacs
demise.28 However, the trial court did not act on such notice. Instead, it proceeded to rule on the
culpability of Boyatac. Thus, in its Judgment, the trial court found herein petitioners and the
deceased Boyatac guilty as charged. On the other hand, it found the evidence against Baillo
insufficient. The dispositive portion of the Judgment reads:
WHEREFORE, in view of the foregoing findings, judgment is hereby rendered finding the accused
Crisostomo Villarin, Cipriano Boyatac and Aniano Latayada guilty beyond reasonable doubt of
violating Section 68 of Presidential Decree No. 705 as amended, and hereby sentences each of
them to suffer an indeterminate sentence of twelve (12) years of prision mayor as minimum to
seventeen (17) years of reclusion temporal as maximum.
Accused Marlon Baillo is hereby acquitted for lack of evidence.
SO ORDERED.29
In reaching said conclusions, the RTC noted that:
Without an iota of doubt, accused Crisostomo Villarin, being then a Barangay Captain of
Pagalungan, Cagayan de Oro City, was the one who procured the subject flitches, while accused
Aniano Latayada and Cipriano Boyatac mutually helped him and each other by transporting the
flitches from Sitio Batinay to the Pagalungan Bridge. The accused would like to impress upon the
Court that the subject fltiches were intended for the repair of the Pagalungan Bridge and were
acquired by virtue of Barangay Resolution No. 110 of Barangay Pagalungan. The Court is not
impressed by this lame excuse. There is no dispute that the flitches were intended for the repair of
the bridge. The Court finds it a laudable motive. The fact remains though that the said forest
products were obtained without the necessary authority and legal documents required under existing
forest laws and regulations.30
Petitioners filed a Motion for Reconsideration31 which was denied by the
RTC in its Order32 dated August 20, 2002.
Ruling of the Court of Appeals
Petitioners filed an appeal which was denied by the CA in its Decision dated June 28, 2005. The
dispositive portion of which reads:
WHEREFORE, in view of all the foregoing, the judgment of the court a quo finding [d]efendant[a]ppellants Crisostomo Villarin, Cipriano Boyatac and Aniano Latayada GUILTY beyond reasonable
doubt for violating Sec. 68 of Presidential Decree 705 is hereby AFFIRMED in toto. No
pronouncement as to cost.
1avvphi1

SO ORDERED.33
Petitioners filed a Motion for Reconsideration34 which the appellate court denied for lack of merit in its
Resolution35 promulgated on September 22, 2006.
Issues
Undeterred, petitioners filed the instant petition raising the following issues:

1. WHETHER X X X THE COURT OF APPEALS[,] ON [THE] MATTER OF PRELIMINARY

INVESTIGATION[,] DECIDED NOT IN ACCORD WITH JURISPRUDENCE OF THE
SUPREME COURT;
2. WHETHER X X X THE COURT OF APPEALS DEPARTED FROM WHAT THE SUPREME
COURT HAS ALWAYS BEEN SAYING, THAT, TO CONVICT AN ACCUSED ALL ELEMENTS
OF THE CRIME MUST BE PROVEN BEYOND REASONABLE DOUBT and;
3. WHETHER X X X THE COURT OF APPEALS[,] IN AFFIRMING THE PENALTY
IMPOSED BY THE COURT A QUO[,] DEPARTED FROM JURISPRUDENCE THAT EVEN
IN CRIMES [INVOLVING] VIOLATION OF SPECIAL LAWS[,] SPECIAL CONSIDERATION
SHOULD BE GIVEN TO CIRCUMSTANCES THAT [CAN BE CONSIDERED AS
MITIGATING HAD THE VIOLATION BEEN PENALIZED UNDER THE REVISED PENAL
CODE, IN ORDER TO REDUCE PENALTY].36
Petitioners argue that the refusal of the Ombudsman to conduct a reinvestigation is tantamount to a
denial of the right to due process. As Villarin was indicted in the Information despite his not being
included in the criminal complaint filed by Pioquinto of the TL Strike Force Team of the DENR, they
claim that he was not afforded a preliminary investigation. They also bewail the fact that persons
who appear to be equally guilty, such as Sudaria, have not been included in the Information. Hence,
they argue that the Ombudsman acted with grave abuse of discretion in denying their petition for
reinvestigation because it deprived Villarin of his right to preliminary investigation and in refusing and
to equally prosecute the guilty. They contend that the Ombudsman should not have relied on the
prosecutors Certification37 contained in the Information to the effect that a preliminary investigation
was conducted in the case.
Moreover, petitioners contend that the evidence was insufficient to prove their guilt beyond
reasonable doubt since they had no intention to possess the timber and dispose of it for personal
gain. They likewise claim that there was failure on the part of the prosecution to present the timber,
which were the object of the offense.
Our Ruling
The petition is unmeritorious.
Villarin was properly afforded his right to due process.
Records show that the investigating prosecutor received a criminal complaint charging Sudaria,
Latayada, Baillo and Boyatac with violation of Section 68 of P.D. No. 705, as amended. 38 The said
complaint did not state the known addresses of the accused. Neither was the notarized joint-affidavit
of the complainants attached thereto. The subpoena issued to the accused and the copy of their
counter-affidavits were also not part of the record. Moreover, the complaint did not include Villarin as
a respondent. However, said infirmities do not constitute denial of due process particularly on the
part of Villarin.
It is evidently clear from the Resolution dated March 13, 1996 of the Office of the City Prosecutor
that Villarin and all the accused participated in the scheduled preliminary investigation that was
conducted prior to the filing of the criminal case. 39 They knew about the filing of the complaint and
even denied any involvement in the illegal cutting of timber. They were also given the opportunity to
submit countervailing evidence to convince the investigating prosecutor of their innocence.

Foregoing findings considered, there is no factual basis to the assertion that Villarin was not afforded
a preliminary investigation. Accordingly, we find no grave abuse of discretion on the part of the Office
of the Ombudsman-Mindanao in denying Villarins motion for reconsideration. It validly relied on the
certification contained in the Information that a preliminary investigation was properly conducted in
this case. The certification was made under oath by no less than the public prosecutor, a public
officer who is presumed to have regularly performed his official duty.40 Besides, it aptly noted that
"Villarin was implicated by x x x Latayada in his affidavit dated January 22, 1996 before Marcelino B.
Pioquinto, Chief, Forest Protection and Law Enforcement Unit. The denial of Villarin cannot prevail
over the declaration of witnesses."41
Moreover, the absence of a proper preliminary investigation must be timely raised and must not have
been waived. This is to allow the trial court to hold the case in abeyance and conduct its own
investigation or require the prosecutor to hold a reinvestigation, which, necessarily "involves a reexamination and re-evaluation of the evidence already submitted by the complainant and the
accused, as well as the initial finding of probable cause which led to the filing of the Informations
after the requisite preliminary investigation."42
Here, it is conceded that Villarin raised the issue of lack of a preliminary investigation in his Motion
for Reinvestigation. However, when the Ombudsman denied the motion, he never raised this issue
again. He accepted the Ombudsman's verdict, entered a plea of not guilty during his arraignment
and actively participated in the trial on the merits by attending the scheduled hearings, conducting
cross-examinations and testifying on his own behalf. It was only after the trial court rendered
judgment against him that he once again assailed the conduct of the preliminary investigation in the
Motion for Reconsideration.43 Whatever argument Villarin may have regarding the alleged absence
of a preliminary investigation has therefore been mooted. By entering his plea, and actively
participating in the trial, he is deemed to have waived his right to preliminary investigation.
Petitioners also contend that Sudaria should also have been included as a principal in the
commission of the offense. However, whether Sudaria should or should not be included as coaccused can no longer be raised on appeal. Any right that the petitioners may have in questioning
the non-inclusion of Sudaria in the Information should have been raised in a motion for
reconsideration of the March 13, 1996 Resolution of the Office of the City Prosecutor which
recommended the dismissal of the complaint against Sudaria. 44 Having failed to avail of the proper
procedural remedy, they are now estopped from assailing his non-inclusion.
Two Offenses Penalized Under Sec. 68 of Presidential Decree No. 705.
Section 68 of P.D. No. 705, as amended, provides:
Section 68. Cutting, Gathering and/or Collecting Timber or Other Forest Products Without License.
Any person who shall cut, gather, collect, remove timber or other forest products from any forest
land, or timber from alienable or disposable public land, or from private land, without any authority, or
possess timber or other forest products without legal documents as required under existing forest
laws and regulations, shall be punished with the penalties imposed under Articles 309 and 310 of the
Revised Penal Code: Provided, that in the case of partnerships, associations, or corporations, the
officers who ordered the cutting, gathering, collection or possession shall be liable, and if such
officers are aliens, they shall, in addition to the penalty, be deported without further proceedings on
the part of the Commission on Immigration and Deportation.
"There are two distinct and separate offenses punished under Section 68 of P.D. No. 705, to wit:

(1) Cutting, gathering, collecting and removing timber or other forest products from any forest land,
or timber from alienable or disposable public land, or from private land without any authorization; and
(2) Possession of timber or other forest products without the legal documents required under existing
forest laws and regulations."45
The Information charged petitioners with the second offense which is consummated by the mere
possession of forest products without the proper documents.
We reviewed the records and hold that the prosecution had discharged the
burden of proving all the elements of the offense charged. The evidence of the prosecution proved
beyond reasonable doubt that petitioners were in custody of timber without the necessary legal
documents. Incidentally, we note that several transcripts of stenographic notes (TSNs) were not
submitted by the trial court. No explanation was provided for these missing TSNs. Notwithstanding
the incomplete TSNs, we still find that the prosecution was able to prove beyond reasonable doubt
petitioners culpability.
The prosecution adduced several documents to prove that timber was confiscated from petitioners. It
presented a Tally Sheet46 to prove that the DENR Strike Force Team examined the seized timber on
January 13, 1996. The number, volume and appraised value of said timber were also noted in the
Tally Sheet. Seizure receipts were also presented to prove that the confiscated timber were placed in
the custody of Alarcon47 and eventually taken to the DENR Office.48 There was a photograph of the
timber taken by the television crew led by Casenas.49
The prosecution likewise presented in evidence the testimonies of eyewitnesses Granada and
Pansacala who testified that Latayada and Boyatac were the ones who delivered the timber.50
More significantly, Villarin admitted that he was the one who commissioned the procurement of the
timber51 for the repair of the Batinay bridge. He even deputized Boyatac to negotiate with Sudaria
and gave LatayadaP2,000.00 to transport the logs. Boyatac later informed him of the delivery of
timber. However, he could not present any document to show that his possession thereof was legal
and pursuant to existing forest laws and regulations.
Relevant portions of the testimony of Villarin are as follows:
Q As Barangay Captain of Pagalungan, of course, you heard reports prior to the incident on
December 31, 1995 that Barangay Captain Camilo Sudaria was also engaged in supplying forest
products like forest lumber?
A Yes, because I always go to Cagayan de Oro and I can always ride on his jeepney.
Q And you were sure that information of yours was received by you and not only by one but several
persons from Barangay Tagpangi even up to Barangay Pagalungan?
A Thats true because he even has a record with the police.
Q And you learned [this] prior to January 1995?
A Yes, Sir.

Q And your information was even to the effect that Sudaria was supplying illegally cut lumber
regularly?
A What I have noticed because I always ride on his jeep wherein lumber was being loaded, the
lumber will be taken when it arrived in Lumbia, kilometer 5.
Q Even if there were already raids being conducted to the person of Camilo Sudaria, still he
continued to load illegally cut lumber?
A He slowed down after several arrest because maybe he was ashamed because he was the
Barangay Captain of Tagpangi.
Q And his arrest and the slackening of his activities of illegally cut lumber occurred prior to June
1995?
A Yes, sir.
Q [In spite] of your knowledge that he is engaged [in] illegally cut[ting] forest products, you as
Barangay Captain of Pagalungan transacted with him for the purpose of acquiring lumber [for] the
bridge at Pagalungan?
A As we rode together in his jeep, he informed me that he has some lumber to be used to build his
house and he told me he will sell it for the repair of the bridge in Pagalungan.
Q And because of that, in addition, you sent him the specifications of materials for the repair of the
bridge in Pagalungan?
A I let Boyatac go to him and [inquire] from him if he has those specifications.
Q And he communicated to you that he has available lumber of those specification?
A Yes, because he sent to Boyatac some requirements of the specifications and he let me sign it.
Q And after that, you closed the [deal] with Sudaria?
A Yes, because I sent somebody to him and we did not talk anymore.
Q And thereafter on December 31, 1995, according to your testimony before, Aniano Latayada
delivered the lumber flitches you ordered on board the passenger jeep of Camilo Sudaria?
A When the specifications were given, we were informed that the lumber were already there. So, it
was delivered.
Q Who informed you that the lumber were already delivered?
A Boyatac.
Q And he is referring to those lumber placed alongside the Batinay Bridge.
A Yes, Sir.

Q And even without personally inspecting it, you immediately paid Latayada the compensation for
the delivery of those lumber?
A There was already an advance payment for his delivery.
Q To whom did you give the advance?
A To Latayada.
Q You have not given the amount to Camilo Sudaria?
A No, Sir.
Q In fact, the money that you paid to Latayada was specifically for the transportation of the lumber
from Tagpangi to Batinay bridge?
A Yes, Sir.
PROS. GALARRITA:
Q And at that time, you paid Latayada P2,000 as payment of the lumber?
A Yes, Sir.
COURT:
Q Did you pay Latayada?
A Yes, Sir.
Q How much?
A P2,000.
Q And you gave this to the conductor?
A Yes, Sir.
Q You told the conductor to pay the money to Latayada?
A Yes, sir.
Q What did the conductor say?
A The conductor said that the money was for the payment for the transporting of lumber from
Tagpangi.52(Underscoring ours.)
Violation of Sec. 68 of Presidential Decree No. 705, as amended, is

malum prohibitum.
As a special law, the nature of the offense is malum prohibitum and as such, criminal intent is not an
essential element. "However, the prosecution must prove that petitioners had the intent to possess
(animus possidendi)" the timber.53 "Possession, under the law, includes not only actual possession,
but also constructive possession. Actual possession exists when the [object of the crime] is in the
immediate physical control of the accused. On the other hand, constructive possession exists when
the [object of the crime] is under the dominion and control of the accused or when he has the right to
exercise dominion and control over the place where it is found." 54
There is no dispute that petitioners were in constructive possession of the timber without the
requisite legal documents. Villarin and Latayada were personally involved in its procurement,
delivery and storage without any license or permit issued by any competent authority. Given these
and considering that the offense is malum prohibitum, petitioners contention that the possession of
the illegally cut timber was not for personal gain but for the repair of said bridge is, therefore,
inconsequential.
Corpus Delicti is the Fact of the Commission of the Crime
Petitioners argue that their convictions were improper because the corpus delicti had not been
established. They assert that the failure to present the confiscated timber in court was fatal to the
cause of the prosecution.
We disagree. "[C]orpus delicti refers to the fact of the commission of the crime charged or to the
body or substance of the crime. In its legal sense, it does not refer to the ransom money in the crime
of kidnapping for ransom or to the body of the person murdered"55 or, in this case, to the seized
timber. "Since the corpus delicti is the fact of the commission of the crime, this Court has ruled that
even a single witness uncorroborated testimony, if credible, may suffice to prove it and warrant a
conviction therefor. Corpus delicti may even be established by circumstantial evidence." 56
Here, the trial court and the CA held that the corpus delicti was established by the documentary and
testimonial evidence on record. The Tally Sheet, Seizure Receipts issued by the DENR and
photograph proved the existence of the timber and its confiscation. The testimonies of the petitioners
themselves stating in no uncertain terms the manner in which they consummated the offense they
were charged with were likewise crucial to their conviction.
We find no reason to deviate from these findings since it has been established that factual findings
of a trial court are binding on us, absent any showing that it overlooked or misinterpreted facts or
circumstances of weight and substance.57 The legal precept applies to this case in which the trial
courts findings were affirmed by the appellate court.58
The Proper Penalty
Violation of Section 68 of P.D. No. 705, as amended, is penalized as qualified theft under Article 310
in relation to Article 309 of the Revised Penal Code (RPC). The pertinent portions of these provisions
read:
Art. 310. Qualified Theft The crime of theft shall be punished by the penalties next higher by two
degrees than those respectively specified in the next preceding articles, if committed by a domestic
servant, or with grave abuse of confidence, or if the property stolen is motor vehicle, mail matter or
large cattle or consists of coconuts taken from the premises of the plantation or fish taken from a

fishpond or fishery, or if property is taken on the occasion of fire, earthquake, typhoon, volcanic
eruption, or any calamity, vehicular accident or civil disturbance.
Art. 309. Penalties. Any person guilty of theft shall be punished by:
1. The penalty of prision mayor in its minimum and medium periods, if the value of the thing stolen is
more than 12,000 pesos but does not exceed 22,000 pesos; but if the value of the thing stolen
exceeds the latter amount, the penalty shall be the maximum period of the one prescribed in this
paragraph, and one year for each additional ten thousand pesos, but the total of the penalty which
may be imposed shall not exceed twenty years. In such cases, and in connection with the accessory
penalties which may be imposed and for the purpose of the other provisions of this Code, the
penalty shall be termed prision mayor or reclusion temporal, as the case may be. x x x
The Information filed against the petitioners alleged that the 63 pieces of timber without the requisite
legal documents measuring 4,326 board feet were valued at P108,150.00. To prove this allegation,
the prosecution presented Pioquinto to testify, among others, on this amount. Tally Sheets and
Seizure Receipts were also presented to corroborate said amount. With the value of the timber
exceeding P22,000.00, the basic penalty is prision mayor in its minimum and medium periods to be
imposed in its maximum, the range of which is eight (8) years, eight (8) months and one (1) day to
ten (10) years. Since none of the qualifying circumstances in Article 310 of the RPC was alleged in
the Information, the penalty cannot be increased two degrees higher.
In determining the additional years of imprisonment, P22,000.00 is to be deducted
from P108,150.00, which results to P86,150.00. This remainder must be divided by P10,000.00,
disregarding any amount less thanP10,000.00. Consequently, eight (8) years must be added to the
basic penalty. Thus the maximum imposable penalty ranges from sixteen (16) years, eight (8)
months and one (1) day to eighteen (18) years of reclusion temporal.
Applying the Indeterminate Sentence Law, the minimum imposable penalty should be taken
anywhere within the range of the penalty next lower in degree, without considering the modifying
circumstances. The penalty one degree lower from prision mayor in its minimum and medium
periods is prision correccional in its medium and maximum periods, the range of which is from two
(2) years, four (4) months and one (1) day to six (6) years. Thus, the RTC, as affirmed by the CA,
erroneously fixed the minimum period of the penalty at twelve (12) years of prision mayor.
Finally, the case against Boyatac must be dismissed considering his demise even before the RTC
rendered its Judgment.
WHEREFORE, the petition is DENIED. The assailed Decision dated June 28, 2005 and the
Resolution dated September 22, 2006 in CA-G.R. CR No. 26720 are AFFIRMED with the
modificationS that petitioners Crisostomo Villarin and Aniano Latayada are each sentenced to suffer
imprisonment of two (2) years, four (4) months, and one (1) day of prision correccional, as minimum,
to sixteen (16) years, eight (8) months, and one (1) day of reclusion temporal, as maximum. The
complaint against Cipriano Boyatac is hereby DISMISSED.
SO ORDERED.
G.R. No. 130644 March 13, 1998
THE MINOR FRANCISCO JUAN LARRANAGA, Represented in this Suit by his mother,
MARGARITA G. LARRANAGA, petitioner,

vs.
COURT OF APPEALS and PEOPLE OF THE PHILIPPINES, respondents.
RESOLUTION

PUNO, J.:
The following are submitted before the Court for resolution:
1. an urgent motion to implement petitioner's release filed by petitioner on
November 3, 1997;
2. a motion for reconsideration of this Court's resolution of October 27, 1997
filed on November 17, 1997 by the counsels for the prosecution in Crim.
Case No. CBU-45303 and 45304;
3. a complaint filed by Judge Martin A. Ocampo, Presiding Judge, Regional
Trial Court, Branch 7, Cebu City, against petitioner's counsels, Attorneys
Raymundo A. Armovit, Ramon R. Teleron and Bernardito Florido, for
allegedly deliberately withholding from this Court the omnibus order,
supplemental order and order of arraignment he issued on October 17, 1997,
thus misleading the Court into issuing its resolution of October 27, 1997; and
4. an urgent motion to change the venue and the officers to conduct the
preliminary investigation filed by petitioner on November 17, 1997.
The antecedent facts:
Petitioner Francisco Juan Larranaga is charged with two counts of kidnapping and serious illegal
detention docketed as CBU-45303 and CBU-45304 pending before the Regional Trial Court (RTC),
Branch 7, Cebu City. He is presently detained at the Bagong Buhay Rehabilitation Center.
On October 1, 1997, petitioner, represented by his mother, Margarita G. Larranaga, filed with this
Court a petition for certiorari, prohibition and mandamus with writs of preliminary prohibitory and
mandatory injunction. Petitioner alleged that he was denied the right to preliminary investigation and
sought to annul the informations as well as the warrant of arrest issued in consequence thereof. In
the alternative, petitioner prayed that a preliminary investigation be conducted and that he be
released from detention pending the investigation. Petitioner filed a supplemental petition
for habeas corpus or bail on October 6, 1997.
1

On October 20, 1997, the Solicitor General filed a manifestation and motion in lieu of comment
submitting that petitioner should have been given a regular preliminary investigation before the filing
of the informations and the issuance of the warrant of arrest. The Solicitor General recommended
that petitioner be accorded his right to preliminary investigation and that he be released from
detention during the pendency thereof;
3

On October 27, 1997, we issued a resolution holding that petitioner was deprived of his right to
preliminary investigation when the City Prosecutor of Cebu insisted that he was only entitled to an
inquest investigation. Hence, we resolved:
4

1. to set aside the inquest investigation of petitioner and to order the Office of
the City Prosecutor of Cebu to conduct a regular preliminary investigation of
the petitioner in accord with Section 3, Rule 112;
2. to annul the Order for Detention During The Pendency of the Case issued
by Executive Judge Priscila Agana against the petitioner in Crim. Case No.
CBU-45303 and 45304;
3. to order the immediate release of petitioner pending his preliminary
investigation; and
4. to order the Presiding Judge of Br. VII, RTC of Cebu City to cease and
desist from proceeding with the arraignment and trial of petitioner in Crim.
Case No. CBU-45303 and 45304, pending the result of petitioner's
preliminary investigation.
On October 30, 1997, petitioner filed with the RTC of Cebu an urgent ex parte motion praying for his
immediate release pursuant to our October 27 resolution.
5

The following day, on October 31, 1997, Judge Martin A. Ocampo, Presiding Judge of RTC Branch
7, Cebu City, issued an order deferring the resolution of petitioner's motion. It stated that it would be
premature to act on the motion since the trial court has not yet received an official copy of our
October 27 resolution and that said resolution has not yet attained finality. Furthermore, Judge
Ocampo called the Court's attention to the fact that petitioner has been arraigned on October 14,
1997 and waived his right to preliminary
investigation.
6

On November 3, 1997, petitioner filed with this Court an urgent motion praying, among others, that
Judge Ocampo be directed to order petitioner's immediate release upon receipt of our October 27
resolution.
7

Judge Ocampo filed with this Court a letter-complaint dated November 3, 1997 alleging that
petitioner's counsels, Attorneys Raymundo A. Armovit, Ramon R. Teleron and Bernardito Florido,
deliberately withheld from this Court the omnibus order, supplemental order and order of
arraignment, all issued by him on October 14, 1997 in connection with Crim. Case No. CBU-45303
and 45304. Judge Ocampo alleged that by withholding said orders, petitioner's counsels unwittingly
misled the Court in its October 27 resolution.
8

On November 17, 1997, the counsels for the prosecution in Crim. Case No. CBU-45303 and 45304
filed a motion for reconsideration of our October 27 resolution. They raised the following
arguments:
9

1. Petitioner is charged with a continuing offense; hence, his arrest and

detention about two months after the abduction of the victims was lawful;
2. Since petitioner was arrested without a warrant, his case comes within the
purview of Section 7 of Rule 112, not under Section 3 thereof;
3. The filing of the informations in court and the issuance of the
corresponding warrants of arrest by Executive Judge Priscila S. Agana cured
whatever defect there was in petitioner's arrest and detention;

4. Petitioner was validly arraigned on October 14, 1997 and the validity of
such arraignment was not set aside by this tribunal;
5. The case of Sanchez v. Demetriou squarely applies to the instant case;
and
6. Petitioner is no longer a minor pursuant to R.A. 6809.
The Solicitor General, meanwhile, in its comment to petitioner's urgent motion for release, modified
its stance regarding the validity of petitioner's detention. It stated:
10

Considering that petitioner was arraigned (a supervening event after the filing of the petition
and before the issuance of the TRO), petitioner should be kept in detention without prejudice
to his right to preliminary investigation.
11

Petitioner also filed on November 17, 1997 an urgent motion to transfer the venue of the preliminary
investigation from Cebu City to Manila and to replace the Office of the City Prosecutor of Cebu with
the Office of the State Prosecutor, Department of Justice, as the authority to conduct the preliminary
investigation because of the extensive coverage of the proceedings by the Cebu media which
allegedly influenced the people's perception of petitioner's character and guilt.
12

The primary issues to be resolved are: (1) whether petitioner is entitled to a regular preliminary
investigation, and (2) whether petitioner should be released from detention pending the investigation.
We resolve the first issue in the affirmative.
The prosecutors argue that petitioner is entitled only to an inquest investigation under Section 7 of
Rule 112 since he was lawfully arrested without a warrant under Section 5, Rule 113 of the Revised
Rules of Court.
The prosecutors' argument is bereft of merit. Section 7 of Rule 112 applies only to persons lawfully
arrestedwithout a warrant. Petitioner in this case was, in the first place, not arrested either by a
peace officer or a private person. The facts show that on September 15, 1997, some members of the
Philippine National Police Criminal Investigation Group (PNP CIG) went to the Center for Culinary
Arts in Quezon City to arrest petitioner, albeitwithout warrant. Petitioner resisted the arrest and
immediately phoned his sister and brother-in-law. Petitioner's sister sought the aid of Atty. Raymundo
A. Armovit. Atty. Armovit, over the phone, dissuaded the police officers from carrying out the
warrantless arrest and proposed to meet with them at the CIG headquarters in Camp Crame,
Quezon City. The police officers, yielded and returned to the CIG headquarters. Petitioner, together
with his sister and brother-in-law also went to the CIG headquarters aboard their own vehicle. Atty.
Armovit questioned the legality of the warrantless arrest before CIG Legal Officer Ruben Zacarias.
After consulting with his superiors, Legal Officer Zacarias ordered to stop the arrest and allowed
petitioner to go home. Atty. Armovit made an undertaking in writing that he and petitioner would
appear before the Cebu City Prosecutor on September 17, 1997 for preliminary investigation.
13

An arrest is defined as the taking of a person into custody in order that he may be bound to answer
for the commission of an offense. It is made by an actual restraint of the person to be arrested, or
by his submission to the custody of the person making the arrest. An arrest signifies restraint on
person, depriving one of his own will and liberty, binding him to become obedient to the will of the
law. The foregoing facts show no restraint upon the person of petitioner. Neither do they show that
14

15

16

petitioner was deprived of his own will and liberty. Hence, Section 7 of Rule 112 does not apply to
petitioner.
To be sure, even if petitioner were arrested by the PNP CIG personnel, such arrest would still be
illegal because of the absence of a warrant. Section 5 of Rule 113 states when a warrantless arrest
is deemed lawful, thus:
Sec. 5. Arrest without a warrant; when lawful. A peace officer or a private person may,
without a warrant, arrest a person:
(a) When, in his presence, the person to be arrested has committed, is actually committing,
or is attempting to commit an offense;
(b) When an offense has in fact just been committed, and he has personal knowledge of
facts indicating that the person to be arrested has committed it; and
(c) When the person to be arrested is a prisoner who has escaped from a penal
establishment or place where he is serving final judgment or temporarily confined while his
case is pending, or has escaped while being transferred from one confinement to another.
In cases falling under paragraphs (a) and (b) hereof, the person arrested without a warrant
shall be forthwith delivered to the nearest police station or jail, and he shall be proceeded
against in accordance with Rule 112, Section 7.
It does not appear in the case at bar that petitioner has just committed, is actually committing or is
attempting to commit an offense when the police officers tried to arrest him on September 15, 1997.
In fact, petitioner was attending classes at the Center for Culinary Arts at that time.
We reject the prosecutors' argument that petitioner was actually committing a crime at the time of the
arrest since kidnapping with serious illegal detention is a continuing crime. In the case of Parulan
v. Director of Prisons cited by the prosecutors, kidnapping with illegal detention is considered a
continuing crime where the deprivation of liberty is persistent and continuing from one place to
another. The facts show that the alleged kidnapping was committed on July 16, 1997. One of the
victims, Marijoy Chiong, was found dead in Sitio Tanawan, Barangay Guadalupe, Carcar, Cebu on
July 18, 1997, while the other victim, Jacqueline Chiong, remains missing to date. There is no
showing that at the time of the arrest on September 15, 1997, Jacqueline Chiong was being
detained by petitioner who was then residing in Quezon City. Hence, the petitioner may not be
considered as continually committing the crime of kidnapping with serious illegal detention at the
time of the arrest.
17

Judge Martin Ocampo of RTC Branch 7, Cebu City, and the state prosecutors assert that petitioner
is no longer entitled to a preliminary investigation because he had previously waived his right to such
investigation. In his omnibus order dated October 14, 1997, Judge Ocampo held that petitioner
waived his right to preliminary investigation when he failed to appear during the preliminary
investigation set by the City Prosecutor in the afternoon of September 17, 1997, despite the express
warning that "failure of the counsel (to present the petitioner to the Cebu City Prosecutor on said
time and date) would be treated as a waiver of his client's right to preliminary investigation."
We disagree. A waiver, whether express or implied, must be made in clear and unequivocal manner.
Mere failure of petitioner and his counsel to appear before the City Prosecutor in the afternoon of
September 17, 1997 cannot be construed as a waiver of his right to preliminary investigation,

considering that petitioner has been vigorously invoking his right to a regular preliminary
investigation since the start of the proceedings before the City Prosecutor. At 9:00 in the morning of
September 17, 1997, petitioner's counsel appeared before the City Prosecutor of Cebu and moved
that petitioner be accorded a regular preliminary investigation. The City Prosecutor, however, denied
the motion, stating that petitioner is entitled only to an inquest investigation. Petitioner orally moved
for a reconsideration, to no avail. Petitioner assailed the decision of the City Prosecutor before the
Court of Appeals on a petition for certiorari, prohibition and mandamus. After the Court of Appeals
dismissed said petition, petitioner went to this Court, still asserting that he should be accorded a
regular preliminary investigation.
Furthermore, petitioner and his counsel cannot be faulted for their refusal to comply with the City
Prosecutor's directive to appear before him in the afternoon of September 17, 1997 for preliminary
investigation. As stated above, petitioner's counsel appeared before the City Prosecutor earlier that
day and specifically demanded a regular preliminary investigation for his client. The City Prosecutor,
however, insisted that petitioner was entitled only to an inquest investigation which he scheduled in
the afternoon of the same day. Petitioner and his counsel refused to submit to such investigation as
it might be construed as a waiver of petitioner's right to a regular preliminary investigation.
Our ruling is not altered by the fact that petitioner has been arraigned on October 14, 1997. The rule
is that the right to preliminary investigation is waived when the accused fails to invoke it before or at
the time of entering a plea at arraignment. Petitioner, in this case, has been actively and
consistently demanding a regular preliminary investigation even before he was charged in court.
Also, petitioner refused to enter a plea during the arraignment because there was a pending case in
this Court regarding his right to avail of a regular preliminary investigation. Clearly, the acts of
petitioner and his counsel are inconsistent with a waiver. Preliminary investigation is part of
procedural due process. It cannot be waived unless the waiver appears to be clear and informed.
18

19

The nest question is whether petitioner should be released from detention pending the investigation.
We rule in the negative.
The records show that on September 17, 1997, two informations were filed against petitioner for
kidnapping and serious illegal detention. Executive Judge Priscila Agana issued a warrant of arrest
on September 19, 1997. Petitioner was arrested on September 22, 1997 by virtue of said warrant.
We held in Sanchez v. Demetriou that the filing of charges and the issuance of the warrant of arrest
against a person invalidly detained will cure the defect of that detention or at least deny him the right
to be released because of such defect. The Court ruled:
20

21

22

The original warrantless arrest of the petitioner was doubtless illegal. Nevertheless, the
Regional Trial Court lawfully acquired jurisdiction over the person of the petitioner by virtue of
the warrant of arrest it issued on August 26, 1993 against him and the other accused in
connection with the rape-slay cases. It was belated, to be sure, but it was nonetheless legal.
Even on the assumption that no warrant was issued at all, we find that the trial court still
lawfully acquired jurisdiction over the person of the petitioner. The rule is that if the accused
objects to the jurisdiction of the court over his person, he may move to quash the
information, but only on that ground. If, as in this case, the accused raises other grounds in
the motion to quash, he is deemed to have waived that objection and to have submitted his
person to the jurisdiction of the court.
The Court notes that on August 13, 1993, after the petitioner was unlawfully arrested, Judge
Lanzanas issued a warrant of arrest against Antonio L. Sanchez in connection with Criminal

Cases Nos. 93-124634 to 93-124637 for violation of R.A. No. 6713. Pending the issuance of
the warrant of arrest for the rape-slay cases, this first warrant served as the initial justification
for his detention.
The Court also adverts to its uniform ruling that the filing of charges, and the issuance of the
corresponding warrant of arrest, against a person invalidly detained will cure the defect of
that detention or at least deny him the right to be released because of such defect.
Applicable by analogy to the case at bar is Rule 102 Section 4 of the Rules of Court that:
Sec. 4. When writ is not allowed or discharge authorized. If it appears that
the person alleged to be restrained of his liberty is in the custody of an officer
under process issued by a court or judge or by virtue of a judgment or order
of a court of record, and that the court or judge had jurisdiction to issue the
process, render the judgment, or make the order, the writ shall not be
allowed; or if the jurisdiction appears after the writ is allowed, the person shall
not be discharged by reason of any informality or defect in the process,
judgment, or order. Nor shall anything in this rule be held to authorize the
discharge of a person charged with or convicted of an offense in the
Philippines or of a person suffering imprisonment under lawful judgment.
In one case, the petitioner sued on habeas corpus on the ground that she had been arrested
by virtue of a John Doe warrant. In their return, the respondents declared that a new warrant
specifically naming her had been issued, thus validating her detention. While frowning at the
tactics of the respondents, the Court said:
The case has, indeed, become moot and academic inasmuch as the new
warrant of arrest complies with the requirements of the Constitution and the
Rules of Court regarding the particular description of the person to be
arrested. While the first warrant was unquestionably void, being a general
warrant, release of the petitioner for that reason will be a futile act as it will be
followed by her immediate re-arrest pursuant to the new and valid warrant,
returning her to the same prison she will just have left. This Court will not
participate in such a meaningless charade.
The same doctrine has been consistently followed by the Court more recently in the Umil
case. (citations omitted)
23

We hold, therefore, that petitioner's detention at the Bagong Buhay Rehabilitation Center is legal in
view of the information and the warrant of arrest against him. The absence of a preliminary
investigation will not justify petitioner's release because such defect did not nullify the information
and the warrant of arrest against him. We ruled in Sanciangco, Jr. v. People:
24

25

The absence of preliminary investigations does not affect the court's jurisdiction over the
case. Nor do they impair the validity of the information or otherwise render it defective; but, if
there were no preliminary investigations and the defendants, before entering their plea, invite
the attention of the court to their absence, the court, instead of dismissing the information,
should conduct it or remand the case to the inferior court so that the preliminary investigation
may be conducted.
26

As regards petitioner's motion to change the venue and the authority to conduct the preliminary
investigation, we are constrained to dismiss the same for lack of jurisdiction. The holding of a
preliminary investigation is a function of the Executive Department and not of the

Judiciary. Petitioner should therefore address their plea to the Department of Justice that has
control and supervision over the conduct of preliminary investigations.
27

Nonetheless, even if the Court had jurisdiction over the issue, petitioner's motion should still be
denied because it failed to allege and prove that the City Prosecutor of Cebu has been actually
affected by the publicity. We held inWebb v. De Leon:
28

Be that as it may, we recognize that pervasive and prejudicial publicity under certain
circumstances can deprive an accused of his due process right to fair trial. Thus,
in Martelino, et al. vs. Alejandro, et al., we held that to warrant a finding of prejudicial
publicity there must be allegation and proof that the judges have been unduly influenced, not
simply that they might be, by the barrage of publicity. In the case at bar, we find nothing in
the records that will prove that the tone and content of the publicity that attended the
investigation of petitioners fatally infected the fairness and impartiality of the DOJ Panel.
Petitioners cannot just rely on the subliminal effects of publicity on the sense of fairness of
the DOJ Panel, for these are basically unbeknown and beyond knowing. To be sure, the DOJ
Panel is composed of an Assistant Chief State Prosecutor and Senior State Prosecutors.
Their long experience in criminal investigation is a factor to consider in determining whether
they can easily be blinded by the klieg lights of publicity. Indeed, their 26-page Resolution
carries no indubitable indicia of bias for it does not appear that they considered any extrarecord evidence except evidence properly adduced by the parties. The length of time the
investigation was conducted despite its summary nature and the generosity with which they
accommodated the discovery motions of petitioners speak well of their fairness. At no
instance, we note, did petitioners seek the disqualification of any member of the DOJ Panel
on the ground of bias resulting from their bombardment of prejudicial publicity.
29

We further held in People v. Teehankee:

30

We cannot sustain appellant's claim that he was denied the right to impartial trial due to
prejudicial publicity. It is true that the print and broadcast media gave the case at bar
pervasive publicity, just like all high profile and high stake criminal trials. Then and now, we
rule that the right of an accused to a fair trial is not incompatible to a free press. To be sure,
responsible reporting enhances an accused's right to a fair trial for, as well pointed out, "a
responsible press has always been regarded as the handmaiden of effective judicial
administration, especially in the criminal field . . . ." The press does not simply publish
information about trials but guards against the miscarriage of justice by subjecting the police,
prosecutors, and judicial processes to extensive public scrutiny and criticism.
Pervasive publicity is not per se prejudicial to the right of an accused to fair trial. The mere
fact that the trial of the appellant was given a day-to-day, gavel-to-gavel coverage does not
by itself prove that the publicity so permeated the mind of the trial judge and impaired his
impartiality. For one, it is impossible to seal the minds of members of the bench from pre-trial
and other off-court publicity of sensational criminal cases. The state of the art of our
communication system brings news as they happen straight to our breakfast tables and to
our bedrooms. These news form part of our everyday menu of the facts and fictions of life.
For another, our idea of a fair and impartial judge is not that of a hermit who is out of touch
with the world. We have not installed the jury system whose members are overly protected
from publicity lest they lose their impartiality. Criticisms against the jury system are mounting
and Mark Twain's wit and wisdom put them all in better perspective when he observed:
"When a gentleman of high social standing, intelligence, and probity swears that testimony
given under the same oath will outweigh with him, street talk and newspaper reports based
upon mere hearsay, he is worth a hundred jurymen who will swear to their own ignorance

and stupidity . . . . Why could not the jury law be so altered as to give men of brains and
honesty an equal chance with fools and miscreants?" Our judges are learned in the law and
trained to disregard off-court evidence and on-camera performances of parties to a litigation.
Their mere exposure to publications and publicity stunts does not per se fatally infect their
impartiality.
At best, appellant can only conjure possibility of prejudice on the part of the trial judge due to
the barrage of publicity that characterized the investigation and trial of the case. In Martelino,
et al. v. Alejandro, et al., we rejected this standard of possibility of prejudice and adopted the
test of actual prejudice as we ruled that to warrant a finding or prejudicial publicity, there
must be allegation and proof that the judges have been unduly influenced, not simply that
they might be, by the barrage of publicity. In the case at bar, the records do not show that the
trial judge developed actual bias against appellant as a consequence of the extensive media
coverage of the pre-trial and trial of his case. The totality of circumstances of the case does
not prove this actual bias and he has not discharged the burden.
31

We likewise dismiss the complaint filed by Judge Martin A. Ocampo against Attorneys Raymundo A.
Armovit, Ramon R. Teleron and Bernardito Florido for lack of concrete evidence to prove that said
lawyers deliberately withheld from the Court the orders he issued with intent to mislead the Court.
Finally, we also deny the motion of the prosecutors to dismiss the petition on the ground that it was
not filed by the proper party. The prosecutors argue that petitioner Francisco Juan Larranaga is no
longer a minor under R.A. 6809, thus, his mother, Margarita G. Larranaga, does not have the
authority to file the instant petition as his representative. It appears, however, that on October 6,
1997, petitioner's mother filed a supplemental petition forhabeas corpus on his behalf. This
converted the petition at bar to one for habeas corpus. Section 3, Rule 102 of the Revised Rules of
Court states that a petition for habeas corpus may be filed either by the party for whose relief it is
intended or by some person on his behalf.
IN VIEW WHEREOF, we resolve to: (1) REITERATE our order to the Office of the City Prosecutor of
Cebu to conduct a regular preliminary investigation of petitioner and to the Presiding Judge of RTC,
Branch 7, Cebu City to cease and desist from proceeding with the trial of petitioner until a
preliminary investigation shall have been conducted; (2) SET ASIDE our order to immediately
release petitioner pending the preliminary investigation and thus DENY petitioner's urgent motion to
implement petitioner's release; (3) DISMISS Judge Ocampo's complaint against Attorneys
Raymundo A. Armovit, Ramon R. Teleron and Bernardito Florido; and (4) DENY petitioner's motion
to change the venue and the authority to conduct the preliminary investigation.
SO ORDERED.
G.R. No. 170288

September 22, 2006

PEDRO E. BUDIONGAN, JR., Municipal Mayor; JOSIL E. TRABAJO, Municipal Vice Mayor and
Presiding Officer of the Sangguniang Bayan; FULGENCIO V. PAA, Municipal Treasurer;
TACIANA B. ESPEJO, Municipal Budget Officer; and SB Members: RUFINO G. ADLAON, TITO
R. MONTAJES, MARIO M. SORIA, ALFONSO L. UNAJAN, CARLITO B. TORREFRANCA,
VICENTE A. TORREFRANCA, JR., etitioners,
vs.
HON. JACINTO M. DELA CRUZ, JR., Asst. Special Prosecutor I; HON. CORNELIO L. SONIDO,
Acting Director, Prosecution Bureau IV; HON. ROBERT E. KALLOS, Deputy Special
Prosecutor; HON. DENNIS M. VILLA IGNACIO, The Special Prosecutor; HON. WENDELL E.
BARRERAS-SULIT, Acting Director, Case Assessment, Review and Re-investigation Bureau;

and OFFICE OF THE SPECIAL PROSECUTOR, public respondents.

VALERIANO U. NADALA, ARLENE PAINAGAN-PALGAN, private respondents.
DECISION
YNARES-SANTIAGO, J.:
This Petition for Certiorari under Rule 65 of the Rules of Court assails the Memorandum 1 dated April
28, 2004 of the Office of the Special Prosecutor, Office of the Ombudsman, recommending that
petitioners be charged with violation of Section 3(e) of Republic Act (R.A.) No. 3019 and petitioner
Pedro E. Budiongan with violation of Section 3(h) of R.A. No. 3019. Also assailed is the
Resolution2 dated October 19, 2005 denying petitioners' motion for reconsideration.
The antecedent facts are as follows:
By virtue of Municipal Ordinance No. 2, series of 2001, the Municipality of Carmen, Bohol
appropriated the amount of P450,000.00 for the purchase of a road roller for the municipality.
However, on November 16, 2001, the Municipal Development Council through Resolution No. 3
recommended that the amount of P450,000.00 be realigned and used for the asphalt laying of a
portion of the Tan Modesto Bernaldez Street.3 The proposed realignment was included in the
December 21, 2001 agenda of the Sangguniang Bayan of Carmen but discussion thereon was
deferred.
On February 6, 2002, petitioner Municipal Treasurer, Fulgencio V. Paa, issued a Certificate of
Availability of Funds for the project. Thereafter, the Office of the Municipal Engineer prepared a
Program of Works and Cost Estimates duly noted/approved by Municipal Budget Officer Taciana B.
Espejo and Mayor Budiongan.
Bidding was conducted on March 5, 2002. The next day, March 6, 2002, Mayor Budiongan issued
the Notice of Award and Notice to Commence Work in favor of Herbert Malmis General Merchandise
and Contractor, Inc. who emerged as the lowest complying bidder. On March 22, 2002, the
Sangguniang Bayan passed Resolution No. 60,4 series of 2002, authorizing Mayor Budiongan to
sign and enter into contract with Malmis relative to the above project in the amount of P339,808.00.
With such authority, Malmis commenced with the project.
Thereafter, it was discovered that there was yet no ordinance approving the realignment of the
funds. Thus, on May 17, 2002, the Sangguniang Bayan passed Ordinance No. 8, 5 series of 2002,
approving the realignment of the fund. On June 14, 2002, Malmis was paid the contract price.
On July 3, 2002, private respondents Arlene P. Palgan and Valeriano U. Nadala filed a
complaint6 against the petitioners before the Office of the Deputy Ombudsman for Visayas alleging
illegality in the conduct of the bidding, award and notice to commence work since there was no fund
appropriated for the purpose.
On July 31, 2003, the Office of the Deputy Ombudsman for Visayas found probable cause and
recommended the filing of an information for violation of Article 2207 of the Revised Penal Code
against the petitioners. However, the complaint against Hermosila Logrono, Desiderio Gudia, Jr. and
Herbert Malmis was dismissed for lack of merit.8
Upon review, the Case Assessment, Review and Reinvestigation Bureau of the Office of the Special
Prosecutor, issued the assailed Memorandum dated April 28, 2004, modifying the charge from

violation of Article 220 of the Revised Penal Code to (1) violation of Section 3(e) of R.A. No. 3019
against petitioners for allegedly giving unwarranted benefit to Malmis and (2) violation of Section 3(h)
of R.A. No. 3019 against petitioner Budiongan for allegedly "directly or indirectly having financial or
pecuniary interest in a contract or transaction in connection with which he intervenes or takes part in
his official capacity."
Thus, two separate Informations were filed before the Sandiganbayan (1) for violation of Section 3(e)
of R.A. No. 3019 against the petitioners docketed as Criminal Case No. 28075 and (2) for violation of
Section 3(h) of R.A. No. 3019 against petitioner Budiongan docketed as Criminal Case No. 28076.
Thereafter, petitioners filed a Motion to Quash9 the information charging them with violation of Sec.
3(e) of R.A. No. 3019. In a Resolution10 dated June 10, 2005, the Sandiganbayan granted the motion
to quash and remanded Criminal Case No. 28075 to the Office of the Ombudsman for amendment
of the Information. It held that although Malmis benefited from the contract, the same is not
unwarranted considering that the project was implemented, executed and completed.
On June 27, 2005, an Amended Information11 was filed charging petitioners with violation of Sec. 3(e)
of R.A. No. 3019, alleging that petitioners, by prematurely awarding to Malmis the project despite the
absence of funds specifically appropriated for such purpose, and thereafter paying the contract price
from the Municipal Treasury which was originally appropriated for the purchase of a road roller,
caused damage and undue injury to the government.
Finding that the Amended Information contains all the material averments necessary to make out a
case for the first mode of violating Section 3(e) of R.A. No. 3019, i.e., causing any undue injury to
any party, including the government, the Sandiganbayan admitted the Amended Information in its
Resolution dated August 18, 2005.12
On even date, petitioners filed with the Sandiganbayan a Motion for Leave of Court to File Motion for
Reinvestigation13 arguing that the above Informations were filed without affording them the
opportunity to file counter-affidavits to answer/rebut the modified charges. On September 20, 2005,
the Sandiganbayan issued a Resolution14 denying the motion insofar as Criminal Case No. 28076 is
concerned. It held that it is too late in the day to remand the case for reinvestigation considering that
Budiongan had already been arraigned and the case had long been set for pre-trial proceedings,
with both parties having filed their respective briefs. As regards Criminal Case No. 28075, the
Sandiganbayan noted that although the conduct of the preliminary investigation was regular,
petitioners however were not given the opportunity to seek reconsideration of the modified charges.
Thus, it granted leave to the petitioners to file with the Office of the Special Prosecutor a motion for
reconsideration (not a motion for reinvestigation) of the said office's Memorandum dated April 28,
2004.
Petitioners filed a Motion for Reconsideration with the Office of the Special Prosecutor which was
denied for lack of merit in the Resolution dated October 19, 2005.
Hence, this petition raising the following issues:
I. WHETHER PUBLIC RESPONDENTS ACTED WITH GRAVE ABUSE OF DISCRETION
AMOUNTING TO LACK OR IN EXCESS OF JURISDICTION IN REJECTING THE
FINDINGS AND AMENDING/MODIFYING THE RESOLUTION OF THE GRAFT
INVESTIGATING OFFICER, OMBUDSMAN VISAYAS, AND IN FILING THE INFORMATION
FOR VIOLATION OF SEC. 3(e) OF RA 3019 WITHOUT AFFORDING PETITIONERS THE
OPPORTUNITY TO PRESENT THEIR COUNTER EVIDENCE IN A RE-INVESTIGATION;

II. WHETHER THE REFUSAL OR FAILURE TO CONDUCT A RE-INVESTIGATION HAS

VIOLATED PETITIONERS' RIGHT TO DUE PROCESS;
III. WHETHER PUBLIC RESPONDENTS ACTED WITH GRAVE ABUSE OF DISCRETION
AMOUNTING TO LACK OR IN EXCESS OF JURISDICTION IN ISSUING RESOLUTIONS
DATED APRIL 28, 2004 AND OCTOBER 19, 2005 FINDING PROBABLE CAUSE FOR
VIOLATION OF SEC. 3(e) OF RA 3019 AGAINST HEREIN PETITIONERS; and
IV. WHETHER PUBLIC RESPONDENTS ACTED WITH GRAVE ABUSE OF DISCRETION
AMOUNTING TO LACK OR IN EXCESS OF JURISDICTION IN FILING THE
INFORMATION FOR VIOLATION OF SEC.3(e) OF RA 3019 AGAINST PETITIONERS IN
THE SANDIGANBAYAN DOCKETED AS CRIMINAL CASE NO. 28075.
Petitioners maintain that the modification of the charge from violation of Article 220 of the Revised
Penal Code to violation of Sections 3(e) and 3(h) of R.A. No. 3019 denied their rights to due process
since they were not given the opportunity to answer and present evidence on the new charge in a
preliminary investigation. Furthermore, the petitioners argue that public respondents committed
grave abuse of discretion amounting to lack or excess of jurisdiction in issuing the challenged
resolutions finding probable cause for violation of R.A. No. 3019.
The petition lacks merit.
The right to a preliminary investigation is not a constitutional right, but is merely a right conferred by
statute. The absence of a preliminary investigation does not impair the validity of the Information or
otherwise render the same defective. It does not affect the jurisdiction of the court over the case or
constitute a ground for quashing the Information. 15 If absence of a preliminary investigation does not
render the Information invalid nor affect the jurisdiction of the court over the case, then the denial of
a motion for reinvestigation cannot likewise invalidate the Information or oust the court of its
jurisdiction over the case.
Petitioners were not deprived of due process because they were afforded the opportunity to refute
the charges by filing their counter-affidavits. The modification of the offense charged did not come as
a surprise to the petitioners because it was based on the same set of facts and the same alleged
illegal acts. Moreover, petitioners failed to aver newly discovered evidence nor impute commission of
grave errors or serious irregularities prejudicial to their interest to warrant a reconsideration or
reinvestigation of the case as required under Section 8, Rule III of the Rules of Procedure of the
Office of the Ombudsman.16 Thus, the modification of the offense charged, even without affording the
petitioners a new preliminary investigation, did not amount to a violation of their rights.
Furthermore, the right to preliminary investigation is deemed waived when the accused fails to
invoke it before or at the time of entering a plea at arraignment.17 Petitioner Budiongan was
arraigned in Criminal Case No. 28076 on March 28, 2005. He was also arraigned together with the
rest of the petitioners under the Amended Information in Criminal Case No. 28075 on December 2,
2005.
The purpose of a preliminary investigation is merely to determine whether a crime has been
committed and whether there is probable cause to believe that the person accused of the crime is
probably guilty thereof and should be held for trial.18 A finding of probable cause needs only to rest
on evidence showing that more likely than not a crime has been committed and was committed by
the suspect. Probable cause need not be based on clear and convincing evidence of guilt, neither on
evidence establishing guilt beyond reasonable doubt and definitely, not on evidence establishing
absolute certainty of guilt." 19

The Office of the Special Prosecutor is an integral component of the Ombudsman and is under the
latter's supervision and control. Thus, whatever course of action that the Ombudsman may take,
whether to approve or to disapprove the recommendation of the investigating prosecutor, is but an
exercise of his discretionary powers based upon constitutional mandate. Generally, courts should
not interfere in such exercise. It is beyond the ambit of this Court to review the exercise of discretion
of the Ombudsman in prosecuting or dismissing a complaint filed before it, save in cases where
there is clear showing of grave abuse of discretion amounting to lack or excess of jurisdiction on the
part of the Ombudsman.20 Absent any showing of arbitrariness on the part of the prosecutor or any
other officer authorized to conduct preliminary investigation, as in the instant case, courts as a rule
must defer to said officer's finding and determination of probable cause, since the determination of
the existence of probable cause is the function of the prosecutor.21
In fine, certiorari will not lie to invalidate the Office of the Special Prosecutor's resolution denying
petitioners' motion for reconsideration since there is nothing to substantiate petitioners' claim that it
gravely abused its discretion in ruling that there was no need to conduct a reinvestigation of the
case.22
WHEREFORE, in view of the foregoing, the instant petition is DISMISSED. The assailed
Memorandum of the Office of the Special Prosecutor, Office of the Ombudsman, dated April 28,
2004 finding probable cause that petitioners violated Sections 3(e) and 3(h) of Republic Act No.
3019 and the Resolution dated October 19, 2005 denying petitioners' Motion for Reconsideration,
are hereby AFFIRMED.
SO ORDERED.
G.R. Nos. 71404-09 October 26, 1988
HERMILO RODIS, SR., petitioner,
vs.
THE SANDIGANBAYAN, SECOND DIVISION, and PEOPLE OF THE PHILIPPINES, respondents.
Quisimbing & Associates for petitioner.
The Solicitor General for respondents.

FERNAN, C.J.:
This is a petition for certiorari with prayer for a writ of preliminary injunction seeking to annul the
Resolution 1 of the Sandiganbayan dated July 15, 1985 denying herein petitioner's Motion to Quash the
Informations in Criminal Cases Nos. 10389, 10390, 10391, 10393, and 10394 pending before said court
and to enjoin the arraignment, pre-trial and trial herein.
The antecedents are as follows:
On May 22, 1985, petitioner Hermilo v. Rodis, Sr., former President of the Philippine Underwriters
Finance Corporation (PHILFINANCE) together with some other persons, was charged before the
Sandiganbayan in separate informations docketed therein as Criminal Cases Nos. 10389, 10390,
10391, 10393 and 10394 with five (5) counts of violation of Section 3(b) of Republic Act No. 3019,
otherwise known as the Anti-Graft and Corruption Practices Act.

On May 31, 1985, petitioner filed a motion to quash said informations as against him on the ground
of lack of preliminary investigation, with the alternative prayer that the "issue and/or enforcement of
the warrant of arrests as against him be held in abeyance while he seeks a reinvestigation by the
Tanodbayan pursuant to his right of (sic) preliminary investigation. 2
In its opposition to said motion, the Prosecution cited as basis therefor Sec. 3, Rule 117 of the 1985
Rules on Criminal Procedure enumerating the grounds for a motion to quash. It argued that since
lack of preliminary investigation is not among those enumerated thereunder, the motion to quash on
this ground should be denied for lack of merit and instead, petitioner should be ordered to file his
Petition for Reinvestigation and/or Motion for Reconsideration in accordance with Section 13 of the
Revised Rules of Procedure of the Tanodbayan. 3
Petitioner filed a Reply to the Opposition controverting the prosecution's claim that lack of
preliminary investigation is not a ground for quashing the information; but manifesting that he would
file a petition for re-investigation with the Tanodbayan as suggested. 4 This he did, on June 24,1985.
On July 15, 1985, while petitioner's petition for reinvestigation was pending action by the
Tanodbayan, the Sandiganbayan promulgated the assailed resolution denying petitioner's motion to
quash for lack of merit, stating:
... this Court is of the considered opinion that the alleged absence of preliminary
investigation with respect to the accused movant (herein petitioner) or his inability to
participate in the preliminary investigation for the reason that he was not duly served
with a subpoena is not a proper ground for a motion to quash. If the accused was not
afforded due preliminary investigation, the proper remedy for him is to file a Petition
for Reinvestigation with the Office of the Tanodbayan, pursuant to Section (13) of
Administrative Order No. 111 of the Revised Rules of Procedure of the Tanodbayan,
promulgated on December 1, 1979. 5
On the premise that no appeal or any plain and speedy remedy in the ordinary course of law will
prove adequate under the circumstances obtaining in the case at bar arraignment, pre-trial and trial
having been set on August 26, 27 and 28, 1985and on the allegation that in denying his motion to
quash, respondent Sandiganbayan had acted with grave abuse of discretion amounting to lack or
excess of jurisdiction, petitioner brought the instant petition.
On August 1, 1985, the Court issued a Temporary Restraining Order enjoining the respondent
Sandiganbayan from proceeding with the arraignment, pre-trial and trial of Criminal Cases Nos.
10389, 10390, 10391, 10392, 610393 and 10394. 7
Petitioner contends that while it may be true that lack of preliminary investigation neither affects the
jurisdiction of the court nor impairs the validity of the information filed, nonetheless such lack of
preliminary investigation affects the regularity of the proceedings which led to the filing of the
information, such that in several cases, the Court had ordered the quashal of the information on said
ground; and that although lack of preliminary investigation is not enumerated as one of the grounds
for a motion to quash, the Sandiganbayan can nevertheless order the quashal of the informations
pursuant to its inherent power to amend and control its processes so as to make them conformable
to law and justice. 8 He further claims that given the chance to be heard on preliminary investigation, he
will demonstrate to the Tanodbayan that he had no participation in the transactions complained of, except
in one where he merely approved for reimbursement representation expense incurred by one subordinate
to him, the Executive Vice-President, and after it had been approved by one superior to him, the viceChairman of the Executive Committee and Chief Executive Officer of the (PHILFINANCE).

Respondent People of the Philippines on the other hand avers that as petitioner does not dispute
that a preliminary investigation was indeed conducted, what he is really protesting against is the lost
opportunity to participate therein due to the alleged failure of the Tanodbayan to serve a subpoena
upon him. It is, however, contended that this alleged failure did not affect the regularity of the
preliminary investigation as the Tanodbayan is justified under Section 3, Rule 112 of the 1985 Rules
of Criminal Procedure in proceeding with the preliminary investigation after an attempt to subpoena
petitioner at the latter's known address proved unavailing, and in basing its resolution on the
evidence presented by the complainant.
The analysis of respondent People, thru the Solicitor General, as to the real nature of the
controversy at bar is correct. It is not disputed that a preliminary investigation was conducted by the
Tanodbayan prior to the filing of the informations. Petitioner, however, was not able to participate
therein as the subpoena addressed to him at (PHILFINANCE) his last known address, was returned
"unserved," petitioner having already severed his employment with said company at the time of
service. As petitioner reportedly left (PHILFINANCE) under most unfriendly circumstances,
PHILFINANCE did not give the process server his residence address on record with it.
Under Section 3, sub-section (d) of Rule 112 of the 1985 Rules on Criminal Procedure, "if the
respondent cannot be subpoenaed, or if subpoenaed, does not submit counter-affidavits within the
ten (10) day period, the investigating officer shall base his resolution on the evidence presented by
the complainant." It is to be noted that this provision does not require as a condition sine qua non to
the validity of the proceedings the presence of the accused for as long as efforts to reach him were
made, and an opportunity to controvert the evidence of the complainant is accorded him. The
obvious purpose of the rule is to block attempts of unscrupulous respondents to thwart the
prosecution of offenses by hiding themselves or by employing dilatory tactics.
Considering that petitioner has voluntarily appeared before the respondent Sandiganbayan in
connection with the criminal cases in question and has appeared in other preliminary investigations
of other PHILFINANCE charges filed in various fiscals' offices and the Ministry (now Department) of
Justice, it is apparent that the non-service of the subpoena upon him was not of his own doing or
liking. To apply the full force and effect of section 3, sub-section (d) of Rule 112 of the 1985 Rules on
Criminal Procedure would, to our mind, greatly prejudice him.
It is worthwhile repeating that the avowed purposes of a preliminary investigation are "to secure the
innocent against hasty, malicious and oppressive prosecution, and to protect him from an open and
public accusation of crime, from the trouble, expense and anxiety of' a public trial, and also to protect
the state from useless and expensive trials 9 and while the "absence of preliminary investigations does
not affect the court's jurisdiction over the case (n)or do they impair the validity of the information or
otherwise render it defective, but, if there were no preliminary investigations and the defendants, before
entering their plea, invite the attention of the court to their absence, the court, instead of dismissing the
information, should conduct such investigation, order the fiscal to conduct it or remand the case to the
inferior court so that the preliminary investigation may be conducted. 10 In this case, the Tanodbayan, has
the duty to conduct the said investigation. 11
Thus, although the Sandiganbayan was correct in ruling that the absence of a preliminary
investigation is not a ground for quashing an information, it should have held the proceedings in the
criminal cases in abeyance pending resolution by the Tanodbayan of petitioner's petition for
reinvestigation, as alternatively prayed for by him in his motion to quash.
During the pendency of the case at bar, petitioner manifested to the Court that in a Joint Order dated
September 26, 1985, Tanodbayan Special Prosecutors Roger C. Berbano Sr. and Eleuterio F.
Guerrero had recommended that the separate petitions for reinvestigation filed by petitioner and his

co-accused be given due course by the Tanodbayan and that said special prosecutors be given
clearance and authority to conduct such reinvestigation. Although it appears that these
recommendations were approved by then Tanodbayan Bernardo P. Fernandez on October 14,
1985 12 no further report on this matter has reached the Court. As we cannot assume that the
reinvestigation was indeed conducted as would render the instant petition moot and academic, and
considering the importance of the issue involved, we deemed it proper to decide the petition on the
merits.
WHEREFORE, the assailed resolution of the respondent Sandiganbayan dated July 15, 1985 in
Criminal Cases Nos. 10389, 10390, 10391, 10393 and 10394 is hereby affirmed, but respondent
Sandiganbayan is ordered to hold in abeyance the proceedings therein with respect to petitioner,
subject to the outcome of the reinvestigation of the Tanodbayan of the aforesaid cases. The
Temporary Restraining Order issued by the Court on August 1, 1985 is deemed superseded by this
directive.
SO ORDERED.
G.R. No. 216920, January 13, 2016
GIRLIE M. QUISAY, Petitioner, v. PEOPLE OF THE PHILIPPINES, Respondent.
DECISION
PERLAS-BERNABE, J.:
Assailed in this petition for review on certiorari1 are the Decision2 dated October 10, 2014 and the
Resolution3 dated January 30, 2015 of the Court of Appeals (CA) in CA-G.R. SP No. 131968, which affirmed
the denial of petitioner Girlie M. Quisay's (petitioner) Motion to Quash before the Regional Trial Court of
Makati, Branch 144 (RTC).
chanRoble svirtualLawlibrary

The Facts
On December 28, 2012, the Office of the City Prosecutor of Makati City (OCP-Makati) issued a Pasiya4or
Resolution finding probable cause against petitioner for violation of Section 10 of Republic Act No. (RA)
7610,5 otherwise known as the "Special Protection of Children Against Abuse, Exploitation and Discrimination
Act." Consequently, a Pabatid Sakdal6 or Information was filed before the RTC on January 11, 2013 charging
petitioner of such crime.
On April 12, 2013, petitioner moved for the quashal of the Information against her on the ground of lack of
authority of the person who filed the same before the RTC. In support of her motion, petitioner pointed out
that the Pasiya issued by the OCP-Makati was penned by Assistant City Prosecutor Estefano H. De La Cruz
(ACP De La Cruz) and approved by Senior Assistant City Prosecutor Edgardo G. Hirang (SACP Hirang), while
the Pabatid Sakdal was penned by ACP De La Cruz, without any approval from any higher authority, albeit
with a Certification claiming that ACP De La Cruz has prior written authority or approval from the City
Prosecutor in filing the said Information. In this regard, petitioner claimed that nothing in the
aforesaid Pasiya and Pabatid Sakdal would show that ACP De La Cruz and/or SACP Hirang had prior written
authority or approval from the City Prosecutor to file or approve the filing of the Information against her. As
such, the Information must be quashed for being tainted with a jurisdictional defect that cannot be
cured.7
chanroblesvirtuallawlibrary

In its Comment and Opposition,8 the OCP-Makati countered that the review prosecutor, SACP Hirang, was
authorized to approve the Pasiya pursuant to OCP-Makati Office Order No. 32.9 Further, it maintained that
the Pabatid Sakdal was filed with the prior approval of the City Prosecutor as shown in the Certification in
the Information itself.10
chanRoble svirtualLawlibrary

The RTC Ruling

In an Order11 dated May 8, 2013, the RTC denied petitioner's motion to quash for lack of merit. It found the
Certification attached to the Pabatid Sakdal to have sufficiently complied with Section 4, Rule 112 of the
Rules of Court which requires the prior written authority or approval by, among others, the City Prosecutor,
in the filing of Informations.12
chanroblesvirtuallawlibrary

Petitioner moved for reconsideration,13 which was, however, denied in an Order14 dated July 10, 2013.
Aggrieved, petitioner elevated the matter to the CA via a petition for certiorari.15
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The CA Ruling
In a Decision16 dated October 10, 2014, the CA affirmed the RTC ruling. It held that pursuant to Section 9 of
RA 10071,17 otherwise known as the "Prosecution Service Act of 2010," as well as OCP-Makati Office Order
No. 32, the City Prosecutor of Makati authorized SACP Hirang to approve the issuance of, inter
alia, resolutions finding probable cause and the filing of Informations before the courts. As such, SACP
Hirang may, on behalf of the City Prosecutor, approve the Pasiya which found probable cause to indict
petitioner of violation of Section 10 of RA 7610.18
chanroblesvirtuallawlibrary

Further, it held that the Certification made by ACP De La Cruz in the Pabatid Sakdal clearly indicated that the
same was filed after the requisite preliminary investigation and with the prior written authority or approval
of the City Prosecutor. In this regard, the CA opined that such Certification enjoys the presumption of
regularity accorded to a public officer's performance of official functions, in the absence of convincing
evidence to the contrary.19
chanroblesvirtuallawlibrary

Undaunted, petitioner moved for reconsideration,20 but was denied in a Resolution21 dated January 30, 2015;
hence, this petition.
chanRoble svirtualLawlibrary

The Issue Before the Court

The core issue for the Court's resolution is whether or not the CA correctly held that the RTC did not gravely
abuse its discretion in dismissing petitioner's motion to quash.
chanRoblesvirtualLa wlibrary

The Court's Ruling

The petition is meritorious.
Section 4, Rule 112 of the 2000 Revised Rules on Criminal Procedure states that the filing of a complaint or
information requires a prior written authority or approval of the named officers therein before a complaint or
information may be filed before the courts, viz.:
SECTION 4. Resolution of investigating prosecutor and its review. - If the investigating prosecutor finds
cause to hold the respondent for trial, he shall prepare the resolution and information. He shall certify under
oath in the information that he, or as shown by the record, an authorized officer, has personally examined
the complainant and his witnesses; that there is reasonable ground to believe that a crime has been
committed and that the accused is probably guilty thereof; that the accused was informed of the complaint
and of the evidence submitted against him; and that he was given an opportunity to submit controverting
evidence. Otherwise, he shall recommend the dismissal of the complaint.
Within five (5) days from his resolution, he shall forward the record of the case to the provincial or city
prosecutor or chief state prosecutor, or to the Ombudsman or his deputy in cases of offenses cognizable by
the Sandiganbayan in the exercise of its original jurisdiction. They shall act on the resolution within ten (10)
days from their receipt thereof and shall immediately inform the parties of such action.
No complaint or information may be filed or dismissed by an investigating prosecutorwithout the prior
written authority or approval of the provincial or city prosecutoror chief state prosecutor or the
Ombudsman or his deputy.
x x x x (Emphases and underscoring supplied)
Thus, as a general rule, complaints or informations filed before the courts without the prior written authority

or approval of the foregoing authorized officers renders the same defective and, therefore, subject to
quashal pursuant to Section 3 (d), Rule 117 of the same Rules, to wit:
SECTION 3. Grounds. - The accused may move to quash the complaint or information on any of the
following grounds:
xxxx
(d) That the officer who filed the information had no authority to do so;
x x x x (Emphasis and underscoring supplied)
In this relation, People v. Garfin22 firmly instructs that the filing of an Information by an officer without the
requisite authority to file the same constitutes a jurisdictional infirmity which cannot be cured by silence,
waiver, acquiescence, or even by express consent. Hence, such ground may be raised at any stage of the
proceedings.23
chanroblesvirtuallawlibrary

In the case at bar, the CA affirmed the denial of petitioner's motion to quash on the grounds that: (a) the
City Prosecutor of Makati may delegate its authority to approve the filing of the Pabatid Sakdalpursuant to
Section 9 of RA 10071, as well as OCP-Makati Office Order No. 32; and (b) the Pabatid Sakdal contained a
Certification stating that its filing before the RTC was with the prior written authority or approval from the
City Prosecutor.
The CA correctly held that based on the wordings of Section 9 of RA 10071, which gave the City Prosecutor
the power to "[investigate and/or cause to be investigated all charges of crimes, misdemeanors and
violations of penal laws and ordinances within their respective jurisdictions, and have the necessary
information or complaint prepared or made and filed against the persons accused,"24 he may indeed
delegate his power to his subordinates as he may deem necessary in the interest of the prosecution service.
The CA also correctly stressed that it is under the auspice of this provision that the City Prosecutor of Makati
issued OCP-Makati Office Order No. 32, which gave division chiefs or review prosecutors "authority to
approve or act on any resolution, order, issuance, other action, and any information recommended by any
prosecutor for approval,"25 without necessarily diminishing the City Prosecutor's authority to act directly in
appropriate cases.26 By virtue of the foregoing issuances, the City Prosecutor validly designated SACP
Hirang, Deputy City Prosecutor Emmanuel D. Medina, and Senior Assistant City Prosecutor William Celestino
T. Uy as review prosecutors for the OCP-Makati.27
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In this light, the Pasiya or Resolution finding probable cause to indict petitioner of the crime charged, was
validly made as it bore the approval of one of the designated review prosecutors for OCP-Makati, SACP
Hirang, as evidenced by his signature therein.
Unfortunately, the same could not be said of the Pabatid Sakdal or Information filed before the RTC, as there
was no showing that it was approved by either the City Prosecutor of Makati or any of the OCP-Makati's
division chiefs or review prosecutors. All it contained was a Certification from ACP De La Cruz which stated,
among others, that "DAGDAG KO PANG PINATUTUNAYAN na angpaghahain ng sakdal na ito ay may
nakasulat na naunang pahintulot o pagpapatibay ng Panlunsod na Taga-Usig"28 - which translates to "and
that the filing of the Information is with the prior authority and approval of the City Prosecutor."
In the cases of People v. Garfin,29Turingan v. Garfin,30 and Tolentino v. Paqueo31 the Court had already
rejected similarly-worded certifications, uniformly holding that despite such certifications, the Informations
were defective as it was shown that the officers filing the same in court either lacked the authority to do so
or failed to show that they obtained prior written authority from any of those authorized officers enumerated
in Section 4, Rule 112 of the 2000 Revised Rules of Criminal Procedure.
Here, aside from the bare and self-serving Certification, there was no proof that ACP De La Cruz was
authorized to file the Pabatid Sakdal or Information before the RTC by himself. Records are bereft of any
showing that the City Prosecutor of Makati had authorized ACP De La Cruz to do so by giving him prior
written authority or by designating him as a division chief or review prosecutor of OCP-Makati. There is
likewise nothing that would indicate that ACP De La Cruz sought the approval of either the City Prosecutor or
any of those authorized pursuant to OCP-Makati Office Order No. 32 in filing thePabatid Sakdal. Quite
frankly, it is simply baffling how ACP De La Cruz was able to have the Pasiyaapproved by designated review
prosecutor SACP Hirang but failed to have the Pabatid Sakdalapproved by the same person or any other

authorized officer in the OCP-Makati.

In view of the foregoing circumstances, the CA erred in according the Pabatid Sakdal the presumption of
regularity in the performance of official functions solely on the basis of the Certification made by ACP De La
Cruz considering the absence of any evidence on record clearly showing that ACP De La Cruz: (a) had any
authority to file the same on his own; or (b) did seek the prior written approval from those authorized to do
so before filing the Information before the RTC.
In conclusion, the CA erred in affirming the RTC's dismissal of petitioner's motion to quash as thePabatid
Sakdal or Information suffers from an incurable infirmity - that the officer who filed the same before the RTC
had no authority to do so. Hence, the Pabatid Sakdal must be quashed, resulting in the dismissal of the
criminal case against petitioner.
As a final note, it must be stressed that "[t]he Rules of Court governs the pleading, practice, and procedure
in all courts of the Philippines. For the orderly administration of justice, the provisions contained therein
should be followed by all litigants, but especially by the prosecution arm of the Government." 32
chanroblesvirtuallawlibrary

WHEREFORE, the petition is GRANTED. The Decision dated October 10, 2014 and the Resolution dated
January 30, 2015 of the Court of Appeals in CA-G.R. SP No. 131968 are hereby REVERSED andSET ASIDE.
Accordingly, the Information against petitioner Girlie M. Quisay is QUASHED and the criminal case against
her is DISMISSED.
SO ORDERED.

cralawla wlibrary

G.R. No. 147932

January 25, 2006

LAILA G. DE OCAMPO, Petitioner,

vs.
THE HONORABLE SECRETARY OF JUSTICE, MAGDALENA B. DACARRA, and ERLINDA P.
ORAYAN,Respondents.
DECISION
CARPIO, J.:
The Case
This petition for certiorari1 assails the Resolutions dated 15 September 2000 and 19 April 2001 of the
Secretary of the Department of Justice ("DOJ Secretary") in I.C. No. 99-6254. 2 The DOJ
Secretary3 denied Laila G. De Ocampos ("petitioner") petition for review of the investigating
prosecutors finding of probable cause against her for homicide4 in relation to Section 10(a), Article
VI of Republic Act No. 7610 ("RA 7610")5 and for violation of the same provision of RA 7610. The
DOJ Secretary6 also denied petitioners motion for reconsideration.
The Facts
The present case arose from a sworn statement of respondent Magdalena B. Dacarra ("Magdalena")
executed before the Womens Desk of the CPD Police Station in Batasan Hills, Quezon City on 10
December 1999. Magdalena stated that on 4 December 1999, her nine-year-old son Ronald
complained of dizziness upon arriving home at about six in the evening. Ronald then vomited,
prompting Magdalena to ask what happened. Ronald replied that petitioner, who was Ronalds
teacher, banged his head against that of his classmate Lorendo Orayan ("Lorendo"). Magdalena
inspected Ronalds head and saw a woundless contusion. Due to Ronalds continued vomiting,
Magdalena brought him to a quack doctor (arbularyo) on 5 December 1999. The following morning,
Magdalena brought Ronald to the East Avenue Medical Center where he underwent an x-ray. The

attending physician informed Magdalena that Ronalds head had a fracture. Blood oozed out of
Ronalds nose before he died on 9 December 1999.
Lorendo also executed a sworn statement narrating how petitioner banged his head against
Ronalds.
During the inquest proceedings on 14 December 1999, Assistant Quezon City Prosecutor Maria
Lelibet Sampaga ("inquest prosecutor") ruled as follows:
Evidence warrants the release of the respondent for further investigation of the charges against her.
The case is not proper for inquest as the incident complained of happened on December 4, 1999.
Further, we find the evidence insufficient to support the charge for homicide against the respondent.
There is no concrete evidence to show proof that the alleged banging of the heads of the two minor
victims could be the actual and proximate cause of the death of minor Ronald Dacarra y Baluton.
Besides, the police report submitted by the respondent in this case states that said victim bears
stitches or sutures on the head due to a vehicular accident. There is no certainty, therefore, that
respondents alleged wrongdoing contributed or caused the death of said victim. 7
Subsequently, the case was referred to Assistant Quezon City Prosecutor Lorna F. Catris-Chua
Cheng ("investigating prosecutor") for preliminary investigation. She scheduled the first hearing on 6
January 2000.
Respondent Erlinda P. Orayan ("Erlinda"), Lorendos mother, attended the hearing of 6 January 2000
and alleged that petitioner offered her P100,000, which she initially accepted, for her and her sons
non-appearance at the preliminary investigation. Erlinda presented the money to the investigating
prosecutor.
On 7 January 2000, Jennilyn Quirong, who witnessed the head-banging incident, and Melanie
Lugales, who claimed to be another victim of petitioners alleged cruel deeds, filed their sworn
statements with the Office of the Quezon City Prosecutor.
On 18 January 2000, petitioner submitted her counter-affidavit. Petitioner invoked the disposition of
the inquest prosecutor finding insufficient evidence to support the charges against her. Petitioner
assailed the omission in Magdalenas sworn statement about Ronalds head injury due to a vehicular
accident in November 1997. Petitioner pointed out the absence of damage or injury on Lorendo as
borne out by his medical certificate. Petitioner contended that the head-banging incident was not the
proximate cause of Ronalds death, but the failed medical attention or medical negligence. Petitioner
also alleged that Jennilyn Quirong and Melanie Lugales have immature perception. Petitioner further
asserted that the causes of death stated in Ronalds Death Certificate are hearsay and inadmissible
in the preliminary investigation.
Ronalds Death Certificate shows the immediate cause of his death as "Cardio Pulmonary Arrest,"
the underlying cause as "Cerebral Edema," and other significant conditions contributing to death as
"Electrolyte imbalance and vomiting." The Autopsy Report, obtained by the investigating prosecutor
from the PNP Crime Laboratory in Camp Crame, states the cause of death as "Intracranial
hemorrhage secondary to traumatic injury of the head."
The investigating prosecutor issued a Resolution finding probable cause against petitioner for the
offenses charged. The dispositive portion of the Resolution reads:

WHEREFORE, in view of the foregoing, it is respectfully recommended that [petitioner] be charged

with Homicide in relation to Art. VI, Sec. 10 of R.A. 7610 and Violation of Art. VI, Sec. 10(a) of R.A.
7610 with no bail recommended for the Homicide since par. 6 of Art. VI of Sec. 10 of R.A. 7610
provides that:
"For purposes of this Act, the penalty for the commission of acts punishable under Articles 248, 249,
262, par. 2 and 263, par. 1 Act No. 3815, as amended, the Revised Penal Code, for the crimes of
murder, homicide, other intentional mutilation and serious physical injuries, respectively, shall
be reclusion perpetua when the victim isunder twelve (12) years of age."
Bail recommended: No bail recommended Homicide, in relation to Art. VI, Sec. 10, R.A. 7610; and
Twenty Thousand pesos (P20,000.00) Viol. of Sec. 10(a) of R.A. 76108
Consequently, petitioner filed a petition for review with the DOJ.
In her appeal to the DOJ, petitioner contended that the investigating prosecutor showed bias in favor
of complainants Magdalena and Erlinda ("complainants") for not conducting a clarificatory hearing
and unilaterally procuring the autopsy report. Petitioner argued that the investigating prosecutor
erred in concluding that her alleged act of banging Ronald and Lorendos heads was the cause of
Ronalds injury and that such was an act of child abuse. Petitioner also alleged that it is the Office of
the Ombudsman which has jurisdiction over the case, and not the Quezon City Prosecutors Office.
The Resolution of the DOJ Secretary
The DOJ Secretary denied the petition for review. The DOJ Secretary held that there was no bias in
complainants favor when the investigating prosecutor did not conduct a clarificatory hearing and
unilaterally procured the autopsy report as nothing precluded her from doing so.
The DOJ Secretary upheld the investigating prosecutors finding that Ronalds injury was the direct
and natural result of petitioners act of banging Ronald and Lorendos heads. The DOJ Secretary
stated that petitioner never denied such act, making her responsible for all its consequences even if
the immediate cause of Ronalds death was allegedly the failed medical attention or medical
negligence. The DOJ Secretary held that assuming there was failure of medical attention or medical
negligence, these inefficient intervening causes did not break the relation of the felony committed
and the resulting injury.
The DOJ Secretary rejected petitioners claim that she is innocent as held by the inquest prosecutor.
The inquest prosecutor did not dismiss the case. She merely recommended petitioners release for
further investigation since the case was not proper for inquest and the evidence was then
insufficient.
The DOJ Secretary further stated that the omission in Magdalenas sworn statement about Ronalds
head injury due to a vehicular accident in November 1997 and the absence of any injury on Lorendo
are inconsequential.
Moreover, the DOJ Secretary ruled that whether the statements of the causes of death in the death
certificate and autopsy report are hearsay, and whether Jennilyn Quirong and Melanie Lugales have
immature perception, are evidentiary matters which should be determined during trial. The DOJ
Secretary also sustained the investigating prosecutors conclusion that the banging of Ronald and
Lorendos heads is an act of child abuse.

Petitioner filed a motion for reconsideration9 which the DOJ Secretary denied in his Resolution dated
19 April 2001.10
Hence, this petition.
The Issues
Petitioner raises the following issues:
1. Whether petitioner was denied due process during the preliminary investigation; and
2. Whether there is probable cause against petitioner for homicide under Article 249 of the
Revised Penal Code in relation to Section 10(a), Article VI of RA 7610 and for violation of
Section 10(a), Article VI of RA 7610.
The Ruling of the Court
The petition lacks merit.
Before resolving the substantive issues in this case, the Court will address the procedural issue
raised by the Office of the Solicitor General ("OSG"). 11 The OSG contends that instead of Rule 65,
Rule 43 is applicable to the present case. Thus, the OSG argues that the petition should be
dismissed outright for being filed with this Court, instead of with the Court of Appeals, under a wrong
mode of appeal. On the other hand, assuming Rule 65 applies, the OSG points out that the petition
for certiorari should be filed with the Court of Appeals.
Based on Memorandum Circular No. 58,12 the resolution of the DOJ Secretary is appealable
administratively to the Office of the President since the offenses charged in this case are punishable
by reclusion perpetua.13 From the Office of the President, the aggrieved party may file an appeal with
the Court of Appeals pursuant to Rule 43.14
Even assuming that the DOJ Secretary committed grave abuse of discretion in rendering the
assailed Resolutions amounting to lack or excess of jurisdiction, petitioner should have filed the
instant petition for certiorari with the Court of Appeals. Hence, on the issue alone of the propriety of
the remedy sought by petitioner, this petition forcertiorari must fail. However, considering the gravity
of the offenses charged and the need to expedite the disposition of this case, the Court will relax the
rules and finally resolve this case in the interest of substantial justice.
Whether petitioner was denied
due process during the preliminary investigation
Absence of a clarificatory hearing
The Court rejects petitioners contention that she was denied due process when the investigating
prosecutor did not conduct a clarificatory hearing. A clarificatory hearing is not indispensable during
preliminary investigation. Rather than being mandatory, a clarificatory hearing is optional on the part
of the investigating officer as evidenced by the use of the term "may" in Section 3(e) of Rule 112.
This provision states:
(e) If the investigating officer believes that there are matters to be clarified, he may set a
hearing to propound clarificatory questions to the parties or their witnesses, during which the parties

shall be afforded an opportunity to be present but without the right to examine or cross-examine.
xxx15 (emphasis supplied)
The use of the word "may" in a statute commonly denotes that it is directory in nature. The term
"may" is generally permissive only and operates to confer discretion.16 Under Section 3(e) of Rule
112, it is within the discretion of the investigation officer whether to set the case for further hearings
to clarify some matters.
In this case, the investigating prosecutor no longer conducted hearings after petitioner submitted her
counter-affidavit. This simply means that at that point the investigating prosecutor believed that there
were no more matters for clarification. It is only in petitioners mind that some "crucial points" still
exist and need clarification. In any event, petitioner can raise these "important" matters during the
trial proper.
Petitioner was not deprived of due process since both parties were accorded equal rights in arguing
their case and presenting their respective evidence during the preliminary investigation. Due process
is merely an opportunity to be heard.17 Petitioner cannot successfully invoke denial of due process
since she was given the opportunity of a hearing.18 She even submitted her counter-affidavit to the
investigating prosecutor on 18 January 2000.
Preliminary investigation is merely inquisitorial. It is not a trial of the case on the merits. 19 Its sole
purpose is to determine whether a crime has been committed and whether the respondent
is probably guilty of the crime.20 It is not the occasion for the full and exhaustive display of the
parties evidence.21 Hence, if the investigating prosecutor is already satisfied that he can reasonably
determine the existence of probable cause based on the parties evidence thus presented, he may
terminate the proceedings and resolve the case.
Obtaining a copy of the autopsy report
Petitioner argues that she was denied the right to examine evidence submitted by complainants
when the investigating prosecutor unilaterally obtained a copy of the autopsy report from the PNP
Crime Laboratory.
Petitioner fails to persuade us. Though the autopsy report is not part of the parties evidence, the
Rules on preliminary investigation do not forbid the investigating prosecutor from obtaining it. Neither
is there a law requiring the investigating prosecutor to notify the parties before securing a copy of the
autopsy report. The autopsy report, which states the causes of Ronalds death, can either absolve or
condemn the petitioner. Unfortunately for petitioner, the investigating prosecutor found that the
autopsy report bolstered complainants allegations.
Moreover, there is nothing to support petitioners claim that the investigating prosecutor was biased
in favor of complainants. There are other pieces of evidence aside from the autopsy report upon
which the investigating prosecutor based her finding of probable cause. The autopsy report is not the
sole piece of evidence against petitioner. The sworn statement of the other victim, Lorendo, and the
eyewitness account of Jennilyn Quirong, substantiate the charges against petitioner. Petitioners
failure to deny the occurrence of the head-banging incident also strengthened complainants
allegations.
Petitioner mistakenly cites Section 3(d) of Rule 11222 in arguing that the investigating prosecutor
should not go beyond the evidence presented by complainants in resolving the case. This provision
applies if the respondent cannot be subpoenaed or if subpoenaed fails to submit her counter-

affidavit within the prescribed period. Such is not the case here where petitioner filed her counteraffidavit and both parties presented their respective evidence.
Whether there is probable cause
for the offenses charged against petitioner
Existence of probable cause
Petitioner challenges the finding of probable cause against her for the offenses charged arguing that
the head-banging incident was not the proximate cause of Ronalds death. Petitioner insists that
efficient intervening events caused Ronalds death.
We do not agree. There is probable cause for the offenses charged against petitioner. Probable
cause is the existence of such facts and circumstances as would excite the belief in a reasonable
mind that a crime has been committed and the respondent is probably guilty of the crime. 23
In the present case, Ronald, a nine-year-old student, died five days after his teacher, petitioner in
this case, allegedly banged his head against that of his classmate Lorendo. There is nothing in the
records showing petitioners specific denial of the occurrence of such act. Petitioner simply stated
that "the head-banging incident happened but [she] did not perpetrate it." 24 In effect, petitioner admits
the occurrence of the head-banging incident but denies committing it.
The alleged intervening events before Ronald died, namely: (a) the consultation with a quack doctor,
and (b) the three-day confinement in the East Avenue Medical Center, are not sufficient to break the
relation of the felony committed and the resulting injury. Were it not for the head-banging incident,
Ronald might not have needed medical assistance in the first place.
These circumstances which allegedly intervened causing Ronalds death are evidentiary matters
which should be threshed out during the trial. The following are also matters better left for the trial
court to appreciate: (a) the contents of the death certificate and autopsy report, (b) the medical
records of Ronalds accident in November 1997, (c) the perception of witnesses Jennilyn Quirong
and Melanie Lugales, and (d) the alleged lack of medical assistance or medical negligence which
caused Ronalds death.
To repeat, what is determined during preliminary investigation is only probable cause, not proof
beyond reasonable doubt.25 As implied by the words themselves, "probable cause" is concerned with
probability, not absolute or moral certainty.26
Asserting her innocence, petitioner continues to invoke the disposition of the inquest prosecutor
finding insufficient evidence for the charges against her. As correctly ruled by the DOJ Secretary, the
inquest prosecutor did not dismiss the case but merely recommended it for further investigation
since it was not proper for inquest and the evidence was then insufficient. Moreover, petitioners
active participation in the preliminary investigation without questioning the propriety of such
proceedings indicates petitioners agreement with the recommendation of the inquest prosecutor for
the further investigation of the case.
Charges of Homicide and Child Abuse
Petitioners single act of allegedly banging the heads of her students had two distinct victims, namely
Ronald and Lorendo. Therefore, petitioner has to face prosecution for cruelty to each victim. For
Ronalds death, petitioner is being charged with homicide under Article 249 of the Revised Penal
Code27 in relation to Section 10(a), Article VI of RA 7610 punishable by reclusion

perpetua.28 However, this does not mean that petitioner is being charged with the distinct offenses of
homicide and child abuse for Ronalds death. On the other hand, for her cruelty to Lorendo,
petitioner is being charged with violation of Section 10(a), Article VI of RA 7610 punishable
by prision mayor in its minimum period.
Contrary to petitioners contention, Section 10(a), Article VI of RA 7610 is clear. This provision reads:
(a) Any person who shall commit any other acts of child abuse, cruelty or exploitation or be
responsible for other conditions prejudicial to the childs development including those covered by
Article 59 of Presidential Decree No. 603, as amended, but not covered by the Revised Penal Code,
as amended, shall suffer the penalty of prision mayor in its minimum period.
Ambiguity is a condition of admitting two or more meanings, of being understood in more than one
way, or of referring to two or more things at the same time. A statute is ambiguous if it is susceptible
to more than one interpretation.29 In the present case, petitioner fails to show convincingly the
ambiguity in Section 10(a), Article VI of RA 7610.
Section 3(b), Article VI of RA 7610 defines "child abuse" as the maltreatment, whether habitual or
not, of the child which includes physical abuse and cruelty. Petitioners alleged banging of the heads
of Ronald and Lorendo is clearly an act of cruelty.
In a petition for certiorari like this case, the primordial issue is whether the DOJ Secretary acted with
grave abuse of discretion amounting to lack or excess of jurisdiction. The Court rules that the DOJ
Secretary did not commit grave abuse of discretion in finding that there is probable cause to charge
petitioner of the crimes of homicide and child abuse. The Court further rules that the investigating
prosecutor did not act with grave abuse of discretion in securing motu proprio the autopsy report and
in not calling for a clarificatory hearing. This ruling does not diminish in any way the constitutional
right of petitioner to be presumed innocent until the contrary is proven.
WHEREFORE, we DENY the instant petition. We AFFIRM the Resolutions of the Secretary of
Justice dated 15 September 2000 and 19 April 2001 in I.C. No. 99-6254. No pronouncement as to
costs.
SO ORDERED.
G. R. No. 164317

February 6, 2006

ALFREDO CHING, Petitioner,

vs.
THE SECRETARY OF JUSTICE, ASST. CITY PROSECUTOR ECILYN BURGOS-VILLAVERT,
JUDGE EDGARDO SUDIAM of the Regional Trial Court, Manila, Branch 52; RIZAL
COMMERCIAL BANKING CORP. and THE PEOPLE OF THE PHILIPPINES, Respondents.
DECISION
CALLEJO, SR., J.:
Before the Court is a petition for review on certiorari of the Decision1 of the Court of Appeals (CA) in
CA-G.R. SP No. 57169 dismissing the petition for certiorari, prohibition and mandamus filed by
petitioner Alfredo Ching, and its Resolution2 dated June 28, 2004 denying the motion for
reconsideration thereof.

Petitioner was the Senior Vice-President of Philippine Blooming Mills, Inc. (PBMI). Sometime in
September to October 1980, PBMI, through petitioner, applied with the Rizal Commercial Banking
Corporation (respondent bank) for the issuance of commercial letters of credit to finance its
importation of assorted goods.3
Respondent bank approved the application, and irrevocable letters of credit were issued in favor of
petitioner. The goods were purchased and delivered in trust to PBMI. Petitioner signed 13 trust
receipts4 as surety, acknowledging delivery of the following goods:

T/R
Nos.

Date Granted

Maturity Date

Principal

Description of Goods

1845

12-05-80

03-05-81

P1,596,470.05

79.9425 M/T "SDK"

Brand Synthetic Graphite
Electrode

1853

12-08-80

03-06-81

P198,150.67

3,000 pcs. (15 bundles)

Calorized Lance Pipes

1824

11-28-80

02-26-81

P707,879.71

One Lot High Fired

Refractory Tundish Bricks

1798

11-21-80

02-19-81

P835,526.25

5 cases spare parts for

CCM

1808

11-21-80

02-19-81

P370,332.52

200 pcs. ingot moulds

2042

01-30-81

04-30-81

P469,669.29

High Fired Refractory

Nozzle Bricks

1801

11-21-80

02-19-81

P2,001,715.17

Synthetic Graphite
Electrode [with] tapered
pitch filed nipples

1857

12-09-80

03-09-81

P197,843.61

3,000 pcs. (15 bundles

calorized lance pipes [)]

1895

12-17-80

03-17-81

P67,652.04

Spare parts for

Spectrophotometer

1911

12-22-80

03-20-81

P91,497.85

50 pcs. Ingot moulds

2041

01-30-81

04-30-81

P91,456.97

50 pcs. Ingot moulds

2099

02-10-81

05-11-81

P66,162.26

8 pcs. Kubota Rolls for

rolling mills

2100

02-10-81

05-12-81

P210,748.00

Spare parts for

Lacolaboratory
Equipment5

Under the receipts, petitioner agreed to hold the goods in trust for the said bank, with authority to sell
but not by way of conditional sale, pledge or otherwise; and in case such goods were sold, to turn
over the proceeds thereof as soon as received, to apply against the relative acceptances and
payment of other indebtedness to respondent bank. In case the goods remained unsold within the
specified period, the goods were to be returned to respondent bank without any need of demand.
Thus, said "goods, manufactured products or proceeds thereof, whether in the form of money or
bills, receivables, or accounts separate and capable of identification" were respondent banks
property.
When the trust receipts matured, petitioner failed to return the goods to respondent bank, or to return
their value amounting to P6,940,280.66 despite demands. Thus, the bank filed a criminal complaint
for estafa6 against petitioner in the Office of the City Prosecutor of Manila.
After the requisite preliminary investigation, the City Prosecutor found probable cause estafa under
Article 315, paragraph 1(b) of the Revised Penal Code, in relation to Presidential Decree (P.D.) No.
115, otherwise known as the Trust Receipts Law. Thirteen (13) Informations were filed against the
petitioner before the Regional Trial Court (RTC) of Manila. The cases were docketed as Criminal
Cases No. 86-42169 to 86-42181, raffled to Branch 31 of said court.
Petitioner appealed the resolution of the City Prosecutor to the then Minister of Justice. The appeal
was dismissed in a Resolution7 dated March 17, 1987, and petitioner moved for its reconsideration.

On December 23, 1987, the Minister of Justice granted the motion, thus reversing the previous
resolution finding probable cause against petitioner.8 The City Prosecutor was ordered to move for
the withdrawal of the Informations.
This time, respondent bank filed a motion for reconsideration, which, however, was denied on
February 24, 1988.9 The RTC, for its part, granted the Motion to Quash the Informations filed by
petitioner on the ground that the material allegations therein did not amount to estafa. 10
In the meantime, the Court rendered judgment in Allied Banking Corporation v. Ordoez, 11 holding
that the penal provision of P.D. No. 115 encompasses any act violative of an obligation covered by
the trust receipt; it is not limited to transactions involving goods which are to be sold (retailed),
reshipped, stored or processed as a component of a product ultimately sold. The Court also ruled
that "the non-payment of the amount covered by a trust receipt is an act violative of the obligation of
the entrustee to pay."12
On February 27, 1995, respondent bank re-filed the criminal complaint for estafa against petitioner
before the Office of the City Prosecutor of Manila. The case was docketed as I.S. No. 95B-07614.
Preliminary investigation ensued. On December 8, 1995, the City Prosecutor ruled that there was no
probable cause to charge petitioner with violating P.D. No. 115, as petitioners liability was only civil,
not criminal, having signed the trust receipts as surety.13 Respondent bank appealed the resolution to
the Department of Justice (DOJ) via petition for review, alleging that the City Prosecutor erred in
ruling:
1. That there is no evidence to show that respondent participated in the misappropriation of
the goods subject of the trust receipts;
2. That the respondent is a mere surety of the trust receipts; and
3. That the liability of the respondent is only civil in nature. 14
On July 13, 1999, the Secretary of Justice issued Resolution No. 25015 granting the petition and
reversing the assailed resolution of the City Prosecutor. According to the Justice Secretary, the
petitioner, as Senior Vice-President of PBMI, executed the 13 trust receipts and as such, was the
one responsible for the offense. Thus, the execution of said receipts is enough to indict the petitioner
as the official responsible for violation of P.D. No. 115. The Justice Secretary also declared that
petitioner could not contend that P.D. No. 115 covers only goods ultimately destined for sale, as this
issue had already been settled in Allied Banking Corporation v. Ordoez, 16where the Court ruled that
P.D. No. 115 is "not limited to transactions in goods which are to be sold (retailed), reshipped, stored
or processed as a component of a product ultimately sold but covers failure to turn over the
proceeds of the sale of entrusted goods, or to return said goods if unsold or not otherwise disposed
of in accordance with the terms of the trust receipts."
The Justice Secretary further stated that the respondent bound himself under the terms of the trust
receipts not only as a corporate official of PBMI but also as its surety; hence, he could be proceeded
against in two (2) ways: first, as surety as determined by the Supreme Court in its decision in Rizal
Commercial Banking Corporation v. Court of Appeals;17 and second, as the corporate official
responsible for the offense under P.D. No. 115, via criminal prosecution. Moreover, P.D. No. 115
explicitly allows the prosecution of corporate officers "without prejudice to the civil liabilities arising
from the criminal offense." Thus, according to the Justice Secretary, following Rizal Commercial
Banking Corporation, the civil liability imposed is clearly separate and distinct from the criminal
liability of the accused under P.D. No. 115.

Conformably with the Resolution of the Secretary of Justice, the City Prosecutor filed 13
Informations against petitioner for violation of P.D. No. 115 before the RTC of Manila. The cases
were docketed as Criminal Cases No. 99-178596 to 99-178608 and consolidated for trial before
Branch 52 of said court. Petitioner filed a motion for reconsideration, which the Secretary of Justice
denied in a Resolution18 dated January 17, 2000.
Petitioner then filed a petition for certiorari, prohibition and mandamus with the CA, assailing the
resolutions of the Secretary of Justice on the following grounds:
1. THE RESPONDENTS ARE ACTING WITH AN UNEVEN HAND AND IN FACT, ARE
ACTING OPPRESSIVELY AGAINST ALFREDO CHING WHEN THEY ALLOWED HIS
PROSECUTION DESPITE THE FACT THAT NO EVIDENCE HAD BEEN PRESENTED TO
PROVE HIS PARTICIPATION IN THE ALLEGED TRANSACTIONS.
2. THE RESPONDENT SECRETARY OF JUSTICE COMMITTED AN ACT IN GRAVE
ABUSE OF DISCRETION AND IN EXCESS OF HIS JURISDICTION WHEN THEY
CONTINUED PROSECUTION OF THE PETITIONER DESPITE THE LENGTH OF TIME
INCURRED IN THE TERMINATION OF THE PRELIMINARY INVESTIGATION THAT
SHOULD JUSTIFY THE DISMISSAL OF THE INSTANT CASE.
3. THE RESPONDENT SECRETARY OF JUSTICE AND ASSISTANT CITY PROSECUTOR
ACTED IN GRAVE ABUSE OF DISCRETION AMOUNTING TO AN EXCESS OF
JURISDICTION WHEN THEY CONTINUED THE PROSECUTION OF THE PETITIONER
DESPITE LACK OF SUFFICIENT BASIS.19
In his petition, petitioner incorporated a certification stating that "as far as this Petition is concerned,
no action or proceeding in the Supreme Court, the Court of Appeals or different divisions thereof, or
any tribunal or agency. It is finally certified that if the affiant should learn that a similar action or
proceeding has been filed or is pending before the Supreme Court, the Court of Appeals, or different
divisions thereof, of any other tribunal or agency, it hereby undertakes to notify this Honorable Court
within five (5) days from such notice."20
In its Comment on the petition, the Office of the Solicitor General alleged that A.
THE HONORABLE SECRETARY OF JUSTICE CORRECTLY RULED THAT PETITIONER
ALFREDO CHING IS THE OFFICER RESPONSIBLE FOR THE OFFENSE CHARGED AND
THAT THE ACTS OF PETITIONER FALL WITHIN THE AMBIT OF VIOLATION OF P.D. [No.]
115 IN RELATION TO ARTICLE 315, PAR. 1(B) OF THE REVISED PENAL CODE.
B.
THERE IS NO MERIT IN PETITIONERS CONTENTION THAT EXCESSIVE DELAY HAS
MARRED THE CONDUCT OF THE PRELIMINARY INVESTIGATION OF THE CASE,
JUSTIFYING ITS DISMISSAL.
C.
THE PRESENT SPECIAL CIVIL ACTION FOR CERTIORARI, PROHIBITION AND
MANDAMUS IS NOT THE PROPER MODE OF REVIEW FROM THE RESOLUTION OF

THE DEPARTMENT OF JUSTICE. THE PRESENT PETITION MUST THEREFORE BE

DISMISSED.21
On April 22, 2004, the CA rendered judgment dismissing the petition for lack of merit, and on
procedural grounds. On the procedural issue, it ruled that (a) the certification of non-forum shopping
executed by petitioner and incorporated in the petition was defective for failure to comply with the
first two of the three-fold undertakings prescribed in Rule 7, Section 5 of the Revised Rules of Civil
Procedure; and (b) the petition for certiorari, prohibition and mandamus was not the proper remedy
of the petitioner.
On the merits of the petition, the CA ruled that the assailed resolutions of the Secretary of Justice
were correctly issued for the following reasons: (a) petitioner, being the Senior Vice-President of
PBMI and the signatory to the trust receipts, is criminally liable for violation of P.D. No. 115; (b) the
issue raised by the petitioner, on whether he violated P.D. No. 115 by his actuations, had already
been resolved and laid to rest in Allied Bank Corporation v. Ordoez;22 and (c) petitioner was
estopped from raising the
City Prosecutors delay in the final disposition of the preliminary investigation because he failed to do
so in the DOJ.
Thus, petitioner filed the instant petition, alleging that:
I
THE COURT OF APPEALS ERRED WHEN IT DISMISSED THE PETITION ON THE
GROUND THAT THE CERTIFICATION OF NON-FORUM SHOPPING INCORPORATED
THEREIN WAS DEFECTIVE.
II
THE COURT OF APPEALS ERRED WHEN IT RULED THAT NO GRAVE ABUSE OF
DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION WAS COMMITTED
BY THE SECRETARY OF JUSTICE IN COMING OUT WITH THE ASSAILED
RESOLUTIONS.23
The Court will delve into and resolve the issues seriatim.
The petitioner avers that the CA erred in dismissing his petition on a mere technicality. He claims that
the rules of procedure should be used to promote, not frustrate, substantial justice. He insists that
the Rules of Court should be construed liberally especially when, as in this case, his substantial
rights are adversely affected; hence, the deficiency in his certification of non-forum shopping should
not result in the dismissal of his petition.
The Office of the Solicitor General (OSG) takes the opposite view, and asserts that indubitably, the
certificate of non-forum shopping incorporated in the petition before the CA is defective because it
failed to disclose essential facts about pending actions concerning similar issues and parties. It
asserts that petitioners failure to comply with the Rules of Court is fatal to his petition. The OSG
cited Section 2, Rule 42, as well as the ruling of this Court in Melo v. Court of Appeals. 24
We agree with the ruling of the CA that the certification of non-forum shopping petitioner
incorporated in his petition before the appellate court is defective. The certification reads:

It is further certified that as far as this Petition is concerned, no action or proceeding in the Supreme
Court, the Court of Appeals or different divisions thereof, or any tribunal or agency.
It is finally certified that if the affiant should learn that a similar action or proceeding has been filed or
is pending before the Supreme Court, the Court of Appeals, or different divisions thereof, of any
other tribunal or agency, it hereby undertakes to notify this Honorable Court within five (5) days from
such notice.25
Under Section 1, second paragraph of Rule 65 of the Revised Rules of Court, the petition should be
accompanied by a sworn certification of non-forum shopping, as provided in the third paragraph of
Section 3, Rule 46 of said Rules. The latter provision reads in part:
SEC. 3. Contents and filing of petition; effect of non-compliance with requirements. The petition
shall contain the full names and actual addresses of all the petitioners and respondents, a concise
statement of the matters involved, the factual background of the case and the grounds relied upon
for the relief prayed for.
xxx
The petitioner shall also submit together with the petition a sworn certification that he has not
theretofore commenced any other action involving the same issues in the Supreme Court, the Court
of Appeals or different divisions thereof, or any other tribunal or agency; if there is such other action
or proceeding, he must state the status of the same; and if he should thereafter learn that a similar
action or proceeding has been filed or is pending before the Supreme Court, the Court of Appeals, or
different divisions thereof, or any other tribunal or agency, he undertakes to promptly inform the
aforesaid courts and other tribunal or agency thereof within five (5) days therefrom. xxx
Compliance with the certification against forum shopping is separate from and independent of the
avoidance of forum shopping itself. The requirement is mandatory. The failure of the petitioner to
comply with the foregoing requirement shall be sufficient ground for the dismissal of the petition
without prejudice, unless otherwise provided.26
Indubitably, the first paragraph of petitioners certification is incomplete and unintelligible. Petitioner
failed to certify that he "had not heretofore commenced any other action involving the same issues in
the Supreme Court, the Court of Appeals or the different divisions thereof or any other tribunal or
agency" as required by paragraph 4, Section 3, Rule 46 of the Revised Rules of Court.
We agree with petitioners contention that the certification is designed to promote and facilitate the
orderly administration of justice, and therefore, should not be interpreted with absolute literalness. In
his works on the Revised Rules of Civil Procedure, former Supreme Court Justice Florenz Regalado
states that, with respect to the contents of the certification which the pleader may prepare, the rule of
substantial compliance may be availed of.27 However, there must be a special circumstance or
compelling reason which makes the strict application of the requirement clearly unjustified. The
instant petition has not alleged any such extraneous circumstance. Moreover, as worded, the
certification cannot even be regarded as substantial compliance with the procedural requirement.
Thus, the CA was not informed whether, aside from the petition before it, petitioner had commenced
any other action involving the same issues in other tribunals.
On the merits of the petition, the CA ruled that the petitioner failed to establish that the Secretary of
Justice committed grave abuse of discretion in finding probable cause against the petitioner for
violation of estafa under Article 315, paragraph 1(b) of the Revised Penal Code, in relation to P.D.
No. 115. Thus, the appellate court ratiocinated:

Be that as it may, even on the merits, the arguments advanced in support of the petition are not
persuasive enough to justify the desired conclusion that respondent Secretary of Justice gravely
abused its discretion in coming out with his assailed Resolutions. Petitioner posits that, except for his
being the Senior Vice-President of the PBMI, there is no iota of evidence that he was a participes
crimines in violating the trust receipts sued upon; and that his liability, if at all, is purely civil because
he signed the said trust receipts merely as a xxx surety and not as the entrustee. These assertions
are, however, too dull that they cannot even just dent the findings of the respondent Secretary, viz:
"x x x it is apropos to quote section 13 of PD 115 which states in part, viz:
xxx If the violation or offense is committed by a corporation, partnership, association or other judicial
entities, the penalty provided for in this Decree shall be imposed upon the directors, officers,
employees or other officials or persons therein responsible for the offense, without prejudice to the
civil liabilities arising from the criminal offense.
"There is no dispute that it was the respondent, who as senior vice-president of PBM, executed the
thirteen (13) trust receipts. As such, the law points to him as the official responsible for the offense.
Since a corporation cannot be proceeded against criminally because it cannot commit crime in which
personal violence or malicious intent is required, criminal action is limited to the corporate agents
guilty of an act amounting to a crime and never against the corporation itself (West Coast Life Ins.
Co. vs. Hurd, 27 Phil. 401; Times, [I]nc. v. Reyes, 39 SCRA 303). Thus, the execution by respondent
of said receipts is enough to indict him as the official responsible for violation of PD 115.
"Parenthetically, respondent is estopped to still contend that PD 115 covers only goods which are
ultimately destined for sale and not goods, like those imported by PBM, for use in manufacture. This
issue has already been settled in the Allied Banking Corporation case, supra, where he was also a
party, when the Supreme Court ruled that PD 115 is not limited to transactions in goods which are to
be sold (retailed), reshipped, stored or processed as a component or a product ultimately sold but
covers failure to turn over the proceeds of the sale of entrusted goods, or to return said goods if
unsold or disposed of in accordance with the terms of the trust receipts.
"In regard to the other assigned errors, we note that the respondent bound himself under the terms
of the trust receipts not only as a corporate official of PBM but also as its surety. It is evident that
these are two (2) capacities which do not exclude the other. Logically, he can be proceeded against
in two (2) ways: first, as surety as determined by the Supreme Court in its decision in RCBC vs.
Court of Appeals, 178 SCRA 739; and, secondly, as the corporate official responsible for the offense
under PD 115, the present case is an appropriate remedy under our penal law.
"Moreover, PD 115 explicitly allows the prosecution of corporate officers without prejudice to the civil
liabilities arising from the criminal offense thus, the civil liability imposed on respondent in RCBC vs.
Court of Appeals case is clearly separate and distinct from his criminal liability under PD 115." 28
Petitioner asserts that the appellate courts ruling is erroneous because (a) the transaction between
PBMI and respondent bank is not a trust receipt transaction; (b) he entered into the transaction and
was sued in his capacity as PBMI Senior Vice-President; (c) he never received the goods as an
entrustee for PBMI, hence, could not have committed any dishonesty or abused the confidence of
respondent bank; and (d) PBMI acquired the goods and used the same in operating its machineries
and equipment and not for resale.
The OSG, for its part, submits a contrary view, to wit:

34. Petitioner further claims that he is not a person responsible for the offense allegedly because
"[b]eing charged as the Senior Vice-President of Philippine Blooming Mills (PBM), petitioner cannot
be held criminally liable as the transactions sued upon were clearly entered into in his capacity as an
officer of the corporation" and that [h]e never received the goods as an entrustee for PBM as he
never had or took possession of the goods nor did he commit dishonesty nor "abuse of confidence in
transacting with RCBC." Such argument is bereft of merit.
35. Petitioners being a Senior Vice-President of the Philippine Blooming Mills does not exculpate
him from any liability. Petitioners responsibility as the corporate official of PBM who received the
goods in trust is premised on Section 13 of P.D. No. 115, which provides:
Section 13. Penalty Clause. The failure of an entrustee to turn over the proceeds of the sale of the
goods, documents or instruments covered by a trust receipt to the extent of the amount owing to the
entruster or as appears in the trust receipt or to return said goods, documents or instruments if they
were not sold or disposed of in accordance with the terms of the trust receipt shall constitute the
crime of estafa, punishable under the provisions of Article Three hundred and fifteen, paragraph one
(b) of Act Numbered Three thousand eight hundred and fifteen, as amended, otherwise known as
the Revised Penal Code. If the violation or offense is committed by a corporation, partnership,
association or other juridical entities, the penalty provided for in this Decree shall be imposed upon
the directors, officers, employees or other officials or persons therein responsible for the offense,
without prejudice to the civil liabilities arising from the criminal offense. (Emphasis supplied)
36. Petitioner having participated in the negotiations for the trust receipts and having received the
goods for PBM, it was inevitable that the petitioner is the proper corporate officer to be proceeded
against by virtue of the PBMs violation of P.D. No. 115.29
The ruling of the CA is correct.
In Mendoza-Arce v. Office of the Ombudsman (Visayas),30 this Court held that the acts of a quasijudicial officer may be assailed by the aggrieved party via a petition for certiorari and enjoined (a)
when necessary to afford adequate protection to the constitutional rights of the accused; (b) when
necessary for the orderly administration of justice; (c) when the acts of the officer are without or in
excess of authority; (d) where the charges are manifestly false and motivated by the lust for
vengeance; and (e) when there is clearly no prima facie case against the accused. 31 The Court also
declared that, if the officer conducting a preliminary investigation (in that case, the Office of the
Ombudsman) acts without or in excess of his authority and resolves to file an Information despite the
absence of probable cause, such act may be nullified by a writ of certiorari. 32
Indeed, under Section 4, Rule 112 of the 2000 Rules of Criminal Procedure, 33 the Information shall
be prepared by the Investigating Prosecutor against the respondent only if he or she finds probable
cause to hold such respondent for trial. The Investigating Prosecutor acts without or in excess of his
authority under the Rule if the Information is filed against the respondent despite absence of
evidence showing probable cause therefor.34 If the Secretary of Justice reverses the Resolution of
the Investigating Prosecutor who found no probable cause to hold the respondent for trial, and
orders such prosecutor to file the Information despite the absence of probable cause, the Secretary
of Justice acts contrary to law, without authority and/or in excess of authority. Such resolution may
likewise be nullified in a petition for certiorari under Rule 65 of the Revised Rules of Civil
Procedure.35
A preliminary investigation, designed to secure the respondent against hasty, malicious and
oppressive prosecution, is an inquiry to determine whether (a) a crime has been committed; and (b)
whether there is probable cause to believe that the accused is guilty thereof. It is a means of

discovering the person or persons who may be reasonably charged with a crime. Probable cause
need not be based on clear and convincing evidence of guilt, as the investigating officer acts upon
probable cause of reasonable belief. Probable cause implies probability of guilt and requires more
than bare suspicion but less than evidence which would justify a conviction. A finding of probable
cause needs only to rest on evidence showing that more likely than not, a crime has been committed
by the suspect.36
However, while probable cause should be determined in a summary manner, there is a need to
examine the evidence with care to prevent material damage to a potential accuseds constitutional
right to liberty and the guarantees of freedom and fair play37 and to protect the State from the burden
of unnecessary expenses in prosecuting alleged offenses and holding trials arising from false,
fraudulent or groundless charges.38
In this case, petitioner failed to establish that the Secretary of Justice committed grave abuse of
discretion in issuing the assailed resolutions. Indeed, he acted in accord with law and the evidence.
Section 4 of P.D. No. 115 defines a trust receipt transaction, thus:
Section 4. What constitutes a trust receipt transaction. A trust receipt transaction, within the meaning
of this Decree, is any transaction by and between a person referred to in this Decree as the
entruster, and another person referred to in this Decree as entrustee, whereby the entruster, who
owns or holds absolute title or security interests over certain specified goods, documents or
instruments, releases the same to the possession of the entrustee upon the latters execution and
delivery to the entruster of a signed document called a "trust receipt" wherein the entrustee binds
himself to hold the designated goods, documents or instruments in trust for the entruster and to sell
or otherwise dispose of the goods, documents or instruments with the obligation to turn over to the
entruster the proceeds thereof to the extent of the amount owing to the entruster or as appears in
the trust receipt or the goods, documents or instruments themselves if they are unsold or not
otherwise disposed of, in accordance with the terms and conditions specified in the trust receipt, or
for other purposes substantially equivalent to any of the following:
1. In case of goods or documents, (a) to sell the goods or procure their sale; or (b) to
manufacture or process the goods with the purpose of ultimate sale; Provided, That, in the
case of goods delivered under trust receipt for the purpose of manufacturing or processing
before its ultimate sale, the entruster shall retain its title over the goods whether in its original
or processed form until the entrustee has complied fully with his obligation under the trust
receipt; or (c) to load, unload, ship or otherwise deal with them in a manner preliminary or
necessary to their sale; or
2. In the case of instruments a) to sell or procure their sale or exchange; or b) to deliver them
to a principal; or c) to effect the consummation of some transactions involving delivery to a
depository or register; or d) to effect their presentation, collection or renewal.
The sale of goods, documents or instruments by a person in the business of selling goods,
documents or instruments for profit who, at the outset of the transaction, has, as against the buyer,
general property rights in such goods, documents or instruments, or who sells the same to the buyer
on credit, retaining title or other interest as security for the payment of the purchase price, does not
constitute a trust receipt transaction and is outside the purview and coverage of this Decree.
An entrustee is one having or taking possession of goods, documents or instruments under a trust
receipt transaction, and any successor in interest of such person for the purpose of payment
specified in the trust receipt agreement.39 The entrustee is obliged to: (1) hold the goods, documents

or instruments in trust for the entruster and shall dispose of them strictly in accordance with the
terms and conditions of the trust receipt; (2) receive the proceeds in trust for the entruster and turn
over the same to the entruster to the extent of the amount owing to the entruster or as appears on
the trust receipt; (3) insure the goods for their total value against loss from fire, theft, pilferage or
other casualties; (4) keep said goods or proceeds thereof whether in money or whatever form,
separate and capable of identification as property of the entruster; (5) return the goods, documents
or instruments in the event of non-sale or upon demand of the entruster; and (6) observe all other
terms and conditions of the trust receipt not contrary to the provisions of the decree. 40
The entruster shall be entitled to the proceeds from the sale of the goods, documents or instruments
released under a trust receipt to the entrustee to the extent of the amount owing to the entruster or
as appears in the trust receipt, or to the return of the goods, documents or instruments in case of
non-sale, and to the enforcement of all other rights conferred on him in the trust receipt; provided,
such are not contrary to the provisions of the document. 41
In the case at bar, the transaction between petitioner and respondent bank falls under the trust
receipt transactions envisaged in P.D. No. 115. Respondent bank imported the goods and entrusted
the same to PBMI under the trust receipts signed by petitioner, as entrustee, with the bank as
entruster. The agreement was as follows:
And in consideration thereof, I/we hereby agree to hold said goods in trust for the said BANK as its
property with liberty to sell the same within ____days from the date of the execution of this Trust
Receipt and for the Banks account, but without authority to make any other disposition whatsoever
of the said goods or any part thereof (or the proceeds) either by way of conditional sale, pledge or
otherwise.
I/we agree to keep the said goods insured to their full value against loss from fire, theft, pilferage or
other casualties as directed by the BANK, the sum insured to be payable in case of loss to the
BANK, with the understanding that the BANK is, not to be chargeable with the storage premium or
insurance or any other expenses incurred on said goods.
In case of sale, I/we further agree to turn over the proceeds thereof as soon as received to the
BANK, to apply against the relative acceptances (as described above) and for the payment of any
other indebtedness of mine/ours to the BANK. In case of non-sale within the period specified herein,
I/we agree to return the goods under this Trust Receipt to the BANK without any need of demand.
I/we agree to keep the said goods, manufactured products or proceeds thereof, whether in the form
of money or bills, receivables, or accounts separate and capable of identification as property of the
BANK.42
It must be stressed that P.D. No. 115 is a declaration by legislative authority that, as a matter of
public policy, the failure of person to turn over the proceeds of the sale of the goods covered by a
trust receipt or to return said goods, if not sold, is a public nuisance to be abated by the imposition of
penal sanctions.43
The Court likewise rules that the issue of whether P.D. No. 115 encompasses transactions involving
goods procured as a component of a product ultimately sold has been resolved in the affirmative in
Allied Banking Corporation v. Ordoez.44 The law applies to goods used by the entrustee in the
operation of its machineries and equipment. The non-payment of the amount covered by the trust
receipts or the non-return of the goods covered by the receipts, if not sold or otherwise not disposed
of, violate the entrustees obligation to pay the amount or to return the goods to the entruster.

In Colinares v. Court of Appeals,45 the Court declared that there are two possible situations in a trust
receipt transaction. The first is covered by the provision which refers to money received under the
obligation involving the duty to deliver it (entregarla) to the owner of the merchandise sold. The
second is covered by the provision which refers to merchandise received under the obligation to
return it (devolvera) to the owner.46 Thus, failure of the entrustee to turn over the proceeds of the sale
of the goods covered by the trust receipts to the entruster or to return said goods if they were not
disposed of in accordance with the terms of the trust receipt is a crime under P.D. No. 115, without
need of proving intent to defraud. The law punishes dishonesty and abuse of confidence in the
handling of money or goods to the prejudice of the entruster, regardless of whether the latter is the
owner or not. A mere failure to deliver the proceeds of the sale of the goods, if not sold, constitutes a
criminal offense that causes prejudice, not only to another, but more to the public interest. 47
The Court rules that although petitioner signed the trust receipts merely as Senior Vice-President of
PBMI and had no physical possession of the goods, he cannot avoid prosecution for violation of P.D.
No. 115.
The penalty clause of the law, Section 13 of P.D. No. 115 reads:
Section 13. Penalty Clause. The failure of an entrustee to turn over the proceeds of the sale of the
goods, documents or instruments covered by a trust receipt to the extent of the amount owing to the
entruster or as appears in the trust receipt or to return said goods, documents or instruments if they
were not sold or disposed of in accordance with the terms of the trust receipt shall constitute the
crime of estafa, punishable under the provisions of Article Three hundred and fifteen, paragraph one
(b) of Act Numbered Three thousand eight hundred and fifteen, as amended, otherwise known as
the Revised Penal Code. If the violation or offense is committed by a corporation, partnership,
association or other juridical entities, the penalty provided for in this Decree shall be imposed upon
the directors, officers, employees or other officials or persons therein responsible for the offense,
without prejudice to the civil liabilities arising from the criminal offense.
1wphi1

The crime defined in P.D. No. 115 is malum prohibitum but is classified as estafa under paragraph
1(b), Article 315 of the Revised Penal Code, or estafa with abuse of confidence. It may be committed
by a corporation or other juridical entity or by natural persons. However, the penalty for the crime is
imprisonment for the periods provided in said Article 315, which reads:
ARTICLE 315. Swindling (estafa). Any person who shall defraud another by any of the means
mentioned hereinbelow shall be punished by:
1st. The penalty of prision correccional in its maximum period to prision mayor in its
minimum period, if the amount of the fraud is over 12,000 pesos but does not exceed 22,000
pesos; and if such amount exceeds the latter sum, the penalty provided in this paragraph
shall be imposed in its maximum period, adding one year for each additional 10,000 pesos;
but the total penalty which may be imposed shall not exceed twenty years. In such cases,
and in connection with the accessory penalties which may be imposed and for the purpose
of the other provisions of this Code, the penalty shall be termed prision mayor or reclusion
temporal, as the case may be;
2nd. The penalty of prision correccional in its minimum and medium periods, if the amount of
the fraud is over 6,000 pesos but does not exceed 12,000 pesos;
3rd. The penalty of arresto mayor in its maximum period to prision correccional in its
minimum period, if such amount is over 200 pesos but does not exceed 6,000 pesos; and

4th. By arresto mayor in its medium and maximum periods, if such amount does not exceed 200
pesos, provided that in the four cases mentioned, the fraud be committed by any of the following
means; xxx
Though the entrustee is a corporation, nevertheless, the law specifically makes the officers,
employees or other officers or persons responsible for the offense, without prejudice to the civil
liabilities of such corporation and/or board of directors, officers, or other officials or employees
responsible for the offense. The rationale is that such officers or employees are vested with the
authority and responsibility to devise means necessary to ensure compliance with the law and, if
they fail to do so, are held criminally accountable; thus, they have a responsible share in the
violations of the law.48
If the crime is committed by a corporation or other juridical entity, the directors, officers, employees
or other officers thereof responsible for the offense shall be charged and penalized for the crime,
precisely because of the nature of the crime and the penalty therefor. A corporation cannot be
arrested and imprisoned; hence, cannot be penalized for a crime punishable by
imprisonment.49 However, a corporation may be charged and prosecuted for a crime if the imposable
penalty is fine. Even if the statute prescribes both fine and imprisonment as penalty, a corporation
may be prosecuted and, if found guilty, may be fined. 50
A crime is the doing of that which the penal code forbids to be done, or omitting to do what it
commands. A necessary part of the definition of every crime is the designation of the author of the
crime upon whom the penalty is to be inflicted. When a criminal statute designates an act of a
corporation or a crime and prescribes punishment therefor, it creates a criminal offense which,
otherwise, would not exist and such can be committed only by the corporation. But when a penal
statute does not expressly apply to corporations, it does not create an offense for which a
corporation may be punished. On the other hand, if the State, by statute, defines a crime that may
be committed by a corporation but prescribes the penalty therefor to be suffered by the officers,
directors, or employees of such corporation or other persons responsible for the offense, only such
individuals will suffer such penalty.51 Corporate officers or employees, through whose act, default or
omission the corporation commits a crime, are themselves individually guilty of the crime. 52
The principle applies whether or not the crime requires the consciousness of wrongdoing. It applies
to those corporate agents who themselves commit the crime and to those, who, by virtue of their
managerial positions or other similar relation to the corporation, could be deemed responsible for its
commission, if by virtue of their relationship to the corporation, they had the power to prevent the
act.53 Moreover, all parties active in promoting a crime, whether agents or not, are
principals.54 Whether such officers or employees are benefited by their delictual acts is not a
touchstone of their criminal liability. Benefit is not an operative fact.
In this case, petitioner signed the trust receipts in question. He cannot, thus, hide behind the cloak of
the separate corporate personality of PBMI. In the words of Chief Justice Earl Warren, a corporate
officer cannot protect himself behind a corporation where he is the actual, present and efficient
actor.55
IN LIGHT OF ALL THE FOREGOING, the petition is DENIED for lack of merit. Costs against the
petitioner.
SO ORDERED.
G.R. No. 113930 March 5, 1996

PAUL G. ROBERTS, JR., RODOLFO C. SALAZAR, LUIS LORENZO, SR., LUIS LORENZO, JR.,
AMAURY R. GUTIERREZ, BAYANI N. FABIC, JOSE YULO, JR., ESTEBAN B. PALANNUAYAN,
and WONG FONG FUI,petitioners,
vs.
THE COURT OF APPEALS, THE HON. MAXIMIANO ASUNCION, in his capacity as the
Presiding Judge of the Regional Trial Court, Quezon City, Branch 104, HON. APOLINARIO G.
EXEVEA, HON. HENRICK F. GINGOYON, and HON. PHILIP A. AGUINALDO, in their capacities
as Members of the Department of Justice "349" Committee, and the CITY PROSECUTOR OF
QUEZON CITY, respondents.
J. ROBERT DELGADO, petitioner-Intervenor.

DAVIDE, JR., J.:p

We are urged in this petition to set aside (a) the decision of the Court of Appeals of 28 September
1993 in CA-G.R. SP No. 31226, 1 which dismissed the petition therein on the ground that it has been
"mooted with the release by the Department of Justice of its decision . . . dismissing petitioners' petition
for review"; (b) the resolution of the said court of 9 February 1994 2 denying the petitioners' motion to
reconsider the decision; (c) the order of 17 May 1993 3 of respondent Judge Maximiano C. Asuncion of
Branch 104 of the Regional Trial Court (RTC) of Quezon City in Criminal Case No. Q-93-43198 denying
petitioners' motion to suspend proceedings and to hold in abeyance the issuance of the warrants of arrest
and the public prosecutor's motion to defer arraignment; and (d) the resolutions of 23 July 1993 and 3
February 1994 4 of the Department of Justice (DOJ) dismissing petitioners' petition for the review of the
Joint Resolution of the Assistant City Prosecutor of Quezon City and denying the motion to reconsider the
dismissal, respectively.
The petitioners rely on the following grounds for the grant of the reliefs prayed for in this petition:
I
Respondent Judge acted with grave abuse of discretion when he ordered the arrest
of the petitioners without examining the record of the preliminary investigation and in
determining for himself on the basis thereof the existence of probable cause.
II
The Department of Justice "349" Committee acted with grave abuse of discretion
when it refused to review the City Prosecutor's Joint Resolution and dismissed
petitioner's appeal therefrom.
III
The Court of Appeals acted with grave abuse of discretion when it upheld the subject
order directing the issuance of the warrants of arrest without assessing for itself
whether based on such records there is probable cause against petitioners.
IV

The facts on record do not establish prima facie probable cause and Criminal Case
No. Q-93-43198 should have been dismissed. 5
The antecedents of this petition are not disputed.
Several thousand holders 6 of "349" Pepsi crowns in connection with the Pepsi Cola Products Phils.,
Inc.'s (PEPSI's) Number Fever Promotion 7 filed with the Office of the City Prosecutor of Quezon City
complaints against the petitioner's in their respective capacities as Presidents or Chief Executive Officers,
Chairman of the Board, Vice-Chairman of the Board, and Directors of PEPSI, and also against other
officials of PEPSI. The complaints respectively accuse the petitioners and the other PEPSI officials of the
following crimes: (a) estafa; (b) violation of R.A. No. 7394, otherwise known as the Consumer Act of the
Philippines; (c) violation of E.O. No. 913; 8 and (d) violation of Act No. 2333, entitled "An Act Relative to
Untrue, Deceptive and Misleading Advertisements," as amended by Act No. 3740. 9
After appropriate proceedings, the investigating prosecutor, Ramon M. Gerona, released on 23
March 1993 a Joint Resolution 10 where he recommended the filing of an information against the
petitioners and others for the violation of Article 318 of the Revised Penal Code and the dismissal of the
complaints for the violation of Article 315, 2(d) of the Revised Penal Code; R.A. No. 7394; Act No. 2333,
as amended by Act No. 3740; and E.O. No. 913. The dispositive portion thereof reads as follows:
In view of all the foregoing, it is recommended that:
1. The attached information be filed against respondents Paul G. Roberts, Jr.,
Rodolfo C. Salazar, Rosemarie R. Vera, Luis F. Lorenzo, Sr., Luis P. Lorenzo, Jr., J.
Roberto Delgado, Amaury R. Gutierrez, Bayani N. Fabic, Jose Yulo, Jr., Esteban B.
Pacannuayan, Jr., Wong Fong Fui, Quintin J. Gomez, Jr. and Chito V. Gutierrez for
estafa under Article 318, Revised Penal Code, while the complaint for violation of
Article 315, 2(d), Revised Penal Code against same respondents Juanito R. Ignacio,
R. Sobong, R.O. Sinsuan, M.P. Zarsadias, L.G. Dabao, Jr., R.L. Domingo, N.N.
Bacsal, Jesus M. Manalastas, Janette P. Pio de Roda, Joaquin W. Sampaico,
Winefreda O. Madarang, Jack Gravey, Les G. Ham, Corazon Pineda, Edward S.
Serapio, Alex O. Caballes, Sandy Sytangco, Jorge W. Drysdale, Richard Blossom,
Pablo de Borja, Edmundo L. Tan, Joseph T. Cohen, Delfin Dator, Zosimo B. San
Juan, Joaquin Franco, Primitivo S. Javier, Jr., Luisito Guevarra, Asif H. Adil, Eugenio
Muniosguren, James Ditkoff and Timothy Lane be dismissed;
2. The complaints against all respondents for violation of R.A. 7394 otherwise known
as the Consumer Act of the Philippines and violation of Act 2333 as amended by Act
3740 and E.O. 913 be also dismissed for insufficiency of evidence, and
3. I.S. Nos. 92-7833; 92-8710 and 92-P-1065 involving Crowns Nos. 173; 401; and
117, 425, 703 and 373, respectively, alleged to be likewise winning ones be further
investigated to afford respondents a chance to submit their counter-evidence. 11
On 6 April 1993, City Prosecutor Candido V. Rivera approved the recommendation with the
modification that Rosemarie Vera, Quintin Gomez, Jr., and Chito Gonzales be excluded from the
charge on the ground of insufficiency of evidence. 12
The information for estafa attached to the Joint Resolution was approved (on 7 April 1993) by Ismael
P. Casabar, Chief of the Prosecution Division, upon authority of the City Prosecutor of Quezon City,
and was filed with the RTC of Quezon City on 12 April 1993. It was docketed as Criminal Case No.
Q-93-43198. 13 The information reads as follows:

The undersigned 1st Assistant City Prosecutor accuses PAUL G. ROBERTS, JR.
RODOLFO C. SALAZAR, LUIS F. LORENZO, SR., LUIS P. LORENZO, JR., J.
ROBERTO DELGADO, AMAURY R. GUTIERREZ, BAYANI N. FABIC, JOSE YULO,
JR., ESTEBAN B. PACANNUAYAN, JR. and WONG FONG FUI, of the crime of
ESTAFA, committed as follows:
That in the month of February, 1992, in Quezon City, Philippines and for sometime
prior and subsequent thereto, the above-named
accused
Paul G. Roberts, Jr. ) being then the Presidents
Rodolfo G. Salazar ) and Executive Officers
Luis F. Lorenzo, Sr. ) being then the Chairman
of the Board of Directors
Luis P. Lorenzo, Jr. ) being then the Vice
Chairman of the Board
J. Roberto Delgado )
Amaury R. Gutierrez ) being then Members of
Bayani N. Fabic ) the Board
Jose Yulo, Jr. )
Esteban B. Pacannuayan, )
Jr. and
Wong Fong Fui )
OF THE PEPSI COLA PRODUCTS PHILIPPINES, INC., CONSPIRING with one
another, with intent of gain, by means of deceit, fraudulent acts or false pretenses,
executed prior to or simultaneously with the commission of the fraud, did then and
there willfully, unlawfully and feloniously defraud the private complainants whose
names with their prizes claimed appear in the attached lists marked as Annexes "A"
to "A-46"; "B" to "-33"; "C" to "C-281"; "D" to "D-238"; "E" to "E-30" and "F" to "F-244"
in the following manner: on the date and in the place aforementioned, said accused
pursuant to their conspiracy, launched the Pepsi Cola Products Philippines, Inc.
"Number Fever Promotion" from February 17 to May 8, 1992 later extended to May
11-June 12, 1992 and announced and advertised in the media that "all holders of
crowns and/or caps of Pepsi, Mirinda, Mountain Dew and Seven-up bearing the
winning 3-digit number will win the full amount of the prize printed on the
crowns/caps which are marked with a seven-digit security code as a measure
against tampering or faking of crowns and each and every number has its own
unique matching security code", enticing the public to buy Pepsi softdrinks with

aforestated alluring and attractive advertisements to become millionaires, and by

virtue of such representations made by the accused, the said complainants bought
Pepsi softdrinks, but, the said accused after their TV announcement on May 25,
1992 that the winning number for the next day was "349", in violation of their
aforecited mechanics, refused as they still refuse to redeem/pay the said Pepsi
crowns and/or caps presented to them by the complainants, who, among others,
were able to buy Pepsi softdrinks with crowns/caps bearing number "349" with
security codes L-2560-FQ and L-3560-FQ, despite repeated demands made by the
complainants, to their damage and prejudice to the extent of the amount of the prizes
respectively due them from their winning "349" crowns/caps, together with such
amounts they spent in going to and from the Office of Pepsi to claim their prizes and
such other amounts used in buying Pepsi softdrinks which the complainants normally
would not have done were it not for the false, fraudulent and deceitful posters of
Pepsi Cola Products Philippines, Inc.
CONTRARY TO LAW.
On 14 April 1993, the petitioners filed with the Office of the City Prosecutor a motion for the
reconsideration of the Joint Resolution 14 alleging therein that (a) there was neither fraud in the Number
Fever Promotion nor deviation from or modification of the promotional rules approved by the Department
of Trade and Industry (DTI), for from the start of the promotion, it had always been clearly explained to the
public that for one to be entitled to the cash prize his crown must bear both the winning number and the
correct security code as they appear in the DTI list; (b) the complainants failed to allege, much less prove
with prima facie evidence, the specific overt criminal acts or omissions purportedly committed by each of
the petitioners; (c) the compromise agreement entered into by PEPSI is not an admission of guilt; and (d)
the evidence establishes that the promo was carried out with utmost good faith and without malicious
intent.
On 15 April 1993, the petitioners filed with the DOJ a Petition for Review 15 wherein, for the same
grounds adduced in the aforementioned motion for reconsideration, they prayed that the Joint Resolution
be reversed and the complaints dismissed. They further stated that the approval of the Joint Resolution
by the City Prosecutor was not the result of a careful scrutiny and independent evaluation of the relevant
facts and the applicable law but of the grave threats, intimidation, and actual violence which the
complainants had inflicted on him and his assistant prosecutors.
On that same date, the petitioners filed in Criminal Case No. Q-93-43198 Motions to Suspend
Proceedings and to Hold in Abeyance Issuance of Warrants of Arrest on the ground that they had
filed the aforesaid Petition for Review. 16
On 21 April 1993, acting on the Petition for Review, Chief State Prosecutor Zenon L. de Guia issued
a 1st Indorsement, 17 directing the City Prosecutor of Quezon City to inform the DOJ whether the
petitioners have already been arraigned, and if not, to move in court for the deferment of further
proceedings in the case and to elevate to the DOJ the entire records of the case, for the case is being
treated as an exception pursuant to Section 4 of Department Circular No. 7 dated 25 January 1990.
On 22 April 1993, Criminal Case No. Q-93-41398 was raffle to Branch 104 of the RTC of Quezon
City. 18
In the morning of 27 April 1993, private prosecutor Julio Contreras filed an Ex-Parte Motion for
Issuance of Warrants of Arrest. 19
In the afternoon of that same day, petitioner Paul Roberts, Jr., filed a Supplemental Urgent Motion to
Hold in Abeyance Issuance of Warrant of Arrest and to Suspend Proceedings. 20 He stressed that the

DOJ had taken cognizance of the Petition for Review by directing the City Prosecutor to elevate the
records of I.S. No. P-4401 and its related cases and asserted that the petition for review was an essential
part of the petitioners' right to a preliminary investigation.

The next day, respondent Judge Asuncion, Presiding Judge of Branch 104 of the RTC of Quezon
City, issued an order advising the parties that his court would "be guided by the doctrine laid down
by the Supreme Court in the case of Crespo vs. Mogul, 151 SCRA 462 and not by the resolution of
the Department of Justice on the petition for review undertaken by the accused." 21
On 30 April 1993, Assistant City Prosecutor Tirso M. Gavero filed with the trial court a Motion to
Defer Arraignment wherein he also prayed that "further proceedings be held in abeyance pending
final disposition by the Department of Justice." 22
On 4 May 1993, Gavero filed an Amended Information, 23 accompanied by a corresponding motion 24 to
admit it. The amendments merely consist in the statement that the complainants therein were only
"among others" who were defrauded by the accused and that the damage or prejudice caused amounted
"to several billions of pesos, representing the amounts due them from their winning '349' crowns/caps."
The trial court admitted the amended information on the same date. 25
Later, the attorneys for the different private complainants filed, respectively, an Opposition to Motion
to Defer Arraignment, 26 and Objection and Opposition to Motion to Suspend Proceedings and to Hold in
Abeyance the Issuance of Warrants of Arrest. 27
On 14 May 1993, the petitioners filed a Memorandum in Support of their Motion to Suspend
Proceedings and to Hold in Abeyance the Issuance of the Warrants of Arrest. 28
On 17 May 1993, respondent Judge Asuncion issued the challenged order (1) denying the
petitioners' Motion to Suspend Proceedings and to Hold in Abeyance Issuance of Warrants of Arrest
and the public prosecutor's Motion to Defer Arraignment and (2) directing the issuance of the
warrants of arrest "after June 1993" and setting the arraignment on 28 June 1993. 29 Pertinent
portions of the order read as follows:
In the Motion filed by the accused, it is alleged that on April 15, 1993, they filed a
petition for review seeking the reversal of the resolution of City Prosecutor of Quezon
City approving the filing of the case against the accused, claiming that:
1. The resolution constituting [sic] force and duress;
2. There was no fraud or deceit therefore there can be no estafa;
3. No criminal overt acts by respondents were proved;
4. Pepsi nor the accused herein made no admission of guilt before
the Department of Trade and Industry;
5. The evidence presented clearly showed no malicious intent on the
part of the accused.
Trial Prosecutor Tirso M. Gavero in his Motion to Defer Arraignment averred that
there is a pending petition for review with the Department of Justice filed by the
accused and the Office of the City Prosecutor was directed, among other things, to

cause for the deferment of further proceedings pending final disposition of said
Petition by the Department of Justice.
The motions filed by the accused and the Trial Prosecutor are hereby DENIED.
This case is already pending in this Court for trial. To follow whatever opinion the
Secretary of Justice may have on the matter would undermine the independence and
integrity of this Court. This Court is still capable of administering justice.
The Supreme Court in the case of Crespo vs. Mogul (SCRA 151, pp. 471-472) stated
as follows:
In order therefor to avoid such a situation whereby the opinion of the
Secretary of Justice who reviewed the action of the fiscal may be
disregarded by the trial court, the Secretary of Justice should, as far
as practicable, refrain from entertaining a petition for review or appeal
from the action of the fiscal, when the complaint or information has
already been filed in Court. The matter should be left entirely for the
determination of the Court.
WHEREFORE, let warrant of arrest be issued after June 21, 1993, and arraignment
be set on June 28, 1993, at 9:30 in the morning.
On 7 June 1993, the petitioners filed with the Court of Appeals a special civil action for certiorari and
prohibition with application for a temporary restraining order, 30 which was docketed as CA-G.R. SP No.
31226. They contended therein that respondent Judge Asuncion had acted without or in excess of
jurisdiction or with grave abuse of discretion in issuing the aforementioned order of 17 May 1993 because
I. RESPONDENT JUDGE FAILED TO EXAMINE THE RECORD OF PRELIMINARY
INVESTIGATION BEFORE ORDERING THE ARREST OF PETITIONERS.
II. THERE IS NO PROBABLE CAUSE TO HOLD PETITIONERS CRIMINALLY
LIABLE FOR ESTAFA, OTHER DECEITS, OR ANY OTHER OFFENSE.
III. THE PROCEEDINGS BELOW SHOULD HAVE BEEN SUSPENDED TO AWAIT
THE SECRETARY OF JUSTICE'S RESOLUTION OF PETITIONERS' APPEAL, AND
IV. THERE IS NO OTHER PLAIN, SPEEDY AND ADEQUATE REMEDY IN THE
ORDINARY COURSE OF LAW.
On 15 June 1993, the Court of Appeals issued a temporary restraining order to maintain the status
quo. 31 In view thereof; respondent Judge Asuncion issued an order on 28 June 1993 32 postponing
indefinitely the arraignment of the petitioners which was earlier scheduled on that date.
On 28 June 1993, the Court of Appeals heard the petitioners' application for a writ of preliminary
injunction, granted the motion for leave to intervene filed by J. Roberto Delgado, and directed the
Branch Clerk of Court of the RTC of Quezon City to elevate the original records of Criminal Case No.
4-93-43198. 33
Upon receipt of the original records of the criminal case, the Court of Appeals found that a copy of
the Joint Resolution had in fact been forwarded to, and received by, the trial court on 22 April 1993,

which fact belied the petitioners' claim that the respondent Judge had not the slightest basis at all for
determining probable cause when he ordered the issuance of warrants of arrest. It ruled that the
Joint Resolution "was sufficient in itself to have been relied upon by respondent Judge in convincing
himself that probable cause indeed exists for the purpose of issuing the corresponding warrants of
arrest"; and that the "mere silence of the records or the absence of any express declaration" in the
questioned order as to the basis of such finding does not give rise to an adverse inference, for the
respondent Judge enjoys in his favor the presumption of regularity in the performance of his official
duty. The Court of Appeals then issued a resolution 34 denying the application for a writ of preliminary
injunction.
On 8 June 1993, the petitioners filed a motion to reconsider 35 the aforesaid resolution. The Court of
Appeals required the respondents therein to comment on the said motion. 36
On 3 August 1993, the counsel for the private complainants filed in CA-G.R. SP No. 31226 a
Manifestation 37informing the court that the petitioners' petition for review filed with the DOJ was
dismissed in a resolution dated 23 July 1993. A copy 38 of the resolution was attached to the
Manifestation.
On 21 September 1993, the public respondents filed in CA-G.R. SP No. 31226 a motion to dismiss
the petition 39on the ground that it has become moot and academic in view of the dismissal by the DOJ of
the petitioners' petition to review the Joint Resolution. The dismissal by the DOJ is founded on the
following exposition:
You questioned the said order of the RTC before the Court of Appeals and prayed for
the issuance of a writ of preliminary injunction to restrain the Trial Judge from issuing
any warrant of arrest and from proceeding with the arraignment of the accused. The
appellate court in a resolution dated July 1, 1993, denied your petition.
In view of the said developments, it would be an exercise in futility to continue
reviewing the instant cases for any further action on the part of the Department would
depend on the sound discretion of the Trial Court. The denial by the said court of the
motion to defer arraignment filed at our instance was clearly an exercise of its
discretion. With the issuance of the order dated May 17, 1993, Trial Court was in
effect sending a signal to this Department that "the determination of the case is within
its exclusive jurisdiction and competence." The rule is that ". . . once a complaint or
information is filed in Court, any disposition of the case as to dismissal or the
conviction or acquittal of the accused rests in the sound discretion of the Court.
Although the fiscal retains the direction and control of the prosecution of criminal
cases even while the case is already in Court, he cannot impose his opinion on the
trial court. The court is the best and sole judge on what to do with the case before it. .
. ." (Crespo vs. Mogul, 151 SCRA 462). 40
On 28 September 1993, the Court of Appeals promulgated a decision 41 dismissing the petition
because it had been "mooted with the release by the Department of Justice of its decision . . . dismissing
petitioners' petition for review by inerrantly upholding the criminal court's exclusive and unsupplantable
authority to control the entire course of the case brought against petitioners, reiterating with approval the
dictum laid down in the 'Crespo' case."
The petitioners filed a motion to reconsider the DOJ's dismissal of the petition citing therein its
resolutions in other similar cases which were favorable to the petitioners and adverse to other "349"
Pepsi crowns holders.

In its resolution of 3 February 1994, the DOJ, through its "349" Committee, denied the motion and
stated: "The instant petition is different from the other petitions resolved by this Department in similar
cases from
the provinces. In the latter petitions, the complaints against herein respondents [sic] 42 were dismissed
inasmuch as the informations have not yet been filed or even if already filed in court, the proceedings
have been suspended by the courts to await the outcome of the appeal pending with this Department." 43
The petitioners likewise filed a motion to reconsider 44 the aforesaid Court of Appeals' decision, which
the said court denied in its resolution 45 of 9 February 1994. Hence, the instant petition.
The First Division of this Court denied due course to this petition in its resolution of 19 September
1994. 46
On 7 October 1994, the petitioners filed a motion for the
reconsideration 47 of the aforesaid resolution. Acting thereon, the First Division required the respondents
to comment thereon.
Later, the petitioners filed a supplemental motion for reconsideration 48 and a motion to refer this case
to the Court en banc. 49 In its resolution of 14 November 1994, 50 the First Division granted the latter
motion and required the respondents to comment on the supplemental motion for reconsideration.
In the resolution of 24 November 1994, the Court en banc accepted the referral.
On 10 October 1995, after deliberating on the motion for reconsideration and the subsequent
pleadings in relation thereto, the Court en banc granted the motion for reconsideration; reconsidered
and set aside the resolution of 19 September 1994; and reinstated the petition. It then considered
the case submitted for decision, "since the parties have exhaustively discussed the issues in their
pleadings, the original records of Criminal Case No. Q-93-43198 and of CA-G.R. SP No. 31226 had
been elevated to this Court, and both the petitioners and the Office of the Solicitor General pray, in
effect, that this Court resolve the issue of probable cause on the basis thereof."
The pleadings of the parties suggest for this Court's resolution the following key issues:
1. Whether public respondent Judge Asuncion committed grave abuse of discretion
in denying, on the basis of Crespo vs. Mogul, the motions to suspend proceedings
and hold in abeyance the issuance of warrants of arrest and to defer arraignment
until after the petition for review filed with the DOJ shall have been resolved.
2. Whether public respondent Judge Asuncion committed grave abuse of discretion
in ordering the issuance of warrants of arrest without examining the records of the
preliminary investigation.
3. Whether the DOJ, through its "349" Committee, gravely abused its discretion in
dismissing the petition for review on the following bases: (a) the resolution of public
respondent Court of Appeals denying the application for a writ of preliminary
injunction and (b) of public respondent Asuncion's denial of the abovementioned
motions.
4. Whether public respondent Court of Appeals committed grave abuse of discretion
(a) in denying the motion for a writ of preliminary injunction solely on the ground that
public respondent Asuncion had already before him the Joint Resolution of the
investigating prosecutor when he ordered the issuance of the warrants of arrest, and

(b) in ultimately dismissing the petition on the ground of mootness since the DOJ had
dismissed the petition for review.
5. Whether this Court may determine in this proceedings the existence of probable
cause either for the issuance of warrants of arrest against the petitioners or for their
prosecution for the crime of estafa.
We resolve the first four issues in the affirmative and the fifth, in the negative.
I.
There is nothing in Crespo vs. Mogul 51 which bars the DOJ from taking cognizance of an appeal, by
way 'of a petition for review, by an accused in a criminal case from an unfavorable ruling of the
investigating prosecutor. It merely advised the DOJ to, "as far as practicable, refrain from entertaining a
petition for review or appeal from the action of the fiscal, when the complaint or information has already
been filed in Court." More specifically, it stated:
In order therefore to avoid such a situation whereby the opinion of the Secretary of
Justice who reviewed the action of the fiscal may be disregarded by the trial court,
the Secretary of Justice should, as far as practicable, refrain from entertaining a
petition for review or appeal from the action of the fiscal, when the complaint or
information has already been filed in Court. The matter should, be left entirely for the
determination of the Court. 52
In Marcelo vs. Court of Appeals, 53 this Court explicitly declared:
Nothing in the said ruling forecloses the power or authority of the Secretary of Justice
to review resolutions of his subordinates in criminal cases. The Secretary of Justice
is only enjoined to refrain as far as practicable from entertaining a petition for review
or appeal from the action of the prosecutor once a complaint or information is filed in
court. In any case, the grant of a motion to dismiss, which the prosecution may file
after the Secretary of Justice reverses an appealed resolution, is subject to the
discretion of the court.
Crespo could not have intended otherwise without doing violence to, or repealing, the last paragraph
of Section 4, Rule 112 of the Rules of Court 54 which recognizes the authority of the Secretary of Justice
to reverse the resolution of the provincial or city prosecutor or chief state prosecutor upon petition by a
proper party.
Pursuant to the said provision, the Secretary of Justice had promulgated the rules on appeals from
resolutions in preliminary investigation. At the time the petitioners filed their petition for the review of
the Joint Resolution of the investigating prosecutor, the governing rule was Circular No. 7, dated 25
January 1990. Section 2 thereof provided that only resolutions dismissing a criminal complaint may
be appealed to the Secretary of Justice. Its Section 4, 55 however, provided an exception, thus allowing,
upon a showing of manifest error or grave abuse of discretion, appeals from resolutions finding probable
cause, provided that the accused has not been arraigned.
The DOJ gave due course to the petitioners' petition for review as an exception pursuant to Section
4 of Circular No. 7.

Meanwhile, the DOJ promulgated on 30 June 1993 Department Order No. 223 56 which superseded
Circular No. 7. This Order, however, retained the provisions of Section 1 of the Circular on appealable
cases and Section 4 on the non-appealable cases and the exceptions thereto.
There is nothing in Department Order No. 223 which would warrant a recall of the previous action of
the DOJ giving due course to the petitioners' petition for review. But whether the DOJ would affirm or
reverse the challenged Joint Resolution is still a matter of guesswork. Accordingly, it was premature
for respondent Judge Asuncion to deny the motions to suspend proceedings and to defer
arraignment on the following grounds:
This case is already pending in this Court for trial. To follow whatever opinion the
Secretary of Justice may have on the matter would undermine the independence and
integrity of this Court. This Court is still capable of administering justice.
The real and ultimate test of the independence and integrity of his court is not the filing of the
aforementioned motions at that stage of the proceedings but the filing of a motion to dismiss or to
withdraw the information on the basis of a resolution of the petition for review reversing the Joint
Resolution of the investigating prosecutor. Before that time, the following pronouncement
in Crespo did not yet truly become relevant or applicable:
The rule therefore in this jurisdiction is that once a complaint or information is filed in
Court any disposition of the case as its dismissal or the conviction or acquittal of the
accused rests in the sound discretion of the court. Although the fiscal retains the
direction and control of the prosecution of criminal cases even while the case is
already in court he cannot impose his opinion on the trial court. The court is the best
and sole judge on what to do with the case before it. The determination of the case is
within its exclusive jurisdiction and competence. A motion to dismiss the case filed by
the fiscal should be addressed to the Court who has the option to grant or deny the
same. It does not matter if this is done before or after the arraignment of the accused
or that the motion was filed after a reinvestigation or upon instructions of the
Secretary of Justice who reviewed the records of the investigation. 57
However, once a motion to dismiss or withdraw the information is filed the trial judge may
grant or deny it, not out of subservience to the Secretary of Justice, but in faithful exercise of
judicial prerogative. This Court pertinently stated so in Martinez vs. Court of Appeals: 58
Whether to approve or disapprove the stand taken by the prosecution is not the exercise
of discretion required in cases like this. The trial judge must himself be convinced that
there was indeed no sufficient evidence against the accused, and this conclusion can be
arrived at only after an assessment of the evidence in the possession of the prosecution.
What was imperatively required was the trial judge's own assessment of such evidence, it
not being sufficient for the valid and proper exercise of judicial discretion merely to accept
the prosecution's word for its supposed insufficiency.

As aptly observed the Office of the Solicitor General, in failing to make an

independent finding of the merits of the case and merely anchoring the dismissal on
the revised position of the prosecution, the trial judge relinquished the discretion he
was duty bound to exercise. In effect, it was the prosecution, through the Department
of Justice which decided what to do and not the court which was reduced to a mere
rubber stamp in violation of the ruling in Crespo vs. Mogul.
II.

Section 2, Article III of the present Constitution provides that no search warrant or warrant of arrest
shall issue except upon probable cause to be determined personally by the judge after examination
under oath or affirmation of the complainant and the witnesses he may produce.
Under existing laws, warrants of arrest may be issued (1) by the Metropolitan Trial Courts (MeTCs)
except those in the National Capital Region, Municipal Trial Courts (MTCs), and Municipal Circuit
Trial Courts (MCTCs) in cases falling within their exclusive original jurisdiction; 59 in cases covered by
the rule on summary procedure where the accused fails to appear when required; 60 and in cases filed with
them which are cognizable by the Regional Trial Courts (RTCs); 61 and (2) by the Metropolitan Trial Courts
in the National Capital Region (MeTCs-NCR) and the RTCs in cases filed with them after appropriate
preliminary investigations conducted by officers authorized to do so other than judges of MeTCs, MTCs
and MCTCs. 62
As to the first, a warrant can issue only if the judge is satisfied after an examination in writing and
under oath of the complainant and the witnesses, in the form of searching questions and answers,
that a probable cause exists and that there is a necessity of placing the respondent under immediate
custody in order not to frustrate the ends of justice.
As to the second, this Court held in Soliven vs. Makasiar 63 that the judge is not required to personally
examine the complainant and the witnesses, but
[f]ollowing established doctrine and procedure, he shall: (1) personally evaluate the
report and supporting documents submitted by the fiscal regarding the existence of
probable cause and, on the basis thereof; issue a warrant of arrest; or (2) if on the
basis thereof he finds no probable cause, he may disregard the fiscal's report and
require the submission of supporting affidavits of witnesses to aid him in arriving at a
conclusion as to the existence of probable cause. 64
Sound policy supports this procedure, "otherwise judges would be unduly laden with the
preliminary examination and investigation of criminal complaints instead of concentrating on
hearing and deciding cases filed before their courts." It must be emphasized that judges
must not rely solely on the report or resolution of the fiscal (now prosecutor); they must
evaluate the report and the supporting document. In this sense, the aforementioned
requirement has modified paragraph 4(a) of Circular No. 12 issued by this Court on 30 June
1987 prescribing the Guidelines on Issuance of Warrants of Arrest under Section 2, Article III
of the 1987 Constitution, which provided in part as follows:
4. In satisfying himself of the existence of a probable cause for the issuance of a
warrant of arrest, the judge, following established doctrine and procedure, may
either:
(a) Rely upon the fiscal's certification of the existence of probable
cause whether or not the case is cognizable only by the Regional
Trial Court and on the basis thereof, issue a warrant of arrest. . . .
This requirement of evaluation not only of the report or certification of the fiscal but also of the
supporting documents was further explained in People vs. Inting, 65 where this Court specified what the
documents may consist of, viz., "the affidavits, the transcripts of stenographic notes (if any), and all other
supporting documents behind the Prosecutor's certification which are material in assisting the Judge to
make his determination" of probable cause. Thus:

We emphasize the important features of the constitutional mandate that ". . . no

search warrant or warrant of arrest shall issue except upon probable cause to be
determined personally by the judge . . ." (Article III, Section 2, Constitution).
First, the determination of probable cause is a function of the Judge. It is not for the
Provincial Fiscal or Prosecutor nor the Election Supervisor to ascertain. Only the
Judge and the Judge alone makes this determination.
Second, the preliminary inquiry made by a Prosecutor does not bind the Judge. It
merely assists him to make the determination of probable cause. The Judge does not
have to follow what the Prosecutor presents to him. By itself, the Prosecutor's
certification of probable cause is ineffectual. It is the report, the affidavits, the
transcripts of stenographic notes (if any), and all other supporting documents behind
the Prosecutor's certification which are material in assisting the Judge to
make hisdetermination.
In adverting to a statement in People vs. Delgado 66 that the judge may rely on the resolution of the
Commission on Elections (COMELEC) to file the information by the same token that it may rely on the
certification made by the prosecutor who conducted the preliminary investigation in the issuance of the
warrant of arrest, this Court stressed in Lim vs. Felix 67that
Reliance on the COMELEC resolution or the Prosecutor's certification presupposes
that the records of either the COMELEC or the Prosecutor have been submitted to
the Judge and he relies on the certification or resolution because the records of the
investigation sustain the recommendation. The warrant issues not on the strength of
the certification standing alone but because of the records which sustain it.
And noting that judges still suffer from the inertia of decisions and practice under the 1935
and 1973 Constitutions, this Court found it necessary to restate the rule "in greater detail and
hopefully clearer terms." It then proceeded to do so, thus:
We reiterate the ruling in Soliven vs. Makasiar that the Judge does not have to
personally examine the complainant and his witnesses. The Prosecutor can perform
the same functions as a commissioner for the taking of the evidence. However, there
should be a report and necessary documents supporting the Fiscal's bare
certification. All of these should be before the Judge.
The extent of the Judge's personal examination of the report and its annexes
depends on the circumstances of each case. We cannot determine beforehand how
cursory or exhaustive the Judge's examination should be. The Judge has to exercise
sound discretion for, after all, the personal determination is vested in the Judge by
the Constitution. It can be as brief as or detailed as the circumstances of each case
require. To be sure, the Judge must go beyond the Prosecutor's certification and
investigation report whenever necessary. He should call for the complainant and
witnesses themselves to answer the court's probing questions when the
circumstances of the case so require.
This Court then set aside for being null and void the challenged order of respondent Judge
Felix directing the issuance of the warrants of arrest against petitioners Lim, et al., solely on
the basis of the prosecutor's certification in the informations that there existed probable
cause "without having before him any other basis for his personal determination of the
existence of a probable cause."

In Allado vs. Diokno, 68 this Court also ruled that "before issuing a warrant of arrest, the judge
must satisfy himself that based on the evidence submitted there is sufficient proof that a crime
has been committed and that the person to be arrested is probably guilty thereof."
In the recent case of Webb vs. De Leon, 69 this Court rejected the thesis of the petitioners of absence of
probable cause and sustained the investigating panel's and the respondent Judge's findings of probable
cause. After quoting extensively from Soliven vs. Makasiar, 70 this Court explicitly pointed out:
Clearly then, the Constitution, the Rules of Court, and our case law repudiate the
submission of petitioners that respondent judges should have conducted "searching
examination of witnesses" before issuing warrants of arrest against them. They also
reject petitioners' contention that a judge must first issue an order of arrest before
issuing a warrant of arrest. There is no law or rule requiring the issuance of an Order
of Arrest prior to a warrant of arrest.
In the case at bar, the DOJ Panel submitted to the trial court its 26-page report, the
two (2) sworn statements of Alfaro and the sworn statements of Carlos Cristobal and
Lolita Birrer as well as the counter-affidavits of the petitioners. Apparently, the
painstaking recital and analysis of the parties' evidence made in the DOJ Panel
Report satisfied both judges that there is probable cause to issue warrants of arrest
against petitioners. Again, we stress that before issuing warrants of arrest, judges
merely determine personally the probability, not the certainty of the guilt of an
accused. In doing so, judges do not conduct a de novo hearing to determine the
existence of probable cause. They just personally review the initial determination of
the prosecutor finding a probable cause to see if it is supported by substantial
evidence. The sufficiency of the review process cannot be measured by merely
counting minutes and hours. The fact that it took the respondent judges a few hours
to review and affirm the probable cause determination of the DOJ Panel does not
mean they made no personal evaluation of the evidence attached to the records of
the case. (emphasis supplied)
The teachings then of Soliven, Inting, Lim, Allado, and Webb reject the proposition that the
investigating prosecutor's certification in an information or his resolution which is made the basis for
the filing of the information, or both, would suffice in the judicial determination of probable cause for
the issuance of a warrant of arrest. In Webb, this Court assumed that since the respondent Judges
had before them not only the 26-page resolution of the investigating panel but also the affidavits of
the prosecution witnesses and even the counter-affidavits of the respondents, they (judges) made
personal evaluation of the evidence attached to the records of the case.
Unfortunately, in Criminal Case No. Q-93-43198, nothing accompanied the information upon its filing
on 12 April 1993 with the trial court. As found by the Court of Appeals in its resolution of 1 July 1993,
a copy of the Joint Resolution was forwarded to, and received by, the trial court only on 22 April
1993. And as revealed by the certification 71 of Branch Clerk of Court Gibson Araula, Jr., no affidavits of
the witnesses, transcripts of stenographic notes of the proceedings during the preliminary investigation, or
other documents submitted in the course thereof were found in the records of Criminal Case No. Q-9343198 as of 19 May 1993. Clearly, when respondent Judge Asuncion issued the assailed order of 17 May
1993 directing, among other things, the issuance of warrants of arrest, he had only the information,
amended information, and Joint Resolution as bases thereof. He did not have the records or evidence
supporting the prosecutor's finding of probable cause. And strangely enough, he made no specific finding
of probable cause; he merely directed the issuance of warrants of arrest "after June 21, 1993." It may,
however, be argued that the directive presupposes a finding of probable cause. But then compliance with
a constitutional requirement for the protection of individual liberty cannot be left to presupposition,
conjecture, or even convincing logic.

III.
As earlier stated, per its 1st Indorsement of 21 April 1993, the DOJ gave due course to the
petitioners' petition for review pursuant to the exception provided for in Section 4 of Circular No. 7,
and directed the Office of the City Prosecutor of Quezon City to forward to the Department the
records of the cases and to file in court a motion for the deferment of the proceedings. At the time it
issued the indorsement, the DOJ already knew that the information had been filed in court, for which
reason it directed the City Prosecutor to inform the Department whether the accused have already
been arraigned and if not yet arraigned, to move to defer further proceedings. It must have been fully
aware that, pursuant to Crespo vs. Mogul, a motion to dismiss a case filed by the prosecution either
as a consequence of a reinvestigation or upon instructions of the Secretary of Justice after a review
of the records of the investigation is addressed to the trial court, which has the option to grant or to
deny it. Also, it must have been still fresh in its mind that a few months back it had dismissed for lack
of probable cause other similar complaints of holders of "349" Pepsi crowns. 72 Thus, its decision to
give due course to the petition must have been prompted by nothing less than an honest conviction that a
review of the Joint Resolution was necessary in the highest interest of justice in the light of the special
circumstances of the case. That decision was permissible within the "as far as practicable" criterion
in Crespo.
Hence, the DOJ committed grave abuse of discretion when it executed on 23 July 1993 a
unilateral volte-face, which was even unprovoked by a formal pleading to accomplish the same end,
by dismissing the petition for review. It dismissed the petition simply because it thought that a review
of the Joint Resolution would be an exercise in futility in that any further action on the part of the
Department would depend on the sound discretion of the trial court, and that the latter's denial of the
motion to defer arraignment filed at the instance of the DOJ was clearly an exercise of that discretion
or was, in effect, a signal to the Department that the determination of the case is within the court's
exclusive jurisdiction and competence. This infirmity becomes more pronounced because the reason
adduced by the respondent Judge for his denial of the motions to suspend proceedings and hold in
abeyance issuance of warrants of arrest and to defer arraignment finds, as yet, no support
in Crespo.
IV.
If the only issue before the Court of Appeals were the denial of the petitioners' Motion to Suspend
Proceedings and to Hold in Abeyance Issuance of Warrants of Arrest and the public prosecutor's
Motion to Defer Arraignment, which were both based on the pendency before the DOJ of the petition
for the review of the Joint Resolution, the dismissal of CA-G.R. SP No. 31226 on the basis of the
dismissal by the DOJ of the petition for review might have been correct. However, the petition
likewise involved the issue of whether respondent Judge Asuncion gravely abused his discretion in
ordering the issuance of warrants of arrest despite want of basis. The DOJ's dismissal of the petition
for review did not render moot and academic the latter issue.
In denying in its resolution of 1 July 1993 the petitioners' application for a writ of preliminary
injunction to restrain respondent Judge Asuncion from issuing warrants of arrest, the Court of
Appeals justified its action in this wise:
The Joint Resolution was sufficient in itself to have been relied upon by respondent
judge in convincing himself that probable cause indeed exists for the purpose of
issuing the corresponding warrants of arrest. The mere silence of the records or the
absence of any express declaration in the questioned Order of May 17, 1993 as to
where the respondent Judge based his finding of probable cause does not give rise
to any adverse inference on his part. The fact remains that the Joint Resolution was

at respondent Judge's disposal at the time he issued the Order for the issuance of
the warrants of arrest. After all, respondent Judge enjoys in his favor the presumption
of regularity in the performance of official actuations. And this presumption prevails
until it is overcome by clear and convincing evidence to the contrary. Every
reasonable intendment will be made in support of the presumption, and in case of
doubt as to an officer's act being lawful or unlawful it should be construed to be
lawful. (31 C.J.S., 808-810. See also Mahilum, et al. vs. Court of Appeals, 17 SCRA
482; People vs. Cortez, 21 SCRA 1228; Government of the P.I. vs. Galarosa, 36 Phil.
338).
We are unable to agree with this disquisition, for it merely assumes at least two things: (1) that
respondent Judge Asuncion had read and relied on the Joint Resolution and (2) he was convinced
that probable cause exists for the issuance of the warrants of arrest against the petitioners. Nothing
in the records provides reasonable basis for these assumptions. In his assailed order, the
respondent Judge made no mention of the Joint Resolution, which was attached to the records of
Criminal Case No. Q-93-43198 on 22 April 1993. Neither did he state that he found probable cause
for the issuance of warrants of arrest. And, for an undivinable reason, he directed the issuance of
warrants of arrest only "after June 21, 1993." If he did read the Joint Resolution and, in so reading,
found probable cause, there was absolutely no reason at all to delay for more than one month the
issuance of warrants of arrest. The most probable explanation for such delay could be that the
respondent Judge had actually wanted to wait for a little while for the DOJ to resolve the petition for
review.
It is, nevertheless, contended in the dissenting opinion of Mr. Justice Reynato S. Puno that whatever
doubts may have lingered on the issue of probable cause was dissolved when no less than the
Court of Appeals sustained the finding of probable cause made by the respondent Judge after an
evaluation of the Joint Resolution. We are not persuaded with that opinion. It is anchored on
erroneous premises. In its 1 July 1993 resolution, the Court of Appeals does not at all state that it
either sustained respondent Judge Asuncion's finding of probable cause, or found by itself probable
cause. As discussed above, it merely presumed that Judge Asuncion might have read the Joint
Resolution and found probable cause from a reading thereof. Then too, that statement in the
dissenting opinion erroneously assumes that the Joint Resolution can validly serve as sufficient
basis for determining probable cause. As stated above, it is not.
V.
In criminal prosecutions, the determination of probable cause may either be an executive or a
judicial prerogative. In People vs. Inting, 73 this Court aptly stated:
And third, Judges and Prosecutors alike should distinguish the preliminary inquiry
which determines probable cause for the issuance of a warrant of arrest from a
preliminary investigation proper which ascertains whether the offender should be
held for trial or released. Even if the two inquiries are conducted in the course of one
and the same proceeding, there should be no confusion about the objectives. The
determination of probable cause for the warrant of arrest is made by the Judge. The
preliminary investigation proper whether or not there is reasonable ground to
believe that the accused is guilty of the offense charged and, therefore, whether or
not he should be subjected to the expense, rigors and embarrassment of
trial is the function of the Prosecutor.
....

We reiterate that preliminary investigation should be distinguished as to whether it is

an investigation for the determination of a sufficient ground for the filing of the
information or it is an investigation for the determination of a probable cause for the
issuance of a warrant of arrest. The first kind of preliminary investigation is executive
in nature. It is part of the prosecution's job. The second kind of preliminary
investigation which is more properly called preliminary examination is judicial in
nature and is lodged with the judge. . . .
Ordinarily, the determination of probable cause is not lodged with this Court. Its duty in an
appropriate case is confined to the issue of whether the executive or judicial determination, as the
case may be, of probable cause was done without or in excess of jurisdiction or with grave abuse of
discretion amounting to want of jurisdiction. This is consistent with the general rule that criminal
prosecutions may not be restrained or stayed by injunction, preliminary or final. There are, however,
exceptions to this rule. Among the exceptions are enumerated in Brocka vs. Enrile 74 as follows:
a. To afford adequate protection to the constitutional rights of the accused
(Hernandez vs. Albano, et al., L-19272, January 25, 1967, 19 SCRA 95);
b. When necessary for the orderly administration of justice or to avoid oppression or
multiplicity of actions (Dimayuga, et al. vs. Fernandez, 43 Phil. 304; Hernandez vs.
Albano, supra; Fortun vs. Labang, et al., L-38383, May 27, 1981, 104 SCRA 607);
c. When there is a pre-judicial question which is sub judice (De Leon vs. Mabanag,
70 Phil. 202);
d. When the acts of the officer are without or in excess of authority (Planas vs. Oil, 67
Phil. 62);
e. Where the prosecution is under an invalid law, ordinance or regulation (Young vs.
Rafferty, 33 Phil. 556; Yu Cong Eng vs. Trinidad, 47 Phil. 385, 389);
f. When double jeopardy is clearly apparent (Sangalang vs. People and Avendia, 109
Phil. 1140);
g. Where the court has no jurisdiction over the offense (Lopez vs. City Judge, L25795, October 29, 1966, 18 SCRA 616);
h. Where it is a case of persecution rather than prosecution (Rustia vs. Ocampo, CAG.R. No. 4760, March 25, 1960);
i. Where the charges are manifestly false and motivated by the lust for vengeance
(Recto vs. Castelo, 18 L.J. [1953], cited in Raoa vs. Alvendia, CA-G.R. No. 30720R, October 8, 1962; Cf.Guingona, et al. vs. City Fiscal, L-60033, April 4, 1984, 128
SCRA 577); and
j. When there is clearly no prima facie case against the accused and a motion to
quash on that ground has been denied (Salonga vs. Pao, et al., L- 59524, February
18, 1985, 134 SCRA 438).

7. Preliminary injunction has been issued by the Supreme Court to prevent to

threatened unlawful arrest of petitioners (Rodriguez vs. Castelo, L- 6374, August 1,
1953). (cited in Regalado, Remedial Law Compendium, p. 188, 1988 Ed.)
In these exceptional cases, this Court may ultimately resolve the existence or non-existence
of probable cause by examining the records of the preliminary investigation, as it did
in Salonga vs. Pao, 75 Allado, andWebb.
There can be no doubt that, in light of the several thousand private complainants in Criminal Case
No. Q-93-43198 and several thousands more in different parts of the country who are similarly
situated as the former for being holders of "349" Pepsi crowns, any affirmative holding of probable
cause in the said case may cause or provoke, as justly feared by the petitioners, the filing of several
thousand cases in various courts throughout the country. Inevitably, the petitioners would be
exposed to the harassments of warrants of arrest issued by such courts and to huge expenditures
for premiums on bailbonds and for travels from one court to another throughout the length and
breadth of the archipelago for their arraignments and trials in such cases. Worse, the filing of these
staggering number of cases would necessarily affect the trial calendar of our overburdened judges
and take much of their attention, time, and energy, which they could devote to other equally, if not
more, important cases. Such a frightful scenario would seriously affect the orderly administration of
justice, or cause oppression or multiplicity of actions a situation already long conceded by this
Court to be an exception to the general rule that criminal prosecutions may not be restrained or
stayed by injunction. 76
We shall not, however, reevaluate the evidence to determine if indeed there is probable cause for
the issuance of warrants of arrest in Criminal Case No. Q-93-43298. For, as earlier stated, the
respondent Judge did not, in fact, find that probable cause exists, and if he did he did not have the
basis therefor as mandated by Soliven, Inting,Lim, Allado, and even Webb. Moreover, the records of
the preliminary investigation in Criminal Case No. Q-93-43198 are not with this Court. They were
forwarded by the Office of the City Prosecutor of Quezon City to the DOJ in compliance with the
latter's 1st Indorsement of 21 April 1993. The trial court and the DOJ must be required to perform
their duty.
WHEREFORE, the instant petition is GRANTED and the following are hereby SET ASIDE:
(a) Decision of 28 September 1993 and Resolution of 9 February 1994 of respondent
Court of Appeals in CA-G.R. SP No. 31226;
(b) The Resolutions of the "349" Committee of the Department of Justice of 23 July
1993 dismissing the petitioners' petition for review and of 3 February 1994 denying
the motion to reconsider the dismissal; and
(c) The Order of respondent Judge Maximiano C. Asuncion of 17 May 1993 in
Criminal Case No. Q-93-43198.
The Department of Justice is DIRECTED to resolve on the merits, within sixty (60) days from notice
of this decision, the petitioners' petition for the review of the Joint Resolution of Investigating
Prosecutor Ramon Gerona and thereafter to file the appropriate motion or pleading in Criminal Case
No. Q-93-43198, which respondent Judge Asuncion shall then resolve in light of Crespo vs.
Mogul, Soliven vs. Makasiar, People vs. Inting, Lim vs.Felix, Allado vs. Diokno, and Webb vs. De
Leon.

In the meantime, respondent Judge Asuncion is DIRECTED to cease and desist from further
proceeding with Criminal Case No. Q-93-43198 and to defer the issuances of warrants of arrest
against the petitioners.
No pronouncement as to costs.
SO ORDERED.
G.R. No. 82585 November 14, 1988
MAXIMO V. SOLIVEN, ANTONIO V. ROCES, FREDERICK K. AGCAOLI, and GODOFREDO L.
MANZANAS,petitioners,
vs.
THE HON. RAMON P. MAKASIAR, Presiding Judge of the Regional Trial Court of Manila,
Branch 35, UNDERSECRETARY SILVESTRE BELLO III, of the Department of Justice, LUIS C.
VICTOR, THE CITY FISCAL OF MANILA and PRESIDENT CORAZON C. AQUINO, respondents.
G.R. No. 82827 November 14, 1988
LUIS D. BELTRAN, petitioner,
vs.
THE HON. RAMON P. MAKASIAR, Presiding Judge of Branch 35 of the Regional Trial Court, at
Manila, THE HON. LUIS VICTOR, CITY FISCAL OF MANILA, PEOPLE OF THE PHILIPPINES,
SUPERINTENDENT OF THE WESTERN POLICE DISTRICT, and THE MEMBERS OF THE
PROCESS SERVING UNIT AT THE REGIONAL TRIAL COURT OF MANILA, respondents.
G.R. No. 83979 November 14, 1988.
LUIS D. BELTRAN, petitioner,
vs.
EXECUTIVE SECRETARY CATALINO MACARAIG, SECRETARY OF JUSTICE SEDFREY
ORDOEZ, UNDERSECRETARY OF JUSTICE SILVESTRE BELLO III, THE CITY FISCAL OF
MANILA JESUS F. GUERRERO, and JUDGE RAMON P. MAKASIAR, Presiding Judge of
Branch 35 of the Regional Trial Court, at Manila, respondents.
Angara, Abello, Concepcion, Regala and Cruz for petitioners in G.R. No. 82585.
Perfecto V. Fernandez, Jose P. Fernandez and Cristobal P. Fernandez for petitioner in G.R. Nos.
82827 and 83979.
RESOLUTION

PER CURIAM:
In these consolidated cases, three principal issues were raised: (1) whether or not petitioners were
denied due process when informations for libel were filed against them although the finding of the
existence of a prima faciecase was still under review by the Secretary of Justice and, subsequently,
by the President; (2) whether or not the constitutional rights of Beltran were violated when
respondent RTC judge issued a warrant for his arrest without personally examining the complainant

and the witnesses, if any, to determine probable cause; and (3) whether or not the President of the
Philippines, under the Constitution, may initiate criminal proceedings against the petitioners through
the filing of a complaint-affidavit.
Subsequent events have rendered the first issue moot and academic. On March 30, 1988, the
Secretary of Justice denied petitioners' motion for reconsideration and upheld the resolution of the
Undersecretary of Justice sustaining the City Fiscal's finding of a prima facie case against
petitioners. A second motion for reconsideration filed by petitioner Beltran was denied by the
Secretary of Justice on April 7, 1988. On appeal, the President, through the Executive Secretary,
affirmed the resolution of the Secretary of Justice on May 2, 1988. The motion for reconsideration
was denied by the Executive Secretary on May 16, 1988. With these developments, petitioners'
contention that they have been denied the administrative remedies available under the law has lost
factual support.
It may also be added that with respect to petitioner Beltran, the allegation of denial of due process of
law in the preliminary investigation is negated by the fact that instead of submitting his counteraffidavits, he filed a "Motion to Declare Proceedings Closed," in effect waiving his right to refute the
complaint by filing counter-affidavits. Due process of law does not require that the respondent in a
criminal case actually file his counter-affidavits before the preliminary investigation is deemed
completed. All that is required is that the respondent be given the opportunity to submit counteraffidavits if he is so minded.
The second issue, raised by petitioner Beltran, calls for an interpretation of the constitutional
provision on the issuance of warrants of arrest. The pertinent provision reads:
Art. III, Sec. 2. The right of the people to be secure in their persons, houses, papers
and effects against unreasonable searches and seizures of whatever nature and for
any purpose shall be inviolable, and no search warrant or warrant of arrest shall
issue except upon probable cause to be determined personally by the judge after
examination nder oath or affirmation of the complainant and the witnesses he may
produce, and particularly describing the place to be searched and the persons or
things to be seized.
The addition of the word "personally" after the word "determined" and the deletion of the grant of
authority by the 1973 Constitution to issue warrants to "other responsible officers as may be
authorized by law," has apparently convinced petitioner Beltran that the Constitution now requires
the judge to personally examine the complainant and his witnesses in his determination of probable
cause for the issuance of warrants of arrest. This is not an accurate interpretation.
What the Constitution underscores is the exclusive and personal responsibility of the issuing judge to
satisfy himself of the existence of probable cause. In satisfying himself of the existence of probable
cause for the issuance of a warrant of arrest, the judge is not required to personally examine the
complainant and his witnesses. Following established doctrine and procedure, he shall: (1)
personally evaluate the report and the supporting documents submitted by the fiscal regarding the
existence of probable cause and, on the basis thereof, issue a warrant of arrest; or (2) if on the basis
thereof he finds no probable cause, he may disregard the fiscal's report and require the submission
of supporting affidavits of witnesses to aid him in arriving at a conclusion as to the existence of
probable cause.
Sound policy dictates this procedure, otherwise judges would be unduly laden with the preliminary
examination and investigation of criminal complaints instead of concentrating on hearing and
deciding cases filed before their courts.

On June 30, 1987, the Supreme Court unanimously adopted Circular No. 12, setting down
guidelines for the issuance of warrants of arrest. The procedure therein provided is reiterated and
clarified in this resolution.
It has not been shown that respondent judge has deviated from the prescribed procedure. Thus, with
regard to the issuance of the warrants of arrest, a finding of grave abuse of discretion amounting to
lack or excess of jurisdiction cannot be sustained.
Anent the third issue, petitioner Beltran argues that "the reasons which necessitate presidential
immunity from suit impose a correlative disability to file suit." He contends that if criminal
proceedings ensue by virtue of the President's filing of her complaint-affidavit, she may subsequently
have to be a witness for the prosecution, bringing her under the trial court's jurisdiction. This,
continues Beltran, would in an indirect way defeat her privilege of immunity from suit, as by testifying
on the witness stand, she would be exposing herself to possible contempt of court or perjury.
The rationale for the grant to the President of the privilege of immunity from suit is to assure the
exercise of Presidential duties and functions free from any hindrance or distraction, considering that
being the Chief Executive of the Government is a job that, aside from requiring all of the office
holder's time, also demands undivided attention.
But this privilege of immunity from suit, pertains to the President by virtue of the office and may be
invoked only by the holder of the office; not by any other person in the President's behalf. Thus, an
accused in a criminal case in which the President is complainant cannot raise the presidential
privilege as a defense to prevent the case from proceeding against such accused.
Moreover, there is nothing in our laws that would prevent the President from waiving the privilege.
Thus, if so minded the President may shed the protection afforded by the privilege and submit to the
court's jurisdiction. The choice of whether to exercise the privilege or to waive it is solely the
President's prerogative. It is a decision that cannot be assumed and imposed by any other person.
As regards the contention of petitioner Beltran that he could not be held liable for libel because of the
privileged character or the publication, the Court reiterates that it is not a trier of facts and that such
a defense is best left to the trial court to appreciate after receiving the evidence of the parties.
As to petitioner Beltran's claim that to allow the libel case to proceed would produce a "chilling effect"
on press freedom, the Court finds no basis at this stage to rule on the point.
The petitions fail to establish that public respondents, through their separate acts, gravely abused
their discretion as to amount to lack of jurisdiction. Hence, the writs of certiorari and prohibition
prayed for cannot issue.
WHEREFORE, finding no grave abuse of discretion amounting to excess or lack of jurisdiction on
the part of the public respondents, the Court Resolved to DISMISS the petitions in G. R. Nos. 82585,
82827 and 83979. The Order to maintain the status quo contained in the Resolution of the Court en
banc dated April 7, 1988 and reiterated in the Resolution dated April 26, 1988 is LIFTED.
G.R. Nos. 162144-54

November 13, 2012

PEOPLE OF THE PHILIPPINES, Petitioner,

vs.
HON. MA. THERESA L. DELA TORRE- YADAO, in her capacity as Presiding Judge, Branch 81,

Regional Trial Court of Quezon City, HON. MA. NATIVIDAD M. DIZON, in her capacity as
Executive Judge of the Regional Trial Court of Quezon City, PANFILO M. LACSON, JEWEL F.
CANSON, ROMEO M. ACOP, FRANCISCO G. ZUBIA, JR., MICHAEL RAY B. AQUINO, CEZAR O.
MANCAO II, ZOROBABEL S. LAURELES, GLENN G. DUMLAO, ALMARIO A. HILARIO, JOSE
ERWIN T. VILLACORTE, GIL C. MENESES, ROLANDO ANDUYAN, JOSELITO T. ESQUIVEL,
RICARDO G. DANDAN, CEASAR TANNAGAN, VICENTE P. ARNADO, ROBERTO T.
LANGCAUON, ANGELITO N. CAISIP, ANTONIO FRIAS, CICERO S. BACOLOD, WILLY NUAS,
JUANITO B. MANAOIS, VIRGILIO V. PARAGAS, ROLANDO R. JIMENEZ, CECILIO T. MORITO,
REYNALDO C. LAS PINAS, WILFREDO G CUARTERO, ROBERTO O. AGBALOG, OSMUNDO
B. CARINO, NORBERTO LASAGA, LEONARDO GLORIA, ALEJANDRO G LIWANAG, ELMER
FERRER and ROMY CRUZ, Respondents.
DECISION
ABAD, J.:
This case, which involves the alleged summary execution of suspected members of the Kuratong
Bale/eng Gang, is once again before this Court this time questioning, among other things, the trial
qmrt's determination of the absence of probable cause and its dismissal of the criminal actions. 1
The Facts and the Case
In the early morning of May 18, 1995, the combined forces of the Philippine National Police's AntiBank Robbery and Intelligence Task Group (PNP ABRITG) composed of Task Force Habagat (then
headed by Police Chief Superintendent Panfilo M. Lacson), Traffic Management Command ([TMC]
led by then Police Senior Superintendent Francisco G. Zubia, Jr.), Criminal Investigation Command
(led by then Police Chief Superintendent Romeo M. Acop ), and National Capital Region Command
(headed by then Police Chief Superintendent Jewel F. Canson) killed 11 suspected members of the
Kuratong Baleleng Gang2 along Commonwealth Avenue in Quezon City.
Subsequently, SPO2 Eduardo Delos Reyes of the Criminal Investigation Command told the press
that it was a summary execution, not a shoot-out between the police and those who were slain. After
investigation, the Deputy Ombudsman for Military Affairs absolved all the police officers involved,
including respondents Panfilo M. Lacson, Jewel F. Canson, Romeo M. Acop, Francisco G. Zubia, Jr.,
Michael Ray B. Aquino, Cezar O. Mancao II, and 28 others (collectively, the respondents). 3 On
review, however, the Office of the Ombudsman reversed the finding and filed charges of murder
against the police officers involved before the Sandiganbayan in Criminal Cases 23047 to 57, except
that in the cases of respondents Zubia, Acop, and Lacson, their liabilities were downgraded to mere
accessory. On arraignment, Lacson pleaded not guilty.
Upon respondents motion, the Sandiganbayan ordered the transfer of their cases to the Regional
Trial Court (RTC) of Quezon City on the ground that none of the principal accused had the rank of
Chief Superintendent or higher. Pending the resolution of the Office of the Special Prosecutors
motion for reconsideration of the transfer order, Congress passed Republic Act (R.A.) 8249 that
expanded the Sandiganbayans jurisdiction by deleting the word "principal" from the phrase
"principal accused" to apply to all pending cases where trial had not begun. As a result of this new
law, the Sandiganbayan opted to retain and try the Kuratong Baleleng murder cases.
Respondent Lacson challenged the constitutionality of R.A. 8249 in G.R. 128096 4 but this Court
upheld its validity. Nonetheless, the Court ordered the transfer of the trial of the cases to the RTC of
Quezon City since the amended informations contained no allegations that respondents committed

the offenses charged in relation to, or in the discharge of, their official functions as required by R.A.
8249.
Before the RTC of Quezon City, Branch 81, then presided over by Judge Wenceslao Agnir, Jr., could
arraign respondents in the re-docketed Criminal Cases Q-99-81679 to 89, however, SPO2 Delos
Reyes and the other prosecution witnesses recanted their affidavits. Some of the victims heirs also
executed affidavits of desistance. These prompted the respondents to file separate motions for the
determination of probable cause before the issuance of warrants of arrests.
On March 29, 1999 the RTC of Quezon City ordered the provisional dismissal of the cases for lack of
probable cause to hold the accused for trial following the recantation of the principal prosecution
witnesses and the desistance of the private complainants.
Two years later or on March 27, 2001 PNP Director Leandro R. Mendoza sought to revive the cases
against respondents by requesting the Department of Justice (DOJ) to conduct another preliminary
investigation in their cases on the strength of the affidavits of P/Insp. Ysmael S. Yu and P/S Insp.
Abelardo Ramos. In response, then DOJ Secretary Hernando B. Perez constituted a panel of
prosecutors to conduct the requested investigation.
Invoking their constitutional right against double jeopardy, Lacson and his co-accused filed a petition
for prohibition with application for temporary restraining order and writ of preliminary injunction
before the RTC of Manila in Civil Case 01-100933. In an Order dated June 5, 2001, that court denied
the plea for temporary restraining order. Thus, on June 6, 2001 the panel of prosecutors found
probable cause to hold Lacson and his co-accused liable as principals for 11 counts of murder,
resulting in the filing of separate informations against them in Criminal Cases 01-101102 to 12
before the RTC of Quezon City, Branch 81, now presided over by respondent Judge Ma. Theresa L.
Yadao.
On the same day, respondent Lacson filed a petition for certiorari before the Court of Appeals (CA),
assailing the RTC of Manilas order which allowed the renewed preliminary investigation of the
murder charges against him and his co-accused. Lacson also filed with the RTC of Quezon City a
motion for judicial determination of probable cause. But on June 13, 2001 he sought the suspension
of the proceedings in that court.
In the meantime, the CA issued a temporary restraining order enjoining the RTC of Quezon City from
issuing warrants of arrest or conducting any proceeding in Criminal Cases 01-101102 to 12 before it.
On August 24, 2001 the CA rendered a Decision, granting Lacsons petition on the ground of double
jeopardy since, although the dismissal of Criminal Cases Q-99-81679 to 89 was provisional, such
dismissal became permanent two years after when they were not revived.
Upon the prosecutions appeal to this Court in G.R. 149453,5 the Court ruled that, based on the
record, Lacson failed to prove compliance with the requirements of Section 8, Rule 117 governing
provisional dismissals. The records showed that the prosecution did not file a motion for provisional
dismissal and, for his part, respondent Lacson had merely filed a motion for judicial determination of
probable cause. Nowhere did he agree to some proposal for a provisional dismissal of the cases.
Furthermore, the heirs of the victims had no notice of any motion for such provisional dismissal.
The Court thus set aside the CA Decision of August 24, 2001 and directed the RTC of Quezon City
to try the cases with dispatch. On motion for reconsideration by respondent Lacson, the Court
ordered the re-raffle of the criminal cases to a heinous crimes court. Upon re-raffle, however, the
cases still went to Branch 81, which as already stated was now presided over by Judge Yadao.

On October 12, 2003 the parents of two of the victims submitted birth certificates showing that they
were minors. Apparently reacting to this, the prosecution amended the informations to show such
minority and asked respondent Executive Judge Ma. Natividad M. Dizon to recall the assignment of
the cases to Branch 81 and re-raffle them to a family court. The request for recall was denied.
On October 20, 2003 the prosecution filed an omnibus motion before Branch 81, praying for the reraffle of Criminal Cases 01-101102 to12 to the family courts in view of the changes in the two
informations. On October 24, 2003 the prosecution also filed its consolidated comment ex-abundanti
cautela on the motions to determine probable cause.
On November 12, 20036 Judge Yadao issued an order, denying the prosecutions motion for re-raffle
to a family court on the ground that Section 5 of R.A. 8369 applied only to living minors. She also
granted the motions for determination of probable cause and dismissed the cases against the
respondents since the affidavits of the prosecution witnesses were inconsistent with those they
submitted in the preliminary investigations before the Ombudsman for the crime of robbery.
On November 25, 2003 the prosecution filed a verified motion to recuse or disqualify Judge Yadao
and for reconsideration of her order. It also filed an administrative complaint against her for
dishonesty, conduct prejudicial to the best interests of the service, manifest partiality, and knowingly
rendering an unjust judgment.7On January 14, 2004, the prosecution filed an urgent supplemental
motion for compulsory disqualification with motion for cancellation of the hearing on motion for
reconsideration.
On January 21, 2004 Judge Yadao issued an order, denying the motion to recuse her, prompting the
prosecution to appeal from that order. Further, on January 22, 2004 Judge Yadao issued another
order, denying the prosecutions motion for reconsideration of the Order dated November 12, 2003
that dismissed the action against the respondents. In response, the prosecution filed a notice of
appeal from the same. Finally, on January 26, 2004 Judge Yadao issued an order, denying the
prosecutions motion for reconsideration of its January 16, 2004 Order not only for lack of merit but
also for having become moot and academic.
On February 16, 2004 the prosecution withdrew ex-abundanti cautela the notices of appeal that it
filed in the cases. Subsequently, on March 3, 2004 it filed the present special civil action of certiorari.
The Issues Presented
The prosecution presents the following issues:
1. Whether or not Executive Judge Dizon gravely abused her discretion in allowing Criminal
Cases 01-101102 to 12 to be re-raffled to other than among the RTC of Quezon Citys family
courts.
2. Whether or not Judge Yadao gravely abused her discretion when she took cognizance of
Criminal Cases 01-101102 to 12 contrary to the prosecutions view that such cases fell under
the jurisdiction of family courts.
3. Whether or not Judge Yadao gravely abused her discretion when she did not inhibit and
disqualify herself from taking cognizance of the cases.

4. Whether or not Judge Yadao gravely abused her discretion when she dismissed the
criminal actions on the ground of lack of probable cause and barred the presentation of
additional evidence in support of the prosecutions motion for reconsideration.
5. Whether or not Judge Yadao gravely abused her discretion when she adopted certain
policies concerning the conduct of hearings in her court.
The Courts Rulings
Before addressing the above issues, the Court notes respondents contention that the prosecutions
resort to special civil action of certiorari under Rule 65 is improper. Since the trial court dismissed the
criminal actions against respondents, the prosecutions remedy was to appeal to the CA from that
order of dismissal.
Ordinarily, the proper remedy from an order dismissing an action is an appeal. 8 Here, the
prosecution in fact filed a notice of appeal from such an order issued in the subject cases. But it
reconsidered its action and withdrew that notice, believing that appeal was not an effective, speedy,
and adequate remedy.9 In other words, the prosecutions move was not a case of forgotten remedy
but a conscious resort to another based on a belief that respondent Judge Yadao gravely abused her
discretion in issuing her various orders and that certiorari under Rule 65 was the proper and allencompassing remedy for the prosecution. The Court is not prepared to say that the remedy is
altogether implausible as to throw out the petition outright.
Still, the Court notes that the prosecution skipped the CA and filed its action directly with this Court,
ignoring the principle of judicial hierarchy of courts. Although the Supreme Court, the CA, and the
RTCs have concurrent jurisdiction to issue a writ of certiorari, such concurrence does not give the
People the unrestricted freedom of choice of forum.10 In any case, the immense public interest in
these cases, the considerable length of time that has passed since the crime took place, and the
numerous times these cases have come before this Court probably warrant a waiver of such
procedural lapse.
1. Raffle of the Cases
The prosecution points out that the RTC of Quezon City Executive Judge gravely abused her
discretion when she placed Criminal Cases 01-101102 to 12 under a separate category which did
not restrict their raffle to the citys special criminal and family courts in accordance with SC
Administrative Order 36-96. Further, the prosecution points out that she violated Administrative
Order 19-98 when Branches 219 and 102 were left out of the raffle. The presiding judges of these
two branches, both heinous crimes courts eligible to receive cases by raffle, had just been appointed
to the CA.
The records of the cases show nothing irregular in the conduct of the raffle of the subject cases. The
raffle maintained a separate list for criminal and civil cases. Criminal cases cognizable by special
criminal courts were separately listed. Criminal Cases 01-101102 to 12 were given a separate
heading, "Re-Raffle," but there was nothing irregular in this since it merely indicated that the cases
were not being raffled for the first time.
The Executive Judge did not err in leaving out Branches 219 and 102 from raffle since these
branches remained without regularly appointed judges. Although the pairing judges of these
branches had authority to act on incidental, interlocutory, and urgent matters, this did not mean that
such branches should already be included in the raffle of cases.

Parenthetically, the prosecution was represented during the raffle yet it did not then object to the
manner by which it was conducted. The prosecution raised the question only when it filed this
petition, a clear afterthought.
2. Jurisdiction of Family Courts
The prosecution points out that, although this Courts October 7, 2003 Resolution directed a re-raffle
of the cases to a heinous crimes court, the prosecution in the meantime amended the informations
to reflect the fact that two of the murder victims were minors. For this reason, the Executive Judge
should have raffled the cases to a family court pursuant to Section 5 of R.A. 8369.
The Court is not impervious to the provisions of Section 5 of R.A. 8369, that vests in family courts
jurisdiction over violations of R.A. 7610, which in turn covers murder cases where the victim is a
minor. Thus:
Sec. 5. Jurisdiction of Family Courts. The Family Courts shall have exclusive original jurisdiction to
hear and decide the following cases:
a) Criminal cases where one or more of the accused is below eighteen (18) years of age but not less
than nine (9) years of age, or where one or more of the victims is a minor at the time of the
commission of the offense: Provided, That if the minor is found guilty, the court shall promulgate
sentence and ascertain any civil liability which the respondent may have incurred. (Emphasis
supplied)
Undoubtedly, in vesting in family courts exclusive original jurisdiction over criminal cases involving
minors, the law but seeks to protect their welfare and best interests. For this reason, when the need
for such protection is not compromised, the Court is able to relax the rule. In several cases, 11 for
instance, the Court has held that the CA enjoys concurrent jurisdiction with the family courts in
hearing petitions for habeas corpus involving minors.
Here, the two minor victims, for whose interests the people wanted the murder cases moved to a
family court, are dead. As respondents aptly point out, there is no living minor in the murder cases
that require the special attention and protection of a family court. In fact, no minor would appear as
party in those cases during trial since the minor victims are represented by their parents who had
become the real private offended parties.
3. Inhibition of Judge Yadao
The prosecution claims that Judge Yadao committed grave abuse of discretion in failing to inhibit
herself from hearing the cases against the respondents.
The rules governing the disqualification of judges are found, first, in Section 1, Rule 137 of the Rules
of Court, which provides:
Sec. 1. Disqualification of judges. No judge or judicial officer shall sit in any case in which he, or his
wife or child, is pecuniarily interested as heir, legatee, creditor or otherwise, or in which he is related
to either party within the sixth degree of consanguinity or affinity, or to counsel within the fourth
degree, computed according to the rules of the civil law, or in which he has been executor,
administrator, guardian, trustee or counsel, or in which he has presided in any inferior court when his
ruling or decision is the subject of review, without the written consent of all parties in interest, signed
by them and entered upon the record.

A judge may, in the exercise of his sound discretion, disqualify himself from sitting in a case, for just
or valid reasons other than those mentioned above.
and in Rule 3.12, Canon 3 of the Code of Judicial Conduct, which states:
Rule 3.12. A judge should take no part in a proceeding where the judges impartiality might
reasonably be questioned. These cases include among others, proceedings where:
(a) the judge has personal knowledge of disputed evidentiary facts concerning the
proceeding;
xxxx
(e) the judge knows the judges spouse or child has a financial interest, as heir, legatee,
creditor, fiduciary, or otherwise, in the subject matter in controversy or in a party to the
proceeding, or any other interest that could be substantially affected by the outcome of the
proceeding. In every instance, the judge shall indicate the legal reason for inhibition.
The first paragraph of Section 1, Rule 137 and Rule 3.12, Canon 3 provide for the compulsory
disqualification of a judge while the second paragraph of Section 1, Rule 137 provides for his
voluntary inhibition.
The matter of voluntary inhibition is primarily a matter of conscience and sound discretion on the part
of the judge since he is in a better position to determine whether a given situation would unfairly
affect his attitude towards the parties or their cases. The mere imputation of bias, partiality, and
prejudgment is not enough ground, absent clear and convincing evidence that can overcome the
presumption that the judge will perform his duties according to law without fear or favor. The Court
will not disqualify a judge based on speculations and surmises or the adverse nature of the judges
rulings towards those who seek to inhibit him.12
Here, the prosecution contends that Judge Yadao should have inhibited herself for improperly
submitting to a public interview on the day following her dismissal of the criminal cases against the
respondents. But the Court finds nothing basically reprehensible in such interview. Judge Yadaos
dismissal of the multiple murder cases aroused natural public interest and stirred the media into
frenzy for correct information. Judge Yadao simply accommodated, not sought, the requests for such
an interview to clarify the basis of her order. There is no allegation that she gave out false
information. To be sure, the prosecution never once accused her of making public disclosures
regarding the merits of those cases prior to her order dismissing such cases.
The prosecution also assails as constituting bias Judge Yadaos statement that a very close relative
stood to be promoted if she was to issue a warrant of arrest against the respondents. But this
statement merely shows that she cannot be dissuaded by some relative who is close to her. How
can this constitute bias? Besides, there is no evidence that the close relative she referred to was her
spouse or child which would be a mandatory ground for disqualification.
Further, the prosecution claims that Judge Yadao prejudged its motion for reconsideration when she
said in her comment to the administrative complaint against her that such motion was merely the
prosecutions stubborn insistence on the existence of probable cause against the respondents. The
comment could of course not be regarded as a prejudgment of the issue since she had precisely
already issued an order holding that the complainants evidence failed to establish probable cause
against the respondents. And there is nothing wrong about characterizing a motion for

reconsideration as a "stubborn" position taken by the party who filed it. Judge Yadao did not
characterize the motion as wholly unjustified at the time she filed her comment.
4. Dismissal of the Criminal Cases
The prosecution claims that Judge Yadao gravely abused her discretion when she set the motions
for determination of probable cause for hearing, deferred the issuance of warrants of arrest, and
allowed the defense to mark its evidence and argue its case. The prosecution stresses that under
Section 6, Rule 112 of the Rules of Court Judge Yadaos duty was to determine probable cause for
the purpose of issuing the arrest warrants solely on the basis of the investigating prosecutors
resolution as well as the informations and their supporting documents. And, if she had some doubts
as to the existence of probable cause, the rules required her to order the investigating prosecutor to
present additional evidence to support the finding of probable cause within five days from notice.
Rather than take limited action, said the prosecution, Judge Yadao dug up and adopted the
Ombudsmans findings when the latter conducted its preliminary investigation of the crime of robbery
in 1996. Judge Yadao gave weight to the affidavits submitted in that earlier preliminary investigation
when such documents are proper for presentation during the trial of the cases. The prosecution
added that the affidavits of P/S Insp. Abelardo Ramos and SPO1 Wilmor B. Medes reasonably
explained the prior inconsistent affidavits they submitted before the Ombudsman.
The general rule of course is that the judge is not required, when determining probable cause for the
issuance of warrants of arrests, to conduct a de novo hearing. The judge only needs to personally
review the initial determination of the prosecutor finding a probable cause to see if it is supported by
substantial evidence.13
But here, the prosecution conceded that their own witnesses tried to explain in their new affidavits
the inconsistent statements that they earlier submitted to the Office of the Ombudsman.
Consequently, it was not unreasonable for Judge Yadao, for the purpose of determining probable
cause based on those affidavits, to hold a hearing and examine the inconsistent statements and
related documents that the witnesses themselves brought up and were part of the records. Besides,
she received no new evidence from the respondents.14
The public prosecutor submitted the following affidavits and documents along with the criminal
informations to enable Judge Yadao to determine the presence of probable cause against the
respondents:
1. P/Insp. Ysmael S. Yus affidavit of March 24, 200115 in which he said that on May 17, 1995
respondent Canson, NCR Command Head, ordered him to form two teams that would go
after suspected Kuratong Baleleng Gang members who were seen at the Superville
Subdivision in Paraaque City. Yu headed the assault team while Marlon Sapla headed the
perimeter defense. After the police team apprehended eight men inside the safe house, it
turned them over to their investigating unit. The following day, Yu just learned that the men
and three others were killed in a shoot-out with the police in Commonwealth Avenue in
Quezon City.
2. P/S Insp. Abelardo Ramos affidavit of March 24, 200116 in which he said that he was part
of the perimeter defense during the Superville operation. After the assault team apprehended
eight male suspects, it brought them to Camp Crame in two vans. Ramos then went to the
office of respondent Zubia, TMC Head, where he saw respondents Lacson, Acop, Laureles,
Villacorte and other police officers.

According to Ramos, Zubia said that the eight suspects were to be brought to
Commonwealth Avenue and killed in a supposed shoot-out and that this action had been
cleared with higher authorities, to which remark Lacson nodded as a sign of approval. Before
Ramos left the meeting, Lacson supposedly told him, "baka may mabuhay pa diyan." Ramos
then boarded an L-300 van with his men and four male suspects. In the early morning of
May 18, 1995, they executed the plan and gunned down the suspects. A few minutes later,
P/S Insp. Glenn G. Dumlao and his men arrived and claimed responsibility for the incident.
3. SPO1 Wilmor B. Medes affidavit of April 24, 200117 in which he corroborated Ramos
statements. Medes said that he belonged to the same team that arrested the eight male
suspects. He drove the L-300 van in going to Commonwealth Avenue where the suspects
were killed.
4. Mario C. Enads affidavit of August 8, 199518 in which he claimed having served as TMC
civilian agent. At around noon of May 17, 1995, he went to Superville Subdivision together
with respondents Dumlao, Tannagan, and Nuas. Dumlao told Enad to stay in the car and
observe what went on in the house under surveillance. Later that night, other police officers
arrived and apprehended the men in the house. Enad went in and saw six men lying on the
floor while the others were handcuffed. Enad and his companions left Sucat in the early
morning of May 18, 1995. He fell asleep along the way but was awaken by gunshots. He
saw Dumlao and other police officers fire their guns at the L-300 van containing the
apprehended suspects.
5. SPO2 Noel P. Senos affidavit of May 31, 200119 in which he corroborated what Ramos
said. Seno claimed that he was part of the advance party in Superville Subdivision and was
also in Commonwealth Avenue when the suspected members of the Kuratong Baleleng
Gang were killed.
6. The PNP ABRITG After Operations Report of May 31, 199520 which narrated the events
that took place on May 17 and 18, 1995. This report was submitted by Lacson, Zubia, Acop
and Canson.
7. The PNP Medico-Legal Reports21 which stated that the suspected members of the
Kuratong Baleleng Gang tested negative for gunpowder nitrates.
The Court agrees with Judge Yadao that the above affidavits and reports, taken together with the
other documents of record, fail to establish probable cause against the respondents.
First. Evidently, the case against respondents rests on the testimony of Ramos, corroborated by
those of Medes, Enad, and Seno, who supposedly heard the commanders of the various units plan
the killing of the Kuratong Baleleng Gang members somewhere in Commonwealth Avenue in
Quezon City and actually execute such plan. Yus testimony is limited to the capture of the gang
members and goes no further. He did not see them killed.
Second. Respecting the testimonies of Ramos, Medes, Enad, and Seno, the prosecutions own
evidencethe PNP ABRITGs After Operations Report of May 31, 1995shows that these men took
no part in the operations against the Kuratong Baleleng Gang members. The report included a
comprehensive list of police personnel from Task Force Habagat (Lacson), Traffic Management
Command (Zubia), Criminal Investigation Command (Acop), and National Capital Region Command
(Canson) who were involved. The names of Ramos, Medes, Enad, and Seno were not on that list.
Notably, only Yus name, among the new set of witnesses, was on that list. Since an after-battle

report usually serves as basis for commendations and promotions, any omitted name would hardly
have gone unchallenged.
Third. Ramos, whose story appeared to be the most significant evidence against the respondents,
submitted in the course of the preliminary investigation that the Office of the Ombudsman conducted
in a related robbery charge against the police officers involved a counter-affidavit. He claimed in that
counter-affidavit that he was neither in Superville Subdivision nor Commonwealth Avenue during the
Kuratong Baleleng operations since he was in Bulacan on May 17, 1995 and at his home on May
18.22 Notably, Medes claimed in a joint counter-affidavit that he was on duty at the TMC headquarters
at Camp Crame on May 17 and 18.23
Fourth. The Office of the Ombudsman, looking at the whole picture and giving credence to Ramos
and Medes statements, dismissed the robbery case. More, it excluded Ramos from the group of
officers that it charged with the murder of the suspected members of the Kuratong Baleleng Gang.
Under the circumstances, the Court cannot be less skeptical than Judge Yadao was in doubting the
sudden reversal after six years of testimony of these witnesses.
Of course, Yu may have taken part in the subject operation but, as he narrated, his role was limited
to cornering and arresting the suspected Kuratong Baleleng Gang members at their safe house in
Superville Subdivision. After his team turned the suspects over to an investigating unit, he no longer
knew what happened to them.
Fifth. True, the PNP Medico-Legal Reports showed that the Kuratong Baleleng Gang members
tested negative for gunpowder nitrates. But this finding cannot have any legal significance for the
purpose of the preliminary investigation of the murder cases against the respondents absent
sufficient proof that they probably took part in gunning those gang members down.
The prosecution points out that, rather than dismiss the criminal action outright, Judge Yadao should
have ordered the panel of prosecutors to present additional evidence pursuant to Section 6, Rule
112 of the Rules of Court which provides:
Sec. 6. When warrant of arrest may issue. (a) By the Regional Trial Court. Within ten (10) days
from the filing of the complaint or information, the judge shall personally evaluate the resolution of
the prosecutor and its supporting evidence. He may immediately dismiss the case if the evidence on
record clearly fails to establish probable cause. If he finds probable cause, he shall issue a warrant
of arrest, or a commitment order if the accused has already been arrested pursuant to a warrant
issued by the judge who conducted the preliminary investigation or when the complaint or
information was filed pursuant to section 7 of this Rule. In case of doubt on the existence of probable
cause, the judge may order the prosecutor to present additional evidence within five (5) days from
notice and the issue must be resolved by the court within thirty (30) days from the filing of the
complaint of information.
Section 6, Rule 112 of the Rules of Court gives the trial court three options upon the filing of the
criminal information: (1) dismiss the case if the evidence on record clearly failed to establish
probable cause; (2) issue a warrant of arrest if it finds probable cause; and (3) order the prosecutor
to present additional evidence within five days from notice in case of doubt as to the existence of
probable cause.24
But the option to order the prosecutor to present additional evidence is not mandatory. The courts
first option under the above is for it to "immediately dismiss the case if the evidence on record clearly
fails to establish probable cause." That is the situation here: the evidence on record clearly fails to
establish probable cause against the respondents.

It is only "in case of doubt on the existence of probable cause" that the judge may order the
prosecutor to present additional evidence within five days from notice. But that is not the case here.
Discounting the affidavits of Ramos, Medes, Enad, and Seno, nothing is left in the record that
presents some doubtful probability that respondents committed the crime charged. PNP Director
Leandro Mendoza sought the revival of the cases in 2001, six years after it happened. It would have
been ridiculous to entertain the belief that the police could produce new witnesses in the five days
required of the prosecution by the rules.
In the absence of probable cause to indict respondents for the crime of multiple murder, they should
be insulated from the tribulations, expenses and anxiety of a public trial. 25
5. Policies Adopted for Conduct of Court Hearing
The prosecution claims that Judge Yadao arbitrarily recognized only one public prosecutor and one
private prosecutor for all the offended parties but allowed each of the counsels representing the
individual respondents to be heard during the proceedings before it. She also unjustifiably prohibited
the prosecutions use of tape recorders.
But Section 5, Rule 135 of the Rules of Court gives the trial court ample inherent and administrative
powers to effectively control the conduct of its proceedings. Thus:
Sec. 5. Inherent powers of court. Every court shall have power:
xxxx
(b) To enforce order in proceedings before it, or before a person or persons empowered to conduct a
judicial investigation under its authority;
xxxx
(d) To control, in furtherance of justice, the conduct of its ministerial officers, and of all other persons
in any manner connected with a case before it, in every manner appertaining thereto;
xxxx
(g) To amend and control its process and orders so as to make them conformable to law and justice;
xxxx
There is nothing arbitrary about Judge Yadaos policy of allowing only one public prosecutor and one
private prosecutor to address the court during the hearing for determination of probable cause but
permitting counsels representing the individual accused to do so. A criminal action is prosecuted
under the direction and control of the public prosecutor.26 The burden of establishing probable cause
against all the accused is upon him, not upon the private prosecutors whose interests lie solely in
their clients damages claim. Besides, the public and the private prosecutors take a common position
on the issue of probable cause. On the other hand, each of the accused is entitled to adopt defenses
that are personal to him.
As for the prohibition against the prosecutions private recording of the proceedings, courts usually
disallows such recordings because they create an unnecessary distraction and if allowed, could
prompt every lawyer, party, witness, or reporter having some interest in the proceeding to insist on

being given the same privilege. Since the prosecution makes no claim that the official recording of
the proceedings by the courts stenographer has been insufficient, the Court finds no grave abuse of
discretion in Judge Yadaos policy against such extraneous recordings.
WHEREFORE, the Court DISMISSES this petition and AFFIRMS the following assailed Orders of
the Regional Trial Court of Quezon City, Branch 81 in Criminal Cases 01-101102 to 12:
1. the Order dated November 12, 2003 which denied the prayer for re-raffle, granted the
motions for determination of probable cause, and dismissed the criminal cases;
2. the Order dated January 16, 2004 which granted the motion of the respondents for the
immediate resolution of the three pending incidents before the court;
3. the Order dated January 21, 2004 which denied the motion to recuse and the urgent
supplemental motion for compulsory disqualification;
4. the Order dated January 22, 2004 which denied the motion for reconsideration of the
Order dated November 12, 2003; and
5. the Order dated January 26, 2004 which denied the motion for reconsideration of the
January 16, 2004 Order.
SO ORDERED.
G.R. No. 180064

September 16, 2013

JOSE U. PUA and BENJAMIN HANBEN U. PUA, Petitioners,

vs.
CITIBANK, N. A., Respondent.
DECISION
PERLAS-BERNABE, J.:
Assailed in this petition for review on certiorari1 are the Decision2 dated May 21, 2007 and
Resolution3 dated October 16, 2007 of the Court of Appeals (CA) in CA-G.R. SP No. 79297, which
reversed and set aside the Orders dated May 14, 2003 4 and July 16, 20035 of the Regional Trial
Court of Cauayan City, Isabela, Branch 19 (RTC), dismissing petitioners Jose(Jose) and Benjamin
Hanben U. Pua's (petitioners) complaint against respondent Citibank, N. A. (respondent).
The Facts
On December 2, 2002, petitioners filed before the RTC a Complaint6 for declaration of nullity of
contract and sums of money with damages against respondent, 7 docketed as Civil Case No. 191159.8 In their complaint, petitioners alleged that they had been depositors of Citibank Binondo
Branch (Citibank Binondo) since 1996. Sometime in 1999, Guada Ang, Citibank Binondos Branch
Manager, invited Jose to a dinner party at the Manila Hotel where he was introduced to several
officers and employees of Citibank Hongkong Branch (Citibank Hongkong). 9 A few months after,
Chingyee Yau (Yau), Vice-President of Citibank Hongkong, came to the Philippines to sell securities
to Jose. They averred that Yau required Jose to open an account with Citibank Hongkong as it is one
of the conditions for the sale of the aforementioned securities.10 After opening such account, Yau

offered and sold to petitioners numerous securities11 issued by various public limited companies
established in Jersey, Channel I sands. The offer, sale, and signing of the subscription agreements
of said securities were all made and perfected at Citibank Binondo in the presence of its officers and
employees.12 Later on, petitioners discovered that the securities sold to them were not registered
with the Securities and Exchange Commission (SEC)and that the terms and conditions covering the
subscription were not likewise submitted to the SEC for evaluation, approval, and
registration.13 Asserting that respondents actions are in violation of Republic Act No.8799, entitled
the "Securities Regulation Code" (SRC), they assailed the validity of the subscription agreements
and the terms and conditions thereof for being contrary to law and/or public policy.14
For its part, respondent filed a motion to dismiss15 alleging, inter alia, that petitioners complaint
should be dismissed outright for violation of the doctrine of primary jurisdiction. It pointed out that the
merits of the case would largely depend on the issue of whether or not there was a violation of the
SRC, in particular, whether or not there was a sale of unregistered securities. In this regard,
respondent contended that the SRC conferred upon the SEC jurisdiction to investigate compliance
with its provisions and thus, petitioners complaint should be first filed with the SEC and not directly
before the RTC.16
Petitioners opposed17 respondents motion to dismiss, maintaining that the RTC has jurisdiction over
their complaint. They asserted that Section 63of the SRC expressly provides that the RTC has
exclusive jurisdiction to hear and decide all suits to recover damages pursuant to Sections 56 to 61
of the same law.18
The RTC Ruling
In an Order19 dated May 14, 2003, the RTC denied respondents motion to dismiss. It noted that
petitioners complaint is for declaration of nullity of contract and sums of money with damages and,
as such, it has jurisdiction to hear and decide upon the case even if it involves the alleged sale of
securities. It ratiocinated that the legal questions or issues arising from petitioners causes of action
against respondent are more appropriate for the judiciary than for an administrative agency to
resolve.20
Respondent filed an omnibus motion21 praying, among others, for there consideration of the
aforesaid ruling, which petitioners, in turn, opposed. 22 In an Order23 dated July 16, 2003, the RTC
denied respondents omnibus motion with respect to its prayer for reconsideration. Dissatisfied,
respondent filed a petition for certiorari before the CA.24
The CA Ruling
In a Decision25 dated May 21, 2007, the CA reversed and set aside the RTCs Orders and dismissed
petitioners complaint for violation of the doctrine of primary jurisdiction. The CA agreed with
respondents contention that since the case would largely depend on the issue of whether or not the
latter violated the provisions of the SRC, the matter is within the special competence or knowledge
of the SEC. Citing the case of Baviera v. Paglinawan26(Baviera), the CA opined that all complaints
involving violations of the SRC should be first filed before the SEC.27
Aggrieved, petitioners moved for reconsideration,28 which was, however, denied by the CA in a
Resolution29dated October 16, 2007.Hence, this petition.
The Issue Before the Court

The essential issue in this case is whether or not petitioners action falls within the primary
jurisdiction of the SEC.
Petitioners reiterate their original position that the SRC itself provides that civil cases for damages
arising from violations of the same law fall within the exclusive jurisdiction of the regional trial
courts.30
On the contrary, respondent maintains that since petitioners complaint would necessarily touch on
the issue of whether or not the former violated certain provisions of the SRC, then the said complaint
should have been first filed with the SEC which has the technical competence to resolve such
dispute.31
The Courts Ruling
The petition is meritorious.
At the outset, the Court observes that respondent erroneously relied on the Baviera ruling to support
its position that all complaints involving purported violations of the SRC should be first referred to the
SEC. A careful reading of the Baviera case would reveal that the same involves a criminal
prosecution of a purported violator of the SRC, and not a civil suit such as the case at bar. The
pertinent portions of the Baviera ruling thus read:
A criminal charge for violation of the Securities Regulation Code is a specialized dispute. Hence, it
must first be referred to an administrative agency of special competence, i.e., the SEC. Under the
doctrine of primary jurisdiction, courts will not determine a controversy involving a question within the
jurisdiction of the administrative tribunal, where the question demands the exercise of sound
administrative discretion requiring the specialized knowledge and expertise of said administrative
tribunal to determine technical and intricate matters of fact. The Securities Regulation Code is a
special law. Its enforcement is particularly vested in the SEC.
Hence, all complaints for any violation of the Code and its implementing rules and regulations should
be filed with the SEC. Where the complaint is criminal in nature, the SEC shall indorse the complaint
to the DOJ for preliminary investigation and prosecution as provided in Section 53.1 earlier quoted.
We thus agree with the Court of Appeals that petitioner committed a fatal procedural lapse when he
filed his criminal complaint directly with the DOJ. Verily, no grave abuse of discretion can be ascribed
to the DOJ in dismissing petitioners complaint.32 (Emphases and underscoring supplied)
Records show that petitioners complaint constitutes a civil suit for declaration of nullity of contract
and sums of money with damages, which stemmed from respondents alleged sale of unregistered
securities, in violation of the various provisions of the SRC and not a criminal case such as that
involved in Baviera.
In this light, when the Court ruled in Baviera that "all complaints for any violation of the [SRC] x x x
should be filed with the SEC,"33 it should be construed as to apply only to criminal and not to civil
suits such as petitioners complaint.
Moreover, it is a fundamental rule in procedural law that jurisdiction is conferred by law; 34 it cannot be
inferred but must be explicitly stated therein. Thus, when Congress confers exclusive jurisdiction to a
judicial or quasi-judicial entity over certain matters by law, this, absent any other indication to the
contrary, evinces its intent to exclude other bodies from exercising the same.

It is apparent that the SRC provisions governing criminal suits are separate and distinct from those
which pertain to civil suits. On the one hand, Section 53 of the SRC governs criminal suits involving
violations of the said law, viz.:
SEC. 53. Investigations, Injunctions and Prosecution of Offenses.
53.1. The Commission may, in its discretion, make such investigations as it deems necessary to
determine whether any person has violated or is about to violate any provision of this Code, any rule,
regulation or order thereunder, or any rule of an Exchange, registered securities association,
clearing agency, other self-regulatory organization, and may require or permit any person to file with
it a statement in writing, under oath or otherwise, as the Commission shall determine, as to all facts
and circumstances concerning the matter to be investigated. The Commission may publish
information concerning any such violations, and to investigate any fact, condition, practice or matter
which it may deem necessary or proper to aid in the enforcement of the provisions of this Code, in
the prescribing of rules and regulations thereunder, or in securing information to serve as a basis for
recommending further legislation concerning the matters to which this Code relates: Provided,
however, That any person requested or subpoenaed to produce documents or testify in any
investigation shall simultaneously be notified in writing of the purpose of such investigation:
Provided, further, That all criminal complaints for violations of this Code, and the implementing rules
and regulations enforced or administered by the Commission shall be referred to the Department of
Justice for preliminary investigation and prosecution before the proper court:
Provided, furthermore, That in instances where the law allows independent civil or criminal
proceedings of violations arising from the same act, the Commission shall take appropriate action to
implement the same: Provided, finally, That the investigation, prosecution, and trial of such cases
shall be given priority.
On the other hand, Sections 56, 57, 58, 59, 60, 61, 62, and 63 of the SRC pertain to civil suits
involving violations of the same law. Among these, the applicable provisions to this case are
Sections 57.1 and 63.1 of the SRC which provide:
SEC. 57. Civil Liabilities Arising in Connection With Prospectus, Communications and Reports.
57.1. Any person who:
(a) Offers to sell or sells a security in violation of Chapter III;
or
(b) Offers to sell or sells a security, whether or not exempted by the provisions of this Code,
by the use of any means or instruments of transportation or communication, by means of a
prospectus or other written or oral communication, which includes an untrue statement of a
material fact or omits to state a material fact necessary in order to make the statements, in
the light of the circumstances under which they were made, not misleading (the purchaser
not knowing of such untruth or omission), and who shall fail in the burden of proof that he did
not know, and in the exercise of reasonable care could not have known, of such untruth or
omission, shall be liable to the person purchasing such security from him, who may sue to
recover the consideration paid for such security with interest thereon, less the amount of any
income received thereon, upon the tender of such security, or for damages if he no longer
owns the security.

xxxx
SEC. 63. Amount of Damages to be Awarded. 63.1. All suits to recover damages pursuant to
Sections 56, 57, 58, 59, 60 and 61 shall be brought before the Regional Trial Court which shall have
exclusive jurisdiction to hear and decide such suits. The Court is hereby authorized to award
damages in an amount not exceeding triple the amount of the transaction plus actual damages.
x x x x (Emphases and underscoring supplied)
Based on the foregoing, it is clear that cases falling under Section 57of the SRC, which pertain to
civil liabilities arising from violations of the requirements for offers to sell or the sale of securities, as
well as other civil suits under Sections 56, 58, 59, 60, and 61 of the SRC shall be exclusively brought
before the regional trial courts. It is a well-settled rule in statutory construction that the term "shall" is
a word of command, and one which has always or which must be given a compulsory meaning, and
it is generally imperative or mandatory.35 Likewise, it is equally revelatory that no SRC provision of
similar import is found in its sections governing criminal suits; quite the contrary, the SRC states that
criminal cases arising from violations of its provisions should be first referred to the SEC.
1wphi1

Therefore, based on these considerations, it stands to reason that civil suits falling under the SRC
are under the exclusive original jurisdiction of the regional trial courts and hence, need not be first
filed before the SEC, unlike criminal cases wherein the latter body exercises primary jurisdiction.
All told, petitioners' filing of a civil suit against respondent for purported violations of the SRC was
properly filed directly before the RTC.
WHEREFORE, the petition is GRANTED. Accordingly, the Court of Appeals' Decision dated May 21,
2007 and Resolution dated October 16,2007 in CA-G.R. SP No. 79297 are hereby REVERSED and
SET ASIDE. Let Civil Case No. 19-1159 be REINSTATED and REMANDED to the Regional Trial
Court of Cauayan City, Isabela, Branch 19 for further proceedings.
SO ORDERED.
G.R. Nos. 169727-28 August 18, 2006
BRIG. GEN. (Ret.) JOSE S. RAMISCAL, JR., Petitioner,
vs.
SANDIGANBAYAN (4th Division) and PEOPLE OF THE PHILIPPINES, Respondents.
DECISION
CALLEJO, SR., J.:
Before the Court is a Petition for Certiorari under Rule 65 of the Rules of Court for the nullification of
the Resolution 1 of the Sandiganbayan (4th Division) in Criminal Case Nos. 28022 and 28023, as
well as its Resolution denying the motion for reconsideration thereof.
In 1998, the Senate Committees on Accountability of Public Officers and Investigation (Blue Ribbon)
and on National Defense and Security (collectively, Senate Blue Ribbon Committee) carried out an
extensive joint inquiry into the "coup rumors and the alleged anomalies" in the Armed Forces of the
Philippines-Philippine Retirement Benefits Systems (AFP-RSBS). In its Report dated December 23,
1998, the Senate Blue Ribbon Committee outlined, among others, the anomalies in the acquisition of

lots in Tanauan, Batangas, Calamba, Laguna and Iloilo City by the AFP-RSBS, and described the
modus operandi of the perpetrators as follows:
The modus operandi in the buying of the lots was to cover the same transactions with two deeds of
sale. One deed of sale would be signed only by the seller or sellers (unilateral deed). Another deed
of sale would be signed by the seller or seller and the buyer, AFP-RSBS (bilateral deed).
The devious gimmicking was uncovered by your Committee which also found out that the buying
prices stated in the unilateral deeds did not match those stated in the bilateral deeds. To borrow a
word from lawyers, the "consideration" (i.e., prices) in the unilateral deeds of sale and the bilateral
deeds of sale did not tally even if they covered the same transaction.
Without exception, the deed(s) signed by the seller(s) only (unilateral deeds) were the one registered
with the registrar (sic) of deeds. These Unilateral Deeds of Sale recorded lower consideration paid
by the System to the buyer(s) than those stated in the Bilateral Deeds. The motivation was obviously
to evade payment of the correct taxes to the government and save money for the seller(s), broker(s)
and who knows, probably even for the kickbacks going to certain officials of RSBS, the buyer.
xxxx
The bilateral deeds were kept in the dark files [of] the System over the years. They were uncovered
only recently as a result of your Committees investigation. Your Committee submits that the reason
why the bilateral deeds were kept in the vaults of the System was to justify the huge lot payments
made by the System just in case any soldier-member of RSBS would be bold or curious enough to
inquire about the matter directly with the System. The curious soldier would then be shown the
bilateral deed to impress upon him/her that indeed the System has spent huge amounts for the
purchase of the lots in question.
Until the investigation uncovered the anomaly, the matter of the two sets of documents covering the
purchases of the same parcels of land made by the System were, like the Clinton-Lewinsky trysts,
kept from the prying eyes officials of the System but so unfair because the public continues to
shoulder, in behalf of the RSBS, the payments for the pension and retirement benefits of the
soldiers." (Emphasis supplied)
The Initial Report of the Senate Blue Ribbon Committee, which was cited by the Feliciano
Commission in its Report to the President of the Philippines, included the following discussion:
Essentially, the Blue Ribbon Committee found that the real estate purchases by RSBS were
uniformly documented, by two (2) sets of instruments: Firstly, a unilateral covering the same piece of
land, executed both by the seller and by RSBS as buyer. The price stated in the second bilateral
instrument was invariably much higher than the price reflected in the unilateral deed of sale. The
discrepancies between the purchase price booked by RSBS and the purchase price reflected in the
unilateral deed of sale actually registered in the relevant Registry of Deeds, totaled about seven
hundred three million pesos (P703 Million). The two sets of purchase price figures obviously could
not both be correct at the same time. Either the purchase price booked and paid out by RSBS was
the true purchase price of the land involved, in which case RSBS had obviously assisted or abetted
the seller in grossly understating the capital gains realized by him and in defrauding the National
treasury; or the purchase price in the unilateral deed of sale was the consideration actually received
by the seller from RSBS, in which case, the buyer-RSBS had grossly overpaid, with the differential,
in the belief of the Senate Blue Ribbon Committee, going into the pockets of RSBS officials. A third
possibility was that the differential between the purchase price booked and paid by the buyer-RSBS

and the selling price admitted by the seller of the land, had been shared by the buyer and seller in
some undisclosed ratio. 2
Pursuant to the recommendation of the Senate Blue Ribbon Committee to "prosecute and/or cause
the prosecution of Gen. Jose Ramiscal Jr. (Ret), past AFP-RSBS President, who had signed the
unregistered deeds of sale covering the acquisition of certain parcels of land," Ombudsman
Investigators Ricardo Sullano, Rodil Buenaventura and Anatolio Alejandrino of the Office of the
Deputy Ombudsman for the Military conducted a fact-finding investigation. They executed a Joint
Affidavit-Complaint, 3 stating that based on their findings, the following may be charged with
falsification of public documents and violation of Section 3(e) and (g) of Republic Act (R.A.) No.
3019: petitioner B/Gen. Jose Ramiscal, Jr., former AFP-RSBS president; Atty. Meinrado Enrique
Bello, Head of the AFP-RSBS Legal Department in charge of Land Acquisition; Capt. Perfecto
Enrique Quilicot, AFP-RSBS Project Officer, Tanauan, Batangas, Land Acquisition; and Notaries
Public Alfredo Nasser and Manuel Satuito.
The matter was further looked into by a panel of Ombudsman Investigators, which issued on March
30, 2001 a Joint Resolution 4 finding probable cause to file the corresponding Informations for 148
counts of violation of Article 315, in relation to Article 171, paragraph 4 of the Revised Penal Code,
and Section 3 (e) of R.A. No. 3019 against Meinrado Bello and Atty. Manuel Satuito. However, it was
likewise recommended that the complaint against petitioner be dismissed, without prejudice to a
thorough fact-finding investigation on his liability in light of this Courts ruling in Arias v.
Sandiganbayan. 5
The Ombudsman did not act on this recommendation. Instead, another panel of prosecutors was
directed to review the Joint Resolution and conduct a thorough investigation of the case. After
conducting clarificatory hearings, the investigating panel issued a Memorandum 6 dated June 15,
2004, recommending to the Ombudsman that petitioner be charged with 148 counts of estafa
through falsification of public documents, and one count violation of Section 3(e) of R.A. No. 3019.
Petitioners allegation that he merely relied on the legal staff of the AFP-RSBS when he signed the
unregistered bilateral deeds of sale was considered untenable. The panel declared that the deeds
were used purposely to facilitate the payment of amounts in excess of that paid to the landowners.
Moreover, petitioner, as AFP-RSBS president, could not claim that he was merely involved in toplevel policy implementation.
The Memorandum also stated that the AFP-RSBS had an Investment Committee tasked to screen
project proposals, which was headed by petitioner, Oscar Martinez and other AFP-RSBS officers;
these potential investments were then elevated for further screening and approval to the Executive
Committee, of which petitioner and Martinez were also members. The panel found that petitioner
knew of the unilateral deeds of sale, considering that they were duly registered with the Register of
Deeds and titles were issued on the basis thereof. The investigating panel clarified that the ruling of
this Court in Arias does not apply because petitioners
participation consisted of signing and approving documents prepared by his subordinates relative to
the transactions, from the time of conceptualization until payment by AFP-RSBS.
The panel further found that the culpability of petitioner, Quilicot, Bello and Satuito is evidenced by
the fact that they signed documents in manifest bad faith, with full knowledge of the anomalous
transactions. The bilateral deeds of absolute sale were prepared by the Legal Department of AFPRSBS where Bello and Satuito were assigned, later enabling them to amass enormous profits. The
investigating panel "confirmed" the observations of the Senate Blue Ribbon Committee as follows:

We have also noted that in all the 148 transactions of lot acquisition, the Bilateral Deeds of Sale
never bore the marks/annotations of the Bureau of Internal Revenue and the Register of Deeds of
Tanauan, Batangas, as would always appear, if they were used as basis for transfer of title. These
Bilateral Deeds of Sale were attached to the payment vouchers to justify the payment of the much
higher price considerations of the acquired lots, yet, no one of the respondents and the concerned
AFP-RSBS officials and employees questioned the fact that the Bilateral Deeds of Sale never bore
the marks and annotations of the Bureau of Internal Revenue indicative that the proper taxes have
been paid nor that of the Register of Deeds of Tanauan, Batangas particularly the assigned Entry
Number and the date of said entry as reflected in its Primary Entry Book.
From the concerted silence and inaction of the respondents on the glaring irregularities attendant to
the transaction, we can draw the conclusion that these officers of the AFP-RSBS who passed upon
the Disbursement Voucher and the Status Transaction Forms were aware of the forgeries and the
result thereof. All the respondents were acting under a common design and purpose to give a
semblance of regularity to the acquisition of the subject one hundred forty eight (148) lots at a price
very much higher than what was actually paid to the individual lot owners. The element of conspiracy
was therefore present. 7
The panel opined that the AFP-RSBS funds used to purchase the parcels of land were trust funds
and for administration purposes. 8 Moreover, Presidential Decree (P.D.) No. 361, the charter of the
AFP-RSBS, intended to create a trust fund for the specific purpose of benefiting the members of the
armed forces, hence contributions thereto were compulsory. Since soldiers and military personnel
rely on the administration of the AFP-RSBS for their retirement, pension and separation benefits,
petitioner and his co-officers occupy positions of trust, with obligations and responsibilities akin to
those imposed on directors and officers of a corporation; and considering that the responsible
officers are not mere directors but trustees, there is all the more reason to apply the fiduciary
relationship principle in this case.
The Ombudsman approved the recommendation of the Panel of Prosecutors without prejudice to the
liability of the landowners involved in the transactions.
Petitioner and his co-accused filed their respective Motions for Reconsideration of the investigating
panels June 15, 2004 Memorandum. Petitioner alleged the following:
1. RESPONDENT RAMISCALS PARTICIPATION IN THE SUBJECT SALE TRANSACTIONS,
WHICH WERE DULY APPROVED BY THE RSBS BOARD, WAS PURELY MINISTERIAL AS PART
OF HIS LIMITED FUNCTIONS AS PRESIDENT OF RSBS.
2. THE CONSPIRACY THEORY LINKING RESPONDENT RAMISCAL TO THE CHARGES IS
DEVOID OF FACTUAL AND/OR LEGAL BASIS. IN FACT, THE MEMORANDUM FAILED TO
SHOW, AS THERE IS NONE (SIC) ANY OVERT ACT OF CONSPIRACY COMMITTED BY
RESPONDENT RAMISCAL.
3. IN ANY EVENT, THE CHARGES OF FALSIFICATION BASED ON THE BILATERAL DEEDS
HAVE NO LEGAL LEG TO STAND ON AS AGAINST RESPONDENT RAMISCAL.
4. MORE THAN THAT, THE CHARGES OF ESTAFA AND VIOLATION OF SECTION 3(E) R.A. 3019
HAVE NO FACTUAL AND/OR LEGAL BASES INASMUCH AS THE AMOUNTS PAID BY AFP-RSBS
TO THE VENDORS ARE THOSE THAT WERE INDICATED IN THE BILATERAL DEEDS OF SALE,
HENCE, NO UNWARRANTED BENEFITS WERE AFFORDED THE SELLERS NOR DID THE [AFPRSBS] AND THE GOVERNMENT SUFFER UNDUE INJURY INCIDENT THERETO. 9

On September 27, 2004, the Panel of Prosecutors issued a Memorandum

recommending that the motion be denied, which the latter duly approved.

10

to the Ombudsman

Thereafter, the panel of Prosecutors and the Special Prosecutors had a series of meetings with the
Ombudsman, where it was agreed upon that only five Informations for estafa through falsification of
public documents and five Informations for violation of Section 3(e) of R.A. No. 3019 would be
initially filed with the Sandiganbayan instead of the 148 counts previously recommended by the
Ombudsman. This was due to the lack of prosecutors who would handle the voluminous cases. 11
Of the Informations filed, two were raffled to the Fourth Division of the Sandiganbayan, one of which
was docketed as Criminal Case No. 28022 for violation of Section 3(e) of R.A. No. 3019. The
accusatory portion reads:
That on April 23, 1997 and sometime prior or subsequent thereto, in the Province of Batangas and
Quezon City, Philippines, and within the jurisdiction of this Honorable Court, the abovenamed
accused public officers, namely: Brigadier General Jose Servando Ramiscal, Jr., a high-ranking
public official, being then the President of the Armed Forces of the Philippines-Retirement,
Separation and Benefit System (AFP-RSBS); Atty. Meinrado Enrique A. Bello, Head of Legal
Division; Atty. Manuel Se Satuito, Chief of Documentation, Legal Division; Captain Perfecto O.
Quilicot, Jr., Project Officer, and certain John and John Does, also of the AFP-RSBS, a government
entity, being a government owned or controlled corporation, while in the performance of their official
functions and committing the offense in relation to their office, acting with evident bad faith,
conspiring, confederating and mutually helping one another, with private individuals John Does and
Jane Does, did then and there willfully, unlawfully and criminally cause undue injury to AFP-RSBS
and its members by purchasing a parcel of land covering an area of seven thousand five hundred
eighty-two square meters (7,582 sq. m.), more or less, situated at Tanauan, Batangas, registered in
the name of Marianito V. Plaza, Glicerio V. Plaza and Petra Maunahan and covered by OCT-11835
and TCT 65973 of the Registry of Deeds of Tanauan, Batangas, under a bilateral Deed of Absoute
Sale dated April 23, 1997, making it appear therein that the afore-described real property was sold
by the said owners and purchased by the AFP-RSBS, represented by accused BGen. Jose
Servando Ramiscal, Jr., for the amount of ONE MILLION FIVE HUNDRED THIRTY-ONE
THOUSAND FIVE HUNDRED SIXTY-FOUR PESOS (P1,531,564.00), Philippine Currency, paid
under AFP-RSBS General Voucher No. 61789 dated May 28, 1997 with corresponding Philippine
National Bank Check No. 72789 dated June 3, 1997, when in truth and in fact, accused knew fully
well that the true and real consideration thereof is only TWO HUNDRED TWENTY-SEVEN
THOUSAND FOUR HUNDRED SIXTY PESOS (P227,460.00), Philippine Currency, as correctly
indicated in a unilateral Deed of Absolute Sale dated April 14, 1997 executed by the said owners,
thereby resulting to an overprice of ONE MILLION THREE HUNDRED FOUR THOUSAND ONE
HUNDRED FOUR PESOS (P1,304,104.00) to the damage and prejudice of AFP-RSBS and its
members.
CONTRARY TO LAW. 12
The other, for estafa thru falsification of public documents, was docketed as Criminal Case No.
28023. The accusatory portion reads:
That on April 23, 1997 and sometime prior or subsequent thereto, in the Province of Batangas and
Quezon City, Philippines, and within the jurisdiction of this Honorable Court, the abovenamed
accused public officers, namely: Brigadier General Jose Servando Ramiscal, Jr., a high ranking
public official, being then the President of the Armed Forces of the Philippines-Retirement
Separation and Benefit System (AFP-RSBS); Atty. Meinrado Enrique A. Bello, Head of Legal
Division; Atty. Manuel Se Satuito, Chief of Documentation, Legal Division; Captain Perfecto O.

Quilicot, Jr., Project Officer, and certain John and Jane Does, also of the AFP-RSBS, a government
entity, being a government owned or controlled corporation, while in the performance of their official
functions and committing the offense in relation to their office, acting with unfaithfulness and abuse
of confidence, conspiring, confederating and mutually helping one another, with private individuals
John Does and Jane Does, and with intent to defraud the AFP-RSBS and its members, did then and
there willfully, unlawfully and feloniously falsify or cause to be falsified a bilateral Deed of Absolute
Sale dated April 23, 1997 covering seven thousand five hundred eighty-two square meters (7,582
sq. m.), more or less, of real property situated at Tanauan, Batangas, registered in the name of
Marianito V. Plaza, Glicerio V. Plaza and Petra Maunahan and covered by OCT-11835 and TCT
65973 of the Registry of Deeds of Tanauan, Batangas, by making it appear therein that the
aforedescribed real property was sold by the said owners and purchased by the AFP-RSBS,
represented by accused BGen. Jose Servando Ramiscal, Jr., for the overpriced amount of ONE
MILLION FIVE HUNDRED THIRTY-ONE THOUSAND FIVE HUNDRED SIXTY-FOUR PESOS
(P1,531,564.00), Philippine Currency, from its funds held by the accused AFP-RSBS officials in trust
and for administration, when in truth and in fact, accused knew fully well that the true and real
consideration thereof is only TWO HUNDRED TWENTY-SEVEN THOUSAND FOUR HUNDRED
SIXTY PESOS (P227,460.00), Philippine Currency, as correctly indicated in a unilateral Deed of
Absolute Sale dated April 14, 1997 executed by the said owners, and thereafter, to facilitate the
payment of the said overpriced amount by the AFP-RSBS, the accused used the said falsified
bilateral Deed of Absolute Sale as supporting document, among others, to the AFP-RSBS General
Voucher No. 61789 dated May 28, 1997, and relying on said fraudulent acts, AFP-RSBS released
the amount of ONE MILLION FIVE HUNDRED THIRTY-ONE THOUSAND FIVE HUNDRED SIXTYFOUR PESOS (P1,531,564.00) by way of Philippine National Bank Check No. 72789 dated June 3,
1997, which amount included the overprice of ONE MILLION THREE HUNDRED FOUR
THOUSAND ONE HUNDRED FOUR PESOS (P1,304,104.00) and which the accused subsequently
misappropriated and converted to their personal use and benefit, to the damage and prejudice of the
AFP-RSBS and its members.
CONTRARY TO LAW. 13
Raffled to the First Division of the anti-graft court were two other cases docketed as Criminal Case
No. 28026 14for violation of Section 3(e) of
R.A. 3019, and Criminal Case No. 28027 15 for estafa through falsification of public documents.
Criminal Case No. 28028 16 for violation of Section 3(e), R.A. No. 3019 and Criminal Case No.
28029 17 for estafa through falsification of public documents were raffled to the Second Division,
while Criminal Case No. 28021 18 for estafa through falsification of public documents was raffled to
the Third Division. Criminal Case No. 28024 19 for violation of Section 3(e) of R.A. No. 3019 and
Criminal Case No. 28025 20 for estafa through falsification of public documents were raffled to the
Fifth Division.
Petitioner filed in the Fourth Division of the anti-graft court (in Criminal Case Nos. 28022 and 28023)
an "Urgent Motion for Hearing to Determine Probable Cause and Consolidate All Cases in One
Information with Prayer to Defer Issuance of An Arrest Warrant Pending Resolution Hereof." 21 The
Sandiganbayan denied the motion on January 17, 2005, holding that the judicial determination of
probable cause is not an adversarial proceeding but summary in nature. While it ordered the
issuance of warrants of arrest against the accused, it resolved to hold in abeyance the resolution on
the matter of consolidation of all the cases until after it had acquired jurisdiction over their
persons. 22 After petitioner posted bail for his provisional release, the Sandiganbayan denied the
motion for the consolidation of the cases, considering that the other cases filed were pending in its
other divisions.

Petitioner filed a motion for reconsideration of the resolution and sought to have the cases dismissed
for lack of probable cause. 23 He alleged that, in finding probable cause, the Sandiganbayan merely
relied on the findings of the Ombudsman and did not take into account the other affidavits on record.
The Sandiganbayan again denied the motion on February 22, 2005. 24
Undaunted, petitioner filed a Motion to Quash
following grounds:

25

in Criminal Cases Nos. 28022 and 28023 on the

I. This Court has no jurisdiction over the offenses charged in both Informations;
II. In Criminal Case No. 28023 (estafa through falsification), the facts charged being an essential part
of the continuing crime of Estafa separately charged in Criminal Cases Nos. 28021, 28025, 28027
and 28029, pending in the 3rd, 1st, 5th and 2nd divisions, respectively, only one Information must be
filed for all these cases including those covered by the OSP memorandum dated June 15, 2004;
and,
III. In Criminal Case No. 20822 (violation of RA No. 3019), the said case is abated by Criminal Case
No. 20823 (Estafa through falsification) because the very facts alleged in the former are also the
very facts alleged in the latter. 26
On June 2, 2005, the Sandiganbayan resolved to deny the motion, holding that contrary to
petitioners claim, it had jurisdiction over the crimes charged. 27 Petitioner filed a motion for
reconsideration which was also denied on August 17, 2005. 28 Petitioner then posted bail for his
provisional liberty.
When arraigned on September 1, 2005, petitioner refused to enter a plea, prompting the anti-graft
court to enter a plea of not guilty in both cases. 29
On October 7, 2005, petitioner filed the instant petition for certiorari under Rule 65, praying that the
said Resolution be nullified on the following grounds:
I. THE RESPONDENT COURT COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO
LACK AND/OR EXCESS OF JURISDICTION IN SUSTAINING THE OMBUDSMANS FINDING OF
PROBABLE CAUSE FOR THE COMMISSION OF ONE HUNDRED FORTY EIGHT (148) COUNTS
OF ESTAFA THRU FALSIFICATION OF PUBLIC DOCUMENT AND ANOTHER ONE HUNDRED
FORTY EIGHT (148) COUNTS OF VIOLATION OF REPUBLIC ACT NO. 3019 AND IN NOT
DISMISSING THE INFORMATIONS.
II. THE RESPONDENT COURT COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO
LACK AND/OR EXCESS OF JURISDICTION IN NOT QUASHING THE INFORMATIONS AND IN
NOT DISMISSING THE CASES NOTWITHSTANDING THAT IT HAD NO JURISDICTION OVER
THE OFFENSE CHARGED IN THE INFORMATION.
III. THE RESPONDENT COURT COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO
LACK AND/OR EXCESS OF JURISDICTION IN NOT QUASHING THE INFORMATION IN
CRIMINAL CASE NO. 28023 (ESTAFA THROUGH FALSIFICATION), NOTWITHSTANDING THAT
THE FACTS CHARGED THEREIN WERE AN ESSENTIAL PART OF ONE CONTINUING CRIME
OF ESTAFA SEPARATELY CHARGED IN CRIMINAL CASES NOS. 28021, 28025, 28027 AND
28029, PENDING IN THE THIRD, FIRST, FIFTH AND SECOND DIVISIONS OF THE
SANDIGANBAYAN, RESPECTIVELY, CONSIDERING THAT BASED ON THE DOCUMENTS
ADDUCED BY THE PEOPLE AND FOR OBVIOUS WANT OF RELIABLE EVIDENCE, ONLY ONE

INFORMATION FOR ESTAFA SHOULD HAVE BEEN FILED FOR ALL THESE CASES INCLUDING
THE REMAINING ONE HUNDRED FORTY THREE (143) COUNTS COVERED BY THE OSP
MEMORANDUM DATED JUNE 15, 2004, ANNEX T;
IV. THE RESPONDENT COURT COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO
LACK AND/OR EXCESS OF JURISDICTION IN NOT QUASHING THE INFORMATION IN
CRIMINAL CASE NO. 20822 (VIOLATION OF RA NO. 3019) NOTWITHSTANDING THAT THE
SAID CASE WAS ABATED BY CRIMINAL CASE NO. 20823 (ESTAFA THROUGH FALSIFICATION)
BECAUSE THE VERY FACTS ALLEGED IN THE FORMER WERE ALSO THE VERY FACTS
ALLEGED IN THE LATTER, THUS VIOLATING THE RULE ON DOUBLE JEOPARDY. 30
Petitioner insists that, in finding probable cause against him for estafa through falsification of public
document and violation of Section 3(e) of R.A. 3019, the Sandiganbayan committed grave abuse of
discretion amounting to lack of jurisdiction, as it relied solely on the Memorandum of the
investigation panel of Ombudsman Prosecutors. He posits that it behooved the anti-graft court to
review the Ombudsmans findings and scrutinize the evidence, the affidavits on record, including the
transcript of stenographic notes. As gleaned from the Joint Resolution dated March 30, 2001, the
initial finding of the Ombudsman Prosecutors was that there was no probable cause to charge him
for the acts complained of, in the light of the Courts ruling in the Arias case. He asserts that there
was no evidence of bad faith on his part relative to the deeds of sale subject of the Informations filed
against him. He insists that based on the Joint Resolution, and even the report of the Senate Blue
Ribbon Committee, he had no part whatsoever in the commission of the crimes charged. The
disparity of the prices of the properties in the bilateral deeds of sale, vis--vis the unilateral deeds of
sale, do not support the finding of probable cause against him made by the investigating panel of
Ombudsman Prosecutors. Petitioner asserts that there is no evidence on record that he conspired
with the other accused in the commission of the crimes charged.
Petitioner further posits that the Sandiganbayan likewise committed grave abuse of its discretion
when it found probable cause for the issuance of a warrant of arrest against him instead of setting
the case for hearing. He insists that the anti-graft court failed to consider the other evidence on
record and erred in relying solely on the evaluation and resolution of the investigating panel of
Prosecutors; the fact that he posted bail bonds for his provisional liberty does not estop him from
raising the issue in his Motion to Quash.
Petitioner avers that the Sandiganbayan has no jurisdiction over the crimes charged as provided in
Section 4 of R.A. 8249. He insists that the AFP-RSBS is not a government-owned or controlled
corporation and that he does not fall under Salary Grade 27 as required in Section 4 of the law,
inasmuch as his position as AFP-RSBS President is not even included under the Compensation and
Classification Act of 1989. Petitioner cites the ruling of this Court in Inding v. Sandiganbayan 31 to
support his claim.
Petitioner asserts that the charges filed against him constitute only one crime of estafa through
falsification of public document, in the nature of delito continuado, or a series of repetition of the
same acts arising from one and the same criminal intent. He maintains that while there are 148
bilateral deeds of sale signed by him and 145 unilateral deeds of sale signed by the sellers, it cannot
thereby be concluded that he is criminally liable for each deed executed. The number of transactions
purportedly entered into is not a gauge in ascertaining criminal intent for the several transactions.
The best test should be the presence of clear, convincing and positive evidence showing distinct
criminal intent for each sales transaction, which in any event, is wanting in this case. Petitioner
further alleges that for multiple transactions to be considered as separate and distinct crimes, there
must be a series of acts with individual sellers such as (a) negotiations; (b) discussion of the terms of
the sale; (c) finalizing the terms thereof; and (d) instruction to prepare payment and (e) actual

payment. He points out that there is no

evidence that he and the other accused involved ever met with any of the sellers. While he admits
the possibility that he could have signed the bilateral deeds of sale in one sitting, he insists that
these documents were
notarized separately; there is even no evidence on record that the sellers of the property transacted
separately with him. He points out that the corporate officers of AFP-RSBS, especially its President,
do not personally deal with any of the sellers. The bare fact that he executed the bilateral deeds of
sale and that the project was approved by the higher level of the management, cannot lead to the
conclusion that he took part in the implementation of the transactions.
Petitioner maintains that the Sandiganbayan committed grave abuse of discretion amounting to lack
of or excess of jurisdiction in filing the charges against him. He insists that the delictual acts
contained in the two Informations, Criminal Case No. 28022 (for violation of R.A. 3019) and Criminal
Case No. 28023 (for estafa through falsification of public document), are one and the same; to
charge him under Section 3(e) of R.A. 3019 despite his indictment for estafa is to duplicate the very
same charge under another name, which under the principle of double jeopardy, is proscribed. He
further argues that while it is true that, in Section 3(e) of R.A. 3019, the charge against him for said
crime is "in addition" to his criminal liability under the Revised Penal Code, the phrase connotes
cumulativeness and simultaneity of liability.
Petitioner points out that the panel of Ombudsman Prosecutors recommended the filing of only one
count of violation of Section 3(e) of R.A. No. 3019, but the Ombudsman filed five (5) counts thereof.
The issues are the following: (1) whether the Ombudsman committed grave abuse of discretion
amounting to excess or lack of jurisdiction in finding probable cause against petitioner for estafa
through falsification of public document and for violation of Section 3(e) of R.A. No. 3019; (2)
whether the Sandiganbayan committed grave abuse of discretion amounting to excess of jurisdiction
in finding probable cause against petitioner for the issuance of warrants for petitioners arrest without
first conducting a hearing; (3) whether petitioner may be charged and prosecuted for five (5) counts
of estafa thru falsification of public documents; and (4) whether petitioner may be prosecuted for
both estafa through falsification of a public document and violation of Section 3(e) of R.A. No. 3019
without violating his right against double jeopardy.
The petition has no merit.
On the first issue, the rule is that as far as crimes cognizable by the Sandiganbayan are concerned,
the determination of probable cause during the preliminary investigation, or reinvestigation for that
matter, is a function that belongs to the Office of the Ombudsman. The Ombudsman is empowered
to determine, in the exercise of his discretion, whether probable cause exists, and to charge the
person believed to have committed the crime as defined by law. Whether or not the Ombudsman
has correctly discharged his function, i.e., whether or not he has made a correct assessment of the
evidence of probable cause in a case, is a matter that the trial court may not be compelled to pass
upon.
As a rule, courts should not interfere with the Ombudsmans investigatory power, exercised through
the Ombudsman Prosecutors, and the authority to determine the presence or absence of probable
cause, 32 except when the finding is tainted with grave abuse of discretion amounting to lack or
excess of jurisdiction. In such case, the aggrieved party may file a petition for certiorari under Rule
65 of the Rules of Court. 33 Indeed, if the Ombudsman does not take essential facts into
consideration in the determination of probable cause, there is abuse of discretion. 34 As we ruled in

Mendoza-Arce v. Office of the Ombudsman (Visayas), 35 a writ of certiorari may issue in any of the
following instances:
1. When necessary to afford adequate protection to the constitutional rights of the accused;
2. When necessary for the orderly administration of justice or to avoid oppression or multiplicity of
actions;
3. When there is a prejudicial question which is sub judice;
4. When the acts of the officer are without or in excess of authority;
5. Where the prosecution is under an invalid law, ordinance or regulation;
6. When double jeopardy is clearly apparent;
7. Where the court has no jurisdiction over the offense;
8. Where it is a case of persecution rather than prosecution;
9. Where the charges are manifestly false and motivated by the lust for vengeance;
10. When there is clearly no prima facie case against the accused and a motion to quash on that
ground has been denied. 36
In this case, however, petitioner failed to establish that the Ombudsman committed grave abuse of
discretion amounting to excess or lack of jurisdiction in finding probable cause to charge him with
violation of Section 3(e) of R.A. No. 3019 and for estafa through falsification of a public document.
We are not convinced by petitioners claim that there is no probable cause on record for the filing of
the Information against him. It bears stressing that probable cause need not be based on clear and
convincing evidence of guilt, neither on evidence establishing guilt beyond reasonable doubt and
definitely not on evidence establishing absolute certainty of guilt. It implies probability of guilt and
requires more than bare suspicion but less than evidence which would justify conviction. 37 The
Ombudsmans finding of probable cause against petitioner is buttressed by his encompassing and
comprehensive resolution, independent of the findings of the Senate Committees, as well as the
documents appended to the Informations. Petitioners bare claim to the contrary cannot prevail over
such positive findings of the Ombudsman. In fine, the Ombudsmans finding of
probable cause prevails over petitioners bare allegations of grave abuse of discretion; that he was
not involved in the step-by-step consummation of the anomalous transaction; and that as President
he was involved only in the top level policy formulation and implementation.
It is true that in the Joint Resolution dated March 30, 2001, the Panel of Ombudsman Prosecutors
found no sufficient evidence that petitioner acted in bad faith and that he merely relied on the
recommendations of his subordinates. However, after a thorough investigation, another panel of
Ombudsman Prosecutors found that, indeed, petitioner not merely relied on the recommendations of
his subordinates but likewise perpetrated overt acts, which, along with those of the other accused,
resulted in the consummation of the crimes charged. Thus, as maintained by the respondents in
their Comment on the petition, petitioner signed documents, indicating his evident bad faith on the
highly anomalous transactions; petitioner was aware of the forgeries and anomalies in the buying of

the parcels of land, yet gave his conformity thereto, causing grave injury to its members and to the
public in general. Thus, it was also found that petitioner, together with his cohorts, conspired to
perpetuate clear fraud on the government and the AFP-RSBS members by giving a semblance of
regularity to real estate acquisitions at bloated prices.
The fact alone that petitioner was aware, in each transaction, that the two (2) deeds of sale contain
contradictory costs for every acquisition, and that he failed to rectify the same eloquently speak of
his participation in the criminal malevolence. He was a member of the Investment Committee of the
AFP-RSBS, which screened potential investments, that were thereafter subjected to further
screening and approval by the Executive Committee of which he was also a member; hence,
petitioner had full knowledge of the transactions, from the time they were conceptualized until the
properties were paid for. The records show that the Tanauan, Batangas properties alone were
overpriced by about 600%. Thus, petitioner consented to the crimes charged by the following overt
acts:
(1) Petitioner and his co-accused prepared or caused to be prepared two (2) deeds of sale covering
the same transactions: a deed of sale with the seller or sellers as the sole signatory or signatories
therein (unilateral deeds); and a deed of sale with the seller or sellers and the buyer, AFP-RSBS,
represented by petitioner (bilateral deeds);
(2) The considerations in the unilateral deeds of sale and the bilateral deeds of sale did not tally,
notwithstanding the fact that they covered the same subject matter and transaction, with the bilateral
deeds of sale bearing a bloated price; and,
(3) Of these two deeds, the unilateral deeds of sale bore the correct value given to the seller(s) as
evinced, among others, by the fact that the same were the ones registered with the Registry of
Deeds.
The bilateral deeds of sale could not possibly be the basis of the transfer of the properties because
the supporting bilateral deeds carried dates much later than the date of issue of the titles, which
were likewise not filed with the Bureau of Internal Revenue (BIR) and the Registry of Deeds of
Tanauan, Batangas. The Court cannot supplant the findings of the Ombudsman that the unilateral
deeds of sale were prepared by the Legal Department of AFP-RSBS, in as much as both the
unilateral and bilateral deeds of sale have exactly the same print and form. The residence certificate
number of petitioner which is indicated in the bilateral deeds of sale is likewise printed in the
unilateral deeds. Petitioners fraudulent intent is further proven by the fact that the Status of
Transaction Form (STF), where the subject lots were endorsed for payment, bore his signature. The
unilateral deeds of sale resulted in the issuance of the titles, which were also the supporting
documents enumerated in the STF. In many instances, the bilateral deeds of sale carry dates much
later than the dates their corresponding titles were issued.
Petitioner was likewise unable to establish his claim that the Sandiganbayan committed grave abuse
of discretion in finding probable cause for the issuance of a warrant for his arrest. His bare claim that
the Sandiganbayan merely relied on the Memoranda of the Panel of Prosecutors to the Ombudsman
and did not scrutinize the evidence appended thereto is not supported by the records. In the first
place, the Sandiganbayan is presumed to have performed its duty as provided in the Revised Rules
of Criminal Procedure, which can likewise be gleaned from its February 22, 2005 Resolution:
[1] While accused Ramiscal is correct in stating that this Court, in determining the existence of
probable cause for the issuance of the warrant of arrest against the accused, had evaluated the
resolution of the Office of the Ombudsman and its supporting documents, he is, however, wrong in
presuming that such process failed to consider the evidence the accused adduced during

preliminary investigation. It should be noted that the supporting documents submitted by the Office
of the Ombudsman to this Court included, among others, the counter-affidavits submitted by the
accused at the preliminary investigation. Parenthetically, there is no need, and the rules do not
require this Court, to enumerate in detail what were the supporting documents it considered in
determining the existence of probable cause for the issuance of the warrant of arrest because the
same are matters of record that the parties can easily verify. 38
We agree with the Sandiganbayans ruling that the Revised Rules of Criminal Procedure do not
require cases to be set for hearing to determine probable cause for the issuance of a warrant for the
arrest of the accused before any warrant may be issued. Section 6, Rule 112 mandates the judge to
personally evaluate the resolution of the Prosecutor (in this case, the Ombudsman) and its
supporting evidence, and if he/she finds probable cause, a warrant of arrest or commitment order
may be issued within 10 days from the filing of the complaint or Information; in case the Judge
doubts the existence of probable cause, the prosecutor may be ordered to present additional
evidence within five (5) days from notice. The provision reads in full:
SEC. 6. When warrant of arrest may issue. (a) By the Regional Trial Court. Within ten (10) days
from the filing of the complaint or information, the judge shall personally evaluate the resolution of
the prosecutor and its supporting evidence. He may immediately dismiss the case if the evidence on
record clearly fails to establish probable cause. If he finds probable cause, he shall issue a warrant
of arrest, or a commitment order if the accused has already been arrested pursuant to a warrant
issued by the judge who conducted the preliminary investigation
or when the complaint or information was filed pursuant to section 7 of this Rule. In case of doubt on
the existence of probable cause, the judge may order the prosecutor to present additional evidence
within five (5) days from notice and the issue must be resolved by the court within thirty (30) days
from the filing of the complaint of information. 39
The periods provided in the Revised Rules of Criminal Procedure are mandatory, and as such, the
judge must determine the presence or absence of probable cause within such periods. The
Sandiganbayans determination of probable cause is made ex parte and is summary in nature, not
adversarial. The Judge should not be stymied and distracted from his determination of probable
cause by needless motions for determination of probable cause filed by the accused.
We hold that petitioner likewise failed to establish his claim that the Sandiganbayan committed a
grave abuse of authority in denying his motion to quash the Information.
First. The anti-graft court correctly ruled that it has jurisdiction over the crimes charged.
In People v. Sandiganbayan 40 and Ramiscal, Jr. v. Sandiganbayan, 41 this Court ruled that the AFPRSBS is a government-owned and controlled corporation, and that its funds are in the nature of
public funds. Under Section 4(a)(1)(g) of R.A. No. 8249, the Sandiganbayan has exclusive
jurisdiction over offenses committed by presidents, directors, trustees or
managers of government owned or controlled corporations. 42 Under Section 4(b) of R.A. No. 8249,
the Sandiganbayan has exclusive jurisdiction over offenses committed by public officers and
employees in relation to their office, whether simple or complexed with other crimes. 43
As gleaned from the material averments of the Information in Criminal Case No. 28023, the charge
against petitioner is estafa through falsification of public document in the performance of his duties
and in relation to his position as president of the AFP-RSBS.

Second. On petitioners claim that he should be charged with only one count of estafa through
falsification of public document instead of five (5) charges, respondents counter that the criminal acts
petitioner and his co-accused are not continuous crimes. Respondents argue that a continuous
crime may exist only if there is only a single criminal intent and the commission of diverse acts is
merely a partial execution of said single criminal resolution. In the instant cases, the requirement of
singularity of criminal intent does not exist because there are as many criminal intents as there are
anomalous transactions, causing grave damage to the government at each instance. There was no
need for the accused to perform another or other delictual acts to consummate the felony.
Respondents maintain that petitioner was motivated by separate intents as he signed each
document, all of which are criminal in character; hence, it is but proper that corresponding
Informations be filed against him for each and every act of falsification committed.
The Sandiganbayan, for its part, sustained the contention of respondents and ruled that the
determination of (a) the charge/s and the person/s against whom the charge is filed are addressed to
the sound discretion of the Prosecutors based on the facts before them; and (b) the crimes
committed by petitioner are separate, and not a single crime consisting of series of acts arising from
a single criminal resolution. Thus:
In the first place, the question of the number of criminal charges that must be instituted against a
criminal respondent (whether one count or multiple counts of the same offense) is one addressed to
the sound discretion of the prosecution service. It is enough, as this Court has already ruled, that the
informations filed in these cases are based on facts establishing probable cause for the offenses
charged. This Court will not compel the Office of the Ombudsman to file only one information for
Estafa through Falsification of Public Documents when its preliminary investigation established the
commission of several counts thereof as such action on the part of this Court would constitute undue
interference with the Office of the Ombudsmans control over the prosecution of these cases.
In the second place, this Court is not persuaded that what is involved in these cases is a continuous
crime, that is to say, a single crime consisting of a series of acts arising from a single criminal
resolution or intent not susceptible of division, with each act in that series being merely the partial
execution of a single delict. On the contrary, the Court is of the view that what is involved herein are
several completed and distinct purported criminal acts which should be prosecuted as multiple
counts of the same type of offense. Thus, as correctly perceived by the prosecution, there are as
many alleged offenses as there are alleged anomalous transactions involved in these cases. 44
When required to comment on the motion of petitioner and his co- accused for a consolidation of the
charges filed against them before the Sandiganbayan, the Special Prosecutor objected thereto,
insisting that there were as many crimes committed by the accused as there were sales contracts
forged by them.
Indeed, the determination of what charges to file and who are to be charged are matters addressed
to the discretion of the Ombudsman, including the matter of whether the crime perpetrated by
petitioner and his co-accused under the Informations pending in the Divisions of the Sandiganbayan
constitute delito continuado or classified as concurso de
delitos; or involve separate crimes under the category of concurso real delito involve factual
issues. 45 Such factual issues should be resolved after trial on the merits, and not in this case. The
Court is being tasked to determine whether the several sales contracts executed by petitioner and
his co-accused were set afoot or triggered by a single impulse and operated by an uninterrupted
force however long a time it may occupy, which, however, is a matter best left to the determination of
the trial court, in this case, the Sandiganbayan. 46

Thus, the present petition for certiorari under Rule 65 of the Revised Rules of Court is hardly the
appropriate remedy and forum for petitioner to ventilate the issues he has raised, as only
jurisdictional issues can be resolved therein. As eloquently expressed by Justice Florenz D.
Regalado, speaking for this Court in Iligan v. Court of Appeals: 47
If, as petitioners seem to apprehend, the adverse actions of two lower courts could create a scenario
of multiple prosecutions for the same offense or, more candidly expressed, of double jeopardy, then
this is neither the procedural stage nor the proper occasion to pass upon that possibility. For,
squarely imputable to petitioners is the evident lack of factual basis for and a grossly defective
presentation of that issue for this Court to rule thereon in this proceeding and at this time. 48
It must be stressed that our disposition of the matters in the present recourse will not foreclose
petitioners right to ventilate the same in the Sandiganbayan, for as declared in Iligan:
However, this observation would not foreclose relief to petitioners if at the trial of this case the
evidence presented and the developments therein suffice to establish the supervening fact that
indeed there could possibly be a breach of the rule of double jeopardy. Under Section 8 of Rule 117,
they can still hereafter raise that defense of non bis in idem, provided that they can lay the
evidentiary bases therefor and refute from the standpoint of substantive penal law what was earlier
said on the nature and the non-identity of the several crimes of Estafa involved which, to repeat, we
pronounced purely on the bases of existing records sans the benefit of any evidentiary fact since
none has been adduced. 49
On the last issue, we agree with the contention of respondents that the crimes committed by public
officers and employees in relation to their offices defined and penalized under the Anti-Graft Law do
not exclude prosecution for felonies defined and penalized under the Revised Penal Code and vice
versa. Section 3 of R.A. No. 3019 reads:
Section 3. Corrupt practices of public officers.In addition to acts or omissions of public officers
already penalized by existing law, the following shall constitute corrupt practices of any public officer
and are hereby declared to be unlawful: x x x (Emphasis supplied)
It is clear then that one may be charged of violation of R.A. No. 3019 in addition to a felony under the
Revised Penal Code for the same delictual act, that is, either concurrently or subsequent to being
charged with a felony under the Code.
IN LIGHT OF ALL THE FOREGOING, the petition is DENIED. Costs against the petitioner.
SO ORDERED.
G.R. No. 150185

May 27, 2004

TERESITA TANGHAL OKABE, petitioner,

vs.
HON. PEDRO DE LEON GUTIERREZ, in his capacity as Presiding Judge of RTC, Pasay City,
Branch 119; PEOPLE OF THE PHILIPPINES; and CECILIA MARUYAMA, respondents.
DECISION
CALLEJO, SR., J.:

Before us is a petition for review on certiorari, under Rule 45 of the Rules of Court, as amended, that
part of the Decision1 of the Court of Appeals in CA-G.R. SP No. 60732 dismissing her petition for
certiorari under Rule 65 of the Rules of Court, as amended, for the nullification of the August 25 and
28, 2000 Orders of the respondent judge in Criminal Case No. 00-0749.
The Antecedents
Cecilia Maruyama executed a fifteen-page affidavit-complaint2 and filed the same with the Office of
the City Prosecutor of Pasay City, on December 29, 1999, charging Lorna Tanghal and petitioner
Teresita Tanghal Okabe, a.k.a. Shiela Okabe, with estafa. In her affidavit, Maruyama alleged, inter
alia, that on December 11, 1998, she entrusted Y11,410,000 with the peso equivalent of P3,993,500
to the petitioner, who was engaged in the business of "door-to-door delivery" from Japan to the
Philippines. It was alleged that the petitioner failed to deliver the money as agreed upon, and, at first,
denied receiving the said amount but later returned only US$1,000 through Lorna Tanghal.
During the preliminary investigation, the complainant, respondent Maruyama, submitted the affidavit
of her witnesses, namely, Hermogena Santiago, Wilma Setsu and Marilette G. Izumiya and other
documentary evidence. In her affidavit, Setsu alleged that the money which was entrusted to the
petitioner for delivery to the Philippines belonged to her and her sister Annie Hashimoto, and their
mother Hermogena Sanchez-Quicho, who joined respondent Maruyama in her complaint against
petitioner Okabe and Tanghal. Respondent Maruyama, likewise, submitted a reply 3 to the petitioners
counter-affidavit. After the requisite preliminary investigation, 2nd Assistant City Prosecutor Joselito
J. Vibandor came out with a resolution dated March 30, 2000, finding probable cause
for estafa against the petitioner.4 Attached to the resolution, which was submitted to the city
prosecutor for approval, was the Information5 against the petitioner and Maruyamas affidavitcomplaint. The city prosecutor approved the resolution and the Information dated March 30, 2000
attached thereto.6
On May 15, 2000, an Information against the petitioner was filed in the Regional Trial Court of Pasay
City, docketed as Criminal Case No. 00-0749. The case was raffled to Branch 119 of the court
presided by Judge Pedro de Leon Gutierrez.7 The accusatory portion of the Information reads:
That on or about December 12, 1998 in Pasay City, Metro Manila, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused defrauded Cecilia Maruyama
and Conchita Quicho, complainant herein, in the following manner, to wit: said accused
received in trust from Cecilia Maruyama the amount of Japanese Yen 1141 (sic) with peso
equivalent to P3,839,465.00 under obligation to deliver the money to Conchita Quicho at the
NAIA International Airport, Pasay City, immediately upon accused arrival from Japan, but
herein accused once in possession of the same, did, then and there willfully, unlawfully and
feloniously misappropriate and convert to her own personal benefit the said amount, and
despite demands accused failed and refused to do so, to the damage and prejudice of the
complainants in the aforesaid amount.
Contrary to law.8
Appended to the Information was the affidavit-complaint of respondent Maruyama and the resolution
of Investigating Prosecutor Vibandor. On May 19, 2000, the trial court issued a warrant for the arrest
of the petitioner with a recommended bond of P40,000. On June 15, 2000, the petitioner posted a
personal bail bond in the said amount, duly approved by Judge Demetrio B. Macapagal, the
Presiding Judge of Branch 79 of the RTC of Quezon City, who forthwith recalled the said warrant.
The approved personal bail bond of the petitioner was transmitted to the RTC of Pasig City on June
21, 2000. Upon her request, the petitioner was furnished with a certified copy of the Information, the

resolution and the criminal complaint which formed part of the records of the said case. The
petitioner left the Philippines for Japan on June 17, 2000 without the trial courts permission, and
returned to the Philippines on June 28, 2000. She left the Philippines anew on July 1, 2000, and
returned on July 12, 2000.
On July 14, 2000, the trial court issued an Order setting the petitioners arraignment and pre-trial at
2:00 p.m. of July 16, 2000. On the same day, the private prosecutor filed an urgent ex parte motion
for the issuance of the hold departure order, alleging as follows:
3. It has come to the knowledge of private complainant that there is an impending marriage
within the Philippines of either the son or daughter of the above-named accused and that the
above-named accusedwho has businesses in Japan, and is presently in Japanwill soon
exit Japan and enter the Philippines to precisely attend said wedding;
4. Given [a] the bail was fixed at merely P40,000.00 and [b] the considerable financial
capability of the accused, it is a foregone conclusion that the above-named accused will,
upon arrest, readily and immediately post bond, and leave for Japanthereby frustrating
and rendering inutile the administration of criminal justice in our country. The speed with
which accused Teresita Sheila Tanghal Okabe can post bond and leave for Japan
effectively evading arraignment and pleathus necessitates the immediate issuance of a
Hold Departure Order even before her arrival here in the Philippines; 9
The trial court issued an order on the same day, granting the motion of the private prosecutor for the
issuance of a hold departure order and ordering the Commission on Immigration and Deportation
(CID) to hold and prevent any attempt on the part of the petitioner to depart from the
Philippines.10 For her part, the petitioner filed on July 17, 2000 a verified motion for judicial
determination of probable cause and to defer proceedings/arraignment, alleging that the only
documents appended to the Information submitted by the investigating prosecutor were respondent
Maruyamas affidavit-complaint for estafa and the resolution of the investigating prosecutor; the
affidavits of the witnesses of the complainant, the respondents counter-affidavit and the other
evidence adduced by the parties were not attached thereto. The petitioner further alleged that the
documents submitted by the investigating prosecutor were not enough on which the trial court could
base a finding of probable cause forestafa against her. She further averred that conformably to the
rulings of this Court in Lim v. Felix11 and Roberts, Jr. v. Court of Appeals,12 it behooved the
investigating prosecutor to submit the following to the trial court to enable it to determine the
presence or absence of probable cause: (a) copies of the affidavits of the witnesses of the
complainant; (b) the counter-affidavit of Okabe and those of her witnesses; (c) the transcripts of
stenographic notes taken during the preliminary investigation; and, (d) other documents presented
during the said investigation.
On July 19, 2000, the petitioner filed a Very Urgent Motion To Lift/Recall Hold Departure Order dated
July 17, 2000 and/or allow her to regularly travel to Japan alleging, thus:
3. Accused is (sic) widow and the legitimate mother of three (3) children, two (2) of whom are
still minors, namely:
3.1. Okabe, Jeffrey-18 years old born on 13 August 1981.
3.2. Okabe, Masatoshi-14 years old and born on 16 October 1985, 3rd year High
School student at Hoshikuki, Chiba City, Matsugaoka, High School, residing at Chiba
City, Chuo-Ku, Yahagi-cho, 205, Telephone No. 043-224-5804.

3.3. Okabe, Tomoki-13 years old and born on 13 March 1986, 2nd year High School
student at Hoshikuki, Chiba City, Matsugaoka, High School, residing at Chiba City,
Chuo-Ku, Yahagi-cho, 205, Telephone No. 043-224-5804.
3.4. The accused has to attend the Parents Teachers Association (PTA) at the
Hoshikuki High School where her two (2) minor sons aforesaid are presently enrolled
and studying because Okabe, Masatoshis graduation will take place on 26 July
2000.
3.5. The two (2) minor children of the accused absolutely depend their support (basic
necessities) for foods, clothings, medicines, rentals, schooling and all other expenses
for their survival to their legitimate mother who is the accused herein.
3.6. The issuance of the hold departure order (HDO) will impair the inherent custodial
rights of the accused as the legitimate mother over these two (2) minor children
which is repugnant to law.
3.7. The issuance of the hold departure order (HDO) will unduly restrict the accused
to her custodial rights and visitation over her aforesaid minor children who are
permanently living in Japan.
3.8. The issuance of the hold departure order (HDO) will unduly deprived (sic) these
minor children to their right to obtain education and survival.
4. Accuseds only source of income and livelihood is door-to-door delivery from Japan to the
Philippines and vice versa which has been taking place for a very long period of time and in
the process she has been constantly departing from the Philippines on a weekly basis and
arriving in Japan on the same frequency, as evidenced by xerox copies of the pages of her
Philippine Passports which are hereto attached as Annexes "A," "A-1," "A-2" up to "A-30,"
respectively. To deprive her of this only source of her livelihood to which the aforesaid two (2)
minor children are deriving their very survival in a foreign land will (sic) tantamount to
oppression rather than prosecution and depriving the said minor sons of their right to live
even before trial on the merits of this case that will (sic) tantamount to the destruction of the
future of these minor children.13
The private prosecutor opposed the petitioners motions during the hearing on July 21, 2000 which
was also the date set for her arraignment. The hearing of the motions as well as the arraignment
was reset to 2:00 p.m. of July 26, 2000. On the said date, the petitioner filed a manifestation
objecting to her arraignment prior to the resolution of her pending motions. She alleged that her
arraignment for the crime charged should not be made a condition for the granting of her motion to
recall the hold departure order issued against her. The arraignment of the petitioner was again reset
to 2:00 p.m. of August 28, 2000, pending the resolution of her two motions. On August 25, 2000, the
petitioner filed a motion for the postponement of her arraignment alleging that, in case the trial court
ruled adversely thereon, she would refuse to enter a plea and seek relief from the appellate court.
The court denied the petitioners motions on the following grounds:
(a) Based on its personal examination and consideration of the Information, the affidavitcomplaint of respondent Maruyama and the resolution of the investigating prosecutor duly
approved by the city prosecutor, the court found probable cause for the petitioners arrest.
Since the petitioners motion for a determination of probable cause was made after the court
had already found probable cause and issued a warrant for the petitioners arrest, and after

the latter filed a personal bail bond for her provisional liberty, such motion was a mere
surplusage;
(b) When the petitioner posted a personal bail bond for her provisional liberty, she thereby
waived her right to question the courts finding of the existence of probable cause for her
arrest and submitted herself to the jurisdiction of the court, more so when she filed the
motion for the lifting of the hold departure order the court issued, and the motion to defer the
proceedings and her arraignment; and
(c) The hold departure order issued by the trial court was in accord with Supreme Court
Circular No. 39-97 dated June 19, 1997, as well as the ruling of this Court in Manotoc, Jr. v.
Court of Appeals.14
When the case was called for the petitioners arraignment at 2:00 p.m., on August 28, 2000, she
refused to plead.15 Her counsel advised her, in open court, not to enter a plea and, with leave of
court, left the courtroom. The court then entered a not guilty plea for the petitioner.16 It also issued an
order, on the said date, setting the pre-trial and initial presentation of the evidence of the prosecution
at 8:30 a.m. of September 20, 2000.17
The petitioner then filed with the Court of Appeals a petition for certiorari under Rule 65 of the Rules
of Court with a plea for a writ of preliminary injunction. The case was docketed as CA-G.R. SP No.
60732. The petitioner ascribed the following errors to the trial court:
I
RESPONDENT COURT GRAVELY ERRED WHEN IT ISSUED WARRANT OF ARREST
DESPITE OF (SIC) LACK OF PROBABLE CAUSE
II
RESPONDENT COURT HAS VIOLATED THE RIGHT OF THE PETITIONER TO DUE
PROCESS
III
RESPONDENT COURT HAS ALREADY PRE-JUDGED THE CONVICTION OF THE
PETITIONER FOR ESTAFA
IV
RESPONDENT COURT HAS EXHIBITED ITS APPARENT PARTIALITY TOWARDS THE
PROSECUTION AND AGAINST THE PETITIONER
V
RESPONDENT COURT GRAVELY ERRED WHEN IT DENIES (SIC) THE MOTION FOR
JUDICIAL DETERMINATION OF PROBABLE CAUSE PURSUANT TO THE DOCTRINE OF
ROBERTS, JR.
VI

RESPONDENT COURT GRAVELY ERRED WHEN IT DENIES (SIC) THE LIFTING/RECALL

OF THE HDO AND/OR ALLOWING THE PETITIONER TO TRAVEL TO JAPAN
REGULARLY FOR HUMANITARIAN CONSIDERATION
VII
RESPONDENT COURT COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO
LACK OF JURISDICTION WHEN IT ISSUED THE QUESTIONED ORDERS18
On January 31, 2001, the CA rendered a Decision19 partially granting the petition in that the assailed
order of the trial court denying the petitioners motion to lift/recall the hold departure order was set
aside. However, the petitioners motion for reconsideration of the trial courts decision was denied
and her petition for the nullification of the August 25, 2000 Order of the respondent judge was
dismissed. The CA ruled that by posting bail and praying for reliefs from the trial court, the petitioner
waived her right to assail the respondent judges finding of the existence of probable cause. The
appellate court cited the ruling of this Court in Cojuangco, Jr. v. Sandiganbayan.20 Thus, the
appellate court affirmed the assailed order of the RTC, based on the respondent judges personal
examination of respondent Maruyamas affidavit-complaint, the resolution of the investigating
prosecutor and the Information approved by the city prosecutor, a finding of probable cause was in
order. However, the appellate court allowed the petitioner to travel to Japan under the following
conditions:
(1) That petitioner post a bond double the amount of her alleged monetary liability under the
Information filed against her, as recommended by the Office of the Solicitor General;
(2) That petitioner inform respondent Court of each and all of her travel itinerary prior to
leaving the country;
(3) That petitioner make periodic reports with respondent Court;
(4) That petitioner furnish respondent Court with all the addresses of her possible place of
residence, both here and in Japan; and
(5) Such other reasonable conditions which respondent Court may deem appropriate under
the circumstances.21
The appellate court did not resolve the issue of whether the trial court had prejudged the case and
was partial to the prosecution. The decretal portion of the decision of the CA reads:
WHEREFORE, premises considered, the instant special civil action for certiorari is
hereby PARTIALLY GRANTED insofar as the denial of petitioners Motion to Lift/Recall Hold
Departure Order dated 14 July, 2000 and/or Allow the accused to Regularly Travel to Japan
is concerned. In all other respect, the same is hereby DENIED.
SO ORDERED.22
On March 6, 2001, the petitioner filed a motion for a partial reconsideration of the decision of the CA
contending that the appellate court erred in applying the ruling of this court in Cojuangco, Jr. v. Court
of Appeals23 instead of Section 26, Rule 114 of the Revised Rules on Criminal Procedure. The
petitioner posited that the said rule, which took effect on December 1, 2000, before the court
rendered its decision, had superseded the ruling of this Court in the Cojuangco case. However, the

appellate court held that Section 26, Rule 114 of the Revised Rules on Criminal Procedure cannot
be applied retroactively, because the petitioner had posted bail on June 15, 2000 before the Revised
Rules on Criminal Procedure took effect.
Hence, the instant petition for review on certiorari for the reversal of the decision and resolution of
the CA and praying that after due proceedings, judgment be rendered in her favor, thus:
WHEREFORE, it is respectfully prayed of this Honorable Supreme Court that after due
proceedings judgment be rendered in favor of the petitioner and against the respondents as
follows:
(a) GIVING DUE COURSE to the instant petition;
(b) ORDERING the REVERSAL and PARTIALLY SETTING ASIDE of the Decision
promulgated on 31 January 2001 (Annex "A" hereof) of the Honorable Court of
Appeals in CA-G.R. SP No. 60732 as well as its Resolution promulgated on 27
September 2001 (Annex "B" hereof);
(c) ORDERING the DISMISSAL of Crim. Case No. 00-0749 for lack of probable
cause;
(d) DECLARING the entire proceedings in Crim. Case No. 00-0749 as null and void;
(e) ORDERING the private respondents to pay the petitioners the following amount:
(i) at least P1,000,000.00 as moral damages;
(ii) at least P1,000,000.00 as exemplary damages;
(iii) at least P500,000.00 as attorneys fees and for other expenses of
litigation.
(f) ORDERING the private respondent to pay the costs of this suit.
(g) Petitioner further prays for such other reliefs just and equitable under the
premises.24
The petitioner asserts that the CA committed the following reversible errors:
I
THE HONORABLE COURT OF APPEALS MADE A REVERSIBLE ERROR WHEN IT
COMPLETELY DISREGARDED THE APPLICATION OF SECTION 26, RULE 114 OF THE
REVISED RULES ON CRIMINAL PROCEDURE WHICH TOOK EFFECT ON 01
DECEMBER 2000 WHICH IS FAVORABLE TO THE PETITIONER/ACCUSED.
II
THE HONORABLE COURT OF APPEALS MADE A REVERSIBLE ERROR IN RULING
THAT "WHATEVER INFIRMITY THERE WAS IN THE ISSUANCE OF THE WARRANT OF

ARREST, THE SAME WAS CURED WHEN PETITIONER VOLUNTARILY SUBMITTED TO

THE RESPONDENT COURTS JURISDICTION WHEN SHE POSTED BAIL AND FILED
MOTIONS SEEKING AFFIRMATIVE RELIEF SUCH AS MOTION TO LIFT/RECALL HOLD
DEPARTURE ORDER AND TO ALLOW PETITIONER TO TRAVEL REGULARLY TO JAPAN
(Last paragraph, Page 9 DECISION dated 31 January 2001)."
III
THE HONORABLE COURT OF APPEALS MADE A REVERSIBLE ERROR WHEN IT
RELIED UPON THE RULING IN THE CASE OF COJUANGCO, JR. VS. SANDIGANBAYAN,
[300 SCRA 367 (1998)] WHEN IN FACT SAID RULING IS NOW OBSOLETE AND NO
LONGER APPLICABLE.
IV
THE HONORABLE COURT OF APPEALS MADE A REVERSIBLE ERROR IN RULING
THAT RESPONDENT COURT COMPLIED WITH THE CONSTITUTIONAL
REQUIREMENTS ON THE ISSUANCE OF WARRANT OF ARREST WITHOUT PROBABLE
CAUSE, WHEN THE RESPONDENT COURT MERELY RELIED ON [THE] (i) COMPLAINTAFFIDAVIT OF CECILIA MARUYAMA; (ii) RESOLUTION OF THE INVESTIGATING
PROSECUTOR; AND (iii) CRIMINAL INFORMATION.
V
THE HONORABLE COURT OF APPEALS MADE A REVERSIBLE ERROR WHEN IT
FAILED TO RULE ON THE PARTIALITY OF THE RESPONDENT JUDGE IN HANDLING
THE CASE BELOW WHICH IS VIOLATIVE OF THE PETITIONERS RIGHT TO DUE
PROCESS.
VI
THE FILING OF CRIM. CASE NO. 4297 (MTC, ANGAT, BULACAN) FOR ESTAFA
ENTITLED "PEOPLE VS. SHEILA OKABE"; CIVIL CASE NO. 331-M-98 (RTC, MALOLOS,
BULACAN) FOR SUM OF MONEY WITH PRELIMINARY ATTACHMENT ENTITLED
"CONCHITA SANCHEZ-QUICHO VS. SHEILA TERESITA TANGHAL OKABE"; AND CRIM.
CASE NO. 00-07-19 (RTC, PASAY CITY, BRANCH 119) ENTITLED "PEOPLE VS.
TERESITA TANGHAL OKABE" CONSTITUTE A VIOLATION OF THE RULE ON NONFORUM SHOPPING.25
By way of comment, the Office of the Solicitor General refuted the petitioners assigned errors,
contending as follows:
I
The Court of Appeals did not commit a reversible error in not applying Section 26, Rule 114
of the Revised Rules on Criminal Procedure.
II
The Court of Appeals did not commit a reversible error in ruling that the infirmity, if any, in the
issuance by the respondent Judge of the warrant of arrest against petitioner was cured when

petitioner voluntarily submitted to the trial courts jurisdiction when she posted bail and filed
motions seeking for affirmative reliefs from the trial court, such as the motion to lift/recall
Hold Departure Order (HDO) and to allow petitioner to travel regularly to Japan.
III
The Court of Appeals did not commit a reversible error in applying the ruling in
the Cojuangco case.
IV
The Court of Appeals did not commit a reversible error in finding that respondent Judge
complied with the constitutional requirements on the issuance of a warrant of arrest.
V
The Court of Appeals did not commit a reversible error when it did not rule on the partiality of
the respondent Judge in handling Criminal Case No. 00-0749.
VI
The Honorable Court of Appeals did not commit a reversible error when it did not rule on
petitioners claim of forum shopping.26
The Court shall resolve the assigned errors simultaneously as they are interrelated.
The petitioner asserts that the respondent judge could not have determined the existence of
probable cause for her arrest solely on the resolution of the investigating prosecutor and the undated
affidavit-complaint of respondent Maruyama. She posits that the respondent judge should have
ordered the investigating prosecutor to submit the affidavits of the witnesses of respondent
Maruyama and the latters documentary evidence, as well as the counter-affidavit of the petitioner
and the transcripts of the stenographic notes, if any, taken during the preliminary investigation. The
petitioner adds that the respondent judge should have personally reviewed the said documents,
conformably to the rulings of this Court in Lim v. Felix,27 Roberts, Jr. v. Court of Appeals28 and Ho v.
People,29 before determining the presence or absence of probable cause. She posits that the
respondent judge acted with grave abuse of discretion amounting to excess or lack of jurisdiction in
denying her motion for a determination of probable cause, and the alternative motion for a dismissal
of the case against her for lack of probable cause.
The petitioner further asserts that the appellate court erred in affirming the ruling of the respondent
judge that, by posting a personal bail bond for her provisional liability and by filing several motions
for relief, she thereby voluntarily submitted herself to the jurisdiction of the trial court and waived her
right to assail the infirmities that infected the trial courts issuance of the warrant for her arrest. She
avers that the appellate courts reliance on the ruling of this Court in Cojuangco, Jr. v.
Sandiganbayan30 is misplaced, and submits that the appellate court should have applied Section 26,
Rule 114 of the Revised Rules of Court retroactively, as it rendered the ruling of this Court in
the Cojuangco, Jr. case obsolete.
The Office of the Solicitor General, on the other hand, asserts that the respondent judge did not
commit any grave abuse of discretion when he found probable cause against the petitioner
for estafa, and thereafter issued a warrant for her arrest. It argues that the respondent judge

personally determined the existence of probable cause independently of the certification of the
investigating prosecutor, and only after examining the Information, the resolution of the investigating
prosecutor, as well as the affidavit-complaint of the private complainant. It asserts that such
documents are sufficient on which to anchor a finding of probable cause. It insists that the appellate
court correctly applied the ruling of this Court in the Cojuangco, Jr. v. Court of Appeals case, and that
the respondent judge complied with both the requirements of the constitution and those set forth in
the Rules of Court before issuing the said warrant.31
We agree with the contention of the petitioner that the appellate court erred in not applying Section
26, Rule 114 of the Revised Rules on Criminal Procedure, viz:
SEC. 26. Bail not a bar to objections on illegal arrest, lack of or irregular preliminary
investigation. An application for or admission to bail shall not bar the accused from
challenging the validity of his arrest or the legality of the warrant issued therefor, or from
assailing the regularity or questioning the absence of a preliminary investigation of the
charge against him, provided that he raises them before entering his plea. The court shall
resolve the matter as early as practicable but not later than the start of the trial of the case.
It bears stressing that Section 26, Rule 114 of the Revised Rules on Criminal Procedure is a new
one, intended to modify previous rulings of this Court that an application for bail or the admission to
bail by the accused shall be considered as a waiver of his right to assail the warrant issued for his
arrest on the legalities or irregularities thereon.32 The new rule has reverted to the ruling of this Court
in People v. Red.33 The new rule is curative in nature because precisely, it was designed to supply
defects and curb evils in procedural rules. Hence, the rules governing curative statutes are
applicable. Curative statutes are by their essence retroactive in application. 34Besides, procedural
rules as a general rule operate retroactively, even without express provisions to that effect, to cases
pending at the time of their effectivity, in other words to actions yet undetermined at the time of their
effectivity.35 Before the appellate court rendered its decision on January 31, 2001, the Revised Rules
on Criminal Procedure was already in effect. It behooved the appellate court to have applied the
same in resolving the petitioners petition for certiorari and her motion for partial reconsideration.
Moreover, considering the conduct of the petitioner after posting her personal bail bond, it cannot be
argued that she waived her right to question the finding of probable cause and to assail the warrant
of arrest issued against her by the respondent judge. There must be clear and convincing proof that
the petitioner had an actual intention to relinquish her right to question the existence of probable
cause.36 When the only proof of intention rests on what a party does, his act should be so manifestly
consistent with, and indicative of, an intent to voluntarily and unequivocally relinquish the particular
right that no other explanation of his conduct is possible. 37 In this case, the records show that a
warrant was issued by the respondent judge in Pasay City for the arrest of the petitioner, a resident
of Guiguinto, Bulacan. When the petitioner learned of the issuance of the said warrant, she posted a
personal bail bond to avert her arrest and secure her provisional liberty. Judge Demetrio B.
Macapagal of the RTC of Quezon City approved the bond and issued an order recalling the warrant
of arrest against the petitioner. Thus, the posting of a personal bail bond was a matter of imperative
necessity to avert her incarceration; it should not be deemed as a waiver of her right to assail her
arrest. So this Court ruled in People v. Red:38
The present defendants were arrested towards the end of January, 1929, on the Island
and Province of Marinduque by order of the judge of the Court of First Instance of Lucena,
Tayabas, at a time when there were no court sessions being held in Marinduque. In view of
these circumstances and the number of the accused, it may properly be held that the
furnishing of the bond was prompted by the sheer necessity of not remaining in detention,
and in no way implied their waiver of any right, such as the summary examination of the

case before their detention. That they had no intention of waiving this right is clear from their
motion of January 23, 1929, the same day on which they furnished a bond, and the fact that
they renewed this petition on February 23, 1929, praying for the stay of their arrest for lack of
the summary examination; the first motion being denied by the court on January 24, 1929
(G.R. No. 33708, page 8), and the second remaining undecided, but with an order to have it
presented in Boac, Marinduque.
Therefore, the defendants herein cannot be said to have waived the right granted to them by
section 13, General Order No. 58, as amended by Act No. 3042. 39
Moreover, the next day, or on June 16, 2000, the petitioner, through counsel, received certified true
copies of the Information, the resolution of the investigating prosecutor, the affidavit-complaint of the
private complainant, respondent Maruyama, and a certification from the branch clerk of court that
only the Information, resolution and affidavit-complaint formed part of the entire records of the case.
The next day, June 17, 2000, the petitioner, through counsel, filed a verified motion for judicial
determination of probable cause and to defer the proceedings and her arraignment. All the foregoing
are inconsistent with a waiver of her right to assail the validity of her arrest and to question the
respondent judges determination of the existence of probable cause for her arrest.
Neither can the petitioners filing of a motion for the lifting of the hold departure order and for leave to
go to Japan be considered a waiver of her right to assail the validity of the arrest warrant issued by
the respondent judge. It bears stressing that when the petitioner filed the motion to lift the hold
departure order issued against her by the respondent judge, her motion for a determination of
probable cause was still unresolved. She sought a lifting of the hold departure order on July 14,
2000 and filed a motion for leave to go to Japan, to give the respondent judge an opportunity to
reconsider the said order, preparatory to assailing the same in the appellate court in case her motion
was denied.
The issue that now comes to fore is whether or not the respondent judge committed a grave abuse
of his discretion amounting to excess or lack of jurisdiction in issuing his August 25, 2000 Order. By
grave abuse of discretion is meant such patent and gross abuse of discretion as to amount to an
evasion of positive duty or a virtual refusal to perform a duty enjoined by law, or to act at all in
contemplation of law, as where the power is exercised in an arbitrary and despotic manner by
reasons of passion or personal hostility.40 Hence, when the court has jurisdiction over the case, its
questioned acts, even if its findings are not correct, would at most constitute errors of law and not
abuse of discretion correctible by the extraordinary remedy of certiorari. 41
We agree with the petitioner that before the RTC judge issues a warrant of arrest under Section 6,
Rule 112 of the Rules of Court42 in relation to Section 2, Article III of the 1987 Constitution, the judge
must make a personal determination of the existence or non-existence of probable cause for the
arrest of the accused. The duty to make such determination is personal and exclusive to the issuing
judge. He cannot abdicate his duty and rely on the certification of the investigating prosecutor that he
had conducted a preliminary investigation in accordance with law and the Rules of Court, as
amended, and found probable cause for the filing of the Information.
Under Section 1, Rule 112 of the Rules on Criminal Procedure, the investigating prosecutor, in
conducting a preliminary investigation of a case cognizable by the RTC, is tasked to determine
whether there is sufficient ground to engender a well-founded belief that a crime has been
committed and the respondent therein is probably guilty thereof and should be held for trial. A
preliminary investigation is for the purpose of securing the innocent against hasty, malicious and
oppressive prosecution, and to protect him from an open and public accusation of a crime, from the
trouble, expense and anxiety of a public trial.43

If the investigating prosecutor finds probable cause for the filing of the Information against the
respondent, he executes a certification at the bottom of the Information that from the evidence
presented, there is a reasonable ground to believe that the offense charged has been committed
and that the accused is probably guilty thereof. Such certification of the investigating prosecutor is,
by itself, ineffective. It is not binding on the trial court. Nor may the RTC rely on the said certification
as basis for a finding of the existence of probable cause for the arrest of the accused. 44
In contrast, the task of the presiding judge when the Information is filed with the court is first and
foremost to determine the existence or non-existence of probable cause for the arrest of the
accused. Probable cause is meant such set of facts and circumstances which would lead a
reasonably discreet and prudent man to believe that the offense charged in the Information or any
offense included therein has been committed by the person sought to be arrested. 45 In determining
probable cause, the average man weighs facts and circumstances without resorting to the
calibrations of the rules of evidence of which he has no technical knowledge. He relies on common
sense.46 A finding of probable cause needs only to rest on evidence showing that more likely than not
a crime has been committed and that it was committed by the accused. Probable cause demands
more than bare suspicion, it requires less than evidence which would justify conviction. 47
The purpose of the mandate of the judge to first determine probable cause for the arrest of the
accused is to insulate from the very start those falsely charged of crimes from the tribulations,
expenses and anxiety of a public trial:
It must be stressed, however, that in these exceptional cases, the Court took the
extraordinary step of annulling findings of probable cause either to prevent the misuse of the
strong arm of the law or to protect the orderly administration of justice. The constitutional
duty of this Court in criminal litigations is not only to acquit the innocent after trial but to
insulate, from the start, the innocent from unfounded charges. For the Court is aware of the
strains of a criminal accusation and the stresses of litigation which should not be suffered by
the clearly innocent. The filing of an unfounded criminal information in court exposes the
innocent to severe distress especially when the crime is not bailable. Even an acquittal of the
innocent will not fully bleach the dark and deep stains left by a baseless accusation for
reputation once tarnished remains tarnished for a long length of time. The expense to
establish innocence may also be prohibitive and can be more punishing especially to the
poor and the powerless. Innocence ought to be enough and the business of this Court is to
shield the innocent from senseless suits right from the start.48
In determining the existence or non-existence of probable cause for the arrest of the accused, the
RTC judge may rely on the findings and conclusions in the resolution of the investigating prosecutor
finding probable cause for the filing of the Information. After all, as the Court held in Webb v. De
Leon,49 the judge just personally reviews the initial determination of the investigating prosecutor
finding a probable cause to see if it is supported by substantial evidence. 50 However, in determining
the existence or non-existence of probable cause for the arrest of the accused, the judge should not
rely solely on the said report.51 The judge should consider not only the report of the investigating
prosecutor but also the affidavit/affidavits and the documentary evidence of the parties, the counteraffidavit of the accused and his witnesses, as well as the transcript of stenographic notes taken
during the preliminary investigation, if any, submitted to the court by the investigating prosecutor
upon the filing of the Information.52 Indeed, in Ho v. People,53 this Court held that:
Lastly, it is not required that the complete or entire records of the case during the preliminary
investigation be submitted to and examined by the judge. We do not intend to unduly burden
trial courts by obliging them to examine the complete records of every case all the time
simply for the purpose of ordering the arrest of an accused. What is required, rather, is that

the judge must have sufficient supporting documents (such as the complaint, affidavits,
counter-affidavits, sworn statements of witnesses or transcripts of stenographic notes, if any)
upon which to make his independent judgment or, at the very least, upon which to verify the
findings of the prosecutor as to the existence of probable cause. The point is: he cannot rely
solely and entirely on the prosecutors recommendation, as Respondent Court did in this
case. Although the prosecutor enjoys the legal presumption of regularity in the performance
of his official duties and functions, which in turn gives his report the presumption of accuracy,
the Constitution, we repeat, commands the judge to personally determine probable cause in
the issuance of warrants of arrest. This Court has consistently held that a judge fails in his
bounden duty if he relies merely on the certification or the report of the investigating officer.54
The rulings of this Court are now embedded in Section 8(a), Rule 112 of the Revised Rules on
Criminal Procedure which provides that an Information or complaint filed in court shall be supported
by the affidavits and counter-affidavits of the parties and their witnesses, together with the other
supporting evidence of the resolution:
SEC. 8. Records. (a) Records supporting the information or complaint. An information or
complaint filed in court shall be supported by the affidavits and counter-affidavits of the
parties and their witnesses, together with the other supporting evidence and the resolution
on the case.
If the judge is able to determine the existence or non-existence of probable cause on the basis of the
records submitted by the investigating prosecutor, there would no longer be a need to order the
elevation of the rest of the records of the case. However, if the judge finds the records and/or
evidence submitted by the investigating prosecutor to be insufficient, he may order the dismissal of
the case, or direct the investigating prosecutor either to submit more evidence or to submit the entire
records of the preliminary investigation, to enable him to discharge his duty.55 The judge may even
call the complainant and his witness to themselves answer the courts probing questions to
determine the existence of probable cause.56 The rulings of this Court in Soliven v.
Makasiar57 and Lim v. Felix58 are now embodied in Section 6, Rule 112 of the Revised Rules on
Criminal Procedure, with modifications, viz:
SEC. 6. When warrant of arrest may issue. (a) By the Regional Trial Court. Within ten
(10) days from the filing of the complaint or information, the judge shall personally evaluate
the resolution of the prosecutor and its supporting evidence. He may immediately dismiss
the case if the evidence on record clearly fails to establish probable cause. If he finds
probable cause, he shall issue a warrant of arrest, or a commitment order if the accused has
already been arrested pursuant to a warrant issued by the judge who conducted the
preliminary investigation or when the complaint or information was filed pursuant to section 7
of this Rule. In case of doubt on the existence of probable cause, the judge may order the
prosecutor to present additional evidence within five (5) days from notice and the issue must
be resolved by the court within thirty (30) days from the filing of the complaint of information.
In this case, the investigating prosecutor submitted to the respondent judge only his resolution after
his preliminary investigation of the case and the affidavit-complaint of the private complainant, and
failed to include the affidavits of the witnesses of the private complainant, and the latters reply
affidavit, the counter-affidavit of the petitioner, as well as the evidence adduced by the private
complainant as required by case law, and now by Section 8(a), Rule 112 of the Revised Rules on
Criminal Procedure. The aforecited affidavits, more specifically the fax message of Lorna Tanghal
and the document signed by her covering the amount of US$1,000, are of vital importance, as they
would enable the respondent judge to properly determine the existence or non-existence of probable
cause.

First. When respondent Maruyama handed the money to the petitioner, she did not require the latter
to sign a document acknowledging receipt of the amount. The petitioner avers that it is incredible
that Maruyama would entrust P3,993,500 in Japanese Yen to her without even requiring her to sign
a receipt therefor, especially since respondent Maruyama was not even the owner of the money;
Second. The affidavit of Hermogena Santiago, a witness of the respondent, is unreliable, because it
is based on information relayed to her by Lorna Tanghal that she (Tanghal) saw the petitioner
carrying a Louis Vuitton bag while on board a Mitsubishi L300 van with the petitioner. It appears that
Tanghal failed to submit any counter-affidavit to the investigating prosecutor;
Third. The affidavit of Marilette G. Izumiya, another witness of the respondent, is also unreliable, as it
was based on information relayed to her by Thelma Barbiran, who used to work for the petitioner as
a housemaid, that she (Barbiran) had in her possession a fax message from Lorna Tanghal,
implicating the petitioner in the crime charged. Barbiran did not execute any affidavit;
Fourth. There is no indication in the resolution of the investigating prosecutor that the petitioner
received the fax message of Lorna Tanghal;
Fifth. The private complainant claims that the petitioner tried to reimburse the P3,993,500 by
remitting US$1,000 to her. However, the latter admitted in her affidavit-complaint that the document
evidencing the remittance was signed by Lorna Tanghal, not by the petitioner. The petitioner claimed
that Lorna Tanghal had to remit US$1,000 to respondent Maruyama because the latter made it
appear to Tanghal that the police authorities were about to arrest the petitioner, and Tanghal was
impelled to give the amount to respondent Maruyama to avert her arrest and incarceration;
Sixth. In her counter-affidavit, the petitioner alleged that respondent Maruyama had no case against
her because the crime charged in the latters affidavit-complaint was the same as that filed against
her in the Metropolitan Trial Court of Bulacan, which was withdrawn by the complainant herself;
Seventh. The investigating prosecutor stated in his resolution that the private complainant
established the element of deceit. However, the crime charged against the petitioner as alleged in
the Information is estafa with abuse of confidence.
In sum, then, we find and so declare that the respondent judge committed a grave abuse of his
discretion amounting to excess or lack of jurisdiction in finding probable cause for the petitioners
arrest in the absence of copies of the affidavits of the witnesses of the private complainant and her
reply affidavit, the counter-affidavit of the petitioner, and the evidence adduced during the preliminary
investigation before the investigating prosecutor.
In view of the foregoing disquisitions, there is no more need to resolve the other issues raised by the
petitioner.
IN LIGHT OF ALL THE FOREGOING, the petition is GRANTED. The assailed decision of the Court
of Appeals isREVERSED and SET ASIDE. The assailed Orders dated August 25 and 28, 2000 and
the Warrant of Arrest issued by the respondent judge in Criminal Case No. 00-0749 are SET ASIDE.
The records are REMANDED to the Regional Trial Court of Pasay City, Branch 119. The respondent
judge is hereby DIRECTED to determine the existence or non-existence of probable cause for the
arrest of the petitioner based on the complete records, as required under Section 8(a), Rule 112 of
the Revised Rules on Criminal Procedure.
SO ORDERED.

G.R. No. 182677

August 3, 2010

JOSE ANTONIO C. LEVISTE, Petitioner,

vs.
HON. ELMO M. ALAMEDA, HON. RAUL M. GONZALEZ, HON. EMMANUEL Y. VELASCO, HEIRS
OF THE LATE RAFAEL DE LAS ALAS, Respondents.
DECISION
CARPIO MORALES, J.:
Jose Antonio C. Leviste (petitioner) assails via the present petition for review filed on May 30, 2008
the August 30, 2007 Decision1 and the April 18, 2008 Resolution2 of the Court of Appeals in CA-G.R.
SP No. 97761 that affirmed the trial courts Orders of January 24, 31, February 7, 8, all in 2007, and
denied the motion for reconsideration, respectively.
Petitioner was, by Information3 of January 16, 2007, charged with homicide for the death of Rafael
de las Alas on January 12, 2007 before the Regional Trial Court (RTC) of Makati City. Branch 150 to
which the case was raffled, presided by Judge Elmo Alameda, forthwith issued a commitment
order4 against petitioner who was placed under police custody while confined at the Makati Medical
Center.5
After petitioner posted a P40,000 cash bond which the trial court approved, 6 he was released from
detention, and his arraignment was set on January 24, 2007.
The private complainants-heirs of De las Alas filed, with the conformity of the public prosecutor, an
Urgent Omnibus Motion7 praying, inter alia, for the deferment of the proceedings to allow the public
prosecutor to re-examine the evidence on record or to conduct a reinvestigation to determine the
proper offense.
The RTC thereafter issued the (1) Order of January 24, 20078 deferring petitioners arraignment and
allowing the prosecution to conduct a reinvestigation to determine the proper offense and submit a
recommendation within 30 days from its inception, inter alia; and (2) Order of January 31,
20079 denying reconsideration of the first order. Petitioner assailed these orders via certiorari and
prohibition before the Court of Appeals.
Meantime, petitioner filed an Urgent Ex-Parte Manifestation and Motion before the trial court to defer
acting on the public prosecutors recommendation on the proper offense until after the appellate
court resolves his application for injunctive reliefs, or alternatively, to grant him time to comment on
the prosecutors recommendation and thereafter set a hearing for the judicial determination of
probable cause.10 Petitioner also separately moved for the inhibition of Judge Alameda with prayer to
defer action on the admission of the Amended Information.11
The trial court nonetheless issued the other assailed orders, viz: (1) Order of February 7, 200712 that
admitted the Amended Information13 for murder and directed the issuance of a warrant of arrest; and
(2) Order of February 8, 200714 which set the arraignment on February 13, 2007. Petitioner
questioned these two orders via supplemental petition before the appellate court.
The appellate court dismissed petitioners petition, hence, his present petition, arguing that:

PRIVATE RESPONDENT DID NOT HAVE THE RIGHT TO CAUSE THE REINVESTIGATION OF
THE CRIMINAL CASE BELOW WHEN THE CRIMINAL INFORMATION HAD ALREADY BEEN
FILED WITH THE LOWER COURT. HENCE, THE COURT OF APPEALS COMMITTED A GRAVE
ERROR IN FINDING THAT RESPONDENT JUDGE DID NOT ACT WITH GRAVE ABUSE OF
DISCRETION IN GRANTING SUCH REINVESTIGATION DESPITE HAVING NO BASIS IN THE
RULES OF COURT[;]
RESPONDENT JUDGE ACTED WITH GRAVE ABUSE OF DISCRETION IN ADMITTING STATE
PROSECUTOR VELASCOS AMENDED INFORMATION, ISSUING A WARRANT OF ARREST, AND
SETTING THE CASE BELOW FOR ARRAIGNMENT, CONSIDERING THAT THE VALIDITY AND
LEGALITY OF HIS ORDERS DATED 24 AND 31 JANUARY 2007, WHICH LED TO THE
QUESTIONABLE REINVESTIGATION AND ILLEGAL AMENDED INFORMATION[,] ARE YET TO
BE RESOLVED BY THIS HONORABLE COURT (sic); [AND]
CONSIDERING THAT PROSECUTOR VELASCOS FINDINGS IN HIS RESOLUTION DATED 2
FEBRUARY 2007 ARE BLATANTLY BASED ON MERE SPECULATIONS AND CONJECTURES,
WITHOUT ANY SUBSTANTIAL OR MATERIAL NEW EVIDENCE BEING ADDUCED DURING THE
REINVESTIGATION, RESPONDENT JUDGE SHOULD HAVE AT LEAST ALLOWED
PETITIONERS MOTION FOR A HEARING FOR JUDICIAL DETERMINATION OF PROBABLE
CAUSE.15 (emphasis in the original omitted)
Records show that the arraignment scheduled on March 21, 2007 pushed through during which
petitioner refused to plead, drawing the trial court to enter a plea of "not guilty" for him.
Prior thereto or on February 23, 2007, petitioner filed an Urgent Application for Admission to Bail Ex
Abundanti Cautela16 which the trial court, after hearings thereon, granted by Order of May 21,
2007,17 it finding that the evidence of guilt for the crime of murder is not strong. It accordingly allowed
petitioner to post bail in the amount of P300,000 for his provisional liberty.
The trial court, absent any writ of preliminary injunction from the appellate court, went on to try
petitioner under the Amended Information. By Decision of January 14, 2009, the trial court found
petitioner guilty of homicide, sentencing him to suffer an indeterminate penalty of six years and one
day of prision mayor as minimum to 12 years and one day of reclusion temporal as maximum. From
the Decision, petitioner filed an appeal to the appellate court, docketed as CA-G.R. CR No. 32159,
during the pendency of which he filed an urgent application for admission to bail pending appeal.
The appellate court denied petitioners application which this Court, in G.R. No. 189122, affirmed by
Decision of March 17, 2010.
The Office of the Solicitor General (OSG) later argued that the present petition had been rendered
moot since the presentation of evidence, wherein petitioner actively participated, had been
concluded.18
Waiver on the part of the accused must be distinguished from mootness of the petition, for in the
present case, petitioner did not, by his active participation in the trial, waive his stated objections.
Section 26, Rule 114 of the Rules of Court provides:
SEC. 26. Bail not a bar to objections on illegal arrest, lack of or irregular preliminary investigation.
An application for or admission to bail shall not bar the accused from challenging the validity of his
arrest or the legality of the warrant issued therefor, or from assailing the regularity or questioning the
absence of a preliminary investigation of the charge against him, provided that he raises them before

entering his plea. The court shall resolve the matter as early as practicable but not later than the
start of the trial of the case.
By applying for bail, petitioner did not waive his right to challenge the regularity of the reinvestigation
of the charge against him, the validity of the admission of the Amended Information, and the legality
of his arrest under the Amended Information, as he vigorously raised them prior to his arraignment.
During the arraignment on March 21, 2007, petitioner refused to enter his plea since the issues he
raised were still pending resolution by the appellate court, thus prompting the trial court to enter a
plea of "not guilty" for him.
The principle that the accused is precluded after arraignment from questioning the illegal
arrest or the lack of or irregular preliminary investigation applies "only if he
voluntarily enters his plea and participates during trial, without previously invoking his objections
thereto."19 There must be clear and convincing proof that petitioner had an actual intention to
relinquish his right to question the existence of probable cause. When the only proof of intention
rests on what a party does, his act should be so manifestly consistent with, and indicative of, an
intent to voluntarily and unequivocally relinquish the particular right that no other explanation of his
conduct is possible.20
From the given circumstances, the Court cannot reasonably infer a valid waiver on the part of
petitioner to preclude him from obtaining a definite resolution of the objections he so timely invoked.
Other than its allegation of active participation, the OSG offered no clear and convincing proof that
petitioners participation in the trial was unconditional with the intent to voluntarily and unequivocally
abandon his petition. In fact, on January 26, 2010, petitioner still moved for the early resolution of the
present petition.21
Whatever delay arising from petitioners availment of remedies against the trial courts Orders cannot
be imputed to petitioner to operate as a valid waiver on his part. Neither can the non-issuance of a
writ of preliminary injunction be deemed as a voluntary relinquishment of petitioners principal prayer.
The non-issuance of such injunctive relief only means that the appellate court did not preliminarily
find any exception22 to the long-standing doctrine that injunction will not lie to enjoin a criminal
prosecution.23 Consequently, the trial of the case took its course.
The petition is now moot, however, in view of the trial courts rendition of judgment.
A moot and academic case is one that ceases to present a justiciable controversy by virtue of
supervening events, so that a declaration thereon would be of no practical use or value. 24
The judgment convicting petitioner of homicide under the Amended Information for murder operates
as a supervening event that mooted the present petition. Assuming that there is ground 25 to annul the
finding of probable cause for murder, there is no practical use or value in abrogating the concluded
proceedings and retrying the case under the original Information for homicide just to arrive, more
likely or even definitely, at the same conviction of homicide. Mootness would have also set in had
petitioner been convicted of murder, for proof beyond reasonable doubt, which is much higher than
probable cause, would have been established in that instance.
Instead, however, of denying the petition outright on the ground of mootness, the Court proceeds to
resolve the legal issues in order to formulate controlling principles to guide the bench, bar and
public.26 In the present case, there is compelling reason to clarify the remedies available before and
after the filing of an information in cases subject of inquest.

After going over into the substance of the petition and the assailed issuances, the Court finds no
reversible error on the part of the appellate court in finding no grave abuse of discretion in the
issuance of the four trial court Orders.
In his first assignment of error, petitioner posits that the prosecution has no right under the Rules to
seek from the trial court an investigation or reevaluation of the case except through a petition for
review before the Department of Justice (DOJ). In cases when an accused is arrested without a
warrant, petitioner contends that the remedy of preliminary investigation belongs only to the
accused.
The contention lacks merit.
Section 6,27 Rule 112 of the Rules of Court reads:
When a person is lawfully arrested without a warrant involving an offense which requires a
preliminary investigation, the complaint or information may be filed by a prosecutor without need of
such investigation provided an inquest has been conducted in accordance with existing rules. In the
absence or unavailability of an inquest prosecutor, the complaint may be filed by the offended party
or a peace officer directly with the proper court on the basis of the affidavit of the offended party or
arresting officer or person.
Before the complaint or information is filed, the person arrested may ask for a preliminary
investigation in accordance with this Rule, but he must sign a waiver of the provisions of Article 125
of the Revised Penal Code, as amended, in the presence of his counsel. Notwithstanding the waiver,
he may apply for bail and the investigation must be terminated within fifteen (15) days from its
inception.
After the filing of the complaint or information in court without a preliminary investigation, the
accused may, within five (5) days from the time he learns of its filing, ask for a preliminary
investigation with the same right to adduce evidence in his defense as provided in this Rule.
(underscoring supplied)
A preliminary investigation is required before the filing of a complaint or information for an offense
where the penalty prescribed by law is at least four years, two months and one day without regard to
fine.28 As an exception, the rules provide that there is no need for a preliminary investigation in cases
of a lawful arrest without a warrant29 involving such type of offense, so long as an inquest, where
available, has been conducted.30
Inquest is defined as an informal and summary investigation conducted by a public prosecutor in
criminal cases involving persons arrested and detained without the benefit of a warrant of arrest
issued by the court for the purpose of determining whether said persons should remain under
custody and correspondingly be charged in court. 31
It is imperative to first take a closer look at the predicament of both the arrested person and the
private complainant during the brief period of inquest, to grasp the respective remedies available to
them before and after the filing of a complaint or information in court.
BEFORE THE FILING OF COMPLAINT OR INFORMATION IN COURT, the private complainant
may proceed in coordinating with the arresting officer and the inquest officer during the latters
conduct of inquest. Meanwhile, the arrested person has the option to avail of a 15-day preliminary
investigation, provided he duly signs a waiver of any objection against delay in his delivery to the

proper judicial authorities under Article 125 of the Revised Penal Code. For obvious reasons, this
remedy is not available to the private complainant since he cannot waive what he does not have.
The benefit of the provisions of Article 125, which requires the filing of a complaint or information
with the proper judicial authorities within the applicable period,32 belongs to the arrested person.
The accelerated process of inquest, owing to its summary nature and the attendant risk of running
against Article 125, ends with either the prompt filing of an information in court or the immediate
release of the arrested person.33 Notably, the rules on inquest do not provide for a motion for
reconsideration.34
Contrary to petitioners position that private complainant should have appealed to the DOJ
Secretary, such remedy is not immediately available in cases subject of inquest.
Noteworthy is the proviso that the appeal to the DOJ Secretary is by "petition by a proper party
under such rulesas the Department of Justice may prescribe."35 The rule referred to is the 2000
National Prosecution Service Rule on Appeal,36 Section 1 of which provides that the Rule shall "apply
to appeals from resolutions x x x in cases subject of preliminary investigation/ reinvestigation." In
cases subject of inquest, therefore, the private party should first avail of a preliminary investigation or
reinvestigation, if any, before elevating the matter to the DOJ Secretary.
In case the inquest proceedings yield no probable cause, the private complainant may pursue the
case through the regular course of a preliminary investigation.
ONCE A COMPLAINT OR INFORMATION IS FILED IN COURT, the rules yet provide the accused
with another opportunity to ask for a preliminary investigation within five days from the time he learns
of its filing. The Rules of Court and the New Rules on Inquest are silent, however, on whether the
private complainant could invoke, as respondent heirs of the victim did in the present case, a similar
right to ask for a reinvestigation.
The Court holds that the private complainant can move for reinvestigation, subject to and in light of
the ensuing disquisition.
All criminal actions commenced by a complaint or information shall be prosecuted under the
direction and control of the public prosecutor.37 The private complainant in a criminal case is merely a
witness and not a party to the case and cannot, by himself, ask for the reinvestigation of the case
after the information had been filed in court, the proper party for that being the public prosecutor who
has the control of the prosecution of the case.38 Thus, in cases where the private complainant is
allowed to intervene by counsel in the criminal action, 39 and is granted the authority to
prosecute,40 the private complainant, by counsel and with the conformity of the public prosecutor, can
file a motion for reinvestigation.
In fact, the DOJ instructs that before the arraignment of the accused, trial prosecutors must
"examine the Information vis--vis the resolution of the investigating prosecutor in order to make the
necessary corrections or revisions and to ensure that the information is sufficient in form and
substance."41
x x x Since no evidence has been presented at that stage, the error would appear or be discoverable
from a review of the records of the preliminary investigation. Of course, that fact may be perceived
by the trial judge himself but, again, realistically it will be the prosecutor who can initially
determine the same. That is why such error need not be manifest or evident, nor is it required that
such nuances as offenses includible in the offense charged be taken into account. It necessarily

follows, therefore, that the prosecutor can and should institute remedial measures[.]42 (emphasis
and underscoring supplied)
The prosecution of crimes appertains to the executive department of the government whose
principal power and responsibility is to see that our laws are faithfully executed. A necessary
component of this power to execute our laws is the right to prosecute their violators. The right to
prosecute vests the prosecutor with a wide range of discretion the discretion of what and whom to
charge, the exercise of which depends on a smorgasbord of factors which are best appreciated by
prosecutors.43
The prosecutions discretion is not boundless or infinite, however.44 The standing principle is that
once an information is filed in court, any remedial measure such as a reinvestigation must be
addressed to the sound discretion of the court. Interestingly, petitioner supports this view.45 Indeed,
the Court ruled in one case that:
The rule is now well settled that once a complaint or information is filed in court, any disposition of
the case, whether as to its dismissal or the conviction or the acquittal of the accused, rests in the
sound discretion of the court. Although the prosecutor retains the direction and control of the
prosecution of criminal cases even when the case is already in court, he cannot impose his opinion
upon the tribunal. For while it is true that the prosecutor has the quasi-judicial discretion to determine
whether or not a criminal case should be filed in court, once the case had already been brought
therein any disposition the prosecutor may deem proper thereafter
should be addressed to the court for its consideration and approval. The only qualification is that the
action of the court must not impair the substantial rights of the accused or the right of the People to
due process of law.
xxxx
In such an instance, before a re-investigation of the case may be conducted by the public
prosecutor, the permission or consent of the court must be secured. If after such re-investigation the
prosecution finds a cogent basis to withdraw the information or otherwise cause the dismissal of the
case, such proposed course of action may be taken but shall likewise be addressed to the sound
discretion of the court.46 (underscoring supplied)
While Abugotal v. Judge Tiro47 held that to ferret out the truth, a trial is to be preferred to a
reinvestigation, the Court therein recognized that a trial court may, where the interest of justice so
requires, grant a motion for reinvestigation of a criminal case pending before it.
Once the trial court grants the prosecutions motion for reinvestigation, the former is deemed to have
deferred to the authority of the prosecutorial arm of the Government. Having brought the case back
to the drawing board, the prosecution is thus equipped with discretion wide and far reaching
regarding the disposition thereof,48 subject to the trial courts approval of the resulting proposed
course of action.
Since a reinvestigation may entail a modification of the criminal information as what happened in the
present case, the Courts holding is bolstered by the rule on amendment of an information under
Section 14, Rule 110 of the Rules of Court:
A complaint or information may be amended, in form or in substance, without leave of court,
at any time before the accused enters his plea. After the plea and during the trial, a formal

amendment may only be made with leave of court and when it can be done without causing
prejudice to the rights of the accused.
However, any amendment before plea, which downgrades the nature of the offense charged in or
excludes any accused from the complaint or information, can be made only upon motion by the
prosecutor, with notice to the offended party and with leave of court. The court shall state its reasons
in resolving the motion and copies of its order shall be furnished all parties, especially the offended
party.
If it appears at any time before judgment that a mistake has been made in charging the proper
offense, the court shall dismiss the original complaint or information upon the filing of a new one
charging the proper offense in accordance with section 11, Rule 119, provided the accused would
not be placed in double jeopardy. The court may require the witnesses to give bail for their
appearance at the trial. (emphasis supplied)
In fine, before the accused enters a plea, a formal or substantial amendment of the complaint or
information may be made without leave of court.49 After the entry of a plea, only a formal amendment
may be made but with leave of court and only if it does not prejudice the rights of the accused. After
arraignment, a substantial amendment is proscribed except if the same is beneficial to the accused. 50
It must be clarified though that not all defects in an information are curable by amendment prior to
entry of plea. An information which is void ab initio cannot be amended to obviate a ground for
quashal.51 An amendment which operates to vest jurisdiction upon the trial court is likewise
impermissible.52
Considering the general rule that an information may be amended even in substance and even
without leave of court at any time before entry of plea, does it mean that the conduct of a
reinvestigation at that stage is a mere superfluity?
It is not.
Any remedial measure springing from the reinvestigation be it a complete disposition or an
intermediate modification53 of the charge is eventually addressed to the sound discretion of the trial
court, which must make an independent evaluation or assessment of the merits of the case. Since
the trial court would ultimately make the determination on the proposed course of action, it is for the
prosecution to consider whether a reinvestigation is necessary to adduce and review the evidence
for purposes of buttressing the appropriate motion to be filed in court.
More importantly, reinvestigation is required in cases involving a substantial amendment of the
information. Due process of law demands that no substantial amendment of an information may be
admitted without conducting another or a new preliminary investigation. In Matalam v. The 2nd
Division of the Sandiganbayan,54 the Court ruled that a substantial amendment in an information
entitles an accused to another preliminary investigation, unless the amended information contains a
charge related to or is included in the original Information.
The question to be resolved is whether the amendment of the Information from homicide to murder
is considered a substantial amendment, which would make it not just a right but a duty of the
prosecution to ask for a preliminary investigation.
The Court answers in the affirmative.

A substantial amendment consists of the recital of facts constituting the offense charged and
determinative of the jurisdiction of the court. All other matters are merely of form. The following
have been held to be mere formal amendments: (1) new allegations which relate only to the range
of the penalty that the court might impose in the event of conviction; (2) an amendment which does
not charge another offense different or distinct from that charged in the original one; (3) additional
allegations which do not alter the prosecutions theory of the case so as to cause surprise to the
accused and affect the form of defense he has or will assume; (4) an amendment which does not
adversely affect any substantial right of the accused; and (5) an amendment that merely adds
specifications to eliminate vagueness in the information and not to introduce new and material facts,
and merely states with additional precision something which is already contained in the original
information and which adds nothing essential for conviction for the crime charged.
The test as to whether a defendant is prejudiced by the amendment is whether a defense under the
information as it originally stood would be available after the amendment is made, and whether any
evidence defendant might have would be equally applicable to the information in the one form as in
the other. An amendment to an information which does not change the nature of the crime alleged
therein does not affect the essence of the offense or cause surprise or deprive the accused of an
opportunity to meet the new averment had each been held to be one of form and not of
substance.55 (emphasis and underscoring supplied)
Matalam adds that the mere fact that the two charges are related does not necessarily or
automatically deprive the accused of his right to another preliminary investigation. Notatu dignum is
the fact that both the original Information and the amended Information in Matalam were similarly
charging the accused with violation of Section 3(e) of the Anti-Graft and Corrupt Practices Act.
In one case,56 it was squarely held that the amendment of the Information from homicide to murder is
"one of substance with very serious consequences." 57 The amendment involved in the present case
consists of additional averments of the circumstances of treachery, evident premeditation, and
cruelty, which qualify the offense charged from homicide to murder. It being a new and material
element of the offense, petitioner should be given the chance to adduce evidence on the matter. Not
being merely clarificatory, the amendment essentially varies the prosecutions original theory of the
case and certainly affects not just the form but the weight of defense to be mustered by petitioner.
The Court distinguishes the factual milieus in Buhat v. CA58 and Pacoy v. Cajigal,59 wherein the
amendment of the caption of the Information from homicide to murder was not considered
substantial because there was no real change in the recital of facts constituting the offense charged
as alleged in the body of the Information, as the allegations of qualifying circumstances were already
clearly embedded in the original Information. Buhat pointed out that the original Information for
homicide already alleged the use of superior strength, while Pacoy states that the averments in the
amended Information for murder are exactly the same as those already alleged in the original
Information for homicide. None of these peculiar circumstances obtains in the present case.
Considering that another or a new preliminary investigation is required, the fact that what was
conducted in the present case was a reinvestigation does not invalidate the substantial amendment
of the Information. There is no substantial distinction between a preliminary investigation and a
reinvestigation since both are conducted in the same manner and for the same objective of
determining whether there exists sufficient ground to engender a well-founded belief that a crime has
been committed and the respondent is probably guilty thereof and should be held for trial. 60 What is
essential is that petitioner was placed on guard to defend himself from the charge of murder 61 after
the claimed circumstances were made known to him as early as the first motion.

Petitioner did not, however, make much of the opportunity to present countervailing evidence on the
proposed amended charge. Despite notice of hearing, petitioner opted to merely observe the
proceedings and declined to actively participate, even with extreme caution, in the
reinvestigation. Mercado v. Court of Appeals states that the rules do not even require, as a condition
sine qua non to the validity of a preliminary investigation, the presence of the respondent as long as
efforts to reach him were made and an opportunity to controvert the complainants evidence was
accorded him.62
In his second assignment of error, petitioner basically assails the hurried issuance of the last two
assailed RTC Orders despite the pendency before the appellate court of the petition for certiorari
challenging the first two trial court Orders allowing a reinvestigation.
The Rules categorically state that the petition shall not interrupt the course of the principal case
unless a temporary retraining order or a writ of preliminary injunction has been issued. 63 The
appellate court, by Resolution of February 15, 2007, 64 denied petitioners application for a temporary
restraining order and writ of preliminary injunction. Supplementary efforts to seek injunctive reliefs
proved futile.65 The appellate court thus did not err in finding no grave abuse of discretion on the part
of the trial court when it proceeded with the case and eventually arraigned the accused on March 21,
2007, there being no injunction order from the appellate court. Moreover, petitioner opted to forego
appealing to the DOJ Secretary, a post-inquest remedy that was available after the reinvestigation
and which could have suspended the arraignment. 66
1avvphi1

Regarding petitioners protestations of haste, suffice to state that the pace in resolving incidents of
the case is not per se an indication of bias. In Santos-Concio v. Department of Justice, 67 the Court
held:
Speed in the conduct of proceedings by a judicial or quasi-judicial officer cannot per se be instantly
attributed to an injudicious performance of functions. For ones prompt dispatch may be anothers
undue haste. The orderly administration of justice remains as the paramount and constant
consideration, with particular regard of the circumstances peculiar to each case.
The presumption of regularity includes the public officers official actuations in all phases of work.
Consistent with such presumption, it was incumbent upon petitioners to present contradictory
evidence other than a mere tallying of days or numerical calculation. This, petitioners failed to
discharge. The swift completion of the Investigating Panels initial task cannot be relegated as
shoddy or shady without discounting the presumably regular performance of not just one but five
state prosecutors.68
There is no ground for petitioners protestations against the DOJ Secretarys sudden designation of
Senior State Prosecutor Emmanuel Velasco as Acting City Prosecutor of Makati City for the present
case69 and the latters conformity to the motion for reinvestigation.
In granting the reinvestigation, Judge Alameda cannot choose the public prosecutor who will conduct
the reinvestigation or preliminary investigation.70 There is a hierarchy of officials in the prosecutory
arm of the executive branch headed by the Secretary of Justice 71 who is vested with the prerogative
to appoint a special prosecutor or designate an acting prosecutor to handle a particular case, which
broad power of control has been recognized by jurisprudence. 72
As for the trial courts ignoring the DOJ Secretarys uncontested statements to the media which aired
his opinion that if the assailant merely intended to maim and not to kill the victim, one bullet would
have sufficed the DOJ Secretary reportedly uttered that "the filing of the case of homicide against
ano against Leviste lintek naman eh I told you to watch over that case there should be a report

about the ballistics, about the paraffin, etc., then thats not a complete investigation, thats why you
should use that as a ground" no abuse of discretion, much less a grave one, can be imputed to it.
The statements of the DOJ Secretary do not evince a "determination to file the Information even in
the absence of probable cause."73 On the contrary, the remarks merely underscored the importance
of securing basic investigative reports to support a finding of probable cause. The original Resolution
even recognized that probable cause for the crime of murder cannot be determined based on the
evidence obtained "[u]nless and until a more thorough investigation is conducted and eyewitness/es
[is/]are presented in evidence[.]"74
The trial court concluded that "the wound sustained by the victim at the back of his head, the
absence of paraffin test and ballistic examination, and the handling of physical evidence," 75 as
rationalized by the prosecution in its motion, are sufficient circumstances that require further inquiry.
That the evidence of guilt was not strong as subsequently assessed in the bail hearings does not
affect the prior determination of probable cause because, as the appellate court correctly stated, the
standard of strong evidence of guilt which is sufficient to deny bail to an accused is markedly higher
than the standard of judicial probable cause which is sufficient to initiate a criminal case. 76
In his third assignment of error, petitioner faults the trial court for not conducting, at the very least, a
hearing for judicial determination of probable cause, considering the lack of substantial or material
new evidence adduced during the reinvestigation.
Petitioners argument is specious.
There are two kinds of determination of probable cause: executive and judicial. The executive
determination of probable cause is one made during preliminary investigation. It is a function that
properly pertains to the public prosecutor who is given a broad discretion to determine whether
probable cause exists and to charge those whom he believes to have committed the crime as
defined by law and thus should be held for trial. Otherwise stated, such official has the quasi-judicial
authority to determine whether or not a criminal case must be filed in court. Whether that function
has been correctly discharged by the public prosecutor, i.e., whether he has made a correct
ascertainment of the existence of probable cause in a case, is a matter that the trial court itself does
not and may not be compelled to pass upon.77
The judicial determination of probable cause is one made by the judge to ascertain whether a
warrant of arrest should be issued against the accused. The judge must satisfy himself that based
on the evidence submitted, there is necessity for placing the accused under custody in order not to
frustrate the ends of justice. If the judge finds no probable cause, the judge cannot be forced to issue
the arrest warrant.78 Paragraph (a), Section 5,79Rule 112 of the Rules of Court outlines the procedure
to be followed by the RTC.
To move the court to conduct a judicial determination of probable cause is a mere superfluity, for with
or without such motion, the judge is duty-bound to personally evaluate the resolution of the public
prosecutor and the supporting evidence. In fact, the task of the presiding judge when the Information
is filed with the court is first andforemost to determine the existence or non-existence of probable
cause for the arrest of the accused.80
What the Constitution underscores is the exclusive and personal responsibility of the issuing judge to
satisfy himself of the existence of probable cause. But the judge is not required to personally
examine the complainant and his witnesses. Following established doctrine and procedure, he
shall (1) personally evaluate the report and the supporting documents submitted by the prosecutor

regarding the existence of probable cause, and on the basis thereof, he may already make a
personal determination of the existence of probable cause; and (2) if he is not satisfied that probable
cause exists, he may disregard the prosecutors report and require the submission of supporting
affidavits of witnesses to aid him in arriving at a conclusion as to the existence of probable
cause.81 (emphasis and underscoring supplied)
The rules do not require cases to be set for hearing to determine probable cause for the issuance of
a warrant of arrest of the accused before any warrant may be issued.82 Petitioner thus cannot, as a
matter of right, insist on a hearing for judicial determination of probable cause. Certainly, petitioner
"cannot determine beforehand how cursory or exhaustive the [judge's] examination of the records
should be [since t]he extent of the judges examination depends on the exercise of his sound
discretion as the circumstances of the case require." 83 In one case, the Court emphatically stated:
The periods provided in the Revised Rules of Criminal Procedure are mandatory, and as such, the
judge must determine the presence or absence of probable cause within such periods. The
Sandiganbayans determination of probable cause is made ex parte and is summary in nature, not
adversarial. The Judge should not be stymied and distracted from his determination of
probable cause by needless motions for determination of probable cause filed by the
accused.84 (emphasis and underscoring supplied)
Petitioner proceeds to discuss at length evidentiary matters, arguing that no circumstances exist that
would qualify the crime from homicide to murder.
The allegation of lack of substantial or material new evidence deserves no credence, because new
pieces of evidence are not prerequisites for a valid conduct of reinvestigation. It is not material that
no new matter or evidence was presented during the reinvestigation of the case. It should be
stressed that reinvestigation, as the word itself implies, is merely a repeat investigation of the case.
New matters or evidence are not prerequisites for a reinvestigation, which is simply a chance for the
prosecutor to review and re-evaluate its findings and the evidence already submitted. 85
Moreover, under Rule 45 of the Rules of Court, only questions of law may be raised in, and be
subject of, a petition for review on certiorari since this Court is not a trier of facts. The Court cannot
thus review the evidence adduced by the parties on the issue of the absence or presence of
probable cause, as there exists no exceptional circumstances to warrant a factual review.86
In a petition for certiorari, like that filed by petitioner before the appellate court, the jurisdiction of the
court is narrow in scope. It is limited to resolving only errors of jurisdiction. It is not to stray at will
and resolve questions and issues beyond its competence, such as an error of judgment. 87 The
courts duty in the pertinent case is confined to determining whether the executive and judicial
determination of probable cause was done without or in excess of jurisdiction or with grave abuse of
discretion. Although it is possible that error may be committed in the discharge of lawful functions,
this does not render the act amenable to correction and annulment by the extraordinary remedy of
certiorari, absent any showing of grave abuse of discretion amounting to excess of jurisdiction. 88
1avvphi1

WHEREFORE, the petition is DENIED. The assailed Decision and Resolution of the Court of
Appeals in CA-G.R. SP No. 97761 are AFFIRMED.
SO ORDERED.
G.R. No. 118435 June 20, 1997

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
MARIO SERZO, JR., accused-appellant.

PANGANIBAN, J.:
The right to counsel of an accused is guaranteed by our Constitution, our laws and our Rules of
Court. During custodial investigation, arraignment, trial and even on appeal, the accused is given
the option to be represented by a counsel of his choice. But when he neglects or refuses to exercise
this option during arraignment and trial, the court shall appoint one for him. While the right to be
represented by counsel is absolute, the accused's option to hire one of his own choice is limited.
Such option cannot be used to sanction reprehensible dilatory tactics, to trifle with the Rules or to
prejudice the equally important rights of the state and the offended party to speedy and adequate
justice.
This will be amplified in this appeal seeking the reversal of the August 23, 1994 Decision of the
Regional Trial Court of Antipolo, Rizal, Branch 72, 1 in Criminal Case No. 90-5997 convicting Appellant
Mario Serzo, Jr. of murder under Article 248 of the Revised Penal Code.
Appellant was charged with murder in an Information dated September 4, 1990 filed by Rizal
Assistant Provincial Prosecutor Filipinas Z. Aguilar-Ata, worded as follows: 2
That on or about the 22nd day of August, 1990, in the Municipality of Antipolo,
Province of Rizal, Philippines, and within the jurisdiction of this Honorable Court, the
above-named accused, armed with bladed weapon, with intent to kill, with treachery,
did then and there willfully, unlawfully and feloniously attack, assault and stab one
Alfredo Alcantara y Casabal at the back, thereby inflicting upon him stab wounds
which directly caused his death.
Thereafter, pre-trial was waived and the case proceeded to trial on the merits. After arraignment and
trial, appellant was found guilty as charged and sentenced thus: 3
WHEREFORE, on the basis of the foregoing, the Court finds accused GUILTY
BEYOND REASONABLE DOUBT of having committed the crime of MURDER and
as prescribed under Article 248 of the Revised Penal Code, hereby sentences
accused to suffer the penalty of reclusion perpetua and to indemnify the victim's wife
in the amount of FIFTY THOUSAND PESOS (P50,000.00) as actual damages and
TWENTY FIVE THOUSAND PESOS (P25,000.00) as moral damages and costs.
The Antecedents
Summarizing the testimonies of Adelaida Alcantara (the victim's widow), Medico-Legal Officer Dario
L. Gajardo and Epifania Andrade, the trial court found the following facts: 4
Alfredo Alcantara Y Casabal never knew that death was just around the corner
inevitably meeting his way. That fateful night of August 22, 1990, Alfredo together
with his wife Adelaida Alcantara were (sic) staying inside their house comfortably
watching television when at around 11:30 in the evening, Susana Serzo, mother of
the accused, and one Epifania Bentilacion came knocking at their doorsteps and

pleading for help to bring out her grandchildren who were being held inside their
house by her son, the accused in this case. Unhesitatingly, the couple heeded their
call and went with them at (sic) their house, located just across the private
complainant's residence. The spouses were able to rescue the grandchildren and to
bring them to a safer place. When returning to their house, Alfredo Alcantara who
was walking just armslength ahead of his wife, was attacked by accused Mario Serzo
from behind. Accused stabbed Alfredo at his back forcing the latter to scamper for his
dear life. However, accused was able to overpower him thereby causing his fall in the
canal where he was repeatedly stabbed by the accused. Adelaida Alcantara shouted
for help but was likewise attacked by the accused as she was only half-meter away
from her husband. However, Adelaida fortunately was able to hold the hand of the
knifewielder and persistently fought the accused. (p. 05 TSN June 3, 1991) At that
moment, the commotion had already caught the attention of the residents within the
vicinity who responded to help her thereby causing the accused to flee. The victim
Alfredo Alcantara, who remained lying and motionless in the canal, was rushed to the
hospital where he was confirmed dead. (p. 06 TSN June 3, 1991) The Medico-legal
Officer, Dr. Dario Gajardo, testified in Court that the victim sustained three (3) stab
wounds, two at the back and one in his chest, which instantaneously caused the
victim's death. (p. 04 TSN May 13, 1991)
In view of appellant's allegation that he was denied his right to counsel, a narration of the
proceedings before the trial court is now in order. Arraignment was set by the trial court on January
8, 1991, during which appellant appeared without counsel. Consequently, the trial court appointed
Atty. Wilfredo Lina-ac as counsel de oficio for the arraignment only. Appellant, however, moved that
the arraignment be reset and that he be given time to engage a counsel of his own choice, which the
trial court granted. 5
On February 11, 1991, appellant appeared without a counsel de parte. He was nonetheless
arraigned with the assistance of Counsel de oficio Wilfredo Lina-ac. 6 He pleaded "not guilty." Pre-trial
was waived and trial was set on April 22, May 6 and 13, 1991 for the reception of the prosecution
evidence and June 3 and 17, 1991 for the defense.
The hearings scheduled on April 22, 1991 and May 6, 1991 were cancelled on motion of Public
Prosecutor Robert H. Tobia. 7 On both dates, appellant appeared with Atty. Lina-ac. On May 13 and June
3, 1991, trial proceeded with the testimonies of prosecution witnesses. On behalf of appellant, Atty. Linaac cross-examined the said witnesses.
On June 17, 1991, trial was again cancelled as appellant appeared without counsel. 8 On August 13,
1991, the prosecution rested its case. 9
On November 4 and 11, 1991, presentation of evidence for the defense was reset as appellant was
not ready to testify 10 and he manifested his intention to secure the services of a counsel de parte. 11 On
March 3, 1992, Atty. Lina-ac was relieved as counsel de oficio in view of appellant's manifestation and
refusal to cooperate with said counsel. 12 On April 6, 1992 appellant appeared without counsel, forcing the
trial court to appoint another counsel de oficio, Bella Antonano. Counsels for both parties agreed to reset
the trial, but appellant refused to sign the minutes of the proceedings. 13
On April 27, 1992, 14 over vehement objection from the prosecution, hearing was reset for the last time as
appellant was still looking for a counsel de parte. 15 On August 25, 1992, appellant appeared without
counsel; thus, the trial court appointed Atty. Bonifacia Garcia of the Public Attorney's Office (PAO) as
appellant's counsel de oficio. Again, trial was postponed. 16 On September 1 and October 19, 1992, trial
was postponed on motion of Atty. Garcia. 17 Appellant again refused to sign the minutes of the
proceedings for both trial dates. On November 5, 1992, appellant refused to cooperate with Atty. Garcia

by declining to take the witness stand, forcing the defense to rest its case. 18 Both parties were ordered to
submit their respective memoranda in ten days, after which the case would be submitted for decision.
Atty. Garcia was further ordered to manifest within the same period whether appellant would change his
mind and cooperate with her. No memorandum or manifestation was ever filed by appellant.

Appellant wrote Judge Angeles three times within the period beginning December 16, 1992 until April
2, 1993, seeking legal advice and the early resolution of the case. Branch Clerk of Court
Melchisedek A. Guan replied to him twice, informing him that Judge Angeles was prohibited by law
from giving legal advice to litigants in cases pending in his court and that a decision was
forthcoming. On July 13, 1994, appellant wrote Deputy Court Administrator Reynaldo L. Suarez,
asking for the early resolution of his case. 19 The latter referred said letter to Judge Angeles for
appropriate action.
Thereafter, the assailed Decision convicting appellant of murder was promulgated on August 23,
1994.
Ruling of the Trial Court
In its Decision, the trial court noted that appellant simply refused to secure the services of a
counsel de parte and to present evidence in his defense despite ample opportunity accorded to him.
Said the trial court:
The defense particularly the accused assisted by counsel however refused to
present any evidence despite several opportunities afforded by the Court. As early as
the arraignment stage, accused refused to be assisted by a counsel de oficio from
the Public Attorney's Office (PAO) insisting that he be assisted by a counsel of his
own choice. For several settings, accused and her (sic) mother were allowed to
secure the services of a counsel de parte. However, they failed to present one.
Hence, the Court, to avoid further delay in the proceedings of the case, was
constrained to assign a counsel de oficio from the PAO.
During the presentation of evidence for the defense, accused and counsel could not
present any witness as accused refused to cooperate and to testify in Court. Hence,
the defense waived its right to present any evidence.
Considering that this case has been dragging for several years already . . . the court .
. . afforded the defense another opportunity to present its case by submitting its
memorandum simultaneously with the Prosecution. Thereafter, the case was
submitted for decision. 20
Consequently, the trial court convicted appellant on the basis of the evidence presented by the
prosecution. Appellant was positively identified as the assailant by the widow, Adelaida Alcantara,
who survived his attack. In her distinct and vivid narration of the sequence of events leading to the
murder, she showed that the attack was treacherous as the victim was stabbed at the back and
without warning.
Not satisfied with the trial court's Decision, appellant through Counsel Carmelo L. Arcilla
to this Court.
Assignment of Errors

21

appealed

In his Brief filed by Atty. Arcilla, appellant questions his conviction for murder based on the following
alleged errors on the part of the trial court: 22
I
The lower court erred in not giving the defendant-appellant time to engage counsel of
his own choice.
II
The lower court erred in not affording the defendant-appellant the chance to present
evidence for his defense.
III
The lower court erred in not acquitting the defendant-appellant.
Mainly, appellant alleges that he had been denied effective legal representation. His thesis is that the
trial court did not give him enough time to engage a counsel de parte, effectively depriving him of the
chance to present evidence in his defense. In fact, the scant five-page Appellant's Brief was
dedicated entirely to this argument without contesting the facts found by the trial court.
The Court's Ruling
The right of an accused to counsel is guaranteed by the Constitution, the supreme law of the land.
This right is granted to minimize the imbalance in the adversarial system where the accused is pitted
against the awesome prosecutory machinery of the state. In the words of Justice Black, 23 this is a
"recognition . . . that an average (accused) does not have the professional skill to protect himself . . .
before a tribunal with power to take his life or liberty, wherein
the (prosecutor) is . . . an experienced and learned counsel." In Powell vs. Alabama, 24 Mr. Justice
Sutherland wrote at greater length on why an accused needs a competent counsel:
Even the intelligent and educated layman has small and sometimes no skill in the
science of law. If charged with crime, he is incapable, generally, of determining for
himself whether the indictment is good or bad. He is unfamiliar with the rules of
evidence. Left without the aid of counsel he may be put on trial without a proper
charge, and convicted upon incompetent evidence, or evidence irrelevant to the
issue or otherwise inadmissible. He lacks both the skill and knowledge adequately to
prepare his defense, even though he has a perfect one. He requires the guiding hand
of counsel at every step in the proceedings against him. Without it, though he be not
guilty, he faces the danger of conviction because he does not know how to establish
his innocence.
The right covers the period beginning from custodial investigation, well into the rendition of
judgment, 25 and even on appeal. Article III of the 1987 Constitution provides this right to an accused not
only during trial but even before an information is filed. It provides:
Sec. 12. (1) Any person under investigation for the commission of an offense shall
have the right to be informed of his right to remain silent and to have competent and
independent counsel preferably of his own choice. If the person cannot afford the

services of counsel, he must be provided with one. These rights cannot be waived
except in writing and in the presence of counsel.
Sec. 14 (1) No person shall be held to answer for a criminal offense without due
process of law.
(2) In all criminal prosecutions, the accused shall be presumed innocent until the
contrary is proved, and shall enjoy the right to be heard by himself and counsel, . . .
With these precepts as springboard, the Rules of Court grants an accused the right to counsel under
the following provisions, viz.:
RULE 112
PRELIMINARY INVESTIGATION
xxx xxx xxx
Sec. 7. When accused lawfully arrested without warrant. . . .
However, before the filing of such complaint or information, the person arrested may
ask for a preliminary investigation by a proper officer in accordance with this Rule,
but he must sign a waiver of the provisions of Article 125 of the Revised Penal Code,
as amended, with the assistance of a lawyer and in case of non-availability of a
lawyer, a responsible person of his choice. . . . .
xxx xxx xxx
RULE 113
ARREST
Sec. 14. Right of attorney or relative to visit person arrested. Any member of the
bar shall, at the request of the person arrested or of another acting in his behalf,
have the right to visit and confer privately with such person, in the jail or any other
place of custody at any hour of the day or, in urgent cases, of the night. This right
shall also be exercised by any relative of the person arrested subject to reasonable
regulation.
Rule 115
RIGHTS OF ACCUSED
Sec. 1. Rights of accused at the trial. In all criminal prosecutions, the accused shall
be entitled:
xxx xxx xxx
(c) To be present and defend in person and by counsel at every stage of the
proceedings, from the arraignment to the promulgation of the judgment. . . . .

xxx xxx xxx

Rule 116 of the Rules of Court makes it compulsory that the trial court inform the accused of his right
to counsel prior to arraignment, thus:
Sec. 6. Duty of court to inform accused of his right to counsel. Before arraignment,
the court shall inform the accused of his right to counsel and shall ask him if he
desires to have one. Unless the accused is allowed to defend himself in person, or
he has employed counsel of his choice, the court must assign a counsel de oficio to
defend him.
Sec. 7. Appointment of counsel de oficio. The court, considering the gravity of the
offense and the difficulty of the questions that may arise, shall appoint as counsel de
oficio only such members of the bar in good standing who, by reason of their
experience and ability may adequately defend the accused. But in localities where
such members of the bar are not available, the court may appoint any person,
resident of the province and of good repute for probity and ability, to defend the
accused.
Even on appeal, the accused is still afforded the right to counsel under Rule 122:

26

Sec. 13. Appointment of counsel de oficio for accused on appeal. It shall be the
duty of the clerk of the trial court upon the presentation of a notice of appeal in a
criminal case, to ascertain from the appellant, if he be confined in prison, whether he
desires the Court of Appeals or the Supreme Court to appoint a counsel to defend
him de oficio and to transmit with the record, upon a form to be prepared by the clerk
of the appellate court, a certificate of compliance with this duty and of the response
of the appellant to his inquiry.
The foregoing is buttressed by another provision in Rule 124:
Sec. 2. Appointment of counsel de oficio for the accused. If it appears from the
record of the case as transmitted: (a) that the accused is confined in prison, (b)
without counsel de parte on appeal, and (c) signed the notice of appeal himself, then
the clerk of the Court of Appeals shall designate a member of the bar to defend him,
such designation to be made by rotation, unless otherwise directed by order of the
court.
An accused-appellant not confined in prison shall not be entitled to a counsel de
oficio, unless the appointment of such counsel is requested in the appellate court
within ten (10) days from receipt of the notice to file brief and the right thereto is
established by affidavit.
Recently, Republic Act No. 7438 was enacted providing, inter alia, that any person arrested,
detained or under custodial investigation shall at all times be assisted by counsel.
A deprivation of the right to counsel divests the accused of an equality in arms resulting in the denial
of a level playing field, so to speak. In a previous case, this Court held that an accused was deprived
of his right to counsel when he retained the services of a person who misrepresented himself as a
lawyer. 27 In People vs. Malunsing, 28retrial was ordered on the ground that petitioner was denied his
constitutional right to counsel. Very old and unlettered, he was shown not to have understood what was
going on during the trial. In said case, although the lawyer of his co-accused was appointed as his

counsel, petitioner was not properly apprised by said court of his right to be assisted by counsel. No
evidence was presented for and on his behalf and the trial court did not even bother to inquire why he did
not take the witness stand when all the other defendants were presented as witnesses.

This is the legal backdrop against which appellant's allegation of deprivation of his right to counsel
shall be measured.
Right to Counsel De Parte Is Not Absolute
Accordingly, an accused may exercise his right to counsel by electing to be represented either by a
court-appointed lawyer or by one of his own choice. While his right to be represented by counsel is
immutable, his option to secure the services of counsel de parte, however, is not absolute. The court
is obliged to balance the privilege to retain a counsel of choice against the states's and the offended
party's equally important right to speedy and adequate justice. Thus, the court may restrict the
accused's option to retain a counsel de parte if the accused insists on an attorney he cannot afford,
or the chosen counsel is not a member of the bar, or the attorney declines to represent the accused
for a valid reason, e.g. conflict of interest and the like. 29
Also, the right to counsel de parte is, like other personal rights,
waivable 30 so long as (1) the waiver is not contrary to law, public order, public policy, morals or good
customs; or prejudicial to a third person with a right recognized by law 31 and (2) the waiver is
unequivocally, knowingly and intelligently made. 32
In Sayson vs. People, 33 this Court held that the duty of the court to appoint a counsel de oficio is not
mandatory where the accused has proceeded with the arraignment and the trial with a counsel of his
choice but, when the time for the presentation of the evidence for the defense was due, he appears by
himself alone because of the inexcusable absence of his counsel. In another case, this Court held that the
right to be heard and to reopen the case (and send it to trial anew) could not be allowed if doing so would
sanction a plainly dilatory tactic and a reprehensible trifling with the orderly administration of justice. 34
In the present case, appellant claims that he was not given sufficient time to engage a counsel de
parte, thereby preventing him from presenting evidence in his defense. In his Brief he adds, but
without giving particulars or proof, that allegedly his counsels de oficio did not exert their "utmost
efforts" in representing him, thus: 35
. . . (T)he lower court afforded the accused the assistance of counsel de oficio as
early as the arraignment stage but failed to show that utmost efforts were exerted by
said counsel to defend the life and liberty of the accused. The duty of the court is not
ended with such appointment, however, as it should also see to it that the counsel
does his duty by the defendant. Counsel de oficio should not merely make the
motions of defending the accused but exert his utmost efforts as if he were
representing a paying client.
The Solicitor General, in his eleven-page Brief, 36 rebuts this, arguing that appellant's actions during the
trial showed instead a "lackadaisical stance on his own defense."
Appellant had been given ample time to secure the services of a counsel de parte, but his
subsequent appearances in court without such counsel and his act of allowing this situation to
continue until the presentation of his evidence betrays his lack of intention to do so. It even appears
that he was merely delaying his own presentation of evidence on purpose to the prejudice of the
offended party, the trial court and the orderly administration of justice.

Furthermore, appellant did not demonstrate in what way the services of his counsels de oficio were
unsatisfactory. He did not cite any instance substantiating his claim that he was not effectively
represented. In short, he was afforded a chance to be heard by counsel of his own choice, but by his
own neglect or mischief, he effectively waived such right. It taxes the mind to think that, almost two
years 37 since appellant first invoked his right to be represented by counsel de parte, he still could not find
one who would suit his needs and desires. Neither did he cooperate with his court-named lawyers.
The facts of this case do not constitute a deprivation of appellant's constitutional right to counsel
because he was adequately represented by three court-appointed lawyers: Atty. Lina-ac, Atty.
Antonano and Atty. Garcia. Courts are not required to await indefinitely the pleasure and
convenience of the accused as they are also mandated to promote the speedy and orderly
administration of justice. Nor should they countenance such an obvious trifling with the rules. Indeed,
public policy requires that the trial continue as scheduled, considering that appellant was adequately
represented by counsels who were not shown to be negligent, incompetent or otherwise unable to
represent him.
Crime and Punishment
In spite of appellant's failure, either through negligence or unreasonable refusal, to impute errors to
the assailed Decision other than the alleged violation of his right to counsel this Court
nonetheless scoured the records of the trial, perused the transcripts of the testimony of the
witnesses for the prosecution, evaluated the evidence and examined the applicable laws and
jurisprudence to determine the correctness of the trial court's Decision. We, however, find no cogent
reason to reverse the conviction of appellant. In a case of murder or homicide, it is enough that the
death of the victim and the responsibility of the person who caused such death are proven 38beyond
reasonable doubt. Both elements were duly established by the prosecution witnesses. Dr. Gajardo
testified to the fact of death while Widow Adelaida Alcantara positively identified the appellant as the
assailant.
Based on the facts established by the prosecution which remain uncontested, the Court affirms the
trial court's appreciation of the qualifying circumstance of treachery. To constitute treachery, two
conditions must concur: (1) the employment of means of execution that gives the person attacked no
opportunity to defend himself or to retaliate and (2) deliberate or conscious adoption of the means of
execution. 39 The manner of the attack itself is proof enough of alevosia. Widow Adelaida vividly
described the stabbing as
follows: 40
Q: And you said a certain Suzana Serzo together with one Epifania
Bentilacion came to your house and asked for help from you, is that
right?
A: Yes, sir.
Q: And that you responded for help Mrs. witness?
A: Yes, sir.
Q: And you are together with your husband in helping Suzana Serzo?
A: Yes, sir.
Q: What was the help she was asking Mrs. witness?

xxx xxx xxx

A: She was asking to help her children being held by Mario Serzo by
not letting them go out of the house.
xxx xxx xxx
Q: Were you able to help the grandchildren of Suzana Serzo?
A: Yes, sir.
Q: And after you help (sic) them what happened next?
A: We brought them to where they could hide and then we went
home.
Q: You said you heard somebody approaching you at the back
through the sound of his footsteps is that right?
A: Yes, sir.
xxx xxx xxx
Q: What happened next after you hear (sic) those footsteps at your
back?
A: My husband was just beside me.
Q: And immediately your husband was stabbed by the accused?
A: Yes, sir.
From this testimony, it appears that appellant waited for the victim and his wife and pounced on them
swiftly and without warning. The victim and his wife were already on their way home after
transferring appellant's children to a safe place. They were unarmed as they had absolutely no idea
that appellant would attack them right then and from behind. The manner of the attack tended
directly and especially to insure the execution of the crime without risk to appellant and virtually no
chance for the victim to defend himself. 41 Even Adelaida's life would have been mortally threatened
were it not for the timely intervention of her neighbors.
Damages and Indemnity
Actual and moral damages require the presentation of proof before they can be awarded by the trial
court. 42According to Adelaida, burial expenses in the amount of P2,000.00 were incurred. 43 This is
separate and distinct from civil indemnity awarded under prevailing jurisprudence, which is granted
without further proof beyond the fact of death and the accused's responsibility therefor. Moral damages
were not discussed at all in Adelaida's testimony. Hence, without any factual basis, the award of moral
damages is not justified.

WHEREFORE, the assailed Decision is hereby AFFIRMED, but the award of moral damages is
DELETED. Instead, appellant is ORDERED TO PAY the amount of P50,000.00 as civil indemnity
and actual damages of P2,000.00 as burial expenses.
SO ORDERED.
G.R. No. 160739

July 17, 2013

ANITA MANGILA, Petitioner,

vs.
JUDGE HERIBERTO M. PANGILINAN, ASST. CITY PROSECUTOR II LUCIA JUDY SOLINAP,
and NATIONAL BUREAU OF INVESTIGATION (DIRECTOR REYNALDO
WYCOCO), Respondents.
DECISION
BERSAMIN, J.:
Restraint that is lawful and pursuant to a court process cannot be inquired into through habeas
corpus.
Antecedents
On June 16, 2003, seven criminal complaints charging petitioner Anita Mangila and four others with
syndicated estafa in violation of Article 315 of the Revised Penal Code, in relation to Presidential
Decree No. 1689, and with violations of Section 7(b) of Republic Act No. 8042 (Migrant Workers and
Overseas Filipino Act of 1995) were filed in the Municipal Trial Court in Cities in Puerto Princesa City
(MTCC), docketed as Criminal Cases No. 16916 to No. 16922. The complaints arose from the
recruiting and promising of employment by Mangila and the others to the private complainants as
overseas contract workers in Toronto, Canada, and from the collection of visa processing fees,
membership fees and on-line application the private complainants without lawful authority from the
Philippine Overseas Employment Administration (POEA).1
On the following day, June 17, 2003, Judge Heriberto M. Pangilinan, Presiding Judge of the MTCC,
conducted a preliminary investigation on the complaints. After examining Miguel Aaron Palayon, one
of the complainants, Judge Pangilinan issued a warrant for the arrest of Mangila and her cohorts
without bail.2 On the next day, the entire records of the cases, including the warrant of arrest, were
transmitted to the City Prosecutor of Puerto Princesa City for further proceedings and appropriate
action in accordance with the prevailing rules.3
As a consequence, Mangila was arrested on June 18, 2003 and detained at the headquarters on
Taft Avenue, Manila of the National Bureau of Investigation (NBI).4
Claiming that Judge Pangilinan did not have the authority to conduct the preliminary investigation;
that the preliminary investigation he conducted was not yet completed when he issued the warrant of
arrest; and that the issuance of the warrant of arrest was without sufficient justification or without a
prior finding of probable cause, Mangila filed in the Court of Appeals (CA)a petition for habeas
corpus to obtain her release from detention. Her petition averred that the remedy of habeas corpus
was available to her because she could no longer file a motion to quash or a motion to recall the
warrant of arrest considering that Judge Pangilinan had already forwarded the entire records of the
case to the City Prosecutor who had no authority to lift or recall the warrant. 5

In its resolution promulgated on October 14, 2003, 6 the CA denied the petition for habeas corpus for
its lack of merit, explaining:
As a general rule, a writ of habeas corpus will not be granted where relief may be had or could have
been procured by resort to another general remedy. As pointed out in Luna vs. Plaza, if petitioner is
detained by virtue of a warrant of arrest, which is allegedly invalid, the remedy available to her is not
a petition for habeas corpus but a petition to quash the warrant of arrest or a petition for a
reinvestigation of the case by the Municipal Judge or by the Provincial Fiscal.
Section 5, Rule 112 of the Revised Rules of Criminal Procedure provides that the Municipal Judge
who conducted the preliminary investigation shall transmit his resolution, together with the record of
the case, including the warrant of arrest, to the Provincial Prosecutor, who shall review the same and
order the release of an accused who is detained if no probable cause is found against him. Thus, the
proper remedy available to petitioner is for her to file with the Provincial Prosecutor a motion to be
released from detention on the grounds alleged in the instant petition.
WHEREFORE, the petition for habeas corpus is DENIED for lack of merit.
SO ORDERED.7
Mangila moved for the reconsideration of the denial of her petition for habeas corpus, 8 but the CA
denied the motion on November 19, 2003.9
Hence, this appeal via petition for review on certiorari.
Issue
Did the CA err in ruling that habeas corpus was not the proper remedy to obtain the release of
Mangila from detention?
Ruling of the Court
The petition for review lacks merit.
The high prerogative writ of habeas corpus has been devised as a speedy and effective remedy to
relieve persons from unlawful restraint. In Caballes v. Court of Appeals, 10 the Court discoursed on the
nature of the special proceeding of habeas corpus in the following manner:
A petition for the issuance of a writ of habeas corpus is a special proceeding governed by Rule 102
of the Rules of Court, as amended. In Ex Parte Billings, it was held that habeas corpus is that of a
civil proceeding in character. It seeks the enforcement of civil rights. Resorting to the writ is not to
inquire into the criminal act of which the complaint is made, but into the right of liberty,
notwithstanding the act and the immediate purpose to be served is relief from illegal restraint. The
rule applies even when instituted to arrest a criminal prosecution and secure freedom. When a
prisoner petitions for a writ of habeas corpus, he thereby commences a suit and prosecutes a case
in that court.
Habeas corpus is not in the nature of a writ of error; nor intended as substitute for the trial courts
function. It cannot take the place of appeal, certiorari or writ of error. The writ cannot be used to
investigate and consider questions of error that might be raised relating to procedure or on the
merits. The inquiry in a habeas corpus proceeding is addressed to the question of whether the

proceedings and the assailed order are, for any reason, null and void. The writ is not ordinarily
granted where the law provides for other remedies in the regular course, and in the absence of
exceptional circumstances. Moreover, habeas corpus should not be granted in advance of trial. The
orderly course of trial must be pursued and the usual remedies exhausted before resorting to the writ
where exceptional circumstances are extant. In another case, it was held that habeas corpus cannot
be issued as a writ of error or as a means of reviewing errors of law and irregularities not involving
the questions of jurisdiction occurring during the course of the trial, subject to the caveat that
constitutional safeguards of human life and liberty must be preserved, and not destroyed. It has also
been held that where restraint is under legal process, mere errors and irregularities, which do not
render the proceedings void, are not grounds for relief by habeas corpus because in such cases, the
restraint is not illegal.
Habeas corpus is a summary remedy. It is analogous to a proceeding in rem when instituted for the
sole purpose of having the person of restraint presented before the judge in order that the cause of
his detention may be inquired into and his statements final. The writ of habeas corpus does not act
upon the prisoner who seeks relief, but upon the person who holds him in what is alleged to be the
unlawful authority. Hence, the only parties before the court are the petitioner (prisoner) and the
person holding the petitioner in custody, and the only question to be resolved is whether the
custodian has authority to deprive the petitioner of his liberty. The writ may be denied if the petitioner
fails to show facts that he is entitled thereto ex merito justicias.
A writ of habeas corpus, which is regarded as a "palladium of liberty," is a prerogative writ which
does not issue as a matter of right but in the sound discretion of the court or judge. It is, however, a
writ of right on proper formalities being made by proof. Resort to the writ is not to inquire into the
criminal act of which a complaint is made but unto the right of liberty, notwithstanding the act, and
the immediate purpose to be served is relief from illegal restraint. The primary, if not the only object
of the writ of habeas corpus ad subjuciendum, is to determine the legality of the restraint under
which a person is held.11 (Bold underscoring supplied for emphasis)
The object of the writ of habeas corpus is to inquire into the legality of the detention, and, if the
detention is found to be illegal, to require the release of the detainee. Equally well-settled however, is
that the writ will not issue where the person in whose behalf the writ is sought is out on bail, or is in
the custody of an officer under process issued by a court or judge with jurisdiction or by virtue of a
judgment or order of a court of record.12
There is no question that when the criminal complaints were lodged against Mangila and her cohorts
on June 16, 2003,Judge Pangilinan, as the Presiding Judge of the MTCC, was empowered to
conduct preliminary investigations involving "all crimes cognizable by the proper court in their
respective territorial jurisdictions." His authority was expressly provided in Section 2, Rule 112 of the
Revised Rules of Criminal Procedure, to wit:
Section 2.Officers authorized to conduct preliminary investigations.
The following may conduct preliminary investigations:
(a) Provincial or City Prosecutors and their assistants;
(b) Judges of the Municipal Trial Courts and Municipal Circuit Trial Courts;
(c) National and Regional State Prosecutors; and

(d) Other officers as may be authorized by law.

Their authority to conduct preliminary investigations shall include all crimes cognizable by the proper
court in their respective territorial jurisdictions. (2a)
Under Section 6(b) of Rule 112of the Revised Rules of Criminal Procedure, the investigating judge
could issue a warrant of arrest during the preliminary investigation even without awaiting its
conclusion should he find after an examination in writing and under oath of the complainant and the
witnesses in the form of searching questions and answers that a probable cause existed, and that
there was a necessity of placing the respondent under immediate custody in order not to frustrate
the ends of justice. In the context of this rule, Judge Pangilinan issued the warrant of arrest against
Mangila and her cohorts. Consequently, the CA properly denied Mangilas petition for habeas corpus
because she had been arrested and detained by virtue of the warrant issued for her arrest by Judge
Pangilinan, a judicial officer undeniably possessing the legal authority to do so.
1wphi1

It is relevant to point out at this juncture that the authority of the MTC and MTCC judges to conduct
preliminary investigations was removed only effective on October 3, 2005 pursuant to A.M. No. 05-826-SC.
With Mangilas arrest and ensuing detention being by virtue of the order lawfully issued by Judge
Pangilinan, the writ of habeas corpus was not an appropriate remedy to relieve her from the restraint
on her liberty. This is because the restraint, being lawful and pursuant to a court process, could not
be inquired into through habeas corpus. To quote the dictum enunciated by Justice Malcolm in
Quintos v. Director of Prisons:13
The writ of habeas corpus secures to a prisoner the right to have the cause of his detention
examined and determined by a court of justice, and to have ascertained if he is held under lawful
authority. The function of habeas corpus, where the party who has appealed to its aid is in custody
under process, does not extend beyond an inquiry into the jurisdiction of the court by which it was
issued and the validity of the process upon its face. It is not a writ of error. xxx (Bold underscoring
supplied for emphasis)
Accordingly, Section 4, Rule 102 of the Rules of Court explicitly states:
Section 4.When writ not allowed or discharge authorized. If it appears that the person alleged to
be restrained of his liberty is in the custody of an officer under process issued by a court or judge or
by virtue of a judgment or order of a court of record, and that the court or judge had jurisdiction to
issue the process, render the judgment, or make the order, the writ shall not be allowed; or if the
jurisdiction appears after the writ is allowed, the person shall not be discharged by reason of any
informality or defect in the process, judgment, or order. Nor shall anything in this rule be held to
authorize the discharge of a person charged with or convicted of an offense in the Philippines, or of
a person suffering imprisonment under lawful judgment. (Bold underscoring supplied for emphasis)
Still, Mangila harps on the procedural flaws supposedly committed by Judge Pangilinan in her
attempt to convince the Court on her entitlement to the issuance of the writ of habeas corpus. She
insists that the illegality and invalidity of the warrant of arrest because of its having been issued
without an exhaustive examination of the complainants and the witnesses in writing and under oath;
without a prior finding of probable cause; and without consideration of the necessity for its issuance
in order not to frustrate the ends of justice were enough reasons for granting the writ of habeas
corpus.14
Mangila fails to persuade.

To begin with, Judge Pangilinan issued the order of arrest after examining Palayon, one of the
complainants against Mangila and her cohorts. If he, as the investigating judge, considered
Palayons evidence sufficient for finding probable cause against her and her cohorts, which finding
the Court justifiably presumes from his act of referring the case and its records to the Office of the
City Prosecutor on the day immediately following the preliminary investigation he conducted, her
petition for habeas corpus could not be the proper remedy by which she could assail the adequacy
of the adverse finding. Even granting that there was a failure to adhere to the law or rule, such failure
would not be the equivalent of a violation of her constitutional rights. 15
Secondly, it was not procedurally correct for her to impugn the issuance of the warrant of arrest by
hinting that the investigating judge did not at all consider the necessity of determining the existence
of probable cause for its issuance due to time constraints and in order not to frustrate the ends of
justice, for that consideration was presumed.
And, lastly, it was clear that under Section 5,16 Rule 112 of the Revised Rules of Criminal Procedure,
the resolution of the investigating judge was not final but was still subject to the review by the public
prosecutor who had the power to order the release of the detainee if no probable cause should
beultimately found against her. In the context of the rule, Mangila had no need to seek the issuance
of the writ of habeas corpus to secure her release from detention. Her proper recourse was to bring
the supposed irregularities attending the conduct of the preliminary investigation and the issuance of
the warrant for her arrest to the attention of the City Prosecutor, who had been meanwhile given the
most direct access to the entire records of the case, including the warrant of arrest, following Judge
Pangilinans transmittal of them to the City Prosecutor for appropriate action. 17 We agree with the
CA, therefore, that the writ of habeas corpus could not be used as a substitute for another available
remedy.18
WHEREFORE, the Court AFFIRMS the resolutions promulgated on October 14, 2003 and
November 19, 2003 in C.A.-G.R. SP No. 79745; and ORDERS the petitioner to pay the costs of suit.
SO ORDERED.
G.R. No. 182497

June 29, 2010

NURHIDA JUHURI AMPATUAN, Petitioner,

vs.
JUDGE VIRGILIO V. MACARAIG, REGIONAL TRIAL COURT, MANILA, BRANCH 37, DIRECTOR
GENERAL AVELINO RAZON, JR., DIRECTOR GEARY BARIAS, PSSUPT. CO YEE M. CO, JR.
and POLICE CHIEF INSPECTOR AGAPITO QUIMSON, Respondents.
DECISION
PEREZ, J.:
Before this Court is a Petition for Certiorari under Rule 651 of the Rules of Court assailing the Order
dated 25 April 2008 of the Regional Trial Court (RTC) of Manila, Branch 37, in Special Proceeding
No. 08-119132 which denied the petition for Habeas Corpus filed by herein Petitioner Nurhida Juhuri
Ampatuan in behalf of her husband Police Officer 1 Basser B. Ampatuan 2 (PO1 Ampatuan).
Petitioner alleged in her petition that her husband PO1 Ampatuan was assigned at Sultan Kudarat
Municipal Police Station. On 14 April 2008, he was asked by his Chief of Police to report to the

Provincial Director of Shariff Kabunsuan, Superintendent Esmael Pua Ali (Supt. Ali). The latter
brought PO1 Ampatuan to Superintendent Piang Adam, Provincial Director of the Philippine National
Police (PNP) Maguindanao. PO1 Ampatuan was directed to stay at the Police Provincial Office of
Maguindanao without being informed of the cause of his restraint. The next day, 15 April 2008, PO1
Ampatuan was brought to the General Santos City Airport and was made to board a Philippine
Airlines plane bound for Manila. Upon landing at the Manila Domestic Airport, PO1 Ampatuan was
turned over to policemen of Manila and brought to Manila Mayor Alfredo Lim by Police Director
Geary Barias and General Roberto Rosales. A press briefing was then conducted where it was
announced that PO1 Ampatuan was arrested for the killing of two Commission on Elections
(COMELEC) Officials. He was then detained at the Police Jail in United Nations Avenue, Manila.
Thereafter, PO1 Ampatuan was brought to inquest Prosecutor Renato Gonzaga of the Office of the
City Prosecutor of Manila due to the alleged murder of Atty. Alioden D. Dalaig, head of the Law
Department of the COMELEC. On 20 April 2008, PO1 Ampatuan was turned-over to the Regional
Headquarters Support Group in Camp Bagong Diwa, Taguig City.3
Petitioner continues that on 21 April 2008, Chief Inquest Prosecutor Nelson Salva ordered the
release for further investigation of PO1 Ampatuan.4 The Order was approved by the City Prosecutor
of Manila. But Police Senior Superintendent Co Yee Co, Jr., and Police Chief Inspector Agapito
Quimson refused to release PO1 Ampatuan.
This prompted Petitioner to file the petition for writ of habeas corpus in the RTC of Manila, Branch
37.5
Private respondents had another version of the antecedent facts. They narrated that at around 7:08
oclock in the evening of 10 November 2007, a sixty-four-year-old man, later identified as Atty.
Alioden D. Dalaig, Head of the COMELEC Legal Department, was killed at the corner of M. H. Del
Pilar and Pedro Gil Streets, Ermita, Manila. Investigation conducted by the Manila Police District
(MPD) Homicide Section yielded the identity of the male perpetrator as PO1 Ampatuan.
Consequently, PO1 Ampatuan was commanded to the MPD District Director for proper disposition.
Likewise, inquest proceedings were conducted by the Manila Prosecutors Office.
On 18 April 2008, Police Senior Superintendent Atty. Clarence V. Guinto, rendered his Pre-Charge
Evaluation Report against PO1 Ampatuan, finding probable cause to charge PO1 Ampatuan with
Grave Misconduct (Murder) and recommending that said PO1 Ampatuan be subjected to summary
hearing.
On even date, a charge sheet for Grave Misconduct was executed against PO1 Ampatuan, the
accusatory portion of which reads:
CHARGE SHEET
THE UNDERSIGNED NOMINAL COMPLAINANT hereby charges above-named respondent of the
administrative offense of Grave Misconduct (murder) pursuant to Section 52 of R.A. 8551 6 in relation
to NAPOLCOM Memorandum Circular 93-024, committed as follows:
That on or about 7:08 in the evening of November 10, 2007, in M.H. Del Pilar and Pedro Gil St.,
Ermita, Manila, above-named respondent while being an active member of the PNP and within the
jurisdiction of this office, armed with a cal .45 pistol, with intent to kill, did then and there willfully,
unlawfully and feloniously, shot Atty. Alioden D. Dalaig, Jr., COMELEC official on the different parts of

his body, thereby inflicting upon the latter mortal gunshot wounds which directly cause (sic) his
death.
Acts contrary to the existing PNP Laws rules and Regulations.7
Also, through a Memorandum dated 18 April 2008, Police Director General Avelino I. Razon, Jr.
directed the Regional Director of the National Capital Regional Police Office (NCRPO) to place PO1
Ampatuan under restrictive custody, thus:
1. Reference: Memo from that Office dated April 15, 2008 re Arrest of PO1 Busser
Ampatuan, suspect in the killing of Atty. Alioden Dalaig and Atty. Wynee Asdala, both
COMELEC Legal Officers.
2. This pertains to the power of the Chief, PNP embodied in Section 52 of RA 8551, to place
police personnel under restrictive custody during the pendency of a grave administrative
case filed against him or even after the filing of a criminal complaint, grave in nature, against
such police personnel.
3. In this connection, you are hereby directed to place PO1 Busser Ampatuan, suspect in the
killing of Atty. Alioden Dalaig and Atty. Wynee Asdala, both COMELEC Legal Officers, under
your restrictive custody.
4. For strict compliance.8
On 19 April 2008, through a Memorandum Request dated 18 April 2008, respondent Police Director
Geary L. Barias requested for the creation of the Summary Hearing Board to hear the case of PO1
Ampatuan.9
On 20 April 2008, Special Order No. 921 was issued by Police Director Edgardo E. Acua, placing
PO1 Ampatuan under restrictive custody of the Regional Director, NCRPO, effective 19 April 2008.
Said Special Order No. 921, reads:
Restrictive Custody
PO1 Basser B. Ampatuan 128677, is placed under restrictive custody of the Regional Director,
NCRPO effective April 19, 2008. (Reference: Memorandum from CPNP dated 18 April 2008).
BY COMMAND OF POLICE DIRECTOR GENERAL RAZON:10
Meanwhile, on 21 April 2008, the City Prosecutor of Manila recommended that the case against PO1
Ampatuan be set for further investigation and that the latter be released from custody unless he is
being held for other charges/legal grounds.11
Armed with the 21 April 2008 recommendation of the Manila Citys Prosecution Office, petitioner,
who is the wife of PO1 Ampatuan, filed a Petition for the Issuance of a Writ of Habeas Corpus before
the RTC of Manila on 22 April 2008. The petition was docketed as Special Proceeding No. 08119132 and was raffled to Branch 37.

On 24 April 2008, finding the petition to be sufficient in form and substance, respondent Judge
Virgilio V. Macaraig ordered the issuance of a writ of habeas corpus commanding therein
respondents to produce the body of PO1 Ampatuan and directing said respondents to show cause
why they are withholding or restraining the liberty of PO1 Ampatuan. 12
On 25 April 2008, the RTC resolved the Petition in its Order which reads:
Essentially, counsels for petitioner insists that PO1 Basser Ampatuan is being illegally detained by
the respondents despite the order of release of Chief Inquest Prosecutor Nelson Salva dated April
21, 2008. They further claim that as of April 23, 2008, no administrative case was filed against PO1
Ampatuan.
Respondents, while admitting that to date no criminal case was filed against PO1 Ampatuan, assert
that the latter is under restrictive custody since he is facing an administrative case for grave
misconduct. They submitted to this Court the Pre-charge Evaluation Report and Charge Sheet.
Further, in support of their position, respondents cited the case of SPO2 Manalo, et al. v. Hon.
Calderon, G.R. No. 178920 claiming that habeas corpus will not lie for a PNP personnel under
restrictive custody. They claim that this is authorized under Section 52, Par. 4 of R.A. 8551
authorizing the Chief of PNP to place the PNP personnel under restrictive custody during the
pendency of administrative case for grave misconduct.
Petitioner countered that the administrative case filed against PO1 Ampatuan was ante-dated to
make it appear that there was such a case filed before April 23, 2008.
The function of habeas corpus is to determine the legality of ones detention, meaning, if there is
sufficient cause for deprivation or confinement and if there is none to discharge him at once. For
habeas corpus to issue, the restraint of liberty must be in the nature of illegal and involuntary
deprivation of freedom which must be actual and effective, not nominal or moral.
Granting arguendo that the administrative case was ante-dated, the Court cannot simply ignore the
filing of an administrative case filed against PO1 Ampatuan. It cannot be denied that the PNP has its
own administrative disciplinary mechanism and as clearly pointed out by the respondents, the Chief
PNP is authorized to place PO1 Ampatuan under restrictive custody pursuant to Section 52, Par. 4 of
R.A. 8551.
The filing of the administrative case against PO1 Ampatuan is a process done by the PNP and this
Court has no authority to order the release of the subject police officer.
Lastly, anent the contention of the petitioner that the letter resignation of PO1 Ampatuan has
rendered the administrative case moot and academic, the same could not be accepted by this
Court. It must be stressed that the resignation has not been acted (sic) by the appropriate police
officials of the PNP, and that the administrative case was filed while PO1 Ampatuan is still in the
active status of the PNP.
1avvph!1

WHEREFORE, premises considered, the petition for habeas corpus is hereby DISMISSED. 13
Distressed, petitioner is now before this Court via a Petition for Certiorari under Rule 65 of the Rules
of Court to question the validity of the RTC Order dated 25 April 2008. The issues are:

I. THE RESPONDENT COURT GRAVELY ABUSED ITS DISCRETION WHEN IT FAILED TO

CONSIDER THAT THE ARREST AND DETENTION OF PO1 BASSER B. AMPATUAN WAS
MADE WITHOUT ANY WARRANT AND THEREFORE, ILLEGAL;
II. THE RESPONDENT COURT GRAVELY ABUSED ITS DISCRETION WHEN IT
CONCEDED THE AUTHORITY OF RESPONDENT AVELINO RAZON, JR. UNDER SEC.
52, PAR. 4, R.A. 8551 TO PLACE AMPATUAN UNDER RESTRICTIVE CUSTODY FOR
ADMINISTRATIVE PROCEEDINGS;
III. THE RESPONDENT COURT GRAVELY ABUSED ITS DISCRETION WHEN IT SHIRKED
FROM ITS JUDICIAL DUTY TO ORDER THE RELEASE OF PO1 AMPATUAN FROM THE
CUSTODY OF RESPONDENTS MAMANG PULIS.14
Essentially, a writ of habeas corpus applies to all cases of illegal confinement or detention by which
any person is deprived of his liberty.15
Rule 102 of the 1997 Rules of Court sets forth the procedure to be followed in the issuance of the
writ. The Rule provides:
RULE 102
HABEAS CORPUS
SECTION 1. To what habeas corpus extends. Except as otherwise expressly provided by law, the
writ of habeas corpus shall extend to all cases of illegal confinement or detention by which any
person is deprived of his liberty, or by which the rightful custody of any person is withheld from the
person entitled thereto.
SEC 2. Who may grant the writ. The writ of habeas corpus may be granted by the Supreme Court,
or any member thereof, on any day and at any time, or by the Court of Appeals or any member
thereof in the instances authorized by law, and if so granted it shall be enforceable anywhere in the
Philippines, and may be made returnable before the court or any member thereof, or before a Court
of First Instance, or any judge thereof for hearing and decision on the merits. It may also be granted
by a Court of First Instance, or a judge thereof, on any day and at any time, and returnable before
himself, enforceable only within his judicial district.
xxxx
SEC. 4. When writ not allowed or discharge authorized. If it appears that the person alleged to be
restrained of his liberty is in the custody of an officer under process issued by a court or judge or by
virtue of a judgment or order of a court of record, and that the court or judge had jurisdiction to issue
the process, render the judgment, or make the order, the writ shall not be allowed; or if the
jurisdiction appears after the writ is allowed, the person shall not be discharged by reason of any
informality or defect in the process, judgment, or order. Nor shall anything in this rule be held to
authorize the discharge of a person charged with or convicted of an offense in the Philippines, or of
a person suffering imprisonment under lawful judgment.
The objective of the writ is to determine whether the confinement or detention is valid or lawful. If it
is, the writ cannot be issued. What is to be inquired into is the legality of a person's detention as of,
at the earliest, the filing of the application for the writ of habeas corpus, for even if the detention is at

its inception illegal, it may, by reason of some supervening events, such as the instances mentioned
in Section 4 of Rule 102, be no longer illegal at the time of the filing of the application. 16
Plainly stated, the writ obtains immediate relief for those who have been illegally confined or
imprisoned without sufficient cause. The writ, however, should not be issued when the custody over
the person is by virtue of a judicial process or a valid judgment.17
The most basic criterion for the issuance of the writ, therefore, is that the individual seeking such
relief is illegally deprived of his freedom of movement or placed under some form of illegal restraint.
If an individuals liberty is restrained via some legal process, the writ of habeas corpus is
unavailing.18 Fundamentally, in order to justify the grant of the writ of habeas corpus, the restraint of
liberty must be in the nature of an illegal and involuntary deprivation of freedom of action. 19
In general, the purpose of the writ of habeas corpus is to determine whether or not a particular
person is legally held. A prime specification of an application for a writ of habeas corpus, in fact, is an
actual and effective, and not merely nominal or moral, illegal restraint of liberty. The writ of habeas
corpus was devised and exists as a speedy and effectual remedy to relieve persons from unlawful
restraint, and as the best and only sufficient defense of personal freedom. A prime specification of an
application for a writ of habeas corpus is restraint of liberty. The essential object and purpose of the
writ of habeas corpus is to inquire into all manner of involuntary restraint as distinguished from
voluntary, and to relieve a person therefrom if such restraint is illegal. Any restraint which will
preclude freedom of action is sufficient.20
In passing upon a petition for habeas corpus, a court or judge must first inquire into whether the
petitioner is being restrained of his liberty. If he is not, the writ will be refused. Inquiry into the cause
of detention will proceed only where such restraint exists. If the alleged cause is thereafter found to
be unlawful, then the writ should be granted and the petitioner discharged. Needless to state, if
otherwise, again the writ will be refused.21
While habeas corpus is a writ of right, it will not issue as a matter of course or as a mere perfunctory
operation on the filing of the petition. Judicial discretion is called for in its issuance and it must be
clear to the judge to whom the petition is presented that, prima facie, the petitioner is entitled to the
writ. It is only if the court is satisfied that a person is being unlawfully restrained of his liberty will the
petition for habeas corpus be granted. If the respondents are not detaining or restraining the
applicant or the person in whose behalf the petition is filed, the petition should be dismissed. 22
Petitioner contends that when PO1 Ampatuan was placed under the custody of respondents on 20
April 2008, there was yet no administrative case filed against him. When the release order of Chief
Inquest Prosecutor Nelson Salva was served upon respondents on 21 April 2008, there was still no
administrative case filed against PO1 Ampatuan. She also argues that the arrest on 14 April 2008 of
PO1 Ampatuan in Shariff Kabunsuan was illegal because there was no warrant of arrest issued by
any judicial authority against him.
On the other hand, respondents, in their Comment 23 filed by the Office of the Solicitor General, argue
that the trial court correctly denied the subject petition. Respondents maintain that while the Office of
the City Prosecutor of Manila had recommended that PO1 Ampatuan be released from custody, said
recommendation was made only insofar as the criminal action for murder that was filed with the
prosecution office is concerned and is without prejudice to other legal grounds for which he may be
held under custody. In the instant case, PO1 Ampatuan is also facing administrative charges for

Grave Misconduct. They cited the case of Manalo v. Calderon,24 where this Court held that a petition
for habeas corpus will be given due course only if it shows that petitioner is being detained or
restrained of his liberty unlawfully, but a restrictive custody and monitoring of movements or
whereabouts of police officers under investigation by their superiors is not a form of illegal detention
or restraint of liberty.25
The Solicitor General is correct.
In this case, PO1 Ampatuan has been placed under Restrictive Custody. Republic Act No. 6975 (also
known as the Department of Interior and Local Government Act of 1990), as amended by Republic
Act No. 8551 (also known as the Philippine National Police Reform and Reorganization Act of 1998),
clearly provides that members of the police force are subject to the administrative disciplinary
machinery of the PNP. Section 41(b) of the said law enumerates the disciplinary actions, including
restrictive custody that may be imposed by duly designated supervisors and equivalent officers of
the PNP as a matter of internal discipline. The pertinent provision of Republic Act No. 8551 reads:
Sec. 52 x x x.
xxxx
4. The Chief of the PNP shall have the power to impose the disciplinary punishment of dismissal
from the service; suspension or forfeiture of salary; or any combination thereof for a period not
exceeding one hundred eighty (180) days. Provided, further, That the Chief of the PNP shall have
the authority to place police personnel under restrictive custody during the pendency of a grave
administrative case filed against him or even after the filing of a criminal complaint, grave in nature,
against such police personnel. [Emphasis ours].
Given that PO1 Ampatuan has been placed under restrictive custody, such constitutes a valid
argument for his continued detention. This Court has held that a restrictive custody and monitoring of
movements or whereabouts of police officers under investigation by their superiors is not a form of
illegal detention or restraint of liberty.26
Restrictive custody is, at best, nominal restraint which is beyond the ambit of habeas corpus. It is
neither actual nor effective restraint that would call for the grant of the remedy prayed for. It is a
permissible precautionary measure to assure the PNP authorities that the police officers concerned
are always accounted for.27
Since the basis of PO1 Ampatuans restrictive custody is the administrative case filed against him,
his remedy is within such administrative process.
We likewise note that PO1 Ampatuan has been under restrictive custody since 19 April 2008. To
date, the administrative case against him should have already been resolved and the issue of his
restrictive custody should have been rendered moot and academic, in accordance with Section 55 of
Republic Act No. 8551, which provides:
SEC. 55. Section 47 of Republic Act No. 6975 is hereby amended to read as follows:

Sec. 47. Preventive Suspension Pending Criminal Case. Upon the filing of a complaint or
information sufficient in form and substance against a member of the PNP for grave felonies where
the penalty imposed by law is six (6) years and one (1) day or more, the court shall immediately
suspend the accused from office for a period not exceeding ninety (90) days from arraignment:
Provided, however, That if it can be shown by evidence that the accused is harassing the
complainant and/or witnesses, the court may order the preventive suspension of the accused PNP
member even if the charge is punishable by a penalty lower than six (6) years and one (1) day:
Provided, further, That the preventive suspension shall not be more than ninety (90) days except if
the delay in the disposition of the case is due to the fault, negligence or petitions of the respondent:
Provided, finally, That such preventive suspension may be sooner lifted by the court in the exigency
of the service upon recommendation of the Chief, PNP. Such case shall be subject to continuous
trial and shall be terminated within ninety (90) days from arraignment of the accused.
(Emphasis supplied.)
Having conceded that there is no grave abuse of discretion on the part of the trial court, we have to
dismiss the petition.
In sum, petitioner is unable to discharge the burden of showing that she is entitled to the issuance of
the writ prayed for in behalf of her husband, PO1 Ampatuan. The petition fails to show on its face
that the latter is unlawfully deprived of his liberty guaranteed and enshrined in the Constitution.
WHEREFORE, premises considered, the instant petition is DISMISSED for lack of merit.
Costs against petitioner.
SO ORDERED.